Ramubai and Others vs Bhagat Singh and Others

S.R. Waghmare, J.—By these two Miscellaneous Appeals have been taken up together since they arise out of the common award and dealt by the same Court and passed common judgment. However, claims case No. 36/12 had been filed by the claimants for enhancement and claim case No. 40/12 had been filed by the Owner and driver. Both the appeals are, therefore, decided by this common judgment.

Briefly stated the facts of the case are that the claimant Amarsingh along with his brother Shankarlal was travelling in a bus bearing No. MP 13-P-0232 from Berchha and going towards Shajapur. Sajjanlal @ Sajjanlal Luhar and applicant Mukesh were also sitting in the same bus and due to rash and negligent driving of the driver, near village Peepliya Gopal bridge on the Berchha road caused the bus to turn turtle in the culvert; as a result of which all the passengers received injuries and during the treatment Amarsingh and Sajjanlal succumbed to their injuries. Hence, the legal representatives of these two deceased filed separate cases for compensation before the Tribunal. Non-applicant Nos. 1 and 2 had submitted that the bus was insured with the non-applicant No. 3 the Insurance Company and denied all the allegations and stated that a false case has been preferred against them. They even denied that deceased Amarsingh and Sajjanlal travelled as passengers.

The non-applicant No. 3 the New India Insurance Company resisted the claim stating that the legal representatives of the deceased have failed to file any documents along with the claim especially regarding the income of the deceased and took up the stock plea that the driver did not have a valid licence and did not have any permit and there is violation of conditions of the insurance policy and hence, the Insurance Company has denied the liability.

The Tribunal however, on considering the evidence and the claim under Section 166 of the Motor Vehicles Act awarded a sum of Rs. 4,11,400/- to be paid jointly and severally by the non-applicants owner and driver, however, exonerated the Insurance Company on the ground that there was no fitness certificate regarding the disputed vehicle and hence there was violation of conditions of the insurance policy and it is also registered the claim that the Insurance Company shall be liable to pay the compensation and recover the same from the insurer and hence cited several cases. The Tribunal also held that since there was a violation of condition of the policy and the Insurance Company was not liable for the compensation. The Tribunal however, awarded the above mentioned amount in Claim Case No. 36/12. Hence, the present appeals both by the claimants claiming enhancement; and by the owner and driver praying for setting aside the impugned award and for making the Insurance Company liable to pay the compensation since the alleged vehicle was insured, according to the provisions of law and the owner and driver were not liable to pay the amount.

Shri G.K. Neema, learned Counsel for the claimants has vehemently urged the fact that deceased Amarsingh was only 50 years of age at the time of the accident and he was carrying on his livelihood by construction work and was earning Rs. 7,500/- per month; whereas the Tribunal has erred in assessing the income of the deceased at Rs. 250/- per day as labour charges and that according to the ration card he was living below the poverty line and was earning less than Rs. 1,000/- per month. The employer has also not been examined and according to Ex. P/11 deceased Amarsingh was a skilled labourer. However, no valid licence number of a contractor was available with the certificate. The deposition of Masid Khan also did not indicate that the deceased was not receiving any fixed income. And hence, notional income of Rs. 3,000/- has been assessed by the Tribunal since there was larger number of dependents like parents, wife and children and the amount awarded is on a lower side and hence, it needs to be enhanced. And taking into consideration of Rs. 2,400/- per month the income has been assessed and multiplier of 13 has been used. The dependency has been calculated at Rs. 3,74,400/- and Rs. 5,000/- has been awarded towards loss of consortium and Rs. 25,000/- has been awarded to the children for loss of affection and the mother has been awarded Rs. 5,000/- and Rs. 2,000/- has been awarded for the funeral expenses. Counsel submits that these amount are too meager under the circumstances and nothing has been properly awarded towards loss of consortium since the widow of the deceased is too young and the loss of income has also not been properly assessed according to Counsel and nothing has been paid till today.

On considering the same I understand that the compensation awarded to the claimants must be just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in various cases in relation to several heads taken note of supra with reference to evidence brought on record by the parties. Indeed in such cases. However, no fixed or any static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the Courts have to work out award of reasonable compensation to the claimant for the injuries sustained. To bolster his submissions, Counsel for the claimants placed reliance on 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 , United India Insurance Co. Ltd. Vs. Puran Mal and Others, (2014) 3 ACC 261 : (2014) 3 RCR(Civil) 792 : (2014) 1 RLW 693 and United India Insurance Co. Ltd. Vs. K.M. Poonam and Others, (2011) ACJ 917 : (2011) 3 JT 149 : (2011) 162 PLR 477 : (2011) 2 RCR(Civil) 194 : (2011) 2 SCALE 568 : (2011) 2 SCR 1026 : (2011) 3 TAC 376 : (2011) AIRSCW 2802 .

Shri Sanjay Mehra, learned Counsel for the non-applicant Insurance Company has however, submitted that the owner and the driver are liable to pay the compensation and the Tribunal had rightly exonerated the Insurance Company since the disputed vehicle did not have a fitness certificate as per provisions of the Motor Vehicles Act.

