IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.106 of 1997 DOLLY SINGH, WIFE OF LATE DR. OM PRAKASH SINGH, RESIDENT OF CIRCUIT HOUSE AREA, JAMSHEDPUR. ……… (Applicant) ……… Appellant. Versus 1. SHRI LALLAN KUMAR SINGH, Son of Shri Bishnu Prasad Singh, Mohalla Lohanipur, P.S. – Kadamkuan, District – Patna. 2. Shri Surendra Prasad Singh, Son of Shri Sakaldeo Prasad Singh, Resident of Bari, Munger, P.S. – Munger Town, District – Munger. 3. United India Insurance Company Limited, Branch No. 2, Patna – 800001. …………. (Opposite Parties) ….. Respondents. ----------- For the Appellant :- Mr. Janardan Prasad Singh, Advocate. Mr. Vinay Kirti Singh, Advocate. Mr. Akhileshwar Singh, Advocate. For the Respondents :- Mr. Ashok Priyadarshi, Advocate. Mr. Binod Kumar Singh, Advocate. 23. 04.10.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the judgment and award dated 05.12.1996 passed by the 4th Additional Claim Tribunal, Vaishali by which he has granted the claim of Rs.55,000/- as compensation for the death of the husband of the claimant, namely, Dr. Om Prakash Singh on 05.11.1987 by a collision between the motor cycle and a mini bus. The claimant is the wife of the deceased Dr. Om Prakash Singh. The case of the claimant is that her husband Dr. Om Prakash Singh was going on motor cycle 2 being driven by one Shambhu Nath Singh, S.I. of Police and the deceased and J. Pathak were also sitting on the said motor cycle. The motor cycle was dashed by a Mini Bus bearing no. BHP 8089 from behind while being driven rashly and negligently causing injury to Om Prakash and others. Om Prakash got grievously injured with multiple injuries on his head by which succumb to injury. During the pendency of the claim petition a defence was raised by the owner that the deceased was a pillion of the motor cycle carrying three persons in defiance of law and it is admitted fact that the applicant i.e. the widow of the said deceased married with another person in February, 1989 and hence her dependency after re-marriage ends. The Insurance Company, however, took the plea that the accident took place due to the fault of the motor cycle while violating the traffic rules. Four issues were framed on pleading of the parites which are as follows:- (i) Whether the claim petition as framed is maintainable or not? 3 (ii) Whether the claimant is entitled for compensation after her re-marriage? (iii) Whether or not the claimant is entitled to get any compensation from the owner of the vehicle opposite party no. 1 or from United India Insurance Company Ltd. opposite party no. 2 and if so to what extent? (iv) Whether or not the claim case has got merit or fit to be allowed? While deciding issue no. 1 the Tribunal held that the claim is maintainable. While deciding issue no. 2 it was held that claimant should be compensated but the claim of compensation should be confined from the death of the deceased till the date of re-marriage of the widow holding the date of re-marriage as February 1989 as per mentioned in written statement in absence of any pleading or evidence of claimant. While deciding issue no. 3 the Tribunal held that liability to pay the claim of compensation is on the O.P. No. 2 United India Insurance Company Pvt. Ltd. as the mini bus was insured at the time of the accident. While deciding the quantum, the Tribunal took 4 the income of the deceased as 4362.25/- per month and apply the multiplier of 17 as the age of the deceased was 34 years and awarded the compensation to the claimant for 15 months i.e. from date of accident till date of remarriage as Rs.39,660/- and taking into consideration the young age of the claimant allowed the compensation to the tune of Rs.50,000/-in lump sum and Rs.5,000/- for funeral, Rs.10,000/- for Shrad and Rs.5,000/- for loss of consortium was also added. Thus, allowing the amount of compensation to the tune of Rs.70,000/- and taking into consideration of the fact that she has already received Rs.15,000/- the said amount deducted and net amount held to be paid was Rs.55,000/- with an interest @ 12% per annum pendente lite and future. The appellant is the claimant and she has challenged the impugned order on the ground that she has only been granted compensation for 15 months only on the ground that she has remarried and has asserted that the marriage of the victim will not devoid her benefits accrued to her by the death of her husband and has further contended that she is liable for entire compensation for the death of her husband. 