Sushila Singh vs Mahadev Singh

Since, both the appeals arise out of same award dated 13.08.2015, therefore, decided by this common order.

These appeals have been preferred by the Appellants/Claimants being aggrieved by the impugned award dated 13.08.2015 passed by the learned Chief Motor Accident Claims Tribunal, District-Raipur (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Cases No. 24/2012 & 25/2012.

Sons of Appellant/Claimant No.1 Sushila Singh and brothers of Appellants/Claimants No.2 & 3 namely Suraj Singh and Prakash Singh aged about 26 years and 17 years respectively have died in motor accident on 28.02.2012. Before the Claims Tribunal, two separate claim petitions under Section 163-A of the Motor Vehicles Act, 1988 have been filed by the Claimants which was registered as Claim Case No.24/2012(on account of death of deceased Prakash Singh) and Claim Case No.25/2012 (on account of death of deceased Suraj Singh).

According to the pleadings, on 28.02.2012 at around 1:40 PM, motorcycle bearing Registration No. CG 04 K 1803 owned by Respondent No.1 Mahadev Singh (father of both deceased Suraj Singh and Prakash Singh) was driven by Suraj Singh, Prakash Singh was seated behind Suraj Singh at that time oil was spilled on road, due to that the motorcycle of deceased slipped, they sustained injuries and resultantly died. The vehicle was insured with Respondent No.2-Insurance Company. Deceased Prakash Singh was aged about 17 years, he was working as a 'Waiter' in a hotel and was earning Rs.40,000/- yearly. Deceased Suraj Singh was aged about 26 years, he was working as 'Mason' and was earning Rs.40,000/- yearly. Therefore, the claimants, mother and brothers of both the deceased have filed two separate claim petitions.

Before the Claims Tribunal, Respondent No.1 not appeared and declared ex-parte.

Respondent No.2-Insurance Company filed their written statement before the Claims Tribunal and it was pleaded that as Suraj Singh was the son of Respondent No.1 and at the time of accident, the motorcycle was driven by him, therefore, he was holding the position of owner of the vehicle. Hence, his application under Section 163-A of the Motor Vehicles Act, 1988 is not maintainable. It was further pleaded that Prakash Singh was also the son of Respondent No.1, therefore, at the time of accident, he was also holding the position of owner of the vehicle. Hence, his application under Section 163-A of the Motor Vehicles Act, 1988 is also not maintainable. It was further pleaded that deceased/driver Suraj Singh was not holding the valid and effective driving license at the time of accident, therefore, the insurance company is not liable to pay any compensation.

After hearing the parties and recording the evidence, the Claims Tribunal vide impugned award dated 13.08.2015, dismissed both the claim petitions on the ground that as both the deceased Suraj Singh and Prakash Singh at the time of accident holding the position of vehicle owners, therefore, the petitions under Section 163-A of the Motor Vehicles Act, 1988 are not maintainable. Hence, these appeals have been preferred by the Appellants/Claimants under Section 173 of the Motor Vehicles Act, 1988.

Learned Counsel appearing for the Appellants/Claimants in both the cases submits that the impugned award dismissing the claim petitions is bad in law on two grounds firstly, the finding with regard to the status of the deceased as third party is established as they were neither the signatory nor the party to the contract, therefore, they were the third party and secondly deceased Prakash Singh was traveling as a pillion rider, therefore, his case cannot be equated with the case of Suraj Singh. With regard to Suraj Singh, it is further argued by the Counsel that in insurance policy (Ex.D-2), the premium of Rs.50/- was taken by the insurance company on the head of compulsory personal accident cover for owner and driver of the vehicle and on this head, liability of amount of Rs.1,00,000/- has been taken by the insurance company. As Suraj Singh was the driver of the offending vehicle, therefore, as per the terms of the policy with regard to the case of Suraj Singh, the claimants are entitled to get minimum amount of Rs.1,00,000/-from the insurance company.

Learned Counsel appearing for Respondent No.2-Insurance Company supported the impugned award.

I have heard learned counsel appearing for the parties and perused the impugned award and other material available on record.

