National Insurance Company vs Krishna Kour and Others

Hasnain Massodi, J.—The Civil First Miscellaneous Appeal in hand, is directed against the award passed by Motor Accident Claims

Tribunal, Jammu on 27.4.2005 in claim petition No. 343/Claims titled Smt. Krishna Kour & Ors. v. Bhajdev Singh and Ors. The appeal has been

filed against the following factual background.

Shri Ashok Kumar Sharma S/o Sh Vaid Nath R/o Delli Channi Himmat, Jammu on 22nd October, 2000 at around 6.45 PM while driving a

passenger vehicle (Matador) having registration No. JK02G - 9946 rashly and negligently knocked down Shri Ajit Singh R/o H.No. 79 Lane No.

13 Sector 6, Digiana, Jammu. Shri Ajit Singh, sustained multiple injuries, was shifted to JMC Hospital Jammu, where he succumbed to his injuries.

Shri Krishna Kour and her three minor children on 16th August, 2002 filed a claim petition before Motor Accident Claims Tribunal, Jammu. The

claim petition u/s 166 of Motor Vehicles Act, 1988 was registered as No. 343/Claims. The claimants - respondents 1 to 4 herein pleading that the

deceased had a monthly income of Rs. 10,000/- through business and was 35 years of age at the time of accident, claimed compensation of Rs.

6.00 lac on account of death of Shri Ajit Singh in the vehicular accident. The claim petition, was resisted by the appellant - Insurance Company on

the grounds that driver of the offending vehicle had not effective and valid driving licence at the time of accident and the appellant - Insurance

Company was not liable to pay the compensation because of breach of policy by owner of the vehicle - respondent No. 5 in the appeal. The

appellant did not specifically controvert the case set up by the respondents 1 to 4 before Tribunal that deceased was 35 years of age and had an

income of Rs. 10,000/-from his business. However, it was admitted that the offending vehicle was insured with appellant - Insurance Company.

There was a wake exception that the compen-

sation claimed to petitioner was against the ""established law"". The Tribunal on perusal of the pleadings settled following issues: -

Whether an accident took place on 22.10.2000 near Police Lines Gate Jammu due to rash and negligent driving of offending vehicle No.

JK02G/9946 by its driver/respondent No. 2 in which deceased Ajit Singh has died? OPP

If issue No. 1 is provided in affirmative whether petitioners are entitled to the compensation if so to what amount and from whom? OPP

Whether driver of offending vehicle the time of accident was not holding a valid and effective driving licence? OPP

Relief.

The respondents 1 to 4 examined one witness in support of the claim petition. The respondent No. 1 also stepped in the witness box. Reliance

was also placed on FIR No. 528 of 2000 U/s 279/337 RPC Motor Vehicles Act registered at Police Station, Gandhi Nagar regarding the

vehicular accident in question and the postmortem examination report of the deceased. The appellant Insurance Company did not adduce any

evidence in rebuttal or to prove the issues onus whereof was placed on the company. The Tribunal on perusal of the pleadings and the evidence

brought on the file assessed an amount of Rs. 8,36,000/- on account of loss of dependency, shock and agony, loss of love and affection, loss of

consortium and funeral expenses. The compensation assessed was directed to carry interest @ 6% per annum from the date of filing of claim

petition till its final realisation/payment of the award amount.

The award dated 27.04.2005 is questioned in the present Civil First Miscellaneous Appeal on the ground that amount awarded is far more than

the amount claimed in the petition. It is pointed out that whereas the respondents 1 to 4 claimed an amount of Rs. 6.00/- lac as compensation on

account of death of their bread earner, the Tribunal erroneously proceeded to award of Rs. 8,36,000/- in favour of respondents 1 to 4. The

Tribunal is said to have without any evidence on file assessed Rs. 6,000/- as monthly income of deceased and after allowing deduction of 1/3rd of

income on account of personal expenses took into account Rs. 4,500/- as monthly loss to the respondents 1 to 4 while there was no evidence to

sustain such a conclusion. The appellant is said to have fallen in error while taking the age of the deceased as 32 years unmindful of para-6 of the

claim petition wherein the deceased shown to have been 35 years of age at the time of his death. It is insisted that the Tribunal was not right in

applying multiplier of 14 while working out loss of dependency and thereafter, assessing the compensation. The appellant also questions award of

Rs. 30,000/- on account of loss of love and affection and as also award amount of Rs. 30,000/- on account of shock and agony. It is contended

that award of compensation on said counts is illegal and not permissible under law.

I have gone through the memoranda of appeal as also the record received from Tribunal. I have heard learned counsel for the parties.

The ground urged in the appeal to question the award, that the Tribunal while awarding the amount more than the amount claimed by the

respondents 1 to 4 in the claim petition has rendered the award liable to be set aside, is specious and better to be ignored. It needs no emphasis

that the Tribunal in terms of Section 168, Motor Vehicles Act, is under statutory obligation to assess ""just compensation"" payable to the

dependents of person who has lost his life in a vehicular accident. The duty is to be discharged irrespective of the case set up by the petitioner. The

Tribunal must not feels handicapped because of the claim set up by the dependents of the victim of a vehicular accident in assessing the ""just

compensation"" payable to the dependents. The rules of pleadings and even in some cases, rules of evidence are not to be strictly followed in Motor

Accidents Claims cases. The reasons for such a legal preposition is that dependents of a victim may not be well equipped to project each and

every claim or the extent of the claim that they may legitimately make while filling a claim petition under Motor Vehicles Act. It does not need to be

emphasised that the Act provides an efficient and hassle free mechanism for adjudication of claim that otherwise, falls within jurisdiction of a Civil