5 Learned counsel for the Insurance Company, however, submitted that the accident took place in the year 1987 when the old Act was in operation and according to the old Act the liability of the Insurance Company was limited to the extent of Rs.50,000/- hence for payment of compensation of any amount beyond Rs.50,000/- lies on the owner as the Insurance Company has already paid Rs.50,000/-. It is further contended that there is nothing in the insurance policy that the policy covered any higher risk beyond Rs.50,000/- as no extra premium has been paid or no contract has been entered into for the extra liability. Hence, the Insurance Company is not liable to pay if the quantum of compensation is enhanced. Learned counsel for the owner, however, contended that the impugned order is against the Insurance Company to pay and hence any increase in quantum the insurer is liable to pay. It has also been asserted that for assessing the compensation the Court should take into consideration the loss and gain by claimant by subsequent event of remarriage and placed reliance on decision reported in AIR 1983 Patna 39 and AIR 2008 SC 3118. Hence, on the rival submission of the parties, 6 the question for consideration (i) whether the claimant is entitled for compensation after re-marriage (ii) whether she is only entitled for compensation till the period of his widowhood or even beyond after her re-marriage (iii) whether the claimant is entitled to compensation from the owner or from the Insurance Company to the tune beyond the statutory limit of Rs.50,000/- as existing as per the Act on the date of occurrence. (iv) what shall be the quantum of compensation i.e. whether quantum requires to be enhanced amount of such enhancement. Now the facts that the appellant is the claimant and claim is regarding the death of her husband who was a doctor by accident with motor vehicle and after the accident she preferred claim petition under Section 110 of the Motor Vehicles Act 1939 regarding the death of her husband and it has come during the proceeding that she has remarried which has not been denied and taking into consideration this fact that she had been remarried after 15 months of the accident i.e. death of deceased husband. The Tribunal on considering these facts held that the claimant has totally fail to show that by remarriage her loss has not been compensated and considering the 7 decision reported in 1986 ACJ 1973 of Punjab and Hariyana High Court hold that the claim of compensation is to be confined to the period of the widowhood i.e. till her remarriage, however, no reasoning assigned in the impugned judgment for such a finding. However, reliance was placed on behalf of the complainant appellant on decision reported in AIR 1983 Patna 39 which was even placed before the Tribunal which has even been referred in the impugned order but has not at all been considered or discussed or distinguished by the Tribunal, though is a well considered decision on the point in issue with direct bearing on issue whether the widow is entitled to any compensation after remarriage. The tribunal based his finding on decision reported in 1986 ACJ 1973 even though a decision of Single Judge of Punjab & Haryana High Court in preference to decision of Division Bench decision of Patna High Court reported in AIR 1983 Patna 39. The fact of the case reported in AIR 1983 Patna 39 was that the deceased died out of the accident of motor vehicle and plaintiff no. 1 was the widow and plaintiff no. 2 was the mother of the deceased in claim 8 case filed by them. The plaintiff no. 1 remarried on 17.06.1973. The defendant no. 1 the owner of the truck pleaded in his written statement that the plaintiff no. 1 has remarried and on account of her remarriage she has lost her right to claim compensation and the Tribunal held that after remarriage the plaintiff no. 1 is not as helpless as after the accident and so plaintiff no. 1 is entitled to full maintenance amount for about two years, but something more. Being aggrieved by the order the miscellaneous appeal preferred and the question raised, whether the widow will entitle to any compensation after remarriage? On considering various provisions of Section 21 of the Hindu Adoption and Maintenance Act, Section 2 (i) (d) of the Workmen Compensation Act, Section 110 of the Motor Vehicles Act and various decisions on the point held that the widow even after remarriage is entitled to compensation on account of the death of her deceased husband. Reliance also has been placed in decision reported in AIR 1973 Patna 170. The question for consideration in 1973 Patna was whether a widow after remarriage divested her interest in property of her previous 9 husband and it was held that once a widow succeed to the property of her husband and acquired absolute right over the same she would not be divested of that absolute right on her remarriage and the full ownership confer cannot be divested by her subsequent remarriage on interpreting Section 14 of the Hindu Succession Act. Hence, taking into consideration the view expressed by the Hon’ble Patna High Court in both the decisions in AIR 1983 Patna (Supra) and AIR 1970 