Case: H.S. Ahammed Hussain  Vs. Irfan Ahammed

3. The short facts are that one Irfan Ahammed-respondent No. 1 owned a lorry bearing No. CNG-6409 and Vazeer Ahamed and Rafeeq Ahamed, sons of the appellants of these appeals were working as a coolie therein. On 1st June, 1996, when respondent No. 1 was driving the said vehicle in which the aforesaid two persons were also travelling as coolie, the same met with an accident at 10.00 a.m. as a result of rash and negligent driving of the respondent No. 1 resulting into the deaths of Vazeer and Rafeeq, for which two claims petitions were filed before the Motor Accident Claims Tribunal by parents of each of the victims for awarding compensation in their favour on account of death of their sons under the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). Age of victim Rafeeq was 21 years and his fathers age was 45 years whereas that of his mother was 40 years. The age of another victim Vazeer was 22 years and that of his father and mother was 53 years and 45 years respectively at the time of the accident. The claimants in both the petitions claimed the income of their respective sons to be Rs. 4500/- per month. The claim was contested by the owner as well as the insurance company on grounds, inter alia, that the accident had not taken place on account of any rash or negligent act on the part of the owner in driving the vehicle. Both the cases were heard together. On behalf of the claimants, two witnesses were examined. Father of Rafeeq was examined as PW1 and that of Vazeer as PW2 and in their evidence, they stated that the monthly income of their sons was Rs. 3,000/-. The owner of the vehicle was examined as RW1 who, in his deposition, denied payment of Rs. 3,000/- per month to each of the victims. The Tribunal by a common judgment having found the income of each of the victims to be Rs. 3,000/- per month, awarded compensation to the tune of Rs. 3,49,000/- in favour of the parents of Rafeeq and Rs. 3,13,000/- in favour of those of Vazeer together with interest thereon at the rate of 6% per annum from the date of filing of the petition till realisation. Two different appeals were preferred before the High Court against awards of the Tribunal and each of the appeals was jointly filed by insurer as well as the insured. The High Court was of the view that the evidence in relation to income of the two victims was neither reliable nor satisfactory but found their income to be Rs. 18,000/- per annum which was little more than Rs. 1500/- per month that was prescribed as notional income as a non-earning person under the Second Schedule to the Act. After deducting 1/3rd towards personal and living expenses of the deceased, the contribution towards family was assessed at Rs. 12,000/- per annum. According to the High Court in selecting multiplier, the age of younger out of the two parents was required to be taken into consideration. As the age of the mother of Rafeeq was found to be 40 years, the High Court held that the multiplier to be applicable was 14 and compensation was reduced to Rs. 1,83,000/- from Rs. 3,49,000/-. So far Vazeer is concerned, as the age of his mother was found to be 45 years, it was held that the multiplier applicable would be 13 and consequently the compensation awarded by the Tribunal to the tune of Rs. 3,13,000/- was reduced to Rs. 1,71,000/-. It was directed that 25% of compensation shall be paid to the father of each of the victims and 75% to their mothers and the compensation payable to the mothers shall be kept in fixed deposit in a nationalised bank for a term of five years with liberty to draw the interest. Hence, these appeals by special leave.

Reasoning: Even though, this Court held that the appeal of the insured could proceed on merit and could not have been dismissed merely because the insurer joined therein, as it did not find any ground to interfere with the quantum of compensation on merit, order of the High Court was not upset. In United India Insurance Co. Ltd. (supra), which was a case under the Act against the order awarding compensation, no appeal was preferred by the insured but only the insurer filed petition under Article 227 of the Constitution of India before the High Court. During the pendency of the said petition, a motion was made for the stay of execution of the award but the High Court had only chosen to issue notice to show cause why the revision petition be not entertained. Against the said order, when the matter was brought to this Court, it was directed that the petition under Article 227 of the Constitution filed by the insurer should be treated to be an appeal under Section 173 of the Act. The Court relied upon the provisions of Section 170 of the Act which lays down that where in the course of inquiry, the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. This Court laid down that if the insured failed to prefer any appeal against the award of the Tribunal, that would also amount to failure to contest the claim within the meaning of Section 170 of the Act. Therefore, the decisions of this Court in the cases of Narendra Kumar (supra) and Chinnama George (supra) were distinguished on facts. That apart the case of Chinnama George (supra) is otherwise also distinguishable as in that case, on behalf of the insured, no argument was addressed whereas the appeal was argued only on behalf of the insurer. That apart the provisions of Section 170 of the Act which have been taken notice of in the case of United India Insurance Co. Ltd. (supra) were not considered therein. In the present case, appeal was whole hog pressed on behalf of the insured challenging the quantum of compensation awarded by the Tribunal. Thus, the decision of this Court in the case of Chinnama George and others (supra) can be of no avail to the appellant and we do not find any merit in the submission that joint appeal by the insurer as well as the insured was not maintainable. In such an eventually, the course which a Court should adopt is as noticed in the case of Narendra Kumar (supra) to delete name of the insurer from the cause title and proceed with appeal of the insured and decide the same onour view, the submission is well founded and must be accepted. Accordingly, we hold that the claimants shall be entitled to interest on the aforesaid amount at the rate of 9% per annum from the date of filing of the petitions tillare of the view that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank. In case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend.