Rajasthan High Court - Jaipur
Har Bai And Ors. vs Laxmi Narain And Ors. on 22 December, 2004
Equivalent citations: II(2005)ACC657, 2006ACJ2477
Author: Dalip Singh
Bench: Dalip Singh
JUDGMENT Dalip Singh, J.
1. This appeal has been filed by the claimants-appellants against the award dated 13.5.1993 passed by the learned Judge, Motor Accidents Claims Tribunal, Dausa, in M.A.C.T. Claim No. 139 of 1989 for the enhancement of compensation awarded to the claimants.
2. The brief facts giving rise to this appeal are that on 21.10.1989 the deceased Ramji Lal aged 40 years was travelling towards Dausa on the roof of the bus No. RNA 5330. On account of rash and negligent driving by the driver of the bus who abruptly applied the brakes causing the appellant to fall down, as a result of which the appellant sustained injuries and consequently died.
3. Learned Counsel for appellants submits that the deceased was aged 40 years at the time of accident and his monthly income was assessed at Rs. 750 by the learned Tribunal. The Tribunal deducted one-third amount from Rs. 750 towards personal expenses and consequently determined the dependency/contribution for the family at Rs. 500. Learned Tribunal while assessing his monthly contribution to the family as Rs. 500 has applied multiplier of 20 which comes to Rs. 1,20,000 and has also awarded an amount of Rs. 40,000 for loss of consortium, love and affection and an additional amount of Rs. 5,000 towards expenses for the performance of the last rites of the deceased. In all the amount of Rs. 1,20,000 + Rs. 40,000 + Rs. 5,000 totalling to Rs. 1,65,000 (rupees one lakh sixty-five thousand) was awarded.
4. While assessing negligence the learned Tribunal came to the conclusion that the deceased was liable for contributory negligence, inasmuch as the deceased was travelling on the roof of the bus and as such an amount of Rs. 55,000 was deducted from the award of Rs. 1,65,000 and thus, Tribunal awarded a sum of Rs. 1,10,000 as compensation to the claimants-appellants.
5. The learned Tribunal further held that the liability of the insurance company (respondent No. 3 herein) was limited to Rs. 15,000, while determining issue No. 5.
6. The first submission of the learned Counsel appearing on behalf of appellants is that even assuming that the learned Tribunal assessed the income of the deceased as Rs. 750 per month as correct, deducted a sum of Rs. 250 being one-third of the amount towards personal expenses is not sustainable in law. The learned Counsel for the appellants has submitted that this Court in the case in Rama Nand v. Lalita Sharma , has held that in the case of persons having meagre income, it would not be legitimate to expect that the deceased out of such meagre income would be spending an amount of one-third of his income, upon himself when he had such a large family to support. In the instant case the deceased apart from himself has to support eight members of the family and, therefore, could not be expected to spend one-third of the income upon himself.
7. I am respectful in agreement with the said judgment and views expressed by this Court in the aforesaid case of Rama Nand v. Lalita Sharma , that in the case of persons with meagre earnings it could not be expected that deceased would be spending one-third of the amount upon himself and leaving only two-third income towards supporting such a large family of eight persons other than himself (nine in all).
8. Learned Counsel for the respondents could not point out any contrary view of this Court on the aforesaid proposition. In this view of the matter the deduction of one-third out of Rs. 750 per month made by learned Tribunal is liable to be set aside and income as contribution by the deceased is liable to be assessed Rs. 750 x 12 months x 20 years, i.e., equal to Rs. 1,80,000.
