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2003 DIGILAW 575 (PAT)

Most. Rajpati Devi v. Ram Kumar Singh

2003-05-14

SHIVA KIRTI SINGH

body2003
Judgment Shiva Kirti Singh, J. 1. This appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred by the applicants against judgment dated 29.6.1999 and Award dated 12.7.1999 passed by 1st Additional Motor Vehicles Accident Claim Tribunal, Muzaffarpur in Claim Case No. 8 of 1994/5 of 1995. 2. Appellant no. 1 is mother of deceased Nawal Ram and other appellants are her family members who preferred the aforesaid claim case due to death of said Nawal Ram in a road accident on 4.12.1993 involving a bus bearing registration no. BR 06P 0325 owned by respondent no. 1. In column no. 16 of the claim application respondent no. 2, the New India Assurance Company Limited was described as the insurer of the vehicle along with details of the insurance cover note as well as period of insurance as 24.8.1993 to 23.8.1994. The deceased was shown to be a daily wage labourer having monthly income of Rs. 900/-. 3. By the impugned judgment and Award the appellants were allowed a compensation of Rs. 70,400/- in favour of appellant no. 1 with certain conditions in respect of the mode of utilisation of the Award money. The liability to pay the compensation was fixed only against the owner, respondent no. 1 and the insurance company, respondent no. 2 was held not liable in view of finding in respect of Issue No. IV that in absence of any evidence on behalf of OP No. 1 (the owner) that the insurance cover dated 24.8.1993 (Annexure-1) actually covered the bus in question there was no option but to hold that the bus was not covered by any insurance at the relevant time. 4. In this appeal, the appellants have advanced arguments to challenge the findings given in respect of aforesaid Issue No. IV as well as in respect of Issue No. V whereunder the amount of compensation was determined on the basis of an estimated annual income of the deceased as Rs. 5,280/- in place of Rs. 10,800/- (Rs. 900/- monthly) claimed by the applicants. 5. In order to challenge the finding in respect of Issue No. IV as to whether the bus in question was covered by insurance, learned counsel for the appellants has placed reliance on an order dated 17.9.1998 of the Claims Tribunal. 5,280/- in place of Rs. 10,800/- (Rs. 900/- monthly) claimed by the applicants. 5. In order to challenge the finding in respect of Issue No. IV as to whether the bus in question was covered by insurance, learned counsel for the appellants has placed reliance on an order dated 17.9.1998 of the Claims Tribunal. By the said order the Tribunal while considering a petition for interim compensation under section 140 of the Motor Vehicles Act noticed the stand of the respondent no. 2 in a petition dated 1.5.1998 in which it was admitted that the vehicle in question was insured on the alleged date of accident. In that view of the matter, the Tribunal directed the insurer to pay interim compensation of Rs. 25000/- within a fixed time and the said order was accepted and complied by the insurance company, respondent no. 2. A perusal of petition dated 1.5.1998 supports the contention on behalf of the appellants that respondent no. 2 had admitted that the vehicle was insured with it on the date of accident. 6. It is relevant to notice that in its written statement the insurer did not plead that the cover note of insurance pleaded in the claims petition did not relate to the vehicle in question or that the vehicle was not insured with the company, rather the stand in paragraph 13 of the written statement is only to the effect that the owner should appear and prove the contention in respect of insurance by producing the original documents. By accepting this stand of the insurer, the Tribunal absolved the insurance company of its liability because the owner did not lead evidence to formally prove the insurance cover note/policy. 7. When this appeal was being heard on 31.10.2002, after noticing the nature of controversy in respect of Issue No. IV this Court allowed the prayer of respondent no. 2 for an adjournment and some time to look into the relevant records and find out any documentary evidence, if available, in support of its stand that the photostat copy of cover note filed by the owner in the court below is fake and fraudulent or that it does not relate to the vehicle in question. By way of further adjournments, respondent no. 2 was given about six months time but no counter affidavit or document was filed. 8. By way of further adjournments, respondent no. 2 was given about six months time but no counter affidavit or document was filed. 8. Considering the pleadings of the parties and the admission made by the insurance company, respondent no. 2, in its petition dated 1.5.1998, this Court has no hesitation to hold that there was no burden on OP No. 1 to prove a fact which stood admitted by the insurer. The learned Tribunal thus erred in law in deciding Issue No. IV against the appellants and in favour of respondent no. 2, the insurance company. In the facts of the case, it is found and held that the bus in question was covered by insurance given by respondent no. 2. The Issue No. IV is decided accordingly in favour of claimants/appellants. 