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Madhya Pradesh High Court · body

2018 DIGILAW 963 (MP)

Priti v. L. G. Academy

2018-11-15

ROHIT ARYA

body2018
ORDER Arya, J.--1. This order shall govern disposal of M.A. No. 3449/2010, M.A. No. 3450/2010 and M.A. No. 3542/2010. Regard being had to the similitude of the controversy involved and the nature of relief claimed in all the appeals, with the consent of parties, they have been heard finally and disposed of by this singular order. For the sake of convenience, the facts in M.A. No. 3449/2010 have been dealt with. The miscellaneous appeal under section 173 of the Motor Vehicles Act, 1988 (for short 'the Act')is directed against the award dated 27.8.2010 passed in Claim Case No. 64/2009 by 16th Additional Member, Motor Accidents Claims Tribunal Indore. The Tribunal has awarded compensation to the claimants to the tune of Rs. 10,81,347/- due to death of deceased Dinesh. However, the insurance company has been absolved for the reason that the offending vehicle; bus bearing registration No. MP 09 8396 of L.G. Academy School did not have valid permit on the date of accident i.e. on 16.4.2009. 2. Facts relevant and necessary for disposal of this appeal lie in narrow compass: on 16.4.2009, deceased while taking his mother on Scooty bearing registration No. MP 09 LC 0993 reached in front of RTO Road, Model Town Colony Gate, hit by School Bus bearing registration No. MP 09 AS 8396 rashly and negligently driven by respondent No. 2, as a result, the deceased (Dinesh Tharot) and his mother had suffered grievous injuries on various parts of the body and during the course of treatment, Dinesh died. 3. Learned counsel for the appellants contends that the Tribunal has committed grave illegality while absolving the insurance company in view of the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma and others, reported in 2004 ACJ 2094 and also in the case of Amrit Paul Singh and Anr. v. TATA AIG General Insurance Co. Ltd. and ors., reported in MACD 2018(3) (SC) 202, wherein it has been ruled that in such cases where though the permit has expired or not in existence on the date of accident, but, if the factum of accident is proved, the insurance company as third party is effected, then direction can be issued to the insurance company to first pay though liability may not be fastened upon the insurance company for the reason of breach of terms and conditions of insurance policy. However insurance company may be directed to pay compen-sation first and then recover the same from the owner of the vehicle. 4. Learned counsel for the appellants also submits that the amount of compensation awarded is on lower side for reasons that future prospects of the deceased have not assessed though it is established on record that the deceased was engaged in the business of selling and buying books and therefore in view of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and others, reported in 2018(I) JLJ 200 (SC)= 2017 ACJ 2700 , the same is required to be assessed. 5. Per contra, learned counsel for the respondent Insurance Company contends that the privity between the insurance company and the insured is regulated by terms and conditions of the insurance policy. Admittedly, the offending bus did not have valid permit as on the date of occurrence of the accident. As such, the violation of express condition in that behalf stipulated in the insurance policy and, therefore, insurance company has rightly been absolved in view of sub-clause (ii) of section 149 of the Motor Vehicles Act. In other words, if insurance company is not liable to pay compensation, it cannot be directed to pay and recover from the owner of the vehicle. 6. As regards the second contention, it is submitted that at the time of passing of award, consideration of future prospects was not available for want of provision under the Motor Vehicle Act or any judicial precedent. Hence, non-award of compensation towards 'future prospects' cannot be faulted with and, therefore, the impugned award is liable to be maintained. 7. Shri Chauhan, learned counsel for the respondents No. 1 and 2, the owner and driver contends that the Tribunal has committed grave illegality on facts having held owner to be liable for payment of compensation. It is submitted that the Tribunal has failed to appreciate that the offending bus was not involved in carrying students at the relevant point of time, instead it was returning back from service center and under section 66(3)(p) of the Act, the liability could not have been fastened upon the owner. Even otherwise, the vehicle was insured and, therefore, insurance company ought to have been held liable to pay compensation. 8. Heard. 9. This Court has carefully perused the record of the Tribunal. Even otherwise, the vehicle was insured and, therefore, insurance company ought to have been held liable to pay compensation. 