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Judgment
THE undisputed facts as found by the State Commission are: There is a lake known as "Sursagar Lake" near the city of Vadodara which has been under the control and management of Opposite Party No.1 - Vadodara Municpal Corporation (hereafter referred to as the Corporation). Initially, it started the activity of plying boats for joy rides and boating club, but subsequently for the period commencing from 26.9.92, it entrusted the activity of plying boats to Opposite Party No.2 - Shri Patheja of Ripple Aqua Sports (hereinafter referred to as the Aqua Sports) under a contract. The Corporation is, admittedly, having consideration from the Aqua Sports for carrying on the activity of recreation and/or entertaining the citizens/passengers by way of boat rides/joy rides in the boat(s) provided by the Opposite Party No.1, Corporation to the Aqua Sports. Under the contract entered into between the Opposite Party No.1 and 2, appropriate cover of insurance was to be taken by the Aqua Sports and it had taken an insurance policy in question from the opposite Party No.3- M/s. Oriental Insurance Co. Ltd. (hereinafter referred to as the Insurance Company).
ON the fateful day, i.e. 11.8.1993, being a public holiday on account of the holy festival of Janmashthami, many inhabitants of the city of Vadodara had gone for boat ride at the Sursagar Lake. One Mr.Panikar, Supervisor of the Aqua Sports issued entry tickets to the passengers and each ticket was issued for a consideration of Rs.3/- per passenger. Admittedly, the capacity of the boat was of 20 passengers and on the aforesaid occasion 38 passengers were accommodated in the boat. It is not in dispute that the boat capsized while it was at a place near/opposite Pratap Talkies and Sagar Hotel in the lake. Mr.Paniker and the 22 passengers who could not swim and who could not be saved by the saving operation undertaken by the swimmers out of the people collected nearby the lake and the persons from the fire brigade, died. Hence, Complaint Nos. 21 of 1994 and others were filed before the State Commission, Gujarat. By judgment and order dated 23.9.2002 the complaints were partly allowed and the Vadodara Municipal Corporation, Opposite Party No.1, and Shri Patheja, Ripple Aqua Sports Opposite Party No.2, were directed to pay the amount as determined by it with interest at the rate of 10% p.a. from the date of the incident, i.e. from 11.8.1993 till its payment. It is also directed that in each complaint Opposite Parties No. 1 and 2 would pay costs quantified at Rs.1,000/-.
THE Insurance Company, Opposite Party No.3, before the State Commission, was directed to indemnify a sum of Rs.1 lakh per person who died in the accident and for whom the insurance claim has been preferred by the Complainants and in whose case a sum over and above Rs.1 lakh is awarded subject to the rider that where the amount awarded by the State Commission is less than Rs.1 lakh, the Insurance Company would deposit that amount with the Commission. It was also clarified that liability of paying the interest would be in addition to the award of Rs.1 lakh per person. The balance amount was directed to be deposited by the Opposite Parties Nos. 1 and 2. It was also clarified that Vadodara Municipal Corporation was entitled to recover such balance amount from the Opposite Party No.2.
AGAINST that judgment and order, the Vadodara Municipal Corporation has preferred Appeal Nos. 464 of 2002; and, 61-77 of 2004; the contractor has preferred Appeal Nos.197, 210-226 of 2003 and, the Complainants have preferred cross-appeals No. 488 of 2002; and Nos.288-300 of 2004 seeking enhancement of compensation. All these appeals are heard together and are being disposed by this Commission by this common judgment and order. Submissions of the Corporation: At the time of hearing of these appeals, learned Senior Counsel Mr.Haksar appearing on behalf of the Corporation submitted that the order passed by the State Commission directing the Municipal Corporation to pay the amount is unjustified and is against the terms and conditions of the contract between the Corporation and its contractor, M/s.Aqua Sports. He has also contended that the liability of the Insurance Company is Rs.20 lakhs per accident, i.e. for each death; and in the present case, as 22 persons have died, hence the liability of the Insurance Company would be at least Rs.80 lakhs, which is the maximum insurance cover. Learned Counsel appearing on behalf of the Complainant submitted that the order passed by the State Commission holding the Corporation jointly and severally liable is on the basis of the contract executed between the Corporation and the Aqua Sports. He further contended that the compensation awarded requires to be enhanced. He also supported the contention of the learned Counsel Mr.Haksar that Insurance Company is liable to pay per accident Rs.20 lakhs and in all Rs.80 lakhs.
LEARNED Counsel Mr.Sanyal, appearing on behalf of the Aqua Sports submitted that the Corporation is rightly held responsible because, Aqua Sports was carrying on the activity of boat riding on behalf of the Corporation. The entire control with regard to the operation of boat activity remained with the Corporation. He also referred to the contract executed between the parties, in support of his contention. From the facts stated above, it is apparent that in a boat having sitting capacity of 20, 38 passengers were taken, and, this has resulted in the catastrophe of boat being capsized in the lake. Despite the efforts to save the drowning passengers, 22 passengers died. For this catastrophe there cannot be any doubt that the "Aqua Sports" is liable for the damages. The primary liability to compensate the victims or the heirs of the victims rest upon the "Aqua Sports".
