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2017 DIGILAW 421 (MP)

National Insurance Company Ltd. v. Vimla

2017-03-30

ROHIT ARYA

body2017
ORDER 1. This appeal by Insurance Company is directed against the award dated 3.3.2005 passed in Claim Case No.51/2003 by Ist Additional Motor Claims Tribunal, Shivpuri. The Claims Tribunal has awarded total amount of Rs.1,87,000/- towards compensation. There is a cross-appeal seeking enhancement of the compensation by the claimants on the premise that the deceased was working as cleaner and was drawing salary of Rs.2,000/- per month plus diet money Rs.600/- per month. As such, seeking enhancement of compensation based on the aforesaid facts. 2. Facts relevant and necessary for disposal of this appeal are that the deceased, Atar Singh had died due to rash and negligent driving of the offending Truck No.MP09KA 9980 on the fateful day, 28.10.2000 at Dholgarh crossing, Shivpuri road. The deceased was survived by young wife and parents. The FIR was registered at Crime No.129/2000 dated 28.10.2000 by Police Station, Subashpura, Shivpuri. 3. During the course of trial, the claimants have submitted cover note (article “A”) showing insurance of the offending vehicle from 6.8.2000 to 5.8.2001 with the appellant-insurance company. 4. The appellant-insurance company had denied the factum of insurance and produced documents, Exhibits D-1 to D-32. 5. The Tribunal upon careful perusal of the documents reached conclusion that the documents produced by the insurance company were of the period 3.4.2000 to 19.4.2000. As such, the said documents were of no relevance to ascertain or cross-check insurance of the offending vehicle in the cover note during the aforesaid period. Consequently, the plea that the offending vehicle was not insured with the insurance company was rejected. 6. While dealing with the factum of accident, the Tribunal has dealt with oral and documentary evidence placed on record and in paragraph 8 of the award has answered issue No.2 to the effect that while the deceased, Atar Singh was getting down from the truck, due to rash and negligent driving, the deceased suffered serious injuries as a result he had died. Post-mortem report (Exhibit P-6) was proved. The deceased had suffered multiple injuries including head injury and due to excessive bleeding, he had died. In view of the above, the Tribunal found that the deceased had died in the accident. 7. Learned counsel for the appellant tried to assail the award inter alia contending that for want of insurance of the offending vehicle with the appellant/insurance company, no liability could have been fastened. In view of the above, the Tribunal found that the deceased had died in the accident. 7. Learned counsel for the appellant tried to assail the award inter alia contending that for want of insurance of the offending vehicle with the appellant/insurance company, no liability could have been fastened. More so, the offending vehicle was a truck solely for carriage of goods but not a passenger vehicle. Hence, the deceased cannot be said to be a passenger travelling on the offending truck for saddling liability upon the insurance company for the reason that carrying passengers has not been contemplated in a goods carriage vehicle under the insurance policy. He has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of National Insurance Company Limited v. Kaushalya Devi and others [(2008)9 SCC 246] and Smt.Thokchom Ongbi Sangeeta alias Sangi Devi and another v. Oriental Insurance Company Ltd., and others [2008(1) T.A.C. II (S.C.)], as well as Full Bench decision of this Court in the case of Bhav Singh v. Smt. Savirani and others [2008(1) JLJ 134=2008(I) MPJR (FB) 11], to bolster his submission. 8. The detailed discussion made in the award, the appellant could not produce even a single document for the period 6.8.2000 to 5.8.2001, as such, the cover note produced by the claimants/respondents found favour with the Tribunal and concluded that the offending vehicle was insured with the appellant/insurance company. Accordingly, fastened the liability upon the appellant-insurance company. Thus, in the opinion of this Court, the tribunal has not committed any illegality in law and on facts while answering the issue No.3 in the context of liability on the appellant-insurance company. The said finding is hereby upheld. The judgments cited by the learned counsel for the appellant are not of assistance as the factual matrix of the said cases are entirely different. 9. Now turning to the question referable to issues No.1 and 2, this Court has perused the findings recorded by the Tribunal with due advertence to the evidence placed on record. It has been found that while the offending vehicle was stationery, the deceased-Atar Singh was alighting therefrom but, due to rash and negligent driving, he suffered grievous injuries resulting into his death. It has been found that while the offending vehicle was stationery, the deceased-Atar Singh was alighting therefrom but, due to rash and negligent driving, he suffered grievous injuries resulting into his death. Under such circumstances, the contention of learned counsel for the appellant-insurance company that the offending vehicle was insured as a goods carriage vehicle and not for the passengers, therefore, no liability could be fastened against the insurance company cannot be countenanced. 