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2019 DIGILAW 568 (ORI)

Prakash Kumar Patnaik v. Ghasiram Sahu

2019-09-09

KRUSHNA RAM MOHAPATRA

body2019
ORDER : KRUSHNA RAM MOHAPATRA, J. 1. This appeal has been filed by under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') assailing the judgment and award dated 02.09.1995 passed by the 2nd Motor Accident Claims Tribunal (Nothern Division), Sambalpur (for short 'the Tribunal') in M (J) Case No. 23 of 1989 (8), whereby the Tribunal awarded a compensation of Rs.57,600/- in favour of the claimants-appellants along with 10% interest per annum from the date of filing of the petition, i.e., 29.03.1989 till its realization holding the respondent no. 2-Insurance Company liable to pay Rs.15,000/-, and directed rest of the amount to be recovered from the owner of the vehicle-respondent no. 1. This appeal has been filed both for enhancement of compensation and also to make the Insurance Company liable to pay the entire compensation amount along with interest. 2. Heard Mr. H.S. Mishra, learned counsel for the Claimants-Appellants and Mr. G.P. Dutta, learned counsel for respondent no. 2-Insurance Company. 3. Short narration of facts as revealed from the impugned judgment and relevant for proper adjudication of the case is that on 30.06.1983, the deceased, namely, Bijay Kumar Pattnaik boarded a Trekker bearing Registration No. ORR-3662 at Bolangir to go to Burla. On its way to Burla near village Rampur, due to a sudden jerk, the Trekker capsized to its right. The deceased was thrown out and sustained injuries on his person. Subsequently, he was removed to hospital where the doctor declared him dead. The Trekker was insured with the Oriental Insurance Company-respondent no. 2. Thus, the dependants of the deceased filed petition claiming compensation of Rs.1.40 lakh Pursuant to the notice, one Aruni Kumar Sahoo, filed written statement stating that he was the owner of the vehicle, i.e., the Trekker bearing Registration No. ORR-3662. The respondent no. 1, namely, Ghasiram Sahu was not the owner of the vehicle. He had no knowledge about the alleged accident. He, however, contended in his written statement as follows:- "(3) That, the said vehicle was duly insured as stated in the claim petition with comprehensive risks and the Insurance was valid on the alleged date and time of the accident (4) That, this owner has absolutely no liability but the Insurance Company, the opposite party no. 2 is fully liable for the compensation, if any." 4. The respondent no. 2-Insurance Company (opposite party no. 2 is fully liable for the compensation, if any." 4. The respondent no. 2-Insurance Company (opposite party no. 2 before the Tribunal) filed its written statement contending that no document having been filed with regard to coverage or issuance of insurance policy in the name of the owner of the Trekker, namely, Ghasiram Sahu, it is not in a position to make any comment to that effect. As it appears from the impugned award that the learned counsel for the Insurance Company at the time of argument, raised a plea that although the vehicle, i.e., the Trekker was issued with an insurance policy covering the date of accident, its liability was limited, as no premium was paid to cover unlimited liability of the owner. Learned Tribunal, however, considering the materials, passed the impugned award. 5. Mr. Mishra, learned counsel for the claimants-appellants vehemently argued that although the Trekker was issued with a valid insurance policy covering the date of accident, no document to that effect has been filed either by the owner or by the Insurance Company A specific plea was taken by the owner of the vehicle in its written statement to the effect that a comprehensive insurance policy was issued in respect of the Trekker covering the date of accident, the owner is not liable to pay the compensation and it is to be fully indemnified by the Insurance Company. But, the Insurance Company has neither filed any document to the contrary nor it denied such plea specifically in its written statement. Learned Tribunal, however, taking into consideration an incomplete copy of the insurance policy, which was filed along with the written notes of arguments after the argument in the case was over, passed the impugned award limiting the liability of Insurance Company to Rs.15,000/- only. He further submitted that the learned Tribunal has committed serious error in assessing the income of the deceased and applying the multiplier 12 to the case at hand although the deceased was only 42 years old at the time of his death as revealed from the PM report Ext. 3. He therefore, prayed for enhancement of the compensation and making the Insurance Company liable to indemnify the entire compensation. No compensation for non-pecuniary losses was also granted. 