Chand Begam and Others vs Arjun Lal and Others

Dr. Vineet Kothari, J.—All these appeals arise out of the accident which took place on 23.02.1993 when the new car of the D.C.M. Tata Company bearing temporary registration number M.H.-12-0773 (later on registered on regular numbers as R.J.-14 G-7021) was driven by the non-applicant No. 1 Arjun Lal with the passengers namely, Mahesh Kumar, Authorised Salesman of the seller D.C.M. Tata Company and the passengers namely, Mehboob Beg, Babu Lal Verma, Madan Lal Acharya and Madan Lal Sargara, who boarded the said car coming from Jaipur to Jodhpur at Jaitaran, Khariya-Meethapur, Bilara and Khariya-Meethapur respectively. The said car collided with the tree two kilometres before Dangiyawas and on account of the said accident, Madan Lal Sargara, aged 40 years died in the Mahatma Gandhi Hospital, Jodhpur on 24.02.1993, Babu Lal Verma, aged 41 years, died in New Teaching Hospital, Jodhpur on 25.02.1993, Mehboob Beg, aged 60 years, died in Mahatma Gandhi Hospital, Jodhpur on 26.02.1993 whereas, the fourth passenger Madan Lal Acharya, aged 51 years, died on the spot of accident.

The different Claim Petitions were filed by the legal representatives of the deceased passengers namely, Claim Petition No. 525/1995 : Maina Devi and Ors. Vs. Arjun Lal and Anr. in respect of death of Babu Lal Verma, who was a Teacher in the Government Primary School at Khariya-Meethapur, Claim Petition No. 526/1995 : Shayar and Ors. Vs. Arjun Lal in respect of death of Madan Lal Acharya, who was Head Master of Government Primary School (Bilara), Claim Petition No. 527/1995 : Smt. Chand Vs. Arjun Ram and Ors. in respect of death of Mehboob Beg and the Claim Petition No. 541/1995 : Nainu Devi and Ors. Vs. Arjun Lal and Ors. in respect of death of Madan Lal Sargara, who was Head Constable in R.A.C.

After adjudication of all the claim cases, the learned Tribunal awarded the following compensation in respect of the claim petitions filed by the legal representatives of the respective deceased passenger, the details are as under:-

Being aggrieved by the said judgment and award dated 26.03.1999 made by the learned Judge, Motor Accident Claims Tribunal-First, Jodhpur, the claimants have filed the present civil misc. appeals namely, CMA No. 499/1999: Smt. Chand Begam and Ors. Vs. Arjun Lal and Ors. CMA No. 466/1999: Smt. Nainu Devi and Ors. Vs. Arjun Lal and Anr., CMA No. 467/1999: Smt. Sayari Devi and Ors. Vs. Arjun Lal and CMA No. 468/1999: Smt. Maina Devi and Ors. Vs. Arjun Lal seeking enhancement of the amount of compensation awarded by the Tribunal, while the owner of the vehicle in question M/s. Roshan Motors has filed the civil misc. appeals namely, CMA No. 357/2003: M/s. Roshan Motors Pvt. Ltd. Vs. Smt. Mena Devi and Ors., CMA No. 358/2003 : M/s. Roshan Motors Pvt. Ltd. Vs. Smt. Nenu Devi and Ors., CMA No. 359/2003: M/s. Roshan Motors Pvt. Ltd. Vs. Smt. Sain Devi and Ors. and Cross Objections No. 2/1999: Roshan Motors Vs. Chand Begam and Ors. seeking to challenge the exoneration of the Insurance Company by the learned Motor Accident Claims Tribunal-First, Jodhpur.

The learned counsels Mr. I.R. Choudhary and Mr. R.K. Soni appearing for the claimants-appellants submitted that the amount of compensation awarded by the learned Tribunal in the present death cases is less and no award for future prospects of increase in income has been given by the learned Tribunal in terms of the judgment of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . The learned counsels further submitted that in the absence of future prospects being not available in the present awards, the amount of compensation deserves to be suitably enhanced in favour of the claimants in view of the aforesaid decision of the Hon''ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 .

The learned counsel Mr. Sunil Vyas appearing for the respondent-Insurance Company submitted that since the said vehicle (the car) was insured only under the ''Transit Policy'' and the vehicle which was coming form Jaipur to Jodhpur for delivery to its customer and was driven by the non-applicant No. 1 Arjun Lal along with the authorised sales-man namely, Mahesh Kumar and, therefore, the four passengers who boarded the aforesaid vehicle from the different places were not covered under the said Transit insurance policy and, therefore, for the compensation in question, the insurance company has rightly been exonerated by the learned Motor Accident Claims Tribunal. The learned counsel also submitted that the learned Tribunal, after proper appreciation of the evidence led before it, held the owner of the vehicle liable to satisfy the award.

The learned counsel Dr. Sachin Acharya with Mr. Rakesh Chotia appearing for the appellant-non-applicant, the owner of the vehicle, M/s. Roshan Motors Pvt. Ltd. submitted that it was not proved by the insurance company, as to whether the driver of the vehicle was not holding a valid licence at the time of accident when he was driving the vehicle in question along with the authorised salesman of the company namely, Mahesh Kumar and with four other persons, who died in the said accident, therefore, they have to be treated as ''third parties'' and, therefore, for the third parties, the insurance company should be held to be liable to satisfy the award in question qua the claimants for death of all the four persons. The learned counsel further submitted that the amount of compensation awarded by the Tribunal is on the higher side and the same deserves to be reduced by this court in the present cross-objections and cross-appeals filed by the owner of the vehicle namely, M/s. Roshan Motors Pvt. Ltd.

