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Madhya Pradesh High Court · body

2019 DIGILAW 707 (MP)

National Insurance Company Ltd. v. Saroj Shukla

2019-10-01

J.P.GUPTA

body2019
JUDGMENT 1. This miscellaneous appeal under section 173 (1) of the Motor Vehicles Act, 1988 has been filed by the appellant/against the award dated 7.8.2008 passed by II Additional Motor Accident Claims Tribunal, Sidhi in MVC No. 21/2008 whereby accepting the claim filed by the respondents No. 1 to 4 with regard to death of Devendra who was aged 36 years and husband of respondent No. 1 and father of respondent No. 2 to 4 (who were minor children), directed the appellant/Insurance Co., respondent No. 5/driver and respondent No. 6/owner of the bus No. MP.53- A/0125 to pay Rs. 6,47,000/- as compensation jointly and severally. 2. Facts giving rise to this appeal in brief are that on 27.4.2006 nearabout 11 a.m., deceased Devendra Shukla was travelling in Bus No. MP 53-A/0125 and near village Kham Police Station Majholi district Sidhi, driver/respondent No. 1 suddenly applied brakes. On account of this, the door of the bus was opened and deceased Devendra, who was sitting on a seat near the gate, fell down from the bus and came under a wheel of the bus due to which he died on the spot. Information of the incident was given at Police Station Majholi where Crime No. 74/06 under section 304A of IPC was registered and the charge-sheet was filed against the respondent No. 5. Thereafter on 5.9.2006 claim petition under section 166 of Motor Vehicles Act was filed before the Claims Tribunal alleging that the aforesaid incident had taken place on account of rash and negligent driving by respondent No. 5. At the time of death, the deceased was 36 years old and was working as Conductor in another bus and was earning Rs. 4000/- per month and in addition Rs. 50/- per day as allowance. The claimants/ respondent No. 1 to 4 are dependent on the deceased and the deceased used to spend 2/3rd earning on them. Respondent No. 1 being the wife deprived of consortium of the deceased and other respondents being minor children, they claimed compensation to the tune of Rs. 7,11,000/-. 3. In the reply filed on behalf of the respondents No. 5 and 6, it is submitted that the incident had taken place on account of negligent act of the deceased, as he had consumed liquor and was standing close to the door of the bus. Therefore, he fell down from the bus when the door was opened. 7,11,000/-. 3. In the reply filed on behalf of the respondents No. 5 and 6, it is submitted that the incident had taken place on account of negligent act of the deceased, as he had consumed liquor and was standing close to the door of the bus. Therefore, he fell down from the bus when the door was opened. At the time of the incident the vehicle was insured by the appellant Co. Therefore, if any liability of compensation is fastened, the appellant is liable to pay the same. 4. On behalf of the appellant, it is submitted that on account of negligent act of the deceased, the incident had taken place and the Insurance Company is not liable to pay any amount as the vehicle was driven in breach of the condition of the Insurance policy. 5. Learned Claims Tribunal after trial found that the death of Devendra had taken place on account of rash and negligent driving by the driver of the bus. At the time of incident, the age of the deceased was 36 years and he was earning Rs. 5,500/- per month and used to spend 2/3rd amount on the claimants/dependants. Considering the loss of dependency Rs. 40,000/- per annum and applying the multiplier of 16 determined Rs. 6,40,000/- as loss of dependency and further considered loss of consortium Rs. 5000/- and for funeral expenses Rs. 2000/-. Total amount Rs. 6,47,000/- was determined as compensation amount and directed to pay the same with 6% interest from 5.9.2006 till the date of realisation. 6. The appellant Insurance Company has filed this appeal assailng the aforesaid award on the ground that the learned Tribunal has failed to consider the fact that the deceased himself was negligent. He should have been more careful while standing near the door of the bus. Therefore, the deceased is also responsible for the incident. In such circumstances, the claimants who are heirs of the deceased are entitled to get claim only to some extent. It is further submitted that the driver was responsible for the incident. In other words, the incident had taken place due to contributory negligence of the deceased and the driver. Therefore, only 50% amount ought to be fastened on the driver or owner and the Insurance Company, despite fastening the entire responsibility on them. Apart from it, the compensation is determined at a higher side. In other words, the incident had taken place due to contributory negligence of the deceased and the driver. Therefore, only 50% amount ought to be fastened on the driver or owner and the Insurance Company, despite fastening the entire responsibility on them. Apart from it, the compensation is determined at a higher side. The age of the deceased was more than 36 years. Therefore, multiplier of 14 ought to have been applied in place of multiplier of 16. Accordingly, the award be modified. So far as Respondents No. 5 and 6 are concerned, despite of notice they remained absent. Hence, against them this case has been proceeded ex parte. 7. On behalf of respondents No. 1 to 4 it is submitted that the award is in accordance with law and no interference is required. There is no evidence on record to show that there was contributory negligence on the part of the deceased. 8. Having considered the contention of the learned counsel for the parties and on perusal of the record. It is found that the objection of the appellant/Insurance Company that the incident had taken place on account of contributory negligence of the deceased has no substance as there is no evidence on record to establish contributory negligence on the part of the deceased. On behalf of respondents No. 5 and 6 it was pleaded that the deceased was in a drunken condition and standing near the door of the bus; but, there is no evidence on record to establish the aforesaid fact. Respondent No. 5/driver did not come in the witness box to establish the circumstances in which the incident had taken place. Even if it is assumed that the deceased was in a drunken condition or was standing near the door of the bus, it cannot be said that he is also liable for the incident. The facts of the incident show that as soon as the driver applied brakes, suddenly, door of the bus got opened without intervention of any other person, which means that the lock of the door was not in proper condition and if the bus was driven by the driver despite of the aforesaid condition of the bus, the driver will only be responsible for driving the vehicle in a negligent manner. If any accident happened in such a condition, only the driver would be responsible, and contributory liability cannot be fastened on the victim. Therefore, the stand taken by the appellant/Insurance Co. has no merit. 9. So far as determination of amount of compensation is concerned, the age of the deceased was 36 years and the Tribunal has also considered the same but for the purpose of applying multiplier, statutory provision of the Motor Vehicles Act has been applied. 10. On behalf of learned counsel for the appellant/Insurance Co. it is submitted that as per the guidelines given in the judgment of the apex Court in Sarla Varma v. Delhi Transport Corn. (2009) 6 SCC 121 ) wherein it is held that the deceased between the age group of 36 and 40, multiplier of 15 should be applied. In the present case, learned Tribunal has passed the award on 7.8.2008. At that time the guidelines given in the case (supra) was not available. In the absence of such guidelines, applying the multiplier as per the II Schedule under section 163-A of the Motor Vehicles Act, cannot be said to be illegal or require any interference in the appeal. 11. Apart from it, in the present case, learned Claims Tribunal has not considered the future prospects of the deceased and the law laid down by the apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi and ors. (2017) 16 SCC 680 ), the future prospects should also be considered. In present case, the future prospects may be considered near about 40%. Therefore, the total amount calculated in the head of loss of dependency cannot be said to be on the higher side. In view of this Court, the amount of loss of dependency is less to some extent. Similarly, in other heads also the amount is less but, there is no appeal on behalf of the claimants, therefore, the amount cannot be enhanced however, the objection raised by the appellant/Insurance Company can be rejected, hence rejected. 12. Accordingly, in view of this Court, it cannot be said that the compensation amount determined by the learned Tribunal is excessive or require any interference of this Court. 13. In view of the aforesaid discussions, this appeal has no substance. Hence, it is dismissed. No order as to costs.