S. Samvatsar, J.
1. This judgment shall govern the disposal of all the aforesaid appeals as they arise out of common accident. Misc. Appeal No. 161 of 2005 shall be the leading case.
2. Claimants in all the appeals have preferred these appeals being aggrieved by the awards dated 5.11.2004 passed by the Additional Member Judge, Motor Accidents Claims Tribunal, Gohad, District Bhind in claim cases filed by the present claimants. Claims Tribunal while awarding compensation has exonerated the respondent insurance company from payment of its liability.
3. Brief facts of the case are that the deceased and injured were travelling in a Maruti car bearing registration No. UP 84-A 8996. They were sitting in the said car as passengers. Said car was driven by one Ramu who also died in the same accident. The car was driven rashly and negligently by the driver which dashed against a tree and caught fire. The claimants have filed claim petitions before the Claims Tribunal. The Claims Tribunal held that the car was driven rashly and negligently by the driver and the accident has taken place due to rash and negligent driving.
4. So far as the liability of the insurance company is concerned, the Claims Tribunal has found that the vehicle was not running on petrol but it was running on LP gas, hence, the Claims Tribunal held that the insurance company is not liable for payment of compensation.
5. Counsel for the claimants has invited attention of this Court to the provisions of Section 149 of the Motor Vehicles Act. Section 149(2) provides as under:
(2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle, or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
Thus, from perusal of the said section, it is clear that the insurance company can avoid its liability if the insurance company raises defence which is covered by Section 149(2).
6. Counsel for the insurance company could not point out any condition in the policy which requires that the vehicle must run on petrol. In the absence of this condition, it cannot be held that the owner or driver of the vehicle committed breach of any condition of the insurance policy.
7. Counsel for the respondent insurance company has relied upon a judgment of Andhra Pradesh High Court in the case of Paper Clipping v. S.H.O., Karimnagar AIR 2000 AP 217. From perusal of the said judgment, we find that the said judgment is quite distinguishable. In that case, Andhra Pradesh High Court was considering the case under Essential Commodities Act and the matter did not arise out of motor accident.
8. Another judgment relied upon by the counsel for the respondent insurance company is Neelam Devi v. Devendra Singh Yadav . This judgment lays down that in the absence of cross-objection by the owner, the question of liability has attained finality. In the present appeals, the claimants have preferred appeals and the claimants cannot be deprived of the right to recover the amount from the insurance company merely because the owner has not filed any cross-objection or appeal.
9. In the present case, as there is no violation of the provisions of Section 149(2) of the Motor Vehicles Act, the insurance company cannot raise the defence about its liability. In such circumstances, we hold that the insurance company is jointly and severally liable to pay the compensation.
10. Now, we proceed to determine the quantum of compensation in all the five appeals:
Misc. Appeal No. 161 of 2005:
This appeal arises out of Claim Case No. 42 of 2002. In this appeal, the appellant is injured who sustained burn injuries in the accident as the car caught fire after the accident. The Claims Tribunal found that the appellant was 28 years of age at the time of the accident. He was working as a Field Supervisor in a private company and was earning Rs. 3,000 per month. The Claims Tribunal found that due to the burn injuries the claimant suffered permanent disability to the extent of 40 per cent and by applying multiplier of 18, assessed the compensation to the tune of Rs. 2,60,000. Claims Tribunal has also awarded a sum of Rs. 45,000 towards medical expenses, thus awarded the total compensation of Rs. 3,05,000.
11. Contention of the learned Counsel for the claimant is that the amount awarded by the Claims Tribunal is on the lower side. The Claims Tribunal has not awarded any amount towards pain and suffering and special diet.
12. From the perusal of the record, it appears that the claimant remained hospitalised for a period of five months due to the burn injuries. It is a matter of common knowledge that burn injuries are always painful. In such circumstances, we hold that the claimant must have suffered agony due to the burn injuries and we assess the compensation towards pain and suffering to Rs. 55,000. We also award a sum of Rs. 10,000 towards special diet. Hence, we enhance the compensation in this appeal from Rs. 3,05,000 (rupees three lakh five thousand) to Rs. 3,70,000 (rupees three lakh seventy thousand). The claimant shall also be entitled to interest at the rate of six per cent per annum on the entire amount of compensation from the date of filing of the claim petition till realisation. Enhanced amount shall be released to the claimant after due deposit by the insurance company.
