Oral Judgment:
The appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as âAct) is directed against the Judgment and Award dated 15-09-1998 passed by the Motor Accidents Claims Tribunal at Yavatmal in MACP No.47 of 1991 whereby the Tribunal had partly allowed the claim in the sum of Rs.6,49,000/- inclusive of no fault liability together with interest @ 12% p.a. from the date of the petition till deposit of the entire amount in the Tribunal within one month.
2) The facts in brief are as under:
On 08-12-1990 Late Shri Mukund Govindrao Dongre, aged about 38 years was an Agricultural Supervisor in Yavatmal District Central Cooperative Bank victim of the motor vehicle accident while he was travelling along with Peon Madhukar. After taking the Cash to the Bank, they were returning back by the Jeep bearing registration No.MHX-4365 driven by Shivaji Laxman Palkar. When the Jeep had come near village Yarad disaster took place between 12.00 to 1.00 p.m. At that time the truck bearing No.MTB-1442 had met with an accident and was standing stationary in oblique position on middle of the road having dashed on the tree. The jeep was on the left side of the road trying to proceed ahead, at that time the ST Bus bearing No.MH-12/8988 came from the opposite direction from West-East scheduled from Yavatmal to Gadchiroli high speed driven in rash and negligent manner and gave violent dash to the Jeep. By impact the Jeep turned to its right direction and the occupant Mukund Dongre was thrown out of it, sustained severe injuries. He was moved to General Hospital at Yavatmal, but died in the Hospital. The appellant had denied the liability, blaming Jeep driver on the ground that it was driven rashly and negligently. Learned Member of the Tribunal upon evidence apportioned the liability 70% of the ST driver and 30% for the jeep driver fixing the quantum of the compensation at Rs.6,49,000/- together with interest at the rate of 12% p.a. from the date of the petition till realization.
3) I have heard submissions at the bar at length. On behalf of the appellant, it is contended that jeep driver was rash and negligent and caused the accident, therefore, Tribunal ought to have dismissed the claim as against the appellant. Shri Charpe argued that the jeep ought to have been held exclusively liable for the accident occurred instead of the ST Bus. According to Shri Charpe, the ST Bus ought to have been excluded as the vehicle causing death of the victim in the case is jeep. I cannot accept this submission. Smt. Sushma, the widow of the deceased deposed that ST Bus gave dash to the Jeep by which her husband was travelling. Madhukar, a Peon, survivor of the accident, who was travelling and sitting at back portion of the Jeep with the deceased was an eye-witness to the incident. According to him, the driver of the ST Bus was in very high speed and gave dash to the Jeep. He appears a natural witness about the rashness and negligence of the ST Bus driver. While according to the driver of the ST Bus, the driver of the Jeep was in very high speed. He is supported by another witness Manohar, who claimed that he was passenger in the Bus. His testimony without any evidence of passenger ticket produced to show him as bona fide passenger appears doubtful. Considering the facts, the truck had dashed to the tree was obstruction on the road for the ST Bus going from West to East. While Jeep was coming from East to West and there was no obstruction from southern side so as to proceed further in normal speed. Under these circumstance, it was necessary for the ST driver to take precaution for overtaking the obstruction on the road. In spot panchanama the ST Bus was found in the Middle of the road, 30 feet to the western side of the Truck indicating that the ST Bus driver must have taken the sudden turn to the right which must have resulted in the accident with the Jeep. The Jeep was the light vehicle which was thrown due to the impact as it was found at the distance of 69 feet from the spot of the accident. The Tribunal held that ST Bus as well as the Jeep were responsible to the accident in proportion to 70%:30% respectively. In the facts and circumstances, the proportionate liability for the ST Bus and the Jeep was a well reasoned and needs no interference.
4) Shri Charpe referred to the ruling in Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, reported in (2007) 5 SCC 428. According to Shri Charpe, learned Advocate for the appellant, the insurers liability to reimburse the owner of the offending motor vehicle is for the risk against third party, but not against the person, who are other than âthird party. In case of third party risk the insurer has to indemnify the third party and if so advised recover the amount from the insured. Shri Charpe submitted that the victim in the case was person âother than third party and therefore the MSRTC ought to have been exonerated from the liability to compensate the dependents of the victim of the accident.
5) I find it difficult to accept the submission made by Shri Charpe that the victim was a person âother than third party so as to get the benefit of the ruling in MeenaVariyals case (supra). Sections 145 to 164 of the Act provides for mandatory third party insurance, which is compulsory for any motor vehicle owner. The objective of the Act is to ensure that the third party receive just and fair compensation from the owner of the offending motor vehicle/s and receive the compensation. The right of the victim of a road accident to claim compensation is a statutory. The Legislature in its wisdom enacted the essential provisions in the Motor Vehicles Act to protect the victims of road accidents, who may be travelling in the vehicle or using the road and thereby made it obligatory that no motor vehicle shall be used unless the vehicle is compulsorily insured against third party risk. If liability is denied, it is for the MSRTC to plead and prove the rashness and negligence on the part of the driver of the Jeep if according to it the jeep was offending motor vehicle and that it was alone and exclusively liable for the road accident. Mere allegation is not enough and MSRTC cannot escape from the liability to compensate the third party arising on the basis of its strict liability. Mere absence of or, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the MSRTC against the third parties. MSRTC runs its undertaking with attendants hazards to compensate the victims of the road accidents by automobile vehicles run by it.
