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Allahabad High Court · body

2014 DIGILAW 3175 (ALL)

Savita Malhotra v. Shanti Malhotra

2014-10-16

VISHNU CHANDRA GUPTA

body2014
JUDGMENT Vishnu Chandra Gupta, J. 1. The First Appeal From Order No. 140 of 1984 under Section 110D of Motor Vehicles Act, 1939 (for short the 'Act') has been filed for enhancement of compensation awarded by judgment and award dated 27.4.1984 passed by Motor Accident Claims Tribunal/II Additional District Judge, Lucknow (herein after referred to as the Tribunal) in Motor Accident Claim Petition No. 46 of 1982 (Savita Malhotra and others Vs. Marry Inter Continental Child Welfare Organization of India, Lucknow and others), whereby the claim petition under section 110A of the Act preferred by the claimants-Savita Malhotra (wife of deceased), Master Nitin Malhotra and Master Nanha Malhotra (sons of deceased) and Smt. Shanti Malhotra (mother of deceased) was allowed for compensation of Rs. 77,000/- with pendente lite and future interest @ 6% per annum. 2. The First Appeal from Order No. 150 of 1984 under section 110D of the Act has also been filed by the appellant-insurance company against the same judgment and award passed by Tribunal claiming therein its limited liability to the extent of Rs. 50,000/-. 3. As both these appeals are arising out of same judgment and award, they are being disposed of by a common judgment. 4. Brief facts for deciding these appeals are that claimants Savita Malhotra, her two sons namely Nitin Malhotra and Nanha Malhotra who were minor at the time of accident, filed aforesaid claim petition under Section 110A of the Act claiming compensation of Rs. 5,51,000/- in respect of the death of her husband Jagdish Rai Malhotra in motor accident occurred on 02.04.1982 at 9.00 a.m. near RDSO Colony within the area of Police Station Krishna Nagar, District, Lucknow. According to the petitioners, Jagdish Rai Malhotra was aged about 35 years on the date of accident. He was working as Senior Research Assistant in RDSO, Lucknow, Northern Railway. He was diploma holder in Electronics. He was getting salary of Rs. 1304.92 per month as disclosed in his Last Pay Certificate filed from the side of the petitioners which discloses the bifurcation of the amount of salary. It contains pay Rs. 725.00- + D.A. Rs. 195.00+ CCA Rs. 32.52 + Additional DA Rs. 351.60. 5. It has been contended by the claimants-petitioners that no income tax was payable by the deceased on the aforesaid income at the time of accident. It has also come in the evidence that Rs. It contains pay Rs. 725.00- + D.A. Rs. 195.00+ CCA Rs. 32.52 + Additional DA Rs. 351.60. 5. It has been contended by the claimants-petitioners that no income tax was payable by the deceased on the aforesaid income at the time of accident. It has also come in the evidence that Rs. 40-45 was being paid by the deceased towards rent of the house. He was not getting any H.R.A. The aforesaid accident was occurred when the deceased was going on Scooter having registration no. UTC-7108. A Matador having registration no. URU-1855 owned by respondent no. 1.-Marry Inter Continental Child and Women' Welfare Organization of India (for short "Organization) hit the scooter of deceased on its back. Consequently, the deceased fell down and received injuries. He was shifted to Medical College, Lucknow where he succumbed to the injuries sustained in accident on 04.04.1982 at about 12.50 pm. during his treatment. The claimants, Smt. Savita Malhotra, (wife of deceased), two sons of the deceased namely Master Nitin Malhotra and Master Nanha Malhotra and mother of the deceased namely Smt. Shanti Malhotra claimed compensation towards loss of income of the deceased to the tune of Rs. 2,76,000/-, for expenses incurred in treatment of the deceased to the tune of Rs. 5,00/-, for loss of company of father at Rs. 50,000/-, for loss of company of deceased at Rs. 1,00,000/-, for shortening of life of petitioners at Rs. 1,00,000/- and Rs. 25,000/- towards pain and sufferings. 6. The petitioner no. 1 Savita Malhotra examined herself as an eye witness. She adduced documentary as well as oral evidence in respect of her claim. Basant Lal, the driver of the offending vehicle also examined who deposed about the negligence of the scooterist. The mother of the deceased namely Shanti Malhotra was also arrayed as respondent no. 3 in the claim petition. She was old enough and was residing at Delhi. 7. The claim petition was contested by the owner of the offending vehicle and Insurance Company. 8. The Tribunal framed the following issues: - 1. Whether the deceased died on account of accident caused by motor vehicle no. URU 1855 as alleged? 2. Whether the accident was caused n account of rash and negligent driving? 3. Whether the deceased himself was guilty of contributory negligence? 4. Whether the vehicle in question was insured with defendant no. 3? 5. Whether the deceased died on account of accident caused by motor vehicle no. URU 1855 as alleged? 2. Whether the accident was caused n account of rash and negligent driving? 3. Whether the deceased himself was guilty of contributory negligence? 4. Whether the vehicle in question was insured with defendant no. 3? 5. To what amount, if any, is the plaintiff entitled. 