Chulhai Yadav and Others vs Srinath Mahaldar and Others

Akhilesh Chandra, J.—Heard learned counsel representing the parties. This is an appeal preferred by the claimant-appellant against judgment dated 10.3.2003 and award dated 5.8.2004 passed by 1st Additional District Judge-cum-Claim Tribunal, Bhagalpur in Case No. 38/1996 awarding a sum of Rs. 1,30,000/- with interest @ 9% till February 2001 and thereafter 6% with cost of Rs. 250/- as Lawyer''s fee and Rs. 50/- as Advocate''s clerk to be paid by owner of the offending vehicle and return of Rs. 50,000/- paid by the insurer as interim compensation within 30 days.

The undisputed fact of the case is that the deceased Chhabi Lal Yadav died in a road accident caused by a Truck bearing No. AMN-3817 which was validly insured and for the accident criminal case bearing Antichak P.S. Case No. 295/2005 was also instituted by original claimant i.e. widow and minor children of the deceased, preferred the claim initially for Rs. 3 lacs which subsequently been amended for Rs. 5 lacs. Subsequently, on death of the widow parents of the deceased were impleaded as the claimants also and father of the deceased was impleaded also as guardian of minor children of the deceased. The owner and driver of the vehicle appeared by filing Vakalatnama on 18.1.1997 with an application seeking adjournment by filing written statement etc. but, since thereafter, they never turned up or took any step. Though, in the judgment as well as in the memo of appeal it has inadvertently been mentioned that neither owner nor driver ever appeared (the error in the state of fact could be disclosed during the hearing of the appeal).

Learned counsel representing the claimant-appellant submitted that in spite of undisputed fact that offending vehicle was validly covered under insurance. The compensation has been awarded against the owner who is further ordered to refund ad interim compensation only on the plea taken by the insurance company that driver of offending vehicle had no valid license, whereas the insurer did not produce any material oral or documentary to support such plea. Moreover, even if by the insurance company anything is done, it may have a right of recovery from the owner but the payment should have been made by the insurance company itself. It is next contended that in spite of the materials available as regard to income of the deceased, claim tribunal has erroneously assessed a sum of Rs. 15,000/- per annum and on applying multiplier of 18 deducting 1/3rd as personal expenditure and ad interim maintenance etc. erroneously awarded a sum of Rs. 1,30,000/-, whereas as per decision of the Apex Court in a case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the notional income of the deceased comes to the tune of Rs. 36,000/- per annum and in view of number of dependency only 1/4th is to be reduced as personal expenditure but the multiplier should be used 17 instead of 18 as applied by the claim tribunal.

On the other hand, learned counsel representing the insurance company and the owner and driver both conceded to the submission as regard to quantum of compensation but learned counsel representing the owner and driver further objected that there is a direction of the court below regarding payment of compensation by the owner, whereas learned counsel representing the insurance company supported the same on the ground that once a plea of the driver having no valid driving license is taken by the insurance which is yet not rebutted. It is the owner who is to pay the compensation not the insurer.

Attention of this Court is also drawn towards Single Bench decisions in case of Jageshwar Prasad Singh & Anr. vs. M/s. Tara Linkers Carrier Pvt. Ltd. & Anr. reported in 2010 (4) PLJR 28; Sarojani Devi Vs. Sunil Kumar Sharma ; National Insurance Company Limited Vs. Mosomat Asha Devi and Others, . Besides the Division Bench decision of Jharkhand High Court in a case of Binda Singh Vs. Narendra Pal Singh and Others, .

In all such judgments apart from others reliance has been placed on decision of Apex Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, , and it has clearly been held that only by taking a plea in written statement the insurer cannot be exonerated from its liability once there is valid insurance of offending vehicle unless the plea is proved by production of valid materials. Whereas in the instant case as stated above, except taking plea of the driver having no driving license the insurer has done nothing. In the matter in controversy as regard to liability to pay the compensation stands squarely covered by the decisions afore-mentioned. Thus, they need no further discussion and decided in favour of the appellant against the insurance who may have a right to initiate proceeding for recovery, if any, as prescribed under law after thorough inquiry on being satisfied wishes to do so against the owner of the offending vehicle.

Now coming to the point of quantum of compensation the claimants have come forward with a case that the deceased had earning of Rs. 3,000/- per month by his business as milk man. The three witnesses examined on their behalf have stated about his daily income @ 125 to 150 which have been disputed by the insurer during course of examination but no documentary evidence on behalf of either side was produced and simultaneously no other oral evidence given by the contesting insurer. However, after analyzing the evidence the claim tribunal could not rely and by his own assessment fixed it has monthly income of the deceased at Rs. 1,250/-.

It is not a case that the deceased has no income, but as claimed, he used to earn a particular amount which was not accepted by the claim tribunal and by own assessment claim tribunal fixed income of the deceased on the basis whereof awarded compensation. In such a case principle of notional income is required to be adopted and the act has already prescribed Second Schedule, wherein by way of notional income a sum of Rs. 15,000/- per annum has been prescribed. This amount of Rs. 15,000/- per annum got consideration by Apex Court in a case of Laxmi Devi and Others Vs. Mohammad Tabbar and Another, ; and Rs. 100/- per day income got recognized bringing the same Rs. 36,000/- per annum. The above decision of the Apex Court has also been relied upon by this Court in a case of Chinta Devi and Others Vs. The New India Assurance Co. Ltd., .

Thus, from the annual income of the deceased Rs. 36,000/- taking into consideration the number of dependents on the basis of the Apex Court decision in case of Sarla Verma and Others (supra) 1/4th is required to be deducted as personal expenses of the deceased. Consequently, Rs. 27,000/- is to be multiplied by 17 in view of age of the deceased, based on the decision of Apex Court in Sarla Verma (supra) instead of 18 as applied by claim tribunal, consequently the amount of compensation comes to Rs. 27,000 x 17 = 4,59,000/- wherein as per 2nd Schedule, Rs. 4,59,000/- is to be added under different heads of loss, such as for loss of estate Rs. 5,000/- + loss of consortium Rs. 5,000/- + for funeral Rs. 2,000/- = 12,000/-. Accordingly the amount of compensation comes to the tune of Rs. 4,71,000/-.

The appellants are entitled for the above sum of Rs. 4,71,000/- with interest of 6% per annum from the date of filing of application till actual payment adjusting the amount of ad interim compensation u/s 140 of the Act. Rs. 50,000/- the insurer respondent No. 3 is liable to pay the appellants with the right to recovery from the owner in the manner stated above, if so wishes. With the above modification and enhancement in the award and liability to pay the compensation, the appeal is hereby allowed, the parties shall bear their own cost throughout.