1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Banwari Lal & Anr. vs. Mal Singh & Ors. S.B. CIVIL MISC.APPEALNO.352/1992 Under section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 17.06.1992 passed by the Judge, Motor Accident Claims Tribunal , Bikaner in Claim Case No.04/1983. DATE OF JUDGMENT :: 17.09.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.M.S.Singhvi ] for the appellant/s. Mr.M.S.Dave ] Mr.Rajesh Panwar ] for the respondent/s. Mr. R.K.Mehta ] BY THE COURT : The present appeal has been filed by the claimant 2 -appellants against the judgment and award dated 17.06.1992 passed by the Judge, Motor Accident Claims Tribunal , Bikaner (in short 'the Tribunal'), in Claim Case No.04/1983 whereby the learned Tribunal has awarded a sum of Rs.57,000/- as compensation in favour of claimant- appellants. Out of that for the payment upto Rs.50,000/- plus interest, Insurance Company has been made responsible and for the remaining amount owner has been made responsible along with interest @ 12% per annum from the date of filing of claim petition except for the period from 08.07.87 to 25.07.91, the time spent for producing evidence by the claimants. The brief facts of the case, which are relevant for the disposal of the appeal are that on 01.01.1983 at about 09.30 PM Truck bearing No.RSF-95 which was being driven by its driver Mal Singh rashly and negligently and in high speed came from the side of Puransingh Circle at Bikaner nearby the Gate of PBM Hospital on the wrong side , where Vinod Kumar (deceased ) was going on his bicycle on his correct side, hit him, as a result of that Vinod Kumar sustained 3 several grievous injuries on his head and other part of the body. He was admitted in the PBM Hospital, Bikaner where in the mid- night between 2nd and 3rd January 1983, he succumbed to his injuries. It was stated in the claim petition that Vinod Kumar was a student of MBBS 3rd Semester and at the time of death he was of 22 years, he was having a bright future, he would have earned more income by becoming a doctor and in ensuing years he would have been a prospective bread earner of the family if he would not had died in accident .In addition to study he was employed as Manager in Vinayak Industries , Churu Depot and he used to supervise the business by visiting the place once or twice in a month and also used to handle the accounts etc. whereby he used to earn Rs.800/- per month. Due to his untimely death in accident, claimants suffered monitory loss as well as suffered mental shock and agony. A claim petition under Section 110-A of the M.V.Act 1939 was filed by the parents of the deceased Vinod Kumar before the learned Motor Accident Claims Tribunal, Bikaner against the driver ( respondent No.1), registered owner 4 (respondent No.2) and the insurer (respondent No.3) of the said truck and a total amount of Rs.7,53,000/- was claimed as compensation on different heads.It is revealed from the record that report of this incident was lodged at police station and police, after usual investigation, filed challan against the driver of the said truck. It was prayed that reasonable compensation, as claimed , may be awarded and respondents may be held responsible to make payment of the same. After issuance of notice of claim petition, the driver of the said truck (respondent No.1), appeared and submitted his reply and denied the averments made in the claim petition and further stated that in truck there were two drivers and at the time of the accident , the said truck was being driven by the other driver. Respondent No.2, owner of the truck also denied the allegations made in claim petition and further averred that on 01.01.83 truck No.RSF-95 did not met with any accident. It was prayed to dismiss the claim petition. The Insurance Company (respondent No.3) also submitted its reply denying the averments made in the claim 5 petition and stated that respondent No.2, owner of the said truck, did not inform the Insurance Company about the accident and that was breach of the terms of Insurance policy. Further, it also took the stand that the driver of the said vehicle was not having a valid and effective driving licence at the time of accident. It was submitted that the liability of the Insurance Company to pay compensation was only upto Rs.50,000/- . It was averred that no extra higher premium was charged for unlimited liability. On the basis of pleadings of parties, the learned Tribunal framed relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation and liability to pay thereof. The claimant-appellants got examined AW/1 Phuse Khan, AW/2 