Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2031 (RAJ)

Aktar v. Manjeet Singh

2011-09-20

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by claimant-appellants for enhancement of amount of compensation awarded by learned Motor Accident Claims Tribunal, Jaipur, in MAC Case No.892/1988, vide its award 17.06.1992. Learned counsel for the appellant has argued that income of the deceased Gaffar Khan was based on his salary certificate (Exhibit-28) accepted by the Tribunal. The learned Tribunal has considered the monthly dependency of Rs.800/- and, on that basis, computed and awarded the compensation. Shri Ram Singh Rathore, learned counsel for appellants, submitted that deceased Guffar had nine dependents and, according to the judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another – (2009) 6 SCC 121 = 2009(1) CCR 276 (SC) = 2009(4) RLW 2785 (SC), the deduction towards personal and living expenses of the deceased, where the number of dependent family members exceed six, should be one-fifth (1/5th), whereas in the present case, the learned Tribunal has actually deducted 1/3rd, which is the difference between 800 and 175. Learned counsel argued that in the case of Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another, Supra, the Supreme Court also held that about 50% can be added to the actual salary by taking note of future prospects. The age of deceased Guffar at the time of his death, was 39 years and therefore he would have certainly progressed in the career in his life time. The learned counsel for the appellants argued that multiplier of 18 has rightly applied. It was also argued that according to Section 95 of the Motor Vehicles Act, 1939, which is to be applied, the liability of the Insurance Company could not be limited to Rs.1,50,000/- only because that principle is applied in the case of employee and not for a third party. 2. Learned counsel alternatively argued that even if the liability of the insurance company is restricted upto Rs.1,50,000/- then also, according to Section 96(4) of the Act of 1939, which is in para-meteria with Section 149(5) of the new Act, the insurance company has to pay the entire amount to the claimants and recover the deferential amount from the owner of the vehicle. Learned counsel, in support of his argument, relied on a judgment of the Supreme Court in Oriental Insurance Company Limited vs. Cheruvakkara Nafeessu and Others – 2001 ACJ 1 = RLW 2001(1) SC 69. 3. Learned counsel, in support of his argument, relied on a judgment of the Supreme Court in Oriental Insurance Company Limited vs. Cheruvakkara Nafeessu and Others – 2001 ACJ 1 = RLW 2001(1) SC 69. 3. Per contra, Shri Ashok Mehta, learned senior counsel for the insurance company, opposed the appeal and argued that the principle laid down by the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another, Supra, which was the judgment delivered after subsequent point of time, cannot be applied to the cases arising out of the Motor Vehicles Act, 1939. It was argued that dependency was correctly taken at Rs.800/- per month, and that multiplier of 16 should have been applied than 18 as per the second schedule of Motor Vehicles Act. Learned counsel argued that according to Section 95(2)(a) of the Act of 1939, the limited liability would be applicable even in the case of death or bodily injury or damage to any property of third party and therefore not more than that amount could be ordered to be paid. 4. It was argued that there is no provision in the old Act of 1939 and analogous to Section 149(5) of the Act of 1988, and that the Insurance Company cannot be saddled with the liability to make payment of entire sum in excess of Rs.1,50,000/- and even if there is any difference, the differential amount cannot be ordered to be paid by the Insurance Company. Learned counsel, in support of the arguments, relied on a judgment of the Supreme Court in M/s. Sheikhupura Transport Company Limited vs. Northern India Transporters Insurance Company Limited and Another – AIR 1971 SC 1624 . 5. On hearing learned counsel for the parties and perusing the material on record, I find that learned tribunal was not justified in deducting Rs.454/- towards self expenses of the deceased. As per the judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another, Supra, for nine dependents the maximum 1/5th of the income could be deducted towards his self expenses, and the dependency of the claimants would be at least Rs.1000/- per month. As per the judgment of the Supreme Court in Sarla Verma (Smt.) and Others vs. Delhi Transport Corporation and Another, Supra, for nine dependents the maximum 1/5th of the income could be deducted towards his self expenses, and the dependency of the claimants would be at least Rs.1000/- per month. The ratio of the judgment of the Supreme Court in Sarla Verma, supra, also requires that 50% should be added for future prospects and by that account the monthly contribution of the deceased towards dependency would be taken at Rs.1500/- as basis for computation of the compensation. The multiplier of 18 was not correct. At the age of 39 of deceased, multiplier of 16 is correct multiplier which has been correctly applied on the basis of second schedule and on that basis the compensation comes to Rs.2,18,000/- calculating thus, 1500x12x16. Rest part of the award thereby awarding the amount of Rs.30,000/- as compensation under different heads is maintained. Thus, the claimant-appellants are entitled to receive total amount of Rs.2,48,000/- towards compensation. 6. However, there is a dispute between the parties on the question whether the insurance company can be saddled with liability of payment of compensation in excess of the limited liability of Rs.1,50,000/-. 7. In view of the judgment of the supreme Court in Oriental Insurance Company Limited vs. Cheruvakkara Nafeessu and Others, supra, as per provisions of Section 96(4) of the old Act which is para-meteria with Section 149(5) of the new Act, despite liability of the insurance company being limited upto Rs.1,50,000/- only, the insurance company is liable to pay to the claimants entire amount of compensation awarded by the Tribunal with right to recover the same from the insured the excess amount over and above the amount of liability covered under the policy. 8. In result, this appeal is allowed in part. The insurance company is directed to pay to the claimants entire amount of modified compensation of Rs.2,48,000/- after adjusting already paid amount of Rs.15,000/- under Section 92-A of the Act. However, the insurance company would be at liberty to recover the excess amount of Rs.1,50,000/- from the insured.