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Madhya Pradesh High Court · body

2011 DIGILAW 293 (MP)

Raj Kumari v. Munnalal Vishwakarma

2011-03-03

U.C.MAHESHWARI

body2011
ORDER U.C. Maheshwari, J. 1. The appellants-claimants have preferred this appeal under section 173(1) of the Motor Vehicles Act of 1988, in short "the Act" being aggrieved by the award dated 12-2-1998 passed by the IVth Additional Motor Accident Claims Tribunal in MACC No. 28/96, whereby exonerating the respondent No. 3-Insurer the claim of the appellants regarding vehicular death of Munna Lal Sahu, the husband of appellant No. 1 while the father of remaining appellants, in the alleged accident has been awarded for the sum of Rs. 3,38,400/-against the respondent Nos. 1 and 2 by saddling their joint and several liability to pay such sum. 2. The fact giving rise to this appeal in short are that on 10-1-1995 at about 6.30 in the evening the aforesaid Munna Lal Sahu accompanied with his wife, the appellant No. 1 and two children while riding his scooter bearing Registration No. MP-15-C-3554 was returning to his home at Sagar from Rahatgarh. On the way his scooter was dashed by a jeep bearing Registration No. M.P. 16-A-0271 driven by respondent No. 1 in rash and negligent manner. Resultantly, Munna Lal Sahu and other appellants accompanied with him had fallen down on the road. Munna Lal Sahu sustained various injuries, became unconscious and later succumbed to such injuries while appellants accompanied with him sustained the injuries on their different parts of the persons. The aforesaid jeep was registered in the name of respondent No. 2, while the same was insured with respondent No. 3. On receiving the information of such accident a crime was registered against the respondent No. 1 at P.S. Rahatgarh for the offence under sections 279, 337 and 304-A of IPC. After holding investigation, the respondent No. 1 was charge sheeted for the same. As per further averments of the claim petition the appellants being dependents on the deceased due to his untimely death in the age of 38 years, have been deprived from their dependency. Besides this, appellant No. 1 is also deprived from the company of her husband for the remaining life. It is also stated that the deceased was working as telephone operator in the Telecommunication Department on the salary of Rs. 3600/- per month and in such premises, the appellants preferred their claim for the sum of Rs. 4,64,865/-along with interest ' 18% p.a. from the date of filing the claim petition. 3. In reply of respondent Nos. It is also stated that the deceased was working as telephone operator in the Telecommunication Department on the salary of Rs. 3600/- per month and in such premises, the appellants preferred their claim for the sum of Rs. 4,64,865/-along with interest ' 18% p.a. from the date of filing the claim petition. 3. In reply of respondent Nos. 1 and 2, the averments regarding rash and negligent driving of the offending vehicle by respondent No. 1 is denied and it is stated that the rider of aforesaid scooter deceased Munna Lal Sahu was riding his scooter in rash, negligent and jig jag manner and due to that the alleged accident was happened. In such premises, the respondent No. 1 could not be held to be responsible for the alleged accident. As per further averments, the respondent No. 1 was reached to the place of incident subsequent to accident and in order to help the victims of such accident took them to the hospital in his jeep. But later he was implicated in the criminal case under the wrong premises. With these averments, the prayer for dismissal of the claim is made. In alternative it is stated that on holding any liability of the impugned claim against them, the same be saddled against the respondent No. 3 - Insurer as the offending jeep was duly insured with it. It is also stated that the alleged jeep was driven by the respondent No. 1 having the effective driving licence of the same. 4. In reply of respondent No. 3-Insurer it is stated that the alleged accident was the cause and consequence of the negligent riding of the scooter by the deceased Munna Lal Sahu without having duly and effective driving licence to ride the same. The alleged offending jeep was also driven by the respondent No. 1 contrary to the terms and conditions of the Insurance Policy without having duly and effective driving licence. Therefore, in such premises the liability to indemnify the claim of the appellants could not be saddled against it. With these averments, the prayer for dismissal of the claim is made. 5. In view of the pleadings of the parties, after framing the issues, the evidence was recorded. Therefore, in