Bhanwar, AW/3 Khushal Chand, AW/4 Dr.Ravindra Kumar Gehlot , AW/5 Vishnu Bhagwan , AW/6 Khushal Chand (same person AW/3) and AW/7 Banwari Lal and certain documents produced and got exhibited by them in support of their claim. In rebuttal, the non-claimants neither 6 got examined any witness nor exhibited any document in defence. The learned Tribunal, at the conclusion of trial, held that the accident was caused by the rash and negligent driving of truck by its driver Mal Singh( respondent No.1) in which Vinod Kumar lost his life. The learned tribunal also over- ruled the other defences taken by non-claimants and it was found that the said vehicle was insured with respondent No.3. Thus,considering the age and income of the deceased, it was held that the claimants were entitled to receive compensation from the respondents and vide its judgment and award dated 17.06.1992 awarded a lumpsum amount of Rs.57,000/- as compensation in favour of the claimants plus interest @ 12% per annum against the respondents as stated above,holding liability of insurer upto Rs.50,000/- but for the period from 08.07.87 to 25.07.91, the time spent for producing evidence of the claimants' witnesses, they were held not entitled to recover interest. Being felt aggrieved and dissatisfied with the quantum of compensation awarded by the learned Tribunal, this appeal has been preferred by the claimants for 7 enhancement of the compensation amount. Notice of this appeal was given to the respondents and arguments were heard. During the course of arguments, learned counsel for the appellants submitted that the learned Tribunal has not properly considered and appreciated the material available on record, while awarding compensation. It was contended by the learned counsel for the appellant that the deceased Vinod Kumar was a student of MBBS and was studying at the time of accident in 3rd Semester of MBBS and he was soon going to become a docrot and he would have earned a lot. But the learned tribunal has not considered the material with regard to the bright future prospect and awarded a very meagre lumpsum compensation of Rs.57,000/- only, that is not sustainable at all. It was further contended that the deceased was having a bright career and he was having deep devotion towards job, therefore, in addition to study, in extra time he was doing part-time job of a Manager at Vinayak Industry , where he used to supervise the business by visiting the place once or twice in a month and from that he was 8 earning Rs.800/- per month. It was urged that the learned tribunal has not accepted the claimants' version. It was not improbable to do job of supervisiion, in addition to study. Thus, the learned tribunal has not properly assessed the income which he was earning and further committed a grave error in not considering the future prospect of life as it was urged that he was studying and he was at the final stage of MBBS course. Therefore, the learned tribunal should have given due weightage to his future career. It was also contended that the deceased was the son of the claimants and by his untimely death, they suffered heavy mental shock and agony, learned tribunal should have awarded reasonable compensation in that respect. It was contended by the learned counsel for the appellant that the learned tribunal has committed an illegality in not calculating the compensation in right perspective and not estimating the income, which the deceased would have earned in future. The learned tribunal has assessed, only loss of dependency of Rs.3600/- per year , without any basis and again applying a wrong multiplier of 15, has assessed the total 9 loss of dependency of Rs.54,000/- and has awarded Rs.3,000/- in other heads and in this way, awarded a total lumpsum amount of Rs.57,000/- but that is not adequate and is not sustainable. The learned tribunal should have assessed the loss of dependency on the basis of bright career of the deceased ,as he was going to become a doctor and he would have earned much more and parents of the deceased would have been benefited by his income but learned tribunal has not given due weightage to these aspects. Therefore, looking to his age, as stated by the claimants to be of 22 years, by applying proper multiplier, the compensation should have been determined. The learned counsel for the appellant in support of his contention also placed reliance on judgments given in Kaluram vs. Gopal Swami & Ors. (2005 (5) WLC 749 ) Tundaram & Ors. v/s. Ghanshyam & Ors. [2005 WLC (UC 736], Naseeb Khan vs. New India Assurance Co. [2005 (4) WLC 304, Nand Ram & Anr. vs. Babu @ Nawal Kishore [2005 (3) RLR 599, and Jhoomarlal vs. G.M.RSRTC & Ors. [2003 WLC (UC) 783 and prayed that the finding of the learned tribunal is wrong and is liable to be quashed. 