8. Heard. 9. This Court has carefully perused the record of the Tribunal. The respondents No.1 and 2 though had taken the plea before the Tribunal as referred above, but, failed to substantiate with evidence despite, ample opportunities afforded by the Tribunal. As a result, the Tribunal rejected the contention and held that the offending bus though insured, but, on the date of accident, it was plying without valid permit. This Court sees no reason to interfere with the finding of the Tribunal recorded in that behalf and hereby affirms the same. 10. In the light of the judgments of Supreme Court referred to above (supra), though the findings of the Tribunal that insurance company was exonerated of liability from payment of compensation cannot be faulted with for the reason of violation of condition of insurance policy. Nevertheless, a direction can always be issued to the insurance company to first pay compensation and recover from the owner of the offending vehicle. The Tribunal has failed to do so. Hence, relying upon the aforesaid Hon'ble Supreme Court judgments, this Court hereby directs that insurance company shall first pay the amount of compensation to the claimants and recover the same from the owner of the vehicle. 11. In the light of the judgment of Supreme Court in the case of National Insurance Company Limited (supra), the claimants are held entitled for compensation taking into consideration, 'future prospects' of deceased Dinesh. 12. The Tribunal has not awarded under the head 'future prospects' and other heads. Hence, the amount of compensation has to be awarded under the said heads, keeping in mind the principle laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd (supra), and the fact that the deceased was engaged in the working of selling and buying books and age of the deceased is 27 years, the claimants are entitled for future prospects @ 40% i.e. 4M.A.No. 3449/2010, 3450/2010, 3542/2010 (Rs.6000 x40% = 2,400/-) Rs. 2400+Rs. 6,000= Rs. 8400×12 = 1,00,800/- per annum (after deduction of 1/4 towards personal expenses), it comes to Rs.75,600/-(1,00,800 - 25,200). Hence, the multiplier 17' is appropriate multiplier. The total dependency comes to Rs. 75,600/- x 17 = Rs. 12,85,200/-. 13. 2400+Rs. 6,000= Rs. 8400×12 = 1,00,800/- per annum (after deduction of 1/4 towards personal expenses), it comes to Rs.75,600/-(1,00,800 - 25,200). Hence, the multiplier 17' is appropriate multiplier. The total dependency comes to Rs. 75,600/- x 17 = Rs. 12,85,200/-. 13. The Tribunal has awarded the compensation under the heads as follows : (i) towards loss of dependenc Rs. 9,18,000/- (ii) towards medical expenses Rs. 1,40,347/- Total Rs. 10,81,347/- 14. Bearing in mind the principle laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited (supra), and to meet the ends of justice, the compensation awarded by the Tribunal is substituted and the claimants are entitled for just compensation as follows : (i)         towards loss of dependency Rs.12,85,200/- (ii)        Medical expenses Rs.1,40,347/- (iii)       towards Conventional heads Rs.70,000/- Total Rs. 14,95,547/- 15. As such, the total amount awarded to the claimants is from Rs. 10,81,347 to 14,95,547/- i.e. the enhanced amount comes to Rs. 4,14,200/-(Rupees Four Lacs Fourteen Thousand Two Hundred Only), with interest at the rate as fixed by the Tribunal in the award which is ordered accordingly to be payable to the claimants as directed by the Tribunal in the same apportionment. The enhanced amount of compensation Rs. 4,14,200/- shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact. 16. Appeal filed by the claimants i.e. M.A. No. 3449/2010, the same is allowed to the extent indicated above. 17. Appellants have affixed Court fee of Rs. 30/- and has given undertaking vide I.A. No. 3449/2008 to deposit remaining Court fee on the enhanced value of compensation. 18. Appellants in MA No. 3449/2010 are directed to deposit the remaining amount of Court fee, (if not already paid), on the enhanced amount in accordance with the statue, within four weeks' from today. Thereafter, after verification, the Registry shall issue the certified copy of the order passed today to the appellants. 19. In view of the above, the appeal filed by the mother of deceased i.e. M.A. No. 3450/2010 is allowed to the extent of order passed in MA No.3449/2010. 20. Thereafter, after verification, the Registry shall issue the certified copy of the order passed today to the appellants. 19. In view of the above, the appeal filed by the mother of deceased i.e. M.A. No. 3450/2010 is allowed to the extent of order passed in MA No.3449/2010. 20. So far as the appeal filed by the owner and driver of the offending vehicle i.e. M.A. No. 3542/2010, the same is hereby dismissed for the detailed reasons recorded above as no ground is made out to allow the appeal. 21. A copy of the order be placed in the connected MAs.