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2018 DIGILAW 1053 (JK)

United India Insurance Co. Ltd. v. Anu Radha

2018-12-31

SINDHU SHARMA

body2018
JUDGMENT : 1. This appeal is under Section 173 of the Motor Vehicles Act, 1988 against the award of the Motor Accidents Claim Tribunal, Kathua in File no. 243/35/CP dated 30.01.2015 titled “Anu Radha and others v. Kuldeep Singh and another”. 2. With the consent of learned counsel for the parties, this appeal is admitted to hearing and taken up for final consideration. 3. Briefly stated the facts of the case are as under:- One, Sudesh Kumar (deceased), was standing at Galak Morh, Tehsil Billawar on the road side along with two other persons waiting for transport to reach his home on 03.07.2010. Before they could board any transport vehicle, the offending vehicle, i.e, Auto Rikshaw No. JK08B-6553, which was driven rashly and negligently, knocked down the deceased besides injuring two other persons standing close by. The offending vehicle was being driven by respondent No.5, who was also its registered owner. The driver was so rash in driving the vehicle that he hit two other persons along with the deceased before the vehicle rolled down in a deep gorge. The deceased, as a result of this accident, sustained multiple injuries and died. The deceased is survived by young widow, two infant children and his widowed mother. 4. The claim petition was filed by them in which the following issues were framed on the basis of the pleadings of the parties. “1. Whether the accident took place on 03.07.2010 at Galk Morh, Tehsil Billawar, District, Kathua due to the rash and negligent driving by driver of the offending vehicle bearing No. JK08B- 6553 respondent No.1 in which deceased Sudesh Kumar died? OPP 2. If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation and from whom? OPP 3. Whether the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident and the vehicle was being plied in violation of the terms and conditions of Insurance Policy? OPR 2 4. Whether the deceased was travelling as a gratuitous passenger in the vehicle at the time of accident? OPR 2 5. Relief? O.P. Parties” 5. The learned Tribunal after appreciating the evidence, awarded Rs.9,40,600/- as compensation and directed the appellant/insurer to pay the compensation to the claimants. This appeal is by the United India Insurance Company limited with whom the owner of the offending vehicle was insured. 6. Mr. OPR 2 5. Relief? O.P. Parties” 5. The learned Tribunal after appreciating the evidence, awarded Rs.9,40,600/- as compensation and directed the appellant/insurer to pay the compensation to the claimants. This appeal is by the United India Insurance Company limited with whom the owner of the offending vehicle was insured. 6. Mr. D.S. Chauhan, learned counsel appearing for the appellant, has urged that the Tribunal has erred in deciding issue No.3 because the driver was not holding a valid and effective driving license at the time of the accident. He has also argued that since the admitted age of the deceased was 32, multiplier of 16 ought to have been applied by the Tribunal in calculating dependency in view of the law laid down by the Hon”ble Apex Court in Sarla Verma and ors. V. Delhi Transport Corporation & anr, reported as (2009) 6 SCC 121 . It is stated that the Tribunal also erred in awarding compensation under the head of loss of love and affection which is not permissible in view of the law laid down by the Hon”ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others, reported as 2017 (16) SCC 680 . Since the finding of the Tribunal on issue Nos. 1, 2 & 4 had not been challenged by the appellant, therefore, it is not necessary to evaluate the evidence. Mr. Chauhan, learned counsel for the appellant has raised an important issue regarding validity of the driving license but this issue is no longer res integra in view of the law laid down by the Hon”ble Supreme Court in Mukund Dewangan v. Oriental Insurance Co. Ltd. reported as (2017) 14 SCC, 663 in which four questions were referred for decision to the larger Bench in view of the conflict in plethora of decisions. These questions are reproduced in para (3) of the judgment, which read as under: “3. Following questions have been referred for decision to the larger Bench: (1) What is the meaning to be given to the definition of “light motor vehicle” as defined in section 2 (21) of the Motor Vehicles Act? Whether transport vehicles are excluded from it? These questions are reproduced in para (3) of the judgment, which read as under: “3. Following questions have been referred for decision to the larger Bench: (1) What is the meaning to be given to