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2005 DIGILAW 558 (MP)

MANORAMA YADAV v. MANGLESHWAR SINGH

2005-04-28

DIPAK MISRA, SHUBHADA R.WAGHMARE

body2005
Judgment ( 1. ) IN this appeal preferred under Section 173 of the Motor Vehicles Act, 1988 (in short "the Act") the claimants, legal heirs of late Munnar Singh Yadav, have called in question the legal validity of the award dated 19-12-1995 passed by the Motor Accident Claims Tribunal, Satna (in short "the Tribunal") in Claim case No. 26/1991. ( 2. ) THE factual score that has been undraped is that on 11-6-1991 when the deceased Munnar Singh Yadav was driving in a jeep bearing registration No. MTE 2359 from Satna to Nagod, the said jeep met with an accident as it was driven in a rash and negligent manner by the driver and in the accident the said Munnar Singh Yadav sustained serious injuries and eventually suecumbed to the same. At the time of accident he was 48 years of age and was aspirant to get promotion to the higher post inasmuch as he was in Government service and had acceptably good prospects. The appellants as claimants instituted the aforesaid claim case before the Tribunal contending, inter alia, that the vehicle in question was insured with New India Insurance Company and the income of the deceased was Rs. 2542/- and had left behind his wife and four children. On the aforesaid basis a claim for a sum of Rs. 5,99,760/- was put forth before the Tribunal. ( 3. ) THE claim of the claimants/appellants was resisted by the insurer on the foundation that the vehicle in question was insured for private use but it was used for commercial purposes since the deceased was travelling alongwith others in a jeep as if the owner had the insurance for plying the vehicle for commercial purposes. The Tribunal accepted the contention of the insurer and came to hold that there had been fundamental breach of policy and on the said bedrock absolved the Insurance Company. ( 4. ) WHILE dealing with the quantum of compensation the Tribunal took note of the fact that the victim was earning Rs. 2,542/- per month. However, he computed the dependency at the rate of Rs. 500/- per month on the back drop that the respondents wife the claimant No. 1 was getting family pension of Rs. 1,000/ -. The Tribunal applied the multiplier of 15 and came to hold that the claimants were entitled to get Rs. 1,20,000/ -. 2,542/- per month. However, he computed the dependency at the rate of Rs. 500/- per month on the back drop that the respondents wife the claimant No. 1 was getting family pension of Rs. 1,000/ -. The Tribunal applied the multiplier of 15 and came to hold that the claimants were entitled to get Rs. 1,20,000/ -. To the aforesaid sum the tribunal added Rs. 30,000/- on various heads including that of medical expenses. ( 5. ) QUESTIONING the correctness of the award it is submitted by Mr. Dhagat, learned Counsel for the appellant that the Tribunal has grossly erred by deducting Rs. 1,000/- from the monthly income of the deceased solely on the ground that the wife was getting family pension. It is contended by him that the tribunal would have been well advised to deduct l/3rd of the income towards the personal expenses and should have counted 2/3rd towards the family contribution, more so, when the family was quite large. Learned Counsel fairly submitted that though the Tribunal has used the multiplier of 15 but taking into consideration the age of the deceased, and the structured formula multiplier of 13 should have been applied. Learned Counsel also submitted that the Tribunal has not granted any amount with regard to consortium, loss of estate and funeral expenses. It is also contended by him that the Tribunal has also fallen into patent error by absolving the Insurance Company from its liability erroneously holding that the vehicle was being plied for commercial purposes. ( 6. ) MR. Maindiratta, learned Counsel for the owner supported the learned Counsel for the claimants. Mr. Maindiratta further submitted that the vehicle was not plying as a commercial vehicle and there was no fundamental breach of the policy and, therefore, the award passed by the Tribunal expo sits a sanctuary of error. ( 7. ) MR. Agrawal, learned Counsel for the Insurer, per contra, submitted that the findings recorded by the Tribunal as regards the breach committed by the owner is absolutely impeccable and does not warrant any interference by this Court. ( 8. ) TO appreciate the rival contentions raised by the parties we have carefully scanned the award and