The Oriental Insurance Company Ltd vs Ram Singh & Ors.

Lok Pal Singh, J.

This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 27.03.2010 passed by Motor Accident Claims Tribunal / District Judge, Bageshwar in MACT case no.08 of 2009, whereby the claim petition filed by the claimants has been allowed against the appellant Oriental Insurance Company Ltd. for a sum of Rs.11,62,720/- and the appellant has been directed to pay the compensation within a month, otherwise the claimants would be entitled to receive interest @ 8% per annum from the date of filing the claim petition till the date of its realization.

Factual matrix of the case is that on 17. 05.2009 Bhagirathi (deceased) was returning from a marriage and was travelling in a vehicle bearing registration no.UA 05-4268. At about 02:15 pm, due to rash and negligent driving, the vehicle fell down in a gorge near Bharadi Taxi Stand, on account of which the deceased Bhagirathi died at the spot. At the time of accident, the deceased was an Assistant Teacher and was teaching in Primary School Mehnarbunga and was getting monthly salary of Rs.14,478/-. Deceased was the only daughter of the claimants and her parents were dependent upon her. With these averments, claimants who are father and mother of deceased, filed the claim petition and claimed a sum of Rs.30,25,000/-from the opposite parties.

Opposite party no.1 and 2, owner and driver of the offending vehicle, contested the claim petition and filed separate written statements. In their written statements, opposite party nos.1 and 2 denied most of the averments made in the claim petition. They stated that the accident had not occurred due to rash and negligent driving. They also stated that if the Tribunal comes to the conclusion that the claimants are entitled to receive any compensation, the Insurance Company would be liable to pay the same, as on the relevant date and time, the vehicle was insured with the Insurance Company and the papers of the vehicle were valid.

Appellant Oriental Insurance Company Ltd. also filed its written statement and contended that the vehicle was being plied against the terms and conditions of Motor Vehicles Act. It is further alleged that a collusive claim petition has been filed by the claimants with the owner of the offending vehicle and the same is liable to be dismissed.

On the basis of pleadings of parties, the Tribunal framed the following issues:

i) Whether on 17.5.2009 at about 02:15 pm near Bharadi Taxi bus stand, P.S. Kapkot, District Bageshwar vehicle no.UA 05/4268 met with an accident due to rash and negligent driving, which resulted into the death of passenger Km. Bhagirathi on the spot? If yes, its effect.

ii) Whether the vehicle in question was being plied with all valid papers and as per the terms and conditions of Motor Vehicles Act? If yes, its effect?

iii) To what compensation the claimants are entitled to get and against which party?

iv) Whether the claimants are entitled to receive any compensation?

Thereafter the parties led their evidence. On behalf of the claimants, PW1 Ram Singh, PW2 Khushal Singh and PW3 Sanjeevan were examined. In documentary evidence, the claimants filed copy of Chik F.I.R., death certificate, extract of family register, post-mortem report, salary slip of deceased and the inquest report. Opposite parties did not adduce any oral evidence. However, opposite party no.2 in documentary evidence filed copies of insurance policy, permit, tax certificate, Challan certificate and pollution certificate with regard to vehicle. Opposite party no.3 also filed some documents by list 32C.

After hearing the parties and upon perusal of entire evidence, the Tribunal passed the impugned judgment and award, as above.

Learned Senior Counsel appearing for the appellant Insurance Company would firstly contend that the claimants who are parents of the deceased were not dependant upon the deceased; the Tribunal has wrongly awarded compensation to the claimants, at the most they were entitled to some conventional amount towards dependency.

Learned Senior Counsel would further contend that the compensation has been awarded to the claimants on higher side; the Tribunal ought to have applied multiplier on the age of claimants instead on the age of deceased. To buttress his submissions, learned Senior Counsel would place reliance upon a judgment of Hon'ble Apex Court rendered in the case of Shakti Devi vs. New India Insurance Co. Ltd. & Anr., 2010 (2) U.D. 527. He would refer para-12, which is reproduced hereunder:-

"12. So far as the present case is concerned, at the time of accident, the deceased was 22-year old and not married. He was running a general store from his house and earning about Rs. 1000/- per month from the business. In Sarla Verma3, this Court stated that where the deceased was self-employed, the court shall usually take only the actual income at the time of death; a departure from there should be made only in rare and exceptional cases involving special circumstances. Does the present case involve special circumstances? In our view, it does. The evidence has come that the deceased was to get employment in the forest department after the retirement of his father. Obviously the evidence is based on the government policy. The deceased, thus, had a reasonable expectation of the government employment in near future. In the circumstances, the actual income at the time of deceased's death needs to be revised and taking into consideration the special circumstances of the case, in our view, the monthly income of the deceased deserves to be fixed at Rs.2000/-. As regards the personal expenses, since the deceased was not married, we are satisfied that the principle stated in Sarla Verma3 that 50% should be treated as the personal and living expenses of the bachelor may be applied. Seen thus, the annual loss of dependency would come to Rs.12,000/-. Insofar as multiplier is concerned, the Tribunal applied the multiplier of 8. Learned counsel for the appellant argued that the multiplier of 18 should have been applied keeping in view the age of the deceased. The argument is devoid of any substance. In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher. The exact age of the claimant has not come on record. As per the evidence of AW1 (Pankaj Kumar Sinha), on the date of his deposition, the claimant's age was about 63 years. The date of deposition of AW-1 is not available. The accident occurred in 1991 and the date of decision of the Tribunal is June 6, 2000. Ordinarily, the Tribunal would not have taken much time after the evidence was complete. We may assume that the statement of AW-1 was recorded somewhere in 1998 or 1999. If that be so, the age of the claimant on the date of the accident would be about 54-55 years. As per the table prepared in Sarla Verma3, the multiplier of 11 would, therefore, be applicable. By multiplying the annual loss of dependency (Rs.12000/-) with the multiplier of 11, the claimant becomes entitled to the compensation in the sum of Rs.1,32,000/-. The compensation determined by the Tribunal at Rs.60,000/- and confirmed by the High Court in the appeal is manifestly erroneous and is enhanced to Rs.1,32,000/-."

