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Judgment
Sandeep Sharma, J
Being aggrieved and dissatisfied with award dated 2.5.2018, whereby learned Tribunal below while allowing claim petition i.e. RBT MAC Petition
No. 144-G/II/13/12 filed by respondents Nos. 1 and 2/claimants (hereinafter, ‘claimants’) saddled the appellant with the liability to pay
compensation to the tune of Rs.2,82,128/- alongwith interest at rate of 9% per annum from the date of filing of the petition till realization to the
claimants, appellant has approached this Court in the instant proceedings, praying therein to set aside the award passed by learned Tribunal below.
Precisely, the facts of the case are that on 14.9.2011, mother of the claimants, Smt. Vidya Devi alongwith her sister, Smt. Neema Pathania was
traveling from Kangra to Palampur in bus bearing registration No. PB1122- 3673 being driven by respondent No.3/driver. At around 2.45 pm, driver of
the aforesaid vehicle lost control, as a result of which, bus fell into a gorge and passengers of the vehicle, including Smt. Vidya Devi sustained injuries.
Smt. Vidya Devi was hospitalized but, unfortunately, she succumbed to her injures on 27.9.2011, whereafter, claimants alongwith their father, Mehar
Chand, who also died during the pendency of the claim petition, filed the said claim petition claiming compensation to the tune of Rs. 40.00 Lakh on
account of death of their mother alongwith interest at the rate of 12% per annum.
Respondent No.3, driver of the offending vehicle, contested the claim petition by taking preliminary objections of maintainability and cause of action.
On merits, said respondent pleaded that he was not negligent while driving the offending vehicle and as such, not liable to pay any compensation.
Besides above, respondent No.3 also claimed that the amount of compensation claimed is on higher side.
Appellant adopted the reply filed by respondent No.3.
On the basis of pleadings of the parties and evidence adduced on record by respective parties, following issues were framed by learned Tribunal
below on 26.12.2016:
“1. Whether deceased Vidya Devi died in a motor vehicle accident which took place on 14.9.2011 around 2.45 P.M. at place near Thanpuri on
Pathankot - Palampur Road, within the jurisdiction of police station, Nagrota Bagwan by the rash and negligent driving of the respondent No.2 Shri
Balkar Singh o his bus bearing No. PB1122-3673 on a public way? OPP
If issue No.1 is proved in affirmative, whether petitioners are entitled for grant of compensation, if so, to what amount and from whom? OPP
Whether the petition is not maintainable, as alleged? OPR-2
Whether the petitioners have no cause of action and locus standi? OPR
Reliefâ€.
Subsequently, vide impugned award dated 2.5.2018, learned Tribunal below allowed the claim petition and held them entitled to compensation to the
tune of Rs.2,82,128/- alongwith interest at the rate of 9% per annum from the date of filing of the petition till realization.
Primarily, the challenge to the impugned award has been laid on two counts by the appellant i.e. firstly, that the claimants did not choose to file the
claim petition claiming themselves to be dependent upon their mother or taking other grounds, as such, no compensation could have been awarded in
their favour by learned Tribunal below and further that the claim petition was filed by late Mehar Chand i.e. father of the claimants, claiming himself
to be aggrieved being husband of late Vidya Devi, who died during the pendency of the claim petition on 13.1.2017, as such, claim, if any, of the
deceased Mehar Chand being personal will not subsist and, secondly, that while calculating the loss of dependency, learned Tribunal below has
wrongly applied the multiplier of 5 because, at the time of accident, deceased was aged 75 years.
Having heard learned counsel for the parties and perused the grounds taken in the appeal vis-Ã -vis reasoning assigned by learned Tribunal below,
while holding appellant liable to pay the compensation to respondents Nos. 1 and 2, this Court finds no merit in the present appeal, as such, same
deserves to be dismissed outrightly.
Though, Shri Ajay Sharma, learned Senior Advocate appearing for the appellant made a serious attempt to persuade this Court to agree with his
contention that since the claimants did not file claim petition alongwith their deceased father Mehar Chand, being legal heir and dependents of
deceased Vidya Devi, learned Tribunal below, ought not have awarded any compensation in their favour, but, aforesaid submission made by Mr.
Sharma, learned senior Advocate is totally contrary to the record. Careful perusal of record clearly reveals that the claim petition under S.166 of the
Motor Vehicles Act for grant of compensation was filed jointly by Shri Mehar Chand and his two sons i.e. claimants/respondents Nos. 1 and 2.
