Smt. Sandhya Dubey and Others vs Shyam Kumar and Others

Bhawani Singh, C.J.

Both these appeals (M.A. No. 333 of 1993 - Smt. Sandhya Dubey and Ors. v. Shyam Kumar and Ors. and M.A. No. 373 of 1993 - Shyam Kumar and Anr. v. Smt. Sandhya Dubey and Ors.) are being decided by this judgment since they arise out of the same accident. M.A. No. 333 of 1993 has been preferred by the claimants for enhancement of compensation and putting the whole liability for payment of compensation on the Insurance Company, while M.A. No. 373 of 1993 has been preferred by the owner and driver of the vehicle for reduction of award and putting the liability on the Insurance Company.

Shri Mathura Prasad Dubey, husband of Smt. Sandhya Dubey and father of Ku. Arundhati, Ku. Parul and Ku. Kaikna was Executive Engineer in Betwa Circle, Irrigation Department, Government of M.P. On 18-5-1989 at 6.00 a.m., he was going for morning walk. Near Nutan College, Mini Bus bearing Registration No. CIC 673, driven rashly and negligently, hit him. He sustained injuries, fell down, became unconscious and shifted to hospital but died on 20-5-1989. Compensation of Rs. 12,54,872.00 has been claimed. Allegation is that accident was a result of rash and negligent driving of bus by Kishorc Kumar. It was owned by Shyam Kumar and insured with National Insurance Company Limited. Claim of non-applicants is that Shri Mathura Prasad Dubey was lying on the road in injured condition, he was taken to the hospital on humanitarian consideration, accident was not caused by the bus, compensation claimed is excessive and liability of the Insurance Company is limited to Rs. 50,000.00.

Claims Tribunal framed 5 issues on the pleadings of parties. After consideration of evidence, Claims Tribunal held that accident took place as alleged by the claimants, Shri Mathura Prasad Dubey died in this accident on account of the injuries he suffered and the claimants are his legal representatives. Compensation of Rs. 2,98,000.00 is awarded, liability of Insurance Company limited to Rs. 50,000.00, rest payable jointly and severally by owner and driver of the vehicle carrying interest at the rate of 12% per annum from the date of application. These appeals arise out of this award.

Learned Counsel for parties heard. Record perused. Shri Rajesh Pancholi, learned Counsel for the claimants submitted that the Claims Tribunal has awarded meager compensation. The deceased was Executive Engineer with chances of promotion and earning of higher salary in future. He was 47 years old at the time of accident. He left behind his wife and three minor daughters. Claims Tribunal committed grave error while calculating the compensation and lower multiplier has been used. Therefore, compensation deserves to be enhanced. Second submission is that liability for payment of compensation ought to have been that of the Insurance Company, since the offending vehicle was comprehensively insured. The submission of owner and driver is also that the liability for payment of compensation should have been of the Insurance Company with which the vehicle was insured.

There is no dispute with regard to taking place of the accident due to the rash and negligent driving of the Mini Bus by its driver, otherwise, accident would not have taken place and Shri Mathura Prasad Dubey would not have died as a result of injuries sustained by him in this accident. The finding of the Claims Tribunal on this aspect of the matter is sustainable and confirmed.

Next question for determination is whether the claimants have been awarded just compensation by the Claims Tribunal in this case. True it is that Shri Mathura Prasad Dubey was Executive Engineer, Betwa Circle, Irrigation Department, Government of Madhya Pradesh. He was drawing monthly salary of Rs. 3838.00. Making l/3rd deduction towards personal expenditure, monthly dependency comes to Rs. 2558.67, say Rs. 2559.00 and annual Rs. 30,708.00. On the dale of accident, Shri Mathura Prasad Dubey was 47 years old, therefore, suitable multiplier in this case should be 13 instead of 12 applied by the Claims Tribunal. Therefore, the compensation works out to Rs. 3,99,204.00 plus Rs. 10,000.00 consortium to Smt. Sandhya Dubey (wife), Rs. 10,000.00 for loss of expectancy of life, Rs. 2,500/- loss to the estate (there being no evidence about the actual monthly/yearly accretion to the estate of the deceased), Rs. 2,000.00 funeral expenses and Rs. 5,000.00 medical expenses since the deceased died after two days of the accident and the claimants must have incurred expenditure on his treatment and transport. This way, compensation comes to Rs. 4,28,704 (Rupees Four lacs twenty eight thousand seven hundred and four).

Further question for consideration is the liability for payment of compensation. Shri Pancholi submits that liability for payment of entire compensation should be of Insurance Company with which the vehicle was insured comprehensively. Shri Sanjay Agrawal, learned Counsel for Insurance Company submits that the liability of Insurance Company on the date of accident was limited to Rs. 50,000.00. To the contention that the vehicle was comprehensively insured, therefore, the liability of Insurance Company is unlimited, Shri Agrawal places reliance on Apex Court decision in New India Assurance Co. Ltd. Vs. C.M. Jaya and Others, ] and contends that comprehensive insurance of the vehicle would not mean unlimited liability of the Insurance Company. Of course, parties can enter into contract of unlimited liability but this has not happened in this case. The insured has not paid extra premium for making the Insurance Company liable for total loss. We find great substance in this submission. From insurance policy placed before us, it can not be said that the Insurance Company has entered into unlimited liability contract with the insured. Therefore, the Claims Tribunal has rightly held that liability of Insurance Company is limited to Rs. 50,000.00 only. Consequently, it is held that the liability of Insurance Company is Rs. 50,000.00 and liability for payment of remaining compensation shall be of the owner and the driver of the vehicle jointly and severally. Enhanced compensation will carry interest at the rate of 9% per annum from the date of application till payment.

Consequently, M.A. No. 333 of 1993 is allowed in terms aforesaid, while M.A. No. 373 of 1993 is dismissed. Costs on parties.