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Rajasthan High Court · body

2019 DIGILAW 1637 (RAJ)

Kamlesh v. Omkar

2019-05-23

SABINA

body2019
JUDGMENT Sabina, J. - Vide this order above-mentioned two appeals would be disposed of as they have arisen out of common award dated 14.8.2012 passed by the Motor Accidents Claims Tribunal. 2. Claimants had filed the claim petition under section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of death of Satyaveer in the motor vehicle accident which had occurred on 21.4.2009. 3. Vide award dated 14.8.2012, Tribunal has allowed the claim petition and has granted compensation to the tune of Rs. 4,64,000 to the claimants. Hence, claimants have filed the appeal seeking enhancement of compensation amount, whereas the owner/driver of the offending vehicle have filed the appeal praying that the insurance company should be held liable to indemnify the insured. 4. Learned counsel for the claimants has submitted that the Tribunal has failed to grant compensation to the claimants towards loss of future prospects of the deceased. Learned counsel has further submitted that the insurance company was liable to indemnify the insured as the deceased was working as a conductor on the offending vehicle at the time of accident. In support of his arguments, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) ACJ 2700 (SC), wherein it was held as under: "(39) Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, (2009) ACJ 1298 (SC); Reshma Kumari, (2013) ACJ 1253 (SC); Rajesh, (2013) ACJ 1403 (SC) and Munna Lal Jain, (2015) ACJ 1985 (SC). Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paras 14 and 15, Sarla Verma (supra) lays down: '(14) Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. (15) Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally 50 per cent is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50 per cent would be treated as the personal and living expenses of the bachelor and 50 per cent as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.' ********** (44) As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 9 of Sarla Verma read with para 21 of the said judgment. For the sake of completeness, para 21 is extracted below: '(21) We, therefore, hold that the multiplier to be used should be as mentioned in column 4 of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.' ********** (59) Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40 per cent of the established income of the deceased towards future prospects where the deceased was below 40 years and an addition of 25 per cent where the deceased was between the age of 40 and 50 years would be reasonable. ********** (61) In view of the aforesaid analysis, we proceed to record our conclusions: (i) The two-Judge Bench in Santosh Devi, (2012) ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh, (2013) ACJ 1403 (SC), has not taken note of the decision in Reshma Kumari, 2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. (iii) While determining the income, an addition of 50 per cent of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30 per cent if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15 per cent. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 per cent where the deceased was between the age of 40 and 50 years and 10 per cent where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand and deduction towards personal and living expenses, the Tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma, 2009 ACJ 1298 (SC), which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment. (vii) Age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures under 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 per cent in every three years." 5. Learned counsel for the owner/driver of the offending vehicle has submitted that the insurance company was liable to indemnify the insured. 6. Learned counsel for the insurance company has opposed the appeal and has submitted that the deceased was travelling as a passenger in a goods vehicle. Hence, the insurance company was not liable to indemnify the insured. Learned counsel has further submitted that the owner of the vehicle in question in his reply has denied the fact that the deceased was working as a conductor on his vehicle. Hence, the insurance company was not liable to indemnify the insured. Learned counsel has further submitted that the owner of the vehicle in question in his reply has denied the fact that the deceased was working as a conductor on his vehicle. When the owner of the vehicle appeared in the witness-box, no question was put to him with regard to the employment of the deceased with him. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Bommithi Subbhayamma, (2005) ACJ 721 (SC), wherein it was held as under: "(6) In Asha Rani, (2003) ACJ 1 (SC), this court while overruling Satpal Singh, 2000 ACJ 1 (SC), has clearly held that the insurance company is not liable for payment of any compensation for death of a gratuitous passenger travelling in a goods vehicle." 