Judgment:
Syed Bashir-Ud-Din, J.
1. This appeal is against the award of Motor Accidents Claims Tribunal, Srinagar passed on 7.3.89 in Claim Case No. 160 of 1985 on the file of the Tribunal, whereunder the claimants three brothers and two sisters of deceased Abdul Rashid Parra have been awarded compensation of Rs. 2,65,000, with 12 per cent interest from the date of filing of the claim petition till realisation of the amount with costs. The amount of compensation to be shared between brothers and sisters is in the ratio of brother getting two shares and sister one share.
2. The necessary facts which require to be taken note of for purpose of this appeal, are that, one Abdul Rashid Parra, brother of petitioners, was coming towards the Tourist Reception Centre on a bike on 18.10.1984, when at the crossing on the main road on the Golf Ground side, he was hit by vehicle bearing registration mark and No. JKC 3910 bus plied and driven by respondent No. 1 negligently. The driver ignored the traffic signal of the police constable and hit Abdul Rashid Parra. He received fatal injuries. He was rushed to hospital but died en route after succumbing to the sustained injuries. A case was registered by the Police Station, Kothibagh against respondent No. 1, accused driver for causing death of the victim by negligent/rash driving, diarised as F.I.R. No. 595 of 1985 under Sections 304-A and 427, R.P.C. The investigations culminated in filing charge report against the accused in the Court of Chief Judicial Magistrate, Srinagar. Respondent No. 2 is the owner of the vehicle, whereas respondent No. 3, the appellant before this court, provided insurance cover to the vehicle against the accident.
3. The deceased Abdul Rashid Parra was 26 years of age at the time of the accident. He was unmarried and is survived by three brothers and two sisters, the petitioners. In the petition compensation of Rs. 9,60,000 was claimed on the grounds that the deceased a young man of 26 years with robust health and sound physique would have lived expectedly for 90 years. The deceased a tailor by profession was also dealing in the cloth business. His monthly income was in the range of Rs. 1,500 to Rs. 2,000. The petitioners have been deprived of the earnings of the deceased for nearly 64 years. The petitioners received shock, pain and suffering due to the death of the deceased. They have spent huge amount(s) on the funeral of the deceased. The deceased was earning member of the family and his death has put the petitioners in a miserable condition.
4. The petitioners filed the claim petition, initially before the Tribunal on 8.3.85, but were allowed to withdraw the same with permission to file fresh petition, which fresh petition the petitioners filed on 9.12.1985.
5. Respondent Nos. 1 and 2, the owner and the driver having failed to appear despite due service, have been set exparte on 17.3.1986. Respondent No. 3 (insurance company) the appellant before this court filed the written statement and resisted the claim on the ground that the petition is barred by limitation and that the deceased Abdul Rashid Parra did not die due to the accident or rash or negligent driving of the vehicle. That the petitioners need to be put to strict proof. The amount of compensation claimed is excessive and abnormal. It is not denied that the vehicle on the material date was insured by the said answering respondent No. 3 and the insurance policy was subsisting and operative on the accident date.
6. The issue of making out the sufficiency of grounds to condone delay has been decided on 22.1.1986 by the Tribunal and the delay has been condoned after it was found that the petition was within time and not barred by limitation.
7. On 19.9.1986, following four issues were framed:
(1) Whether the accident which occurred on 18.10.1984 resulting in the death of Abdul Rashid Parra was caused due to rash and negligent driving of respondent No. 1 while driving vehicle No. JKC 3910? OPP
(2) In case issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled, from whom and in what proportion? OPP
(3) Whether the vehicle was driven in contravention of the terms and conditions of the insurance policy, and if so, what is its effect on the claim petition? OPR
(4) Relief.
8. The petitioner has examined five witnesses, besides one of the petitioners has appeared as his own witness. The testimony of the witnesses is on record. Besides, criminal file No. 888-B of 1985 pending on the file of Chief Judicial Magistrate, Srinagar, covering the occurrence in question has been also made available on the record. The respondents have not examined any witness, nor any other evidence has been produced. The Tribunal after hearing the parties and on consideration of the matter, after analysing and appreciating the evidence found that the deceased died the accidental death due to negligent driving of the vehicle by respondent No. 1 and that the vehicle was not driven in contravention of terms and conditions of the insurance policy and further deceased was earning Rs. 1,200 per month and would have lived for 25 years more. After allowing '/3rd towards the personal expenses of the deceased the compensation has been assessed at Rs. 2,40,000. To this have been added Rs. 20,000 for the shock and pain which petitioners have sustained and Rs. 5,000 expended on the funeral expenses of the deceased. In all Rs. 2,65,000 with 12 per cent interest from the date of filing of the claim petition till the actual realisation of the money has been awarded.