Undisputedly, both the deceased Suraj Singh and Prakash Singh were sons of Claimant/Appellant No.1 Smt. Sushila Singh and Respondent No.1/owner of the vehicle Mahadev Singh. The Appellants No.2 & 3 are the real brothers of both the deceased. There is also no dispute on the point that Respondent No.1 i.e. father of both the deceased is a registered owner of vehicle bearing Registration No. CG 04 K 1803. At the time of accident, the vehicle was driven by Suraj Singh and Prakash Singh was traveling as a pillion rider on the said vehicle. In case of Ningamma and another Vs. United India Insurance Company Limited reported in (2009) 13 SCC 710 it is observed and held by the Supreme Court as under:-

“22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.

When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.”

On examination of facts of the case, it is established that at the time of accident, Suraj Singh was the person who driven the vehicle which was owned by his father/Respondent No.1, therefore, in light of the above observation made by the Supreme Court in Nigamma (supra), the Claims Tribunal had rightly arrived on the conclusion that Suraj Singh was holding the position of vehicle owner, therefore, the claimants of Suraj Singh are not entitled to get any compensation under Section 163-A of the Motor Vehicles Act, 1988. However, insurance policy Ex.D-2 shows that the insurance company has taken the premium of Rs.50/- on the head of compulsory personal accident cover for owner and driver and on the basis of said compulsory PA, liability of Rs.1,00,000/- taken by the insurance company, therefore, the claimants are entitled to get fixed amount of Rs.1,00,000/- as compensation as per the terms and condition of insurance policy Ex.D-2. Ordered accordingly.

With regard to the compensation due to death of Prakash Singh, undisputedly, Prakash Singh was the pillion rider and at the time of accident, he was seated rear side of the vehicle. Though Respondent No.1 was the father of Prakash Singh but there is no evidence available on record which shows that Prakash Singh has taken the vehicle on demand or he driving it. Therefore, at the time of accident his position was not that of the owner of the vehicle, hence, he falls within the ambit of third party. Therefore, finding of the Court below on this point is not accordance with law. As Prakash Singh at the time of accident was holding the position of third party, therefore, in consequence of death, the claimants are entitled to get compensation under Section 163-A of the Motor Vehicles Act, 1988.

At the time of accident, Prakash Singh was aged about 17 years. According to the pleadings, he was working as waiter and was getting yearly income of Rs.40,000/- but, before the Claims Tribunal, the Appellants/Claimants have not produced any evidence which can show that at the time of accident he was working as a waiter and was getting yearly income of Rs.40,000/-.

Now, the notional income of Prakash Singh has to be determined. The incident was occurred on 28.02.2012, assuming at that time monthly income of unskilled labour was Rs. 3,000/- and considering the price index of year 2012, notional yearly income of deceased Prakash Singh would be Rs. 36,000/-. As deceased Prakash Singh was self employed, therefore, as held by the Supreme Court in case of Rajesh Vs. Rajbir Singh reported in (2013) 9 SCC 54, 40% amount of established income of the deceased should be added towards his future prospects (40% of 36000=14400) 36000+14400 = Rs.50,400/-. On deduction of 1/3rd towards personal expenses of the deceased the amount comes to (50400-16800) Rs.33,600/-. Considering the age of the deceased, multiplier of 16 shall applied, the amount comes to Rs. 33600 x 16 = 5,37,600/-. Hence, the loss of income of deceased Prakash Singh would be 5,37,600/-. Apart from the above, the Claimants of Prakash Singh further entitled to get Rs.2,500/- towards loss of estate and Rs.2,000/- towards funeral expenses as contained in Schedule-II of the Motor Vehicles Act, 1988.

As discussed above, the Claimants of Suraj Singh are entitled to get total compensation of 1,00,000/- and the claimants of Prakash Singh are entitled to get total compensation of (5,37,600 + 2500 + 2000) Rs.5,42,100/-. Amount of Rs.5,42,100/- shall carry interest @ 6 % per annum from the date of filing of the claim petition before the Claims Tribunal. The above amount of compensation shall be paid by Respondent No.2/Insurance Company within two months from the date of receipt of copy of this order before the Chief Motor Accident Claims Tribunal, Raipur (C.G.).

The Appellants/Claimants are entitled to get equal compensation on the amount so deposited by Respondent No.2/Insurance Company. After deposition of the awarded amount by the Insurance Company, 50% of the amount shall equally be deposited through cheques in bank accounts of the Claimants and remaining 50% of the amount shall be deposited as fixed deposit equally in favour of all the Claimants in two nationalized banks.

Resultantly, both the appeals are allowed and disposed of with the above observation.