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Madhya Pradesh High Court · body

2008 DIGILAW 1404 (MP)

SUMITRA BAI v. PROGRESSIVE TRADERS

2008-12-04

ARUN MISHRA

body2008
Judgment ( 1. ) THIS appeal has been preferred by the claimants for enhancement of compensation, they are aggrieved by an award dated 30-10-1995 passed by XIth add1. Motor Accidents Claims Tribunal, Jabalpur in M. V. C. Case No. 460/94. ( 2. ) IT is not in dispute that in an accident dated 19-7-88 when the deceased was going to his house, he was dashed by car No. M. K. J. 955 driven by om Prakash, deceased was on bi-cycle. Car was owned by M/s. Progressive traders and insured with Oriental Insurance Co. Ltd. He fell down and sustained head injuries. He was taken to hospital where he succumbed to the injuries during the course of treatment. Deceased was an employee in the capacity of Fitter in Vehicle Factory, Jabalpur. He was drawing emoluments of approximately Rs. 1,800/- per month as per claimants, he was hale and hearty. He would have lived up to the age of 70 years. Compensation of Rs. 4,50,000/- was claimed. ( 3. ) OWNER and driver did not file any written statement. The insurer in written statement contended that car was driven cautiously by its driver. Deceased himself was negligent. Car was driven by Rajesh Kumar Rajpoot who was not having valid and effective driving license to drive the vehicle. There was violation of conditions of policy of insurance, as such the insurer was not liable to make the payment of compensation. ( 4. ) THE Claims Tribunal has found that driver of car was negligent owing to which accident was caused. Deceased sustained injuries and died. Income of the deceased has been taken at Rs. 1800/- per month. Loss of dependency has been taken at Rs. 1,000/ -. Multiplier of 10 has been applied at the age of 44 years. Total compensation awarded is Rs. 1,40,000/ -. Insurer has been held liable to make the payment to the extent of Rs. 50,000/- only on the basis of Section 95 (2) of Motor Vehicles Act, 1939. Dissatisfied with the quantum of compensation, this appeal has been preferred by the claimants. ( 5. ) SHRI A. K. Jain, learned Counsel for appellants, has submitted that the Claims Tribunal erred in law in holding that liability of insurer was limited. He has further submitted that dependency has not been properly worked out. Appropriate multiplier has not been applied. Consequently, compensation be enhanced. ( 6. ( 5. ) SHRI A. K. Jain, learned Counsel for appellants, has submitted that the Claims Tribunal erred in law in holding that liability of insurer was limited. He has further submitted that dependency has not been properly worked out. Appropriate multiplier has not been applied. Consequently, compensation be enhanced. ( 6. ) SHRI Sanjay Agrawal, learned Counsel for respondent No. 3, as usual fairness at his command, has submitted that Claims Tribunal has erred in holding that liability of insurer was limited. He has pointed out that only 2 categories of vehicle are covered under Section 95 (2) of the Motor Vehicles act, 1939, goods vehicle and transport vehicle which carry passengers; it was a case of car, as such liability could not be said to be limited under Section 95 (2)of the Motor Vehicles Act, 1939. He has further submitted that adequate compensation has been awarded; even HRA was included in the income of deceased which could not form part of income of the deceased, consequently no case for enhancement of compensation was made out. ( 7. ) FIRST I advert to the question of quantum of compensation. The deceased Shankerlal was aged 44 years. He was a Fitter working in Vehicles factory, Jabalpur. His gross emoluments were Rs. 1769/- out of that sum of rs. 250/- was towards HRA, that amount cannot be said to be included in the monthly income, thus, income comes to Rs. 1520/- rounded off to Rs. 1550/-, making l/3rd deduction which the deceased would have spent on himself had he been alive, loss of monthly dependency comes to Rs. 1033/-, annual comes to (1033 x 12) Rs. 12,396/ -. The Claims Tribunal has applied multiplier of 10 that is not applied at the age of 44 years. The appropriate multiplier is 15 that is applied. Thus, compensation on account of loss of dependency comes to (12,396 x 15) Rs. 1,85,940/ -. In addition, the claimants are entitled for sum of Rs. 5,000/-for funeral expenses, Rs. 5,000/- on account of loss of estate, Rs. 5,000/- on account of loss of expectancy of life. The widow is also awarded Rs. 5,000/- on account of loss of consortium. Thus, total compensation comes to Rs. 2,05,940/- (Rs. Two Lacs Five Thousand Nine Hundred Forty ). In addition, the claimants are entitled for sum of Rs. 5,000/-for funeral expenses, Rs. 5,000/- on account of loss of estate, Rs. 5,000/- on account of loss of expectancy of life. The widow is also awarded Rs. 5,000/- on account of loss of consortium. Thus, total compensation comes to Rs. 2,05,940/- (Rs. Two Lacs Five Thousand Nine Hundred Forty ). The compensation enhanced by this Court to carry interest at the rate of 6% per annum from the date of filing of claim petition till realisation. ( 8. ) NOW I come to the question of limited liability. Section 95 (2) of the motor Vehicles Act, 1939 is quoted below:- "95. (2) Subject to the proviso to sub-section (1) of a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:- (a) where the vehicle is a goods vehicle, a limit of [one lakh and fifty thousand rupees] in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923, in respect of the death of. or bodily injury to. employees (other than the driven not exceeding six in number, being carried in vehicle. (b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment- (i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all; (ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger; (c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; (d) irrespective of the class of the vehicle, a limit of rupees [six thousand] in all in respect of damage to any property of a third party. " In the present case, the vehicle in question was private car. The limited statutory liability under Section 95 (2) of the Act was with respect to 2 categories of vehicles, goods and public transport (passengers carrying vehicle ). Shri Sanjay agrawal, learned Counsel for insurer, is right in his submission. Thus, it is held that joint and several liability to make the payment of compensation is that of owner, driver and insurer. ( 9. ) RESULTANTLY, appeal is allowed in part to the aforesaid extent. Shri Sanjay agrawal, learned Counsel for insurer, is right in his submission. Thus, it is held that joint and several liability to make the payment of compensation is that of owner, driver and insurer. ( 9. ) RESULTANTLY, appeal is allowed in part to the aforesaid extent. Parties to bear their own costs as incurred. Misc. Appeal allowed in part.