9. The National Insurance Co. Ltd. has filed this appeal against the award, questioning the decision and award of the Tribunal on both legal and factual grounds. It is averred that petitioners are not entitled to the compensation as they are not the legal representatives of the deceased so as to be entitled to receive the compensation. The impugned order is based on no evidence and is not informed of the reasons. The award is dehors of the legal principles applicable to the case.
10. Counsel for the parties have been heard. Counsel for the respondents has raised a preliminary objection regarding maintainability of the appeal. The counsel submits that the insurance company cannot file an appeal questioning the quantum of compensation awarded by the Tribunal and locus of the petitioners to claim compensation before the Tribunal in this case in so far as the insurance company cannot be allowed to raise all pleas beyond the confines of Section 96(2) of the old Act of 1939 corresponding to Section 149(2) of the Act of 1988 and that the insurance company is not an aggrieved party to be entitled to file the appeal. The counsel for the appellant company has canvassed that the insurance company is an aggrieved party in so far as it is aggrieved of the award for the reason that the defence available to the company. as set up before the Tribunal did not find favour with the Tribunal. The insurer has a right to be impleaded as a party to a petition for compensation and once so impleaded it can exercise the rights which are provided by the provisions of a statute.
11. Both parties have laid reliance on Full Bench judgment of this court in United India Fire & Genl. Ins. Co. Ltd. v. Lakshmi Shori Ganjoo 1982 ACJ 470 (J&K;).
12. Section 96(2) of the old Act and Section 149(2) of the new Act specifies the grounds which are available to the insurer to defend an action for compensation before the Tribunal. The insurer is entitled to defend on the specified grounds. However, the insurer can resist the claim before the Tribunal or challenge the award in appeal on grounds other than those enumerated in the section, where either the insurer has reserved the right in the policy of insurance to defend the claim in the name of the insured or where the Tribunal or the courts are satisfied that the insured and the claimants have colluded with each other or that the leave of the Tribunal under Section 110-C (2-A) of the old Act has been granted to the insurer for defending the claims on grounds on which the insured could have defended the claim.
13. In this case, the driver and owner of the vehicle despite being duly served have remained absent and have been set ex parte, the insurer (appellant) has filed written statement before the Tribunal. It is revealed that the insurance company has been allowed to resist the claim and defend the action on all counts, even beyond the confines of Section 96(2) of the Motor Vehicles Act of 1939. Even the witnesses examined by the petitioners were allowed to be cross-examined by the appellant on all counts before the Tribunal.
14. In the facts and circumstances of the case, the permission to defend the claim in the name of the insured, though not expressly granted can be deemed to have been granted.
15. Viewed thus, the insurer can resist the claim on the grounds available to the insured. Even the counsel Mr, Z.A. Qureshi, who also happened to be counsel in United India Fire & Genl. Ins. Co. Ltd. v. Lakshmi Shori Ganjoo 1982 ACJ 470 (J&K;), before the Full Bench of this court concedes, as he conceded before the Full Bench, that the insurer has been permitted by the Tribunal to contest the action on all grounds, therefore, the insurer could challenge the award also on all the grounds. Therefore, this appeal has to be dealt with on merits.
16. The counsel for the appellant contends that the petitioner brothers and sisters of the deceased have no locus standi to file the petition and claim the compensation for they are not the legal heirs of the deceased. Learned counsel for the respondents-claimants canvasses that the claimants-applicants before the Tribunal and respondents to this appeal have every right to claim the just compensation as brothers and sisters of the deceased who was unmarried, young boy of 26 years. They are within their rights to move the application for compensation for their own benefit as legal representatives of the deceased.
17. In Gujarat State Road TransportCorporation v. Ramanbhai Prabhatbhai 1987 ACJ 561 (SC), the question who actually should answer the description of the legal representative entitled to claim compensation under the provisions of Motor Vehicles Act arose. The Supreme Court while taking note that the legal representative has not been defined in the Act, observed that the legal representative ordinarily means a person who in law represents the estate of the deceased person or a person on whom the estate devolves on the death of an individual. The Apex Court further noted that the Fatal Accidents Act provides that suit/action for compensation shall be for the benefit of the wife, husband, parent and children of the deceased. Yet Section 110-A (1) of the Motor Vehicles Act provides that the application for just compensation shall be made on behalf of or for the benefit of the legal representatives of the deceased. A legal representative in a case need not necessarily be a wife, husband, parent or child.
18. It has been observed that the provisions of Sections 110-A and 110-B of Motor Vehicles Act are not merely procedural provisions but substantially affect the rights of the parties in so far as the right is given to the legal representatives. The representatives under the Motor Vehicles Act can file application or claim for compensation for death due to the motor vehicular accident and in the process the scope of the right is enlarged and cannot be hedged by any of the limitations of an action as provided by the Fatal Accidents Act. Contextually, it would be in place to quote from the judgment the following para:.The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with the well-known principles of law. We should remember that in Indian family brothers, sisters and brothers' children and sometimes foster children also live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicle accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai 1977 ACJ 253 (Gujarat) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is legal representative of the deceased.
