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2012 DIGILAW 242 (ORI)

MANORAMA RANA v. SIKANDAR KHAN

2012-05-11

V.GOPALA GOWDA

body2012
JUDGMENT V. Gopala Gowda, J. Aggrieved by the judgment dated 6-7-2000 passed by the Second Motor Accident Claims Tribunal (SD), Berhampur in M.A.C. No. 706 of 1998, fastening the liability upon the owner to pay the compensation awarded, the claimants have filed the present appeal seeking for allowing the appeal and awarding just and reasonable compensation by enhancing the same, urging various facts and grounds in support of the appeal. 2. In the impugned judgment, the factual undisputed facts have been adverted, therefore, there is no need for this Court to repeat the same in this judgment. On 4-5-1998 at about 5.30 a.m. while the husband of the first claimant-deceased Subash Rana was going towards Hatapada on a cycle from his house on his left side, the Mini Truck bearing registration number OR 7-6424 came from Digapahandi side with high speed being driven in a rash and negligent manner and dashed against the deceased, as a result of which the deceased died at the spot. Hence, the claim petition was filed by the wife and the children. 3. The owner of the vehicle filed written statement but did not appear at the time of hearing. 4. The Insurance Company also filed written statement denying the averments made in the claim petition including the validity of the driving licence of the driver who was driving the offending vehicle at the time of accident in terms of section 3 of the Motor Vehicles Act, 1988. Mr. Ray, learned counsel for the insurance company-respondent No.2 contended that the accident was not intimated to the Insurance Company by the owner. The offending vehicle was insured with respondent No.2 and the cover note No. 16111 vide policy No. 192/1998 was valid from 16-5-1997 to 15-5-1998 is not in dispute. The case went for trial. On behalf of the claimants two witnesses were examined and seven documents were marked and exhibited. Ext. 1 is the plain paper copy of F.I.R., Ext. 2 is the certified copy of F.I.R., Exts. 3 & 4 are the certified copies of seizure lists, Ext. 5 is the certified copy of post-mortem report, Ext. 6 is the certified copy of the final form and Ext. 7 is the photocopy of schedule of insurance of the offending vehicle. On behalf of the respondent No. 2 Insurance Company none were examined. 3 & 4 are the certified copies of seizure lists, Ext. 5 is the certified copy of post-mortem report, Ext. 6 is the certified copy of the final form and Ext. 7 is the photocopy of schedule of insurance of the offending vehicle. On behalf of the respondent No. 2 Insurance Company none were examined. Only the certified copy of D. L. No. 110/95 issued by the R.T.O., Gajam was marked as Ext. A on behalf of respondent No.2. 5. Learned Member of the Tribunal answered the contentious point in favour of the claimants and accepting the Ext. A, the certified copy of driving licence of the driver who drove the vehicle, held that he did not possess effective and valid driving licence for which there is violation of the terms and conditions of the policy by the owner in entrusting the vehicle to a driver who did not possess effective and valid driving licence. Therefore, the liability cannot be fastened upon the Insurance Company. Accordingly the Tribunal has fastened the liability upon the owner while answering issue No.3. Correctness of the same is questioned by Mr. Mohanty, learned counsel for the appellants and Mr. Rao, learned counsel for the owner placing strong reliance upon sub-section (21) of Section 2 of the M. V. Act defining 'light motor vehicle'. Mr. Rao has also placed reliance upon 'form of renewal' issued under Rule 67 of the Orissa Motor Vehicle Rules, 1940 in favour of the owner, respondent No. 1 to show that laden weight of the vehicle in question is 5300 Kgs. which falls within the definition of 'light motor vehicle'. Therefore, fastening the liability upon the owner while answering issue No.3 in favour of the claimants, is erroneous in law. Therefore, he requested to shift the liability upon the Insurance Company. 6. Learned counsel for the appellants contended that the Tribunal having accepted the case pleaded by the claimants that the deceased was a mason, he was earning Rs. 100/-per day, erred in law in taking the income at Rs. 70/- per day, in absence of evidence regarding the income and determined the loss of dependency at Rs. 2,09,000/-. 6. Learned counsel for the appellants contended that the Tribunal having accepted the case pleaded by the claimants that the deceased was a mason, he was earning Rs. 100/-per day, erred in law in taking the income at Rs. 70/- per day, in absence of evidence regarding the income and determined the loss of dependency at Rs. 2,09,000/-. It is contended that in absence of the evidence regarding the annual income produced by the claimants for determination of the just and reasonable compensation under the head loss of dependency, as per the provision under Section 163-A of the M.V. Act, it should have taken at Rs. 40,000/-. That apart in view of the decision of the Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, AIR 2009 SC 3104 , the correct multiplier should be 15 and not 12 as has been applied by the Tribunal which is an erroneous approach leading to award inadequate compensation. It