3. He therefore, prayed for enhancement of the compensation and making the Insurance Company liable to indemnify the entire compensation. No compensation for non-pecuniary losses was also granted. In the above regard, he relied upon the decision in the case of Akhaya Kumar Sahoo vs Chhabirani Seth and Anr., reported in 1991 (1) ACJ 468 (Orissa). 6. Mr. G.P. Dutta, learned counsel for respondent no. 2-Insurance Company contended that the Trekker was in fact issued with an insurance policy covering the date of accident by the respondent no. 2. But Rs.108/- was only paid for nine persons at the rate of Rs.9/- from each of the passengers to cover the risk and liability of the passengers upto Rs.15,000/-. No extra premium was paid to cover the unlimited liability. Thus, the Tribunal has rightly held that the liability of the Insurance Company cannot be more than Rs.15,000/-. He further submitted that onus is on the claimants to prove that the vehicle (Trekker) was covered under a comprehensive insurance policy on the date of accident to make to Insurance Company liable to pay the entire compensation. Since no such document was filed either by the Claimants or by the owner of the vehicle, the Insurance Company is not liable to pay compensation more than Rs.15,000/-. In support of his case, he relied upon a decision in the case of New India Assurance Company Ltd. Vs. Smt. Shanti Bai and others, reported in 1995 (1) TAC 659 (SC), in paragraph-9, relevant paragraph of which reads as follows:- "9. In the present case, the premium which has been paid is at the rate of Rs.12/- per passenger and is clearly referable to the statutory liability of fifteen thousand rupees per passenger under Section 95(2)(b)(ii) of the Motor Vehicles Act, 1939. In the present case, there is no special contract between the appellant-company and respondent no. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by this Court in the case of National Insurance Co. 4 to cover unlimited liability in respect of an accident to a passenger. In the absence of such an express agreement, the policy covers only the statutory liability. The mere fact that the insurance policy is a comprehensive policy will not help the respondents in any manner. As pointed out by this Court in the case of National Insurance Co. Ltd. v. Jugal Kishore & Ors., (supra) comprehensive policy only entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle. It does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. For this purpose, a specific agreement is necessary which is absent in the present case. Reference in this connection may also be made to the case of M.K. Kunhimohammed v. P.A. Ahmedkutty & Ors., ( 1987 (3) SCR 1149 ). The appellant-company is, therefore, entitled to succeed to the extent that it has been directed to pay to respondents 1 to 3 any amount in excess of Rs.15,000/-." He further relied upon a Division Bench decision of this Court in the case of National Insurance Company Ltd. Vs. Prasanna Kumar Mitra and others, reported in 1993 (II) OLR 11 , paragraph-7 of which is quoted below. "7. The liability initially is that of the person who is responsible for the accident. To get indemnification of any compensation which may become payable, the owner, who is also described as the insured, enters into an agreement with any insurance company like the appellant in the instant case, which for a premium undertakes to indemnity any liability that may be fastened on an insured. The insurance "policy is the basic document from which the intention of the insured and the insurer is gathered. It shows the extent of liability of the insurer. The old Act and the Motor Vehicles Act, 1988 (herein-after referred to as the 'new Act') mandate insurance, and prescribe the requirements of policies, the limits of liabilities and the duty of the insurer to satisfy judgments against persons insured in respect of third party risks. Sections 94, 95 and 96 of the old Act and Sections 147, 148 and 149 of the new act deal with these aspects. Sections 94, 95 and 96 of the old Act and Sections 147, 148 and 149 of the new act deal with these aspects. Since the liability is originally that of the insured, it has no place materials before the adjudicating Tribunal to show what is the quantum of indemnification undertaken by the insurer. The claimants are