Geeta Devi & Others vs Ashish Kumar Chopra & Others

Sudhanshu Dhulia, J

This is claimants’ appeal against the award dated 28.10.2017 passed by the Motor Accident Claims Tribunal, Bageshwar in MACP No. 05 of

2017, whereby a compensation of Rs.4,57,000/- (Rupees Four Lakh Fifty Seven Thousand only) has been awarded to the claimants.

Brief facts of the case are that on 04.07.2016 at about 10:00 p.m., when Gaurav Kumar (deceased) along with his friend, namely, Ashish Kumar

Chopra was going on a Bullet Motorcycle bearing registration no. UK07X-0451, an Apache motorcycle bearing registration no. UK07BR-1813 which

was coming from the opposite direction, while overtaking another vehicle, dashed on to the motorcycle of the deceased. The offending Apache

motorcycle bearing Registration No. UK07BR-1813 was being driven by its rider rashly and negligently. As a result of the said accident, the deceased

sustained grievous injuries and died on spot.

On account of the death of Gaurav Kumar in the motor accident, a claim petition was filed by his parents claiming a compensation of Rs.76,75,000/-

(Rupees Seventy Six Lakh Seventy Five Thousand only). It was stated in the claim petition that the deceased had done Chemical Engineering and had

worked with Cavendish Industries Limited, Haridwar on the post of JR-Officer-Technical for five years and was getting a monthly salary of

Rs.18,572/-(Rupees Eighteen Thousand Five Hundred Seventy Two only).

Written statements were filed by the owner and driver of motorcycle no. UK.07X-0451, and the insurance companies with which both the

motorcycles involved in the accident were insured. Since, in spite of service of the notice, the owner and the driver of motorcycle no. UK.07BR-1813

did not appear before the Tribunal, the matter proceeded against him ex parte.

On the basis of the pleadings of the rival parties, the Motor Accident Claims Tribunal framed the following issues:-

“1. Whether on 04.07.2016 at about 10:00 PM, when the deceased Gaurav Kumar was going to the house of his nephew Atul, along with his friend

Ashish Kumar Chopra on his Bullet Motorcycle bearing registration no. UK.07X-0451, a motorcycle bearing Registration No. UK-07BR-1813, which

was being driven by its driver, namely, Masoom Ali rashly and negligently dashed on to the motorcycle of the deceased, as a result of which Gaurav

Kumar sustained grievous injuries and died on the spot?

Whether at the time of accident respondent no. 1 was driving the motorcycle No. UK-7X-0451 as per the provisions of the Motor Vehicles Act and

as per the terms of the insurance policy? If yes, then its effect?

Whether at the time of accident respondent no. 2 was driving the motorcycle bearing registration No. UK-07BR-1813 as per the provisions of the

Motor Vehicles Act and as per the terms of the insurance policy with valid papers? If yes, then its effect?

To what relief the claimants are entitled to and from which of the parties?â€​

While deciding the issue no. 1, the Tribunal recorded a categorical finding that the accident occurred due to rash and negligent driving of the driver

of motorcycle bearing registration No. UK.07BR-1813 and Gaurav Kumar died in the said accident. This finding of the Tribunal is based on the

evidence in the form of Ashish Kumar Chopra, DW 1, who is an eyewitness of the incident as well as an injured in the accident.

While deciding issue no. 2, the Tribunal recorded a finding that at the time of accident, the motorcycle bearing registration no. UK07X-0451 had all

the relevant and valid papers.

While deciding issue no. 3, the Tribunal came to the conclusion that at the time of accident the motorcycle bearing registration no. UK07BR-1813

was being driven without a valid driving licence. The finding has also come that the driving licence of Masoom Ali, which was produced by the

Oriental Insurance Company Limited before the Tribunal, was issued in the name of one Aijaz Khan and not in the name of Masoom Ali, who was the

riding the motorcycle No. UK 07BR-1813. On this ground alone, the liability to pay the amount of compensation has been fixed on the owner of

motorcycle no. UK07BR-1813 who is respondent no. 2 before this Court.

As regarding the amount of compensation, the Tribunal determined the monthly income of the deceased as Rs.4,500/- (Rupees Four Thousand Five

Hundred only) i.e. Rs.54,000/- (Rupees Fifty Four Thousand only) per annum. Out of this amount, one-half was deducted towards personal expenses

and the annual dependency income was calculated as Rs.27,000/- (Rupees Twenty Seven Thousand only). Thereafter the Tribunal applied a multiplier

of 16 and calculated the amount as Rs.4,32,000/- (Rupees Four Lakh Thirty Two Thousand only).

