Reliance General Insurance Company Ltd. v. Maya Wati
2013-05-10
RAJIV SHARMA
body2013
DigiLaw.ai
JUDGMENT Rajiv Sharma, Judge: Since common questions of law and facts are involved in both the FAOs., these were taken up together for hearing and are being disposed of by this common judgment. 2.These two FAOs. are directed against the award, dated 27.03.20 12, passed by the Motor Accident Claims Tribunal-II, Solan, District Solan, H.P., in M.A.C.T. Petition No. 48-S/2 of 2009. 3.‘Key facts’ necessary for the adjudication of this appeal are that respondents No. 1 to 4 have filed a claim petition before the Motor Accident Claims Tribunal-II, Solan, District Solan, H.P. on 24.08.2009, seeking compensation of `30.0 lacs, on account of death of Shri Shyam Lal, who died in a motor vehicle accident on 20.10.2008. According to the claimants, the vehicle was insured with Reliance General Insurance Limited, i.e. appellant in F.A.O. No. 428 of 2012. Respondent No. 5 is the owner and the vehicle was being driven by him. According to the claim petition, Shri Shyam Lal was proceeding towards Nalagarh in a Maruti Car bearing No. HP-12-B-7981. One Ram Kishore, PW-4 was also sitting with him. When the Car driven by deceased Shyam Lal reached near Khokhra bridge, a vehicle bearing No. HP-12-A-8976 driven by respondent No. 5 rashly and negligently came from link road side, i.e. from village Nihla Khera and hit the car driven by deceased Shyam Lal. The age of the deceased was 47 years. According to the claim petition, he was earning `50,000/- per month. He was an agriculturist, transporter, shopkeeper and businessman. 4.Respondent No. 5 has contested the claim petition. According to him, he was going from Nalagarh to Baddi extremely on the left side of the road and it was deceased, who was driving his Car rashly and negligently. The claim petition was also resisted by the appellant-Insurance Company. According to the Insurance Company, the accident took place on account of rash and negligent acts of the deceased. The driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident. Learned Motor Accident Claims Tribunal-II, Solan, District Solan, H.P. allowed the claim petition. He awarded the compensation of ‘4,93,000/- with interest @ 9% per annum from the date of filing of the petition till deposit of award amount by the appellant-Insurance Company. 5.Mr.
Learned Motor Accident Claims Tribunal-II, Solan, District Solan, H.P. allowed the claim petition. He awarded the compensation of ‘4,93,000/- with interest @ 9% per annum from the date of filing of the petition till deposit of award amount by the appellant-Insurance Company. 5.Mr. Jagdish Thakur, learned counsel for the appellant has vehemently argued that the income of deceased Shyam Lal was not more than 3,000/- per month. He also contended that the accident has taken place due to the rash and negligent driving by Shri Shyam Lal (deceased). 6.Mr. H.S. Rana, learned counsel for the appellants in F.A.O. No. 271 of 2012 has vehemently argued that income of the deceased Shyam Lal was not less than 50,000/- per month. 7.I have heard the learned counsel for the parties and gone through the pleadings and records carefully. 8.One of the claimants has appeared as PW- 1. He has tendered his affidavit by way of affidavit Ex. PW- 1/A. He has placed on record the post mortem report Mark-PX, copy of news paper Mark-PY, legal notice/complaint to S.P. and postal receipts Ex.-PW1/C to Ex.-PW1/E, copy of R.C. Mark-PZ and copy of driving licence of deceased Mark PZ- 1. 9.Virender Singh (PW-2) has tendered his affidavit Ex. PW2/A. According to him, when deceased Shyam Lal alongwith his servant was proceeding towards Nalagarh and reached near Khera, a utility vehicle came from link road side and hit the car of the deceased, as a result of which, the occupants of the Car sustained serious injuries and deceased Shyam Lal died due to the injuries sustained in the accident. According to him, the deceased was running a Karyana shop and he was also having two trucks in his name. In his cross-examination, he has admitted that he was not present at the time of accident. However, he deposed that he has arrived on the spot just after the accident. 10.PW-3, Nand Lal is an eye witness to the accident. He has also tendered his affidavit Ex. PW3/A. According to him, on 20.10.2008, he and Jeet Ram were present at the shops. At about 8:45 p.m., a utility vehicle bearing No. HP-12-A-8976, came from link road and hit an Alto Car bearing No. HP-12-B-7981 on the main road, which was proceeding towards Nalagarh. 11.Similarly, Ram Kishore (PW-4) has deposed that he was travelling in the Car being driven by deceased Shyam Lal.
