^ ^ ^ ; ''^^iy^ | '^. ^€/A^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.No.138of2006 APPELLANT Oriental Insurance Co. Ltd. VERSUS RESPONDENTS : Sarita Devi & others & M.A.No.126of2005 t.0 APPELLANTS Sarita Devi & others VERSUS RESPONDENTS : Deepnarayan Yadav & others AWARD Hon'ble Shri Raieev Gupta. Jl ^ Sd/- ChiefJustice For consideration 17-1 0.2011 Sd/- Judge \r} .10.2011 Postfor:^ .10.2011 Sd/- N.K.Agarwal Judge ^- ^cs^- /y'^- t^- T^^ •:i'y HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.No.138of2006 APPELLANTS Defendant No. 3 RESPONDENTS Oriental Insurance Co. Ltd. Branch Office, Near Ram Mandir, Ambikapur, District Surguja (CG). Versus 1. Sarita Devi Wd/o Sitaram Yadav, aged about 34 years. 2. Sonika D/o Sitaram, age 18 years. 3. Monika D/o Sitaram, age 15 years. Both minor Through : Natural Guardian Mother Sarita Devi Wd/o Sitaram Yadav. All resident of Village Bhatgaon, Police Station Pratappur, Tahsil Surajpur, District Surguja (Chhattisgarh). 4. Deepnarayan Yadav, S/o Ramnarayan Yadav, Occupation- Driver R/o Village Bhatgaon, Police Station Pratappur, Tahsil Surajpur, District Surguja (Chhattisgarh). 5. SECL, Area, Bhatgaon, Through : Generat Manager, Regional Office- Bhataon, PO Bhatgaon, Tahsil Surajpur, District Surguja (Chhattisgarh). Present : Shri AK Athaley, Advocate for the appellant. APPELLANTS Claimants & M.A. No.126of2005 1. Sarita Devi Wd/o Sitaram Yadav, aged 34 years. 2. Sonika D/o Sitaram, aged 18 years. 3. Monika D/o Sitaram, aged 15 years. No. 2 & 3 minors Through : Natural Guardian Mother Sarita Devi Wd/o Sitaram Yadav, All R/o Village Bhatgaon, PS Pratappur, Tahsil Surajpur, District Surguja (CG). L-) Versus RESPONDENTS 1. Deepnarayan Yadav, S/o Ramnarayan Yadav, R/o Vill. & Post Bhatgaon, PS Pratappur, Tahsil Surajpur, District Surguja (CG). 2. SECL, Area, Bhatgaon, Through: Chief General Manager, Divisional Office Bhataon, Post Office Bhatgaon, Tahsil Surajpur, Distt. Surguja (CG). 3. The Oriental Insurance Co. Ltd. Divisional Office, Near Ram Mandir, Ambikapur, Distt. Surguja (CG). APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri Rajeev Gupta, CJ & Hon'ble Shri N.K. Agarwal, J. Present : Shri DN Prajapati, Advocate for the appellants. Shri Vivek Verma, Advocate for respondent No.2. Shri AK Athaley, Advocate for respondent No. 3. AWARD (Delivered on [7 710/2011) Per: N.K. Agarwal, J 1. Both the appeals i.e. MA No. 138/2006, filed by Oriental Insurance Co. Ltd. i.e. insurer of offending vehicle, and MA No. 126/2005, filed by the claimants for enhancement of compensation against the award dated 29.09.2004 passed by IVth Addl. Motor Accidents CIaims Tribunal (FTC), Surajpur in claim case No. 06/04 are being disposed of by this common award as the common facts and issues are involved in both the appeals and are arising out same accident. ^y%.'-- /f^^ j l^y. l ^ "~'^y vs^/ 2. The questions involved in these appeals are whether or not in the facts and circumstances of the case, the liability of insurance company is limited to Rs. 50,000/-, and the amount of compensation awarded is adequate. 3. One Sitaram Yadav, sitting in Rajdoot Motorcycle as a pillion rider met with an accident on 01.010.1988 with Cash Van bearing registration No. CPL-9100, owned by respondent/SECL, and being driven by respondent/ Deepnarayan, and succumbed to the injuries sustained by him in the said accident. 4. As against compensation of Rs. 22,00,0007- claimed by legal representatives of deceased Sitaram by filing apptication under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') for the death of deceased in the said motor accident, the Tribunal awarded a total sum of Rs. 2,40,000/- along with interest @ 6 percent per annum from the date of application i.e. 20.12.2002 till its actual payment. 