not expected to possess the policy or a copy thereof and the owners for the reasons best known to them do not choose to produce the policies. The Supreme Court in Jugal Kishore's case (supra) emphasized on the desirability of production of a document which is in possession of a party for an effective adjudication. In that background it was observed that the insurance company concerned should file a copy of the insurance policy along with its defence where it wants to take a defence in respect of a claim petition, that its liability is not in excess of the statutory liability. In Udayanath Pani v. Basanti Dalai and Ors., (1991) 72 CLT 495 , one of us (Pasayat, J.) observed that it cannot be laid down as a general principle that in all cases the insurer is required to file a copy of the policy to show that its liability is not unlimited. Such a situation will arise only when there is a positive assertion that the liability of the insurer is unlimited and claim to that effect is made. Only in such cases the question of the insurer taking a defence that its liability is not unlimited arises. The view expressed in Udayanath Pain's case (supra) was approved by us in Fagilal Sinha v. Divisional Manager, Oriental Insurance Company Limited and Ors. (AHO No. 97 of 1991 disposed of on 27-3-1992)." He, therefore, prayed for dismissal of the appeal. 7. Before adverting to the rival contentions raised by learned counsel for the parties it must be made clear that the Insurance Company has not filed any Cross Objection to the appeal. 8. On perusal of the impugned award, it reveals that the Insurance Company has not filed any document to show its limited liability at the time of trial of the case. 8. On perusal of the impugned award, it reveals that the Insurance Company has not filed any document to show its limited liability at the time of trial of the case. It however, reveals from the impugned award that probably a copy of the insurance policy was filed at the time of the argument, which was taken into consideration by the Tribunal, without admitting it in evidence and giving opportunity to the claimants to adduce rebuttal evidence, if any. From the evidence on records it appears that no such specific suggestion with regard to its limited liability was given to witnesses of the claimants. On such backdrop, argument advanced by the learned counsel for the parties is to be scrutinized. In the decision in the case of Prasanna Kumar Mitra (supra), this Court has categorically held that when the owner of the vehicle takes a plea that the liability of the insurer is unlimited and the Insurance Company denies the same and takes a plea that its liability is limited, the insurer has to produce the policy to prove it. On perusal of the written statement filed by the Insurance Company although it appears that a plea was taken to the effect that no such policy was issued in favour of the owner of the vehicle, namely, Ghasiram Sahu, but subsequently in course of argument, learned counsel for the insurance Company admitted that the policy covering the date of accident was issued in respect of the Trekker It is, however, not known as to why such policy was not produced at the time of trial of the claim case. Had it been filed at the time of trial of the case claimants-appellants would have got an opportunity to file rebuttal evidence. In Prasanna Kumar Mitra(supra), it is very much clear that when a plea is taken by the insurer to the effect that the liability of the Insurance Company is limited, it is the duty of the Insurance Company to produce such insurance policy. No such document having been produced, it is very difficult to accept the plea of Mr. Dutta to the effect that the liability of the Insurance Company is limited to Rs.15,000/- per passenger. Judicial notice of another important aspect can be taken. No such document having been produced, it is very difficult to accept the plea of Mr. Dutta to the effect that the liability of the Insurance Company is limited to Rs.15,000/- per passenger. Judicial notice of another important aspect can be taken. Although it is the main plea of the Insurance Company that its liability is limited to the extent of Rs.15,000/- per passenger, but no such plea was taken in its written statement originally. But, subsequently there was hand-written incorporation of such a plea at para-17 of the written statement. On verification of record, it is found that no prayer made or permission granted for incorporation of such plea, which creates a doubt with regard to the conduct of the Insurance Company, more