Misc. Appeal No. 160 of 2005:
13. This appeal arises out of Claim Case No. 6 of 2002. In this appeal, the claimants are the sons of deceased Brijmohan Singh Chauhan. The Claims Tribunal has awarded a sum of Rs. 1,44,000 as compensation. Deceased was 62 years of age and was a pensioner. Considering these facts, we find that the amount awarded by the Claims Tribunal cannot be said to be unreasonably low to call for interference. However, we enhance the rate of interest from four per cent to six per cent from the date of filing of the claim petition till realisation.
Misc. Appeal No. 159 of 2005:
14. This appeal arises out of Claim Case No. 5 of 2002. Widow, sons and daughter of deceased Harisingh have filed the claim case. Deceased was a postman aged 44 years at the time of accident. Claims Tribunal has assessed his income at Rs. 2,600 per month, i.e., Rs. 31,200 per annum. After deducting 1/3rd for personal expenses, his annual dependency will come to Rs. 20,800. Deceased was 44 years of age, hence, multiplier of 15 will be applicable. On applying the multiplier, the compensation comes to Rs. 3,12,000. In addition to this, claimants are also entitled for a sum of Rs. 13,000 as damages under various heads such as loss of consortium, loss of love and affection, funeral expenses, etc. Thus, the compensation is enhanced from Rs. 2,17,000 (rupees two lakh seventeen thousand) to Rs. 3,25,000 (rupees three lakh twenty-five thousand). The claimants shall also be entitled to interest at the rate of six per cent per annum on the entire amount of compensation from the date of filing of the claim petition till realisation. Enhanced amount shall be released to the claimants after due deposit by the insurance company.
Misc. Appeal No. 158 of 2005:
15. This appeal arises out of Claim Case No. 8 of 2002. In this case, deceased Himanshu was aged 8 years at the time of the accident. Claims Tribunal has assessed compensation at Rs. 75,000. In this case, the deceased was a boy of 8 years and was a non-earning member, hence, as per the Schedule appended to Section 163-A of the Motor Vehicles Act, his dependency will have to be assessed on notional basis, i.e., Rs. 15,000 per annum. Thus, his annual dependency will come to Rs. 10,000. Since the deceased was eight years of age, hence, multiplier of 15 will be applicable and on applying the multiplier of 15, the compensation will come to Rs. 1,50,000. Apart from this, claimants shall also be entitled for a sum of Rs. 25,000 as damages under various heads such as loss to estate, loss of love and affection, funeral expenses, etc. Thus, we enhance the total compensation in this appeal from Rs. 75,000 (rupees seventy-five thousand) to Rs. 1,75,000 (rupees one lakh seventy-five thousand). Claimants shall also be entitled to interest at the rate of six per cent per annum on the entire amount of compensation from the date of filing of the claim petition till realisation. Enhanced amount shall be released to the claimants after due deposit by the insurance company.
Misc. Appeal No. 139 of 2005:
16. This appeal arises out of Claim Case No. 7 of 2002. In this case, deceased Ruby was aged 15 years at the time of the accident. Claims Tribunal has assessed the compensation at Rs. 60,000. In this case, the deceased was a girl aged 15 years and was a non-earning member, hence, as per the Schedule appended to Section 163-A of the Motor Vehicles Act, her income will have to be assessed on notional basis, i.e., Rs. 15,000 per annum. [Thus, the annualr dependency will come to Rs. 10,000. Since' the deceased was 15 years of age, hence, multiplier of 15 will be applicable and on applying the multiplier of 15, the compensation will come to Rs. 1,50,000. Apart from this, claimants shall also be entitled for a sum of Rs. 25,000 as damages under various heads such as loss to estate, loss of love and affection, funeral expenses, etc. Thus, we enhance the total compensation in this appeal from Rs. 60,000 (rupees sixty thousand) to Rs. 1,75,000 (rupees one lakh seventy-five thousand). Claimants shall also be entitled to interest at the rate of six per cent per annum on the entire amount of compensation from the date of filing of the claim petition till realisation.
17. Enhanced amount shall be released to the f 'claimant No. 2 who is the mother of the deceased and is a class I heir after due deposit by the insurance company.
18. In the result, all the appeals stand allowed and disposed of to the extent indicated hereinabove.