Smt. Sushila Devi Bhatia vs Jagir Singh

N.K. Kapoor, J.—Letters Patent Appeal Nos. 81, 85 and 944 of 1988 are directed against the judgment of learned Single Judge dated 18.9.1987 and so these are being disposed of by a common judgment.

Two sets of claimants filed application u/s 110-A of the Motor Vehicle Act arising out of the fatal motor accident. The accident took place on November 13, 1981 between a car bearing No. CHA 1144 owned and possessed by Sh. Baldev Raj Bhatia who was driving the vehicle and was hit by truck No. JKQ 1465 being driven by Jagir Singh in a reckless manner resulting in causing serious injuries to the occupants of the car who ultimately lost their breath in Civil Hospital) Panipat. Mr. Om Parkash Bhatia and Smt. Sudershan Bhatia in one claim petition claimed a sum of Rs. 50,000/- as compensation; whereas in the other claim petition Smt. Sushila Devi Bhatia w/o Sh. Baldev Raj Bhatia, Kamlesh Kumar Bhatia and Sanjeev Kumar Bhatia sons of Baldev Raj Bhatia laid a claim of Rs. 2 lacs. In both the claim petitions claim was laid against the owner of the truck as well as insurance companies of the truck and the car. Motor Accident Tribunal after framing issues, permitted the parties to adduce evidence and thereafter arrived at the conclusion that the incumbents of the car lost their lives on account of rash and negligent driving by the driver of the truck bearing No. JKQ 1465. While evaluating the claim, the Tribunal came to the conclusion that Sanjay Bhatia was a student of B.A. Part II and would have risen high on account of his good academic record. Applying the usual a guess work in such like cases, the Tribunal held that the deceased would have earned at least Rs. 5Q0/- per month in the beginning and after sometime the same would have risen considerably. This way claimants dependency was determined at Rs. 150/- per mensem i.e. Rs. 1800/- per annum. Keeping in view the tender age, multiplier of 20 was applied and so compensation payable to the claimants was assessed at Rs. 36,000/-.

As regards the second claim petition filed by Smt. Sushila Devi Bhatia and his son, the Tribuna came to the conclusion that the deceased was 63 years of age who was a partner in a family, business. On his death, his share was inherited by Smt. Sushila Bhatia, his widow, who was also inducted as a partner in the firm and so there has been no loss to the estate on account of unfortunate death of Mr. Baldev Raj Bhatia. The Tribunal accordingly held that claimants were not entitled to any compensation.

Feeling aggrieved by the award of the Motor Accident Claims Tribunal, appeal Was filed by Om Parkash Bhatia and his wife. Another appeal was filed by Smt. Sushila Devi and her two sons and cross-objections were filed by M/s Kailash Transport Services-owner of the truck. Both the appeals as well as cross-objections were taken up together and were disposed of by a common judgment which is now being impugned. Learned Single Judge on considering the matter on fact as well as law found merit in the contentions raised by the appellants and so both the appeals were accepted to the extent indicated in the judgment; whereas cross-objections filed by M/S Kailash Transport services were dismissed. Learned Single Judge enhanced the amount of compensation in the case of Om Parkash Bhatia and his wife to Rs. 50,000/- as claimed. As regards the claim set up by Smt. Sushila Devi Bhatia and her two sons, the Court determined the amount to be paid to the claimants as Rs. 1,24,716/- to court allowed payment of Estate duty that the claimants would pay i.e. Rs. 94,716/- whereas evaluated the contribution of the deceased to the family at Rs. 500/- per month. Since the deceased was aged 63 years, multiplier of 5 was applied and so a sum of Rs. 30,000/- was awarded as compensation to the claimants. Besides it, interest at the rate of 12% per annum from the date of application was also awarded. However, it was stipulated that since the liability of the insurance company is to the extent of Rs. 50,000/- as per terms of the policy, it is liable to this extent only. As noticed in the opening part of the judgment, appeals have been preferred.

Mr. L.M. Suri, Sr. Advocate, for the appellants Smt. Sushila Devi and others argued that learned Single Judge has erred in determining the dependency of the family to be merely Rs. 500/- per month. According to the counsel, the deceased was a partner in a running business and his yearly income was approximately about Rs. 80,000/- per annum. Even as per income tax assessment for the year 1981-82, his personal income has been assessed at Rs. 46,414/- i.e. approximately Rs. 4000/- per month. Yet for no valid reason dependency of Rs. 500/- per month has been taken by the Hon''ble Single Judge. According to the counsel, learned Single Judge has misconstrued the relevant provisions of the Act and the judicial pronouncements of this Court. Merely for the reason that one of the appellant, namely, wife of the deceased has been inducted as a partner in the running business is by itself no ground to deprive her and her sons (dependents) of their rightful claim to compensation on account of the unfortunate death of Baldev Raj Bhatia. Such a yardstick could not be applied by the learned Single Judge. Otherwise too the Court has not awarded any amount on account of loss of consortium. Thus, the judgment of the learned Single Judge deserves to be modified. Similarly, the Court has not come to the correct conclusion while holding the liability of the insurance company to the extent of Rs. 50,000/- only. There is no proof on record that the liability of the insurance company is limited. A perusal of the copy of insurance policy placed on record give an indication that the policy was comprehensive and the liability of the insurance company is unlimited. Even the multiplier has not been properly applied.

