Misc. Appeal No.730 of 2006 CORfiM: Hon'bie Shri S.R. Nayak, CJ & Hon'bie Shri Ditip Raosaheb Deshmukh, J. Bajaj Aliianz General insurance Company, Through - Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.3$ c 1 Ramkumar Rajak S/o Phekuram Rajak, aged about 42 years. 2. Smt. Kanti Bai W/o.Ram Kumar Rajak, aged about 39 years, - Both are resident of Katiyapara, Udai 6howk, Santoshi Mandir, JunaBilaspurC.G. 3. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years (Driver - Non-appiicant No. 1 ) 4. Gopa! Singh Thakur S/o Shambhu Singh Thakur, aged about 32 ysars, Both are resident of viliage Pausara, Tahsii and District Bilaspur. (Owner- Non applicant No. 2) jsc. Appeal No. 731 of 2006 Bajaj Allianz Generai insurance Company, Through - The Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.Sj Versus 1. indira Bai W/o Late Mohtab. aged about 48 years, R/o Viilage Dhuripara, Police Station Koni, District Koni, District Bilaspur C.G. 2. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years (Driver-Non-appSicant No. 1) 3. Gopai Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Village Pausara, Tahsi! and District Bilaspur C.G. (owner-Non-applicant No. 2) ^ isc._ApDeal No. 722 pfZOQS A!lianz General Insurance Company, Through - Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.3) Versus 1. Sukhiram Suryavanshi, S/o Phenku Suryavanshi, aged about 34 years, R/o Village Pasaura, Po!ice Station Koni, District Koni, District Bilaspur C.G. 2. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years (Driver-Non-applicant No. 1$ 3. Gopai Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Viliage Pausara, Tahsil and District Bilaspur (owner-Non-appiicant No. 2) iisc. Appeal No. 728 of 2006 1. 2. 3. Ailianz General Insurance Company, Through - The Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Appiicant no.3) Versus Bhuwan S/o Haricharan, aged about 40 years, R/o Village Pasaura, Police Station Koni, District Koni, District Bilaspur C.G. Sanjay Chauhan S/o Shatrughan Chauhan, aged about 30 years Gopal Singh Thakur, S/o Shambhu Singh Thakur, aged about 32 years, Both are resident of Viilage Pausara, Tahsil and District Bilaspur C.G. (owner-Non-applicantNo. 2) Misc. Apoeai No. 723 of 2006 Bajaj Allianz General Snsurance Company Limited, Through - The Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur. (Non-Appiicant no.3) Versus 6. AppelSarit Respondents 1. 2. Smt. Uma Bai Nirmalkar, W/o Late Shankar @ Bauna Nirmaikar, aged about 24 years. Raiu Nirmaikar, S/o Late Shankar (3?. Bauna Nirmalkar, aged about 12 years. Vicky Nirmalkar S/o Late Shankar @ Bauna Nirmaikar, aged about 10years. Dhirendra Nirmalkar, S/o Late Shankar Bauna Nirmalkar, aged about 8 years. Vijay Nirmalkar, S/o 1-ate Shankar @ Bauna Nirmalkar, aged about 4 years The respondents No. 2 to 5 through mother, Mother Smt. Uma Bai, W/o Late Shankar Smt. Harmati Nirmaikar W/o Jakala Nirmalkar, aged about 65 years, A!l are resident of village- Pausara Tahsil & Dist. Bilaspur. Sanjay Chauhan, S/o Shatrughan Chauhan, aged about 30 years, (Driver - Non-applicant No. 1 ) Gopai Singh Thakur, S/o Shambhu Singh, aged about 32 years Both are resident of Vill. Pausara, Tahsil & Dist. Bilaspur (owner- Non-applicant No. 2) .A.No.729of2006 Bajaj Allianz General Insurance Company, Through - Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Raipur C.G. (Non-Applicant no.3) Versus Smt. Urmila Bai W/o Late Chaitram Suryavanshi, aged about 30 years. Anand Kumar S/o Late Chaitram Suryavanshi, aged about 12 years. klii]il,l»B»,—:;;b 3. Ashish Kumar S/o Late Chaitram Suryavanshi, aged about 4 years. 4. Ku. Anjali, D/o Late Chaitram Suryavanshi, aged about 9 years. 5. Ku. Asha D/o Late Chaitram Suryavanshi, aged about 2 years (Claimants) The respondents No.2 to 5 through thelr naturai guardian mother Smt. Urmila Bai W/o Late Chaitram Suryavanshi, aged about 30 years and a!l are resident of viilage Pausara, Police Station Koni, Tahsi! and District BilaspurC.G. 6. Sanjay Chauhan, S/o Shatrughan Chauhan, aged about 30 years, (Driver - Non-applicant No. 1) 7. Gopai Singh Thakur, S/o Shambhu Singh, aged about 32 years.' Both are resident of Vi!!. Pausara, Tahsil & Dist. Bilaspur (owner- Non-appiicant No. 2) Shri Rajesh Pandey, learned counsel for the appeilant. Smt. Meera Jaiswal, learned counsei for the claimants. Shri Vimalesh Bajpai, iearned counsel for respondents No.1 & 2 (M.A.No.730of2006) ORAL ORDER (Passed on 04th0ctober, 2006) The foilowing oral order of the Court was passed by S.R. Nayak, C.J. In all these appeals i.e. M.A.No.730 of 2006, M.A.No.731 of 2006, MA.No.722 of 2006, M.A.No.728 of 2006, M.A.No. 723 of 2006 and M.A.No.729 of 2006 preferred by the Insurance-Company under Section 173 ofthe Motor Vehicles Act, 1988 (for short the Act), the only question raised and argued is that though the M.A.C.T. has rightiy heid that the appel!ant-lnsurance Company is under no legal obiigation to pay compensation to the eiaimants, it has directed the Insurance-Company to ^^^^S5^-SSB<;:;-: ->/ © ^ pay compensation in the first instance, and then to recover the same from theowner ofthe motorvehicle involved in the accident. 