FOR this purpose, we would refer to the contentions raised by the Corporation before the State Commission and the agreement executed between the Corporation and the Aqua Sports and the submissions made by the learned Counsel for the parties: (a) Statutory function of the Corporation: Before the State Commission, it was contended that complaint was not maintainable before the Consumer Fora because Corporation was carrying out its statutory obligations under Section 63/66 of the Municipal Corporation Act to provide joy ride boating facility in the Sur Sagar Lake. On behalf of the Corporation it was contended that under the Bombay Provincial Municipal Corporation Act, 1949 the Corporation was exercising its statutory duty in rendering boating activity. For this purpose, reliance was placed on Sections 62 and 63 which provide for obligatory duties of the Corporation. And, thereafter, reliance was placed on Sec.66 of the said Act, which provides for optional duties to be performed by the Corporation. Reference was made to the said sections by contending that as it was a statutory duty on behalf of the Corporation, the complaints were not maintainable. The State Commission rightly negatived the said contention of the Corporation that the complaints were not maintainable because Corporation was discharging its statutory duty in carrying out boating activity in Sur Sagar Lake. In that context the Commission referred to the decision of the Apex Court in Rajkot Municipal Corporation and Ors. Vs. Manjulben Jayantilal Nakum and Ors. (1997) 9 SCC 552 wherein it was contended that one Jayantilal while walking on the foot path, on the way to his office, a road side tree suddenly fall on him, as a result of which he sustained injuries on his head and other parts of the body and later died in the hospital. The suit for damages in the sum of Rs.1 lakh was filed against the Municipal Corporation. The suit was decreed. In appeal the High Court held that the Corporation had a statutory duty to plant trees on road sides and also the corresponding duty to maintain the trees in proper condition. The statutory obligation to maintain trees is being absolute, and as the Corporation has failed to prove that the occurrence had taken place without negligence on its part, the Corporation was held liable. In that case the Court referred to Section 66 of the Act which provides for discretionary obligation of the Corporation. In that case reference was made to Clause (viii) which provides for maintenance of plants and trees on road side and elsewhere. The Court observed: "By operation of Section 202 read with Section 66, since the trees vest in the Corporation, the Corporation is statutorily obligated to plant and maintain trees on the roadsides and elsewhere as a public amenity to ensure eco-friendly environment".
For the liability under tort, after an elaborate discussion the Court observed: "15. Negligence would include both acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage". Negligence would, therefore, mean careless conduct in commission or omission of an act. The question in each case is whether the defendant has been negligent in the performance of duty or omission thereof. Duty of care must be owed to a person or class of persons to which the plaintiff belongs and must be to avoid causing particular type of injury or damage to his person or property. The court requires to examine the scope of duty of care which the local authority owes to the plaintiff. The court is required to consider the object, scope and breach of the Act. Though the statute is of general character, since the Government or local authority is entrusted with the duty to implement the law, though at its discretion, and if damage is done in execution thereof, what requires to be examined is whether the aforestated elements of tort of negligence stand attracted. No general principle of law is desirable to be laid down as an acid test. """. 28. "At the cost of repetition, we may reiterate that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done".
IN the present case, under Section 66 of the Bombay Provincial Municipal Corporation Act, 1949 it was the discretionary function to provide boating facility in Sursagar Lake for recreation of the public at large. However, it was a statutory duty of the Corporation to keep constant vigil so that such incident may not occur. Some life-guards are required to be kept when such activity is carried out so that they can save the drowning passengers. Even the boats which are supplied to the Aqua Sports were not having adequate life saving equipments such as, life saving jackets etc. Apart from the question with regard to negligence the aforesaid contention of the Corporation before the State Commission would undoubtedly lead to an inference that boating activity was carried out by the "Aqua Sports" on behalf of the Corporation. Keeping that in mind, we may refer to the terms and conditions of the Licence Deed, i.e. the agreement executed between the Aqua Sports and the Corporation: 1. It is temporary licence deed for managing the equipment of entertainment owned by the Corporation, and, for managing the affairs of the boating equipment situated at Sur Sagar Lake for the purpose of entertainment. 2. The licence was for a period from 26.9.1992 to 25.9.2003. 3. During the term of contract, because of any special circumstances, if its is found necessary by the Corporation to terminate the contract in public interest, then, the Corporation will be fully authorized to terminate the contract and to take back the boating club and equipments, articles relating thereto from the contractor in such event. 4. During the said contract, it will be necessary for the contractor to obtain compulsory insurance in advance before starting use of the boating club and equipments thereof for the purpose of coverage of the risk liability as per the sitting capacity of the equipments, of all the persons using the same, equipments, things, articles being used for boating including the premises of the boating club. 5. During the period of contract, the contractor shall have to make administration of the equipments of boating through his knowledgeable skilled employees and the responsibilities arising as regards such persons under the law will be the sole responsibilities of the contractor. However, because of the order of the Court or because of any other reason, if it is becoming necessary to consider it as a responsibility of the corporation, and if the corporation is compelled to discharge such responsibility either economical or otherwise, then, all such responsibility will be required to be paid by the contractor to the corporation. 6. During the period of contract, it will be necessary for the contractor to charge the rates of ticket on the equipments of entertainment as prescribed by the corporation and form of such ticket was required to be approved. 7. During the period of the said contract, it will not be open for the contractor to make any addition alteration in the capacity of the boats and it will not be open for him to carry the persons in excess of the capacity of the boat. 8. During the period of said contact, contractor will be required to fix the period of trip of the boats in accordance with the rates of tickets so prescribed. 9. During the period of said contract, it will be open for the Municipal Commissioner or for the officer duly authorized by him to make checking of the boating club as and when found necessary by him.