5. The Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to rash and negligent driving by driver of Cash Van bearing registration No. CPL-9100 i.e. respondent/Deepnarayan; Sitaram Yadav died on account of injuries sustained in the said accidenf; wife of deceased was given compassionate appointment and also L^' ^ 1^' compensation by the respondent/SECL; the liability of Oriental Insurance Company Ltd. is not limited; insurance company liable for payment of compensation as itcoutd not establish violation of policy conditions; awarded a total sum of Rs. 2,40,OOO/- as compensation along with interest @ 6 percent per annum from the date of application i.e. 20.12.2002 till its actual payment. Shri AK Athaley, learned counsel appearing for the appellanVOriental Insurance Co. Ltd. would submit: under Section 95 (2) (b)(i) of the Motor Vehicles Act, 1939 (for short 'the Act, 1939') as amended w.e.f. 01.10.1982, the liability of the appellant/insurance company is limited to the extent of Rs. 50,000/- only and the Tribunal has erred in holding insurance cqmpany liable for payment of entire compensation awarded. Per contra, Shri DN Prajapati, learned counsel appearing for the claimants while supporting the findings of Tribunal in holding insurance company liable for payment of entire compensation awarded, would submit the Tribunal has erred in awarding low amount of compensation in the facts and circumstances of the case which deserves to be suitably enhanced. ^s(!'y%," ff ./f" "'-- ''% ?.r 'y-..-—, ^ .-7 c \-) 8. We have heard the counsel appearing for the parties, perused the records of the Tribunal including award impugned. 9. Undisputedly, the accident took place on 01.10.1988 i.e. prior to coming into force of the Act, 1988 which came in force w.e.f. 01.07.1989. It is now settled law the Act, 1988 is not retrospective in nature. The rights and liability of the parties are required to be determined when the cause of action for filing claim petition arises. 10. In the instant case, cause of action for filing claim petition arose on 01.10.1988, therefore, the rights and liability of the parties are required to be determined in accordance with the provisions of the Act, 1939 as amended vide amendment dated 01.10.1982, and not by the Act, 1988. Section 95 (2) of the Act, 1939, reads as under : (2). Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:- (a) where the vehicle is a goods vehicle, a limit of (one lakh and fifty thousand rupees) in all, including the liabilities, if any, arising under the Workman's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being cam'ed in the vehicle; (b) where the vehicle is a vehicle in which passengers are carried for hire or reward, or by reason of or in pursuance of a contract of employment- (i) in respect of persons other than passengers carried for hire or reward, a limit offifty thousand rupees in all; 2[(ii) in respect of passengers,- (c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred; (d) irrespective of the class of the vehicle, a limit of rupees [six thousand] in all in respect of damage to any property of a third party." 11. The provisions of Section 95 (2) (b) of the Act, 1939, were interpreted by the Supreme Court in case of National Insurance Co. Ltd. New Delhi v. Jugal Kishore and Others, reported in 1988 (1) SCC 626. In a case where the claimant Jugal Kisohre, a three wheeler scooter driver, met with an accident with Bus, the Supreme Court held: the liability of the insurance company under Section 95 (2)(b) of the Act, 1939, could not be in excess of statutory liability of Rs. 20,000/- as stood on the date of accident i.e. 15.07.1969, and observed in para 8 of its judgment as under: "8. A perusal ofthe policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and or unloading) of the motor vehicle falling under Section 2(1)(/) has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939". This liability, as is apparent from clause (b) of sub-section (2) of Section 95 of the Act, was at the relevant time Rs 20,000 only. The details of the premium also indicate that no additional premium with regard to a case falling under Section 2(1)(/) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insured's estimate of value including accessories (IEV) thereof having been shown as Rs 40,000. In this view of the matter the submission made by learned counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub- section (2) of Section 95 ofthe Act namely Rs 20,000. An award against the appellant could not, therefore, have been made in excess of the said statutory liabiljty." 12. The Supreme Court in case of Jameskutty Jacob v. United India Insurance Co. Ltd. & others, reported in 2003 (7) SCC-131, has held : in a case covered under Section 95 (2)(c) of the Act, 1939, the liability of the insurance company would be the amount of liability incurred even though policy is an "Act only Policy". 13. Now reverting to the facts of the case, indisputably, the Cash Van i.e. offending vehicle is insured vide policy Ex. //^k\ Ite?,! %^..