9. The Tribunal found that Jagdish Rai Malhotra was died in the accident due to rash and negligent driving of the driver of the Matador in question. It was duly insured with M/s. Oriental Fire and General Insurance Company. It was driven by the driver having valid license. There was no breach of terms and conditions of the policy. Hence, the Insurance Company was saddled with liability to make payment of compensation. While deciding the amount of compensation, the Tribunal has taken dependency of the claimants at the rate of Rs. 600/- per month applying multiplier of 10 and awarded a sum of Rs. 72,000/- as compensation. Apart from it, the Tribunal had also awarded Rs. 3,000/- for loss of company and Rs. 2,000/- for loss of shortening of life. Thus, the Tribunal awarded total sum of Rs. 77,000/- as compensation. The Tribunal while recording the findings on the quantum observed as follows: - "In the circumstances of the case when as sum of Rs. 44,000/- has already been received and claimant no. 1 has also secured employment on account of death of her husband in the accident, in my opinion, 10 years multiplier should be allowed for awarding compensation. Ascertaining dependency at the rate of Rs. 600/- P.M. the dependency per annum comes to Rs. 1200/-. Applying 10 years multiplier the amount of compensation comes to Rs. 72,000/- on account of loss of dependency. Damage on account of loss of company and shortening of life have not been precisely proved. So the token damage on this account in my opinion should be Rs. 3,000/- and Rs. 2000/- respectively. Expenses on treatment have not been proved. In view of above, the total amount of compensation which the claimants are entitled comes to Rs. 77,000/- " 10. So the token damage on this account in my opinion should be Rs. 3,000/- and Rs. 2000/- respectively. Expenses on treatment have not been proved. In view of above, the total amount of compensation which the claimants are entitled comes to Rs. 77,000/- " 10. I have heard Shri Chandra Shekhar Pandey, learned counsel for the claimants and Shri Bhanu Prakash Dubey, learned counsel for M/s. Oriental Fire and General Insurance Company Ltd. None appeared for the rest of respondents inspite of sufficient service of notice upon them. I also perused the record of appeal as well as of Tribunal. 11. So far as First Appeal From Order bearing no. 140 of 1984 is concerned, it has been filed by the claimants claiming enhancement of compensation on the ground that while determining the compensation, the Tribunal has taken into consideration the alleged pecuniary advantages on account of death of deceased which in law cannot be considered while determining the compensation treating the same as pecuniary advantages. There were sum of Rs. 16,000/- as G.P.F., Rs. 8,000/- as gratuity and Rs. 20,000/- as group insurance. Though the Tribunal has not deducted any amount of pension payable to the wife of the deceased Shanti Malhotra, but has taken into consideration the income of Savita Malhotra claimant, who was given service on compassionate ground. After considering the amount received on account of G.P.F., gratuity, insurance and also salary received by claimant/appellant no. 1, Smt. Savita Malhotra not only reduced the multiplier but also reduced the dependency. The Tribunal assumed that after deduction of income tax and G.P.F. carry home salary would be Rs. 1100/- and after deduction of 1/3rd amount from it the dependency comes in between Rs. 600-650 per month. The Tribunal has finally taken the dependency in the aforesaid circumstances at the rate of Rs. 600/- and applied multiplier of 10. The Tribunal has held that the deceased was aged about 35 years when he met with an accident and died. The Tribunal has also taken note of this fact that certificate of salary was proved by producing Last Pay Certificate of deceased. The Tribunal after taking into account the amount of carry home salary of Rs. 1100/- per month deducted 1/3rd for the personal expenses of the deceased and Rs. 100/- per month spent by the deceased on his mother determined the dependency. The Tribunal after taking into account the amount of carry home salary of Rs. 1100/- per month deducted 1/3rd for the personal expenses of the deceased and Rs. 100/- per month spent by the deceased on his mother determined the dependency. The Tribunal further observed that though the petitioners have failed to prove any damages on account of loss of company and loss of shortening of life, but token damages on these counts have been awarded as Rs. 3000/- and Rs. 2000/- respectively. 12. Learned counsel for the claimants after relying upon the judgment of the Hon'ble Apex Court reported in : 2013(7) SCC 476 , Vimal Kanwar and others Vs. Kishore Dan and others submitted that compassionate appointment, amounts of provident fund, pension and life insurance received by claimants on account of victim's death cannot be termed as "pecuniary advantage" and could not be liable for deduction. The only deduction could be made on account of taxes payable by the deceased. It has also been observed that there shall be presumption that taxes shall already be deducted at source as victim is a salaried person. 13. In view of the above facts, the reduction of multiplier as well as the dependency considering the aforesaid alleged pecuniary advantage would not be proper. I find sufficient force in the submissions of learned counsel for the claimants. 14. Admittedly, in this case the deceased was getting total a sum of Rs. 1304.92/- per month. It is true that deduction has not been shown in the Last Pay Certificate of the deceased who died in motor accident, but the petitioner no. 1 in her statement has categorically stated that no tax was payable by the deceased towards income tax. However, she stated that Rs. 40-50 was being paid towards house rent and deceased husband used to pay Rs. 1000/- per month for domestic expenses. She also stated that her husband was having promotional avenues and hike in salary due to loss of value of rupees. It was also proved that the age of retirement of the deceased was 58 years. As such, he would have 23 years more to serve. The Tribunal has not considered this aspect of the matter in regard to future prospect of the deceased. 