7. Learned counsel has next placed reliance on the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. v. Ajit Kumar, (2003) ACJ 1931 (SC), wherein it was held as under: "(10) Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to section 147 needs to be juxtaposed with section 95 of the old Act. Proviso to section 147 of the Act reads as follows: '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 other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in 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 conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.' It is of significance that proviso appended to section 95 of the old Act contained clause (ii) which does not find place in the new Act. The same reads as follows: '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 from the vehicle at the time of the occurrence of the event out of which a claim arises.' The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage', i.e., solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicles and employees carried in goods vehicles would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act'). There is no reference to any passenger in 'goods carriage'. (11) The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor." 8. Deceased was aged about 35 years at the time of accident. Hence, learned Tribunal has rightly applied the multiplier of 16 to work out the amount of compensation. 9. Admittedly, there was no documentary evidence on record with regard to the income of the deceased. Hence, the same is liable to be taken as Rs. 3,000 per month in view of the minimum wages fixed by the State from time to time. 10. 9. Admittedly, there was no documentary evidence on record with regard to the income of the deceased. Hence, the same is liable to be taken as Rs. 3,000 per month in view of the minimum wages fixed by the State from time to time. 10. Keeping in view the number of claimants, learned Tribunal has rightly deducted 1/4th out of the income of the deceased towards his personal expenses and has rightly calculated the compensation amount by applying the multiplier of 16 to the tune of Rs. 4,32,000 (Rs. 2,250 x 12 x 16). Claimants would be further entitled to receive an addition of 40 per cent of the said amount towards loss of future earnings/prospects of the deceased and the said amount comes to Rs. 1,72,800. Claimants would be further entitled to receive Rs. 40,000 towards loss of consortium and Rs. 15,000 towards funeral expenses. 11. Thus, the claimants would be entitled to receive, in all, Rs. 4,32,000 + Rs. 1,72,800 + Rs. 40,000 + Rs. 15,000 = Rs. 6,59,800 by way of compensation. 12. The next question that requires consideration is as to whether the insurance company is liable to indemnify the insured or not. 13. It is the case of the claimants that the deceased Satyaveer was working as a conductor on the offending vehicle, which was owned by Dhanpat Singh. Owner and driver of the offending vehicle in their written statements had denied the said fact and had denied the factum of accident. 14. Aw 1 Kamlesh while appearing in the witness-box has deposed in her examination-in-chief that her husband Satyaveer was working as a conductor on the vehicle bearing registration No. RJ 02-GA 0048 and was getting a salary of Rs. 4,500 per month. The said witness was crossexamined by the counsel for the insurance company and she reiterated that her husband was working as a conductor on the vehicle owned by Dhanpat Singh. Owner of the offending vehicle had not questioned AW 1 Kamlesh in her cross-examination to the effect that the deceased was not working on his vehicle as a conductor. 15. Owner of the offending vehicle appeared in the witness-box as NAW 1. The said witness did not depose in his examination-in-chief that the deceased was not working as a conductor on his vehicle. 16. 15. Owner of the offending vehicle appeared in the witness-box as NAW 1. The said witness did not depose in his examination-in-chief that the deceased was not working as a conductor on his vehicle. 16. In this factual scenario, claimants had been successful in establishing that the deceased was working as a conductor on the offending vehicle. In this regard, AW 1 Kamlesh had withstood the test of cross-examination and her statement inspires confidence. Hence, the deceased could not be said to be travelling in the vehicle in question as a passenger. Thus, it can be said that there was no violation of the terms and conditions of the insurance policy issued by the insurance company in favour of the owner of the offending vehicle. 17. Accordingly, finding of the Tribunal on issue No. 5 is reversed and the said issue is decided against the insurance company. 18. Accordingly, both the appeals are allowed. Impugned award dated 14.8.2012 is modified to the extent that the claimants would be entitled to receive Rs. 6,59,800 by way of compensation instead of Rs. 4,64,000 awarded by the Tribunal. The remaining terms and conditions of the award shall remain unchanged. It is ordered that the owner and driver of the offending vehicle as well as the insurance company shall be jointly and severally liable to pay the amount of compensation to the claimants. It is further ordered that the share of enhanced amount of compensation of the claimants be invested in separate fixed deposit receipts with some nationalised bank, initially for a period of three years and the interest accrued on the deposit shall be paid to them on monthly basis. Secretary, District Legal Services Authority, Alwar in the interest of the claimants shall invest the amount in fixed deposit receipts in the name of the claimants in some nationalised bank. The Secretary, District Legal Services Authority, Alwar shall further apprise the claimants with regard to the amount which has been granted to them by way of enhancement and the fact that the enhanced amount of compensation shall be invested in fixed deposit receipts in some nationalised bank for their benefit.