Perusal of claim petition clearly reveals that specific prayer was made on behalf of claimants including respondents Nos. 1 and 2 that they be awarded
compensation to the tune of Rs.40,00,000/- on account of death of Smt. Vidya Devi. While claiming compensation, claimants in the claim petition have
specifically stated that they are sons of the deceased. Since, the claim petition, as referred to above, was filed jointly by Mehar Chand and his sons
(claimants), it cannot be said that no amount, if any, could have been awarded by learned Tribunal below in favour of the claimants after death of
Mehar Chand, who was husband of the deceased. Moreover, this Court finds that after the death of claimant, Mehar Chand, an application under
Order XXII, rule 3 read with Order I, rule 10 CPC was filed on behalf of claimants for deletion of name of Mehar Chand from the array of parties.
Perusal of zimni order dated 14.3.2017 passed by learned Tribunal below, reveals that learned counsel for the respondents got their no objection
recorded, while aforesaid application was allowed by learned Tribunal below.
Though this court is of the view that since the claimants were petitioners alongwith their father in the claim petition, there was no requirement as
such, for them to get them substituted in place of Mehar Chand, but even otherwise their impleadment at that stage never came to be objected by the
appellant, rather, the appellant, while accepting the aforesaid order dated 14.3.2017, proceeded to contest the petition on merit, wherein, ultimately, it
was saddled with the liability to pay compensation to claimants on account of death of their mother.
S. 166 of the Act clearly provides that legal representatives of a deceased can always file claim petition under the Act seeking therein
compensation on account of death of the deceased, who may be father, mother, brother, sister etc. of such claimant.
Leaving everything aside, question with regard to maintainability of the claim petition on behalf of the claimants after death of their father never
came to be raised on behalf of the appellant during the pendency of the claim petition, rather, objection with respect to maintainability, which otherwise
is frivolous and has been taken at the appellate stage, cannot be permitted to be taken at this stage. Had late Mehar Chand, filed the claim petition
alone, seeking therein compensation on account of death of his wife, claim being personal in nature, could have been said to have extinguished with the
death of Mehar Chand but, in the case at hand, as has been noticed herein above, claimants filed claim petition alongwith their father, Mehar Chand,
seeking therein compensation on account of death of their mother, as such, no error, if any, can be said to have been committed by learned Tribunal
below, while awarding compensation in favour of the claimants being legal representatives of the deceased.
Interestingly, perusal of evidence led on record by respective parties, nowhere suggests that attempt, if any, ever came to be made on behalf of
the appellant before learned Tribunal below, to carve out a case that no compensation, if any, can be awarded in favour of claimants, being legal
representatives of deceased or they were not dependent upon the deceased. Hence, in view of aforesaid this Court finds no error in the impugned
award, so far compensation awarded by learned Tribunal below in favour of claimants, being legal representatives/dependents of deceased, is
concerned.
Similarly, this Court finds no force in the submission made by learned senior Advocate that learned Tribunal below erred while applying multiplier
of 5, while determining the loss of dependency. Since no evidence came to be led on record by the claimants suggestive of the fact that the deceased
was 70 years of age at the time of her death, learned Tribunal below having taken note of the age mentioned in ten post-mortem report i.e. 75 years,
rightly applied multiplier of 5 in terms of Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 AIR(SC) 3104. In the aforesaid
judgment it has been held that above 65 years of age, multiplier of 5 would apply.
Though, besides above, Mr. Sharma, learned senior Advocate appearing for the appellant made an attempt to carve out a case during hearing of
the case that learned Tribunal below, while awarding compensation in favour of the claimants has misread and misappreciated the evidence but
aforesaid plea appears to have been taken by appellant just for the sake of taking one. Otherwise also, this Court, having carefully perused the award
passed by learned Tribunal below, has no hesitation to conclude that the same is based upon proper appreciation of evidence and law, as such, there is
no scope for interference by this Court in the impugned award, which is accordingly upheld.
So far ground raised by the appellant with regard to award of interest at the rate of 9 percent per annum is concerned, this court is of the view the
same is appropriate and just keeping in view the prevailing market rate. Otherwise also Recently, Hon'ble Apex Court in Reliance General Insurance
Co. Ltd. v. Shalu Sharma, (2018) 2 SCC 753, awarded 9% interest and as such, this court finds no reason to interfere with the rate of interest
awarded by the learned Tribunal below. The Hon'ble Apex Court in the aforesaid judgment has held as under:
“The Tribunal has awarded a sum of Rs 3,14,335 towards medical expenses. An addition of Rs 70,000 would be required to be made in terms of
the decision in Pranay Sethi (supra) on account of the conventional heads of loss of estate (Rs 15,000), loss of consortium (Rs 40,000) and funeral
expenses (Rs 15,000). Hence, the total compensation is quantified at Rs 27,66,522 on which the claimants would be entitled to interest @ 9% p.a.
from the date of the filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly.â€
In view of discussion supra, present appeal is dismissed. Interim orders, if any, stand vacated. All pending applications also stand disposed of.