10 Further, it was contended that learned tribunal has not allowed interest for the perid from 08.07. 87 to 25.07.1991 on the count that the claimants sought time for producing evidence. But it was urged that, that cannot be a ground for not awarding interest for that period. It was further urged that ultimately during that period also the non-claimants enjoyed the fruits of that amount .Therefore, it was urged that interest for that period may also be awarded. On the basis of these submissions, it was prayed that appeal may be allowed judgment and award to the extent of awarded compensation, be quashed and modified and may reasonably be enhanced. The learned counsel for the respondents refuted the contentions and submitted that before the learned tribunal, claimants have not been able to prove the earnings of the deceased. At the time of accident, the deceased was studying, and further there were uncertainties of life thus the learned tribunal has awarded just and reasonable compensation and that should be maintained and appeal may be dismissed. The 11 learned counsel for the owner of the vehicle, further stated that though no appeal has been filed on behalf of owner, but the learned tribunal has committed an error in fixing the liability of the Insurance Company upto the sum of Rs.50,000/-.It was urged that on the contrary, in a case, if the awarded compensation is enhanced, the total responsibility of payment of compensation be held of the Insurance Company. Learned counsel for the respondent, in support of his contention, placed reliance on the judgment given in UII Co.Ltd vs.Shilpa & Ors. [ACTC 2007 (23) 684 and Padma Srinivasan v. Premier Ins.Co.Ltd. [1982 ACJ 191]. The learned counsel for the insurer submitted that the learned tribunal , after considering the policy, in which specifically it has been mentioned that liability qua the 3rd party in any one claim or series of claim arising out of one event, was Rs.50,000/-.No higher premium was taken for extra unlimited liability. Therefore, to this extent, the finding deserves to be maintained. It was also contended that no separate appeal has been filed by owner of the vehicle to agitate this aspect and before the learned tribunal also did not raise such contention. Now, they are estopped to raise the contention in this regard. It was further contended by the 12 learned counsel for the insurer that this claim case pertains to the time of Old Act. Therefore, the provisions of Old Act will apply and liability of insurer for compensation is to be seen accordingly. The learned counsel also cited the judgment given in State of Punjab & Ors. vs. Bhajan Kaur & Ors. [MACD 2008 (SC) 249], in support of his contention. I have considered the rival submissions made by learned counsel for the parties and perused the finding and conclusion drawn thereon. So far as the finding with regard to issue No.1 with regard to factum of accident is concerned, I have seen the finding given by the learned tribunal, that is based on material available on record. The learned tribunal held that accident occurred due to rash and negligent driving of the truck by its driver Mal Singh. The finding on issue No.1 is based on the statements of eye witnesses and other corroborating material . It is also important to note that there was no evidence in rebuttal and police has also filed challan against the driver of the offending vehicle. Either of the party had not challenged this finding. Therefore, that deserves to be maintained. On that basis, the non-claimant- respondents are 13 rightly held responsible for the payment of compensation. The learned tribunal , while determining the compensation has not properly appreciated the material available on record. From the side of claimant, AW/7 Banwari Lal, the father of the deceased, has appeared before the tribunal and he has stated that at the time of accident, his son was studying in Medical College, Bikaner and he was in 3rd Semester of MBBS Course. He has also stated that at that time, his age was only 22 years. He has further stated that in addition to study, he was also working in Vinayak Industry, Churu and he used to earn Rs.800/- per month. He stated that his son was having bright future , he secured first Division in Matric, and if he had not died in motor accident, his son would have become a doctor and would have earned at least Rs.4,000/- per month. The learned tribunal has not