FROM the licence deed it is apparent that the entire control with regard to boating activity vested in the Corporation. The contractor or the licensee was only permitted to charge fixed amount for each ticket. Previously, the Corporation was carrying out the said activity. Instead of appointing employees to carry out the activity, licensee/contractor is appointed. Hence, this would not mean that the activity was not at the behest of the Corporation. The activity was for and on behalf of the Corporation. On behalf of the Corporation the said activity which is discretionary in nature under Section 66 of the Act was carried out by the licencee. Even the Condition No.5 of the License Deed specifically provides that because of the Order of the Court or because of any other reason, if it is held that that liability to pay compensation is that of Corporation, contractor would pay the same to the Corporation. Therefore, the Corporation cannot disown its liability, in case of deficiency by the licensee. It is also to be stated that the rate of the tickets are also fixed by the Corporation and that too in a prescribed form. The entire boating equipment belonged to the Corporation. The licence to operate the boating club was given to the Aqua Sports only for the limited period. The said license could be terminated in public interest. It is rightly contended by the learned Counsel for the Complainants that the officers of the Corporation were required to check the boating equipment and were also required to see that the contractor (ie. the Aqua Sports) uses the boat as per the sitting capacity. In our view, it is careless conduct on the part of the officers of the Corporation in not keeping any vigil in enforcing the term of the license deed whereby it was not open to the licensee to carry persons in excess of the capacity of the boat. Much care and caution was expected on a holiday when there would be heavy rush from the officers of the Corporation and the Manager of the Aqua Sports to carry persons in excess of the capacity of the boat. Undisputedly, boating activity in such a big lake was having inherent risk. There should be appropriate provisions for life guards and life saving equipments so as to protect the passengers in case of accident when the boat is in deep waters of the lake. It has come on record that the Corporation has not appointed any life guards/swimmers or no life saving equipments were made available in the boat or in the vicinity to enable the saving of the human life in case of occurrence of an accident.
ON record two policies are produced. Admittedly, on 1st December, 1992 the Insurance Company had issued Liability Insurance Policy (under Public Liability Insurance Act, 1991) Schedule, covering risk from 1.11.1992 to mid-night of 31.10.1993. As per the policy, indemnity limit is: Rs.20 lakhs any one accident Rs.80 lakhs (aggregate) during the policy period.
IN the column "Business", it is mentioned "boating in Sursagar, Nayamandir, Baroda. This policy was issued and given to the Aqua Sports, (insured) as well as to the Corporation. The second policy, "True copy " Original duly signed - Public Liability Policy " Copy", is produced by the Insurance Company before the State Commission wherein in the column limit of indemnity it is mentioned as under: (a) any one perons Rs.1 lakh (b) any one accident Rs.20 lakhs (c) any one period Rs.80 lakhs Period of insurance from 4.11.1992 to 3.11.1993. It is specifically mentioned that the date of proposal and declaration was 1.11.1992.
The learned Counsel appearing on behalf of the Complainant, the Corporation and the "Aqua Sports" submitted that the policy covering the risk per accident at Rs.20 lakhs is on the basis of proposal form submitted by the "Aqua Sports". Therefore, per "each accident� liability of the Corporation is Rs.20 lakhs and maximum liability is Rs.80 lakhs. In support, it is contended that on the basis of the proposal form dt. 4.11.1992 submitted by the Aqua Sports insurance was sought for passengers/tourists of boat club and the staff of the boat club. In the proposal form against Column 11 provides - Please indicate the limit of indemnity required, it is mentioned as under: "Any one accident Rs.20 lakhs One-year Rs.80 lakhs" Learned Counsel for the Corporation, the Complainants, and the Aquasports contended that policy was issued on the basis of the proposal form. And, therefore, for one accident, Insurance Company is liable to reimburse for a sum of Rs.20 lakhs to each victim or his heirs. As 22 persons/passengers died in the accident, the Insurance Company would be liable to pay Rs.20 lakhs multiplied by 22 passengers, which comes to Rs.4,40,00,000/- and, as the maximum limit is Rs.80 lakhs, upto Rs.80 lakhs.
