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Himachal Pradesh High Court · body

2004 DIGILAW 49 (HP)

TULNA DEVI v. GIRDHARI LAL

2004-03-19

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The abovenoted five appeals arising out of a common award dated 26.4.2001 of the learned Motor Accident Claims Tribunal (II), Shimla (for short : the Tribunal) are being disposed of by this single judgment as the questions involved therein are the same. 2. Respondent No. 1 Girdhari Lal is the owner of Mini Bus No. HP-10-0111 while respondent Bhupender Singh was the driver of the said bus. One Sunder Singh, who is a respondent in some of the appeals is the co-owner of the abovesaid bus along with respondent No. 1 Girdhari Lal. Respondent National Insurance Company is the insurer of the said bus. 3. On 12.6.1995, the abovesaid bus while proceeding from Jangla to Rohru at about 11.50 a.m. near Samoli Bridge met with an accident as a result it went off the road and fell down in Pabber river resulting into the death and injuries to a number of persons. 4. FAO No. 220 of 2001 arises out of Claim Petition No. 82-S/2 of 1995 wherein the learned Tribunal vide the impugned award dated 26.4.2001 awarded compensation amounting to Rs. 4,18,000/- along with interest at the rate of 9 per centum per annum from the date of the petition till the date of payment of the amount in favour of the appellants in respect of the death of Mehar Chand, husband of appellant No. 1, father of appellants No. 2 and 3, and son of appellants No. 4 and 5, who had died in the abovesaid accident. 5. FAO No. 234 of 2001 arises out of Claim Petition No. 83-S/2 of 1995 wherein the learned Tribunal vide the impugned award dated 26.4.2001 awarded compensation to the tune of Rs. 65,000 along with interest at the rate of 9 per centum per annum from the date of the claim petition till the date of payment of the amount in favour of the two appellants in respect of the death of their infant child, Sanjay Kumar, of about 1-1/2 years of age, who had died in the aforesaid accident. 6. 65,000 along with interest at the rate of 9 per centum per annum from the date of the claim petition till the date of payment of the amount in favour of the two appellants in respect of the death of their infant child, Sanjay Kumar, of about 1-1/2 years of age, who had died in the aforesaid accident. 6. FAO No. 401 of 2001 arises out of Claim Petition No. 73-S/2 of 1995 wherein the learned Tribunal has awarded compensation to the extent of Rs, 3,16,000/- along with interest at the rate of 9 per centum per annum from the date of claim petition till the date of payment of the amount in favour of appellants in respect of the death of one Bali Ram, husband of appellant No. 1, son of appellant No. 2 and father of appellants No. 3 to 6. 7. FAO No. 429 of 2001 arises out of Claim Petition No. 63-S/2 of 1995. In this case the learned Tribunal has awarded compensation amounting to Rs. 4,18,000/- along with interest at the rate of 4 per centum per annum from the date of the claim petition till the date of payment of the amount in favour of the appellants in respect of the death of one Padmi Nand, husband of appellant No. 1, son of appellant No. 2 and father of appellants No. 3 to 5. 8. FAO No. 294 of 2002 arises out of Claim Petition No. 62-S/2 of 1995. In this case the learned Tribunal has awarded compensation to the tune of Rs. 3,16,000/- along with interest at the rate of 9 per centum per annum from the date of the Claim Petition till the date of payment of the amount in favour of the appellants in respect of the death of one Dharam Singh, husband of appellant No. 1, father of appellants No. 2 and 3 and son of appellant No. 4. 9. The learned Tribunal while awarding compensation in favour of each set of the appellant has come to the conclusion that the accident had taken place due to the rash and negligent driving on the part of the driver of the ill-fated bus, that is, respondent Bhupender Singh. It further came to the conclusion that the said driver was not holding a valid and effective driving licence. It further came to the conclusion that the said driver was not holding a valid and effective driving licence. In view of the fact that the driver was found to be not holding a valid and effective driving licence, the learned Tribunal held the owner and the driver of the bus to be jointly and severally liable for payment of the amounts of compensation award. The respondent Insurance Company, namely, the insurer of the ill fated bus was exonerated of the liability. 10. The appellants feeling aggrieved and dis-satisfied with the award dated 26.4.2001 of the learned Tribunal have preferred the present appeals assailing the/quantum of compensation awarded in their favour as also the findings of the learned Tribunal exonerating the respondent Insurance Company from liability. 