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2003 DIGILAW 958 (PAT)

Rambilash Gupta v. Srimati Arunabala Ghosh

2003-09-03

S.N.PATHAK

body2003
JUDGMENT S.N. PATHAK, J. This Miscellaneous appeal is directed against the judgment dated 24th january 2000, passed by the Motor Vehicle Clims Tribunal, Kishanganj in Claims Case No.10 of 1989. The owner of the vehicle in question is the appellant here. 2. The appellant's lawyer has challenged the quantum of compensation fixed by Tribumal. The claimant respondent's lawyer submitted that the appellant appeared in the court below, but did not file any W.S. either denying the alleged occurrence of challenging the case on any other ground. So he would be estopped from challenging the quantum of compensation fixed by the Tribunal. It was further submitted by the claimant-respondent that the Insurance Policy was neither Produced by the insurance Company not by the appellant hence, the insurance Company could not set up the case that its liabilty is limited. 3. Admittedly, the vehicle in question was insured and so it was further submitted by the appellants lawyer that liability for paying the entire compensation money should have been fixed on the Insurance Company. However U/S 168 of the M. V Act the driver, the owner and the Insurance Company, all are severally and jountly liable. in the instant case, the Insurance Company was directed to pay an amount of Rs. 50.000/-which was its limited liability in view of Section 95 (2) (b) (i) of the M.V. Act, 1939, of course, the Insurance policy was not produced by any of the parties, So the plea of the Insurance Company for limited liability was not available to it. But in spite of that, when the court thought it fit to place limited liability upon the Insurance Company I do not think it committed any liability by directing the owner of the vehicle to pay the remaining amount of compensation I have already observed above that under Section 168 of the Act, the owner is not free from its liability to pay the compensation amount. So there is no illegality in the impugned judgment to this extent. 4. Now the question is whether the appellant who did not file an W.S. can challange the quantum of compensation. So there is no illegality in the impugned judgment to this extent. 4. Now the question is whether the appellant who did not file an W.S. can challange the quantum of compensation. In this connection, I am of the opinion that, of - course, without filing any W.S. the appellants was handicapped in denying its liability on account of alleged accident, but since it had contested the case and was present throughout the trial, I think the owner is competent to challenge the quantum of compensation, in the instant case, a boy of 11 years was Knocked down by the appellant's vehicle. So the moot question was what would be the appropriate and just compensation to be paid to the claimant. The Tribunal held that the deceased's brother was carrying business of general store and earning Rs.2,500/- per month the deceased's father was also having a pucca house on a piece of land measuring there kathas, behind the• shop in question. The deceased was a student of Class-VIII P.W.4 said that he was earning Rs.1, 500/- per month. The Tribunal however, fixed the compensation amount of Rs. 500,000/- plus about of Rs.5, 000/- due to shock and agony to the family of the deceased. I fail to under stand on what basis the tribunal calculated this amount of compensation, when the deceased was a boy of 11 years. In case of a minor boy having no income of his own. in order to contribute any part of the same to his family a lump sum amount of compensation is fixed or taking in view the structured formula in the 2nd Schedule of M.V. Act, 1994, compensation may be calculated by using a particular - multiplier according to the age of the deceased or that of the claimant, Whichever is higher, in the instant case, the quantum of compensation fixed by the Tribunal does not appear to be based on any of the aforesaid principles. Simply because normal expectancy of life of the family of the deceased was 70 years, it cannot be assumed that the bov who died could also live for 70. years and that he will also run a shop along with his brother and earn an income of RS.1, 500/- per month. Future prospect of a deceased may be considered along with uncertainties and vagrancy of life span. years and that he will also run a shop along with his brother and earn an income of RS.1, 500/- per month. Future prospect of a deceased may be considered along with uncertainties and vagrancy of life span. So by fixing a compensation amount on the basis of expectancy of life of the deceased and as per the claim of the claimant, the Tribunal would be falling into a trap while granting such compensation to the dependants of the deceased by way of a wind fall or an unexpected gift which would be punitive to the owner of the Insurance Company. The Tribunal should take a just and reasonable view of circumstances on the record and fix compensation amount which would be warranted by the status of the family of the deceased and the mental shock and agony as faced by the bereaved family. Even if a lump sum is fixed, that should not be as per wishes of the claimant not that should be so meager as to leave the claimant high and dry. So I am of the opinion that the statutory income for non-earning member of a family which suffered, should be basis for computing the just amount of compensation. Rs.15,000/ - is the amount as per the 2nd Schedule of the M.V. Act. Reducingi/3rd of the same, RS.1, 000/- would be the appropriate amount available to claimant's family per annum. The age of the claimant his not been mentioned in the impugned judgment of the Tribunal. According to the age of the deceased, figure 15' is the multiplier for the deceased of age upto 15 years. I am of the opinion that Rs.1, 50.000/- should be the just and proper amount of compensation to be paid to the claimant- respondent no.1. Rs.50,000/- has been ordered to be paid to the claimant by the Insurance Company. So I am not going to including this amount of RS.1, 50, 000/-RS.2.000/- for funeral expenses etc is added to this amount. So the total compensation amount to be paid by the appellant shall be Rs. 1, 52, 000/- Other observation regarding the compensation amount, as stated in Paragraph 15 of the impugned judgment shall remain intact. 5. With the above modification in the amount of compensation, this appeal is dismissed at this very stage.