Court. The object is that the dependents of a victim of vehicular accident who all of a sudden lose their bread earner and are suddenly pushed to a

state of deprivation, are not caught in a cobweb of procedural wrangles to get their claim or compensation settled. It is to achieve the said object

that the proceedings for settlement and recovery of compensation can be initiated by making a simple application, free from usual formalities,

before the Tribunal at any place in the Country irrespective of the place of accident. Going into question of multiplicand and multiplier applied by

the Tribunal, it needs to be pointed out that the appellant did not specifically controvert in its objections any of the factual averments made in the

claim petition. The appellant did not refute that the deceased was 35 years of age at the time of accident or had an income of Rs. 10,000/- per

month from his fruit business run at Jammu and other parts of the State. The appellant - Insurance Company did not even bother to adduce any

evidence in rebuttal to the evidence adduced by the respondents 1 to 4. There is no reason for the appellant to find fault with the conclusions

arrived at by Tribunal as regards monthly income of the deceased or the age of deceased at the time of his accidental death.

The Tribunal as against the Rs. 10,000/- claimed by the respondents 1 to 4 to have been income of the deceased at the time of his death has

taken into account Rs. 4,500/- per month as income of the deceased and after making an addition of 50% on account of future prospects taken an

aggregate of Rs. 6,750/- as the income of the deceased. The Tribunal, thereafter, allowing deduction of 1/3rd or account of personal expenditure

has worked out annual income of the deceased as Rs. 54,000/.

The Supreme Court in Ningamma and Another Vs. United India Insurance Co. Ltd., , while dealing with the duty passed on the Tribunal to

award ""just compensation"" irrespective of the claim set up by the dependents of victim of vehicular accident observed;

Recently, this Court, in the case of Raj Rani & Ors. v. Oriental Insurance Co. Ltd. & Ors., [C.A. Nos. 3317-3318 of 2009 @ SLP (C) I

Nos.27792-27793 of 2008 pronounced on 06.05.2009], wherein one of us (Hon'ble Justice S.B. Sinha) has taken the view that it is not

necessary in a proceeding under the MVA to go by any rules of pleadings or evidence. Section 166 of the MVA Speaks about ""Just

Compensation"". The court's duty being to award ""Just Compensation"", ii will try to arrive at the said finding irrespective of the fact as to whether

any plea in that behalf was raised by the claimant or not.

The Court further observed;

Undoubtedly, Section 166 of the MVA deals with ""Just Compensation"" and even if in the pleadings no specific claim was made u/s 166 of the

MVA, in our considered opinion a party should not be deprived from getting ""Just Compensation"" in case the claimant is able to make out a case

under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty bound and entitled to award

Just Compensation"" irrespective of the fact whether any plea in that behalf was raised by the claimant or not.

There is substance in the case set up by the appellant that the Tribunal ought not to have made any additions on account of future prospects, to

the income assessed by the Tribunal. The deceased admittedly, was running a small business and was thus self employed. In such a case as laid

down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The Tribunal has to take into account only actual income

as assessed by it without any addition on account of future prospects, unless there are any special circumstances which call for such additions. In

the present case no such special circumstances appear to have been brought to notice of the Court as would warrant addition of any amount on

account of future prospects to the income assessed. However, the Tribunal has wrongly allowed deduction of 1/3rd on account of personal

expenditure. A person with four dependents can ill afford to spend 1/3rd of his income on personal expenditure. In such a case as laid down in

Sarla Verma's case (Supra) only 1/4th of the income is to be deducted on account of personal expenses. The multiplier applied by the Tribunal

having regard to the age of deceased at the time of death is on the lower side. The correct multiplier is to be applied where age of deceased at the

time of accident is between 30 and 35, as laid down in Sarla Verma's case (Supra) is 16 and not 14 as applied by the Tribunal.

To sum up, the Tribunal ought to have as per its own calculation taken into account Rs. 4500/- as monthly income of the deceased and after

allowing a deduction of 1/4th on account of personal expenses worked out annual loss of dependency as Rs. 40,500/- {(4500 - 4500/4) X 12}.

The loss of dependency taking 16 as a multiplier would work out as Rs. 6,48,000/-. The Tribunal, however, acted without jurisdiction while

making additions on account of loss of love and affection and on account of shock and agony.

It is well settled law that the Tribunal in addition to loss of dependency may award compensation on account of loss of consortium, loss of

estate, medical expenses and funeral expenses. The Tribunal cannot on its own add new heads of compensation and award compensation on

account of loss of love and affection, pain, shock and agony as has been done by the Tribunal in the present case.

So viewed, the amount of Rs 30,000/- and Rs 30,000/- awarded on account of loss of love and affection, and shock and agony, must be

deleted from the compensation worked out by the Tribunal. The respondents 1 to 4 against the said backdrop are entitled to recover following

compensation from the appellant loss of dependency 6,48,000/-, loss of consortium Rs. 15,000/-, funeral expenses Rs. 5,000/- and loss of estate

Rs. 5,000/- = 6,73,000/-. The rate of interest awarded does not deserve a fresh look.

For the reasons discussed above, the award dated 27.04.1985 is modified as under;

The appellant Insurance Company shall pay an amount of Rs. 6,73,000/- less by interim compensation, if any, awarded, with interest @ 7.5 %

on the amount awarded on the date of filing of claim petition till its final realisation to respondents 1 to 4. The directions, as regards, deposit of

award amount in the name of the claimants under fixed deposit is left unaltered. The Registry after working out the amount due to the respondents

in terms of the modified award shall return any part of amount deposited with the Registry over and above the amount so worked out, to the

appellant - Insurance Company through payees account cheque and in accordance with rules.