Chandra Prabha Singh vs Anil Khairwar

Since both the appeals arise out of a common award, they are heard and decided together.

Both the appeals have been preferred against the award dated 22.1.2015 passed by the Motor Accidents Claims Tribunal, Surguja (Ambikapur) in Claim Case No.131 of 2011. Miscellaneous Appeal (C) No.483 of 2015 has been filed by the claimants. Miscellaneous Appeal (C) No.840 of 2015 has been filed by the owner of the offending vehicle.

Facts of the case, in brief, are that on 1.4.2011, in night hours, Ravindra Pratap Singh (deceased), driving a jeep bearing registration No.MP 27 W 0547, was returning to his village. When he reached near Village Bakalo, Respondent Anil Khairwar, driving offending vehicle Pick up bearing registration No.UP 64 H 1322 rashly and negligently dashed the said jeep from front. Due to the accident, Ravindra Pratap Singh sustained grievous injuries on his body and died during treatment in hospital. On the basis of a report, an offence was registered against the driver of the offending vehicle. At the time of accident, the deceased was aged about 40 years and was working as a supplier of the house construction material and also doing the work of agriculture. He was getting a monthly income of Rs.46,000 from both the sources. Claimants, i.e., wife, two sons and parents of the deceased, being his dependents, filed a claim petition before the Tribunal claiming total compensation of Rs.67,94,000.

The driver and owner of the offending vehicle filed their written statement jointly and denied the averments made in the claim petition. It was pleaded by them that the accident occurred due to rash and negligent driving of the jeep by the deceased himself. It was further pleaded by them that as the offending vehicle was duly insured with United India Insurance Company Limited, if any liability arises for payment of compensation that should be fastened upon the insurance company.

The insurance company filed a separate written statement and pleaded that the accident occurred due to rash and negligent driving of the deceased himself and, therefore, the owner and insurer of the jeep, which was being driven by the deceased, are necessary party. It was further pleaded that as the accident occurred between two vehicles, there was contributory negligence on the part of the deceased also. It was further pleaded that at the time of accident, the driver of the offending vehicle did not possess a valid and effective licence to drive the offending vehicle. The offending vehicle was registered and insured as a goods carrying vehicle, but, at the time of accident, it was carrying passengers. Since the offending vehicle was being used as a passenger vehicle, there was a breach of the insurance policy and, therefore, the insurance company is not liable to pay any compensation.

The Tribunal recorded evidence of the parties and after hearing the arguments raised, the Tribunal held that the claimants are entitled to get total compensation of Rs.22,82,756. It was further held that as the deceased was also liable for the accident, there was a contributory negligence of 50% on his part and, therefore, the claimants are entitled to get only 50% of the above mentioned compensation assessed by the Tribunal. It was further held that at the time of accident, the offending vehicle was being driven as a transport vehicle and, therefore, there was a breach of the insurance policy. Thus, it was directed by the Tribunal that the award amount should be first deposited by the insurance company of the offending Pick up and thereafter it should be recovered by the insurance company from the owner and driver of the offending Pick up.

Against the impugned award, Miscellaneous Appeal (C) No.840 of 2015 has been filed by the owner of the offending vehicle on the ground that there is no evidence led by the insurance company to show that at the time of accident the vehicle was being used as a passenger vehicle, therefore, the finding recorded by the Tribunal is not in accordance with the evidence available on record. Since there was no breach of the insurance policy, the insurance company only is liable to deposit the entire awarded amount.

Miscellaneous Appeal (C) No.483 of 2015 has been filed by the claimants on the ground that the Tribunal has not properly considered the monthly income of the deceased and also wrongly held that 50% of the contributory negligence was on the part of the deceased. Another ground taken by the claimants is that the Tribunal has not properly awarded amount under the heads of funeral expenses, love and affection and other heads.

I have heard Learned Counsel appearing for the parties and perused the record of the Tribunal with due care.

Undisputedly, at the time of accident, the jeep bearing registration No.MP 27 W 0547 was being driven by the deceased himself. It is also not in dispute that there was a head on collision between both the vehicles, i.e., the aforesaid jeep being driven by the deceased and the Pick up vehicle bearing registration No.UP 64 H 1322 being driven by Respondent Anil Khairwar. Before the Tribunal, wife of the deceased Chandra Prabha Singh examined herself as Applicant Witness No.1 (AW1) and also examined one Vinay Kumar as Applicant Witness No.2 as an eyewitness of the accident. Vinay Kumar (AW2) deposed that at the time of accident, he was sitting in the Pick up vehicle and the jeep, which was being driven by the deceased, was being driven carefully and on correct side of the road and the driver of the Pick up vehicle was driving the Pick up rashly and negligently and he dashed the jeep. The above evidence of Vinay Kumar (AW2) is duly supported by Chandra Prabha Singh (AW1). The statements of these two witnesses were not duly rebutted during their cross-examination. The claimants have discharged the initial burden and established the occurrence of accident and the rash and negligent act of the driver of the Pick up vehicle. Despite the fact that both the owner and the driver of the Pick up vehicle filed their joint written statement, they did not examine themselves. Merely because the accident was a head on collision it would not by itself be sufficient to arrive at a conclusion that both the drivers were equally responsible for the accident. Consequently, the finding holding the deceased to be equally responsible for the accident deserves to be and is hereby set aside and accordingly I hold that the driver of the offending vehicle alone was responsible for the accident.

