New India Assurance Co. Ltd. vs Seema Devi and Others

Kuldip Singh, J.�By this single judgment, I will dispose of F.A.O. No. 1843 of 1998 filed by New India Assurance Co. Ltd. as well as cross-objections filed by respondent Nos. 1 to 4, Seema Devi, etc. Ved Parkash, husband of Seema Devi, father of claimant Nos. 2 and 3 and son of claimant No. 4, was aged about 30 years. He was working as truck cleaner in Gujarat Ambuja Cement Ltd., Duburji, Rupnagar. He was getting monthly salary of Rs. 2,000. On 8.1.1996, he was travelling in truck No. HP 11-1074 while returning from the factory premises of Gujarat Ambuja Cement Ltd. after unloading the clinker to Daria Ghat (H.P.) where the cement plant of respondent No. 5, i.e., Gujarat Ambuja Cement Ltd. is situated. The truck was driven by Balbir Singh at a high speed and in careless manner. The said truck met with accident on Bilaspur-Shimla Road near Khalota Mandir. The truck rolled down to the depth of 400 ft. The driver of the truck got multiple grievous injuries. Ved Parkash died at the spot. Claimants claimed that they had to spend more than Rs. 10,000 on the cremation and last rites of the deceased. He was the only bread earner of the family. His mother Suraksha Devi is aged about 60 years. All the claimants were fully dependent upon the deceased. They claimed compensation to the tune of Rs. 5,00,000. Gujarat Ambuja Cement Ltd., respondent No. 1 before the Tribunal, denied that deceased was working with it. The accident was also denied. The insurance company, respondent No. 3 before the Tribunal, also took the plea that the truck has been falsely named in the accident. Following issues were framed for the disposal of the claim petition:

(1) Whether Ved Parkash died in the area of village Namhol, District Bilaspur on 8.1.1996 in an accident with vehicle No. HP 11-1074 which was rashly and negligently driven by respondent No. 2?

OPP

(2) To what compensation the claimants are entitled? If so, from whom?

OPP

(3) Whether respondent Balbir Singh was having valid driving licence at the time of accident?

OPR

(4) Relief.

The Tribunal accepted the version of the claimants regarding rash and negligent driving of the offending vehicle by Balbir Singh, respondent No. 2. The Claims Tribunal took the income of the deceased to be Rs. 1,500 per month and determined the dependency of the claimants to be at Rs. 1,200 per month. The Tribunal applied the multiplier of 15 and calculated the loss of dependency at Rs. 2,16,000. Rs. 10,000 on account of last rites and ceremonies was allowed. It was also held that on account of deposit of Rs. 1,58,843 with the Commissioner under the Workmen''s Compensation Act, 1923 (in short ''the 1923 Act''), the present petition is not barred. Accordingly, the award of Rs. 2,26,000 was passed. Aggrieved by the said award, the insurance company has come up in appeal, whereas the claimants have filed cross-objections.

I have heard learned counsel for the parties and have gone through the records of the case.

First of all, I will take up the appeal of the insurance company. Learned counsel for the insurance company has argued that in this case admittedly the deceased was an employee of Gujarat Ambuja Cement Ltd., Duburji, Rupnagar. He was covered under the 1923 Act. The statement of Anil Chawla, Legal Officer of New India Assurance Co. Ltd., shows that the insurance company has deposited compensation of Rs. 1,58,843 with the Commissioner under the 1923 Act on account of death of Ved Parkash. Therefore, it has been argued that the claimants are precluded from making any claim under the Motor Vehicles Act, 1988 (in short ''the MV Act''). The matter was recently examined by the Hon''ble Supreme Court in Oriental Insurance Company Ltd. Vs. Dyamavva and Others, , wherein it was observed as under:

"(12) The issue to be determined by us is, whether the acceptance of the aforesaid compensation would amount to the claimants having exercised their option, to seek compensation under the Workmen''s Compensation Act, 1923. The procedure under section 8 aforesaid (as noticed above) is initiated at the behest of the employer ''suo motif, and as such, in our view, cannot be considered as an exercise of option by the dependants-claimants to seek compensation under the provisions of Workmen''s Compensation Act, 1923. The position would have been otherwise, if the dependants had raised a claim for compensation under section 10 of the Workmen''s Compensation Act, 1923. In the said eventuality, certainly compensation would be paid to the dependants at the instance (and option) of the claimants. In other words, if the claimants had moved an application under section 10 of the Workmen''s Compensation Act, 1923, they would have been deemed to have exercised their option to seek compensation under the provisions of the Workmen''s Compensation Act. Suffice it to state that no such application was ever filed by the respondents-claimants herein under section 10 aforesaid. In the above view of the matter, it can be stated that the respondents-claimants having never exercised their option to seek compensation under section 10 of the Workmen''s Compensation Act, 1923, could not be deemed to be precluded from seeking compensation under section 166 of the Motor Vehicles Act, 1988."

Therefore, it follows that claimants had the option either to claim compensation under the Workmen''s Compensation Act, 1923 or under the Motor Vehicles Act, 1988. The compensation was deposited voluntarily by the insurance company with the Commissioner under the 1923 Act. There is nothing on file to show that the claimants have withdrawn that compensation. There is also nothing on the file to show that the claimants had ever made the claim under the Workmen''s Compensation Act. It being so, their claim under the Motor Vehicles Act, 1988 is maintainable. Accordingly, I do not find any merit in the appeal of the insurance company and the same is hereby dismissed.

Now, coming to the cross-objections of the claimants, the learned counsel for the claimants has argued that though the income of the deceased Ved Parkash was calculated by the Tribunal at Rs. 1,500 per month, but future prospects were not added as per judgment of the Hon''ble Supreme Court in Rajesh and Others Vs. Rajbir Singh and Others, . As the deceased was 30 years of age, therefore, 50 per cent of his income for future prospects is to be added in his income. It being so, his income will come to Rs. 1,500 + Rs. 750 = Rs. 2,250. Keeping in view the fact that the number of dependants are four, Rs. 550 has to be deducted as personal expenses and the dependency of the claimants comes to Rs. 1,700. As per the judgment of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier of 17 has to be applied in place of 15. Therefore, the amount of compensation comes to Rs. 1,700 x 12 x 17 = Rs. 3,46,800. Rs. 25,000 for funeral expenses and last rites of the deceased is also allowed.

Learned counsel for the claimants has also argued that Rs. 1,00,000 should be awarded to the claimants on account of loss of consortium as per the authority in Rajesh and Others Vs. Rajbir Singh and Others, . I am of the view that in the said authority, the compensation was calculated as per the value of the rupee calculated at the time of accident in said case which was the year 2007. In this case, accident pertains to the year 1996. If the contention of the learned counsel for the claimants is accepted that would mean that Rs. 1,00,000 along with interest is payable. Till date, i.e., after 17 years, compensation will triplicate. Therefore, for loss of consortium, Rs. 25,000 is allowed. Another Rs. 10,000 is allowed on account of loss of love and affection to the children. The total amount of compensation comes to Rs. 4,06,800 which shall be payable with 9 per cent interest per annum from the date of filing of the claim petition till realization. The amount of compensation granted by the Tribunal accordingly stands enhanced to the above noted extent. Needless to say that in last 18 years, the minors have become major, therefore, the amount of compensation shall be disbursed to the claimants in cash by depositing the same in their bank account to be furnished before the Tribunal. The cross-objections of the claimants are accordingly allowed. In view of the above discussion, the appeal, i.e., F.A.O. No. 1843 of 1998 filed by the insurance company is dismissed and the cross-objections filed by claimants are allowed.