11. It may be stated that the findings of the learned Tribunal as to the negligence of the driver, quantum of compensation awarded in favour of each set of the appellants and holding owner and driver of the ill-fated bus jointly and severally liable for payment of compensation, have not been assailed by the owner and driver respectively of the offending bus, by way of appeals. Such findings as against them have thus become final. 12. In so far as respondent Insurance Company, the insurer of the offending bus, is concerned, it is by now well settled that it can not assail the findings either as to negligence of the driver or the quantum of compensation. It was contended on behalf of respondent insurer that the present appeals are not competent inasmuch as the appellants having got an award in their favour cannot be said to be "persons aggrieved” by an award within the meaning of Section 173, Motor Vehicles Act, 1988 13. The following questions arises for determination in the present cases:— (i) Whether the appellants are "persons aggrieved" by an award and the present appeals are competent? (ii) Whether the quantum of compensation awarded in favour of each set of the appellants is inadequate? If so, what is just and reasonable compensation awardable? (iii) Whether the learned Tribunal has rightly exonerated respondent-Insurance Company (the insurer of the offending bus) from its liability? 14. I have heard the learned counsel for the parties and have also gone through the record of the case. 15. If so, what is just and reasonable compensation awardable? (iii) Whether the learned Tribunal has rightly exonerated respondent-Insurance Company (the insurer of the offending bus) from its liability? 14. I have heard the learned counsel for the parties and have also gone through the record of the case. 15. Section 173(1) of the Motor Vehicles Act, 1988, provides:— "Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court.” 16. The expression "person aggrieved" appearing in the above provision defies an exact definition. Its meaning varies with the context of the statutes wherein it occurs and depends upon diverse and varied factors. This does not mean and suggest that it admits of no fair interpretation, but to underscore the elusiveness of the concept which has constrained the courts to define it variedly, sometimes liberally and at other times rigidly depending upon the facts and circumstances of the case. 17. Taking the word as it is understood in common parlance, a "person aggrieved" would include a person whose interests are prejudicially affected by a decision; a person who has a genuine grievance, that the decision has adversely affected and hit him and has denied something which was otherwise legally due to him and has deprived certain benefits due and/ or has imposed some burden on him to be discharged, which but for the decision, he would not have been required to undertake. 18. Dealing with the expression "aggrieved person", the Honble Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others, [AIR 1976 SC 578] has observed as under :— ".......The expression aggrieved person denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable facts such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioners interest, and the nature and extent of the prejudice or injury suffered by him....." 19. Its scope and meaning depends on diverse, variable facts such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioners interest, and the nature and extent of the prejudice or injury suffered by him....." 19. An award made under Section 168(1), Motor Vehicles Act, 1988, has three components, namely: (i) it specifies the amount of compensation, if any, payable to the claimants, which appears to the Tribunal to be just; (ii) it specifies the person or persons to whom the compensation is to be paid; and (iii) it specifies the amount out of the awarded compensation which is required to be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. 20. There is no denying that before a person can file an appeal under Section 173 of the Motor Vehicles Act, 1988, he has to be an "aggrieved party". Expression "aggrieved party" contains the inherent limitations in the matter of filing the appeal. The expression "aggrieved party" in the context of Section 173 of the Act has to be interpreted and understood in common parlance. It is not possible to give an exhaustive definition of the expression "aggrieved party". The expression has to be interpreted in the context in which it appears in a particular statute. As a general principle, it has been held by the Courts that a person who feels disappointed with the result of a case is not necessarily a "person aggrieved". To be so classified, he must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. If he was not entitled to a relief in the first place, he cannot be aggrieved if the relief was denied to him, but if he was entitled to such relief and the same was denied to him, he would be a "person aggrieved". Thus, a party, for the purposes of Section 173 of the Act, would be regarded as an "aggrieved