considered these aspects of the case, and has not properly determined the loss of income and wrongly, without any basis, held loss of income as Rs.3600/- per year. But considering these facts, the finding of the learned tribunal in this respect is not sustainable, as the deceased was having a bright career . He secured first Division in Matric and was studying in 3rd Semester of the MBBS Course and 14 soon he was going to become a doctor and he would have earned a lot if he would not had died and the claimants would have benefited by his income. On the basis of these facts, considering his present income and further prospect of life, he would have earned Rs.3,000/- to Rs.4,000/- per month in future and out of that, he would have paid Rs.1,000/- per month to his parents but due to his death they have been deprived from the said income and they have suffered loss. Thus loss of estate income is assessed to be of Rs.1,000/- per month and considering the age of the deceased to be of 22 years, by taking multiplier of 17, the net loss of income comes to (1000x12x17) i.e. Rs.2,04,000/-. Further taking into consideration, the status of claimant as mother and father , certainly they have suffered mental shock and agony due to untimely death of their son in motor accident. An amount of Rs.18,000/- is awarded towards loss of love and affection to them and Rs.3,000/- towards transport and future expenses etc. as awarded by the tribunal. The total comes to Rs.21,000/-. Thus, the net compensation comes to Rs.2,25,000/- . Therefore, after deducting the amount awarded by the tribunal i.e. Rs.57,000/- the net amount deserves to be 15 enhanced is Rs.1,68,000/-. The claimants will also be entitled to get interest. I have also considered the contentions raised by the learned counsel for owner of the vehicle and perused the finding given by the learned tribunal in this respect, as well as the policy of the Insurance, available on record. The owner has not appeared before the learned tribunal to state that extra premium was given to cover the unlimited liability of the third party. I have considered the judgments cited by the learned counsel but in those cases, the facts were different. In the case of United Insurance Company (supra), additional premium was found paid and in case of Padma (supra) the accident was of date after the amendment in amount of limit towards third party. In the present case, it is clear that Insurance Company has taken the risk upto the limit of Rs.50,000/-. The learned tribunal has rightly concluded and held that the responsibility of the Insurance Company would be upto Rs.50,000/-. Thus the contentions are not having force and they are hereby 16 rejected and on the basis of aforesaid discussion, the liability of the Insurance Company is rightly held upto Rs.50,000/- along with interest thereon from the date of filing of the claim petition and for remaining liability and for the aforesaid enhanced amount of compensation, the driver and the owner will be jointly and severally responsible to pay the compensation to the claimants. For that, two months' time is granted to deposit the amount before the MACT, Bikaner, failing which the claimants will be entitled to recover the same as per due process of law. The learned tribunal has disallowed the amount of interest for the period from 08.07.87 to 25.07.1991 but the reason assigned for not awarding interest for that period is not sustainable. Merely on the basis of time taken for evidence, the interest should not have been disallowed. Therefore, the interest deducted for the period from 08.07.87 to 25.07.1991 is held recoverable at the same rate awarded by the tribunal and the claimants will be entitled to get interest from the date of filing of the claim petition. On the basis of aforesaid discussion, the appeal is partly 17 allowed and the awarded compensation of Rs.57,000/- is modified and enhanced by Rs.1,68,000/- that comes to Rs.2,25,000/- along with interest on the enhanced amount @ 7.5% from the date of filing of the claim petition. The owner and the driver of the vehicle are held jointly and severally responsible for the payment of the same. Further the claimants will be entitled to recover the interest from 08.07.87 to 25.07.91 which the tribunal has disallowed as discussed aforesaid, for that period the claimants will get interest at the same rate i.e.12% per annum. The liability of the Insurance Company for the payment of compensation will be upto Rs.50,000/- plus interest, as awarded by the tribunal. Rest of the judgment is maintained. Cost is made easy. (MANAK MOHTA), J. l.george