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2006 DIGILAW 727 (ORI)

RAMA CHANDRA PRADHAN v. MINAKETAN DALASINGHARAY

2006-10-20

P.K.TRIPATHY

body2006
JUDGMENT : P.K. Tripathy, J. - Heard further argument and the judgment is as follows: Claimants in MAC.T. Misc. Case No. 411 of 1995 of the 3rd MAC.T., Bhubaneswar, are the Appellants as against the quantum of compensation awarded so also for non-direction to recover the same from the Insurance Company-Respondent No. 3. 2. Factual part asserted by the Petitioner and the findings recorded thereon by the Trial Court are no more in dispute. It reveals from there that on 12.5.1995, Puma Chandra Pradhan, the deceased was a passenger in Auto-rickshaw bearing Registration No. ORX-4637. That Auto-rickshaw was going on from Tangi towards Chandpur. According to the claimants, the Government Jeep bearing Registration No. ORP-1153 belonging to the opposite party No. 2/Respondent No. 2, i.e., Executive Engineer (Electrical), Khurda dashed against that Auto-rickshaw resulting in the accident and death of the deceased. Opposite party No. 1/Respondent No. 1 Minaketan Dalasingharay was described as owner of the Auto-rickshaw and the United India Insurance Company Ltd. as the insurer of the Auto-rickshaw was made opposite party No. 3 in the claim case and Respondent No. 3 in this appeal. Claimants No. 1 and 2 are the dependent parents of the deceased. The father and the mother of the deceased were respectively 60 and 50 years old by the date of accident. The remaining claimants are brothers and sisters of the deceased. It was further stated that the deceased was serving as a driver in private vehicle and was drawing salary of Rs. 2,000/- per month by the date of occurrence. 3. The owner of the Auto-rickshaw (opposite party/Respondent No. 1) neither appeared in the Court below nor filed any written statement. The insurance-company filed a written statement denying its liability on the ground that the driver of the Auto-rickshaw had no driving licence and therefore it has no contractual liability to pay compensation. The Executive Engineer (Electrical) filed a written statement contending that the Jeep did not dash against the Auto-rickshaw though it was moving on the same road but behind the Auto. rickshaw and that the Auto-rickshaw moving in a very high speed met with the accident because the driver of the Auto-rickshaw could not control its movement. Accordingly, the said opposite party No. 2-Respondent No. 2 denied any liability. 4. On the basis of such rival pleadings, Learned Claims Tribunal framed the following issues. 1. Is the claim petition maintainable? rickshaw and that the Auto-rickshaw moving in a very high speed met with the accident because the driver of the Auto-rickshaw could not control its movement. Accordingly, the said opposite party No. 2-Respondent No. 2 denied any liability. 4. On the basis of such rival pleadings, Learned Claims Tribunal framed the following issues. 1. Is the claim petition maintainable? 2. Whether the death of Purna Ch. Pradhan take place on account of motor vehicle accident involving vehicle ORX 4637 (Auto or ORP 1153 (Jeep) ? 3. Was the driver of the offending vehicles rash and/or negligent in causing the accident? 4. Are the Petitioners entitled to get compensation. If so, to what extent and from which O.P. ? 5. To what relief the Petitioners entitled ? To substantiate their claim, claimants examined three witnesses and among them P.W. No. 2-Prakash Ch. Dash was a co-passenger in the Auto-rickshaw which met with the accident. The employer of the deceased was examined as P.W. No. 3 to prove the income of the deceased. Driver of the Jeep was examined as O.P.W. No. 1 from the side of O.P. No. 2 No other witnesses were examined by the other parties. The claimants relied on the post-mortem report, F.I.R., driving licence of the deceased and salary certificates respectively marked Exts. 1 to 4. Opposite parties relied on two driving licenses marked Exts. A and Band Insurance Policy of the Auto-rickshaw Ext-C in support of the claim that the driver of the Auto-rickshaw had no valid driving licence though the Auto-rickshaw was insured. 5. On assessment of such evidence, Learned Tribunal held that deceased died due to road accident as a result of rash and negligent driving of the Autorickshaw at high speed. The Government Jeep did not contribute anything in respect of such accident and therefore the opposite party No. 2 is not liable to account for the compensation. Driver of the Auto-rickshaw had no valid driving licence and therefore the insurance-company be exonerated from making payment of compensation and that the owner of the Auto-rickshaw is liable to pay compensation to the claimants, i.e. the parents of the deceased and his minor brother (aged 16 years) Abakash Pradhan. The Claims Tribunal did not allow compensation to the other brothers and sisters of the deceased. Learned Claims Tribunal after making 1/3rd deduction, found monthly contribution of the deceased to the family at Rs. The Claims Tribunal did not allow compensation to the other brothers and sisters of the deceased. Learned Claims Tribunal after making 1/3rd deduction, found monthly contribution of the deceased to the family at Rs. 1,500/- (One thousand five hundred) per month and applying the 8 multiplier in view of the age of the father at 60 years, it determined the compensation at Rs. 1,66,000/- (one lakh sixty six thousand) which was inclusive of funeral expenses, etc. 6. In course of hearing, Respondent No. 1, i.e., owner of the Auto-rickshaw made oral submission that shortly before the date of accident he had sold the Auto-rickshaw in favour of one Rabinarayan Dash and therefore he should not have been saddled with the liability to make payment of the compensation. Such a contention of the Respondent No. 1 is rejected at the threshold in view of the fact that no such plea was advanced by the Respondent No. 1 by an appropriate written statement in the Court below. Be that as it may, after receipt of notice in this appeal he also did not file cross objection challenging the award on such ground. Above all, no application has been filed for acceptance of relevant documents in proof of transfer of the ownership of the Auto-rickshaw. Thus, on the basis of the oral submission alone the aforesaid aspect cannot be considered. For the reasons stated above, contention of the Respondent No. 1 is rejected. 