HIGH^OURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR.I.M.QUDDUSI & HON'BLE MR.G. MINHAJUDDIN. JJ. M.A. Fcl No. 742/2007 Appellant Bajaj Allianz General Insurance Company Limited, Raipur (CG) Vs Respondents Pranay Richard Tirkeyand others ORDER FOR CONSIDERATION i' . .Sdf- i\:^..—-^.r-—- JUDGE \\ .11.2011 HON'BLE SHRI I.M.QUDDUSI. J ^ 0^c^<-e— 'SAI- l^.Quddusi Judge & JUDGE .11.2011 POST FOR ORDER ON 1 1 NOVEMBER. 2011 l^ Sd/- G.Minhajjudin Judge [ --.-l-rzai-T—— & - HIGH COURT OF CHHATTISGARH ATBILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. M.A. [cl No. 742/2007 ADpellant Respondents Vs Bajaj Allianz General Insurance Company Limited, Raipur (CG) Pranay Richard Tirkey and others Present: Mr. SS Rajput, counsel for the appellanVinsurance company. Mr. Santosh Bharat, counsel for respondents No. 1 & 2. Mr. Jaishanker Pandey, counsel for respondent No.3. ORDER (Passed on \\^ November, 2011) Per G. lyiinhaiuddin. J; 1. This appeal has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 against the award of the Motor Accident Claims Tribunal, Bastar at Jagdalpur (in short "the Tribunal") dated 10th April, 2007 passed in Claim Case No.363/05, fastening liability on the appellant/insurance company, jointly and severally, along with the driver/respondent No.3 herein. 2. Respondents No. 1 &2/claimants havealso filed cross appeal in the instant case. 3. Brieffacts ofthe case, as per averments made in the claim petition, are that on 27.10.2004, Dr. V.K. Tirkey, his wife Dr. V.Prabha Tirkey, Dr. Sanjay Kashyap and respondent No.2 Praveer David Tirkey, were going to Dantewada from Jagdalpur by Alto Maruti Car bearing registration No. C.G. 04/3956/T.R. 04, owned by Dr. V.K. Tirkey. At about 8 am, when they reached near Village-Kilepal, the driver/respondent No.3 Satish Kumar Shrivastava, by driving the said car in a rash and negligent manner, dashed it against the tree, as a result of which Dr. V. Prabha Tir.key and J~>r_\/ K TirkauL 2. iii'fima r:l:)i KiJiii'M Xa S ®«»,..." i ^Si"'^ S(i: tv. ^a^f -7^^-^-r '''•'•^f1^' sustained several injuries on their person and succumbed to the same on the spot. At the relevant point of time, the said car was insured with the appellant/insurance company. Report of the accident was lodged at Police Station - Kodenar. 4. At the time of accident, Dr. (Mrs.) V.P. Tirkey was Workingas Assistant Surgeon in Primary Health Center, Dantewada and getting salary of Rs.14501/- per month after deduction. Therefore, the claimant, who are sons of the deceased persons, as her legal heir filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.51,50,000/- against the death of their mother Dr. (Mrs.) V.P. Tirkey under various heads. 5. However, learned Tribunal, afterhearing counsel for respective parties, after close scrutiny ofthe evidence jadduced by the parties before it, awarded a total compensation of Rs.8,64,016/- in favour of the ctaimants, fastening the liability upon the appellant/insurance company, jointly and severally, along with driver of thevehicle. 6. We have heardlearned counsel for the parties, perused the LCR as also the impugned award, 7, In addition to oral arguments, both learned counsel for the appellanVinsurance company as well as leamed counsel for respondents No. 1 & 2 have submitted written arguments. Learned counsel for the appeltant/insurance company has quoted judgments ofthe Hon'ble Supreme Court rendered in Oriental Insurance Co. Ltd. Vs. Meena Varial and others, AIR 2007 (SC) 1609 and Oriental Insurance Co. Ltd. Vs. Sunita Rathi, AIR 1998SC 257 as well as the judgment delivered by Full Bench ofthe High Court of Madhya Pradesh in Viml^bai andothers Vs. Sharif Khan ancf of/iers, 2009(4) MPU 453. 8. 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' :'ili 1 ^CSK^ ^ 'K.,jy: '^.v .^:F iii IIII MSEa.^•'c''1' -^' f:ylu' "'. ^ ][1 1 •—--'y, I; owner/insured liable for payment of compensation, the insurance company alone cannot be saddled with the liability. The liability under the Act, 1988, so far as claim under Section 166 of the Act, 1988, is concerned, is a tortuous liability and firstly, the driver of the offending vehicle is held liable on the basis of negligence, then the owner/insured becomes vicariously liable and after that, the concerned insurance company is liable for indemnifying the owner/insured of the vehicle in respect of 3 party. 