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Judgment
Chandiwal K.U., J.—Heard the Counsels. The judgment and Award dated 19-4-2005 in MACP No. 57/2001 passed by the learned Member, Motor Accident Claims Tribunal, Jalgaon is under challenge by the Insurance Company.
The facts in case, which are broadly accepted are, on 17-11-2000 at around 6-00 am while deceased Dnyaneshwar aged 20 years was standing in front of hotel. A Truck No. HR-38-C 1871 insured with the appellant/insurance company came in high speed and turtled. In the said event, the deceased Dnyaneshwar was crushed and succumbed instantly.
Deceased Dnyaneshwar was only son of claimant and a earning member, having monthly income of Rs. 3,500/-
By the orders respondent Nos. 2 and 3 are held jointly and severally liable to pay compensation of Rs. 3,15,000/- including no-fault liability amount, along with interest @ 9% p.a. from 8-9-2001 till realisation of entire amount.
The learned Counsel urged and even referred in memo of appeal that the Claimant No. 1 was 65 years and whereas the Claimant No. 2 was 55 years. Considering the age and dependency, the appropriate multiplier should have been not more than 8 or 10, however award by multiplier of 16 is at higher pedestal and without legal force. There was nothing to indicate that deceased was earning Rs. 3,500/- per month and consequently the calculation by the learned Member of the Tribunal(r) Rs. 75 per day [@ Rs. 2,250/- p.m.] is without any proof and improper, and the next contention raised by the Counsel is, since the driver of the vehicle is deleted from the array of respondent, consequently in view of recent pronouncement of the Supreme Court in the matter of The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the claim petition will have to be dismissed.
Following points are formulated;
a] What could be the quantum of compensation?
b] Whether deletion of driver in the claim petition will be fatal to the claimants?
My findings are,
a] The claimants will be entitled to a consolidated amount of Rs. 2,43,000/- with interest @ 9% p.a.
b] The deletion of the driver will not result in dismissal of claim petition.
One should not be oblivious that the deceased Dnyaneshwar was the only son of the claimants. It is most unfortunate that claimant No. 1 father has expired during pendency of the present proceeding and the destitute mother claimant No. 2 is wandering for shelter and future life prospects. The import of the beneficent legislation cannot be ignored while considering the legal aspects and the multiplier.
On analysis of the evidence learned Member recorded that deceased Dnyaneshwar was working in the hotel and naturally he could be earning Rs. 75/- per day. I do not think that this assessment by the learned Member is based on any erroneous assumption or is a surmise, since the normal wages are Rs. 100/- per day.
The question now remains is application of multiplier. The learned Member has applied multiplier of 16 taking recourse to Second Schedule as formulated in terms of Section 163A of the Motor Vehicles Act. He has at the time of computing the claim, reduced l/3rd amount for personal expenses which the victim would have incurred for his own maintenance and consequently the figure of Rs. 2,88,000/- was arrived.
The application of multiplier of 8 years having been so asserted by the Insurance Company in the appeal memo itself, now cannot be allowed to be wriggle out. Considering multiplier of 8 years having been coined by Insurance Company, the compensation would be Rs. 2,16,000/-.
Award of Rs. 27,000/- as expenses is under criticusm, as Counsel contends, it travels beyond scope of Schedule in Section 163A of the Motor Vehicles Act. The reasons assigned by the learned Member cannot be branded to be one under excess of power.
He has considered funeral expenses which Second Schedule indicates to be Rs. 2,000/- and loss of estate is indicated Rs. 2,500/-. The parents have lost their only son. All their happiness in the life has miserable nobody is available to harbour them, they are put to in a baffled situation in life. Consequently the amount of Rs. 27,000/- as has been applied additionally, cannot be said to be erroneous and I hold that the appropriate amount of compensation is Rs. 2,43,000/-with interest @ 9% p.a
Then comes, point to delet the driver. The observations of the Hon''ble Lordships of Supreme Court in para 9 in the matter of The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , will have to be read in proper perspective.
Before we proceed to consider the main aspect arising for decision in this appeal, we would like to make certain general observations.
Their Lordships have observed ;
Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company.
Their Lordships have not said as a mandate that the non impleadgment of driver in the proceeding will be fatal for claim or award. In the said case, there was controversy as to who was driving the vehicle, the deceased or driver, as sought to be projected by the claimants. The Lordships observed the claimants were obliged to prove the negligence of the driver. The insurance Company was expected to prove breach of policy conditions. The Lordships observed in para 14;
In view of the above analysis the following situations emerge:
The decision in National Insurance Co. Ltd. Vs. Swaran Singh and Others, , has no application to cases other than third party risks.
Where originally the license was a fake one, renewal cannot cure the inherent fatality.
In case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured.
The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.
The High Courts/Commissions shall now consider the matter afresh in the light of the position in law as delineated above.
The vicarious liability of the owner and the indemnification from the Insurance Company that is apparent, cannot be taken away by deletion of the driver.
i. The First Appeal is partly allowed.
ii. The Award under challenge is modified to the extent that the claimants are entitled to the amount of Rs. 2,43,000/- [Rs. Two Lac Fourty Three Thousand Only] with interest @ 9% p.a. from 8-9-2001 till its realisation from the appellant and the owner jointly and severally.
iii. Needless to add that whatever amount the Insurance Company has sofar deposited, will not accrue any interest liability.