Akshit Kumar Vs. Balbir Singh and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.deepak gupta, j.1. this judgment shall dispose of three appeals being f. a.o. nos. 248, 263 and 264 of 2001 and the cross-objections filed therein.2. the unfortunate claimant in all the 3 cases is a young boy akshit kumar who was 11 years old at the time of accident. on 10.11.1998 akshit kumar along with his parents anand kishore and shashi bala and elder brother abhishek, aged about 14 years, was traveling in a maruti car no. pb-be 0122 on nangal-anandpur sahib road. when the car reached near the village ajoli, tanker no. hr 02-ga 0165 was going ahead of them. the driver of the tanker gave a signal to the deceased anand kishore to overtake the tanker. when the car was overtaking the tanker, the driver of the said tanker did not slow down the vehicle as was expected of him. truck no. hr-38 9494 was coming from the opposite side. truck hit the car and the tanker also hit the car. the car was dragged to some distance. akshit's mother, shashi bala died on the spot. his father, anand kishore and brother abhishek were removed to p.g.i. chandigarh. the father died on the same night. the brother abhishek died in the p.g.i, on 18.11.1998.3. from the evidence on record it is clear that anand kishore, father of the claimant, was an engineer. he had done b.e. in mechanical engineering. he was working as project manager with the district industry centre, kurukshetra and was aged 42 years at the time of the accident. his total emoluments which have been proved on record vide exh. pw 2/a were rs. 11,572 per month at the time of his death. his date of birth was 21.8.1956 and, therefore, on the date of accident he was a little over 42 years.4. shashi bala, mother of the claimants, was aged 38 years. though in the petition it is claimed that she was earning some amount by imparting tuitions, no cogent evidence in this regard was led and, therefore, her income has been assessed on the basis that she was only a housewife. abhishek, brother of the deceased, was only aged 14 years and a student.5. the claimant has filed three separate claim petitions claiming compensation on account of the death of his father, mother and brother. the claim petitions were consolidated and decided by a common award on 23.5.2001. learned tribunal held that claimant could be expected to be dependent on his father to the extent of rs. 2,000 per month or rs. 24,000 per year and by applying a multiplier of 10 compensation of rs. 2,40,000 was awarded. in respect of the death of the mother learned tribunal came to the conclusion that the services of the mother could be taken to be rs. 600 per month and the share of the petitioner would be only rs. 100 per month. however, as rs. 50,000 was the minimum amount payable under section 140 of motor vehicles act, an award for rs. 50,000 was passed. similarly for death of brother rs. 50,000 has been awarded.6. the learned tribunal held that the accident had occurred due to negligence of the tanker driver to the extent of 70 per cent and of the truck driver to the extent of 30 per cent. oriental insurance co. ltd., insurer of the tanker and new india assurance co. ltd. insurer of the truck, were asked to pay the compensation in the ratio of 70:30.7. this appeal has been filed by the minor claimant for enhancement of the compensation and the only point to be decided in the present appeal is with regard to the assessment of compensation. at the very outset it may be noted that section 163-a was introduced in motor vehicles act, 1988 (hereinafter referred to as 'the act') by amendment act 54 of 1994 w.e.f. 14.11.1994. the purpose of introducing section 163-a of the act was to simplify the procedure and to make the tortfeasor and the insurance company liable even in case no negligence could be proved. under section 163-a of the act the claimant is not required to prove that the accident has occurred due to negligence of the driver of a particular vehicle. obviously the legislature felt that time consuming disputes should be avoided. it was also felt that compensation to be reckoned as per structured formula could be paid expeditiously to claimants by a rough and ready method.8. a claimant has a choice of either applying for compensation under section 166 of the act in which event he must prove negligence on the part of the tortfeasor or the claimant can also apply for compensation under section 163-a of the act where he need not prove negligence of any party. this court has consistently taken the view that even when a claimant files a petition under section 166 of the act the courts while assessing the compensation must keep in mind the compensation which would have been payable to the claimant if he or she had approached the learned tribunal under section 163-a of the act. the compensation payable under section 166 of the act should not be less than the minimum amount payable under the structured formula under section 163-a of the act. it would be a travesty of justice if a person who proves negligence and the income of the deceased is awarded lesser compensation than a person who neither proves negligence nor proves the income of the deceased. according to note no. 6 under the second schedule framed under section 163-a of the act, notional income for compensation to those who had no income prior to the accident is to be taken at rs. 15,000 per annum. therefore, minimum compensation under section 163-a of the act has to be assessed by taking into consideration minimum income at rs. 15,000 per annum. this is to be multiplied by the multiplier mentioned and thereafter 1/3rd of the amount has to be deducted for the personal expenses of the deceased. the claimants are also entitled to rs. 2,000 for funeral expenses, rs. 2,500 for loss to the estate and in case one of the claimants is a spouse then rs. 5,000 is to be awarded for loss of consortium.9. in view of the above discussion i am clearly of the opinion that even in a claim filed under section 166 of the act, amount of compensation to be awarded cannot fall below the minimum compensation payable under the structured formula under section 163-a of the act. it is only this approach which can advance the intention of the legislature to make