Kathija Begam and Others vs Nizammudeen and Others

N. Kirubakaran, J—The appeal has been preferred by the claimants against the award of Rs.5,09,200/- passed by the Tribunal and exoneration of the liability of the second respondent-Insurance Company from the liability with regard to the accident occurred on 23.12.2007, in which, the first appellant''s husband Meeran Maideen aged about 42 years, a vegetable and milk vendor alleged to be earning a sum of Rs.10,000/- as monthly income of the deceased.

Firstly, Mr. Ma.P.Thangavel, learned counsel appearing for the appellants would submit that it is proved before the Tribunal that the driver of the offending vehicle did not possess a valid driving license. However, instead of directing the second respondent-Insurance Company to pay the compensation amount and recover the same from the owner of the offending vehicle, exonerated the second respondent-Insurance Company from the liability completely and passed award against only the owner of the offending vehicle. Therefore, he seeks to set aside that portion of the award alone. Secondly, he would submit that Rs.3,000/- determined by the Tribunal as monthly income of the deceased is on the lower side and hence, he seeks to enhance the same at Rs.6,500/-p.m. as per the judgment of the Hon''ble Supreme Court in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, (2014) 1 ACC 206 : AIR 2014 SC 1052 : (2014) AIRSCW 724 : (2014) 1 JT 569 : (2014) 1 RCR(Civil) 766 : (2014) 1 SCALE 377 : (2014) 2 SCC 735 and also to increase 30% towards future prospects.

Mr.J.Chandran, learned counsel for the second respondent- Insurance Company would submit that the appeal is not maintainable by the claimants, as the claimants are not aggrieved persons with regard to the fastening liability against the owner and the driver of the offending vehicle. Therefore, the appeal is required to be dismissed. He also relied upon the judgment of the Hon''ble Supreme Court in Samundra Devi and Others Vs. Narendra Kaur and Others, (2008) ACJ 2616 : AIR 2008 SC 3205 : (2008) CLT 1191 : (2008) 4 CPJ 25 : (2009) 153 PLR 145 : (2008) 11 SCALE 36 : (2008) 9 SCC 100 .

Heard Mr. Ma.P.Thangavel, learned counsel appearing for the appellants and Mr.J.Chandran, learned counsel appearing for the second respondent-Insurance Company and also perused the materials available on record very carefully.

No doubt, the second respondent-Insurance Company proved that the driver of the offending vehicle did not possess effective valid driving license at the time of the accident. Even Ex.A6-Charge Sheet had been filed against the driver of the offending vehicle under Sections 3 and 181 of the Motor Vehicles Act. The second respondent-Insurance Company also summoned the official, namely, Junior Assistant, Regional Transport Office, Mettupalayam and he was examined as RW1 and Ex.R3-Communication was marked to show that no driving license was issued to the Driver Selvaraj. Therefore, the second respondent-Insurance Company discharged its onus with regard to its defence that the driver of the offending vehicle did not possess valid driving license. In the absence of any valid driving license, there is no liability on the part of the second respondent-Insurance Company. However, the Tribunal fastened the liability on the driver and owner of the offending vehicle and directed them to pay the award amount.

It is well settled law for violation of policy condition that the second respondent-Insurance Company has to be directed to pay the award amount and the same has to be recovered from the owner of the offending vehicle. Therefore, the finding given by the Tribunal with regard to liability that the owner alone has to pay the amount is set aside and consequently, the second respondent-Insurance Company is directed to pay the entire award amount and recover the same from the first respondent-owner of the offending vehicle.

With regard to the maintainability of the appeal, Mr.J.Chandran, learned counsel appearing for the second respondent- Insurance Company relied upon the judgment of the Hon''ble Supreme Court in Samundra Devi and Others Vs. Narendra Kaur and Others, (2008) ACJ 2616 : AIR 2008 SC 3205 : (2008) CLT 1191 : (2008) 4 CPJ 25 : (2009) 153 PLR 145 : (2008) 11 SCALE 36 : (2008) 9 SCC 100 wherein it is held that if no appeal has been filed by the owner (or) driver of the offending vehicle, the second respondent-Insurance Company cannot be fastened with the liability and enhancement of the quantum of compensation is unwarranted. There is no quarrel with regard to the dictum laid in the said case. However, what has to be seen, whether the claimants are aggrieved parties or not. Naturally, the claimants are aggrieved parties as they are aggrieved over non-ordering of pay and recover against the second respondent-Insurance Company, as it is very difficult to recover the amount by the victim of the road accident, namely, first appellant''s husband directly from the owner.

