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Madhya Pradesh High Court · body

2019 DIGILAW 361 (MP)

Hari Singh v. Daroga Singh

2019-05-03

ANAND PATHAK

body2019
JUDGMENT 1. This appeal under section 173(1) of the Motor Vehicle Act, 1988 is preferred by the appellants/claimants for enhancement of compensation, being aggrieved by award dated 13.1.2012 passed by the VI Motor Accident Claims Tribunal, Gwalior in Claim Case No. 60/2011 whereby, the Claims Tribunal has awarded sum of Rs. 3,51,000/- in all towards compensation for the death of deceased Smt. Urmila Devi to the appellants. In this appeal, the appellants are also seeking direction to fasten the liability of payment of compensation over respondent No. 3 -National Insurance Company Ltd. under 'Pay and Recover' condition as Insurance Company is liable to pay the amount of award and cannot escape the liability. 2. Appellants (hereinafter referred to as the claimants) are family members of the deceased Urmila Devi out of which claimant No. 1 -Hari Singh is her husband and all others are her children. Deceased Urmila was working in K.M.J. Company as Organizer Executive and was doing the job of commission agent in insurance sector. As per the claimants, she was receiving Rs. 10,000/- as commission and was also having income from tailoring work in the name of Sheela Tailoring and receiving Rs. 6,000/- from there. She met with an accident on 6.6.2010 when she was moving in a tractor along with some family members, at that time a bus being driven by respondent No. 1 rashly and negligently caused accident to the said tractor, resulting into death of wife of claimant No. 1. 3. The Claims Tribunal rejected the submission of claimants regarding her income as commission agent or tailor and found the notional income as Rs. 3,000/- and then calculated the compensation accordingly. Besides that, at the relevant point of time, respondent No. 1 (driver of the offending vehicle) did not possess the driving licence and his driving licence was renewed later on. Therefore, the Insurance Company had been exonerated from the liability and liability has been fastened over respondents No. 1 and 2 -driver and owner of the vehicle respectively. Therefore, claimants have preferred this appeal. 4. It is the submission of learned counsel for the claimants in this appeal that the Claims Tribunal erred in coming to the conclusion about income aspect of the deceased Urmila Devi. Therefore, claimants have preferred this appeal. 4. It is the submission of learned counsel for the claimants in this appeal that the Claims Tribunal erred in coming to the conclusion about income aspect of the deceased Urmila Devi. While relying upon the judgment of this Court in the matter of Jagdiesh Prasad Sharma v. Asgarkhan, 2004 (II) MPWN 73 claimants submits that 1/3rd of the income of the husband is to be calculated as the income of the wife. Here, income of the husband was Rs. 17,300/-, therefore, 1/3rd income of the husband come to Rs. 5,766/- which should be treated as the income of the wife. 5. Alternatively, learned counsel for the appellants submits that on dated 6.6.2010 wages of semi-skilled employee was Rs. 4,125/- and therefore, calculation be made accordingly and if calculation is made with that aspect then total compensation would certainly go upward. Claims Tribunal erred in treating the income to be Rs. 3,000/- per month which is on lower side and caused illegality. It is further submitted that as per the judgment of Hon'ble apex Court in the case of Francisca Luiza Rocha and others v. K. Valarmathi and others, 2018 ACJ 1430 as well as Pappu and others v. Vinod Kumar Lamba and another, (2018) 3 SCC 208 , if driver does not hold a valid driving licence on the date of accident then it does not constitute fundamental breach of policy and therefore, Insurance Company has to satisfy the award and then recover the amount from the owner of the vehicle. 6. On the other hand, learned counsel for respondent No. 3 -Insurance Company opposed the prayer and prayed for dismissal of appeal. According to learned counsel, Insurance Company was rightly exonerated by the Claims Tribunal. He relied upon the judgment of National Insurance Co. Ltd. v. Vidhyadhar Mahariwala and others, 2008 ACJ 2860 and Ishwar Chand v. Oriental Insurance Co. Ltd. and others, 2007 ACJ 1067 . Learned counsel for the Insurance Company also relied upon the judgment in the case of National Insurance Co. Ltd. v. Swarn Singh and others, 2004 ACJ 1 to submit that the Insurance Company can be exonerated from the liability. Ltd. and others, 2007 ACJ 1067 . Learned counsel for the Insurance Company also relied upon the judgment in the case of National Insurance Co. Ltd. v. Swarn Singh and others, 2004 ACJ 1 to submit that the Insurance Company can be exonerated from the liability. Alternatively, it is submitted that in order to protect interest of Insurance Company, direction for furnishing security by the owner and driver of the offending vehicle prior to disbursement of the amount to the claimants be issued. He further relied upon the Oriental Insurance Co. Ltd. v. Nanjappan, 2004 ACJ 721 , National Insurance Co. Ltd. v. Kusum Rai, 2006 ACJ 1336 and Manager National Insurance Co. Ltd. v. Saju P. Paul and another, (2013) 2 SCC 41 . It is further submitted that so far as the income is concerned, the Claims Tribunal rightly considered the notional income as Rs. 3,000/- and claimants could not prove that the deceased was earning regular income through tailoring or through commission agency. Therefore, the Claims Tribunal rightly treated the notional income of the deceased as Rs. 3,000/-. 7. Heard learned counsel for the parties and perused the record. 