7. Learned Counsel for the claimants-appellants argues that in the present case the quantum of compensation should have been awarded by adopting 18 multiplier because the deceased was 21 years old by the date of the accident. That argument is also devoid of any substance and accordingly rejected inasmuch as, the deceased was a bachelor at the relevant time and therefore 18 multiplier cannot be applied on the basis of his age. Age of the parents/dependents/is relevant to determine the multiplier. Mr. Mohanty, Learned Counsel for the insurance-company states that on a reference to the Second Schedule of the Motor Vehicles Act, 1988, 5 multiplier would have been appropriate when the father of the deceased was 60 years old by the date of the accident. Age of the parents/dependents/is relevant to determine the multiplier. Mr. Mohanty, Learned Counsel for the insurance-company states that on a reference to the Second Schedule of the Motor Vehicles Act, 1988, 5 multiplier would have been appropriate when the father of the deceased was 60 years old by the date of the accident. On the other hand, Learned Counsel for the Appellants states that there is no dispute to the fact that mother of the deceased was 50 years old by the date of accident, therefore, 11 multiplier should be applied. 8. Compensation is paid to compensate the loss the dependents suffer due to untimely death of person on such accident. Provision for payment of compensation is a beneficial law. It has to be applied appropriately and not by fore-seeing the amount liable to be awarded as compensation. Death of an earning son is such a huge loss to the parents and dependents like widow and minor children that calculation of compensation in the above indicated manner is only a consolation. Be that as it may, the provision of law for compensation is a method for saddling the tortious liability on the wrong doer and providing a quantum of compensation to compensate the loss to some extent. Therefore if the compensation is calculated on the lower side by taking the senior age of the father, that does not provide appropriate relief to the mother who is considerably younger than her husband, as ten years in this cases. Provision of law mandating payment of compensation does not stipulate to take into consideration age of the senior most dependent (as father in this case.) While adjudicating a dispute of the present nature Court has to apply equity and determine the compensation accordingly. In this case the two claimants are the father and the mother and between them mother was 50 years old by the date of accident. They had numbers of dependant daughters and sons. Regard being had to all such facts and circumstances, 11 multiplier should be applied in the interest of equity and justice. 9. Applying that multiplier in the same method (as was done by the Claims Tribunal), the total compensation amount comes to Rs. 1,98,000/- (1,500x12 x11). Claims Tribunal had granted Rs. 2000/ towards funeral expenses and Rs. 5,000/- towards pain and suffering of the parents. 9. Applying that multiplier in the same method (as was done by the Claims Tribunal), the total compensation amount comes to Rs. 1,98,000/- (1,500x12 x11). Claims Tribunal had granted Rs. 2000/ towards funeral expenses and Rs. 5,000/- towards pain and suffering of the parents. There is no claim from the Appellants to enhance that quantum and the Respondents have not challenged to such award. So compensation on such heads is also granted. The total compensation thus comes to Rs. 2,05,000/- (Rupees two lakhs and five thousand). So far as the quantum of interest is concerned, Learned Tribunal has awarded the same ' 12% per annum from the date of application, i.e, 11.9.1995. Learned Counsel for Respondent No. 3 argues to reduce-it to six or seven and half percent on the ground that twelve percent is on higher side. Learned Counsel for Appellant leaves it to the decision of this Court. Regard being had to all facts and circumstances the rate of interest is reduced to 9% simple interest which is to be paid from the date of application, i.e, 11.9.1995, till the date of payment. 10. Contention of the Appellant is that once Respondent No. 3 is admitted to be the insurer of the Auto-rickshaw, Trial Court should have ordered for payment of the compensation by the insurance company with right of recovery from the insured (owner of the vehicle) as per the settled principle of law. In that context, he refers to the case of New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., In that case, the Apex Court held that: The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Learned Counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants-third parties) from the insured person. 11. Mr. Mohanty, Learned Counsel for Insurance Company does not dispute the aforesaid ratio and it is applicable to the present case. He however argues that right of recovery from the Respondent No. 1 be ordered. Regard being had to the factual aspect and aforesaid quoted legal position, it is directed that Respondent No. 3 shall pay the compensation amount along with the interest to the claimant-appellants 1 and 2 (inasmuch as, the in the meantime Appellant No. 6 has also become an adult) within two months. Out of such amount 75% be kept in fixed deposit in the name of Appellants 1 and 2 for a period of 7 years with payment of interest to them monthly or quarterly as the case may be. At the same time Respondent No. 1 is directed to make payment of such amount to the Insurance Company-Respondent No. 3 within a period of four months or seek for payment of the same in installments within a reasonable period. In the event of failure of Respondent No. 1 to repay the amount, it is open to the Respondent-Insurance Company to realize the same in accordance with law. Appeal disposed of.