^y '><-. NA3/1 as a private Car and is an Act only Policy. Schedule to the policy indicates premium of Rs. 2771- has been charged covering "liability of public risk". Indisputably, the vehicle is neither a goods carriage vehicle nor passenger carrying vehicle being plight for hire or reward. The vehicle was cash Van and was being used for the purpose of insured business at the time of accident. Therefore, the vehicle in question, would come under the category of vehicle of "any other clause" as provided under Section 95 (2)(c)oftheAct,1939. 14. As per Section 95 (2)(c) of the Act, 1939, the liability of insurance company would be the amount of liable incurred even though policy is an Act only Policy as held by the Supreme Court in case of Jameskutty Jacob (Supra). Therefore, since the vehicle in question is not a passenger carrying vehicle and would come under the category of "any other vehicle" as defined in clause-c of Section 95 (2) of the Act, 1939, the liability of the insurance company cannot be limited to the extent of Rs. 50,000/- only. 15. In view of above, in our considered opinion, the findings of the Tribunal regarding insurer's responsibility of entire payment of compensation awarded does not suffer from any illegality for the reason vehicle in question would come ^ ^; '<•? I; '^. '^€/ ~'^s^/ 9 V-. under the category of "any other vehicle" as defined in Section 95 (2) (c) ofthe Act, 1939. 16. Now, let us deal with second question, whether or not the amount of compensation awarded by the Tribunal is adequate. 17. The deceased was working as a Pharmacist T&S Grade-C in Bhatgaon sub-area of respondenVSECL. As per Ex. P/4, his basic salary was Rs. 1342/-. Besides that, he was getting Rs. 132.08/- as VDA, Rs. 186.31/- as FDA, Rs. 24.08/-as SDA and for the month of July, August & September, attendance bonus of Rs. 134.20/- was also given to him. Salary slip shows his annual bonus for the year 1987-88 as Rs. 1359.49/-. 18. The Tribunal, taking into consideration the salary of deceased as Rs. 17177-after deducting attendance bonus of Rs 134.20/- which was not being paid regularly, assessed the income of the deceased as Rs. 1800/- per month, deducted 1/3rd of it towards personal expenses of the deceased, assessed claimant's monthly dependency as Rs. 1200/- i.e. Rs. 14,400/- per annum. Looking to the age of the deceased as 35 years at the time of accident, applied multiplier of 16 and awarded Rs. 2,30,500/-. The Tribunal further awarded Rs. 9500/- on other heads, and thus awarded a total sum of Rs. 2,40,000/- along with ,,^;?::><a3%,: ...,•;•—-^.'., ^.\ 1!!7 ^.......-'.... ';: *'.•'.. ^ .•-•<:,„,:...•.••••"•^,,;. , 'yy ^ll"l"Ni 10 interest @ 6 percent per annum from the date of application i.e. 20.12.2002 till its actual payment. 19. While assessing the amount of compensation, the Tribunal has also considered the fact that widow of deceased Sitaram Yadav i.e. Sarita Devi was given compassionate appointment by the respondenVSECL. 20. The Supreme Court in case of Bhakra Beas Management Board v. Kanta Aggrawal (Smt.) and others, reported in 2008 (11) SCC-366, has observed in paragraphes 12 & 13 as under: "12. It is pointed out that the award as made is extremely high and the concept of just compensation has been lost sightof. 13. Learned counsel for the respondent supported the judgment and additionally submitted that appeal of Respondent 1 is pending. In normal course, when two appeals are directed against the common judgment, both the appeals should be heard by the same Bench of the High Court. But we find that the High Court had lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that Respondent 1 was getting Rs 4700 p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident." ^^t^^; 11 1 21. The amount of compensation of Rs. 2,40,OOO/- awarded by the Tribunal for the death of deceased Sitaram Yadav, when examined in the context of above broad features of the case, the fact that although the accident had occurred in the year 1988 but the claim application was filed in the year 2002 and the fact that one of the family members of deceased was given compassionate appointment, in our opinion, there is no scope for enhancement in the amount of compensation awarded by the Tribunal. 22. For the forgoing, both the appeals, being devoid of merits, are liable to be and are hereby dismissed. 23. No order asto costs. Sd/- ChiefJustice Sd/- N. K. Agarwal Judge sahu