Shri Manish Vijayvargiya, learned Counsel for the owner and driver has drawn serious objection regarding exoneration of the Insurance Company especially in the cross-appeal bearing M.A. No. 343/2015 and also prayed that the amount already awarded is just and proper and the point of liability of the Insurance Company shall however, be taken up later. At present the calculation and re-assessment of the award needs to be considered whether the income of the deceased has not been properly assessed. Deceased Amarsingh was a skilled labourer and he was earning Rs. 250/- per day and hence the loss of income is re-assessed thus:

Taking Rs. 4,000/- per month which comes to Rs. 4,000 x 12 = 48,000/- per annum deducting 1/5th the deceased must be spending on himself i.e. Rs. 38,400/- (48000 - 9600 = 38,400/-) and applying the multiplier of 13 under Schedule II of Section 166 of the Motor Vehicles Act the amount will come to Rs. 48,000 - 9,600 = 38400 x 13 (Rs. 4,99,200/-). In addition a sum of Rs. 25,000/- is awarded towards consortium to the wife of the deceased and a sum of Rs. 10,000/- is enhanced for funeral expenses, and a sum of Rs. 25,000/- is awarded to the children for loss of affection is also correct. And Rs. 5,000/- awarded to the mother need not be disturbed. Hence, total amount of compensation that needs to be paid to the claimants is re-assessed at Rs. 5,64,200/-

Considering the above submissions, I also find that the Insurance Company shall be liable to pay the compensation. It is found that Counsel for the owner and driver has filed application under Order 41 Rule 27 of the CPC stating that the fitness certificate has not been produced before the Tribunal. However, by making application under the RTI on 31/1/2015 the applicant was provided the fitness certificate by the R.T.I. Ujjain to indicate that the receipt dated 7/9/2011 and application on the same date and the fitness certificate was also available from 14/9/2014 to 13/9/2015 and thus, when the accident occurred the vehicle was fully fit. Hence, Counsel prayed that the application be taken on record. And certificate be considered. Besides, Counsel urged that the Apex Court in the matter of The Oriental Insurance Company Limited Vs. Meena Variyal and Others, (2007) ACJ 1284 : AIR 2007 SC 1609 : (2007) 137 CompCas 116 : (2007) 5 JT 65 : (2007) 5 SCALE 269 : (2007) 5 SCC 428 : (2007) 4 SCR 641 had held that even there was breach of policy the dispute was inter-se insurer and insured, claimants cannot be denied the benefit of insurance and the Court had directed that the Insurance Company to pay the amount and take recourse to recovery. There was however, a rider to the judgment that it had to be proved that the car driven by the driver and negligence of the driver had to be established before the Insurance Company could be asked to indemnify the insured.

At this juncture, Counsel for the Insurance Company has vehemently urged that the Insurance Company could not be made liable to pay the compensation as held by the Tribunal. The liability of the Insurance Company has to be fixed and it is found that the Insurance Company is not liable even in the present case since there was a mechanical fault raised by the driver, as a result of which the accident took place and then the fitness certificate is must. Counsel urged that under Section 56 of the Motor Vehicles Act a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless if carries a certificate of fitness in such form containing such particulars and the fitness certificate is not produced. Hence, Counsel prayed for dismissal of the appeal. He also claimed that the Apex Court had under Article 142 of the Constitution of India, directed that the Insurance Company shall liable to pay and recover the compensation, but it is not within the jurisdiction of this Court to pass such an order of pay and recover. Hence, he prayed for dismissal of the appeal.

On considering the above submissions, I find that there is no infirmity in the findings of the Tribunal. However, considering the fact that the fitness certificate was not available at the time of filing of the claim case and it is now available to the owner and the driver and it has now been produced before me and it has to be considered, I find that the appeal bearing M.A. No. 343/2015 also needs to be allowed in the interest of justice and no fruitful purpose would be served in remanding the matter; primarily in the present case it has been considered that the Insurance Company has insured the disputed vehicle and there was no violation of conditions of the insurance policy except for filing the fitness certificate. The negligence of the driver and non-availability of the permit have not been challenged either in the Tribunal or before me and in this light the application under Order 41 Rule 27 of the CPC is taken on record and the appeal needs to be allowed in the interest of justice. It is therefore, held that the Insurance Company is liable to pay the entire enhanced amount of compensation with interest at the rate of 6% per annum to the appellants, if some of the amount has already been paid, the owner and the driver shall free to recover the same from the Insurance Company.

In this view of the matter, the appeal is allowed in part. The impugned Award is modified and enhanced by further Rs. 1,52,800/- (5,64,200 - 4,11,400 = 1,52,800) to the extent indicated above. The enhanced amount shall carry interest @ 6% per annum from the date of application till realization. All other findings not being under challenge are hereby upheld.

Original judgment be retained in the record of Miscellaneous Appeal No. 1535/2014 and a copy thereof be placed in the record of Miscellaneous Appeal No. 343/2015.

No costs.

C.c. as per rules.