15. It was also proved that the age of retirement of the deceased was 58 years. As such, he would have 23 years more to serve. The Tribunal has not considered this aspect of the matter in regard to future prospect of the deceased. 15. Taking into consideration the entire evidence adduced by the claimants, I am of the view that the amount of dependency has been reduced substantially, which is not sustainable in law in view of Vimal Kanwar's case (supra). Thus, the amount of compensation requires redetermination by this Court. 16. It is not in dispute that the deceased was getting total salary of Rs. 1,304.92/- per month (in round figure Rs. 1,300/- per month). It is also not in dispute that deceased was aged about 35 years and was in government service. His job was of permanent nature as well as promotional avenue hike in salary till the retirement. There were normal features, which ought to have been taken into consideration by the Tribunal. In Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, : 2009 (2) TAC 667 (SC), the Apex Court held that while determining the compensation of an employee in a permanent job appropriate amount should be added towards future prospect which is in ordinary course should be 50% of the salary of employee in view of ratio propounded in Sarla Verma's case (supra) which has been affirmed by the Three Judges Bench of the Apex Court in subsequent judgment delivered in Reshma Kumari and others Vs. Madan Mohan and others : (2013) 9 SCC 422. 17. I am of the view that his monthly income shall be taken into consideration as Rs. 1300/- plus 650 towards further prospect (total Rs. 1950/-). Considering the number of dependents 1/3rd amount may be deducted which comes to Rs. 650/-. As such, net dependency of the claimants comes to Rs. 1300/- per month and annual dependency of the claimants comes to Rs. 15,600/-. In view of proposition of law settled in Sarla Verma's case (Supra) the multiplier of 16 should be applied in the present case as the deceased was ranging in between 30-35 of age at the time of accident. As such, the compensation under this head comes to Rs. 2,49,600/-. The amount of consortium of Rs. 5,000/- which has been given to the claimants appears to be reasonable considering the date of accident. As such, the compensation under this head comes to Rs. 2,49,600/-. The amount of consortium of Rs. 5,000/- which has been given to the claimants appears to be reasonable considering the date of accident. So the additional sum awarded Rs. 5,000/- is also added in the aforesaid amount of Rs. 2,49,600/-. Though there is no evidence on record to establish the expenses in regard to treatment of deceased but the fact is on record that deceased remained hospitalize in Medical College, Lucknow for two days. Therefore, claim of medical expenses was to the tune of Rs. 400/- which is also added in the aforesaid amount against claimed amount of Rs. 500/-. Therefore total compensation comes to Rs. 2,55,000/- which is in the opinion of this Court would just and fair compensation in this case. 18. In view of the above, the amount of compensation assessed by the Tribunal requires enhancement from Rs. 77,000/- to the extent of Rs. 2,55,000/-. 19. So far as the Insurance Company is concerned, the argument of the learned counsel for the insurance company is limited to the extent that in this case liability of Insurance Company is limited to the extent of Rs. 50,000/-. In this regard, he relied upon Section 95(2) (b) (i) of the Motor Vehicles Act, 1939, which reads as under: - "In respect of persons other than the passengers are carried for higher or reward, a limit of fifty thousand rupees in all;" 20. He supported his contention with judgment of this Court delivered in F.A.F.O. No. 98 of 1995 (National Insurance Company Vs. Smt. Shanta Kesharwani and others) decided on 08.08.2013. Learned counsel appearing for the respondents vehemently argued that this provision is not attracted in this case because the deceased was not a passenger in the offending vehicle and does not fall within the category of the passenger other than carried for higher or reward. The deceased in this case is a third party. He relied upon the Insurance Policy which has been filed by the Insurance Company and submitted that terms of the policy are very clear. Perusal of the policy which are paper No. C-35/4 and C-35/5 reveal that liability of Insurance Company is limited only under Section II-1 (i) (ii). The relevant part of Insurance policy regarding limits of liability are extracted herein below: - "Section II -Liability to third parties Limit of Liability 1. Perusal of the policy which are paper No. C-35/4 and C-35/5 reveal that liability of Insurance Company is limited only under Section II-1 (i) (ii). The relevant part of Insurance policy regarding limits of liability are extracted herein below: - "Section II -Liability to third parties Limit of Liability 1. Subject to the Limits of Liability the Company will indemnify the insured against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and or unloading) of the Motor vehicle. Limits of Liability: Limit of the amount of the company's liability under section II-1(i) in respect of any one accident: such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939. Limit of the amount of the Company's liability under Section II-1 (ii) in respect of any one claim or series of claims arising out of one event: Rs. 50,000." 