At about 8:45 p.m., a utility vehicle bearing No. HP-12-A-8976, came from link road and hit an Alto Car bearing No. HP-12-B-7981 on the main road, which was proceeding towards Nalagarh. 11.Similarly, Ram Kishore (PW-4) has deposed that he was travelling in the Car being driven by deceased Shyam Lal. According to him, the deceased was driving the Car on the main road at a slow speed and the pickup utility vehicle being driven by its driver rashly and negligently came from link road side and hit the Car being driven by the deceased sustained injuries. Thus, it is duly proved on the basis of statements of eye witnesses PW-3 and PW-4 that a Car which came from link road hit the Car driven by Shyam Lal (deceased). Thus, the statement of RW-2 Shyam Lal that his Car was hit on the wrong side, cannot be believed. The Insurance Company has not led any evidence, though a number of opportunities were granted to it and the evidence was closed by the order of the Court on 03.03.20 12. The vehicle, in question, bearing No. HP-12-A-8976, was insured with appellant Insurance- Company as per policy Ex. RW2/D. 12.The claimants have not led any tangible evidence on record to establish that Shyam Lal (deceased) was earning ‘50,000/- from agricultural work and transportation. The claimants have not placed on record income tax return and bank accounts to establish their claim. The claimants have not placed any tangible evidence on record to establish that the deceased was owner of two trucks. The claimants have not even placed on record the R.Cs. of these trucks. Similarly, the claimants have not placed on record any revenue record to establish that the deceased was owner of land in order to prove that he was an agriculturist. It was expected from the claimants to place on record revenue papers to establish their claim. Now, as far as the running of the shop by the deceased is concerned, neither any registration nor the sales tax number etc. have been proved. In these circumstances, learned Motor Accident Claims Tribunal-II has rightly come to the conclusion that the income of the deceased was ‘4,000/- per month. The annual dependency of the deceased was held to be ‘36,000/-. Since the age of the deceased was 48 years, learned Motor Accident Claims Tribunal-II, Solan, District Solan has correctly applied the multiplier of 13.
In these circumstances, learned Motor Accident Claims Tribunal-II has rightly come to the conclusion that the income of the deceased was ‘4,000/- per month. The annual dependency of the deceased was held to be ‘36,000/-. Since the age of the deceased was 48 years, learned Motor Accident Claims Tribunal-II, Solan, District Solan has correctly applied the multiplier of 13. There is no merit in the contention of Mr. Jagdish Thakur, learned counsel for the appellant that the income of the deceased was to be assessed at ‘3,000/-. The Motor Accident Claims Tribunal-II, Solan, District Solan, H.P. on the basis of the statements of witnesses has rightly come to the conclusion that the income of the deceased was ‘4,000/- per month. 13.Their Lordships of the Hon’ble Supreme Court in Reshma Kumari Vs. Madan Mohan & Anr., JT 2013 (4) SC 362 have held that words “just compensation” does not mean perfect or absolute compensation. Their Lordships have further held that the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. Their Lordships have held as under: “29. Section 168 of the 1988 Act provides the guideline that the amount of compensation shall be awarded by the claims tribunal which appears to it to be just. The expression, ‘just’ means that the amount so determined is fair, reasonable and equitable by accepted legal standards and not a forensic lottery. Obviously ‘just compensation’ does not mean ‘perfect’ or ‘absolute’ compensation. The just compensation principle requires examination of the particular situation obtaining uniquely in an individual case. 30. Almost a century back in Taff Vale Railway Co. V. Jenkins {(1913) AC 1}, the House of Lords laid down the test that award of damages in fatal accident action is compensation for the reasonable expectation of pecuniary benefit by the deceased’s family. The purpose of award of compensation is to put the dependents of the deceased, who had been breadwinner of the family, in the same position financially as if he had lived his natural span of life; it is not designed to put the claimants in a better financial position in which they would otherwise have been if the accident had not occurred.
At the same time, the determination of compensation is not an exact science and the exercise involves an assessment based on estimation and conjectures here and there as many imponderable factors and unpredictable contingencies have to be taken into consideration. 33. We have already noticed the table prepared in Sarla Verma (Supra) for the selection of multiplier. The table has been prepared in Sarla Verma (Supra) having regard to the three decisions of this Court, namely, Susamma Thomas (supra), Trilok Chandra (supra) and Charlie (supra) for the claims made under Section 166 of the 1988 Act. The Court said that multiplier shown in Column (4) of the table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the table prepared in Sarla Verma is that the uniformity and consistency in selection of the multiplier can be achieved. The assessment of extent of dependency depends on examination of the unique situation of the individual case. Valuing the dependency or the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased’s death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplied by a ‘multiplier’ to arrive at the loss of dependency. In Sarla Verma (supra), this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma (supra) that claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma (supra).” 14.Accordingly in view of the observations and analysis made hereinabove, there is no merit in these F.A.Os.
We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma (supra).” 14.Accordingly in view of the observations and analysis made hereinabove, there is no merit in these F.A.Os. and the same are dismissed, so also the pending application(s), if any. No costs.