Neelam Bhingardive and Others vs Coal India Limited and Others

Pritinker Diwaker, J.—This appeal filed by the claimants arises out of the award dated 31-12-2008 passed by 6th Additional Motor Accidents Claims Tribunal, Bilaspur (in short "the Tribunal") in Claim Case No. 44/2008 whereby in a death case compensation of Rs. 8 lacs has been awarded in favour of the claimants. Facts of the case in brief are that on 27-12-2007, when A.V. Bhingardive was travelling in a Bolero (Maxi Cab), which was owned by respondent No. 4 and duly insured with respondent No. 6, on account of rash and negligent driving of respondent No. 5, the said vehicle turned turtle resulting in death of A.V. Bhingardive.

At the time of death, A.V. Bhingardive was 48 years of age and was working as Personnel Manager (Executive Grade) in South Eastern Coalfield Ltd. The claimants are widow and two minor children of the deceased. A claim case was filed by the claimants for compensation of Rs. 98,72,644/-, inter alia, pleading that monthly salary of the deceased was Rs. 39,824/- he was also receiving amount of Rs. 5,000/- towards House Rent Allowance, Rs. 4,800/- towards GMPF and Rs. 2,500/- towards conveyance allowance. As such monthly income of the deceased was Rs. 52124/-.

However, learned Tribunal after appreciation of the evidence on record has granted a total compensation on Rs. 8 lacs in favour of the claimants.

Learned Counsel for the appellants submits that amount awarded by the Tribunal is very much on the lower side and the same is required to be enhanced for the following reasons:--

"(i) that the Tribunal has erred in law in awarding lump sum compensation of X 8 lacs in favour of the claimants, ignoring the salary of the deceased;

(ii) that when monthly salary of the deceased was Rs. 52,124/-, the Tribunal should have assessed the compensation on the basis of structured formula;

(iii) that under the conventional heads, no amount has been awarded by the Tribunal;

(iv) that the deceased being in permanent job, addition of certain amount in his salary towards future prospects is also required to be done by this Court."

Opposing the submission of the appellants, it has been argued by the respondents that in the facts and circumstances of the present case, the Tribunal was justified in awarding lump sum compensation in favour of the claimants. They submit that compassionate appointment has already been given to wife of the deceased and therefore, there is no such hardship being caused to the claimants as pleaded in the claim petition. Lastly, they submit that the compensation awarded by the Tribunal being reasonable and just needs no interference by this Court.

A cross-appeal has also been filed by respondent No. 6/Insurance Co. on the ground that though the vehicle in question was insured with the Insurance Co. for private purpose but on the date of accident, the same was being plied for commercial purposes by the Coal India in breach of terms and condition of the insurance policy and as such, the Insurance Co. cannot be held liable to satisfy the award.

Heard learned Counsel for the parties and perused the material available on record.

Considering the facts and circumstances of the case, it would be appropriate to first consider the cross appeal preferred by the Insurance Co.

The vehicle in question is Maxi Cab, which is normally being used as a taxi. In the certificate of registration, unexhibited photocopy of which is on record, it has not been shown to be registered as private vehicle. In the cover note also, it has not been mentioned that the vehicle in question was insured as private vehicle, but as per insurance policy (Exh. D-2), the vehicle has been mentioned as private vehicle. However, no evidence has been adduced by the Insurance Co. regarding there being any breach of terms and conditions of the insurance policy on the part of the insured.

It is settled position of law that onus is always on the Insurance Co. to prove that the vehicle in question was being used in violation of policy conditions, The breach of policy conditions, i.e., disqualification of the driver, invalid licence or the vehicle being plied in violation of insurance policy, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere statements/pleadings to this effect are not in themselves defences available to the insurer against either the insured of the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of policy regarding use of vehicle. However, in the present case there is no such evidence adduced by the Insurance Co. for avoiding its liability and therefore, it is difficult for this Court to hold that on the date of accident, the vehicle in question was being filed in breach of policy conditions.

Thus, considering all the aspects of the matter, this court is of the opinion that the cross-appeal preferred by the Insurance Co. has not substance, the same is liable to be dismissed and is dismissed as such. Finding of the Tribunal fastening liability Upon the Insurance Co. is hereby affirmed.