is further contended that the Tribunal has deducted ?rd out of the monthly income for the purpose of determination of compensation which is not correct. As per the decision of the Apex Court in the case of Smt. Sarla Verma (supra), ?th should have been deducted for that purpose. It is further contended that the Tribunal without taking the aforesaid relevant aspect of the matter, into consideration, though it has come to the conclusion that the accident took place due to the rash and negligent driving of the driver of the offending vehicle, erroneously recorded a finding that he did not possess an effective driving licence to drive the vehicle ignoring sub-section (21) of Section 2 of the M. V. Act, and passed the impugned award which is not just and reasonable and prayed for awarding the just and reasonable compensation. On the other hand, Mr. Ray, learned counsel for the Insurance Company sought to justify the finding recorded by the Tribunal fastening the liability upon the owner as the same is based on legal evidence, Ext. A. He further contended that the same is in accordance with the provision under Section 3 of the M. V. Act. In support of his submission he has placed reliance upon the decision in the case of National Insurance Co. A. He further contended that the same is in accordance with the provision under Section 3 of the M. V. Act. In support of his submission he has placed reliance upon the decision in the case of National Insurance Co. Ltd. v. Kusum Rai and others, AIR 2006 SC 3440, wherein the Tribunal referring to the decision of the Apex Court in the case of New India Assurance Co., Shimla v. Kamla and others, (2001) 4 SCC 342 , held that the Insurance Company cannot get rid of its third party liability as the said question arises only between the owner of the vehicle and the insurance company but directed that the insurance company can recover the amount from the owner of the vehicle. 7. The vehicle involved in the case of Kusum Rai (supra), was being used as a taxi. Therefore, after referring to the decision in National Insurance Co. Ltd. v. Swaran Singh and others, AIR 2004 SC 1531 , Section 3 of the M. V. Act and definition of sub-section (2) of Section 10 of the M. V. Act, the Apex Court on facts having found that the driver of the offending vehicle was not in possession of a valid and effective driving licence, held the Insurance Company liable to pay the compensation but did not interfere with the award but directed the insurance company to recover the amount from the owner. With reference to the facts of the said case, I am of the opinion that the same has no application to the present case. Therefore, Mr. Ray further submitted that claim of the claimants itself is only Rs. 22,50,000/- and the Tribunal awarded Rs. 2,09,000/- with 9% interest, on appreciation of legal evidence, which is exorbitant and takes care of the compensation claimed by the claimants. Hence, this appeal for enhancement need not be entertained and prayed for dismissal of the same. 8. With reference to the aforesaid rival legal contentions, the following points arise for consideration of this Court. (i) Whether the appellants are entitled for enhanced compensation? If so, what amount? (ii) Whether fastening the liability upon the owner placing reliance upon Ext.A not noticing Section 2(21) of the M.V. Act, is legal and valid? (iii) What order ? 9. The first point is required to be answered in favour of the claimants for the following reasons. 10. (i) Whether the appellants are entitled for enhanced compensation? If so, what amount? (ii) Whether fastening the liability upon the owner placing reliance upon Ext.A not noticing Section 2(21) of the M.V. Act, is legal and valid? (iii) What order ? 9. The first point is required to be answered in favour of the claimants for the following reasons. 10. It is an undisputed fact that the accident took place on 4-5-1998 and the vehicle involved had been driven by the driver of the owner-respondent No. 1. The finding of fact is recorded by the Tribunal that the deceased was a mason and the fact that he was earning 1130/- per day, was not accepted by the Tribunal in absence of production of documentary evidence in that respect and has taken the income of the deceased only at 170/- per day. In absence of the documentary evidence in support of the annual income, the Tribunal should have taken into consideration the structural formula which is provided in the Schedule to Section 163- A of the M.V. Act inserted by way of an amendment to the Motor Vehicles Act, 1988 with effect from November, 1994. In the facts and circumstances of the case, the Tribunal ought to have taken Rs. 3,000/- as the income of the deceased per month arriving at the annual income at Rs. 36,000/-. If the annual income is taken at 136,000/-, after deduction of ?rd, therefrom, for personal expenses, the contribution to the family would come to Rs. 24,000/-. In view of the decision of the Apex Court in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, AIR 2009 SC 3104 , the Tribunal should have applied the correct multiplier of 15 and the multiplier 12 applied by Tribunal, is not legally correct. Therefore, taking the annual income at Rs. 36,000/- and deducting ?rd, therefrom, towards own expenses of the deceased, the annual dependency would come to Rs. 24,000/- and applying 15 multiplier, the loss of total dependency would come to Rs. 3,60,000/-. In view of the decision of the Apex Court in the case of General Manager, Kerala Road Transport Corporation, Trivandrum v. Mrs. Susama Thomas and others, AIR 1994 SC 1631 , the claimants are entitled to Rs. 40,000/- towards loss of love and affection, loss of estate and funeral expenses and I so direct. 