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2021 DIGILAW 1351 (PNJ)

Manpreet Kaur v. Sukhdev Singh

2021-07-16

ARUN MONGA

body2021
ORDER Arun Monga, J (Oral). - Before this Court is a mother (appellant), having lost her young son, all of nine years age, in a vehicular accident on 24.06.2017. Appellant is aggrieved against meagerness of compensation determined vide the impugned award dated 05.10.2018 whereby a mere Rs.2,00,5000/- has been awarded qua the accidental death of her son. Claimant/appellant had filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act of 1988'), as it then existed, before the learned Motor Accident Claims Tribunal, Sangrur (hereinafter referred to as 'Tribunal') seeking compensation of Rs. 19,00,000/-, against the Insurer and owner of the car. 2. Brief factual narrative first. On the fateful day, the appellant's deceased son was travelling with his parents in an Alto Car, owned and driven by his father (respondent No. 1 herein). They were returning from Dhamtan Sahib to village Daska. At the relevant time, when they came out of village Dhamtan Sahib towards village Kalan, suddenly, a cow came in front of the moving car on the road. In a natural human instinct to save the cow, the driver lost balance of the car. Resultantly, the vehicle fell in a ditch near the road. Occupants of the car were injured. Claimant/appellant's son Prabhmehar Singh @ Gurmehar Singh suffered multiple injuries. He was taken to Civil Hospsital, Tohana, but succumbed to his injuries suffered in the accident. 3. Owner of the car (father of deceased)/respondent no.1 resisted the claim petition denying his liability, saying that the accident did not take place due to his negligence. He pleaded that Car was duly insured and liability, if any, was/is that of Insurance Company. 4. On the other hand, Insurance Company raised objections qua its liability, pleading, inter alia, that owner/ driver was not holding a valid driving license at the time of accident. It opposed the claim calling it as totally fictitious. A false DDR qua accident was got registered at the Police Station. Further objection was taken that deceased being son of the driver/ owner was not a third party in terms of the Insurance contract. Deceased was travelling as a gratuitous passenger and Insurance Company was thus, not liable to pay any compensation to his mother/claimant. 5. Based on rival pleadings, following issues were framed by the learned Tribunal: - "1. Further objection was taken that deceased being son of the driver/ owner was not a third party in terms of the Insurance contract. Deceased was travelling as a gratuitous passenger and Insurance Company was thus, not liable to pay any compensation to his mother/claimant. 5. Based on rival pleadings, following issues were framed by the learned Tribunal: - "1. Whether on 24.06.2017, Prabhmrhar Singh alias Gurmehar Singh died in a motor vehicle accident caused due to use of Alto car bearing registration No.PB-13AU-1055, as detailed in the claim petition? OP A 2. Whether the claimant is entitled to receive compensation. If so to what amount and from whom? OP A 3. Whether the petition is not maintainable in the present form? OPR 4. Whether respondent No. 1 was not holding valid and effective driving licence and other documents at the time of accident? OPR-2 5. Relief" 6. The learned Tribunal decided issues No.1, 2 & 3 in favor of the claimant-appellant. Qua issue no.4 i.e. the objection on alleged want of a valid driving license, the Tribunal observed that Insurance Company did not adduce any cogent evidence to discharge its onus. Thus, there was no substance in the said objection on the driving licence (Exhibit C7) produced by the claimant. In the absence of any adverse evidence placed on record by the Insurance Company, issue No.4 was decided against it. 7. As regards quantum of compensation, the Tribunal observed as below: - "So far as the quantum of compensation is concerned, Prabhmrhar Singh alias Gurmehar Singh was child of about 09 years of age. His report card indicates that he was studying in 1st standard. In the Aadhaar card Exhibit C4, his date of birth is mentioned as 28.01.2009. Therefore, at the time of accident, he was more than 08 years of age. The child was to grow up and in future he would have been great support to his mother. She has lost her minor son and suffered mental trauma. In the Aadhaar card Exhibit C4, his date of birth is mentioned as 28.01.2009. Therefore, at the time of accident, he was more than 08 years of age. The child was to grow up and in future he would have been great support to his mother. She has lost her minor son and suffered mental trauma. Considering the age of the child as well as the provisions of Section 163-A of Motor Vehicle Act, I award lump sum compensation in favour of the mother to the tune of " 2,00,000/- plus " 5,000/- towards funeral expenditure and the total amount of compensation comes out to be 2,05,000/-, which the claimant is entitled to receive from the respondents who are liable to pay this amount jointly and severally. Issues No.1 and 2 are accordingly decided in favour of claimant and against the respondents, whereas issue No. 3 is decided against the respondents and in favour of claimant." Net result, a compensation of Rs. 2,05,000/- along with interest at the rate of 7% per annum was awarded to the claimant-appellant. 