Patna (Supra) as both are the decision of the Division Bench of Patna High Court and hence the finding recorded by the Tribunal basing his decision on the Single Bench judgment of the Punjab and Haryana High Court reported in 1986 ACJ is not sustainable either in Law or fact and hence I find and hold that the finding recorded by the Tribunal that claimant is not entitled to claim for a period after her remarriage is not sustainable in the eye of law either on fact or on law and hence I find and hold that the appellant is entitled for entire compensation for the death of her husband by motor vehicle accident even for a period after her remarriage. The next question for consideration who will liable to pay the compensation in excess to the statutory 10 liability. However, fact remains that the occurrence took place in the year 1987 when the Old Motor Vehicles Act, 1939 Act was in operation. The statutory liability for a third party risk was at the relevant time was only to the extent of Rs.50,000/- and the submission of the learned counsel for the Insurance Company that they have already paid the statutory liability of Rs.50,000/- and there is nothing on record to establish that policy was beyond the statutory limit or any extra premium was paid with regard to the policy for covering the liability beyond statutory liability of Rs.50,000/- and hence the Insurance Company is not liable to pay the compensation beyond the statutory limit and any enhancement will be payable by the owner and not by the Insurance Company as Insurance Company has already paid the statutory liability of Rs.50,000/- as directed by the Tribunal with interest to the claimant. The learned counsel for the owner asserted that the direction was given by the Tribunal to pay the amount of compensation to the claimant and hence the Insurance Company is liable. However, in regard to the point raised it is relevant to consider the decision reported in AIR 2004 11 SCW 737. The question for consideration in the case that the Tribunal awarded a compensation of Rs.70,000/- with regard to an accident dated 05.06.1987 with interest @ 12% per annum the insurer question the legality of the payment of the entire amount and asserted that his liability was limited to Rs.50,000/- in terms of Section 95 (ii) (b) (i) of the Act and it was pointed out that only a sum of Rs.240/- was paid as the third party insurance premium. The question for consideration was that when extra premium has not been paid for enhanced liability the Insurance Company is liable only for the statutory liability of Rs.50,000/- and nothing beyond it and relying the provisions of law as well as decisions reported in 1988 (1) SCC 626 and decision of Constitution Bench reported in 2002 (2) SCC 278 approved the view that in case of insurer not taking any higher liability by accepting higher premium for payment of compensation the insurer would be liable to the extent of act liability limited under Section 95(2) of the Act and would not be liable to pay the entire amount of compensation awarded and hence concluded that the liability of the insurer is limited to statutory liability of Rs.50,000/-. 12 In decision reported in 2002(2)SCC 278 the Supreme Court which considered the point in issue held that the liability of the insurance if only statutory liability to the extent of Rs.50,000/- it does not effect in any manner the liability of the owner and the driver to pay the rest amount of award and hence the decision reported in 2002 (2) SCC287 specifically held the insurer is liable only to the extent of Rs.50,000/- and the rest of the liability is on the owner and the driver to pay the full amount of the award. In decision reported in 2006 (1) PLJR 630 a Division Bench of this High Court has also taken the view that the Insurance Company not taking any higher liability to the third party the insurer would be liable to the extent limited under Section 95 (2) of the Act and not beyond and hence the point in issue has well been decided by the authoritative decisions and hence having regard to the fact that the insurance policy on record is shows the premium paid is only Rs.240/- for basic premium though it has been asserted that the amount paid is for comprehensive and hence it shall deem to include the entire compensation on enhanced rate. However, the same argument was advanced 13 before the decision of Division Bench reported in 2006 (1) PLJR 630 and repelling the argument it was held that the comprehensive policy is concerned with the damage to the vehicle and not to the third party risk relying on decision reported in 2002 (2) SCC 278 and AIR 1988 SC 719. Hence, there is no merit in the submission that the comprehensive policy will include an extra premium beyond the statutory liability, but no such agreement has been brought in existence or in evidence