6) The next question is about the quantum of the compensation. The ruling in SarlaVerma (Smt.) and others Vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 is required to be followed as held in ReshmaKumari Vs Madan Mohan, reported in 2013(3) All M.R. (SC). Three judges Bench of Honble Supreme Court concluded with guidelines as follows â
â40. In what we have discussed above, we sum up our conclusions as follows:
(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.
(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.
(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.
(v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma.
(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in Para 38 above.
(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.
41. The reference is answered accordinglyâ¦â
7) According to learned Advocate for the respondents Nos. 1 to 4 the Award was inadequate despite evidence on behalf of the claimants which was not countered by the insurer as well as Appellants by any evidence to the contrary before the Tribunal. According to learned Advocate for the respondent-claimants The amounts granted as compensation towards the loss of consortium for the widow, and loss of estate was computed very low and contrary to guidelines in para 19 of the leading ruling in Sarla Vermas case and no any compensation was awarded for the loss of love and affection suffered by all the five claimants. While on behalf of the appellant it is fervently contended that the compensation awarded was excessive and unreasonable.
8) It is in evidence that victim Mukund Govinrao Dongre aged 38 years. He was agricultural Supervisor in Yavatmal District Co-operative Bank and left behind family consisting of his Widow, two daughters and a Son. The deceased was earning Rs.2,744/- per month concrete evidence of the monthly income of the victim, the Tribunal judiciously considered the monthly income of the victim as Rs.2,744/- per month and annual income at Rs.32,928/- only. 50% must be added as prospects of future increases in income. Thus, adding Rs.16,464/- the sum is Rs.49,392/-. In Para 26 of SarlaVermas case, it is held that percentage of deduction (one-third) prescribed under the second schedule with reference to Section 163-A of the Act is not an inflexible rule and offers merely a guideline. Here in the present case we have to consider that number of dependentsâclaimants were four, hence, in view of the Para 30 in SarlaVermas case after deducting the one third amount towards the self-expense, deducting the sum of Rs.16,464/- the net loss of dependency is computed at Rs.32,928/- for the dependents. Since considering the age of the victim as 38 years in this case at the time of his death, the multiplier was applied at 16. Hence, (32928 x 16 = 5,26,848/-) a sum of Rs.5,26,848/- need to be awarded as just compensation for loss of dependency. As the deceased Ramdas was self-employed as also he had agricultural land of 4 Hectors and 83 Ares (Ex.54 and 55 Village Form Extracts VII-XII) which he was personally supervising and cultivating a sum of Rs.50,000/- for loss of personal services of the deceased to the dependents. Under the conventional heads the Tribunal erred to award a sum of Rs.23,000/- only. It must be reasonably enhanced to Rs.1,05,000/- (Loss of consortium Rs. 50,000/- + loss of estate Rs.50,000/- + funeral expenses Rs. 5,000/- inclusive of transport expenses).
9) The claimants-dependents are entitled to the reasonable and fair compensation under the conventional heads as well, since they have lost their near and dear and only earning member of the family. Breakup of compensation payable is fairly computed as follows:-
Rs.5,26,848/- for loss of dependency.
Rs. 20,000/- for loss of love and affection Rs 5000 each x 4 claimants.
Rs. 50,000/- for loss of consortium for the Widow claimant.
Rs. 50,000/- for Loss of estate.
Rs. 5,000/- to funeral expenses inclusive of transport.
Rs.6,51,848/- total compensation sum payable @ 9% p. a. from the date of the Petition till realization in the same proportion as ordered by the Tribunal.
10) The steps taken for computation of the monthly income, yearly income of the deceased and then considering the number of dependents (four) deducting the one-third amount towards self expenses to arrive at the multiplicand and applying 16 as multiplier considering the age of the victim and the ages of the dependents. If sums under the conventional heads are awarded as aforesaid the total compensation following the rulings in SarlaVerma as well as ReshmaKumari (Supra) cases, would be just, appropriate and reasonable together with interest @ 9% per annum on the unpaid compensation in the facts and circumstances of the case. The award has to be just, reasonable and proper. Hence, it is duty of the Court to modify it accordingly, in view of ruling in Rajesh and others v. Rajbir Singh and others, reported in 2013 ACJ 1403 (Three Judges Bench of Hon'ble Supreme Court). Hence, no interference is warranted otherwise by this Court in exercise of the appellate jurisdiction. Hence, I pass the following order.
ORDER
1. The appeal is without merits. Hence, dismissed with costs.
2. The appeal is disposed of with direction that just and fair compensation amount must be paid to the claimants as ordered by this Court for the aforesaid reasons, in the total sum of Rs.6,51,848/- after deducting the sums already paid, along with interest at the rate of 9% per annum on the unpaid amount from the date of the claim application till realization thereof, the amount deposited in this court with accrued interest shall be transferred to the Tribunal for disbursing the payment of compensation proportionately to the claimants-dependents subject to conditions and the time frame as the learned Tribunal may deem it fit according to law.