Surendra Kumar and Others vs Abdul Salim and Another

A.M. Sapre, J.—This is a miscellaneous appeal filed by claimants u/s 173 of Motor Vehicles Act (for short hereinafter called ''the Act'') against an award dated 20.10.1998 passed by M.A.C.T., Jodhpur in Claim Case No. 242 of 1989 (112/95).

By impugned award, the Tribunal allowed in part the claim petition of the claimants filed u/s 166 of the Act and accordingly awarded a total sum of Rs. 59,000 to claimants for the death of one Bhanwarlal Sharma who died in vehicular accident. The Tribunal however confined the liability of insurer (insurance company) to the extent of Rs. 50,000 out of total awarded sum while passing the award. It is against this determination the claimants have felt aggrieved and filed appeal.

In this appeal, two questions arise for consideration. First, whether Tribunal was justified in awarding Rs. 59,000 to the claimants for the death of Bhanwarlal Sharma and, second, whether Tribunal was right in confining the liability of insurance company to the extent of Rs. 50,000 or it should have been held to be unlimited, i.e., entire awarded sum.

It is a death case. On 13.9.1989 one Bhanwarlal Sharma aged 65 years, a retired teacher, met with a vehicular accident. He was dashed by Tempo bearing No. RSN 4739 which caused his death giving rise to filing of claim petition by his legal representatives u/s 166 of the Act against the non-applicants claiming compensation for his death. The non-applicants contested the claim. Parties adduced evidence. Tribunal partly allowed the claim petition and, as observed supra, awarded a total sum of Rs. 59,000 to the claimants. It was held that the deceased was aged 65 years. In fact, the learned Tribunal held without applying any method of calculation which are usually applied in motor accident cases that claimants should get a sum of Rs. 40,000 towards compensation and Rs. 19,000 towards loss of consortium, for loss of love and affection, loss to estate and for funeral expenses. In this way, the Tribunal awarded total sum of Rs. 59,000 which is sought to be impugned in this appeal by claimants claiming enhancement in the same.

Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow this appeal in part and modify the award in claimants'' favour to the extent indicated infra.

I have gone through the evidence of parties. Having gone through the same and keeping in view the provisions of the Act, I have formed an opinion that deceased was earning at least a sum of Rs. 3,000 per month partly by way of pension (Rs. 975) as retired government teacher and remaining by doing private profession of astrology. In fact, there is nothing to disbelieve the sworn testimony of claimants on this issue though oral in nature. When it has come in evidence that the deceased was a retired teacher from State services, then one can take it that he was getting pension (Rs. 975) as was said by claimant. Similarly when it has also come in evidence that he was also getting some money by practising astrology then obviously he must be getting some income. Taking into consideration all these facts, I hold that deceased was earning Rs. 3,000 per month partly by way of pension and remaining from doing the profession of astrology. To this extent, I modify the finding of Tribunal in claimants'' favour.

In this way, deceased''s monthly income was Rs. 3,000 and yearly Rs. 36,000. Deducting 1/3rd, I get a sum of Rs. 2,000 x 12 = Rs. 24,000. Applying the multiplier of 5 as provided in Schedule because his age was 65 years, I get a sum of Rs. 24,000 x 5 = Rs. 1,20,000. To this, I add by awarding a lump sum amount of Rs. 30,000 towards conventional heads, such as loss of love and affection, estate and funeral expenses. In this way, the claimants who are his widow and sons are entitled to get a total sum of Rs. 1,20,000 + Rs. 30,000 = Rs. 1,50,000.

In other words, the claimants are held entitled for a total amount of Rs. 1,50,000 by way of compensation for the death of Bhanwarlal Sharma.

The compensation awarded to the claimants is 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 these types of cases. Indeed in such cases, no fixed and static formula has been provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and the relevant factors mentioned supra. It is on this basis the courts have to work out award of reasonable compensation.

The learned counsel for the appellants cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra every case depends upon facts of each case and one can rely upon the cases for awarding compensation. I have applied them to the facts of this case and then awarded the compensation.

Coming now to the issue of liability of insurance company, I do not agree to the finding recorded by Tribunal on this issue. In my opinion, the liability of insurance company as against the third party is unlimited, i.e., for entire awarded sum. It is for the reason that, firstly, the deceased was third party in the accident. Secondly, the vehicle in question was insured against Comprehensive Policy and, lastly, the accident occurred after the new Act came in force on 1.7.1989, whereas date of accident is 18.9.1989. In the light of these facts, which are undisputed, the liability of the insurance company should have been held as unlimited, that is, not confined to only Rs. 50,000 as was wrongly done by the Tribunal. The award is accordingly modified to this extent and it is passed against the insurance company and in claimants'' favour for the whole awarded sum.

In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified to the extent indicated above in para 8. The enhanced sum will carry interest at the rate of 6 per cent per annum from the date of application till realization. All other findings are upheld being not under challenge.

No costs.