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Madhya Pradesh High Court · body

2000 DIGILAW 1179 (MP)

New India Assurance Co. Ltd. v. Neelabai

2000-10-31

R.D.VYAS, SHAMBHOO SINGH

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This appeal is directed by the non-applicant Insurance Co. and the owner of the vehicle against the award dated 6.9.97 passed by MACT, West Nimar, Mandleshwar, in Claim Case No. 66/96. The claimants also filed cross-objections for enhancement of compensation amount. The facts of the case, in brief, are that on 12.5.96 the deceased Vijaysingh, the husband of appellant No.1 and father of appellant Nos. 2 to 5 and son of appellants Nos. 6 & 7, was going towards the river alongwith his son Basant Singh. When they were near the house of Nandu, respondent No.8 came there driving tractor No. M.P. 10/2385 attached with trolley No. M.P. 10/2386 in rash and negligent manner and when he turned it, the wheel of the trolley crushed Vijaysingh, as a result of which he died on the spot. He was Head Cashier in State Bank of Indore, Branch Choli and was receiving salary at Rs. 10,257 = 20 paisa. He was aged about 47 years and had ample chances of promotion. The appellants filed claim case and sought compensation of Rs. 22,00,000/- for the death of Vijay singh. The respondent Nos. 6, 7 & 8 and the appellants resisted the claim. The appellant Insurance Co. inter alia pleaded that respondent No.8, the driver of the tractor had no valid driving licence and the tractor was used for the purpose other than agriculture for which it was insured. Hence, it was not liable to pay compensation. The Tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the tractor-trolley by respondent No. 8 and it awarded compensation of Rs. 10,84,764/-. The non-applicants Insurance Co. and the owner filed appeal under Section 173 of the Motor Vehicles Act questioning the award of compensation. The claimants filed cross-objections for enhancement of compensation amount. The appellant Insurance Co. did not obtain leave of the Tribunal under section 70 of the Motor Vehicles Act, 1988 to contest the case on merits on all grounds. The appellant Insurance Co. has got limited defences enumerated under section 149(2) of the Motor Vehicles Act. The claimants filed cross-objections for enhancement of compensation amount. The appellant Insurance Co. did not obtain leave of the Tribunal under section 70 of the Motor Vehicles Act, 1988 to contest the case on merits on all grounds. The appellant Insurance Co. has got limited defences enumerated under section 149(2) of the Motor Vehicles Act. Of course, where the Tribunal is satisfied that there was collusion between the claimants and the owner or the person against whom the claim is made, and the latter failed to contest the claim, it could grant leave to the insurer to contest the claim on all grounds that were available against the person against whom the claim was made. This provision is a mandatory provision and without obtaining the leave of the Tribunal, the Insurance Co. cannot contest the case on merits on all the grounds which were available to the owner and driver. In this case, there appears no collusion between the owner and the claimants. Under such circumstances, the appellant Insurance Co. cannot be heard on merits. It is true that this appeal has been filed jointly by the insurer and the owner but Their Lordships of the Supreme Court in case of Chinnama George and others v. N.K. Ruju and another, 2000 ACJ 777, held that joint appeal was not maintainable and, therefore, we dismiss the appeal filed by the appellant Insurance Co. Shri H.G. Shukla, learned counsel for the appellant, submitted that this Court should exercise its powers under Order 41 Rule 33 of the CPC and reduce the compensation amount which is highly excessive. We do not find any substance in this argument. Even otherwise, compensation amount does not appear to be so high that this Court should exercise its powers under Order 41 Rule 33 of the CPC and reduce the compensation amount. It has come in the evidence of Neelabai (A.W. 1), the widow and Babusingh (A.W. 2), the father of the deceased that the deceased Vijaysingh was Head Cashier in State Bank of Indore, Branch Choli and was receiving Rs. 10,300/- per month as pay. There were also chances for revision of pay and the deceased had also chance of getting promotion. Taking in view the future prospects, his monthly earning can be easily assessed at Rs. 12,000/- per month. (1994 ACJ 1, General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and another). 10,300/- per month as pay. There were also chances for revision of pay and the deceased had also chance of getting promotion. Taking in view the future prospects, his monthly earning can be easily assessed at Rs. 12,000/- per month. (1994 ACJ 1, General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and another). On deducting 1/3rd of it for personal expenses of the deceased and income tax, etc. and keeping in view his standard of living, we fix the dependency of the appellants at Rs. 7,000/- per month and Rs. 84,000/- yearly. It has come in the evidence of Babusingh that the date of birth of the deceased was 24.9.49. According to this, at the time of accident, the deceased was of the age of 46 years. Under such circumstances, the appropriate multiplier would be 13. On multiplying it with the multiplicand, the amount comes to (84,000 x 13) Rs. 10,92,000/-. Respondent No. 1, the widow, is entitled to Rs. 5,000/- for loss of consortium and Rs. 2,000/- for funeral expenses. On addition of this amount, the amount of compensation comes to Rs. 10,99,000/-. In view of above, it cannot be said that the compensation amount awarded by the Tribunal is excessive. Under such circumstances, the appeal filed by the appellant deserves to be dismissed and is hereby dismissed. In view of above, we do not find any substance in the cross-objections also filed by the claimants. For meagre amount of Rs. 15,000/- we do not think it proper to interfere in the compensation amount awarded by the Tribunal. Thus, the cross-objections are also dismissed. There shall be no order as to costs.