21. Section 11-I (i) has limited liability for loss caused to property. 22. It has been submitted by learned counsel for the insurance company that in this case limited liability is provided under the statute i.e. Section 95 of the Act, 1939. Therefore, Insurance Company cannot be held liable for payment of Rs. 20,000/-. 23. I have considered the provisions of Section 95 of old Act i.e. Motor Vehicles Act, 1939, which is reproduced herein below: - "95. Therefore, Insurance Company cannot be held liable for payment of Rs. 20,000/-. 23. I have considered the provisions of Section 95 of old Act i.e. Motor Vehicles Act, 1939, which is reproduced herein below: - "95. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-(a) is issued by a person who is an authorised insurer 3[or by a co-operative society allowed under section108 to transact the business of an insurer], and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or, arising out of the use of the vehicle in a public place Provided that a policy shall not * * * be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment 3[other than a liability arising under the Workmen's Compensation Act, 1923, in 8 respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods vehicle, being carried in the vehicle], or (ii) except 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, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting front the vehicle at the time of the occurrence of the event out of which a claim arises, or (iii) to cover any contractual liability. [Explanation.-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage, to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.] (2) Subject to the proviso to sub-section (1), 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 4[one lakh and fifty thousand rupees] in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923, (8 of 1923.) in respect of the death of, or bodily injury to, employees, (other than the driver), not exceeding six in number, being carried in the 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 5[six thousand]in all in respect of damage to any property of a third party.] * * * * * * (4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance 2*** in the prescribed form a containing the prescribed particulars of any, conditions subject which the policy is issued and of any other prescribed matters different forms, particulars and matters may be prescribed in different cases. [(4-A) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify he fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.] (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person, specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of person." 24. From perusal of the aforesaid section it reveals that liability of insurer is in respect of the death of or bodily injury to any person or damage to any property of a third party and also in respect of any damage of public service vehicle has been provided. It also provides that no policy is required to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured. 25. Sub Section 2 prescribes that in case passengers in a vehicle are carried for hire or reward in pursuance of a contract of employment in respect of other than or carrying for hire and reward, the limit of liability would be upto Rs. 50,000/- in all and in respect of passengers a limit is defined as provided in Section 95 (II) (b). 26. The provisions contained in Section 95 leaves no room to doubt that in case of a third party there shall be no limit in the statute. Moreover, in the insurance policy there is no limit for payment of compensation on account injuries sustained or death caused of third party. The limit of Rs. 50,000/- provided in the insurance policy is for a specified person mentioning in Sub Section 1 (ii). 27. Thus, I am of the view that the law cited by the learned counsel for the Insurance Company in Smt. Shanta Kesharwani's case (Supra) is not applicable on fact of this case. The limit of Rs. 50,000/- provided in the insurance policy is for a specified person mentioning in Sub Section 1 (ii). 27. Thus, I am of the view that the law cited by the learned counsel for the Insurance Company in Smt. Shanta Kesharwani's case (Supra) is not applicable on fact of this case. This Court is of the view that Insurance Company is liable to pay entire compensation determined by this Court. 28. In view of the aforesaid observation made hereinabove, F.A.F.O. No. 140 of 1984 is allowed to the extent that the amount of Rs. 77,000/- with pendente lite and future interest @ 6% per annum awarded by the Tribunal is enhanced to the extent of Rs. 2,55,000/- with pendente lite and future interest @ 6% per annum. 29. F.A.F.O. No. 150 of 1984 sans merit and is accordingly dismissed. 30. There shall be no order as to costs to either of the parties in both the appeals. 31. The enhanced amount will be payable to the claimants within one month from the date of this order. If any amount is yet to be deposited or paid under the award passed by the Tribunal, the same shall be deposited within the aforesaid period before the Tribunal. The amount so deposited shall be withdrawn by the claimants in terms of the award of the Tribunal. 32. The office is directed to sent back the lower court record forthwith.