person" where the claim or defences available to that party did not find favour with the Tribunal in making the award. Thus, a party, for the purposes of Section 173 of the Act, would be regarded as an "aggrieved person" where the claim or defences available to that party did not find favour with the Tribunal in making the award. In other words, for the purpose of Section 173 of the Act, an "aggrieved party" would only be such a party which is aggrieved of the award on the ground that its defence or claim as was available to it and was set up before the Tribunal, did not find favour with it. 21. In the present cases, the appellants were respectively entitled to seek compensation for the death of S/Shri Mehar Chand, Sanjay Kumar, Bali Ram, Padmi Nand and Dharam Singh who admittedly died in the accident. They have been awarded compensation muchless than the amounts claimed by them. In other words, their claims have been partially allowed. Therefore, they would be deemed to be "persons aggrieved" by the award insofar as the quantum of compensation is concerned. Besides, exoneration of the respondent-Insurance Company (insurer of the offending vehicle) from liability would mean that the claim petitions preferred by the appellants as against it stood dismissed. Therefore, due to dismissal of their claim petitions as against respondent-Insurance Company also would bring them within the meaning of "persons aggrieved" and as such entitled and competent to prefer an appeal under Section 173 of the Act. 22. It is accordingly, held that the appellants are the "persons aggrieved" by the impugned award and the present appeals assailing the quantum of compensation awarded as well as exoneration of respondent No. 2, the insurer of the offending vehicle, are competent. 23. The second question arising for determination is whether the quantum of compensation awarded in favour of each set of the appellants is inadequate and, if so, what is just and reasonable compensation award-able, 24. In FAO No. 220 of 2001, the deceased Mehar Chand was a young man of about 31 years of age. He was employed with Home Guard and was earning about Rs. 2,000 per month. He was also having income from agriculture. The learned Tribunal assessed the monthly income of the deceased at Rs. 3,000 and by deducting l/3rd of such income as personal expenses determined the dependency of the appellant at Rs. 2,000 per month, that is, Rs. 24,000 per annum. 2,000 per month. He was also having income from agriculture. The learned Tribunal assessed the monthly income of the deceased at Rs. 3,000 and by deducting l/3rd of such income as personal expenses determined the dependency of the appellant at Rs. 2,000 per month, that is, Rs. 24,000 per annum. A multiplier of 17 was applied and compensation was assessed at Rs. 4,08,000. To this amount a sum of Rs. 10,000 was added as conventional amount. Thus, total compensation was assessed at Rs. 4,18,000. 25. It may be stated that no evidence has come on the record as to the extent of the land owned by the deceased. The only evidence coming on the record is in the form of a certificate purported to have been issued by the Pradhan of the Gram Panchayat to the effect that the deceased was having an agricultural income of about Rs. 2,000 to Rs. 25,00 per month. 26. A Division Bench of this Court in Himachal Road Transport Corporation v. Puni Devi and others, 1993 ACJ 998, has held that in the case of death of an agriculturist/orchardist, since the corpus of land/orchard is left intact, the value of supervisory services of the deceased is to be assessed which value should not be more than the salary of the manager/supervisor. 27. In the present case, the learned Tribunal has taken the value of the supervisory services at Rs. 1,000 per month and by adding the same to the monthly wages of Rs. 2,000 per month income of the deceased was assessed at Rs. 3,000 per month. 28. No fault can be thus found in the assessment of monthly income of the deceased. The learned Tribunal has rightly left out l/3rd of such monthly income towards the personal expenses of the deceased. Multiplier of 17 has also been correctly applied. Second Schedule to the Motor Vehicles Act, 1988 also provides for application of 17 in the case of death of a person between 30 to 35 years of age. Therefore, just and reasonable compensation stands awarded to the appellants. 29. In FAO No. 234 of 2001 the deceased Sanjay Kumar was an infant of about 1-1/2 years of age. The learned Tribunal has awarded lump sum compensation of Rs. 65,000 in favour of the appellants who are the parents of the deceased. Therefore, just and reasonable compensation stands awarded to the appellants. 29. In FAO No. 234 of 2001 the deceased Sanjay Kumar was an infant of about 1-1/2 years of age. The learned Tribunal has awarded lump sum compensation of Rs. 65,000 in favour of the appellants who are the parents of the deceased. During the course of hearing, the learned Counsel for the appellants could not point out anything to show that the compensation awarded is inadequate. Keeping in view the age of the deceased, the family status of the appellants, the compensation awarded appears to be just and reasonable. 