just and reasonable compensation available to the victims of a motor accident. in the present case learned tribunal has awarded only rs. 50,000 to the claimant for the death of his mother and rs. 50,000 for the death of his brother. both these awards are abysmally low.10. first of all, the entitlement of the claimant for compensation with regard to the death of his father is taken up. the father was aged 42 years and was earning rs. 11,572 per month. a person who earns such an amount would have had some savings also. he must be getting some amount deducted for provident fund. the amount to which the claimant is entitled to is not only on account of the loss of dependency, but also on account of loss to the estate. claimant is the sole surviving member of the family. he is entitled to the entire loss to the estate. his father must be spending at least rs. 2,000 per month on the education, upkeep and maintenance of the claimant. the father must have had some savings. even if a very conservative estimate is taken the savings can be taken to at least rs. 1,000 per month. the loss to the claimant is, therefore, rs. 3,000 per month or rs. 36,000 per year. claimant is about 11 years old. his father was 42 years. it would be reasonable to apply a multiplier of 12 in the present case and the compensation payable works out to rs. 4,32,000. claimant is also held entitled to a sum of rs. 8,000 on account of funeral expenses and conventional damages. in this case the claimant who is a young child aged 11 years has lost the guidance, love and affection and care of both his parents and his brother. no amount of money can make good this loss. from being a member of a happy and contended family, he has been rendered an orphan who has to live on the benevolence and charity of other relatives. therefore, this is a fit case where a sum of rs. 30,000 should be paid to the claimant for loss of love and affection.11. coming to the claim with regard to the death of his mother. in my humble opinion learned tribunal has done grave injustice to the role of a mother by assessing the contribution of the mother at only rs. 600 per month. even note no. 6 under second schedule of section 163-a of the act provides that the income of a spouse should be taken at least 73rd of the income of the surviving spouse. in case this principle is applied the income of the wife could have been assessed at almost rs. 4,000 per month. even if that is not done and the role of a mother is taken to be that of a housewife only then also by no stretch of imagination the assessment of her services can be reckoned at rs. 600 per month. one cannot even employ a servant at rs. 600 per month. no servant will work day and night for 24 hours a day. even if a servant is employed, he shall also have to be provided all amenities like food, boarding and lodging, etc. in any event in my opinion, it is great injustice to compare the role of a mother and a wife to that of a servant. even by taking a conservative estimate the loss to claimant for the death of his mother must be assessed at rs. 1,000 per month or rs. 12,000 per year. the age of mother was only 38 years and claimant was 11 years, therefore, reasonable multiplier would be 15 and the compensation payable works out to rs. 1,80,000. even if minimum income of rs. 15,000 was taken as provided in second schedule the compensation payable to the young boy under section 163-a of the act would have been rs. 1,64,500. i also feel that the love and affection of the mother which the child has lost cannot be calculated in terms of money. mother also has been teaching the children, helping them to do homework and various other chores which a mother does. claimant who has been rendered an orphan is awarded rs. 50,000 for loss of love and affection on account of the death of his mother. the compensation payable on account of the death of mother, therefore, works out to rs. 2,30,000.12. as far as the case of the brother is concerned, the amount even if his income is taken at rs. 15,000 and multiplier of 15 is used, as provided in second schedule the compensation comes to rs. 2,25,000 out of which rs. 75,000 have to be deducted for his personal expenses. the claimant is also entitled to rs. 2,000 for funeral expenses and rs. 2,500 for loss to the estate and the total compensation payable would be rs. 1,54,500.13. in view of the above discussion all the three appeals are allowed and the award of learned motor accidents claims tribunal (ii), una in claim petition no. 2 of 1999, rbt 113/2k/99 relating to the death of father, is modified and enhanced from rs. 2,40,000 to rs. 4,70,000. in claim petition no. 3 of 1999, rbt no. 41/2k/99 relating to the death of the mother, the compensation is enhanced from rs. 50,000 to rs. 2,30,000. in claim petition no. 4 of 1999, rbt no. 114/2k/99, relating to the death of the brother of the claimant, the compensation is enhanced from rs. 50,000 to rs. 1,54,500. claimant is also entitled to interest on the aforesaid amounts at the rate of 9 per cent per annum w.e.f. the date of filing of claim petition, i.e., 18.12.1998 till payment/deposit of the amounts.14. the owner, driver and the insurance company of the tanker are held jointly and severally liable to pay 70 per cent of this amount and the owner and insurer of truck no. hr-38 9494 are held jointly and severally liable to pay 30 per cent of the said amount since the insurance companies have agreed to indemnify the owners of the vehicles. oriental insurance co. ltd., the insurer of the tanker, is directed to deposit 70 per cent of the enhanced amount along with interest and new india assurance co. ltd. (insurer of the truck) is directed to deposit 30 per cent of the enhanced amount in the registry of this court within 12 weeks from today, failing which they shall be liable to pay interest at the rate of 12 per cent per annum w.e.f. today.co. nos. 389, 391 and 390 of 2001 in f.a.o. nos. 248, 263 and 264 of 200115. the cross-objections filed by the insurance company are not maintainable in view of the law laid down by the full bench of this court in lata v. united india insurance co. ltd. 2005 acj 857 (hp).16. the appeals and cross-objections are disposed of in the aforesaid terms with no order as to costs.