particularly when the subsequent hand-written insertion in para-17 of the written statement of the Insurance Company is not in sequence with the earlier typed out portion of such paragraph. Thus, in absence of any materials to the contrary, I am of the considered opinion that respondent no. 2-Insurance Company is liable to indemnify the respondent no 1-owner in full. 9. The next question arises as to what would be the just compensation. As is revealed from the case record that monthly income of the deceased at the time of his death was Rs. 520/- and he was only 42 years 5 months and 25 days old at the time of his death, as revealed from his service particulars (Ext. 6). In the case of Sarla Verma Vs. DTC, reported in (2009) 6 SCC 121 , which has been subsequently approved by a Constitution Bench judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 , wherein it has been held as follows:- "30. 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 [ (1996) 4 SCC 362 ], the general practice is to apply standardized deductions. Pranay Sethi and others, reported in (2017) 16 SCC 680 , wherein it has been held as follows:- "30. 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 [ (1996) 4 SCC 362 ], the general practice is to apply standardized 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." Thus, looking at the size of the family of the deceased, who died leaving behind his widow, two minor sons and two minor daughters, 1/4th of his income should be deducted towards personal expenses, which come to Rs.130/-. 10. Further, in the case of Sarla Verma(supra) in paragraph-42, the Hon'ble Supreme Court held as follows:- "42. 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 [ (1994) 2 SCC 176 : 1994 SCC (Cri) 335], Trilok Chandra [ (1996) 4 SCC 362 ] and Charlie [ (2005)10 SCC 720 : 2005 SCC (Cri) 1657)], 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." The same has been approved in the case of Constitution Bench judgment in the case of Pranay Sethi (supra) The deceased being in the age group of 41-45 years, multiplier 14 is applicable to the case at hand. As such, the dependency would be (Rs.520-Rs.130) = Rs.390 x 12 x 14 = Rs.66,520/-. 11. As such, the dependency would be (Rs.520-Rs.130) = Rs.390 x 12 x 14 = Rs.66,520/-. 11. In addition to the above, the claimants are also entitled for compensation on the heading of non-pecuniary damage. In the case of Pranay Sethi (supra), wherein the Hon'ble Supreme Court at paragraph-49 held as follows:- "49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows: "3. General damages (in case of death)- The following general damages shall be payable in addition to compensation outlined above: (i) Funeral expenses Rs.2,000 (ii) Loss of consortium, if beneficiary is the spouse Rs.5,000 (iii) Loss of estate Rs.2,500 (iv) Medical expenses — actual expenses incurred before death supported by bills/ vouchers but not exceeding Rs.15,000 Thus, the claimants are entitled to funeral expenses to the tune of Rs.2,000/-, loss of consortium of Rs.5,000/-, loss of estate Rs.2,500/- and expenses towards carrying body etc. Rs.5,000/-. 12. In Pranay Sethi (supra), the Hon'ble Supreme Court has led down the following guidelines for determination of future prospects, which is as follows:- "57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree -test has to have the inbuilt concept of percentage. 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% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable." 13. Taking into consideration the fact that the deceased was working as a male nurse in the District Headquarters Hospital, Bolangir and was drawing a salary of Rs.20/- per month (Ext. 6), he is entitled to another 40% of his income towards future prospects. Thus, claimants are entitled to another Rs.26,208/- towards future prospects. Thus, the claimant would be entitled to compensation in the following manner (i) Compensation for death Rs.65,850.00 (ii) Loss of future prospects Rs.26,208.00 (iii) None pecuniary loss Rs.14,500.00 Total Rs.1,06,228.00 To sum up, it is directed that the respondent no. 2-Insurance Company shall deposit the aforesaid compensation amount, i.e., Rs.1,06,228/- (Rupees One lakh six thousand two hundred twenty eight only) along with interest as awarded by learned Tribunal, within a period of eight weeks hence and it shall be released in favour of the claimants on proper identification and on payment of proper fee. 14. With the aforesaid modification in the impugned award the appeal is disposed of. Issue urgent certified copy of the order on proper application.