30. In FAO No. 401 of 2001 the deceased Bali Ram was of 42 years of age as per the appellants, his source of income was from the mules, agriculture as well as from music he was playing in marriage and other functions Smt. Chhuma, widow of the deceased, while appearing as her own witness has deposed that the deceased was having a monthly income of about Rs. 7,500, that is, about Rs. 5,000 per month from mules, about Rs. 1,000 per month by playing musical instrument and about Rs. 1,500 per month from agriculture. 31. There is nothing on the record to show as to how many mules were maintained by the deceased. Nor there is evidence to show the extent of land owned by the deceased. Assuming that the deceased was also a musician, the work of musician is only seasonal. 32. The learned Tribunal, on the basis of evidence coming on record has taken the monthly income of the deceased at Rs. 2,500 and by deducting therefrom Rs. 800 towards the personal expenses of the deceased, has assessed the dependency of the appellants at Rs. 1,700 per month, or say Rs. 20,400 per annum. A multiplier of 15 was applied and compensation was assessed at Rs. 3,06,000. To this amount a sum of Rs. 10,000 as conventional amount was added and the total compensation of Rs. 3,16,000 has been awarded. 33. In the absence of specific evidence as to the income of the deceased, the learned Tribunal, on the basis of the material coming on the record, has rightly assessed the income of the deceased as well as the dependency of the appellants. 10,000 as conventional amount was added and the total compensation of Rs. 3,16,000 has been awarded. 33. In the absence of specific evidence as to the income of the deceased, the learned Tribunal, on the basis of the material coming on the record, has rightly assessed the income of the deceased as well as the dependency of the appellants. Multiplier of 15 also has been correctly applied as per the second schedule to the Motor Vehicles Act, 1985, which provides for application of multiplier of 15 in the case of the deceased between the age group of 40 to 45 years. Therefore, the compensation awarded is just and reasonable. 34. In FAO No. 429 of 2001, the deceased Padmi Nand was of about 30 years of age. He was a goldsmith by profession. Appellant Rodha Devi, widow of the deceased, while appearing as her own witness as PW-6, has deposed that her deceased husband was earning Rs. 3,000 to Rs. 4,000 per month from his profession as a goldsmith. In addition the deceased was having agricultural income to the extent of about Rs. 1,000 per month. 35. The learned Tribunal by taking the monthly income of the deceased Rs. 3,000 per month assessed the dependency of the appellants at Rs. 2,000 per month by deducting l/3rd of much monthly income towards the personal expenses of the deceased. Multiplier of 17 was applied and compensation of Rs. 4,08,000 was allowed to which a sum of Rs. 10,000 as conventional amount was added and total compensation payable was assessed at Rs. 4,18,000. 36. On the basis of the evidence coming on record, no fault can be found either to the assessment of income of the deceased, dependency of the appellants or the multiplier adopted. It has been observed above while dealing with FAO No. 220 of 2001 that as per second schedule to the Motor Vehicles Act, 1988, a multiplier of 17 is to be applied in case of a deceased between 30 to 35 years of age. Therefore, just and reasonable compensation stands allowed in the present case. 37. In FAO No. 294 of 2002, the deceased Dharam Singh was of about 29 years of age. According to the appellants, the deceased was working as a voluntary teacher and was drawing a monthly salary of Rs. 1500. Therefore, just and reasonable compensation stands allowed in the present case. 37. In FAO No. 294 of 2002, the deceased Dharam Singh was of about 29 years of age. According to the appellants, the deceased was working as a voluntary teacher and was drawing a monthly salary of Rs. 1500. In addition, the deceased was maintaining two mules and was running a flour mill and a sheller. The deceased was also owning an orchard having more than 600 apple plants. 38. Though there is no specific evidence that the deceased was maintaining two mules or was running a flour mill/sheller or that he was having an orchard, assuming for the sake of arguments that the deceased was in fact having two mules and was running a flour mill/sheller and was also having an orchard, since the corpus of the mules, flour mill/sheller and orchard has been left intact, as has been held by a Division Bench of this Court in Himachal Road Transport Corporation v. Puni Devi and others (supra), only value of supervisory services of the deceased is to be assessed which value cannot be more than the salary of the Manager/Supervisor. 