19. In this case petitioners are shown as three brothers and two sisters of the deceased Abdul Rashid Parra. The relationship is shown in the application. In fact, the application is prescribed under the Rules and all columns have been filled up. The appellant insurer has not raised the plea of non-maintainability of claim for compensation of the petitioners, apart from evasive-denial-replies. The insurer has questioned the locus of the petitioners to lay the instant action for compensation as legal representatives of the deceased.
20. No evidence or proof has been placed on record to deny that the petitioners are not the legal representatives of the deceased. Even during cross-examination, no such question has been asked from any of the witnesses. The relation of the petitioners with the deceased is not refuted. Even one of the petitioners Mohammad Ramzan, in his statement before the Tribunal has stated that the petitioners alone are entitled to the compensation. Notwithstanding that the petitioners may not be joint in mess and residence the petitioners have been put to loss and have suffered damages due to death of their brother. The question of dependency on the deceased may have a bearing on the quantum of just compensation, but cannot be altogether a ground to exclude the petitioners from the category of legal representatives entitled to lay claim and an action for compensation under the provisions of the Motor Vehicles Act.
21. Viewed thus, it cannot be said that the petitioners are not the legal representatives of the deceased and have no locus to lay claim for compensation before the Claims Tribunal for recovery of compensation consequent on vehicular accidental death of their brother Abdul Rashid Parra.
22. The appellant's counsel next submits that the petitioners have been awarded excessive and inflated quantum of compensation in disregard to the fundamental and basic principles of law on the subject. The evidence has not been properly analysed and appreciated to arrive at legal, just and fair compensation. The counsel for respondents has supported the judgment of the Tribunal and submits that the quantum of compensation has been arrived at after taking into consideration the facts and circumstances of the case.
23. From the recorded evidence and other documents on record, it is made out that the deceased Abdul Rashid Parra was aged about 26 years at the time of vehicular accident, resulting in his death. The Tribunal has found on evidence that the deceased's monthly income was in the range of Rs. 1,500 to Rs. 1,600 as he was engaged in the trade of sale of ready-made garments and also worked as tailor with his brother, Mohammad Ramzan, one of the petitioners. As stated the petitioner used to get Rs. 1,200 as monthly income from him for the work he used to do as tailor in his shop. The Tribunal has thus found the deceased earning at least Rs. 40 a day and thereby has arrived at the figure of Rs. 1,200 as monthly income of the deceased at the material time.
24. The deceased was unmarried. Thus, allowance has been also made for his personal expenses to the extent of 1/3rd. It has been also found that by the death of the deceased, the family has lost one of its bread-earners. Besides, there has been loss to the estate to which he would have contributed had he not died. The deceased was a man with normal built and health. The Tribunal has applied multiplier of 25 in this case after observing that the deceased would have lived and earned up to age of 50 years.
25. In all the Tribunal has awarded Rs. 2,40,000 as compensation, besides awarding Rs. 20,000 and Rs. 5,000 respectively towards shock and pain and for funeral expenses. In all Rs. 2,65,000 with 12 per cent interest from the date of filing of the claim petition till final realisation of the sum has been awarded.
26. While deciding the civil appeal in U.P. State Road Trans.Corporation v. Trilok Chandra 1996 ACJ 831 (SC), the Apex Court laid down:.What we propose to emphasise is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies' case, (1942) AC 601.
27. Having regard to the age of the victim of the road accident Abdul Rashid Parra, his health condition and claim of deceased's legal representatives' loss and deficiency to his estate had he not died, personal expenses and other relevant factors in this case, a multiplier of 18 is applied as application of multiplier of 18 is just, proper and fair. After giving margin for the personal expenses as done by the Tribunal from the estimated monthly income of the deceased, Rs. 800 is the estimation of the dependency. Now applying the multiplier of 18, the just and fair compensation to be awarded to the petitioners is Rs. 1,72,800. Added to this, the compensation awarded by the Tribunal for suffering of pain of Rs. 20,000 and funeral expenses of Rs. 5,000, the total compensation awarded is Rs. 1,97,800. This is determined and judged as just compensation. To this compensation shall be added 12 per cent interest as awarded by the Tribunal payable from the date of the filing of the claim.
28. For the aforesaid reasons, the appeal is allowed in part to the extent indicated above and the petitioners are held entitled to receive a compensation of Rs. 1,97,800 with 12 per cent interest less the amount already received by petitioners-claimants, payable by the insurer. The petitioners before the Tribunal and respondents before this court shall be entitled to the aforesaid compensation, as per the shares determined under the personal law which governs them in the matter of succession.