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2007 DIGILAW 26 (DEL)

WAHIDAR v. RAJ BAHADUR

2007-01-04

KAILASH GAMBHIR

body2007
KAILASH GAMBHIR, J. ( 1 ) THE appellants have filed the present appeal under Section 173 of the Motor Vehicles Act 1988, feeling aggrieved with the order dated 21. 2. 2004 passed by the Motor Accident Claim Tribunal. The appellants are primarily aggrieved on two counts; firstly that the Tribunal has not taken into consideration the monthly income of the deceased which was stated to be rs. 2,500/- per month, secondly the Tribunal has not given directions to the insurer to pay the award amount and thereafter to recover the same from the owner of the offending vehicle. ( 2 ) IN support of his first contention counsel for the appellants has relied upon the statement of PW-2, father of the deceased who has categorically stated in examination-in-chief that the deceased was earning Rs. 2,500/- per month at the time of his accident. The submission of the counsel for the appellants is that once the clear cut deposition was made by the witness, the tribunal ought not to have taken any other income to be the salary of the deceased. ( 3 ) I do not find any force in the submission of the counsel for the appellant as in the cross-examination of PW-2 the witness has stated that he was not in a position to show any proof that the deceased was earning Rs. 2,500/- per month. The Tribunal in these circumstances has taken into consideration the criteria of minimum wages which at the relevant time was applicable for an unskilled labour and has accordingly taken the income of the deceased at rs. 1545/- per month. The Tribunal has clearly held that there is no documentary evidence supporting the earnings of the deceased and therefore the Tribunal applied the criteria of minimum wages in the instant case. The Tribunal has also taken into consideration not only the said income of the deceased at the time of his death but his assumed increased income with the passage of time, had he survived the accident. The Tribunal after applying the ratio of the judgment of the Supreme Court in Sarla Dixit Vs. Balwant Yadav and Ors, 1996, III AD SC 13, has arrived at Rs. 18,540/- towards the total yearly loss of dependency to the claimants. The Tribunal after applying the ratio of the judgment of the Supreme Court in Sarla Dixit Vs. Balwant Yadav and Ors, 1996, III AD SC 13, has arrived at Rs. 18,540/- towards the total yearly loss of dependency to the claimants. The Tribunal has also made applicable the multiplier of 18 after taking guidance from the Second schedule of the Motor Vehicles Act and accordingly granted Rs. 3,33,720/-towards the loss of dependency of the claimants/appellants. I, therefore, do not find any infirmity with the findings of the tribunal on this aspect. ( 4 ) NOW coming to the second contention of the appellant that the interest of the appellants could have been better served had the insurer given directions to pay the amount at the first instance and thereafter, the same could have been directed to be recovered from the insured, owner of the offending vehicle. In support of his contention, the counsel for the appellants has relied upon the judgment of the Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Ors. , 2004 ACJ 428. ( 5 ) THE contention of the appellant is that although the Tribunal has referred to the said judgment in the impugned order but at the same time missed its sight from the main operative part of the same whereby the Supreme Court has held that the interest of the claimants can be best served if the directions are given to the Insurance Company to satisfy the award at the first instance and for recovery the insurer can take steps against the insured. On the other hand counsel for the respondent has argued that the present case is clearcut case of violation of the insurance policy, relevant provisions of Motor Vehicles Act as well as terms of permit as the insured has permitted the deceased to travel on a goods vehicle. The counsel for the respondent has relied upon the decision of the Full Bench of the Supreme Court in the case of M. V. Jayadevappa and Anr. Vs. Oriental Fire and Genl. Ins. Co. Ltd and Ors. , 2005, ACJ 1801, wherein the Supreme Court had held that passengers were gratuitous passengers and the vehicle being the goods vehicle could not have carried the passengers and therefore, the Insurance company was rightly exonerated and the liability was placed on the insured. Vs. Oriental Fire and Genl. Ins. Co. Ltd and Ors. , 2005, ACJ 1801, wherein the Supreme Court had held that passengers were gratuitous passengers and the vehicle being the goods vehicle could not have carried the passengers and therefore, the Insurance company was rightly exonerated and the liability was placed on the insured. ( 6 ) THE counsel for the respondent has also relied upon the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Ors. , 2005 ACJ 721. In the said judgment the Supreme Court has