9. In respect of quantum of compensation covered by Issue No. V, learned counsel for the appellants has referred to the discussions made by the learned Tribunal and submitted that the claimants had relied upon a notification dated 21.12.1995 for advancing the submission that minimum wage in the year 1995 was Rs. 27.30 paise and hence that be accepted as a relevant criterion in support of wage claimed by the applicants in the year 1993 when the accident took place. According to learned counsel for the appellants, the learned Tribunal erred in presuming that in the year 1993 the minimum wage and the actual wage may not be more than Rs. 22 per day and it further erred in calculating the annual income only on the basis of employment for 240 days. in a year on a reasoning that employment of a casual labourer during the whole year could not be for more than 240 days. 10. The claim of the applicants in respect of monthly income of the deceased being Rs. 900, the daily wage claimed comes to Rs. 30/-. The minimum wage notified by the Government can provide guidelines where the deceased was admittedly not employed or when there is no evidence of actual income and a notional income has to be worked out or where the claim is found to be wholly unreasonable. The actual wage may often be in excess of or less than the prescribed minimum wage. In the present case, three witnesses were examined on behalf of the applicants. The actual wage may often be in excess of or less than the prescribed minimum wage. In the present case, three witnesses were examined on behalf of the applicants. AWs 1 and 3 have deposed that the deceased was a daily wage earner and as a labourer he was earning Rs. 50/- per day. The learned Tribunal has not noticed the deposition of witnesses on this point and has confined itself wrongly to the notified minimum wage. The learned Tribunal has indulged in guess and surmises in respect of the daily earning of the deceased and also in presuming that a casual labourer can be employed gainfully only for 240 days in a year. Considering all the materials on record this Court is of the view that the claim of Rs. 30 per day or Rs. 900 per month as income of the deceased given in the claim petition was fit to be accepted in place of a higher claim made by witnesses examined on behalf of the applicants. The learned Tribunal was in clear error in calculating annual income only on the basis of 240 working days and minimum wages. 11. At this stage, it is necessary to notice another submission of learned counsel for the appellants before this Court that the annual income of the deceased should be held as Rs. 15,000/- in view of provisions in the 2nd schedule to the Act introduced with effect from 14.11.1994. In this regard, he has submitted that although the amendment introducing the 2nd schedule came after the accident in question but it should have been taken into consideration because the Tribunal gave its judgment in the year 1998. According to learned counsel for the appellants, the two judgments of the Apex Court in the case of Rathi Menon V/s. The Union of India reported in 2001 (2) PLJR (SC) 97 and in the case of Kaushnuma Begum V/s. New India Assurance Company Limited reported in (2001) 2 SCC 9 clearly lay down the law that compensation should be awarded according to formula prescribed, on the date of the judgment even though the accident took place earlier. 12. In the case of Rathi Menon the Supreme Court was dealing with a case for compensation under section 124A of Railways Act, 1989. 12. In the case of Rathi Menon the Supreme Court was dealing with a case for compensation under section 124A of Railways Act, 1989. In paragraph 32 of the judgment the difference between scheme of compensation under Workmen Compensation Act and that under the Railways Act was spelt out. The other judgment in the case of Kaushnuma Begum, however, deals with a case under the Motor Vehicles Act. In that case although the accident took place in 1986 and the Tribunal dismissed claim for compensation under the Motor Vehicles Act, 1939 on account of failure of the claimant to prove and establish rashness had negligence of driver, the Apex Court relied upon the common law principle of strict liability enunciated in Rylands V/s. Fletcher (1861-73) All. E.R.Rep. 1 to allow compensation on the premise that the Tribunal has the jurisdiction to decide claims on considerations other than rashness and negligence, for example by placing reliance upon rule of strict liability in Rylands vs. Fletcher. While fixing the quantum of compensation the Supreme Court adopted the formula provided in the 2nd Schedule to the Motor Vehicles Act, 1988 and clarified in last sentence of paragraph 22 of the judgment thus: "Though it was formulated for the purpose of Section 163A of the MV Act, we find it a safer guidance for arriving at the amount of compensation than any other method so far as the present case is concerned." 