8. Aggrieved, the claimant is in appeal seeking enhancement of compensation. 9. I have heard the rival conditions and perused the record. My discussion and the outcome thereof follows hereinafter. 10. Learned counsel for respondent No.2-Insurance Company argues that deceased being son of the owner/ driver of the vehicle involved could not have been termed as third party and thus, no compensation was payable. Since father of the deceased himself was driving the vehicle, therefore, the mother is not entitled to any compensation. As per the terms of the insurance policy mother is not a third party. A person cannot be both a claimant against himself as well as a recipient. Reliance is placed on Apex Court Judgment rendered in Oriental Insurance Co. Ltd. versus Rajni Devi and others, (2008) 5 SCC 736 . 11. I am unable to accept the aforesaid contention. Claimant herein is the mother of the deceased. The father of deceased has been arrayed as a respondent, being owner/ driver of the vehicle. Concededly, in matters of inheritance, the deceased young boy was governed by Hindu Succession Act, 1956. As per that Act, mother is a class-I heir, while father is a class-II heir. A mother thus excludes the father in the matter of inheritance of a predeceased son. Concededly, in matters of inheritance, the deceased young boy was governed by Hindu Succession Act, 1956. As per that Act, mother is a class-I heir, while father is a class-II heir. A mother thus excludes the father in the matter of inheritance of a predeceased son. In the premise, claimant-mother in the instant case, having got her distinct, separate and independent legal status, as the nearest heir of her deceased son to the exclusion of his father, is fully vested with lawful rights to claim compensation for the death of her son. It cannot be said that father/respondent No. 2 who was driving the car at the relevant time, is either the claimant or recipient of compensation. The judgment, ibid has thus no application to the facts of present case. 12. Confronted with my above view, learned counsel for insurance company canvasses that, in any case, liability was only upto Rs. 2,00,000/-and the same has already been paid to the claimant-appellant along with 7% interest. He argues that same is adequate as per Section 163-A of the Act and no interference of this Court is warranted. 13. Before proceeding further, it would be instructive to see the relevant provisions of the Motor Vehicles Act, 1988 with regard to payment of compensation on the no fault principle. 14. Initially, Section 140 in Chapter X of the Motor Vehicles Act, 1988 captioned as 'Liability without fault in certain cases' was as under: "140. Liability to pay compensation in certain cases on the principle of no fault-(l) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub section (1) in respect of the death of any person shall be fixed sum of fifty thousand rupees and the amount of compensation payable under the subsection in respect of permanent disablement of any person shall be a fixed sum of twenty five thousand rupees. (2) The amount of compensation which shall be payable under sub section (1) in respect of the death of any person shall be fixed sum of fifty thousand rupees and the amount of compensation payable under the subsection in respect of permanent disablement of any person shall be a fixed sum of twenty five thousand rupees. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or defaults of the owner or the owners of the vehicle or vehicle concerned or of any other person.(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. (5) Notwithstanding any thing contained in sub-section (2) regarding death or bodily injury to any person for which the owner of the vehicle is liable to give compensation for relief he is also liable to pay the compensation under any other law for the time being in force. Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A. " 15. Later on, Section 163-A in Chapter XI captioned "Insurance of Motor Vehicles against third party risks' was inserted by Act 54 of 1994 in the Motor Vehicles Act, with effect from 14.11.1994, which reads as below: - "163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.For the purposes of this sub-section, "permanent disability " shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." 