12. In the instant case, as owner/insured Dr. V.K. Tirkey had himself expired in the vehicular accident, therefore, only respondent No.3/driver was made a party along with the appellanVinsurance company and the award has been passed jointly and severally againstboth ofthem. 13. If would be appropriate to quote the provisions of Section 166(1) of the Act, 1988, whichjeads as under: "166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any ofthe legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the applicatiori'shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application." 14. From the provisions of Section 166(1) of the Act, 1988, it is clear that all the legal representatives or any one of them of the deceased can file application for compensation. In the instant case, the claim application for compensation in respect p{ death of Dr. (Mrs.) V.P. wn Tirkey has been filed by her sons respondents No. 1 & 2. On the death of Dr. (Mrs.) V.P. Tirkey, her legal representative would have been her husband i.e. Dr. V.K. Tirkey and two sons i.e. respondents No. 1 & 2. However, unfortunately, in the same accident, the husband Dr. V.K. Tirkey had also expired and as such, respondents No. 1 & 2 were the only LRs of late Dr. (Mrs.) V.P. Tirkey on the date of filing of the claim petition under Section 166 of the Act, 1988. It is not in dispute that at the time of accident, deceased Dr. (Mrs.) V.P. Tirkey was an occupant in the vehicle in question. 15. Thus, in view of the above, we are of the opinion that as respondents No. 1 & 2 are sons of late Dr. (Mrs.) V.P. Tirkey, therefore, they are her heirs and consequently her LRs, who can maintain an apptication under Section 166 of the Act, 1988 for compensation. i 16. tn the case of Nandram Prajapati (supra), the claimant was himself owner/insured and the deceased was his daughter and after the death of his daughter, the mother had also expiredon account of shock and owner/insured himsetf was the sole heir and LR of the deceased daughter and wife. In such factual matrix, learned Single Judge of the Madhya Pradesh High Court has also held that an application for compensation under Section 166 of the Act, 1988 by owner/insured himself, impleading the driver and the insurance company, was maintainable and the award passed by the Tribunal fastening the liability jointly and severally upon the appellant/insurance company and the driver was affirmed. 17. Now the next question to be considered is - whether deceased Dr. (Mrs.) V.P. Tirkey, who was an occupant of the vehicle in question at the relevant time, can, by any stretoh of imagination, be termed as 3rd party? 18. From perusal of the insurance policy, which Mvas issued by the appellant/insurance company in favour of the deceased owner/insured Dr. V.K. Tirkey, it is clear that the insurance policy was a car package policy, in which additiohal premium for Personal Accident (PA) coverage for the owner-cum-driver and four unnamed occupants was paid, with a coverage oftwo lacs for each^erson_Ji^. ..-.^ .^•:... >.. 6 is pertinent to mention here that husband of the deceased was owner of the vehicle and the deceased was, at the relevant time, only an occupant of the vehicle and squarely covered under the car package policy. 19. The Full Benches of the MP High Court in the matters of Jugal Kishore and another Vs. Ramlesh Devi and others, 2003(4) MPLJ 546 and Sunita Lokhande and others Vs. New India Assurance Co. Ltd and others, 2008 (1) MPLJ 54 as well as the learned Single Judge of the Jammu & Kashmir High Court in the matter of National Insurance Co. Ltd. Vs. Faqir Chand and others AIR 1995 Jammu and Kashmir 91, has held that every person other than the contracting parties to the insurance policy, is a third party. In addition to this, according to Circular dated November 16, 2009 of thelnsurance Regulatory and Development Authority, as the policy was a car package policycovering the risk of occupants of the vehicle, therefore, there is no doubt that there was insurance coverage for the deceased Dr. (Mrs.) V.P. Tirkey, who was, at the relevant time, occupant of the vehicle. As such, the amount claimed by the respondents/claimants through District Consumer Disputes Redressal Forum, Bastar at Jagdalpur under own damage and personal accident (PA) will be in addition to the liability of the insurance company for payment of compensation under Section 166 of the Act, 1988. 