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Judgment
Rajnesh Oswal, J
Both the claimants and Insurance Company have filed appeals against the award dated 24.11.2010 passed by the Motor Accidents Claims Tribunal, Jammu (hereinafter to be referred as the Tribunal), in file No. 380/Claim, titled, “Rajni Sharma and another vs Oriental Insurance Company Limited and Ors.” by virtue of which compensation of Rs. 1,65,000/- along with interest @ 7.5% per annum, has been awarded to the claimants, to be paid by the Appellant- Company with liberty to recover from the owner of the offending vehicle.
MA No. 53/2011
This appeal has been filed by the Insurance Company against the impugned award primarily on the ground that the appellant was not under any obligation to satisfy the award as the owner of the vehicle had allowed the driver having invalid license to drive the insured vehicle.
MA No. 65/2011
The claimants have filed this appeal for enhancement of the amount of compensation on the ground that the learned Tribunal has wrongly deducted one-third of the notional income of the deceased contrary to the law laid down by the Apex Court and further only Rs. 5,000/- has been granted for funeral expenses and Rs. 10,000/- under the head for loss of love and affection.
Mr. Amrit Sarin, learned counsel for the appellant/insurance Company has vehemently argued that the Insurance Company is under no liability to satisfy the award as the driver was not having a valid license.
Per contra, Mr. Jatinder Singh, learned counsel appearing for the respondents/claimants vehemently submitted that no just compensation has been awarded to the claimants.
Heard and perused the record.
The facts necessary for disposal of the present appeals are that the claimants/respondents filed a claim petition for grant of compensation on account of death of Laxhmi Sharma alias Laxmi Devi age 5 years old, who died in a vehicular accident on 04.11.2009 when the deceased was walking on foot and she was hit by the offending vehicle that was being driven by its driver in a rash and negligent manner. After filing of the petition, notices were sent to the respondents therein and only the appellant/Insurance Company filed the response and owner and driver of the vehicle were set ex parte and on basis of the pleadings of the parties, following issues were framed:
“1. Whether an accident occurred on 04.11.2009 at Shama Chack Jammu by rash and negligent driving of offending army vehicle No. JK02U-2601 in which deceased Lakshim Sharma alias Lakshmi Devi suffered fatal injuries?
If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation if so to what amount and from whom? OPP
Whether driver of the offending vehicle at the time of accident was not holding valid and effective driving licence, if so what is its effect? OPR-1.
Relief.
The claimants examined respondent No. 2 and PW-Rampaul and the appellant-insurance company examined Arvind Raina as witnesses. After considering the pleading of the parties, the learned Tribunal has granted Rs. 1.65 lacs along with 7.5% interest per annum as compensation, in favour of the respondents/claimants with liberty to the appellant to recover the same from its owner.
The contention of the appellant/insurance company is that the appellant is not liable to pay the compensation as the driver of the offending vehicle was not having a valid license. It requires to be noted that the owner has not filed any appeal against the said award and as such this court has not examined the validity of the liberty granted to the appellant-company to recover the compensation from owner. Be that as it may, when the vehicle is driven contrary to the terms and conditions of the policy, the insurance company is liable to pay the compensation to the third party and liberty can be granted to recover the same from the owner of the vehicle.
Reliance is placed upon the judgment of the Supreme Court in Manuara Khatun v. Rajesh Kr. Singh, (2017) 4 SCC 796, wherein the Apex Court has held as under:
“21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) — they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case quoted supra.
Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured.”
Now, the second issue that arises is with regard to the quantum of compensation. A perusal of the award impugned reveals that Rs. 5,000/-has been granted for funeral expenses but as per judgment of the Apex Court in National Insurance Company versus Pranay Sethi & Ors reported in (2017) 16SCC 680, Rs. 15,000/- is required to be paid for the same. For loss of love and affection, Rs. 10,000/- have been awarded and as per Pranay Sethi‟s case (supra), instead of head „love and affection‟, compensation on account of loss of consortium to the extent of Rs. 40,000/- each is required to be paid to both the claimants, who are the parents of the deceased. The Learned Tribunal has considered the notional income of the minor child as Rs. 15,000/ as per Schedule-II of the Motor Vehicles Act. Further a perusal of the award reveals that one-third deduction has been made towards the self expenditure. The Apex Court, while considering the issue for grant of compensation on account of death of a child aged 7 years, a student of class-II, who died in motor vehicle accident in the year 2004, in Kurvan Ansari v. Shyam Kishore Murmu, (2022) 1 SCC 317 has held as under:
“14. In this case, it is to be noted that the accident was on 6-9-2004. In spite of repeated directions, Schedule II is not yet amended. Therefore, fixing notional income at Rs 15,000 per annum for non-earning members is not just and reasonable.
In view of the judgments in Puttamma , we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in Rajendra Singh [Rajendra Singh v. National Insurance Co. Ltd., (2020) 7 SCC 256 : (2020) 4 SCC (Civ) 99 : (2020) 3 SCC (Cri) 134] relied on by the learned counsel for Respondent 2 insurance company would not render any assistance to the case of the insurance company.
In view of the above, we deem it appropriate to take notional income of the deceased at Rs 25,000 (Rupees twenty-five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier of 15, as prescribed in Schedule II for the claims under Section 163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000 (Rs 25,000 × multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs 40,000 each towards filial consortium and Rs 15,000 towards funeral expenses.”
As such, the notional income as per law laid down by the Apex Court is taken as Rs. 25,000/- per annum. Now the total compensation payable to the appellants-claimants comes out to be as under:
For loss of dependency = Rs. 3,75,000/-(25000x15)
Loss of consortium= Rs. 80,000/-
Funeral expenses= Rs. 15,000/-
Total= Rs. 4,70,000/-
Viewed thus, the compensation awarded by the learned Tribunal is enhanced to Rs. 4,70,000/-. Resultantly, the appeal filed by the Insurance Company/appellant is dismissed and the appeal filed by the appellants/claimants is, accordingly, allowed. The enhanced amount shall be paid to the appellants/claimants within a period of thirty days and shall carry the interest at the rate of 6% per annum from the date of filing of claim petition before the learned Tribunal till its realization. Award passed by the Tribunal is modified accordingly.
Disposed of.