As regards breach of the insurance policy, undisputedly, the offending vehicle Pick up was a light motor vehicle and the driver of the Pick up had possessed a valid and effective licence to drive a light motor vehicle. From the evidence available on record, it is also established that at the time of accident, offending vehicle Pick up was being used as a transport vehicle. Therefore, on this ground only, the Tribunal arrived at a conclusion that as the Pick up was being used as a transport vehicle, there was a breach of the insurance policy. Dealing with the issue, the Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited, (2017) 14 SCC 663, observed and held as under:

“60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.”

On examination of the facts of the instant case in the light of above law laid down by the Supreme Court, it is established that the driver of the offending vehicle Pick up had possessed a licence for driving a light motor vehicle. Though the Pick up was being used as a transport vehicle, as observed by the Supreme Court in Mukund Dewangan (supra), the driver was duly authorised to drive the offending vehicle Pick up. Thus, the finding of the Tribunal that there was a breach of the insurance policy is also not acceptable. Consequently, this finding of the Tribunal is also set aside.

Accordingly, I hold that the insurer of the offending vehicle Pick up alone is responsible for payment of the compensation to the claimants.

Now, insofar as the yearly income of the deceased as assessed by the Tribunal to be Rs.1,64,671 is concerned, I do not find any infirmity in the said assessment. The assessment is done on the basis of the income tax return of the deceased for the financial year 2009-2010. According to the claimants, the deceased was working as a contractor and supplying material of building construction. It was also pleaded by the claimants that the deceased was also doing the work of agriculture. Claimant/wife of the deceased deposed before the Tribunal that there was 300-400 acres of land in their joint family. According to her statement recorded before the Tribunal, there were total 3 brothers of the deceased. The claimants have not filed any document relating to any agricultural land belonging to the deceased alone. Even if for the sake of argument it is considered that any such land was in their joint family, even after the death of the deceased, the agricultural work would be carried out by remaining members of the family of the deceased. The Tribunal has rightly held that the claimants have not suffered any loss towards agricultural income.

The Tribunal has added 30% of the established income of the deceased towards his future prospects which is according to this Court is not proper as the deceased was aged about 41 years at the time of accident and he was a self employed person. Therefore, on the basis of the law laid down by the Supreme Court in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, it would be 25% in place of 30%. Ordered accordingly. Looking to the above observation, now, I re-calculate the compensation, which should be awarded to the claimants, as under:

Sl. No.

Heads

Amount (Rs.)

1

Yearly income of the deceased

1,64,671

2

Add:  25% towards his future prospects

41,168

Total =

2,05,839

3

Less:  1/4th towards his personal expenses

51,460

Total =

1,54,379

4

Loss of income

(After applying applicable multiplier of 14 based on the age of the deceased; Rs.1,54,379 x 14 =)

21,61,306

The Tribunal has awarded Rs.10,000 towards funeral expenses, Rs.10,000 towards love and affection, Rs.5000 towards loss of estate and Rs.10,000 towards loss of consortium, which, according to the law laid down by the Supreme Court in Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram, (2018) 18 SCC 130, are not proper. As observed by the Supreme Court in Nanu Ram (supra), the claimants are also entitled to get compensation of Rs.2,00,000 towards loss of consortium (Rs.40,000 for claimant/wife of the deceased as spousal consortium, Rs.40,000x2=Rs.80,000 for claimants/both sons of the deceased as parental consortium, Rs.40,000x2=Rs.80,000 for claimants/parents of the deceased as filial consortium. Apart from that, the claimants are also entitled to get Rs.15,000 towards loss of estate and Rs.15,000 towards funeral expenses. Therefore, now, the claimants are entitled to get total compensation of (Rs.21,61,306 + 2,00,000 + 15,000 + 15,000 =) Rs.23,91,306. This amount of compensation shall be paid by the insurer, owner and driver of the offending vehicle Pick up jointly or severally within two months from today along with simple interest @ 6% per annum from the date of filing of the claim petition before the Tribunal till final payment of the compensation. Out of the total amount awarded by this Court today, claimant/wife of the deceased shall be entitled to get Rs.10,00,000, claimants/both the sons of the deceased shall be entitled to get Rs.5,00,000 each, claimants/parents of the deceased shall be entitled to get 50% - 50% of the remaining amount. After deposit of the amount of award before the Tribunal, out of Rs.10,00,000, Rs.5,00,000 shall be disbursed to the wife of the deceased through an account payee cheque and remaining amount of Rs.5,00,000 shall be kept in a fixed deposit in a nationalised bank for a period of three years. As on date, Akash Singh, son of the deceased has become major and, therefore, Rs.2,00,000 shall be disbursed to him through an account payee cheque and remaining amount of Rs.3,00,000 shall be kept in a fixed deposit in a nationalised bank for a period of three years. Since Prithwi Pratap Singh, another son of the deceased is minor, his total share amounting to Rs.5,00,000 shall be kept in a fixed deposit in a nationalised bank till he attains majority. If his mother Chandra Prabha Singh intends, she shall be allowed to withdraw the interest accrued on the said fixed deposit of her minor son on a quarterly basis. The total share of the parents of the deceased shall be disbursed to them through account payee cheques.

Resultantly, both the appeals are allowed to the extent shown above. The impugned award is set aside.