16. The aforesaid second Schedule under Section 163-A, ibid was subsequently substituted by another second Schedule (to increase Compensation payable in case of Death to five lakh rupees from two lakhs), as notified on 22.05.2018 by way of gazette notification, which reads as under: - 'SCHEDULE FOR COMPENSATION FOR THIRD PARTY FATAL ACCIDENTS/INJURY CASES CLAIMS 1. (a) Fatal Accidents: Compensation payable in case of Death shall be five lakh rupees. (b) Accidents resulting in permanent disability: Compensation payable shall be = [Rs. 5,00,000/- x percentage disability as per Schedule I of the Employee's Compensation Act, 1923 (8 of 1923)] : Provided that the minimum compensation in case of permanent disability of any kind shall not be less than fifty thousand rupees. (c) Accidents resulting in minor injury: A fixed compensation of twenty five thousand rupees shall be payable: 2. On and from the date of 1stday of January, 2019 the amount of compensation specified in the clauses (a) to (c) of paragraph (1) shall stand increased by 5 per cent annually ". 3. This notification shall come into form on the date of its publication in the Official Gazette." 17. Still later, by virtue of the Motor Vehicles (Amendment) Act- 2019 (Act 32 of 2019), enforced with effect from 01.09.2019, Chapter X of the principal Act was omitted. An altogether new Chapter XI captioned as "Insurance of Motor Vehicles against third party risks" was substituted for the earlier chapter XI of the principal Act and the Second Schedule was also omitted. Section 164 of the new Chapter XI of the Act, is as under: "164. An altogether new Chapter XI captioned as "Insurance of Motor Vehicles against third party risks" was substituted for the earlier chapter XI of the principal Act and the Second Schedule was also omitted. Section 164 of the new Chapter XI of the Act, is as under: "164. Payment of compensation in case of death or grievous hurt, etc.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or grievous hurt due to any accident arising out of the use of motor vehicle, a compensation of a sum of five lakh rupees in case of death or of two and a half lakh rupees in case of grievous hurt to the legal heir or the victim, as the case may be. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) Where, in respect of death or grievous hurt due to an accident arising out of the use of motor vehicle, compensation has been paid under any other law for the time being in force, such amount of compensation shall be reduced from the amount of compensation payable under this section. " 18. A comparative perusal of the above shows the intent and endeavor of the legislature was and continues to be to liberalize, simplify and shorten the process and procedure for speedy payment of compensation in the cases, in which it is payable without any obligation on the part of claimant to plead or establish that the death or permanent disablement, in respect of which the claim has been made, was due to any wrongful act or neglect or default of the owner of the vehicle or of any other person. In such cases, to avoid unnecessary delay and/ or needless evidence, the quantum of compensation is also pre-determined. 19. Now adverting to the award impugned herein, whereby a compensation of Rs. 2,00,000/- has been awarded for the death of the appellant's son while Rs. In such cases, to avoid unnecessary delay and/ or needless evidence, the quantum of compensation is also pre-determined. 19. Now adverting to the award impugned herein, whereby a compensation of Rs. 2,00,000/- has been awarded for the death of the appellant's son while Rs. 5,000/- for the funeral expenditure, thus a total Rs. 2,05,000/-. 20. The accident resulting in death of the victim took place on 24.06.2017. The claim petition was registered on 24.01.2018. Pre-determined compensation under section 163-A was enhanced to Rs.5,00,000/- w.e.f. 22.05.2018, whereas the award was rendered by the Tribunal on 05.10.2018. Instant appeal, no doubt, is continuation of the same claim proceedings. 21. In Union of India versus Rina Devi 2018 (3) RCR (Civil) 40, Apex Court noted the issue of apparent conflict in earlier two judgments viz Rathi Menon versus Union of India (2001) 3 SCC 714 and Kalandi Charan Sahoo versus General Manager, Civil Appeal No.5608 of 2017 decided on 25.4.2017, as to the relevant date for applying the rate of compensation when different rate is applicable at the time of filing of claim and on the date of the order. It has been held by Supreme Court as under: "15.4 Accordingly, we conclude that compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases. If the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled to higher of the two amounts. This order will not affect the awards which have already become final and where limitation for challenging such awards has expired, this order will not by itself be a ground for condonation of delay. Seeming conflict in Rathi Menon (supra) and Kalandi Charon Sahoo (supra) stands explained accordingly. The 4-Judge Bench judgment in Pratap Narain Singh Deo (supra) holds the field on the subject and squarely applies to the present situation. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given." (emphasis supplied) 22. Compensation as applicable on the date of the accident has to be given with reasonable interest and to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award of the Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given." (emphasis supplied) 22. In the case in hand, the Tribunal vide its order dated 05.10.2018, awarded compensation of Rs. 2,00,000/- for death, obviously as per the unamended Second schedule. Notwithstanding, that during the pendency of the claim petition before the Tribunal, vide notification dated 22.05.2018 the Second Schedule to the Act had already been amended, and by then the prescribed rate of Rs. 5,00,000/- had become applicable. 23. To my mind, the ratio of Union of India v. Rina Devi (supra) was/is squarely applicable to the instant case. Here the compensation of Rs. 5,00,000/- as provided/ prescribed on the date of award of the Tribunal is higher than amount of Rs. 2,05,000/- with interest awarded by the Tribunal on the basis of rate applicable on the date of death. As such, the higher of the two amounts has to be given to give effect to the mandate of beneficial legislation. To that extent, the learned Tribunal clearly fell in legal error by not granting the compensation of Rs. 5,00,000/- as duly notified by the Central Government. 24. However, in a subsequent judgment rendered by Supreme Court in Ramkhiladi and another versus The United India Insurance Company and another, Civil Appeal No.9393 of 2019 as relied upon by the learned counsel for respondent No. 2, it was held as under: "5.8 ..................... However, it is the case on behalf of the original claimants that there is an amendment to the 2n Schedule and a fixed amount ofRs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2ndSchedule.................." It would be seen that in the peculiar facts of Ramkhiladi's case, claimants were disentitled to the benefit of the amendment to the 2nd Schedule. While doing so, the specific question of law settled in and the ratio rendered in Union of India v. Rina Devi, supra were not gone into. Being so, view taken in the peculiar facts of Ramkhiladi and another versus The United India Insurance Company supra, does help respondent No. 2. Not only Ramkhiladi is distinguishable and inapplicable in the facts of the instant case, but even otherwise, the opinion expressed therein does not out-weigh the ratio rendered in Union of India v. Rina Devi. 25. In the parting, learned counsel argues in the alternative, that in a recent Apex Court judgment rendered in Rajendra Singh and others versus National Insurance Company Limited and others, 2020(3) R.C.R. (Civil) 26; Civil Appeal No(s). 2624 of 2020 wherein compensation was claimed under Section 166 of the Act on the death of a 12 year old minor child, a compensation of only Rs. 2,95,000/- was awarded. He also relies on another Apex Court judgment rendered in Reshma Kumari and others versus Madan Mohan and another, 2013(9) SCC 65 ; Civil Appeal No.4647 of 2009 wherein it was held that notional income of child should be taken as Rs. 15,000/- per month. He contended that, accordingly, by applying multiplier of 15 and (15,000/- x 15), a compensation of Rs. 2,25,000/- for death would meet ends of justice in the instant case and by adding Rs. 5,000/- as funeral expenditure, a total compensation of Rs. 2,30,000/- would suffice by enhancement of Rs.25,000/-. 26. The aforesaid arguments of learned counsel for respondent No.2-Insurance Company are being noted only for the sake of rejection. Neither of these judgments, cited by him, is applicable in the instant case. The claims therein were under Section 166 of the Act of 1988. 2,30,000/- would suffice by enhancement of Rs.25,000/-. 26. The aforesaid arguments of learned counsel for respondent No.2-Insurance Company are being noted only for the sake of rejection. Neither of these judgments, cited by him, is applicable in the instant case. The claims therein were under Section 166 of the Act of 1988. I have held that in present case, the compensation is payable under Section 163-A of the Act read with the amended Second Schedule as applicable on the date of award and compensation is strictly on the no fault principle. It is, therefore, not necessary for me to go into the issue of multiplier and/ or the notional income and/ or any other parameters applicable to claims under Section 166 of the Act of 1988. 27. Section 34 of the Code of Civil Procedure contains general provisions for future interest in money decrees. In my opinion, it is also necessary in the interest of justice that appropriate provision be made by the Court to ensure expeditious payment of the compensation amount to the claimant. 28. As a result of above discussion, the impugned award dated 05.10.2018 passed by the learned Tribunal is modified and the compensation awarded is enhanced to Rs. 5,05,000/- with interest at the rate of 7% per annum from the date of institution of claim petition. The enhanced compensation, after adjusting the payment, if any, already made, be disbursed to the appellant/claimant within two months from the receipt of certified copy of this order, otherwise the same shall bear interest at the rate of 9% per annum from the date of this order till payment. 29. Disposed of, accordingly.