3,60,000/-. In view of the decision of the Apex Court in the case of General Manager, Kerala Road Transport Corporation, Trivandrum v. Mrs. Susama Thomas and others, AIR 1994 SC 1631 , the claimants are entitled to Rs. 40,000/- towards loss of love and affection, loss of estate and funeral expenses and I so direct. Therefore, the claimants are entitled to compensation at Rs. 4,00,000/-, same being the just and reasonable compensation. 11. Mr. Ray, learned counsel for the Insurance Company contended that interest awarded by the Tribunal at the rate of 9%, is in the higher side and prayed for awarding lower rate of interest. Therefore, instead of 9% interest, the Insurance Company, is directed to pay the compensation with interest at the rate of 6% from the date of claim till the date of payment. Accordingly first point is answered in favour of the claimants. 12. Insofar as second point is concerned. fastening the liability upon the owner is not legally correct in view of sub-section (21) Section 2 of the M.V. Act upon which reliance is rightly placed by the learned counsel for the appellants. Sub-section (21) of Section 2 of the M.V. Act reads as follows : "(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 Kilograms." 13. The laden weight of the vehicle which is involved in the accident is at 5300 Kg., and to substantiate his contention, learned counsel for the appellants has produced the xerox copy of form of renewal of permit dated 25-7-1997 granted by the Secretary. R.T.O., Ganjam, Chatrapur. In this view of the matter, the offending vehicle is a 'light motor vehicle' as per the above definition and for which driver had possessed a valid driving licence in respect of the 'light motor vehicle'. Therefore, it cannot be said that any illegality has been committed in authorising the driver to drive the offending vehicle. Reliance placed upon Section 3 of the M.V. Act and the decision of the Apex Court in the case of Kusum Rai (supra), wherein referring to its earlier decisions and interpreting Section 149(2) of the M.V. Act, the Apex Court held that the liability under Section 149(2) should be fastened upon the Insurance company. Reliance placed upon Section 3 of the M.V. Act and the decision of the Apex Court in the case of Kusum Rai (supra), wherein referring to its earlier decisions and interpreting Section 149(2) of the M.V. Act, the Apex Court held that the liability under Section 149(2) should be fastened upon the Insurance company. Of course in the said decision having regard to the facts of the case, right has been given to the Insurance Company to recover the amount of compensation payable to the claimants, from the owner. In the case on hand that opportunity need not be given to the Insurance Company for the reason that Annexure-A is a valid driving licence given to the driver to drive 'light motor vehicle' and the offending vehicle in question is a 'light motor vehicle' which is a finding recorded by me on the basis of the definition of the statutory provision under subsection (21) of Section 2 of the M.V. Act. Section 3 of the M.V. Act must be read together with sub-section (21) of Section 2 of the M.V. Act. This aspect of the matter has not been taken into consideration by the Tribunal while awarding compensation fastening the liability upon the owner. That is an erroneous approach by the Tribunal which is liable to be set aside and is accordingly set aside. Compensation awarded in this case, is fastened upon the Insurance Company having regard to the undisputed fact that the offending vehicle was insured with the insure respondent No. 2. Therefore, the second point is answered in favour of the claimants and the owner. 14. For the reasons stated above, the appeal is allowed. The impugned judgment of the Tribunal is hereby modified by awarding compensation at 24,00,000/- with 6% interest from the date of claim till the date of payment. It is further directed that out of the total amount payable including interest, 40% shall be equally apportioned among the claimants and the remaining amount of 60% with interest shall be equally divided and deposited in the name of each of the claimants separately in shape of fixed deposit in any nationalised bank of choice of the claimants for a period of five years. The entire exercise shall be completed within four weeks from the date of receipt of this judgment. The entire exercise shall be completed within four weeks from the date of receipt of this judgment. The interest that may be earned on the Fixed Deposits, as directed above, shall be permitted to be withdrawn by the claimants for being utilised for their family expenses. If the claimants require the amount ordered to be kept in fixed deposit or any portion thereof for the family necessity or any other developmental purpose of the family, they are at liberty to file application before the Tribunal which shall be considered and disposed of as expeditiously be possible. 15. The appeal is accordingly allowed on the aforesaid terms.