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2022 DIGILAW 373 (RAJ)

Manoj Kumar S/o Jagnaram v. Deendayal S/o Trilokaram

2022-02-05

BIRENDRA KUMAR

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JUDGMENT : BIRENDRA KUMAR, J. 1. The claimants are not satisfied with the quantum of compensation decided by the Motor Accident Claims Tribunal, Sikar, in Accident Claim Case No. 56/14 (Transferred Case No. 60/2016). By the impugned award dated 05.07.2017, the learned Tribunal awarded Rs. 5,00,000/- (Rupees Five Lacs only) compensation along with interest of 8% from the date of presentation of the application for death of Gaurav Kumar aged about 10 years in Motor Vehicle Accident. The appellants are parents of Gaurav Kumar. They claim Rs. 80,25000/- as compensation. 2. The proved facts of this case is that on 08.11.2013 victim Gaurav Kumar was standing on the roadside along with his Bicycle. At the same time a rash and negligent Mini Bus bearing registration No. RJ 23PA 2644 dashed against Gurav Kumar causing his instant death and smashed his Bicycle. After investigation of Police case registered for the accident, the police found that the driver of the vehicle was negligent. It is not disputed that the vehicle was insured with respondent No. 3-Bharti Axa General Insurance Company Limited for the relevant period. 3. The insurer had contested the claim case on the ground of contributory negligence of the deceased as well as violation of terms and conditions of Insurance Policy as the driver was having no licence to drive a Mini Bus. Learned Tribunal has already rejected the claim of contributory negligence alleged to be committed by the deceased relying on the evidence of eye-witness No. 2-Anil Kumar, who is very specific that only the driver of the Mini Bus was negligent and rash, no other evidence of negligence of the deceased is available on the record. 4. Mr. Akshat Choudhary, learned counsel for the appellants contends that the Tribunal has relied upon the judgment of the Hon'ble Supreme Court in Kishan Gopal and Another v. Lal and others reported in (2014) 1 SCC 244 for allowing compensation of Rs. 5,00,000/-, however, the learned Tribunal failed to notice the principles laid down in the aforesaid judgment for choosing an appropriate multiplicand. 5. On the other hand, Mr. Rishipal Agarwal, learned counsel for the insurer contends that the award is based on the judgment of the Hon'ble Supreme Court in Kishan Gopal's case and no other judgment has been brought on the record, hence, the compensation awarded by the Tribunal is just and adequate compensation. 5. On the other hand, Mr. Rishipal Agarwal, learned counsel for the insurer contends that the award is based on the judgment of the Hon'ble Supreme Court in Kishan Gopal's case and no other judgment has been brought on the record, hence, the compensation awarded by the Tribunal is just and adequate compensation. Therefore, this appeal for enhancement of the compensation is not maintainable. Moreover, in the event of violation of the terms of policy, the insurer is not liable to pay compensation and even if the insurer is compelled to compensate the claimants, they must have right to recover from the owner of the offending vehicle. 6. It is settled by a catena of judicial pronouncements that if there is violation of the terms of policy or for any other legal cause, the insurer is not liable to cover the risk of insured, the insurer would be entitled for reimbursement, from the insured, of the compensation paid to the victim of the accident or the dependent. Therefore, the right of recovery from the owner of the offending vehicle by the insurer shall be there in a separately instituted proceedings. 7. While choosing a just multiplicand, the Hon'ble Supreme Court in Kishan Gopal's case took into note that in the Second Schedule to Section 163A of the Motor Vehicles Act, there is provision for notional income for compensation to those who had no income prior to the accident. The notional income was Rs. 15,000/- per annum. The Court noticed that in Lata Wadhwa v. State of Bihar reported in (2001) 8 SCC 197 , the children of the age group of 10 to 15 had died in a Motor Vehicle accident. The Court observed in Lata Wadhwa's case that loss of children is irrecoupable and no amount of money could compensate the parents. The Court considered an environment under which children where brought up, and the multiplicand of Rs. 24,000/- per annum was opted. In para 38 of Kishan Gopal and Another v. Lal and others reported in (2014) 1 SCC 244 , the Hon'ble Supreme Court has observed as follows: "38. The Court considered an environment under which children where brought up, and the multiplicand of Rs. 24,000/- per annum was opted. In para 38 of Kishan Gopal and Another v. Lal and others reported in (2014) 1 SCC 244 , the Hon'ble Supreme Court has observed as follows: "38. In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the Appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non-earning member prior to the date of accident was fixed at Rs. 15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the Appellants by working hard." 8. Thus, one of the important consideration was that the value of the rupee had come down drastically from the year 1994. The accident took place in the year 1992 and the case of Kishan Gopal was decided on 26.08.2013, multiplicand of Rs. 30,000/- per annum was allowed. 9. This Court takes judicial notice that the value of rupee is still dwindling. Moreover, it has come in evidence that the victim was going to market to purchase something. Evidently, he was actively participating and cooperating the parents in their day to day affairs according to his capacity. Therefore, in my view a multiplicand of Rs. 45,000/- per annum would not be exorbitant in the background and prevailing socio-economic scenario. Considering the legal principles laid down in Sarla Verma's case which was approved in National Insurance Company Limited v. Pranay Sethi and Others, reported in (2017) 16 Supreme Court Cases 680, an appropriate multiplier would be of 15. Thus, the loss of dependency is of Rs. 6,75,000/-. In Kishan Gopal's case the Hon'ble Supreme Court awarded Rs. 50,000/- under conventional head. Thereafter, in Magma General Insurance Co. Ltd. v. Nanu Ram and Ors. reported in (2018) 18 SCC 130 , it was held that parents are also entitled for compensation under head loss of filial consortium. Thus, under conventional head Rs. 6,75,000/-. In Kishan Gopal's case the Hon'ble Supreme Court awarded Rs. 50,000/- under conventional head. Thereafter, in Magma General Insurance Co. Ltd. v. Nanu Ram and Ors. reported in (2018) 18 SCC 130 , it was held that parents are also entitled for compensation under head loss of filial consortium. Thus, under conventional head Rs. 40,000/- to each of the appellant, who are parents of the deceased is payable for loss of consortium. Besides the aforesaid, Rs. 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses are also payable. Thus, Rs. 1,30,000/- is payable under conventional head. Thus, total amount comes to Rs. 8,05,000/-, this amount be paid after deducting already paid amount by the insurer along with 8% interest from the date of application as decided by the Tribunal. 10. The insurer shall have the right to raise his grievance for reimbursement against the owner of the offending vehicle in an appropriate proceedings, if a case for reimbursement is made out. 11. The appeal is allowed to the aforesaid extent.