As regards enhancement of the compensation, the Tribunal in a mechanical manner by the impugned award Has granted lump sum compensation of Rs. 8 lacs without following the guidelines laid down in catena of decision of the Apex Court in this regard. In claim cases where the deceased is a salaried person; his salary has been specifically pleaded and proved by the claimants; the Tribunal is under an obligation to determine the claim based on the structured formula evolved in several Cases by the Apex Court and the procedure laid down therefor, such as future prospects,'' personal and living expenses, appropriate multiplier'' and the amount awardable under the conventional heads. The Tribunal cannot avoid its liability by'' making lump sum award ignoring the legal position holding the field in this regard. The Tribunal cannot be act on the basis of whims and caprice while awarding compensation and it is supposed to stick to the legal yardsticks set by the Supreme Court from time to time: Sorry to say that barring exceptional cases, deviation from settled legal position cannot be permitted by the Courts of law particularly When the object of the legislation is benevolent However the situation in this case is not as such where any deviation can be resorted to.

So far as appeal preferred by the claimants is concerned, from the pleadings and documents on record, it is apparent that monthly salary of the deceased was Rs. 39,824/-. It has also been pleaded that in addition to this amount of Rs. 39,824, the deceased was also getting Rs. 5,000/- towards House Rent Allowance, Rs. 4,800/- towards CMPF, and Rs. 2,500/- towards conveyance allowance. As Such, monthly income of the deceased comes to Rs. 52,124/-. However, evert if the aforesaid additional amount are ignored, the undisputed monthly salary of the deceased comes to Rs. 39,824/-. As per his salary slip on record, Rs. 4,000/- was being deducted from his monthly salary towards income tax and as such, after income tax deduction, the monthly salary comes to Rs. 35,824/-.

Though certain other amounts were also being deducted from his salary, such as PF, PPF, Provisional Tax, House Rent, Club Charges, but for Provisional Tax of Rs. 250/-, no other amount is liable to be deducted from the salary of the deceased in view of law laid down by the Apex Court in Vimal Kanwar and Others Vs. Kishore Dan and Others, ; Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, and Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal and Others, . Similarly, the amount received by widow of the deceased after getting compassionate appointment is also not liable to be deducted from the income of the deceased for the purpose of computing compensation, as has been held by the Apex Court above mentioned cases. Thus, after deducting the amount of Rs. 250 (Provisional Tax) from Rs. 35,824/-, the monthly income of the deceased comes to Rs. 35,574/-.

At the time of death, the deceased was 48 years of age, therefore, in view of law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , there is required to be an addition of 30% of the actual salary, i.e., Rs. 10,672/- to the actual salary, i.e., Rs. 35,574/- towards future prospects of the deceased. After making such addition, the monthly income of the deceased would be Rs. 46,246/-, i.e., Rs. 5,54,952 per annum. As the deceased is survived by three dependents, i.e., widow and two minor children, 1/3rd is required to be deducted from the annual income of the deceased towards his personal and living expenses. After making such deduction of Rs. 1,84,984/-, the annual loss of dependency comes to Rs. 3,69,986. Since the deceased was 48 years of age at the time of accident, in view of law laid down in Sarla Verma (supra), multiplier of 13 will be applicable in this case. After applying this multiplier, the total loss of dependency comes to Rs. 48,09,584/-.

So far as award of amount under the conventional heads is concerned, looking to the facts and circumstances of the case, a sum of Rs. 25,000/- is awarded towards loss of love and affection; Rs. 15,000/- is awarded towards loss of consortium; and Rs. 15,000/- is awarded for funeral expenses. Thus, under the conventional heads, the appellants are entitled for a total sum of Rs. 55,000/-. As such, the appellants/ claimants are entitled for a total compensation of Rs. 48,64,584/- (Rs. 48,09,584/- + Rs. 55,000/-).

In view of what has been discussed above, the appellants/claimants are; held entitled for a total sum of Rs. 48,64,584/-. Since the Tribunal has already awarded compensation of Rs. 8 lacs, the appellants/claimants are now entitled for an additional compensation of Rs. 40,64,584/-. This additional amount of compensation shall carry interest @ 6% per annum from the date of filing of claim petition till its realisation. In the result, the appeal is allowed and the award impugned is modified to the aforesaid extent.