20.So far as cross-appeal/objection filed by the respondents/claimants for enhancement of the amount of compensation is concerned, the claims Tribunal has assessed the take home salary of the deceased as Rs.13,436/-. Age of the deceased has been assessed as 36 years. The Tribunal has nottakeninto consideration the promotional prospects of the deceased Dr. (l^lrs.) V.P. Tirkey, which as per law laid down by the Hon'ble Apex Court in Sar/a Verma (Smt.) Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, comes to 50% as her age was 36 years, which is below 40 years. In computing the monthly income of the deceased, the Tribunal has deducted the contributions made by the deceased towards GPF, GIS and the monthly installment of Rs.1260/- payable ;-U..,;,;.i iS^fs s&s sa ..•.,<'r/tTT.-': . s ^" /^ '-.' ^ ^ •J. towards loan, which should not have been done and only the allowance of Rs.100/- should have been deducted from the gross salary for assessing the net salary, as per law laid down by the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Indira Srivasfava, AIR 2008 SC 245. 21. It is by now well settled that an amount as compensation under Section 168 of the Act, 1988 should be just and reasonable. Neither the amount should be a bonanza nor it should be mere pittance. It has also been settled that an amount can be granted as compensation in excess of the amount claimed, but the same should be just and reasonable, as laid down by the Hon'ble Supreme Court in the case of Nagappa Vs. Gurudayal Singh, AIR 2003 SC 674. 22.As such, after deducting the allowance of Rs.100/-, the remainder, includingcontribution towards GPF (Rs.1500/-), GIS (Rs.180/-) and loan installment (Rs.1260/-), comes to Rs.16,236/- per month. After taking into account 50% promotional prospects, the monthly income of the deceased would come to Rs.24,354/-. The respondents/claimants, who are two in number, are minor sons of the deceased, who were definitely dependent upon the deceased, therefore, 1/3 amount will have to be deducted towards personal and living expenses of the deceased. Thus, after deductingl/3 towards personal and living expenses, the remainder comes to Rs.16,236/- and therefore, the annual dependency would come to Rs.1,94,832/-. As the deceased was 36 years of age at the time of accident, therefore, as per law laiddown by the Hon'ble Apex Court in Sarfa Verma (supra), muitiplier of 15 will be applicable. Thus, after applying the multiplier of 15,-the total loss of dependency comes to Rs. 29,22,4801-. 23.1n addition to this, the respqndents/claimants shall be entitled to Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. As such, after adding Rs.15,000/- in the total loss of dependency, the total compensation comes to Rs.29,37,480/-. On the aforesaid amount of compensation, tliie respondents/claimantg •'sK.^S SB -^ '&• shall be entitled to simple interest @ 6% per annum from the date of presentation of the claim petition till its realization. 24. In the result, the appeal fails and is, accordingly, dismissed. However, the cross-objection filed by the respondents/claimants is allowed in part and it is held that the respondents/claimants shall be entitled to compensation of Rs.29,37,480/- along with interest @ 6% per annum on the said amount from the date of presentation of claim petition till its payment is made. The amount already paid by the insurance company to the claimants shall be adjusted. 25. However, there shall be no order as to costs. ———- Sd/- I.M.Quddusi Judge Sd/- G.Minhajjudin Judge ^