10. The Tribunal while awarding the quantum of compensation has assessed the income of the deceased notionally at Rs.15,000/- as determined under section 163 of the Motor Vehicles Act and after deducting one-third towards personal expenses, annual dependency was fixed at Rs.10,000/-. By applying the appropriate multiplier 18', awarded Rs.1,80,000/- for loss of dependency, towards funeral expenses – Rs.2,000/-, towards consortium Rs.5,000/-, accordingly awarded total compensation of Rs.1,87,000/-. 11. The claimants/appellants in cross-appeal have challenged the amount of compensation awarded by the Tribunal on the premise that the compensation awarded is meager and on the lower side, as the death of Atar Singh in the accident has resulted in precarious financial condition of his family, since he lone was the bread earner of the family. Learned counsel has relied upon the Order of the Hon'ble Supreme Court, reported in II(2013) ACC 841 (SC) Rajesh and others v. Rajbir Singh and others to bolster his submissions. 12. The learned counsel for the insurance company has argued in support of the award and prayed for dismissal of the cross-appeal. It is submitted that looking to the facts and circumstances of the case, the amount awarded by the Tribunal is just and proper and no enhancement is called for. Accordingly, prayed for dismissal of the cross-appeal. 13. The moot question to be addressed upon in this cross-appeal is as to whether the Tribunal was justified awarding Rs.1,87,000/- to the claimants. 14. Having gone through the impugned award, it is found that the Tribunal has considered all the facts while passing the impugned award, yet looking to the fact that deceased was aged 25 years and his whole family was dependent upon him for livelihood, in the opinion of this Court, the amount awarded by the Tribunal is on the lower side. The finding of the Tribunal as regards earning of the deceased, Atar Singh as notional income as determined under section 163 of the Motor Vehicles Act is incorrect. The finding of the Tribunal as regards earning of the deceased, Atar Singh as notional income as determined under section 163 of the Motor Vehicles Act is incorrect. Therefore, the finding as regards earning of the deceased is totally perverse and absolutely unreasonable. The claimants have asserted that the deceased was aged 25 years and working as cleaner and earning Rs.2,000/- per month plus diet money Rs.600/-, total Rs.2,600/- per month. Hence, the deceased must have earning at least Rs.2,400/- per month, on the date of accident. Accordingly, the income of deceased is assessed as Rs.2,400/- per month, annual income Rs.2,400/- × 12 = 28,800/-. The deceased, Atar Singh as per post mortem report found to be 25 years of age. Hence, the multiplier 18' is appropriate multiplier. After deducting 1/3rd out of Rs.28,800/-, i.e., Rs.9,600/-, total dependency comes to Rs.3,45,600/-. 15. The Hon'ble Supreme Court in the case of Rajesh and others (supra), taking into consideration its earlier judgments, particularly; in the case of Santosh Devi v. National Insurance Company Limited and others [ (2012)6 SCC 421 ], has expressed a view that the conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses etc., the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor due to increase of price index from time to time, the same needs to be increased marginally. 16. Bearing in mind the principle laid down by the Hon'ble Supreme Court in the case of Rajesh and others (supra), and to meet the ends of justice, this Court is of the view that the claimants are entitled for compensation as under:- (i) towards loss of dependency Rs. 3,45,600/- (ii) towards loss of consortium Rs. 80,000/- (iii) towards funeral expenses Rs. 20,000/- Total Rs. 4,45,600/- 17. As such, the total amount awarded to the claimants is to the tune of Rs.4,45,600/- (Rupees Four lacs forty five thousand six hundred only), which is ordered accordingly to be payable to the claimants as directed by the Tribunal in the same apportionment. 80,000/- (iii) towards funeral expenses Rs. 20,000/- Total Rs. 4,45,600/- 17. As such, the total amount awarded to the claimants is to the tune of Rs.4,45,600/- (Rupees Four lacs forty five thousand six hundred only), which is ordered accordingly to be payable to the claimants as directed by the Tribunal in the same apportionment. The enhanced amount of compensation shall be payable to the claimants within 8 weeks from the date of production of a certified copy of this order and in case the enhancement amount is not paid within the period stipulated in this order, the same shall also carry interest at the rate 6% per annum. Rest of the award impugned passed by the Tribunal shall remain intact. 18. With the aforesaid directions, this appeal of the insurance company is dismissed and the cross-appeal of the claimants stands disposed of with the aforesaid direction.