HOWEVER , learned Counsel Mr.Seth, appearing for the Insurance Company, submitted that the officers of the Insurance Company committed a mistake in issuing the policy under the Public Liability Insurance Act which is meant for only covering risk in handling hazardous substances. He, therefore, submitted that immediately thereafter the other policy, i.e. Public Liability Policy was issued wherein the risk covered for one person is only Rs.1 lakh; for one accident is Rs.20 lakhs; and, for one period limit is Rs.80 lakhs. Before this Commission, reply on affidavit has been filed on behalf of the Insurance Company to the effect that the Insurance Company had not played any fraud on the State Commission by filing false and fabricated policy. It is also pointed out that the policy was obtained for coverage of a third party liability where seating capacity of a boat was 20 persons and per person coverage was Rs. 1 lakh and for any one accident Rs.20 lakhs and also for any one year Rs.80 lakhs. For that purpose the insured issued a cheque dated 4.11.92 for and amount of Rs.5000/- towards premium. Further, inadvertently a policy under "Public Liability Insurance Act, 1991" was issued which deals with only in handling hazardous material. But, after realizing the said mistake, the concerned office of the Insurance Company immediately issued the relevant "Public Liability Policy" . By mistake, the Office of the Insurance Company failed to call upon the insured to return the earlier policy which was wrongly issued or failed to issue an endorsement with regard to cancellation while issuing correct policy and therefore, the Insurance Company filed the correct copy of the insurance policy before the State Commission.
AS against this, on behalf of "Aqua Sports" reply is filed contending that the policy which was operating from 1.11.1992 to 31.10.1993 specifically gave indemnity coverage at Rs.20 lakhs in any one accident and Rs.80 lakhs in aggregate during the policy period. Even, the Vadodara Municipal Corporation also relied upon the said insurance policy and had filed the same before State Commission. It is further contended that the second policy which was belatedly filed before the State Commission by the Insurance Company, limited the liability to the extent of Rs. 1 lakh for any one person, Rs.20 lakhs for any one accident and Rs.80 lakhs for any one period of insurance. The said policy was not brought to the notice of the insured (Aqua Sports) or the Vadodara Municipal Corporation at any time till it was produced before the State Commission in the year 2001. Further, the Insurance Company suppressed the proposal form given by the Aqua Sports till this Commission directed the Insurance Company to produce the same on record. The said proposal form unequivocally provides insurance coverage for boating at Sursagar Boat Club with paddle boats and motor boats. The limit of indemnity was stated as under: i) Any One Accident Rs.20,00,000/- ii) Any One Year Rs.80,00,000/-.
Therefore, the policy which limits the liability of any one person to Rs.1 lakh is contrary to the proposal form and is subsequently fabricated by the Insurance Company. Hence, addition making limited liability to Rs.1 lakh is to be ignored. It is also contended that if there was any mistake, at the most, the policy could be modified or cancelled during the policy period after issuing notice to the insured. Hence, the Insurance Company is liable to pay Rs.20 lakhs for each victim and in all Rs.80 lakhs in any one year. In support of the contention, learned counsel appearing on behalf of Aqua Sports relied upon the decision of the Supreme Court in the case of Lice Insurance Corporation of India & Ors. Vs. Smt. Asha Goel & Anr. (2001) 2 SCC 160, wherein the Court has held that in the matter of repudiation of a policy admittedly issued by it, the Insurance Company should take extreme care and caution and it should not be dealt with in a mechanical and routine manner. It is, therefore, pointed out that on the basis of the proposal form, the policy limiting the liability at Rs.20 lakhs for any one person was issued and now it is highly improper on the part of the Insurance Company to contend that the liability is limited to Rs.1 lakh per person.
THE counsel for the Aqua Sports further referred to the decision in the case of United India Insurance Co. Ltd. Vs. M.K.J. Corporation - (1996) 6 SCC 428 para 7 at page 431 wherein the Apex Court has observed that "The duty of good faith is of a continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent". Reliance is also placed on the decision in the case of United India Insurance Co. Ltd. Vs. Pushpalaya Printers " (2004) 3 SCC 694, para 6 at page 698 wherein it is held that even if there is any ambiguity or a term is capable of two possible interpretations, one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely to cover the risk on the happening of certain event. Mr. A.N.Haksar, learned Senior Counsel for the Vadodara Municipal Corporation, also supported the aforesaid contention.
IN our view, there is no dispute with regard to the payment of premium paid by the Aqua Sports. There is no dispute with regard to the issuance of policy on the basis of the proposal form. If the proposal form is taken into consideration, it clearly reveals that the liability of the Insurance Company would be Rs.20 lakhs for any one accident and Rs.80 lakhs in one year. This Proposal Form is dated 4.11.1992. Further, on the basis of the said proposal form, insurance policy was issued on 1st December, 1992 covering the liability to the extent of Rs.20 lakhs for any one accident and Rs.80 lakhs in aggregate during the period of policy. Hence, even if there is any mistake with regard to mentioning of the "Public Liability Insurance Act, 1991", which deals with the hazardous and toxic chemicals, it would not mean that the limit of the policy can be unilaterally changed by issuing a policy covering reduced the risk. The Insurance Company ought to have only changed the form containing terms and conditions of the insurance policy and not its main terms based on the proposal form. Admittedly, in the present case, the second policy which was issued subsequently, was neither given to the insured nor consent of the insured was sought for change of the terms of the policy. If the insured was asked about it, he would have definitely stated that the indemnity limit should be as per the proposal form and premium was also paid on that basis. However, Mr.Seth, learned counsel appearing on behalf of the Insurance Company submitted that the Court has no jurisdiction to change the terms of the contract and the terms of the contract are to be read as they are and it is not for the Court to make out a new contract, however, reasonable, if the parties have not made it themselves. [General Insurance Society Ltd. Vs. Chandmull Jain & Ors " AIR 1966 SC 1644.] There cannot be any dispute with regard to the principle that the words of the contract are to be interpreted in which the contract is expressed by the parties. But, if the Insurance Company, as admitted by it in the present case, has committed some mistake or error, then it cannot contend that even though the proposal form provides for insurance coverage to the extent of Rs.20 lakhs for any one accident and Rs.80 lakhs in aggregate during the period of policy, it can change the material term of the policy, unilaterally, after issuing the policy on the basis of the proposal form. Further, while issuing the first policy the only mistake which was committed was with regard to the printed terms and conditions in the prescribed form. There was no mistake with regard to material part of insurance coverage in case of accident due to boating activity.
IN this view of the matter, in our view, the insurance policy which was first issued limiting the liability of the Insurance Company to Rs.20 lakhs for any accident and Rs.80 lakhs in aggregate for the period of policy is to be accepted as it is. This part of the policy is core of the contract and we are not modifying it by any interpretation. It is to be remembered that the concept of good faith i.e. uberrima fides is not only applicable to the insured but also to the insurer. That is the law laid down by the Supreme Court in the case of Pushpalaya Printers (supra). Secondly that law has been recognized by the Insurance Regulatory and Development Authority Act, 1999 and for protecting the interest of consumer i.e. policy holders the Authority has framed Regulations known as "The Insurance Regulatory and Development Authority (Protection of Policyholders" Interest) Regulations, 2002". Regulation 3 specifically provides that: The prospectus of any insurance shall clearly state the scope of benefits, the extent of insurance cover and in an explicit manner explain the warranties, exceptions and conditions of the insurance cover. The allowable rider or riders are also required to be clearly spelt out with their scope of benefits. And, Regulation 11, further, provides that 11. General.-(l) The requirements of disclosure of "material information" regarding a proposal or policy apply, under these regulations, both to the insurer and the insured. (2) """ (3) """ (4) Any breaches of the obligations cast on an insurer or insurance agent or insurance intermediary in terms of these regulations may enable the authority to initiate action against each or all of them, jointly or severally, under the Act and/or the Insurance Regulatory and Development Authority Act, 1999. Hence, in our view, the limit of indemnity for one accident would be Rs.20 lakhs and for one period of insurance, it would be Rs.80 lakhs. So, in all, the maximum limit of liability would be Rs.80 lakhs. Cross-Appeals for Enhancement of Compensation: A. In our view, the order passed by the State Commission, in First Appeal No. 488 of 2002; First Appeal No.289 of 2004; First Appeal No. 290 of 2004; First Appeal No. 292 of 2004; First Appeal No. 295 of 2004; and, First Appeal No. 296 of 2004, does not call for interference, because the State Commission has awarded compensation on the basis of the income and by adopting correct multiplier. In addition, the State Commission has also awarded compensation after taking into consideration the other relevant factors such as the age of the deceased, the dependency benefit, etc. In all these appeals, the prayer is to award the compensation as prayed in the complaint before the State Commission. We would summarise the same in short as under: First Appeal No. 488 of 2002: This appeal is filed against the order dated 23.9.2002 passed in Complaint No. 21 of 1994 for enhancement of the compensation awarded by the State Commission. In this Complainant, the name of the deceased is Sh.Shrinivas D. Jogdev, aged 37 years. Respondent No.2 is Mrs.Hemaben Srinivas Jogdev, the wife of the deceased. The compensation claimed before the State Commission is Rs.19,80,672/- out of which the dependency benefit is assessed at Rs.19,20,672/-. The Complainants have also claimed Rs.25,000/- for loss of amenities; Rs.25,000/- for mental shock; and, Rs.1,000/- for obsequial ceremonies.
AGAINST this claim, the State Commission awarded Rs.10,76,001/-. The basis for award of Rs.10,76,001/- by the State Commission is that at the time of the death, the deceased was 37 years; and he was earning Rs.8,892.87 by way of salary. Though the Complainants claimed Rs.11,20,000/- for prospective income before the State Commission, as there was no detailed evidence the State Commission did not consider the same. The State Commission adopted multiplier of 14 years which came to Rs.14,94,002.16. Out of this, Rs.4,98,000.72 is deducted for self-maintenance. On this ground Rs.9,96,001.44 was awarded. In addition, a sum of Rs.5,000/- for obsequial ceremony was awarded; Rs.15,000/-was awarded for loss of consortium to Respondent No.2; Rs.15,000/- was also awarded for loss of estate; and, Rs.45,000/- (i.e Rs.15,000/- each to Complainant Nos. 3, 4 and 5, as a conventional amount). In total Rs.10,76,000/- was awarded. In our view, we see no reason to interfere with the reasoning given by the State Commission in awarding the said sum of Rs.10,76,000/- and dismiss this appeal. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 passed in Complaint No. 183 of 1996 for enhancement for the compensation awarded by the State Commission. In this Complainant, the Name of the deceased is Sh. Prakash M. Lalvani, aged 28 years. The Respondent No.2 is Mrs.Jayaben Prakashchandra Lalwani, wife of the deceased. The Complainant claimed before the State Commission a sum of Rs.4,95,000/- as compensation inclusive of dependency benefit in the sum of Rs.4,40,000/-. As against this, the State Commission awarded a sum of Rs.3,50,000/-. The basis for award of the said sum of Rs.3,50,000/- is that at the time of the death the deceased was 28 years; he was earning Rs1,800/-. The prospective income of the deceased has been placed at Rs.2,500/- per month. The State Commission took the prospective income as basis and applied multiplier of 15 years for the purpose of working out reasonable compensation. Thereafter, the State Commission deducted 1/3rd of the total income of the deceased, i.e. Rs.1,50,000/- from Rs.4,50,000 for arriving at the dependency benefit and awarded Rs.3,00,000/-. In addition to this, the State Commission has also awarded Rs.45,000/- on the head of loss of nearest relative; and Rs.5,000/- for obsequial ceremony. Thus, in all, Rs.3,50,000/- was awarded.
THE contention of the Complainant (Appellant) is that looking at the age of the deceased being 28 years of age, the multiplier at 17 should be applied. We find no force in the contention and reject the same. In our view, we see no reason to interfere with the reasoning given by the State Commission in awarding the said sum of Rs.3,50,000/-, and dismiss this appeal. There shall be no order as to costs.
THIS appeal is filed against the order dated 23.9.2002 in Complaint No.184 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint, the name of the deceased is Chirag P. Lalvani, aged 03 years. Respondent No.2 is Ms. Jayaben Prakashchandra Lalwani, mother of the deceased. Compensation claimed before the State Commission is on the basis of the notional income is Rs.2,70,000/- on the basis of multiplier of 18 years. Against this claim, the State Commission awarded Rs.2,05,000/-. For awarding this amount, the State Commission took into consideration the prospective income at Rs.1,250/- p.m. In this connection the State Commission observed that "no amount has been deducted as would have been required by the deceased when he would have grown up and started earning. At the same time some amount would have been required to be spent till he would have attained the age of majority". Taking all these facts into account, a lump sum of Rs.2,00,000/- is awarded. Rs.5,000/- as been awarded by way of obsequial ceremony. We find no reason to interfere with the reasoning of the State Commission in awarding the sum of Rs.2,05,000/- and dismiss the appeal. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in Complaint No.185 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint, the name of the deceased is Jagdish M. Tekwani, aged 27 years. Respondent No.2 is Ms. Radhaben, wife of the deceased. The claim of the Complainants before the State Commission was for a sum of Rs.4,95,000/- inclusive of dependency benefit in the sum of Rs.4,60,000/-.
AS against this claim, the State Commission awarded Rs.4,10,000/-. For awarding the sum of Rs.4,10,000/- the State Commission considered the age of the deceased; assessed the income at Rs2,000/- per month on the basis of actual earning, and Rs.3,000/- per month on the basis of prospective earning. Prospective income has been taken as the basis for working out of dependency benefit. Multiplier of 15 was taken into consideration and deducted 1/3rd for self-maintenance. That is, the amount worked out was : Rs.3,60,000/- (36,000 x 15= 5,40,000 (-) 1,80,000=3,60,000/-). In addition to this, an amount of Rs.45,000/- was awarded on the head of conventional amount and Rs.5,000/- for obsequial ceremonty. Thus, the total amount awarded came to Rs.4,10,000/-.
WE find no reason to interfere with the reasoning of the State Commission in awarding the sum of Rs.4,10,000/- and dismiss the Appeal. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in Complaint No.192 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint, the name of the deceased is Mrs. Taraben S. Tilwani (wife of Appellant No.2, Mr.Shyamlal M.Tilwani), aged 32 years. The amount Claimed before the State Commission was Rs.4,95,000/-. The contention of the Complainant before the State Commission was that the deceased was earning Rs.1,500/-pm from stitching work of ready made garments. On that basis the dependency benefit has been worked out at Rs.3,50,000/-. The State Commission after deducting the amount to be spent for her self, on the basis of multiplier of 14, awarded Rs.1,68,000/-. In addition to this, the State Commission has also awarded Rs.15,000/- each to Complainant Nos. 2 (husband of the deceased) by way of consortium; and loss of motherly affection for Complainant Nos. 3 and 4, i.e. the children of the deceased. A sum of Rs.5,000/- was also awarded for obsequial ceremony. Thus, in all, the State Commission awarded Rs.2,18,000/-. We find no reason to interfere with the reasoning of the State Commission in awarding the sum of Rs.2,18,000/- and dismiss the same. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in Complaint No.195 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint, the name of the deceased is Mrs. Ashaben J. Tilwani (wife of Appellant No.2, Mr. Jethanand Tarachandra Tilwani), aged 35 years. The amount Claimed before the State Commission was Rs.4,51,000/-. The contention of the Complainant before the State Commission was that the deceased was earning Rs.1,200 pm. from stitching work of ready made garments. The State Commission calculated the income, after taking this income, with multiplier of 14 years which came to Rs.2,10,600/-. Out of this amount one-third of the amount was deducted for self-maintenance. Net dependency came to Rs.1,34,400/-. In addition to this, the State Commission also awarded Rs. 45,000/-, i.e. Rs.15,000/- for loss of consortium to Appellant No.2, and Rs.15,000/- each to the children for the loss of motherly affection; and, Rs.5,000/- for obsequial ceremony. Thus, in total the State Commission awarded Rs.1,84,400/- to the Complainants.
WE find no reason to interfere with the reasoning of the State Commission in awarding the sum of Rs.1,84,400/- and dismiss the Appeal. There shall be no order as to costs. For determining compensation in case of minor there cannot be any definite criteria. However, it would be just and reasonable to adopt the formula given by the second Schedule to the Motor Vehicles Act, 1998. Second Schedule to the Motor Vehicles Act, in case of minor or non-earning persons, provides notional income for determining compensation. For non-earning persons it is stated at Rs.15,000/- per annum. Again, for the minor upto the age of 15 multiplier prescribed is 15. That would mean that in such cases compensation can be upto Rs.15,000 x 15 = Rs.2,25,000/- and one-third is to be deducted for self-maintenance. That would come to Rs.1,50,000/-. However, the State Commission has awarded either Rs.50,000/- or 60,000/- on the assumption that after marriage, girls would not contribute anything to the assets of the parents. In our view, this is on an erroneous assumption. Girls are also assets to the parents. They can also contribute from their income in case of necessity. Second Schedule to the Motor Vehicles Act does not discriminate between by and girl and it specifically provides that compensation shall not be less than Rs.1,00,000/-. So, we adopt this figure of Rs.1 lakh in case of minor girls.
IN the light of the above discussion, we decide the remaining appeals. They are summarized as under: This appeal is filed against the order dated 23.9.2002 in Complaint No.191 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint, the name of the deceased is baby Nilam S. Tilwani, aged 6 years. Amount Claimed before the State Commission is Rs.1,85,000/-. Appellant No.2 is Shyamlal Maganlal Tilwani, father of the deceased. As against this, the State Commission awarded a lump sum compensation of Rs.50,000/- by observing that having regard to the fact that the deceased was a female member (daughter of complainant No.2) and having regard to compensation awarded in other complaints, i.e. complaint No.192 of 1996 filed by the same Complainant for the death of his wife, Mrs.Taraben. For the reasons stated above, in our view, it would be just and reasonable to award a sum of Rs.1 lakh. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs.
This appeal is filed against the order dated 23.9.2002 in complaint No. 187 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint the name of the deceased is Kum. Lavina M. Ilani, aged 9 years. Appellant No.2 is Mrs. Rekhaben Manubhai Ilani, the mother of the deceased. The amount claimed before the State Commission was Rs.2,85,000/-. As against this, the State Commission awarded a lumpsum compensation of Rs.50,000/- keeping in view the fact that the deceased was young girl aged 9 years and the compensation of Rs.4,95,000/- which has been granted for the loss of Complainant No.2"s husband (i.e. the husband of Appellant No.2 and father of Kum. Lavina M. Ilani) in complaint No.186 of 1996.
FOR the reasons stated above, in our view, it would be just and reasonable to award a sum of Rs.1 lakh. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in complaint No. 193 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint the name of the deceased is Baby Bharti Kishanchandra Tilwani, aged 10 years. Appellant No.2 is Kishanchandra Maganalal Tilwani, father of the deceased. The amount claimed before the State Commission was Rs.1,85,000/-
AS against this, the State Commission awarded a lumpsum compensation of Rs.65,000/- keeping in mind the fact that the deceased was a female member, and that the compensation which has been granted in Complaint No. 191 of 1996 which was filed for getting compensation for the death of the young daughter of Appellant No.2, and in Complaint No.192 of 1996 which was filed for getting compensation for the death of the wife of the Appellant No.2. For the reasons stated above, in our view, it would be just and reasonable to award a sum of Rs.1 lakh. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in complaint No. 188 of 1996 for enhancement of the compensative awarded by the State Commission. In this complaint the name of the deceased is Baby Nimaben Lalchand Khilwani, aged about 12 years. Mrs.Bhagwati Lalchandra Khilwani, Appellant No.2, is the mother of the deceased. The amount claimed before the State Commission was Rs.2,85,000/- As against this, the State Commission awarded a lumpsum compensation of Rs.50,000/- by holding that appropriate compensation would be awarded in Complaint No.189 of 1996 (i.e. the complaint filed before the State Commission for the death of the young daughter of Appellant No.2.
FOR the reasons stated above and considering the age of the deceased, in our view, it would be just and reasonable to award a sum of Rs.1,25,000/-. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. [ This appeal is filed against the order dated 23.9.2002 in complaint No. 196 of 1996 for enhancement of the compensative awarded by the State Commission. The name of the deceased is Baby Rekhaben J. Tilwani, aged 14 years. In this appeal, Appellant No.2 is Jethanand Tarachandra Tilwani, father of the deceased, Baby Rekhaben J. Tilwani. The amount claimed before the State Commission was Rs.1,35,000/-.