Learned Senior Counsel would also place reliance upon a judgment of this Court in the case of Oriental Insurance Company Limited vs. Bachan Singh & another, 2016 (2) U.D. 456.

Contrary to this, learned counsel appearing for the claimants would support the judgment and award of the Tribunal and would contend that the compensation awarded to the claimants is not exorbitant.

I have heard learned counsel for the parties and have perused the entire record.

On issue no.1, the Tribunal has recorded finding that the claimant Ram Singh has got examined himself as PW1 and also got examined PW2 Khushal, who is eyewitness of the incident. In his testimony, this witness has stated that he had also gone to attend the marriage. On 17.5.2009, the deceased along with others was returning from marriage and was traveling in a vehicle was being plied by its driver very rashly and negligently. Due to rash and negligent driving, the vehicle met with an accident and fell into a deep gorge. He was sitting in the back seat of vehicle and was thrown out due to sudden jerk due to which he did not sustain any injury. In accident, Km. Bhagirathi and one another have died. The Tribunal also recorded finding that opposite party nos.1 and 2 have admitted the factum of accident in their written statements. Besides this, the accident is also proved from the F.I.R., post-mortem report, death certificate, which has been filed by the claimants as documentary evidence. On the basis of evidence, the tribunal recorded finding that the accident has occurred due to rash and negligent resulting into the death of claimants' daughter. Findings have been recorded by the Tribunal on issue no.1 after proper appraisal of evidence and are therefore not interferable.

On issue no.2, the Tribunal recorded a finding that though the Insurance Company (appellant) has pleaded in its written statement that the offending vehicle was being plied without any valid papers and the owner has violated the terms and conditions of motor vehicles act, but opposite party no.3 has not filed any evidence in order to substantiate its claim. Contrary to this, opposite party no.2, owner of the offending vehicle has filed the permit, insurance policy, etc. to show that all the papers of vehicle were valid and that on the date of incident vehicle was duly insured with the appellant insurance company. On the basis of evidence, the Tribunal decided issue no.2 in favour of opposite nos.1 and 3. Findings have been recorded by the Tribunal on issue no.2 after proper appraisal of evidence and are therefore not interferable.

On issue nos.3 and 4, the Tribunal recorded finding that the claimants have claimed that the deceased was an Assistant Teacher and was teaching in Primary School Mehnarbunga and her monthly income was Rs.14,478/- In order to prove their claim, the claimants filed the salary certificate of the deceased and got examined PW3 Ram Sanjivan, who proved the salary certificate of deceased. On the basis of salary certificate, the Tribunal recorded finding that the deceased was getting net monthly salary of Rs.11,360/-and as such calculated annual income of the deceased as Rs.1,36,320/-. As the deceased was bachelor, the Tribunal deducted 50% towards personal expenses and thus assessed annual loss of dependency @ Rs.68,160/-. Further, on the basis of family register, the Tribunal held that the deceased was aged 32 years on the date of accident and accordingly applied multiplier of '17' in view of schedule of Motor Vehicles Act. In this way, the Tribunal calculated total loss of dependency as Rs.11,58,720/-. In addition, the Tribunal granted an amount of Rs.4,000/- towards funeral expenses and mental pain and agony.

Now this Court would deal with the first argument advanced by learned senior counsel which is that claimants were not dependent upon the deceased. The deceased, who was in government employment and

was getting Rs.11,360/- per month as salary, must be contributing a part or whole of her income to the family for their sustenance and survival. The deceased was aged about 32 years and was unmarried on the date of accident. She was the only daughter of her parents i.e. the claimants. Normally, in Indian society the girls get married upto the age of 30, but in the present case deceased even in the age of 32 was unmarried, which gives an indication that the deceased had not married because her parents were dependant upon her and she had to maintain them. Earning of an unmarried daughter cannot be discriminated on the basis of gender discrimination. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. Thus, the contention raised by the learned Senior Counsel has no force and is hereby rejected.

As regards the second contention raised by learned Senior Counsel that the multiplier would be applicable on the age of deceased, I do not find any force in this argument. It is settled proposition of law that multiplier method is an appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptionally. Hon'ble Apex Court in Sarla Verma & others vs. Delhi Transport Corporation & another reported in (2009) 6 SCC 121 has specifically held that the choice of multiplier should be determined by the age of the deceased.

Insofar as the argument advanced by learned counsel for the appellant that compensation has been awarded to the claimants on higher side, this argument is misconceived. The deceased was in permanent government employment but the Tribunal has not made any addition on the actual income of the deceased towards future prospects. Further, a meager amount of Rs.4,000/- towards funeral expenses and mental pain and agony has been awarded by the Tribunal. Besides this, conditional interest has been imposed by the Tribunal, while the interest ought to have been granted from the date of filing of the claim petition. In such circumstances, in my considered opinion, it would have been a case for enhancement of compensation in view judgment of Hon'ble Apex Court in the case of National Insurance Company vs Pranay Sethi, reported in AIR 2017 SC 5157, but in the absence of any appeal for enhancement, compensation cannot be enhanced on the principle that an appellant cannot be reduced to a position worse than the one he would be in if he had not hazarded to file an appeal.

For the foregoing reasons, the appeal lacks merit. Same is hereby dismissed.

Let the statutory amount, along with the interest accrued on it, if any, be remitted to the Tribunal concerned. Lower court record be also sent back.

In the facts and circumstances of the case, parties shall bear their own costs.