9. The learned Counsel appearing on behalf of the appellants submits that the learned Tribunal while deciding issue No. 5 has held that in spite of the fact that the accident took place on 21.10.1989, i.e., after Motor Vehicles Act, 1988 has come into force on 1.7.1989, notwithstanding that the liability of the insurer under the provisions of new Act was unlimited, in the present case, the liability of the insurer would be governed by the provisions of Motor Vehicles Act, 1988 and not as per Section 95(2)(b) of the 1939 Act since the petitioner died in motor accident which occurred on 21.10.1989, liability of the insurance company would not be restricted to Rs. 15,000 only. The learned Counsel for the appellants relied upon decision of the Supreme Court in National Insurance Co. Ltd. v. Behari Lal , wherein it was held in para 12 as under:
(12) From the above discussion, it follows that the proviso to Sub-section (2) of Section 147 does not limit the liability of insurance companies to payment of compensation to the extent specified in the policy of insurance in terms of Section 95(2) of the old Act which is in force before the commencement of the new Act for a period of four months after commencement of the new Act or till the date of expiry of such a policy, whichever is earlier. In this view of the matter, we endorse the view taken by the Division Bench of Gujarat High Court in Kacharabhai L. Limbachia v. Ratansinh J. Rathod-Patelia and by the Division Bench of Punjab & Haryana High Court in the case of National Insurance Co. Ltd. v. Puja Roller Flour Mills Pvt. Ltd. .
10. In the aforesaid case of National Insurance Co. Ltd. v. Behari Lal it has been stated that the policy of insurance had been issued on 28.10.1988 and it was valid up to 27.10.1989 and the accident occurred on 4.9.1989, after the new Act came into force but before the expiry of the policy in force. Even in the present case the facts are almost identical. The policy in question had been issued on 6.5.1989 and was valid up to 5.5.1990, the new Act came into force on 1.7.1989 and. accident took place on 21.10.1989, i.e., after new Act came into force. In para 14 of the judgment in National Insurance Co. Ltd. v. Behari Lal (supra), their Lordships held as under:
On these facts the liability of the insurance company will be governed by Sub-section (2)(a) of Section 147 of the new Act, namely, the amount of liability incurred but not under Section 95(2) of the old Act. The High Court is, therefore, right in allowing the appeal of the respondents claiming the whole amount of compensation awarded by the Tribunal from the insurance company. We find no merits in this appeal. It is, accordingly, dismissed with costs.
11. In view of aforesaid authoritative decision of their Lordships of the Supreme Court, the submissions of learned Counsel for the appellants that the finding of the learned Tribunal on issue No. 5 that the liability of insurance company would be limited to Rs. 15,000 in accordance with Section 95(2)(b) of the Motor Vehicles Act, 1939 is liable to be set aside. It is held in terms of the judgment of their Lordships of the Apex Court in National Insurance Co. Ltd. v. Behari Lal , the respondent insurance company would be liable to pay the entire amount of compensation awarded by the Tribunal.
12. Consequently, this appeal succeeds and the finding of the learned Tribunal with regard to compensation to be paid on account of loss of earnings to the family is being enhanced from Rs. 1,20,000 to Rs. 1,80,000, plus Rs. 40,000 awarded on account of loss of consortium, love and affection plus Rs. 5,000 awarded towards the expenses for performances of last rites of the deceased, in all entitling to a sum of Rs. 2,25,000.
13. In this case, since learned Tribunal has held that the contributory negligence on account of the fault of the deceased is one-third for the compensation amount of Rs. 75,000 being the one-third which has not been challenged in this appeal, consequently Rs. 75,000 out of the amount of Rs. 2,25,000 as assessed above is liable to be deducted, consequently the appellants are also entitled to compensation amounting to Rs. 1,50,000, the appellants would be entitled to recover the aforesaid amount from the respondents who are jointly and severally liable to pay the entire amount. It is made clear that any amount which the respondents might have paid out of the principal amount of Rs. 1,10,000 originally awarded by the Tribunal, would be liable to be deducted from the principal amount of enhanced compensation of Rs. 1,50,000 as allowed by this judgment. Such balance amount would be paid or deposited by the respondents within a period of 3 months from today. The aforesaid amount of enhanced compensation would be deposited along with interest at the rate of 6 per cent per annum from the date of filing of this appeal, i.e., 7.10.1993. However, in case the respondent fail to pay or deposit the aforesaid amount of compensation within a period of three months from today, the respondents shall be liable to pay interest at the rate of 9 per cent per annum on the enhanced amount with effect from the date of filing of this claim petition before the Tribunal, i.e., 22.12.1989.
In the result, this appeal is allowed as indicated above.
There shall be no order as to costs.