Smt. Shail Shrivastava and Others vs Shri Harish Chauksi and Others

This appeal u/s 173 of the Motor Vehicles Act is directed against the award dated 8-2-2005 of the Motor Accident Claims Tribunal, Indore in Claim Case No. 182/02 insofar as it declines to grant compensation as claimed by the appellants u/s 166 of the said Act.

The said claim was filed in respect of the death of Mahesh Chandra Shrivastava, husband of appellant No. 1 Smt. Shall and father of appellant Nos. 2 and 3, namely Anurag and Aditya and a sum of Rs. 75,00,0007- was claimed as compensation.

Mahesh Chandra Shrivastava was a Professor in G.S.I.T.S. Engineering College, Indore. His date of birth was 15-8-1947. It was not disputed that on the date of incident, a tanker bearing registration No. NL-01/A-4705 was parked on the road, as there was some fault. It was also not disputed that as a result of collision with the said tanker and vehicle Toyota bearing registration No. MH-04/AY-7595, a case u/s 304A of the IPC was launched against respondent No. 2 Kundiram Shinde, allegedly the driver of the vehicle. The death of Dr. Mahesh Chandra Shrivastava was also not disputed. It was further not disputed that the Toyota and the tanker were insured with respondent Nos. 3 and 6 respectively. The case of the applicants was that on 24-4-2002 at about 10 p.m. while deceased Dr. Mahesh Chandra Shrivastava was travelling by the said Toyota, which was being driven by non-applicant No. 2, on account of the rashness and negligent driving of the said vehicle, while the vehicle reached Malkapur, it collided with a parked tanker. The negligence of the tanker was also evident from the fact that no indicators or parking lights were switched on to indicate that the tanker had been parked. Report of the incident was made at the police station and the driver of the Toyota was prosecuted. Dr. Mahesh Chandra Shrivastava was working as Professor and was about to be promoted. If he would have continued in service till the age of 62 years, during this period, he would have earned many promotions. On account of his academic qualifications he would have continued in employment till the age of 75 years. In view of this income from salary and other allowances, a sum of Rs. 75,00,000/-was claimed as compensation on account of his untimely demise.

The non-applicants/respondent Nos. 1,2,4 and 6 remained exparte. Though, initially the respondent No. 3 denied the insurance of Toyota, eventually it was conceding that the said vehicle was insured with the respondent No. 6. Respondent No. 6 in his written statement traversed the averments made in the application and stated that the tanker had been parked by the side of the road and necessary precaution had been taken and stones had been kept on the sides which could have been seen from a distance of 300 metres. It was on account of sheer negligence of the vehicle Toyota that there was collision.

On the pleadings of the parties, the Tribunal framed as many as five issues and on the basis of the evidence, it awarded a sum of Rs. 13,90,0007- as compensation with 6% per annum interest. However, it apportioned liability between the Insurance Company/respondent Nos. 3 and 6 equally, though it held the other respondents also liable along with the Insurance Company in the same proportion collectively and severally. Aggrieved by the inadequacy of the compensation, the applicants have filed this appeal.

Before us the main contention raised by the learned Counsel for the appellants is that in view of the proved income of the deceased, the compensation is wholly inadequate and, therefore, it deserves to be enhanced. The Counsel for the respondent Nos. 3 and 6 per contra, submitted that more than adequate compensation has been awarded, which does not make room for any further addition.

Before we advert to the contention of the learned Counsel for the appellants, we may refer to the preliminary objections raised by the Counsel for the respondents. Learned Counsel for the respondent No. 3 has invited our attention to the cross-objection filed by the said respondent, in which the finding of negligence against the parked tanker has been assailed. Learned Counsel submits that the Tribunal had duly granted permission to the Insurance Company under the provisions of Section 170 of the Motor Vehicles Act and, therefore, the Company is entitled to raise all defenses available under the Act. Accordingly, the Company has assailed the said finding. Attention has been invited to the testimony of Vinayak Topkar (A.W. 2), who has stated that the tanker was parked by the side of the road and behind the tanker a piece of bush has been kept, but he had not seen any stone having been kept around it. The indicators of the tanker were not on and parked tanker could not be seen. The statement referred to by the learned Counsel proves more the case of the appellants rather than that of the respondents. It clearly shows that no indication was provided to make it known to on coming traffic that the tanker was parked by the side of the road. Thus, the negligence of the tanker was patent. There is also finding of negligence of the driver of the Toyota in which the deceased Professor was travelling. Had it not been in excessive speed at which he was proceeding indifferent to the consequence of the speed, he could also have averted accident. Under these circumstances, we do not find any infirmity in the finding of the Tribunal that both, the tanker as also the driver of Toyota, were negligent of which the accident was the result.

Learned Counsel for the respondent No. 6 United India Insurance Company has invited attention to an order dated 22-7-05 passed in Miscellaneous Appeal No. 1742/05 by which the appeal of the said Insurance Company was dismissed in limine and it was held that both the vehicles were equally responsible for the said accident and the compensation awarded was just and proper. On the basis of the said finding, the learned Counsel submits that the matter is no longer res Integra and the appellants cannot seek any enhancement.

We are afraid that we cannot concede to the preposition made by the learned Counsel. In the said limine decision, the claim of the respondent No. 6 that the award was excessive was turned down and, therefore, it cannot be said that on the basis of the evidence, this Court had considered the case from the angle whether the amount declined had been properly declined or not. Even if the said appeal had been admitted, the claimants could have claimed enhancement by filing cross-objection. We are, therefore, of the view that such a decision without notice to the claimants would not act as resjudicata against them.

We now come to the crucial question with regard to the compensation. As hereinabove stated, the Tribunal had awarded a sum of Rs. 13,90,000/- with interest @ 6% p.a., while the claimants had claimed Rs. 75,00,000/-. Learned Counsel pointed out that even as per finding of the Tribunal the gross income of the deceased was Rs. 3,39,250/- from his salary and allowances including the house rent allowance of Rs. 8,640/- p.a. We do agree with the learned Counsel that the house rent allowance could not have been deducted from his salary in computing the compensation under the provisions of the Act, in view of the decision of the High Court of Punjab & Haryana, reported in Mrs. Leela Ohri and Others Vs. The Punjab State Electricity Board and Others, to the effect that it is a part of wages. The contention of the learned Counsel is that a sum of Rs. 1,00,000/- has been wrongly deducted towards the Income Tax from the said salary, though actually the deduction made under the said Act was of a sum of Rs. 58,000/-. Under these circumstances, the learned Counsel contends that only a sum of Rs. 58.000/- could have been deducted. We notice from the record that there was a deduction of Rs. 59,505/- towards the provident fund on which a rebate u/s 88 of the Income Tax Act @ 20% was claimed. This rebate comes to about Rs. 12,0007-and, therefore, this amount should be added to the amount of Rs. 58,000/- shown in Exhibit P-15 when the amount of PF reverts to income. In such a situation, the Income Tax liability will get enhanced to Rs. 70,000/-. Thus, only a sum of Rs. 70,000/- towards Income Tax can be deducted from the gross emoluments of Rs. 3,39,250/- and the net amount would thus come to Rs. 2,69,250/-.

Learned Counsel for the respondents has referred to the decision of the Apex Court, reported in 1994 ACJ 448 (Asharani v. Union of India) in respect of principles governing computation of the net amount. The principles applied do not in any way deviate from the principles laid down. We are conscious that out of the above amount 1/3rd is required to be deducted towards the personal expenses of the deceased. 1/3rd of Rs. 2,69,250/- comes to Rs. 89,7507- and when deducted from the said amount, the balance comes to Rs. 1,79,500/-. The parties have not disputed that in keeping with the provisions of the 2nd Schedule u/s 163A of the Act, which is to be taken as guiding principle even in matters u/s 166 the computation can be made. It is not disputed that the Tribunal has applied a multiplier of 11 against which none has appealed. Thus, if the multiplier of 11 to the amount of Rs. 1,79,500/- is applied, the compensation comes to Rs. 19,74,500/-. We are, therefore, of the opinion that the compensation of Rs. 13,50,000/- awarded by the Tribunal deserves to be enhanced to Rs. 19,74,5007-.

We may also clarify that the Tribunal has given a deduction of Rs. 3,00,0007- from the amount of compensation determined by it on the ground that the dependants have received the said amount under the policy from the General Insurance Corporation. We make it clear that in view of the Full Bench decision of this Court in Kashiram Mathur and Ors. v. Sardar Rajendrasingh and Anr. 1983 ACJ 152, such a deduction is not permissible.

Learned Tribunal has also awarded amount for loss of consortium to the widow. We award a sum of Rs. 5,500/- on this account to bring the compensation to a round figure of Rs. 19,80,000/-.

In the result, the compensation awarded by the Tribunal is enhanced from Rs. 13,90,0007- to Rs. 19,80,000/-. The enhanced amount shall bear interest @ 6% p.a. from the date of application. The respondents shall be liable in the same proportion as laid down by the Tribunal. Although, we find that it is a case of composite negligence, since the Tribunal has apportioned liability between the two Insurance Companies and the parties concerning the two vehicles, we do not deem it fit to disturb that finding. The difference of amount as enhanced by this Court shall be payable to appellant No. 1 Smt. Shail Shrivastava, widow of the deceased and from the amount so payable, a sum of Rs. 2,50,000/- shall be kept in a nationalized bank in an interest bearing account for a period of 5 years with interest payable every six months and paid to the said appellant. There shall be no order as to the costs of this appeal.