Bajaj Allianz General Insurance Company Limited vs Roshan Lal And Others

Sanjeev Kumar, J

APCIV No. 132/2017

No orders are required to be passed in this application at this stage because the appeal is being considered for final disposal.

Accordingly, this application is disposed of.

MA No.364/2017

This appeal by the Bajaj Allianz General Insurance Company Limited (hereinafter 'the insurer') is directed against the award dated 10th January, 2017 passed by the Motor Accident Claims Tribunal, Ramban (hereinafter 'the Tribunal') in Claim No.148/Claim titled, Roshan Lal v. Bajaj Allianz General Insurance Company Limited and others, whereby respondent No.1 (hereinafter 'the claimant') has been held entitled to compensation of Rs 6,09,400/- on account of death of Smt. Raj Wanti, wife of the claimant.

The impugned award has been assailed by the insurer primarily on two grounds:-

i) The offending vehicle, at the time of accident was overloaded and, therefore, the appellant-insurer was only liable to satisfy the highest 23 passengers and was absolved of its liability to indemnify the owner with regard to the death or bodily injury to rest of the passengers.

ii) The quantum of compensation assessed by the Tribunal is contrary to the evidence on record and, therefore, is exorbitant and excessive.

Heard learned counsel for the appellant and respondent No.1 and perused the record.

With regard to the issue of overloading of the offending vehicle, it is contended that as per the Registration Certificate (RC) of the offending vehicle, it had permissible carrying capacity of 23 passengers but the same was overloaded with passengers more than 23 in number. It is, thus, urged that for violation of the RC as also the terms and conditions of the Insurance Policy, the appellant-insurer was absolved of its liability. It is, however, not the case of the appellant that the injured or deaths in the instant case, with respect to whom the claim petitions were filed are more than 23 in numbers.

If that be the position, this issue would not arise for consideration. It is exactly for this reason, the Tribunal has not framed any issue with regard to overloading. Otherwise also, issue with regard to the overloading of the offending vehicle and the liability of the insurer has been fairly settled by the Supreme Court in the case of United India Insurance Company Limited v. K.M.Poonam, 2011 ACJ 917 SC. It is, thus, trite law that even if, passenger vehicle is overloaded, the Insurance Company is not totally absolved of its liability to indemnify the owner but its liability would be restricted to satisfy the highest awards qua the passengers within the permissible seating capacity of the vehicle and for rest of the passengers also the Insurance Company would pay the compensation in the first instance and shall have the recovery rights against the owner.

As noted above, in the instant case, the issue is totally insignificance, as in the instant case, the claim petitions with respect to both the injured/deceased are far less than 23, which, as per the insurer, was the registered seating capacity of the offending vehicle.

Regarding quantum of compensation, Mr. Vishnu Gupta, learned counsel for the appellant, vehemently urges that in the absence of cogent evidence on record, it was not justified on the part of the Tribunal to take the income of the deceased as Rs 5,000/- per month. Mr. Gupta also disputes the deduction applied by the Tribunal.

From a perusal of the record, it clearly transpires that the deceased, Raj Wanti, besides contributing towards domestic chores, was statedly selling flowers. Though, income of the deceased was claimed by respondent No.1 as Rs 20000/- per month, but the Tribunal assessed the income of the deceased as Rs 5000/- per month. The Tribunal has not given any reasoning as to why it has taken the income of the deceased as Rs 5,000/-.

Be that as it may, in the absence of any contrary evidence on record and placing some reliance on the oral testimony of the claimant/respondent No.1, it would be in the fitness of things to take the income of the deceased as Rs 4,000/- per month. There would be an addition of 40% to the assessed income towards loss of future prospects. The Tribunal has gone wrong by deducting 1/3rd from the assessed income of the deceased, whereas in the instant case deduction @ 50% is applicable, as admittedly, there is only one dependent. The multiplier used by the Tribunal is also not correct, because as per Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121, the appropriate multiplier for the age group of persons 25-30 years is 17.

It may be noted that applying the well settled legal standards, the amount of compensation instead of getting decreased, would increase. Court is conscious that the claimant has not filed any cross-appeal/objection for enhancement, yet it is obligatory on the part of the Courts/Tribunals to ensure that the compensation awarded is just and reasonable. (see Jitendra Khimshankar Trivedi and ors. V. Kasam Daud Khumbhar & ors, (2015) 4 SCC 237).

Accordingly, taking the monthly income of the deceased as Rs 4,000/-, adding 40% towards loss of future prospects, the total monthly income of the deceased would come to (4000 + 1600)= Rs 5,600/-. Deducting one-half on account of person expenses, the monthly loss of income would come to 5600-2800= Rs 2800/-. Thus, the annual loss of income comes to Rs 33,600/-. Applying the multiplier of 17, the total loss of income would come to Rs 5,71,200/-.

Apart from the aforesaid loss of income, respondent No.1 would also be entitled to following sums under conventional heads viz. loss of estate Rs 15,000/-, funeral expenses Rs 15,000/- and loss of spousal consortium Rs 40,000/-.

Accordingly, the claimant is held entitled to the compensation in the following manner:-

Loss of income : Rs 5,71,200.00

Loss of Estate : Rs 15,000.00

Funeral expenses : Rs 15,000.00

Loss of spousal consortium : Rs 40,000.00

Total : Rs 6,41,200.00

Regarding interest and other terms and conditions, the award of the Tribunal shall remain unaltered. The award of the tribunal is modified to the aforesaid extent.

The appeal along with connected application stands disposed of. The appellant shall deposit the balance amount within six weeks. On such deposit, the Registry shall release the amount in favour of the claimant after proper identification and verification.