Mrs. Satya Bagga and Others vs Subhash Singh and Others

G.C. Garg, J.—This order will dispose of F.A.Os. 1371 and 1467 of 1991 as these are directed against the same award of the Claims Tribunal passed in MACT Case No. 100 of 1989 on 9.9.91. Original paperbook of F.A.O. 1467 of 1991 was burnt in fire. Learned Counsel for the parties have made available a typed copy of paper-book of the said appeal, which is taken on record as original paper-book after re-construction.

Om Parkash Bagga died in a road accident which took place on 4.9.1989. Claim Petition 100 of 1989 u/s 166 of the Motor Vehicles Act was filed by his widow Satya Bagga and two sons claiming compensation for the death of Om Parkash. Claims Tribunal after appreciating the evidence led by the parties came to the conclusion that the deceased was aged 53 years and was working as a Professor in the Panjab University at the time of the accident. As per the salary certificate, Exhibit A-4 produced in evidence, the deceased was drawing a gross salary of Rs. 6,585/- per month at the time of the death. Claims Tribunal thus relying upon the salary certificate, Exhibit A-4, came to the conclusion that in the face of that certificate there cannot be any doubt about the income of the deceased. After making deduction of 1/3rd, the dependency of the appellants was assessed at Rs. 4,000/- per month. Claims Tribunal after observing that the deceased, who was 53 years of age at the time of the accident, would have retired at the age of 60 years, applied a multiplier of 7 and accordingly, awarded a compensation of Rs. 3,36,000/- in favour of the claimant-appellants. Claims Tribunal, however, in the operative part of the award, ordered that this compensation shall be payable by all the three respondents, namely, Subhash Singh, Satish Kumar and driver and the owner respectively, of the offending truck and the Oriental Insurance Co. jointly and severally. It was further ordered that the liability of the Insurance Company shall be to the extent of Rs. 1,50,000/- and the remaining amount of compensation of Rs. 1,86,000/- would be payable jointly and severally by the driver and the owner of the offending truck. The amount payable to each claimant was apportioned as detailed in the award.

F.A.0.1371 of 1991 has been filed by the Claimants seeking enhancement of compensation and F.A.O. No. 1467 of 1991 has been filed by Satish Kumar, the owner of the offending truck challenging the award of the Claims Tribunal. This is how both these appeals are being disposed of by a single order.

In F.A.0.1371 of 1991, learned Counsel for the appellants submitted that the appellants are entitled to a higher amount of compensation. According to the learned Counsel, not only the dependency as assessed by the Claims Tribunal is on the lower side but the multiplier adopted is also not appropriate. Learned counsel submitted that having regard to the income of the deceased and the number of dependents left behind by him, dependency could not be assessed at less than Rs. 4,500/- per month and at least a multiplier of 10 ought to have been applied for working out the amount of compensation. Learned counsel also submitted that no compensation has been awarded as consortium and on account of funeral expenses.

After hearing learned counsel for the parties, I am of the opinion that the first contention of the learned counsel has no merit. It stood proved on record beyond doubt that the deceased was employed as Professor in the Panjab University and was earning a sum of Rs. 6,585/- per month from this job. He is survived by his wife and two major sons, aged 23 years and 20 years respectively at the time of filing of the claim petition. The sons being major are also expected to earn something and they cannot be said to be fully dependent upon the deceased. The deceased was a Professor and thus expected to spend at least 1/3rd of his income to maintain himself according to his status. Claims Tribunal thus after deducting 1/3rd of his income towards his personal expenses, has rightly assessed the dependency of the appellants on the deceased at Rs. 4,000/- per month.

As regards multiplier, the deceased was 53 years of age at the time of the accident and as per the evidence led on the record, he could be in service for seven years more. He being 53 years of age, the age of his wife can be taken near about 48 to 50 years at the time of the accident which took place in September, 1989. Thus taking all these circumstances into consideration, the multiplier of seven adopted by the Claims Tribunal, in my opinion is quite just and appropriate.

In view of the above, I see no ground to interfere with the conclusion arrived at by the Claims Tribunal regarding dependency of the appellants and the multiplier adopted. However, from a perusal of the impugned award, I find that no compensation has been awarded as consortium and on account of the expenses that the appellants might have spent on his funeral and performance of last rites etc. On a consideration of the matter, I award a sum of Rs. 8,000/- as consortium and funeral expenses etc. After adding this amount of Rs. 8,000/- the compensation payable to the appellants would thus come to Rs. 3,44,000/-.

As regards F.A.O. 1467 of 1991, Mr. Anupam Gupta, learned counsel appearing on behalf of the appellant submitted that Claims Tribunal erred in ordering that the Insurance Co. is liable to pay compensation only to the extent of Rs. 1,50,000/- and rest of the amount is payable by the driver and the owner of the truck jointly and severally. Contention of the learned counsel is that the entire amount is payable by the Insurance Co. and at the most all the respondents are jointly and severally liable to pay the compensation and the Claims Tribunal was not right in restricting the liability of the Insurance Company to the extent of Rs. 1,50,000/- and the balance by the remaining respondents. Learned Counsel in support of his contention, placed strong reliance on a Division Bench judgment of this Court in Puja Roller Flour Mills (Pvt.) Ltd. Vs. Smt. Satya Bala Jain and Others, and National Insurance Company Limited Vs. Puja Roller Flour Mills (Pvt.) Ltd. and Others, .

On a consideration of the matter, I am of the opinion that the contention of the learned Counsel has merit. In the former reported case, the Claims Tribunal had held that Insurance Company was only liable to pay an amount to the extent of Rs. 1,50,000/- as is the position in the present case. It was submitted by the counsel for the owner of the offending vehicle that the accident in that case had taken place on 20.9.1989 after the coming into force, the new Act with effect from 1.7.1989 and thus Claims Tribunal failed to take note of the amended provisions of the Act which envisage that the liability of the Insurance Co. is unlimited. On a consideration of the matter and following the view already taken by a Division Bench of this Court in F.A.O. 1174 of 1991 National Insurance Company Ltd. v. Raj Rani, it was held that the liability of the Insurance Company is unlimited and its liability to pay the entire amount of compensation shall be joint as well as several. A few years later, this question came to be considered in Puja Roller Flour Mills (Pvt.) Ltd. Vs. Smt. Satya Bala Jain and Others, noticed above. The LPA Bench also happened to examine judgment rendered in Raj Rani''s case (supra) and on a detailed consideration of the entire matter, it was held that the contract of policy speaks of statutory liability and when there is a change of law on the date of accident, the provisions of the changed law will apply. It was thus further held that the liability of the Insurance Company is unlimited because of the provisions contained in sub-section (2) of Section 147 read with Section 217(2)(c) of the Motor Vehicles Act, 1988. Now coming to the facts of the matter in hand, the accident in the present case took place on 4.9.1989 and the amended provisions came into force w.e.f. 1.7.1989 whereby the liability of the Insurance Company was held to be unlimited. The offending truck was insured with the Insurance Company vide insurance policy Exhibit R.1, which was valid from 17.5.1989 to 16.5.1990. Learned counsel appearing on behalf of the respondents could not refer to any law taking a contrary view than the one taken in the former two reported cases. Thus in the wake of the legal position as noticed in the above referred judgments, the contention of learned counsel for the appellant deserves to be accepted. On a cpnsideration of the matter, it is held that liability of the respondent-Insurance Co. in this case was unlimited and its liability to pay the entire amount of compensation as awarded by the Claims Tribunal and thereafter enhanced herein shall be joint as well as several.

For what has been stated above, the impugned award is modified to the extent that the appellants shall be entitled to a total compensation of Rs. 3,44,000/- with interest at the rate of 12% per annum from the date of filing of the claim petition till realisation minus the amount, if any, already received. Having regard to the apportionment made by the Claims Tribunal, it is ordered that appellant Satya Bagga, the widow of the deceased Om Parkash Bagga shall be entitled to get a compensation of Rs. 2,58,000/- and the balance amount of compensation of Rs. 86,000 shall be payable equally to Arun Bagga and Amit Bagga, the sons of the deceased. The compensation shall be payable by all the respondents jointly and severally. The appeal is disposed of in the above term.