the definition of “light motor vehicle” as defined in section 2 (21) of the Motor Vehicles Act? Whether transport vehicles are excluded from it? (2) Whether “transport vehicle” and “omnibus” the “gross vehicle weight” of either of which does not exceed 7,500 kg would be a “light motor vehicle” and also motor car or tractor or a road-roller, “unladen weight” of which does not exceed 7,500 kg and holder of a licence to driver the class of “light motor vehicle” as provided in section 10 (2) (d) would be competent to drive a transport vehicle or omnibus, the “gross vehicle weight” of which does not exceed 7,500 kg or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7,500 kg? (3) What is the effect of the amendment made by virtue of Act 54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10 (2) which contained “medium goods vehicle”, “medium passenger motor vehicle”, “heavy goods vehicle” and “heavy passenger motor vehicle” by “transport vehicle”? Whether insertion of expression “transport vehicle” under section 10 (2) (e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from the purview of sections 10 (2) (d) and 2 (21) of the Act? (4) What is the effect of amendment of Form 4 as to the operation of the provisions contained in section 10 as amended in the year 1994 and whether the procedure to obtain the driving license for transport vehicle of the class of “light motor vehicle” has been changed?” 7. Their lordships answered these questions in para 60.1 to 60.4 in the judgment but for the purposes of present appeal, para 60.1 and 60.2 would suffice and is, thus, extracted below:- “60.1. “Light motor vehicle” as defined in Section 2 (21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994. 60.2. “Light motor vehicle” as defined in Section 2 (21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994. 60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a road roller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2) (d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.” 8. In view of the above, the learned Tribunal was correct in holding that the respondent-driver was having a valid driving license and rightly held that the insured was entitled to be compensated by the appellant. With regard to the next ground of challenge, the Tribunal has found that the deceased was 32 years of age at the time of his death and applied the multiplier of 17 as laid down in case titled Sarla Verma and ors. V. Delhi Transport Corporation & anr, reported as (2009) 6 SCC 121 . 9. Having held that the age of the deceased was 32 years at the time of his death, therefore, the multiplier applicable was 16 and not 17 as per table/para given in 29 of the judgment. Therefore, taking the monthly income of the deceased as Rs.4000/-, as has been assessed by the Tribunal, adding 30% towards the future prospects, deducting 1/4th towards his personal expenses, the monthly loss of dependency would come to Rs. 3900/- ( 4000 + 1200 = 5200 – 1300). Accordingly, annual loss of dependency would come to Rs. 3900 x 12 = Rs.46,800/-. 3900/- ( 4000 + 1200 = 5200 – 1300). Accordingly, annual loss of dependency would come to Rs. 3900 x 12 = Rs.46,800/-. Adopting the multiplier of 16, as has been laid down by the Hon’ble Apex Court in Sarla Verma’s case (supra), the total loss of dependency comes to Rs. 46,800/- x 16 = Rs.7,48,800/-. 10. The Tribunal has also erred in awarding Rs.60,000/- for loss of consortium which is not correct in view of the law laid down by the Hon”ble Apex Court in case titled National Insurance Company Limited v. Pranay Sethi and others, reported as 2017 (16) SCC 680 . Para 59.8 of which reads as under:- “59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 11. So while compensation awarded for loss of consortium is reduced to Rs.40,000/-, which includes love and affection, as such, no separate amount could be awarded for love and affection. Thus, the compensation awarded for loss of estate is enhanced from Rs.10000/- to Rs.15000/-. 12. In view of the above, this appeal is disposed of and the award of the Tribunal is modified and the claimants are held entitled to the following amount of compensation along with interest as has been awarded by the Tribunal, Rs.7,48,800/- on account of loss of dependency, Rs.40,000/- on account of loss of consortium, Rs.15,000/- on account of funeral and other expenses, Rs.15,000/- as loss of estate (total Rs.8,18,800/-) along with interest as awarded by the Tribunal. 13. Registry to release the amount in favour of the claimants in terms of the modified award and the excess amount, if any, shall be refunded to the appellant-Insurance Company. 14. This appeal is disposed of in the above terms.