39. The learned Tribunal has assessed the monthly income of the deceased at Rs. 3,000. There is evidence that the deceased was drawing a monthly salary of Rs. 1,500 by working as a Voluntary Teacher. Another sum of Rs. 1,500 per month appears to have been added thereto as income of the deceased towards the value of Supervisory services being rendered by him for maintaining mules, running the flour mill/sheller and for maintaining the orchard. The value of such supervisory services, on the material coming on record cannot be said to be inadequate. 40. Taking the monthly income of the deceased at" Rs. 3,000, the dependency of the appellant has been rightly assessed at Rs. 2,000 per month, that is, Rs. 24,000 per annum. 41. In so far as, the multiplier is concerned it appears that the learned Tribunal has not correctly applied the multiplier of 15. Under the second schedule to the Motor Vehicles Act, 1988, in the case of death of a person between 25 to 30 years of age, a multiplier of 18 is to be applied. Since the deceased was of about 29 years of age, such multiplier of 18 was required to be applied. Under the second schedule to the Motor Vehicles Act, 1988, in the case of death of a person between 25 to 30 years of age, a multiplier of 18 is to be applied. Since the deceased was of about 29 years of age, such multiplier of 18 was required to be applied. Applying the said multiplier, the appellants would be entitled to compensation of Rs. 24,000 x 18 = Rs. 4,32,000 plus the conventional amount of Rs. 10,000. Total compensation payable to the appellants, thus, comes to Rs. 4,42,000. Therefore, the appellants in the present case is entitled to a further amount of Rs: 72,000 along with interest over and above the amount awarded by the learned Tribunal. 42. The learned Tribunal in exonerating the respondent Insurance Company, insurer of the offending vehicle, has come to the conclusion that the driver of the offending vehicle, that is, respondent Bhupender Singh was not holding a valid driving licence. 43. The defence taken by the respondent Insurance Company in their reply to the claim petitions is to the following effect: "That the driver of the vehicle did not have a valid driving licence and the liability, if any, is therefore, of the owner of the vehicle or its driver. The replying respondent, however, reserves its, right to ascertain the factual position in case the particulars about the driving licence are supplied by the co-respondent to prove its defence." 44. It is significant to note that it is not the case of the respondent Insurance Company that there has been a breach of the terms and conditions of the insurance policy and that such breach was on the part of the insured inasmuch as the insured had knowingly allowed a person not holding a valid driving licence, to drive the vehicle. 45. This Court in National Insurance Co. Ltd. v. Ginihari Lal and others, FAO No. 95 of 2002 and other companion matters decided on 15.3.2004 arising of the same accident in question and on similar facts following the ratio laid down by the Honble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh and others, JT 2004 (1) SC 109, has held the respondent Insurance Company, the insurer of the offending vehicle to be liable. Therefore, the findings of the learned Tribunal exonerating the respondent Insurance Company from its liability cannot be sustained and the same are, accordingly set aside. Ltd. v. Swaran Singh and others, JT 2004 (1) SC 109, has held the respondent Insurance Company, the insurer of the offending vehicle to be liable. Therefore, the findings of the learned Tribunal exonerating the respondent Insurance Company from its liability cannot be sustained and the same are, accordingly set aside. Respondent Insurance Company is held liable for payment of compensation along with the owner(s) and driver respectively of the offending vehicle. 46. Resultantly, the appeals, being FAO Nos. 220, 234, 401 and 429 of 2001 are partly allowed and while the quantum of compensation awarded in favour of each set of the appellants is maintained, the impugned award is modified to the extent that respondent Insurance Company the insurer of the offending vehicle, shall also be liable for the payment of the amount of compensation along with the owner(s) and driver of the offending vehicle. 47. FAO No. 294/2002 is allowed and the impugned award is modified by enhancing the amount of compensation to Rs. 4,42,000. Respondent Insurance Company, being the insurer of the offending vehicle is also held liable along with the owner(s) and driver of the said vehicle for payment of the amount of compensation. 48. Respondent Insurance Company, the insurer of the offending vehicle, who is to indemnify the insured, is called upon to pay/deposit the amount of compensation along with interest in respect of each set of the appellants within eight weeks from today. 49. Parties are left to bear their own costs.