2. In M.A.Nos.731 of 2006, 723 of 2CX)6 and 729 of 2006, the respondents-claimants have filed cross-objections for enhancement of compensation. 3. We have heard learned counsel for the parties. Shri Rajesh Pandey, learned counsel appearing for the appellant-lnsurance Company placing strong reliance on the judgment of the High Court of Bombay in the case of New India Assurance Co. Ltd..-v.Diwakar and Others1 would contend that the M.A.C.T. having held rightly that the Insurance- Company is under no legal obligation to pay compensation on the ground that there was breach of conditions of policy on the point of the owner of the motor vehicls involved in the accident, seriousiy erred in law in directing the Insurance-Company to pay a compensation in the first instance to the ciaimants and then to recover the same from the owner of the motor vehicle. 4. Per contra learned counsel appearing for the claimants, placing reiiance on Judgments of the Apex Court in the case of National insuranceCo. Ltd. v. Baljit Kaur and others , National Insurance Co. Ltd. v. Chalia Bharathamma and others , Pramod Kumar Agrawal and another v. Mushtari Begurm (Smt) and others and Nationai Insurance Co. Ltd. v. Bommithi Subbhyamma and others would 1. 2006 (2) TAC 937 (Bom.), 2. (2004) 2 SCC 1 3. 2004 AIR SCW 5301 4. (2004) 8 SCC 667 5. 2005 (2) TAC. 1 (SC) h 6 \" submit that the direction issued by the M.A.C.T. to the appellant-lnsurance Company to pay the compensation in the first instance and to recover the same from the owner is unexceptionable and is in accordance wlth the settled positlon in law. 5. Smt. Meera Jaiswal, iearned counsei who appeared for the cross- objectors in M.A.Nos.731 of 2006, 723 of 2006 and 729 of 2006 whiie praying for enhancement of compensation would submit that having regard to the place and time of the accident and the status of the deceased, the M.A.C.T. is notjustified in taking the;monthiy income ofthe deceased at notionai level for the purpose of computing loss of dependency. Learned counsel wouid submit that under no circumstance the monthiy income of the deceased should have been taken at a rate lesser than Rs.3000/- per month for the purpose of computing loss of dependency. She would also submit that what has been awarded by the M.A.C.T. under conventionai heads, such as, loss of consortium to the widow, ioss of estate, ioss of love and affection to the minor children of the deceased and funera! expenses is also on lower side. 6. Having heard learned counse! for the parties, the following two points arise fpr decision: (i) Whether the M.A.C.T. has acted iegally in directing the appellant-lnsurance Company to pay the compensation to the claimants in the first instance and then to recover the same from the owner of the motorvehicle invo!ved in the accident? (ii) Whether the compensation awarded by the M.A.C.T. to the respondents-Claimants in M.A.Nos.731 of 2006, 723 of 2006 and 729 of 2006, in the facts and circumstances of the case and the evidence on ^^1'% -i? record, could be regarded as just and reasonable compensation within the contemplation of the Act and if not, what is just and reasonable compensation? Point No.l This point need not detain the Court for long because this point is squarely covered by the aforesaid judgments of the Supreme Cpurt. The settled position is that even in a case where the M.A.C.T. finds that the owner of the motor vehicle involved in the accident aione is under legal liability to pay compensation on account of breach of conditions of insurance poiicy, even then, it is open for the M.A.C.T. to direct the Insurance' Company concemed to pay compensation in the first instance and then to recover the same from the owner of the motor vehicle invo!ved in the accident in an independent leaa! action like the Suit or in the Execution Proceedings initiated to execute the award passed by the M.A.C.T. The judgment of the Bombay High Court cited by Shri Rajesh Pandey, learned counse! for the Insurance-Company, is of no help to the Insurance-eompany, because, that judgment, as we could see, does not refer to or consider the binding judgments of the Suoreme Court. Point No.Il It is quite often heid and reiterated by the Courts that the compensation to be determined by the M.A.C.T. under the Act should be just and reasonable though no amount of compensation wouid really redress the sufferings and agonies or ioss sustained by the victims of accident whether it is a case of death or a case of injury. it is also weil settled that whiie computing !oss of dependency in the case of death, ttie Court would have to take into accountthe time and place ofthe accident, and the standard to be applied cannot be static irrespective of ttme and place factors. 