It has been consistently held by the Hon''ble Apex Court including the judgment of three Judges Bench reported in National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 1 ACC 1 : (2004) ACJ 1 : AIR 2004 SC 1531 : (2004) 118 CompCas 396 : (2004) 1 JT 109 : (2004) 136 PLR 510 : (2004) 1 SCALE 180 : (2004) 3 SCC 297 : (2004) 1 SCR 180 : (2004) AIRSCW 663 : (2004) 1 Supreme 243 for violation of the policy condition, the second respondent- Insurance Company alone has to pay the amount and to recover the same from the owner.

In view of the authoritative declaration made by three Judges Bench of the Hon''ble Supreme Court, the judgment in Samundra Devi and Others Vs. Narendra Kaur and Others, (2008) ACJ 2616 : AIR 2008 SC 3205 : (2008) CLT 1191 : (2008) 4 CPJ 25 : (2009) 153 PLR 145 : (2008) 11 SCALE 36 : (2008) 9 SCC 100 referred by the learned counsel appearing for the second respondent-Insurance Company is not binding precedent. Therefore, this Court goes by judgment made by the Three Judges Bench of the Supreme Court.

The claimants are also aggrieved in a sense that adequate compensation has not been paid according to them. When the amount awarded is inadequate, the nomenclature to given to the aggrieved claimants are "aggrieved". Therefore, they have got every right to maintain the appeal.

Moreover, the provisions of Motor Vehicles Act are beneficially in nature. Technicality cannot be applied to decide about the compensation for the victims of the road accident. Therefore, the appeal filed by the claimants are maintainable.

It is the case of the claimants that the deceased was earning about Rs.10,000/- per month from the business. However, in the absence of any positive evidence, the Tribunal determined only a sum of Rs.3,000/- as monthly income. The accident occurred on 23.12.2007 and as per the judgment of the Hon''ble Supreme Court in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, (2014) 1 ACC 206 : AIR 2014 SC 1052 : (2014) AIRSCW 724 : (2014) 1 JT 569 : (2014) 1 RCR(Civil) 766 : (2014) 1 SCALE 377 : (2014) 2 SCC 735 , the Hon''ble Supreme Court determined monthly income of Rs.6500/- for the vegetable vendor and added 50% towards future prospects and determined Rs.9,750/- as monthly income. Since in the present case, the deceased was aged about 42 years, only 30% is required to be added towards future prospectus. Therefore, this Court re- determines the monthly income of the deceased as Rs.6,500/- along with 30% future prospectus. The calculation of the monthly income as well as the future prospectus are as follows:-

Rs.6,500/- + 30% = Rs.8,450/-

Since the size of the family is 5, the Tribunal rightly deducted 1/4th from his monthly income towards personal expenses and the same is confirmed by this Court. Loss of income is calculated as follow:-

Rs.6,500/- + 30% -1/4 = 6,338/-

As per the age of the deceased is 42 years, appropriate multiplier is 14 and the loss of income is calculated as follows:-

6500/- + 30% - 1/4 x 12 x 14 = Rs.10,64,784/-

The Tribunal had not awarded any amount towards loss of consortium to the first appellant and therefore, as per the judgment of the Hon''ble Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 , a sum of Rs.1,00,000/- is awarded towards loss of consortium. The Tribunal awarded a sum of Rs.1,00,000/- towards loss of love and affection in favour of the appellants, which is just and reasonable. Hence, the same is hereby confirmed. With regard to the other heads, a sum of Rs.5,000/- was awarded towards funeral expenses and a sum of Rs.1000/- was awarded towards transportation charges, which are on the lower side and hence, the same are enhanced to Rs.50,000/- towards funeral expenses and a sum of Rs.50,000/- towards transportation charges. Totally, a sum of Rs.13,64,784/- rounded of Rs.13,65,000/- along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit and costs. The appellants are not entitled to the interest for the delay period in filing the appeal.

In the result, the Civil Miscellaneous Appeal is partly allowed by enhancing a sum of Rs.13,65,000/- as compensation along with interest at the rate of 7.5% p.a., from the date of petition, till the date of deposit and costs.

As found earlier, the second respondent-Insurance Company is directed to pay the entire award amount along with interest and costs, within a period of four weeks, from the date of receipt of a copy of the judgment and to recover the same from the first respondent-owner. The appellants 2 to 5 are entitled to Rs.2,00,000/- each with proportionate interest and costs. The balance amount of Rs.5,65,000/- along with proportionate interest and costs would be paid to the first appellant. On such deposit being made, the appellants 1, 2 and 3 are permitted to withdraw their respective share amount along with interest as stated above. The minor share amounts (fourth and fifth appellants) shall be deposited in any of the Nationalised Bank, till they attain majority. The first appellant/mother is permitted to withdraw the interest once in three months. The appellants are directed to pay the requisite Court Fee within a period of two weeks.