such premises the liability to indemnify the claim of the appellants could not be saddled against it. With these averments, the prayer for dismissal of the claim is made. 5. In view of the pleadings of the parties, after framing the issues, the evidence was recorded. On appreciation of the same, by holding the Munnalal Sahu died due to the injuries sustained in the alleged accident happened due to rash and negligent driving of the offending jeep by respondent No. 1, the claim of the appellants has been awarded by the tribunal against respondent Nos. 1 and 2 by saddling their joint and several liability to indemnify the awarded sum. While on the other hand after holding the aforesaid offending jeep was driven by respondent No. 1 contrary to terms and conditions of the policy without having duly and effective driving licence, the respondent No. 3-Insurer has been exonerated to indemnify such liability. Being dis-satisfied with such award the appellants have come forward to this court for further enhancement of the awarded sum and also for saddling the joint and several liability to indemnify the claim against respondent No. 3. 6. It is noted that regarding injuries sustained by the appellant Nos. 1 and 2 in the alleged accident, while travelling as pillion rider on the said scooter with the deceased, they also filed their separate claim petition, the same has been decided by the tribunal with the impugned common award against which said appellant Nos. 1 and 2 have filed their separate M.A. No. 990/1998. The same is also being decided today with the separate order. 7. Shri G. S. Baghel, learned appearing counsel for the appellants, after taking me through the pleadings, evidence and exhibited documents available on record, argued that in view of the guidelines of the Apex Court given in the matter of National Insurance Co. Ltd. v. Swaran Singh and others reported in (2004) 3 SCC 297 , in the available circumstances, the claim of the appellants ought to have been considered and allowed by the tribunal against the respondent Nos. 1, 2 and 3 by saddling their joint and several liability to indemnify the same. There was no occasion before the Tribunal to exonerate the respondent No. 3. 1, 2 and 3 by saddling their joint and several liability to indemnify the same. There was no occasion before the Tribunal to exonerate the respondent No. 3. In continuation he argued that in the available circumstances, the Insurance Company was duty bound to prove that on the date of accident the respondent No. 2, registered owner of the offending jeep, in spite having the knowledge that the period of the driving licence of respondent No. 1, fixed by the authority, has been expired, had handed over such vehicle to such respondent No. 1 to ply the same, in which the Insurer has been failed, therefore contrary to the dictum of the Apex Court, the respondent No. 3 - could not have been exonerated by the Tribunal to indemnify the liability of the impugned claim of the appellants and firstly prayed to saddle the liability to indemnify the claim jointly and severally against all the respondents. 8. He also argued that on assessing the sum of compensation the settled prepositions of law have been ignored by the tribunal. In continuation he said that the deceased being an employee of the Central Government, i.e. Telecommunication Department at the time of accident was working as Telephone Operator on the salary of Rs. 3066/- per month and his age was only 38 years. So there was sufficient circumstance to draw an inference that the deceased had a bright future in his department and in such premises after some time and before his retirement had he been alive, he could have got promotion and also the salary of higher scale and on coming into existence, the different pay commissions, he could have got higher salary in future. If the case of the appellants is considered by this court with this aspect, then the assumed and expected salary of the deceased for assessing the compensation should be taken to be double from his existing salary on the date of the incident held by the tribunal on the basis of the salary papers of the deceased issued by telecommunication department and available in the record of MACT 29/96. He also said that his argument in this regard is fully supported by the guidelines settled by the Apex Court in the matter of Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009(4) MPLJ (SC) 96: (2009) ACJ 1298. He also said that his argument in this regard is fully supported by the guidelines settled by the Apex Court in the matter of Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009(4) MPLJ (SC) 96: (2009) ACJ 1298. He also argued that