and hence I find and hold that the Insurance Company has only the limited liability to the extent of the statutory liability of Rs.50,000/- and any compensation beyond Rs.50,000/- shall be paid by the owner as the owner is liable for any compensation beyond statutory liability. The next question for consideration is the quantum. However, two decisions relied upon by the learned counsel for the appellant reported in AIR 1983 Patna 39. However, in decision reported in AIR 1983 Patna 39 asserting the quantum of compensation, a catena of decision has been taken into consideration to formulate a principle to assess the compensation and while taking into consideration in AIR 1977 SC 1158 the scale of the 14 pay of the deceased at the time of death was considered to be the basis for calculating the quantum of compensation and further considering the decision reported in AIR 1962 SC, 1 hold that the pecuniary loss can only be ascertained by balancing on the one hand the loss to the claimants of the future pecuniary benefits and on other hand pecuniary advantage which from whatever source comes to them by reason of death i.e. the balancing of loss and gain to the dependents by the death must be ascertained and again the principle enunciated in AIR 1971 SC 1624 also taken into consideration where it has been held that in fixing the compensation the pecuniary loss can be ascertained only by balancing the gain from any change circumstance and the loss to the claimant of the future benefits and any pecuniary advantage which from whatever source comes to claimant by reason of the death. The principle also adopted on basis of the decision reported in AIR 1977 SC 1155 that the 50% of the total income assess has to be deducted for the amount which would have been spent by the deceased to cover day to day domestic expenses payment of income tax and other charges. Hence, applying these principles I proceed to consider the quantum of 15 compensation the appellant is liable to be required as claim of compensation. In decision reported in 2008 SC 3118 it has been held that loss and gain arising to the claimant out of accidental death of victim is a valid consideration and the compassionate appointment on the death of the victim held to be proper consideration and non consideration of these benefits in assessing compensation has been held to be improper. However, having regard to the fact that the income of the deceased was Rs.4,300/- per month from salary and after the death of the deceased the victim remarriage and the second husband was earning Rs.2,000/- per month and hence taking into consideration the pecuniary benefit by considering the loss and gain to the deceased is Rs.2,300/- and since the age of the victim was about 35 years and hence the loss of actual income is Rs.2,300/- x 12 and since the husband was about 35 years and hence the multiple of 16 is being taken to access the quantum for age group 30-35 of deceased and the loss can well be assessed as Rs.2,300 x 12 x 16 = Rs.4,41,600/- and deducting the 50% of the amount as the amount spent of 16 the deceased for meeting the day to day expenses and for payment of fake as per the decision reported in AIR 1977 SC 1158 the total amount available to the family or claimant would be Rs.2,16,000/-. However, in decision reported in AIR 1983 Patna (Supra) 25% has been reduced from this income as the claimants are getting the amount in a lump sum at one time and hence applying the principle, the 25% having been deducted the claim amount can well be assessed as Rs. 2,16,000 - 54,000 = 1,62,000/- and to this amount Rs.5,000/- for funeral, Rs.10,000/- for Shradh and Rs.5,000/- for loss of consortium as granted by the Tribunal is added makes the compensation to the tune of Rs.1,82,000/- and since Rs.70,000/- has already been paid with interest and hence deducting the amount of Rs.1,82,000 – 70,000 = 1,12,000/- which the claimant is entitled with 6% interest. The next question for consideration as to who will pay the amount whether the Insurance Company or the owner, however the Tribunal held that the Insurance Company liability in the case is only limited to statutory liability of Rs.50,000/- as the policy held to be act policy and no extra liability as no extra premium has been paid 17 and hence no extra liability to the Insurance Company as Insurance Company has already paid hence the rest amount after deducting the amount already paid the owner is liable to pay Rs.1,12,000/- with interest @ 6% per annum from the date of petition till the date of realization. Hence, the award of Tribunal is set aside in view of above discussions and held that the claimant is entitled to Rs.1,12,000/- with interest @ 6% per annum from owner from the date of petition till the date of realization and hence, the appeal is allowed. Kundan (Gopal Prasad, J.)