Shyam Lal Sharma and Others vs Mahendra Singh and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by the claimants/appellants against an Award dated 8th April 2005 in Claim Case No. 72/2004 passed by the First Additional Member of the Motor Accident Claims Tribunal, Dabra, district Gwalior with a prayer for enhancement of the amount of compensation. The facts in short are that on 16th February 2004, deceased Girraj after carrying holy water (Ganga) was coming on foot from Souro district Etah to his residence at Badi Akwai. It is alleged that near Dholpur (Rajasthan) at the crossing of GT road, when he reached at 9 a.m., the driver (respondent No. 2), hit him by his vehicle bearing No. MP07 H 188 as a result he succumbed to injuries during treatment in J.A. Hospital Gwalior. On report, crime for offence u/s 304-A of I.P.C. was registered against the driver and after investigation the charge-sheet was filed before the criminal court, having jurisdiction. It is admitted that claimants No. 1 and 2 are parents of the deceased, while claimants No. 3 and 4 are his grandparents and claimants No. 5 and 6 are married sisters of the deceased whereas claimant No. 7 is unmarried sister of the deceased and claimant No. 8 is his elder brother. It is also admitted that the deceased was at the time of accident was studying in B.Com. Final Year and was also earning Rs. 2500/- monthly by way of private job in Tractor Selling Agency at Dabra. He was also getting commission on promoting the selling of tractors at the selling price from the Agency. Before the learned tribunal, the claimants claimed compensation of Rs. 31,00,000/- alongwith an interest against the respondents, i.e., owner, driver and Insurance company. The learned tribunal after considering the entire evidence allowed partly prayer of the claimants and awarded Rs. 1,78,000/- with interest @ 9% up to full and final payment. Being aggrieved, the appellants have knocked the doors of this court.

It is submitted by the counsel appearing for the appellants that the learned tribunal has erred in determining the income of the deceased while computing compensation in favour of the appellants. It is further argued that the tribunal did not consider the evidence in awarding claims permissible under other heads to the parents, grand-parents, brother and unmarried sister of the deceased. Even the multiplier applied by the tribunal is also on lower side. On the basis of the aforesaid submissions, it is prayed that by allowing present appeal, the award amount passed by the tribunal may be enhanced up to the extent as sought for alongwith necessary interest as well as costs.

On the other hand, learned counsel appearing for the respondent No. 1 does not dispute that the vehicle was owned by him and at the time of accident, respondent No. 2 was driving the vehicle. However, it is denied that the accident has occurred due to reckless driving on the part of driver-respondent No. 2. It is also pleaded that since the vehicle is insured, the respondent No. 3 is bound to indemnify the insured.

The aforesaid pleas have been denied by the respondent No. 3. It is contended that the licence of the driver in this case expired on a date prior to accident and therefore, the driver of the offending vehicle was not having an effective driving licence at the time of the accident which amounts to breach of conditions of insurance on the part of the driver. In such circumstances, the Insurance Company cannot be held liable to indemnify the insured.

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

On perusal of the record of the learned tribunal, it seems that the insurance of the vehicle involved in accident was expired and new policy for further period was not issued by the Insurance company. Filing of application and grant of licence are prerequisite for holding valid and effective licence. This having not been done, it can be held that the driver of the insured was not duly licensed on the date of accident and insurer was not under obligation to indemnify the owner of the vehicle. It is further seen that the driver of the vehicle remained absent before the tribunal to prove that the accident was not as a result of his negligence therefore the owner is responsible on vicarious liability of his employee to satisfy the claim amount to the claimants of the deceased. Consequently, the respondents No. 1 and 2, owner and driver are jointly or severally liable to satisfy the award amount.

It appears that Shyamlal Sharma is father of the deceased, Smt. Kusum Sharma is mother, Gopiram Sharma is grandfather, Smt. Ramshree Sharma is grandmother, Smt. Manju Sharma, Smt. Mamta Sharma, and Miss Varsha Sharma are sisters of deceased, Manoj Sharma is brother of deceased. On going through the succession law applicable to the claimants, the parents of the deceased come under category of class-I heir whereas rest come under category of class-II.

It has come in the evidence that brother of the deceased namely, Manoj is working as Guruji teacher. Moreover, in his evidence, Shyamlal Sharma (AW-2), did not depose that his married daughters and employed son Manoj were dependents on the earnings of the deceased. In the case of the parents, they may be presumed to be legal representatives of the deceased. They come under the category of class-I heirs, and therefore to some extent they can be said to be dependents on the deceased. Similarly, in the case of grandparents, brother and sisters of the deceased, they cannot be denied to claim award alongwith parents of the deceased under the head of love and affection as they have lost young member of the family in an unfortunate road accident. So, all claimants including them are entitled to claim compensation for loss of love and affection. Besides this, the grandparents may also be compensated for serving them at elderly age. The parents of the deceased are entitled for compensation in other heads.

As per the evidence on record, it is seen that at the time of accident, deceased was studying in B.Com. Final Year. He used to earn monthly Rs. 2500/- by way of doing private job in Tractor Selling Agency at Dabra and was also getting commission of Rs. 4,000/- on promoting the selling of each tractor from the Agency. At the time of accident, the deceased was aged 22 years. Hence taking overall facts of the case, monthly earnings of the deceased could be assessed at the rate of Rs. 36,000/- per annum as per II Schedule of Section 163-A of the Act.

As regards multiplier applied in determination of compensation, taking into consideration the law laid down in the case of New India Assurance Co. Ltd. Vs. Charlie and Another, wherein it held that choice of multiplier is determined by the age of the deceased or the claimant whichever age is higher, it would be appropriate to apply multiplier of 13.

Hence, after deducting 50% towards personal and living expenses, as the deceased was a bachelor, the annual dependency comes to Rs. 18,000/-. Applying multiplier of 13, the compensation is determined at Rs. 2,34,000/- (Rs. Two lac thirty four thousand only), which would be payable to the parents of the deceased. Besides, this amount, they are also entitled to receive Rs. 5,000/- on account of funeral and ritual expenses, Rs. 10,000/- for love and affection, Rs. 5,000/- towards transportation charges and Rs. 10,000/- towards loss of estate. In this manner, the appellant No. 1 and 2/parents of the deceased are entitled in lump sum to receive Rs. 2,64,000/- (Rs. Two lac sixty four thousand only) instead of the amount of Rs. 178,000/- awarded by the claims tribunal alongwith interest @ 7% on the enhanced amount from the date of filing of claim petition till realisation of the same. Apart the aforesaid, as discussed above, other claimants/respondents No. 3 to 8, who are none else but the grandparents, brother and sisters of the deceased are awarded each Rs. 5,000/- under the head of love and affection, which shall be paid during the period mentioned above. With the aforesaid modification in the award, the appeal stands disposed of. No order as to costs.