Patiram and Others vs Lokesh and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by the claimants being dissatisfied with an Award dated 4th February 2005 in Claim Case No. 238/03 passed by the Second Additional Member of the Motor Accident Claims Tribunal, Shivpuri (M.P.) for enhancement of the compensation. The facts of the case are recapitulated as under:-

It is alleged that on 7th October 2003, Goru Kushwah, father of the complainants was traveling in a Jeep (Tempo Trex) bearing registration No. MPGT-9006 from village Devri Khurd to Shivpuri. Lokesh, driver drove the jeep in a rash and negligent manner consequently, it turned turtle near village Singhniwas, resulting Goru Kushwaha sustained grievous injuries and succumbed on next day of the accident in the District Hospital where he was admitted. On the report, an F.I.R. was lodged on which a crime for commission of offence under sections 279 and 337 of I.P.C. was registered against the driver Lokesh and after investigation the charge-sheet was filed before the Criminal Court. The deceased was an agriculturist and vegetable vender and was earning monthly Rs. 6,000/- in total. In a claim petition before the tribunal, the claimants/dependents and heirs of the deceased prayed for an Award of Rs. 14,26,000/- alongwith an interest against the owner, driver and the Insurance Company. On considering the evidence of the parties, the learned tribunal passed an Award of Rs. 52,000/- against the respondents. Being aggrieved by an Award, the claimants have presented this appeal.

The contention put forth by the learned counsel appearing for the Insurance company/respondent No. 3 is that the driver had driven the vehicle in a rash and negligent manner and caused the accident. It was further submitted that the driver was not having valid and effective driving licence and the vehicle involved in accident was registered temporally for personal use. Hence, the vehicle was driven against the law and terms of the insurance policy. Therefore, the Insurance Company could not be held liable to indemnify the insured.

As regards rest respondents, i.e., owner and driver of the vehicle, they did not appear and remained ex-parte before the tribunal, so the Award was passed in that manner against them.

Per contra, learned counsel appearing in this court on behalf of respondent No. 2-owner submitted that the learned tribunal passed the Award exorbitantly which should be modified by reducing the compensation. Apart the aforesaid, it is also contended that the vehicle involved in accident was insured with the Insurance Company and the driver was having valid driving licence, so the indemnity of the insurer is extended to satisfy the liability of the insured of the vehicle.

In view of the aforesaid submissions, the present appeal involves two questions for consideration; firstly the award amount passed by the tribunal in favour of claimants/appellants in the light of the facts and circumstances of the case requires to be enhanced and secondly the Insurance Company of the insured vehicle is liable to indemnify the vicarious liability to pay the award on behalf of insured to the claimants of the deceased who died in an accident?

Heard the learned counsel for the parties. Also perused the record of the case with relevant laws.

There is no dispute that the death of Goru Kushwah, father of the claimants/appellants in an accident resulted on account of negligent and rash driving of the vehicle by the driver of the insured vehicle. It is also not in dispute that the deceased was an agriculturist and was earning monthly income by vegetable selling as well as agricultural work. It is also not disputed that the vehicle was insured with the respondent No. 3/Insurance Company for personal use. No premium for gratuitous or paid passengers under commercial use was paid except the driver of the vehicle. On the date of accident, the deceased and others who were traveling in a vehicle were paid passengers. The learned tribunal while dealing with this aspect also found that the persons in vehicle were traveling as paid fare passengers and insured vehicle was used for carrying these un-authorised passengers for which no premium was paid to the insurer. The aforesaid conclusion of the learned tribunal finds support from the statements of witness Anand Kumar, Assistant Administrative Officer (NAW-1) and Pawan Kumar Jain (NAW-2), Assistant Grade-II, posted in Regional Transport Office Shivpuri as they deposed that the vehicle was driven against the terms of the policy of the vehicle involved in accident, therefore, the Insurance Company was not liable to indemnify the vicarious liability of the owner insured. Having considered the said findings based upon proper appreciation of the evidence on record, this court does not find any infirmity or illegality in recording the same.

As regards the compensation, it is contended by the learned counsel for the claimants/appellants that the tribunal assessed compensation of Rs. 15,000/- annually for loss of income on imagination and deducted 1/3rd for personal living expenses and dependency at 2/3rd for dependents and applied multiplier of 5 and calculated compensation at Rs. 50,000/-. In addition to it, Rs. 2,000/- was awarded against funeral expenses. It is not disputed that the deceased was aged 55-60 years and was earning Rs. 2,000/- monthly from selling vegetable and Rs. 4,000/- monthly from agricultural work but after death of Goru Kushwah (deceased), his legal heirs are getting income from agricultural work, which has been considered by the learned claims tribunal while dealing with Issue No. 3. So, there is no loss from agricultural side to them. Hence, after deducting 50% towards personal and living expenses against monthly earning of Rs. 2,000/- from selling vegetables, as the claimants are majors and earning members and among them one is married daughter, the annual dependency is calculated at Rs. 12,000/-.

As regards multiplier applied in determination of compensation, it is seen from the evidence that the deceased was aged about 55-60 years. In the case of New India Assurance Co. Ltd. Vs. Charlie and Another, , the Hon. Apex Court came to hold that choice of multiplier is determined by the age of the deceased or the claimant whichever age is higher. Hence, taking the age of the deceased to be 55 years, it is held that the learned claims tribunal has not committed any illegality in applying the multiplier of 5. So, applying the multiplier of 5, the financial assistance to the family comes to Rs. 60,000/-. Since the deceased succumbed to injuries on the next day of accident during treatment in the hospital, the claimants are entitled for medical expenses of Rs. 2,000/- as well as transportation charges from hospital to their residence despite of the fact that no accounts in this regard are submitted on record of the tribunal. The claimants are further held entitled to receive compensation of Rs. 2,000/- for funeral expenses, and Rs. 15,000/- for love and affection. In this manner, the compensation amount will be Rs. 79,000/- (Rs. Seventy Nine Thousand Only) alongwith 7% interest per annum, from the date of petition before the tribunal till actual payment is made, which would be payable by the owner having become vicariously liable for payment of compensation on account of negligence caused by the employed driver of his vehicle involved in the accident. Resultantly, the respondent No. 3/Insurance Company is hereby exonerated from indemnifying the liability to pay the award amount to the claimants/appellants on behalf of the insured. With the aforesaid modification in the award, the appeal stands disposed of with no order as to costs.