AS against this, the State Commission awarded a lumpsum compensation of Rs.50,000/- by holding that the deceased was a female member and having regard to compensation claimed and awarded in the other complaints, i.e. Complaint No.194 of 1996 which was filed claiming compensation for the death of the young daughter of Appellant No.2, and Complaint No. 195 of 1996 which was filed for getting compensation for the death of Mrs.Ashaben Tilwani, the wife of Appellant No.2. For the reasons stated above, and considering the age of the deceased, in our view, it would be just and reasonable to award a sum of Rs.1,25,000/-. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in complaint No. 194 of 1996 for enhancement of the compensative awarded by the State Commission. The name of the deceased is Miss Jyotiben Kishanchandra Tilwani, aged 17 years. In this appeal, Appellant No.2 is Shri Shyamlal Maganlal Tilwani, father of the deceased. The amount claimed before the State Commission was Rs.2,95,000/-. As against this, the State Commission awarded a lumpsum compensation of Rs.65,000/- by holding that the deceased was a female member and that having regard to compensation claimed in other complaints, i.e. Complaint No.194 of 1996 which was filed claiming compensation for the death of the young daughter of Appellant No.2, and Complaint No.195 of 1996 filed for getting compensation for the death of the deceased Ashaben Tilwani, the wife of the Appellant No.2.
FOR the reasons stated above and considering the age of the deceased, in our view, it would be just and reasonable to award a sum of Rs.1,50,000/-. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in complaint No.190 of 1996 for enhancement of the compensative awarded by the State Commission. The name of the deceased is Gunvatiben Lalchand Khilwani, aged 20 years. In this appeal, Appellant No.2 is Smt. Bhagwatiben Lalchandra Khilwani, mother of the deceased. The amount claimed before the State Commission was Rs.2,85,000/-.
AS against this, the State Commission awarded a lumpsum compensation of Rs.50,000/- by adverting to the evidence adduced concerning the alleged income of the deceased and having regard to the fact that she was a female member and having regard to the compensation claimed in other complaints, i.e. Complaint No.190 of 1996 which was filed for getting compensation for the death of the young daughter of Appellant No.2, and Complaint No. 188 of 1996 and 189 of 1996 which were filed for getting compensation for the death of minor children Nimaben and Rajuben. For the reasons stated above and considering the age of the deceased, in our view, it would be just and reasonable to award a sum of Rs.1,50,000/-. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. This appeal is filed against the order dated 23.9.2002 in complaint No.189 of 1996 for enhancement of the compensative awarded by the State Commission. The name of the deceased is Miss Rajuben Lalchand khilwani, aged 22 years. In this appeal, Appellant No.2 is Smt. Bhagwatiben Lalchandra Khilwani, mother of the deceased. The amount claimed before the State Commission was Rs.3,35,000/-. As against this, the State Commission awarded a lumpsum compensation of Rs.50,000/- by holding that the deceased being a female member and in view of the compensation claimed in other complaints, i.e. Complaint No. 189 of 1996 which was filed claiming compensation for the death of the young daughter of Appellant No.2; Complaint Nos.188 and 190 of 1996, which were filed claiming compensation for the death of minor Nimaben and Gunvantiben.
FOR the reasons stated above and considering the age of the deceased, in our view, it would be just and reasonable to award a sum of Rs.1,50,000/-. Hence, the appeal is partly allowed accordingly. There shall be no order as to costs. Conclusion:
IN the result, it is held that: (i) the Ripple Aqua Sports and the Vadodara Municipal Corporation are jointly and severally liable to pay the compensation to the Complainants as awarded; (ii) the Vadodara Municipal Corporation is directed to pay the balance of compensation (that is, after deducting the amount paid) to the Complainants in each case within a period of eight weeks from the date of the Order. It would be open to the Corporation to recover the same from the Ripple Aqua Sports; (iii) the Insurance Company is liable to pay Rs.20 lakhs for each accident, namely, each death, but in aggregate the sum is limited to Rs.80 lakhs. Hence, the Insurance Company shall reimburse, in all, Rs.80 lakhs to the Vadodara Municipal Corporation; and, (iv) The rest of the order passed by the State Commission directing payment of interest at the rate of 10% p.a. from the date of the incident, i.e. from 11.8.1993 till the date of payment of compensation is confirmed.
With these modifications the First Appeal Nos. 464 of 2002 and First Appeal Nos. 61 to 77 of 2004 filed by the Vadodara Municipal Corporation are disposed of accordingly. Considering the facts, there shall be no order as to costs. First Appeal Nos. 197 of 2003 and First Appeal Nos.210 to 226 of 2003 filed by the Ripple Aqua Sports are disposed of accordingly. There shall be no order as to costs. Cross-Appeals for enhancement:
THE Appeals filed by the Complainants in First Appeal Nos. 488 of 2002; 289 of 2004; 290 of 2004; 292 of 2004; 295 of 2004 and 296 of 2004 are dismissed. There shall be no order as to costs. The First Appeal Nos. 288 of 2004; 291 of 2004; 294 of 2004; 297 of 2004; 299 of 2004; 293 of 2004; 298 of 2004, and 300 of 2004 filed by the complaints are partly allowed. The order passed by the State Commission is modified as under: It is held that the complainants are entitled to have compensation of: (i) Rs.1 lakh in each Appeal Nos. 288 of 2004; 291 of 2004; and 294 of 2004; (ii) Rs.1,25,000/- in each Appeal Nos.297 of 2004 and 299 of 2004; (iii) Rs.1,50,000/- in each Appeal Nos.293 of 2004; 298 of 2004; and, 300 of 2004.
ABOVEMENTIONED First Appeals are disposed of accordingly. Interim relief stands vacated. There shall be no order as to costs.