Apart from the above, the Tribunal also awarded a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards funeral expenses. Thus, a

total compensation of Rs.4,57,000/- (Rupees Four Lakh Fifty Seven Thousand only) has been awarded by the Tribunal.

Aggrieved, the claimants have preferred the present appeal for enhancement.

The owner of the offending vehicle has not filed any appeal before this Court. It is only the claimants who have come not only for enhancement of

the award but also on ground that the Tribunal has committed a manifest error inasmuch as it has not directed the insurance company to pay the

compensation to the claimants with liberty to recover from the owner of the vehicle. For this, the learned counsel for the appellants/claimants has

relied upon a decision of the Hon’ble Apex Court passed in Civil Appeal No. 5123 of 2019 in the case of Parminder Singh v. New India

Assurance Co. Ltd. and others, where it has been held by the Hon’ble Apex Court that although the owner of the vehicle did not even appear

in any of the proceedings before the Tribunal as well as the High Court, and although the liability was fixed on the owner of the offending vehicle, yet

on the principle of “pay and recover†and considering that it is easier for the claimants to get the amount, directed the insurance company to pay

the amount with liberty to recover the same from the owner of the vehicle.

Relevant paragraph no. 12 of the said judgment reads as under:-

“12. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent â€" Insurance

Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to

prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and

drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court.

12.1. This Court in Shamanna v. The Divisional Manager, The Oriental Insurance Co. Ltd., held that if the drive of the offending vehicle does not

possess a valid driving license, the principle of ‘pay and recover’ can be ordered to direct the insurance company to pay the victim, and then

recover the amount from the owner of the offending vehicle.

12.2. We deem it just and fair to direct the Respondent â€" Insurance Company to pay the enhanced amount of compensation as indicated in Para. 6

above, to the Appellant within a period of 12 weeks from the date of this judgment. The Respondent â€" Insurance Company is directed to make out a

Demand Draft in the name of the Appellant, which can be used for his care for the rest of his life. The Respondent â€" Insurance Company is entitled

to recover the amount from the owners and drivers of the two offending trucks.â€​

In the present case as well, the owner of the offending motorcycle on whom the liability has been fixed did not appear before the Tribunal as well

as before this Court. Thus, in view of principle laid down by the Hon’ble Apex Court in the case of Parminder Singh (supra), the insurance

company, with which the offending motorcycle was insured, shall pay the amount of compensation to the claimants and then it shall be at liberty to

recover the same from the owner of the offending vehicle.

The awarded amount of Rs.4,57,000/- (Rupees Four Lakh Fifty Seven Thousand only) to the claimants, is not sufficient as per the

claimants/appellants and the compensation has been wrongly calculated by the Tribunal, and therefore, this appeal is for enhancement.

Learned counsel for the appellants submits that the Tribunal has not considered the future prospects of the deceased. Learned counsel for the

appellants further submits that no amount of compensation towards conventional heads, such as, loss of love and affection and loss of estate has been

awarded by the Tribunal.

Considering the facts and circumstances of the case, this Court is of a considered view that the future prospect to the tune of 40% is liable to be

awarded. Further this Court is also of the view that instead of total Rs.25,000/-(Rupees Twenty Five Thousand only) towards funeral expenses, the

claimants would be entitled to a compensation of Rs.70,000/- (Rupees Seventy Thousand only), in view of the law laid down by the Hon’ble Apex

Court in the case of National Insurance Company Limited v. Pranay Sethi and others reported in (2017) 16 SCC 680. Thus the amount of

compensation as awarded by the Tribunal is modified as under:-

A (i) Annual income of the deceased-Rs.54,000/-

(ii) Future income (40%) -Rs.21,600/-

     Total -Rs.75,600/-

(iii) After deduction of one-half

towards personal expenses -Rs.37,800/-

(iv) Amount after applying the

multiplier of 16 -Rs.6,04,800/-

(B) Compensation in conventional

heads

(i.e. for funeral expenses, loss of love

and affection and loss of estate) -Rs.70,000/-

Total -s.6,74,800/-

In view of the above, the appeal is partly allowed. Let the entire amount along with 6 % interest per annum from the date of filing of the claim

petition be deposited by the concerned Insurance Company within a period of three weeks from the date of production of a certified copy of this

order. After the amount is deposited by the insurance company, let the same be released in favour of the claimants forthwith.

Let a copy of this judgment along with the lower court record be sent to the concerned Tribunal for onward compliance.