Savitri and Others vs Lakhmichand and Others

R.K. Verma, J.—This order shall also govern the disposal of M.A No. 151 of 1984 (National Insurance Company Ltd. v. Savitribai).

This is an appeal filed by the claimants against the award dated 16.3.1984 passed by the Motor Accidents Claims Tribunal, Ratlam in Claim Case No. 6 of 1977 whereby the learned Tribunal has awarded Rs. 31,600/- as compensation with interest at the rate of 4 per cent per annum in respect of the death of deceased Jagdishchandra, who died as a result of motor accident due to rash and negligent driving of the truck bearing registration No. RSL 3891 belonging to Respondent No. 1 and being driven by the driver-Respondent No. 2 at the time of the accident on 12.9.1976.

The facts giving rise to this appeal, briefly stated, are as follows:

On 12.9.1976, the date of accident, the deceased Jagdishchandra was sitting on a parapet of a culvert during picnic at Kedareshwar when the offending truck bearing registration No. RSL 3891, while ascending a gradient, suddenly came down in reverse and ultimately fell down, hitting the deceased who died in consequence of the injuries sustained by him.

On a claim petition having been filed by the claimants who are widow and 4 children of the deceased Jagdishchandra, the learned Tribunal on appreciation of evidence adduced in the case held that at the time of the accident the truck was not being driven in any rash and negligent manner but control over it was lost during reverse movement on gradient due to clutch and brake failure resulting in consequent dash against the said culvert as well as the deceased sitting thereon who then died as a result of the injuries so sustained. The learned Tribunal further held that the driver and owner cannot escape liability since they failed to discharge the burden of proving that they took all precautionary steps towards the maintenance of the vehicle in question and the mechanical breakdown was despite such maintenance. In this case the Transport Inspector Umashankar, PW 6, had examined the truck after the accident and stared that the nuts and bolts of the top-cover of the truck had loosened because of which the clutch-plate slipped. Nothing is stated about the failure of brakes. In the circumstances disagreeing with the finding of the learned Tribunal, we hold that the accident took place due to rash and negligent driving of the truck by its driver. The owner of the truck must be held vicariously liable for the act of the driver. The finding of the learned Tribunal about the negligence of the driver and the owner of the truck in taking precautionary steps towards proper maintenance of the truck is, however, affirmed.

On the question of compensation the learned Tribunal found that the deceased Jagdishchandra was 38 years of age and was earning Rs, 500/- per month at the time of accident, out of which Rs. 230/- was estimated as the dependency of the claimants. Using a multiplier of 10 the learned Tribunal computed the amount of dependency as Rs. 27,600/- to which Rs. 4,000/- were further added as general damages and thus, a total compensation of Rs. 31,600/- has been awarded with interest at the rate of 4 per cent per annum from the date of award till realisation.

Being aggrieved by the inadequacy of compensation awarded by the learned Tribunal, the claimants have filed this appeal. The insurance company has, on the other hand, filed Misc. Appeal No. 151 of 1984.

The Learned Counsel for the Appellants has submitted that out of Rs. 500/- per month which was found to be the monthly earning of deceased Jagdishchandra the learned Tribunal should have reasonably estimated the amount of dependency as Rs. 350/- instead of Rs. 230/- in view of the fact that the deceased had to support as many as 5 members, viz., his widow and four children. Learned Counsel contended that having regard to the age of the deceased who was only 38 years at the time of the accident, a multiplier of at least 15 years should have been adopted instead of 10 years as was used by the learned Tribunal for the purpose of computation of compensation. The Learned Counsel has also made a grievance that the learned Tribunal has awarded interest at a low rate of 4 per cent per annum which deserved to be modified and enhanced.

Having heard the Learned Counsel and having considered the evidence on record and the award, we have come to the conclusion that the annual dependency deserves to be raised from Rs. 2,760/- as estimated by the learned Tribunal to a sum of Rs. 4,000/- and that a multiplier of 15 years should have been adopted by the learned Tribunal having regard to the age of the deceased. Thus, computing the compensation on the basis of dependency of Rs. 4,000/- and a multiplier of 15 years, the compensation amount works out to be Rs. 60,000/- which, in our opinion, would be just and fair compensation to be paid to the claimants.

As regards the rate of interest the same is modified inasmuch as the compensation amount shall carry interest at the rate of 9 per cent per annum instead of 4 per cent per annum as awarded by the learned Tribunal.

In the connected Misc. Appeal No. 151 of 1984 the main contention of the Learned Counsel for insurance company is that it was not proved that the driver had a licence to drive a heavy transport vehicle like the truck in question and therefore, the insurance company was not bound to indemnify the owner of the truck under the conditions of the insurance policy. The copy of the policy filed in the case shows a clause that the driver should have a licence and a proviso provided that the person driving a vehicle holds a licence to drive the motor vehicle or has held and is not disqualified from holding or obtaining such a licence. A licence has been filed as Exh. 3D-3 which shows that the driver Kishoresingh holds a licence in respect of light transport vehicle. The driver has not been examined to prove that he did not hold a licence in respect of heavy transport motor vehicle and no material has been placed on record to show that he has not held or was disqualified for holding or obtaining such a licence. The insurance company has, therefore, failed to prove that there was any violation of condition of the policy relating to the requirement of a licensed driver for driving the vehicle in question. The contention of the Learned Counsel for the insurance company has no force and must be rejected.

In the result, this appeal of the claimants is partly allowed and the award of the learned Tribunal is modified inasmuch as the claimant-Appellants are held entitled to receive from Respondent Nos. 1, 2 & 3 compensation of Rs. 60,000/- instead of Rs. 31,600/- as awarded by the learned Tribunal together with interest at the rate of 9 per cent per annum instead of 4 per cent per annum as awarded by the learned Tribunal from the date of the award till realisation.

The connected Misc. Appeal No. 151 of 1984 fails and is hereby dismissed.

There shall, however, be no order as to the costs of both these appeals which shall be borne by the parties as incurred.