8. So far as applicability of liability is concerned although several judgments from time to time has been passed by the Hon'ble apex Court in this regard. The Hon'ble apex Court in the case of Francisca Luiza Rocha and others (supra), while considering the decision of the Hon'ble apex Court in the case of Swarn Singh (supra), as well as considering the case where driver of the vehicle does not have valid driving licence on the date of accident as validity of the same had expired, concluded that Insurance Company is liable to satisfy the award and thereafter seek recovery from the owner of the vehicle. 9. 9. Said law would be applicable in the present fact situation of the case wherein the driver of the offending vehicle although earlier had driving licence as reflected in the discussion in the award dated 13.1.2012 but while deciding issues No. 3 and 4 (in paras 14 to 20) held that at the relevant point of time on 6.6.2010, driver did not have licence as his licence was earlier expired as his earlier driving licence was issued on 7.9.1999 and was valid upto 12.9.2009 and thereafter from 13.9.2009 to 5.8.2010 driving licence was not valid but later on renewed w.e.f. 6.8.2010 to 5.8.2013, therefore, his driving licenc was not in effect at the relevant point of time but considering that aspect and relying upon the judgment rendered by the Hon'ble apex Court in the case of Francisca Luiza Rocha and others, this Court concludes that the Insurance Company shall have to satisfy the award, thereafter seek recovery from owner of the vehicle i.e. respondent No. 2 -Yogendra Singh. 10. So far as income part is concerned, this Court gave its anxious consideration over the evidence adduced by the parties and in respect of the said aspect by the Claims Tribunal. From the evidence led by the parties, it appears that the claimants could not prove their case about receiving regular commission from the agency (as commission agent) and income from tailoring. No cogent evidence has been produced by the claimants to establish this fact. Deceased Urmila Devi received education upto class -VII, therefore, her job as commission agent becomes doubtful and therefore, the Claims Tribunal rightly rejected the contention so far as the income through commission agency is concerned. Income from tailoring has also been disbelieved by the Claims Tribunal and rightly so because the claimants could not produce any cogent documents in this regard. Therefore, this Court after due consideration held that income tried to be established by the claimant deserves rejection and the Claims Tribunal rightly discarded the said aspect. 11. So far as notional income of Rs. 3,000/- is concerned as deceased was aged 41 years and therefore, she had capacity to work. Therefore, this Court after due consideration held that income tried to be established by the claimant deserves rejection and the Claims Tribunal rightly discarded the said aspect. 11. So far as notional income of Rs. 3,000/- is concerned as deceased was aged 41 years and therefore, she had capacity to work. Considering the said aspect while applying the multiplier as laid down by the Hon'ble apex Court in the case of Sarla Verma v. Delhi State Road Transport Corporation, 2009 ACJ 1298 , this Court comes to the conclusion that multiplier of 14 would be applicable in the case where deceased received monthly income of Rs. 3,000/- with dependency of 1/3rd. 12. Having gone through the evidence adduced by the claimants and after taking into consideration all the evidence on record, the amount awarded by the Tribunal appears to be on the lower side which deserves to be enhanced. From the above discussion, this Court comes to the conclusion that the Claims Tribunal did not err in assessing the income of the deceased as Rs. 3,000/-. Therefore, income of the deceased is assessed at Rs. 36,000/- annually (Rs. 3,000/- per month) and by assessing the same as annual income of the deceased and deducting 1/3rd towards personal expenses (Rs. 12,000/-) and applying the multiplier of 14, the loss of dependency comes to Rs. 3,36,000/- (Rs. 24000x14=Rs. 3,36,000/-) over which 40% should be granted to the claimants under the head of future prospects (Rs. 1,34,400-) thus total dependency comes to Rs. 4,70,400/-. Further the amount awarded under other heads like loss of estate Rs. 5,000/-, funeral expenses Rs. 5,000/- and loss of consortium Rs. 5,000/- are on lower side and according to the judgment of National Insurance Co. Ltd. v. Pranay Sethi and others, 2018 (I) JLJ 200 (SC)= 2017 ACJ 2700 under the other heads Rs. 70,000/- should be awarded to the claimants. Thus, total compensation comes to Rs. 5,40,400/- along with interest at the rate of 7% per annum from the date of application. Thus, the appellants are entitled for Rs. 5,40,400/- instead of Rs. 3,51,000/-. The enhanced amount of Rs. 1,89,400/- shall carry interest @ 7% p.a. 13. In view of the forgoing discussions, the appeal succeeds and is hereby allowed. The appellants are held entitled to receive the enhanced amount of Rs. 1,89,400/- in addition to the amount of compensation already awarded by the Claims Tribunal. 5,40,400/- instead of Rs. 3,51,000/-. The enhanced amount of Rs. 1,89,400/- shall carry interest @ 7% p.a. 13. In view of the forgoing discussions, the appeal succeeds and is hereby allowed. The appellants are held entitled to receive the enhanced amount of Rs. 1,89,400/- in addition to the amount of compensation already awarded by the Claims Tribunal. Respondent No. 3/Insurance Company is directed to make the payment of enhanced and already awarded amount to appellants/claimants within a period of three months from today. The aforesaid awarded amount shall carry interest at the rate of 7% per annum. Rest of the conditions as imposed by Claims Tribunal shall remain intact. 14. It is made clear that Insurance Company shall pay the amount of compensation to the claimants and thereafter would recover the same from the owner of the vehicle. 15. The instant appeal is allowed, accordingly. In the facts of the case, parties are directed to bear their own costs.