7. In the three cross-objections to which reference is made (supra), the deceased were in prime age group when they died in the accident. They left behind them young widows, children and parents. tt is true that no concrete substantive evidence is laid by the claimants before the M.A.C.T. to substantiate that the deceased concemed was earning any particular sum of money as monftly income. 6imply because such evidence is not available before the M.A.C.T., it could not be said that the IVI.A.C.T. is justified in taking the monthly income, in all the three aforesaid cases, at notional level of Rs.15,000/- per annum. The Supreme Court and many High Courts, in recent times, have opined that even in the case of an ordinary housewfe or unskilled manual labourer, Rs.300/- should be taken as monthly income for the purpose of computing loss of dependency. It is reasonable to infer that the deceased, in each of these cases, were eaming earned not less than Rs.100/- per day or Rs.3,000/- per month to have atleast two square meals to themsetves and their dependents and a shelter over their head. We say this keeping in mind fte time arid place of the accident. The accident took place only recently i,e. in the year 2005. If we take ttie monthly income of the deceassd in ^ach of these cases at Rs.3000/- per month and deduct one-lhird of the same towards personal expenses of the deceased, the totat loss of dependency would come to Rs.3,12,000/- in the case of cross-objectors in M.A.No.731 of 2006; Rs.4,32,000/- in the case of cross-objectors in M.A.No.723 of 2006, and Rs.3,60,000/- in the case of cross-objectors in M.A.No.729of2006. 8. We are of the considered opinion, as opined in earlier several orders, that the compensation to be awarded under conventionai heads shouid reflect time and place. In other words, compensation to be pald under conventional heads cannot be static for al! times and for ail places. It is because even conventiona! compensation is compensation and not a gratuitous payment nor a token payment. Taking into account the tims and place of the accident and demise in these cases, we are of the considered opinion that what has been awarded under the conventiona! heads are on lower side. Therefore, we award a sum of Rs.25,000/- in each of these cases towards 'loss of consortium' to the widows concerned, Rs.25,000/- towards 'loss of estate'. What has been awarded towards 'loss of love and affection is just and reasonabie. There is no warrant for any enhancement underthe said head. in the result and for the foregoing reasons, we dismiss all these appeais filed by the Insurance-Company. .(i) We aliow Cross-Objections fiied in M.A.No.731 of 2006 in part, and in substitution of the impugned award, we award totai compensation of Rs.3,69,000/- under the foiiowing heads: Cross-obiectors in M.A.No.731 of 2006 Rs.3,12,000/- (i) Towards loss of dependency = (24,000x13) (ii) Towards loss of Consortium = (iii) Towards loss of Estate = (iv) Towards loss of love and affection= Rs. 25,000/- Rs. 25,000/- Rs. 5,000/- JO (v) Funeral expenses = Rs. 2.000/- Totat: Rs.3,68,000/- Similarly, we allow Cross-Objections flled in M.A.No.723 of 2006 in part, and in substitution of the impugned award, we award total compensaUon of Rs.5,09,000/- under the following heads: Cross-obiectors in M.A.No.723 of 2006 (i) Towardslossofdependency = Rs.4,32,000/- (24,000x18) (ii) TowardslossofConsortium = Rs. 25,000/- (iii) Towards loss of Estate = Rs. 25.000/- (iv) Towards loss of love and affection = Rs. 20.000/- to minor children (respondents No.2 to 5) (v) Funeral expenses Total Rs. 2,(XX)/- Rs.5,04,(»0/- We allow Cross-Objections in M.A.No.729 of 2006 in part, and in substitution of the impugned award, we award total compensation of Rs.4,37,000/- under the following heads: Cross-obiectors in M.A.No.729 of 2006 (i) (IV) (V) Towardslossofdependency = (24,0)0x15) TowardslossofConsortium = Towards loss of Estate = Towards loss of love and affectlon = to minor children (respondents No.2 to 5) Funeral expenses as Rs. Rs.3,60,000/- Rs. 25,Wmi- Rs. 25,000/- Rs. 20,000/- 2,000/- Total Rs.4,32,00)/. In all these cases, we award interest at 6% per annum from the date ofclaim petition till payment. 11 10. !n the facts and circumstances of the case, the partiss tn ali these appeals and the cross-objections shall bear their respective costs. 11. The insurance-Company shail deposit the balance of compensation befors the M.A.C.T. within six weeks from today and on such deposiS being made, the M.A.C.T. shaii invesVdisburse the same in the same proportions, if any, specified by it in the impugned awards. Sd/- Chief Justice Sd/- Dilip Raosaheb Deshmukli Judge Anja.'ii