I have heard the learned counsels for the parties at length and perused the impugned judgment and award and the record of the case.

The undisputed facts which emerge in the present cases are that the car in question bearing temporary registration number M.H.-12-0773 (later on registered on regular numbers as R.J.-14 G-7021) was sold by the company M/s. Roshan Motors Pvt. Ltd., Jaipur and was on its way from Jaipur to Jodhpur and besides its driver (Arjun Lal) and the authorised salesman of the company (Mahesh Kumar), four other passengers, which according to the claimants, who boarded the aforesaid car after having paid the fare for boarding the car in question. The car met with an accident by hitting against the tree near Dangiyawas, Jodhpur and unfortunately, the four passengers travelling in the aforesaid car died. Out of four, three died in different hospitals and one died on the spot of accident. The vehicle in question was undisputedly driven by the non-applicant driver namely, Arjun Lal, who lost the balance and control over the car in question and as a result, the car hit against the tree. The post-mortem was carried out on the bodies of the deceased and the it was opined by the Medical Board that all the persons had died because of the injuries sustained in the accident caused by the rash and negligent driving of its driver namely, Arjun Lal. The fact of the claimants'' entitlement to receive the compensation on account of death of the bread winner of the family under the provisions of Section 166 of the Motor Vehicles Act, 1988 cannot be doubted and disputed. Since the vehicle in question was covered under the ''Transit Policy'' only, the passengers were found to have travelled were not covered under the said transit insurance policy and, therefore, this Court is of the view that the insurance company has rightly been exonerated by the learned Motor Accident Claims Tribunal in the present cases. The case set up by the owner of the vehicle that the insurance company was required to prove that the driver of the vehicle in question was not having a valid license at the time of accident is not sustainable. This fact was required to be established by the driver/owner of the vehicle in question, which they have failed to do, therefore, the liability to satisfy the award in question has rightly been fixed on the driver/owner of the vehicle in question.

Now coming to the issue regarding amount of compensation awarded by the learned Tribunal, this Court is of the view that there is considerable force in the contention raised by the learned counsel appearing for the claimants that no amount has been awarded in favour of the claimants keeping in view the future prospects of increase in the income of the deceased and, as the income at the time of death was established by the claimants before the Tribunal, the amount of compensation deserves to be suitably enhanced in view of the decision of the Hon''ble Supreme Court of India in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 . The relevant extract from the aforesaid judgment in the case of Sarla Verma (supra) is quoted herein below for ready reference:-

"24. ..... In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

The age of one of the deceased in the present cases namely, Mehboob Beg was 60 years at the time of accident and therefore, his case is not covered by the aforesaid judgment for enhancement on account of future prospects of income as laid down in the aforesaid case of Sarla Verma, quoted herein above. For other claimants, looking to the circumstances of the case, the appeals seeking enhancement filed on behalf of the claimants deserve to be allowed and, therefore, the claimants are held entitled to receive the enhanced compensation on account of death of the persons namely, Madan Lal Acharya, Babu Lal Verma and Madan Lal Sargara in terms of their age and established income at the time of accident in terms of judgment in Sarla Verma (supra). The amount of compensation to the extent of loss of income is enhanced in terms of the aforesaid judgment of the Hon''ble Supreme Court in the case of Sarla Verma (supra). Therefore, the Tribunal concerned shall re-compute the amount of compensation, while giving the benefit of future prospects of increase in income, taking into consideration the established income and age of the deceased and apply the percentage increase in such income, and the amount of enhanced compensation shall be payable with interest @ 9% per annum from the date of filing of the claim petition till the actual payment of the compensation. Though the claimants of the fourth deceased person namely, Mehboob Beg, who was 60 years of the age at the time of accident are not held entitled for enhancement in terms of the judgment of Hon''ble Supreme Court in the case of Sarla Verma (supra) but the amount of compensation awarded by the Tribunal at Rs. 1,00,000/-, which is otherwise also abysmally low and, therefore, the same deserves to be suitably enhanced on ad-hoc basis. Therefore, this Court is of the opinion that the legal representatives of the deceased Mehboog Beg namely, Smt. Chand Begam and others, are held entitled to receive additional sum of Rs. 50,000/- along with interest @ 9% per annum from the date of filing of the claim petition till the actual payment of the enhanced amount.

Having regard to the facts and circumstances of the case, it is considered appropriate that the half of the enhanced amount of compensation with interest would be kept in a fixed deposit in the joint names of all the claimants in each of the four cases for a period of five years in a Nationalised Bank and the remaining half of the amount of compensation would be payable by cheques in favour of the claimants/legal representatives of the deceased persons in equal proportion of the amount of such enhanced compensation along with interest.

The learned Tribunal concerned shall re-compute the amount of enhanced compensation and the said enhanced compensation is liable to be paid, jointly or severally, by the driver/owner of the vehicle in question. If the originally awarded compensation has not been paid to the claimants of each of the deceased persons by the owner/driver of the vehicle in question so far then, the entire compensation including enhanced amount shall be paid/deposited by the owner/driver of the car within a period of three months from today, the same would further bear interest @ 9% per annum till the date of actual payment/deposit of compensation.

Accordingly and in view of the above, the present misc. appeals filed on behalf of the claimants are allowed to the extent indicated above. The cross-appeals and the cross-objections filed by the owner of the vehicle namely, M/s. Roshan Motors Pvt. Ltd. are rejected. No orders as to costs. A copy of this order be sent to the Motor Accident Claims Tribunal concerned and to the parties concerned forthwith.