the Tribunal has committed error in deducting l/3rd amount from the salary of the deceased on the head of his personal expenses, which he would have spent on him, had he been alive. While as per guidelines of the Apex Court, given in the aforesaid cited case on taking into consideration the number of the dependent person, i.e. six in the present case, on such head only th sum should have been deducted by the Tribunal from the salary of the deceased and he prayed for the same. It was also argued that in order to assess the total dependency, the multiplier applicable to the age group of the deceased, as provided in the case of Sarla Verma, (supra) should be applied. With these submissions, he prayed to allow the appeal accordingly. 9. On the other hand, Shri S. K. Rao, learned Sr. Advocate assisted by Shri Ajeet Agrawal, learned counsel for the respondent No. 3 -Insurer by justifying the impugned award said that the approach of the tribunal is based on proper appreciation of the evidence and also is in conformity with law. The respondent No. 3 -Insurer has been rightly exonerated from indemnifying the liability of the impugned award as there is sufficient evidence on record showing that on the date of accident the offending vehicle was driven by the respondent No. 1 contrary to the terms of the Insurance Policy without having duly and effective driving licence. Thus, in such premises the impugned order does not require any interference at this stage for saddling any liability on the insurer. In continuation he said that in the lack of any admissibility documentary evidence mere on the basis of oral testimony of the witnesses, the future prospects of the deceased in his department or his assumed or expected future salary could not be taken into consideration for assessing the compensation on higher side. In this background, the Tribunal has not committed any error in assessing the compensation taking into consideration the existing salary of the deceased during the period of accident. In this background, the Tribunal has not committed any error in assessing the compensation taking into consideration the existing salary of the deceased during the period of accident. It was also argued by the senior counsel that the Tribunal has rightly deducted l/3rd sum from the salary of the deceased regarding his own expenses, which he would have spent on him, had he been alive and in the present circumstance after sixteen years from the date of accident by adopting the principle laid down by the Apex Court in the case of Sarla Verma, (supra), th amount on such head could not be deducted. He also argued that according to provision of section 15(1) of the Act on expiry of the period of driving licence, the same ought to have been got renewed by the respondent No. 1 within the prescribed period of thirty days and in the lack of such renewal by the respondent No. 1 within such permissible period, the liability to indemnify the impugned claim could not be saddled against respondent No. 3 - Insurer and prayed for dismissal of the appeal. 10. Having heard, keeping in view the arguments advanced by counsel, I have carefully gone through the record as well as impugned award and the averments of the appeal memo. 11. It is apparent fact on record that the driving licence of the respondent No. 1 to drive the offending vehicle was initially issued for the period between 3-6-1988 to 2-6-1993 and as per finding of the tribunal based on appreciation of the evidence the same was renewed on dated 19-1-1995 for the period from 19-1-1995 upto 18-1-2000. So in such premises, it is apparent that after expiry of the initial period of driving licence on 2-6-1993 till the date of accident, the same was not got renewed by the respondent No. 1. But, it is apparent fact on record that respondent No. 3-the Insurance Company has failed to prove that in spite knowing the fact that the duration and validity period of driving licence of respondent No. 1 has been expired and the same has not been got renewed by him within the prescribed period, the respondent No. 2 registered owner of the offending vehicle had handed over the aforesaid jeep to the respondent No. 1 to ply the same. In the lack of such evidence, the court has to consider this question keeping in view the guidelines given by the Apex Court in the case of National Insurance Co. Ltd. vs. Swaran Singh and others, (supra), cited on behalf of the appellants. 12. Before proceeding further, I would like to reproduce the relevant part of the aforesaid cited case of National Insurance Co. Ltd. vs. Swaran Singh and others reported in (2004) 3 SCC 297 . The same is read as under :-- 110. (i).... (ii).... (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time. (iv).... (v).... (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under section 149(2) of the Act. (vii).... (viii).... (ix).... (x).... (xi).... 13. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under section 149(2) of the Act. (vii).... (viii).... (ix).... (x).... (xi).... 13. Keeping in view of the aforesaid dictum, on examining the case at hand, it is apparent that there is no evidence on record showing the respondent No. 2, in spite having the knowledge that the validity period of the driving licence of respondent No. 1 was already expired prior to the date of the accident had handed over his aforesaid jeep to the respondent No. 1 to ply the same on such date of the accident. In the lack of such evidence in view of the aforesaid dictum of the Apex Court the approach of the tribunal exonerating the respondent No. 3 - Insurer to indemnify the claim of the appellants is apparently perverse. So in such premises, such findings of the tribunal deserves to be and is hereby set aside and the liability to pay the awarded sum is saddled jointly and severally against all the respondents. 14. After saddling the joint and several liability to indemnify the claim of the appellants against the respondents, now I proceed to consider the scope for further enhancement of the sum awarded by the tribunal. 15. As per findings of the tribunal at the time of accident the deceased was working as Telephone Operator in the Telecommunication Department of the Central Government and his age was near about 38 years. Such findings of the Tribunal are not under challenge in this appeal. Thus, keeping in view the aforesaid undisputed findings of the tribunal and the age of the deceased, i.e. 38 years, it could be assumed that he had a bright chance in future to achieve higher position on promotion in his department before his retirement, had he been alive and in such premises, he could have extended more help and benefits to his dependents the appellants, but due to his untimely death, the appellants have been deprived from such benefits also. In such situation in the light of the guidelines of the Apex Court given in the said cited case of Sarla Verma, (supra), the court has to assess the compensation, keeping in view the future prospects of the deceased also. 16. In such situation in the light of the guidelines of the Apex Court given in the said cited case of Sarla Verma, (supra), the court has to assess the compensation, keeping in view the future prospects of the deceased also. 16. In the case of Sarla Verma, (supra) the Apex Court has held as under:-- 11. In Susamma Thomas, 1994 MPLJ (SC) 520 : 1994 ACJ 1 (SC), this Court increased the income by nearly 100 per cent, in Sarla Dixit, 1996 ACJ 581 (SC), the income was increased only by 50 per cent and in Arati Bezbaruahm 2003 ACJ 680 (SC), the income was increased by a mere 7 per cent. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax']. The addition should be only 30 per cent if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 17. In the light of aforesaid guideline and direction of the Apex Court when the present case is examined, then it is apparent that as per pay slip of the deceased during the period of accident, he was getting Rs. 3066/- per month, out of which he was getting Rs. 120/- as H.R.A. On deducting the same from his salary, he was earning Rs. 2946/- per month. 3066/- per month, out of which he was getting Rs. 120/- as H.R.A. On deducting the same from his salary, he was earning Rs. 2946/- per month. But in view of the principle of the cited case of Sarala Verma, taking in consideration the expected future prospects of the deceased in his department, the court deems fit to take the assumed and expected monthly income of the deceased for assessing the compensation more than 50% amount of his aforesaid existing salary Rs. 2946/- per month on the date of the accident. The same is rounded up Rs. 3000/- per month. On enhancing the 50%, then the same comes to Rs. 4500/ per month. At this juncture, I would like to mention here that if Munna Lal Soni had not died in the alleged accident, then certainly he could have got the benefits of increments, promotion with higher salary and subsequent enhancement of the salary in accordance with terms of the different pay commissions till the age of his superannuation. So in such premises, his assumed and expected monthly income should be considered of such salary, which the colleagues of deceased are getting, i.e. near about 15000/- per month as submitted by the appellants' counsel. But in view of the aforesaid mandate of Apex Court given in the case of Sarla Verma, (supra) after