Mr. Bedi, learned counsel for the Insurance Company, argued that the amount awarded by the learned Single Judge, in fact, deserves to be considerably reduced. According to the counsel, payment of Estate duty by the inheriter could not be made the basis to enhance compensation which is payable under the Motor Vehicles Act. Estate duty is assessed upon the value of the property which is left by the deceased and is taken to be a charge upon the property and so it is after deducting this amount that remaining assets are to be shared by the legal heirs or a person who inherits on the basis of testamentary disposition. Tax paid by the heirs could not form part of compensation to be determined by the court under the provisions of the Motor Vehicles Act. According to the learned counsel, as per provisions of the Act and the Full Bench decision of this Court in case reported as Lachman Singh and Ors. v. Gurmit Kaur and Ors. (1979)81 P.L.R. 1, the claimant is entitled to a just compensation. Since in the present case there is no loss to the estate as the claimants have inherited the property left by the deceased and Smt. Sushila Devi Bhatia too has been inducted as a partner in the business, there is no loss of income in the estate. Thus, on this ground alone, the judgment of learned Single Judge deserves to be set aside whereas award of the Motor Accident Claims Tribunal needs to be affirmed.

We have heard learned counsel for the parties as well as perused the award of the Motor Accident Claims Tribunal, judgment of the learned Single Judge and some of the documents reference to which was made by the counsel for the appellants during his submissions. Baldev Raj Bhatia aged 63 years was a partner in the family business and as per income tax assessment for the year 1981-82 his income as per share in the firm was determined at Rs. 46,414/-. The assessment order is dated 11.2.1981. Except for this document, no other documentary evidence has been ad diced by the claimants to prove the normal income of deceased Baldev Raj Bhatia during his life time. Respondents too have not led any evidence to discredit this evidence of the claimants. So assessed income can be taken to be the income of the deceased. Applying the usual cut of l/3rd towards his personal expenses, his monthly contribution towards family can be assessed at Rs. 2500/- per month i.e. Rs. 30,000/-per year. Keeping in view his age, the multiplier of 5 is appropriate. Thus, the amount of compensation payable to the claimants on this account can be assessed at Rs. 1,50,000/-. Besides this amount, some amount on account of loss of consortium is to be paid. The apex Court in few judgments have added the figure of Rs. 15,000/- to the aforesaid amount on account of loss of estate and consortium. This way the total sum would come to Rs. 1,65,000/-.

Learned Single Judge whereas broadly agreed with the reasoning of the Motor Accident Claims Tribunal while determining the compensation payable to the claimants i.e. ignoring the dependency factor, but all the same awarded a sum of Rs. 1,24,716/- on account of payment of Rs. 94,716/- as estate duty and another sum of Rs. 30,000/- determining his contribution of Rs. 500/- per month to his wife during his life time. This amount was calculated for a period of five years.

Whether, estate duty alleged to have been paid by the claimants could be a component of compensation amount which is to be awarded under the Motor Vehicles Act is a question which has been urged by the counsel representing the insurance company. Mr. Bedi, learned counsel for the respondent, has argued that Section 110-B of the Motor Vehicles Act, 1939 (as applicable in the instant case) envisages payment of just compensation to the claimant on account of loss which has occurred on death of a person which is normally assessed on the basis of his income and his contribution to the family members. We find merit in this contention of the respondents counsel. Estate duty is imposed on a property which has passed or deemed to have passed on the death of a person. It is a charge upon the property and is to be recovered from the assets left by the deceased. Thus, it is only the remainder which is to be shared by the heir/successors. So such an amount could not form part of compensation which is to be awarded by the Tribunal under the Motor Vehicles Act. We thus do not approve the reasoning of learned Single Judge in this regard.

Learned Single Judge has awarded a sum of Rs. 500/- per month to Smt. Sushila Devi Bhatia holding that at least the deceased must have been paying a sum of Rs. 500/- per month to her during his life time. There is no proof on record that any such amount had been paid by the deceased to Smt. Sushila Devi. Smt. Sushila Devi has not come in the witness-box. We thus find no ground to upheld the compensation awarded to the claimants under this captain.

