1 MA No.2906/08 & MA No.4060/08 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR (SINGLE BENCH : HON'BLE SHRI JUSTICE [ENTITY]) M.A.No. 2906/2008 [ENTITY] Vs. Smt. [ENTITY] and others Shri [ENTITY], Advocate for the appellant. Shri [ENTITY], Advocate for respondents no. 1 to 4. Shri [ENTITY], Advocate for respondents no. 5 and 6. - AND M.A.No. 4060 / 2008 Smt. [ENTITY] and others Vs. M/s. [ENTITY] and others Shri [ENTITY], Advocate for the appellants. Shri [ENTITY], Advocate for respondents no. 1 and 2. Shri [ENTITY], Advocate for respondent no.3. Whether approved for reporting : (Yes / No). ORDER
(Delivered on 23-09-2019) As both these appeals have been preferred being aggrieved by a common award passed by the Motor Accident Claims Tribunal, Rewa, therefore, the same are being decided by this common order.
2. Both the aforesaid miscellaneous appeals under [SECTION] of the [ACT] have been filed against the award dated 9.4.2008 passed by Motor Accident Claims Tribunal, Rewa, District Rewa in [CASE NUMBER], whereby the owner and driver of the offending vehicle Bus bearing registration no.MP17/A-3795 and the Insurance company have been directed to pay an amount of Rs.5,27,000/- as compensation jointly and severally to the claimants on account of death of the deceased [ENTITY].
3. The facts giving rise to these appeals are that on 6.7.2007 deceased [ENTITY], aged about 35 years, driving a Tractor bearing registration no. CLE-2592 was going to Hardi from Rewa. It is alleged that near village Khadda situated on Rewa - Gudh road, [ENTITY], driver of the offending Bus bearing registration no.MP17/A- 3795, owned by M/s. [ENTITY] and insured with National Insurance Co. Ltd.; driving the said bus speedily rashly and negligently dashed the tractor from behind, due to which, the driver of the tractor, [ENTITY] died instantly on the spot leaving behind his wife Smt. [ENTITY], a minor son [ENTITY], two minor daughters Ku. [ENTITY] and Ku. [ENTITY] who filed a claim case before the Claims Tribunal and learned Claims Tribunal accepting the income of the deceased as Rs.4000/- per month after deducting 1/3rd towards his personal expenses applied multiplier of 16, awarded Rs.5,12,000/- for loss of dependency, Rs.10,000/- for loss of love and affection, Rs.5000/- for funeral expenses and directed the driver and the owner of the bus and the insurance company to pay Rs.5,27,000/- as compensation to the claimants of the deceased [ENTITY] holding the liability jointly and severally.
4. [CASE NUMBER] has been filed by the Insur- ance Company for quashment of the impugned award on the ground that at the time of incident the driver of the offending vehicle was not possessing valid driving licence for plying heavy vehicle as the vehicle was being run in breach of the condition of the insurance policy, therefore, the insurance company is not liable to pay the amount of compensation. Apart from it, the compensation amount is excessive, therefore, the award to the extent it is against the appellant Insur- ance Company be set-aside.
5. [CASE NUMBER] has been filed by the ap- pellants / claimants on the ground that the compensation amount de- termined by the Claims Tribunal is very meager. The assessment of the monthly income of the deceased is very less. At the time of incident, the deceased was earning Rs.6000/- per month and the amount given towards loss of love and affection and funeral expenses is also very less. Therefore, the compensation amount be enhanced as per law.
6. Learned counsel for the appellants / claimants has submitted that the learned Claims Tribunal has committed error in accepting monthly income of the deceased as Rs.4000/- and also committed error in awarding less amount in other conventional heads like consortium, loss of estate and funeral expenses looking to the judgment of the Hon'ble Apex court in the case of [PRECEDENT].
7. After hearing learned counsel appearing for the parties and on perusal of the pleadings and the evidence so adduced, it is found that the appeal filed by the Insurance Company has no merit. Learned Claims Tribunal has considered the objection with regard to driving the vehicle at the time of incident without having valid driving licence and found that the endorsement made in driving licence with regard to heavy motor vehicle is forged, however, it was not in the knowledge of the owner of the offending vehicle. At the time of engaging the driver for plying the vehicle he took necessary precaution. He checked the licence possessing by the driver having endorsement and seal of the authority concerned, about which, it is generally presumed that it is correct unless proved to be contrary and also tested ability to drive the heavy motor vehicle. In such circumstances, learned Tribunal has rightly held that the owner of the vehicle cannot be held liable for the breach of the policy. In such circumstances, the insurance company cannot claim that the insurance company is not liable to pay the awarded compensation amount. {See [PRECEDENT]}.
8. So far as the quantum of the compensation is concerned, the same is not excessive and contrary to it, the claimants have filed separate appeal for enhancement of the compensation amount. On behalf of the claimants it is submitted that monthly income of the deceased should be considered as Rs.5000/- as the future prospect has not been considered. The claimants in the claim case has pleaded monthly income of the deceased as Rs.4000/- and other income from the agricultural has also been claimed. But there was no evidence with regard to income from other sources, therefore, the learned Tribunal has not considered income from other sources and only considered the income of the deceased as Rs.4000/- per month. So far as future prospects are concerned, this aspect has not been taken into consideration by the Claims Tribunal. At present considering the age of the deceased it should be considered 50% of the actual salary of the income. In such circumstances, considering the claim of the claimants of the year 2007, monthly income of the deceased as Rs.5000/- should be considered for assessment of the total loss of income. Apart from it, learned Tribunal has wrongly deducted 1/3 rd considering personal expenses of the deceased looking to the members of the family. As per the guidelines issued by Hon'ble the Apex court in the case of National Insurance Company Limited vs. [ENTITY] and others, AIR 2017 SC 5157, the loss of income should be assessed.
9. Further, the learned Tribunal has also awarded less amounts towards love and affection, consortium, loss of estate and funeral expenses which should be enhanced as per the law laid down by the Apex court in [ENTITY] (Supra).
10. In view of the above, keeping in mind the future prospect the monthly income of the deceased is assessed to Rs.5000/- and thus, his annual income comes to Rs.60,000/- and after deducting 1/4 th towards personal expenses, loss of dependency comes to Rs.45,000/- per annum. After applying multiplier of 16, total loss of dependency comes to Rs.7,20,000/-. Apart from it, the learned Tribunal has also awarded less amount towards love and affection which ought to have been Rs.40,000/-, funeral expenses which ought to have been Rs.15,000/- and also entitled Rs.15,000/- for loss of estate.
11. In view of the above discussion, [CASE NUMBER] filed by the claimants is allowed. The appellants / claimants are held entitled to receive the enhanced amount of Rs.2,63,000/- in addition to the amount of compensation already awarded by the Claims Tribunal, making the total compensation Rs.7,90,000/-. The enhanced amount shall carry interest @ 6% per annum from the date of filing of claim petition till its realization. The said amount be paid within a period of three months from the date of the award otherwise the interest @ 7.5% per annum shall be leviable. In the facts of the case, parties are directed to bear their own costs.
12. The aforesaid amount will be payable jointly and severally by the respondents as directed by the Claims Tribunal.
13. Accordingly, needless to say that [CASE NUMBER] filed by the Insurance Company is dismissed.
A copy of this order be sent alongwith the record to the learned Tribunal.
([ENTITY]) JUDGE JP/-
Date: 2019.09.23 17:17:37 +05'30'