also taken into consideration the judgment of National Insurance Co. Ltd. Vs. Baljit Kaur and Ors. , 2004 ACJ 428 (supra), on which the counsel for the appellant has placed reliance. ( 7 ) THE Supreme Court in para 10 of the above judgment has held that the claimants would be entitled to recover the amount of compensation granted in their favour from the owner of the vehicle. Para 10 is reproduced below: "in view of the aforementioned authoritative pronouncements of this court, the impugned judgment of the High Court cannot be sustained which is set aside accordingly. This appeal is allowed. We, however, make it clear that the claimants respondents will be entitled to recover the amount of compensation granted in their favour by the Motor Accidents Claims Tribunal from the owner of the vehicle. " ( 8 ) THE present case is not a case where there is any dispute so far as exonerating the insurance company for any liability for the death of a gratuitous passenger. Furthermore, the appellant is also not disputing as to why the insurance company has been exonerated from the liability. The prime concern of the appellant is that even if the insurance company has been exonerated but still the directions could have been given to the insurance company to pay the amount instead of burdening the appellants/claimants with the process of recovering the amount from the owner of the offending vehicle. In Baljeet Kaur's case (supra), the main concern was whether the insurance company could be held liable even if there was a gratuitous passenger in the goods vehicle. Therefore, the Supreme Court has considered the effect of the 1994 amendment in Section 147 of the Motor Vehicles Act. It would be relevant to reproduce the relevant paragraphs. In Baljeet Kaur's case (supra), the main concern was whether the insurance company could be held liable even if there was a gratuitous passenger in the goods vehicle. Therefore, the Supreme Court has considered the effect of the 1994 amendment in Section 147 of the Motor Vehicles Act. It would be relevant to reproduce the relevant paragraphs. The same are as under: "it is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra ). The said decision has been overruled only in Asha Rani (supra ). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the Executing Court as if the dispute between the 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. We have issued the aforementioned directions having regard to the scope and purport of section 169 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding. " ( 9 ) SINCE in the present case there is no dispute as regards the exoneration of the insurance company is concerned, therefore, the Tribunal has rightly exonerated the insurance company from the liability. As far as the recovery part is concerned in Baljit Kaur's case (supra) the Supreme Court has given directions to the insurance company to satisfy the award due to the peculiar facts and circumstances of the case as the Tribunal and the High Court in the said case had proceeded to decide the case in terms of the judgment of new India Assurance Co. Vs. Satpal Singh, 2000 ACJ 1 (SC) but the same later on was overruled in the case of New India Assurance Co. Ltd. Vs. Asha Rani, 2003, acj 1 (SC ). After the decision of the Supreme Court in Baljit Kaur's case, the Full Bench of the Supreme Court in M. V. Jayadevappa's case (supra) as well as in Bommithi Subbhayamma's case (supra) has not fastened any liability on the insurance company. Following the ratio of the aforesaid judgments this plea of the appellant is also negatived. Although the appellant has not advanced any arguments as far as grant of compensation under other determinative factors are concerned. The tribunal has awarded a sum of Rs. 10,000/- towards loss of consortium, rs. 10,000/- for loss of love and affection and Rs. 2000/- towards funeral expenses. Although it is very difficult to lay down any hard and fast rule for determining the compensation under these heads yet I feel the Tribunal has not adequately awarded the compensation under these heads. The deceased has left behind his wife, parents and two small children. The loss of consortium for five members at Rs. 10,000/- is quite on the lower side. I direct its enhancement from Rs. 10,000/- to Rs. 25,000/ -. The deceased has left behind his wife, parents and two small children. The loss of consortium for five members at Rs. 10,000/- is quite on the lower side. I direct its enhancement from Rs. 10,000/- to Rs. 25,000/ -. Similarly, for loss of love and affection the amount of Rs. 10,000/- is enhanced to Rs. 30,000/ -. ( 10 ) THE judgment and order dated 21. 2. 2004 passed by the Tribunal is modified to this extent. The respondent is directed to make the payment of the aforesaid enhanced amount in terms of this order with up-to-date interest @9% per annum only on the enhanced portion from the date of filing of this appeal till realisation. With this direction, appeal stands disposed of.