scrutinized the same in proper perspective. The tribunal in an unequivocal manner has reached the conclusion that the vehicle was insured for private use but was being utilized for commercial purpose. ( 8. ) TO appreciate the rival contentions raised by the parties we have carefully scanned the award and scrutinized the same in proper perspective. The tribunal in an unequivocal manner has reached the conclusion that the vehicle was insured for private use but was being utilized for commercial purpose. On a studied scrutiny of the material brought on record it is discernible that the vehicle in question was carrying number of passengers though it did not have the permit and insurance policy in that regard. The Insurance Policy clearly expo sits that it was insured for private use. ( 9. ) IN view of the aforesaid, we are unable to accept the submissions of Mr. Dhagat as well as that of Mr. Maindiratta which has been advanced with utmost astuteness that there was no fundamental breach by the owner. Therefore, absolution of the insurer is totally unsustainable. ( 10. ) ONCE we have come to the conclusion that there was a fundamental breach and the Insurance Company has not to be mulcted with liability the question of quantum arises to be taken up for consideration. It is submitted by mr. Dhagat that the amount is grossly low and deserves to be enhanced. It is not in dispute that the deceased was earning more than Rs. 2,500/ -. He had future prospects: It is not in disputation that the family pension could not have been taken into account while computing the income component. In view of the aforesaid the entire amount is to be taken into consideration. Accepting the income at Rs. 2,542/- we think that the monthly contribution to the family could be Rs. 1,800/- per month and thus yearly it would be 1800 x 12 = Rs. 21,600/ -. As the multiplier of 13 would be the appropriate multiplier the sum would come to Rs. 21600 x 13 = Rs. 2,80,800/ -. To the aforesaid sum loss of consortium at Rs. 5,000/-, Rs. 2,500/- towards loss of estate and Rs. 2,000/-for funeral expenses are to be added. Thus, in toto the award would come to Rs. 2,90,300/ -. The enhanced sum shall carry interest at the rate of 6% per annum. ( 11. ) WE have been apprised at the Bar that a sum of Rs. 25,000/- has been deposited by the owner. 2,500/- towards loss of estate and Rs. 2,000/-for funeral expenses are to be added. Thus, in toto the award would come to Rs. 2,90,300/ -. The enhanced sum shall carry interest at the rate of 6% per annum. ( 11. ) WE have been apprised at the Bar that a sum of Rs. 25,000/- has been deposited by the owner. At this juncture we may refer to the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Challa bharathamma and others [ (2004) 2 SCC 605], wherein though an accident had taken place by an auto-rickshaw which had no permit the Apex Court directed as under:-"the residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the opinion and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, i. e. , the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. " ( 12. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. " ( 12. ) IN this context we may also refer with profit to the decision of the apex Court in Pramod Kumar Agrawal and others Vs. Smt. Mushtari Begum and others [2006 (6) Supreme 211] wherein it has been held as under :-"therefore, while upholding the judgment of the High Court we direct in terms of what has been stated in Baljit Kaurs case (supra)that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the owner the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to claimants, owner of the vehicle Le. , appellant No. 1 shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle, i. e. , appellant no. 1 shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured (the appellant No. 1 ). " ( 13. ) WE may hasten to state that in view of the aforesaid pronouncement, there remains no trace of doubt that the Insurance Company has to make good the amount and recover it from the owner. The directions issued in the case of Pramod Kumar Agrawal and others Vs. Smt. Mushtari Begum and others (supra) for the purposes of realization would apply in full force to the case at hand. ( 14. The directions issued in the case of Pramod Kumar Agrawal and others Vs. Smt. Mushtari Begum and others (supra) for the purposes of realization would apply in full force to the case at hand. ( 14. ) THE appeal is allowed to the extent as indicated above. There shall be no order as to costs. Misc. Appeal allowed.