Mohitosh Dutta vs Mustari Begum

Indira Banerjee, J.—This appeal is against a judgment and award dated 26th April, 2012 passed by a Motor Accident Claims Tribunal, Fast Track 1st Court, Burdwan in M.A.C.C. No. 122 of 2006/234 of 2006 filed by the respondent Nos. 1 to 4 claiming compensation on account of the death of Riyasat Ali, husband of the appellant No. 1 and father of the appellant Nos. 2 and 3, both minors and son of the respondent No. 4, in an accident involving vehicle No. WB2T/4778, hereinafter referred to the offending vehicle, owned by the appellant and covered by a policy of insurance issued by the respondent No. 5, ICICI Lombard General Insurance Company Limited, hereinafter referred to as the respondent insurer.

The learned Tribunal on consideration of the materials on record found that the victim was travelling by the offending vehicle which met with an accident which was caused by the rashness and negligence of the driver of the offending vehicle.

The respondent insurer filed a written statement before the learned Tribunal, contending that the insurance policy did not cover the victim and the respondent insurer was, therefore, not liable to pay compensation for the death of the victim.

The learned Tribunal found that the victim who was 29 years of age and was the owner-cum-driver of an auto-rickshaw, and held a driving licence. The learned Tribunal also arrived at the finding that on the date of the accident, the offending vehicle was covered by a policy of insurance issued by the respondent insurer.

The learned Tribunal, however, held that the victim was not a third party but an occupant of the vehicle and hence not covered by the policy of insurance. The learned Tribunal found that the owner of the offending vehicle was liable to compensate the heirs of the victim and not the respondent insurer.

The learned Tribunal awarded the respondent claimants total compensation of Rs. 9,64,500/- to be paid by the appellant owner and divided equally between the four claimants. The claimant respondent 1, being the surviving spouse was directed to be paid additional Rs. 5,000/- towards loss of consortium. The learned Tribunal dismissed the claim case against the respondent insurer but without costs.

This appeal has been filed by the owner of the offending vehicle inter alia contending that the offending vehicle was covered by a comprehensive policy of insurance for which there was no requirement for additional premium for occupants of the car. It is the case of the appellant that a private car package policy covers occupants of the insured car, for which additional premium is not required.

Mr. Roy appearing on behalf of the appellant cited the judgment of the Supreme Court in Oriental Insurance Company Ltd. v. Surendra Nath Loomba and Ors. reported in 2013 (1) TAC 15 (SC) where the Supreme Court clearly held that a comprehensive package policy of a private car covers the occupants. Where the vehicle was covered under a comprehensive package policy, it was not open to the insurer to take any plea to avoid payment of compensation.

The policy being a comprehensive package policy, the learned Tribunal erred in dismissing the claim application, as against the respondent insurer. The dismissal of the claim against the respondent insurer is not sustainable in law and the same is set aside.

The respondent claimants have also filed a cross-objection against the judgment and award under appeal mainly on three grounds.

The first ground is common. Mr. Banik appearing on behalf of the respondent claimants supported the submission of Mr. Roy appearing on behalf of the appellant owner, that the policy being a comprehensive package policy, the same would cover all occupants even though no separate premium may have been paid.

The second ground urged by Mr. Banik is that a certain amount should have been added to the income of the deceased victim towards future prospects.

In Sarla Verma & Ors v. Delhi Transport Corp.& Anr reported in (2009) 6 SCC 121 the Supreme Court propounded the proposition that in case of compensation under Section 166 of the Motor Vehicles Act, 1988 for the death of a permanent employee, a standardized amount should be added towards future prospects.

In Sarla Verma & Ors v. Delhi Transport Corp.& Anr (supra) the Supreme Court held that in case of victims below 40 years of age at the time of the accident 50% should be added to the salary and in case of victims aged between 40 and 50 30% may be added to the salary towards future prospects. The Supreme Court held that no addition need be made in the case of a victim exceeding 50 years of age, at the time of the accident.

In Sarla Verma & Ors v. Delhi Transport Corp.& Anr (supra) the Supreme Court held that such addition could only be made in the case of permanent salaried employees and not in case of self-employed persons, professionals etc. However, subsequently, the Supreme Court took the view that an addition to future prospects might be made in the case of self-employed persons. Reference may, in this context be made to the judgments of the Supreme Court in Santoshi Devi v. National Insurance Co. Ltd. reported in (2012) 3 TAC 1 (SC); Rajest v. Rajbir reported in (2013) 9 SCC 54; Smt. Savita v. Bindar Singh & Ors. reported in (2014) 2 TAC 385 (SC).

The proposition of law which emerges from the judgments referred to above is that, in case of permanent salaried employees, as a rule of thumb standardized 50% addition should be made in case of victims aged less than 40 years and standardized 30% in case of victims between 40 and 50 years. Addition on account of future prospects cannot, however be restricted only to salaried permanent employees. The benefit of addition would also have to be given to professionals and self-employed persons, in appropriate cases.

Addition on account of future prospects cannot, however, be automatic. In the case of self-employed persons and professionals, where there is no other evidence of income except oral evidence of one of the claimants devoid of material particulars, and such oral evidence is accepted on the principle that a reasonable guess work may be permissible, it would not be appropriate to make an addition towards future prospects.

However, where there is some evidence and where the guess work is based on materials at least in the form of plausible accounts, a certain amount of addition may be made.

In this case, we do not deem it necessary to make any addition towards future prospects. The oral evidence of income is vague and does not reveal the route on which the auto-rickshaw plied, the fare that was charged from passengers; the approximate number of trips that could be made during a day, the expenses incurred on the running and maintenance of the auto-rickshaw etc.

Furthermore, unlike trained persons or even labourers whose daily wages are likely to increase with inflation, income from out of business may remain static or even decline due to adverse business conditions.

The victim was operating an auto rickshaw which has an operating life. The vehicles depreciate and may require replacement.

There is nothing to show if the victim was saving a sufficient amount to finance the purchase of a new vehicle to enable him to continue with operations.

In view of the recent trend of judgments where the Supreme Court has deprecated the High Courts and Tribunals for granting interest at a rate less than 9%, we hold that the respondent claimants would be entitled to interest at the rate of 9% per annum from the date of filing of the claim application till full disposal to be computed as per reducing balance.

The respondent insurer shall deposit the awarded amount inclusive of interest in the Tribunal within 45 days from the date of receipt of a certified copy of this order.

The appeal and the cross-objection are disposed of accordingly.

Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.

Sahidullah Munshi, J.—I agree