However, there is no manner of doubt that the claimants are entitled to be paid compensation which is to be evaluated on the basis of income of the deceased, dependency of the claimant etc. While calculating such an amount, multiplier too has to be applied. Section 11-B of the Motor Vehicles Act deals with determination of just compensation. The deceased in the aforesaid case had an income of Rs. 46,414 per annum as per income tax assessment for the year 1981-82 which comes to Rs. 900/- per month. Applying the usual cut of 1/3rd towards personal expenses, his monthly contribution can be assessed at Rs. 25000/- per month or say Rs. 30,000/-per year. On applying a multiplier of 5 as the deceased had attained the age of 63 years, the compensation payable come to Rs. 1,50,000/-. Mr. Bedi has, however, argued that there has been no loss of income to the dependent as Smt. Sushila Bhatia has been taken as a partner in the family business and so no compensation is payable to her or other dependents. We find no merit in this contention of the counsel. The claimants during the life time of the deceased had, in fact, been enjoying the benefit of income from the business being dependents of the deceased. It is a different matter that on account of his death, presently the claimants enjoy the income of the firm but that can hardly be taken to be a circumstances not to award compensation on account of loss which has accrued to the claimants/dependents. Almost identical point came up for consideration in case reported as Nazeema and Others Vs. George Kuriakose and Others, and the High Court of Kerala held as under:-

"While judicial decisions abound in relation to the accelerated benefits of insurance money, provident fund and the like there are fewer cases which consider how the acquisition of other assets of the deceased such as immovable property, share in a partnership etc. should be dealt with. In the present case, the appellants stepped into the firm as partners and received the share which the deceased owned. This presumably happened by succession. The cases in which the dependents receive property like car or house which they use even during the life time of the deceased obviously do not justify deduction of the acceleration. However, we do not find a significant difference between such cases and the cases in which the dependents come into possession of the deceased''s property after his death. If the dependents enjoyed the benefit of the house, land, a car or income from the business during the life time of the deceased, after his, death they continue to have the benefit from such property in a different capacity. No doubt, the deceased is not alive to share the use of these assets, thereby marginally increasing the benefit to them. In the present case, the appellants always enjoyed the benefits of the income from the business of Kallumkal Rubber Syndicate as the dependents of Mohammed Basheer. After his death they enjoy the benefit as partners of the firm. The reality of this situation is that for all practical purposes the appellants were enjoying the benefits of the estate of the deceased, almost as much before his death as they do now. The fact that the appellant now enjoy absolutely the benefit of the share of the deceased is a change of mere form and not of substance. Therefore the appellants did not receive the benefit of the partnership business ''by reason of the death'' of Mohammed Basheer. They always possessed it.

Accordingly, we determine the amount of compensation to be paid to the claimants at Rs. 1,50,000/-. In addition thereto, Smt. Sushila Devi Bhatia is entitled to loss of consortium etc. Following the decision of the Apex court in case reported as Smt. Sarla Dixit and another Vs. Balwant Yadav and others, , wherein earlier decision of the apex Court reported as Janta Travels Pvt. Ltd. Vs. Punjab Chemi-plants Ltd., , conventional figure of Rs. 15,000/- by way of loss of consortium and loss of estate is added. This amount too is a payable to Smt. Sushila Devi Bhatia claimant. Thus, the total amount to be paid to the claimants is determined as Rs. 1,65,000/-.

Next point for consideration is as to whether liability of insurance company is limited to the extent of Rs. 50,000/-. Mr. Suri, learned counsel for the claimants, drew our attention to the copy of insurance policy which has been placed on record. This document has not been tendered in evidence. This policy enumerates different amounts of premium which had been charged under different heads while issuing this policy which by itself suggest that insurance policy was intended to be for an unlimited amount. As complete copy of insurance policy has not been placed on record nor any evidence was adduced by the insurance company to the effect that the policy was for a limited amount, counsel for the respondent was asked to verify whether insurance policy in question is for a limited amount or for unlimited amount. The counsel contacted the concerned person who expressed his inability to furnish the requisite information as relevant record was not traceable. Counsel for the respondent, however, in all fairness stated that a perusal of the copy of policy placed on record indeed gives an indication (as per amount charged under different heads) that the policy was for an unlimited amount. We take it so and thus hold the liability of the insurance company to the unlimited.

Accordingly we accept Letters Patent Appeal No. 85 of 1988 and enhance the compensation amount to Rs. 1,65,000/- alongwith interest at the rate of 12% per annum from the date of application till payment less the amount already paid to the claimants i.e. compensation as well as interest.

Since the Insurance Company''s liability has been held to be unlimited, the appeal preferred by M/s Kailash Transport Service (LPA No. 944 of 1988) is also accepted.

Resultantly, Letters Patent Appeal No. 81 of 1981 filed by the National Insurance Company Ltd. is ordered to be dismissed. No order as to costs.