13. The aforesaid clarification leaves no doubt that the decision to adopt the formula in the 2nd Schedule to the MV Act was in the peculiar facts of that case even after noticing that the formula was only for the purpose of Section 163A of the MV Act. First paragraph of the impugned judgment clearly mentions that in the present case the petition for compensation is under section 166 of the MV Act. 14. Section 163-A contains special provisions as to payment of compensation on structured formula basis and sub-section (2) provides that for a claim under this section the claimant shall not be required to plead or establish any wrongful act or neglect or default of the owner of the vehicle or of any other person. 14. Section 163-A contains special provisions as to payment of compensation on structured formula basis and sub-section (2) provides that for a claim under this section the claimant shall not be required to plead or establish any wrongful act or neglect or default of the owner of the vehicle or of any other person. Section 163B indirectly creates a bar to a petition under section 163A by providing that a person entitled to claim compensation on no fault basis both under section 140 and section 163-A can file such claim under either of the said sections and not under both. In the present case the claimants have filed and received claim under section 140 of the Act. Hence, their claim petition for compensation has rightly been treated under section 166 of the MV Act. It cannot be entertained under section 163-A in view of provisions under section 163-B of the Act. The 2nd Schedule to the Act containing structured formula for compensation can be used, as per legislative mand0ate only for a claim under section 163-A. Hence, this Court finds no merit in the submission that annual income of the deceased be presumed as per provisions of the 2nd Schedule. As per finding given earlier the claim of Rs. 900/- per month as income of the deceased was fit to be accepted. The same is accordingly accepted as the monthly income of the deceased. 15. The parties have not challenged the calculation of compensation by the court below by applying a multiplier of 16. The amount of compensation for death should be calculated by reducing the annual income of the deceased by 1/3rd of the income in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. After such reduction the annual income available for calculating compensation would come to Rs. 7200/-. By multiplying the same with a multiplier of 16 the amount of compensation payable to the claimants would come to Rs. 1,15,200/-. Besides such compensation for the loss of income of the deceased, the Tribunal has awarded Rs. 7,000/- for funeral expenses and loss of support and Rs. 5,000/- for the pain and agonies she has suffered. Since compensation under these factors have not been challenged hence they are maintained and the total compensation amount is found to be Rs. 1,27,200/-. The amount of Rs. 7,000/- for funeral expenses and loss of support and Rs. 5,000/- for the pain and agonies she has suffered. Since compensation under these factors have not been challenged hence they are maintained and the total compensation amount is found to be Rs. 1,27,200/-. The amount of Rs. 25,000/- paid by the insurer under Section 140 of the Act is required to be reduced from the total amount of compensation in view of proviso to sub-section (5) of section 140 of the Act. On such reduction the amount now payable and due would be Rs.1,02,200/-. 16. The insurer, respondent no. 2 is directed to pay the due amount of compensation of Rs. 1,02, 200/- with interest at the rate of 10 per cent per annum from the date of filing of the claim application within 60 days of this order through account payee cheque in favour of applicant no. 1, Rajpati Devi, failing which she will further be entitled to receive and respondent no. 2 shall be further liable to pay penal interest at the rate of 15 per cent per annum on the due amount till realisation. The appellants have not challenged the provisions made by the Tribunal for deposit of compensation amount in nationalised bank for a fixed period of five years during which appellant no. 1, Rajpati Devi, mother of the deceased, shall be entitled to draw interest for her maintenance as well as for maintenance of applicant no. 2, Faguni Ram, the grandfather of the deceased. Hence, those directions are ordered to be maintained. But it is made clear that appellant no. 1 will be entitled to draw interest every month and hence, the amount should be deposited in most profitable scheme of a nationalised bank which permits withdrawal of interest every month. It will be open for appellant no. 1 to hold this account jointly with any other member of her family as per her choice. 17. The appeal is allowed to the aforesaid extent and the order of the Tribunal is modified accordingly.