taking into consideration the earlier three reported decisions of such court, this court has no option except to take the expected income of the deceased, keeping in view his future prospects in his department, more than 50% of his existing salary, as stated above Rs. 4500/- per month. Then his annual income comes to Rs. 4500 x 12 = 54,000/-. Now in view of the principle laid down in the matter of Sarla Verma, (supra), keeping in view the number of dependents on the deceased, i.e. six persons in the case, the court has to first deduct th sum from it, regarding expenses of the deceased, which he would have spent on him, had he been alive. Then annual dependency of the appellants on the deceased comes to (Rs. 54,000-13,500/-) = Rs. 40,500/-. Then annual dependency of the appellants on the deceased comes to (Rs. 54,000-13,500/-) = Rs. 40,500/-. Now in order to work out total dependency of the appellants on the deceased, keeping in view the age of the deceased i.e. 38 years, held by the Tribunal, in the light of the cited case of Sarla Verma, (supra), the multiplier of 15 is adopted. Then total dependency of the appellants on the deceased comes to Rs. 40,500 x 15 = 607,500/-. (Six lacs, seven thousand and five hundred only). Besides this, they are also entitled the sum of Rs. 20,000/- on the traditional heads like funeral expenses, loss of expectancy, loss of estate and also the loss of the company of the husband by appellant No. 1. Accordingly the total compensation comes to Rs. 6,27,500/- (Rs. Six lacs, twenty seven thousand and five hundred only). The same is awarded. 18. At this juncture, I would like to mention here that initially in the year 1995 the impugned claim was preferred on behalf of the appellants through some counsel for awarding the sum of Rs. 4,64,865/-. But I am of the considered view that on advise of the counsel or any other person, if the appellants have filed their claim for the sum at lower side, then mere on that basis, the claimants should not be deprived from their rights to get the requisite and appropriate sum of compensation. The provision of compensation under the Motor Vehicles Act has been enacted, keeping in view the welfare of the victim of the vehicular accident either injured or dependents of the deceased who died in the vehicular accident. In such premises, the court is bound to see first the welfare of the claimants and that is the only paramount consideration in deciding the claim matters under the Motor Vehicles Act. The intention of the Legislature to make such law is that the person concerned should get the compensation according to their right and entitlement. In that respect the justice should not be lost in technicalities. Thus, keeping in view all such aspects and the guidelines laid down by the Apex Court in the matter of Sarla Verma, (supra), the impugned claim is being decided in the aforesaid manner. In that respect the justice should not be lost in technicalities. Thus, keeping in view all such aspects and the guidelines laid down by the Apex Court in the matter of Sarla Verma, (supra), the impugned claim is being decided in the aforesaid manner. So in such premises, it is made clear that whatsoever amount stated and claimed by the claimants in their petition does not come in the way to award the claim of the appellants in accordance with law laid down by the Apex Court in the matter of Sarla Verma, (supra). 19. In view of the aforesaid, by allowing this appeal in part, the sum awarded by the Tribunal to the appellants Rs. 3,38,400/- (Rs. Three lacs, thirty eight thousand and four hundred) is enhanced from such sum to Rs. 6,27,500/-(Rs. Six lacs, twenty seven thousand and five hundred only) and liability to pay the entire sum is saddled against the respondent Nos. 1 to 3 jointly and severally. Besides the interest awarded by the tribunal on the awarded sum, the aforesaid enhanced sum shall also follow the interest ' 6% p.a. from the date of filing the claim petition. The respondent Nos. 1 and 2 shall be at liberty to recover the sum from respondent No. 3, which has been paid by them to the appellants in compliance of the impugned award. It is made clear that for recovery of such sum the respondent Nos. 1 and 2 have not to approach to the tribunal or any other forum with a separate proceeding but on the basis of this order, they may recover the same by filing the execution proceeding before the tribunal. In the facts and circumstances of the case, there shall be no order as to the costs. Till the aforesaid extent the findings of impugned award are hereby modified while the remaining findings of the same are hereby affirmed. 20.Appeal is allowed in part, as indicated above.