The Oriental Insurance Co. Ltd. vs Smt. Nirmala Devi And Others
2016 Latest Caselaw 2108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10									A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3515 of 2011
 

 
Appellant :- The Oriental Insurance Co. Ltd.
 
Respondent :- Smt. Nirmala Devi And Others
 
Counsel for Appellant :- Arvind Kumar
 
Counsel for Respondent :- R.K.R. Sharma,Vinod Kumar Agarwal
 

 
Hon'ble Arun Tandon,J.

Hon'ble Abhai Kumar,J.

This appeal under Section 173 of the Motor Vehicles Act, 1988 (herinafter referred to as the 'Act') has been filed by the Oriental Insurance Co. Ltd. (hereinafter referred to as the 'Insurance Company') against the award of the M.A.C.T./Additional District Judge, Court No. 7, Aligarh dated 1.8.2011made in M.A.C.P. No. 7 of 2009, Smt. Nirmala Devi and another vs. Sandeep Sharma and another.

Heard learned counsel for the parties.

Facts in short leading to this appeal are as follows :

The deceased Chetan Swaroop, on 5.9.2008 boarded Bus No. U.P.  85E- 9372 on the way to Ajmer. Because of rash and negligent driving of bus near Jwaja, Police Station- Jawala, District- Ajmer (Rajsthan), it turned turtle resulting in fatal injuries to Chetan Swaroop. Chetan Swroop was unmarried and was earning a sum of Rs. 15,000/- per month from business. The sister of the deceased and one of his brother Gyan Swaroop filed claim petition under Sections 140 and 166 of Motor Vehicles Act, 1988 before the M.A.C.T./Additional District Judge, Court No. 7, Aligarh, which was registered as M.A.C.P. No. 7 of 2009. It was mentioned that the deceased has left behind him besides the claimants, three other brothers as his legal representatives, whose names were mentioned in para-8 of proforma of the application for compensation namely, Bhagwan Swaroop, Prem Swaroop and Kapil.

Claim petition was contested by the Insurance Company as well as by the owner of the vehicle. After exchange of pleadings between the parties, the Tribunal framed four issues for determination which read as follows:

" 1&D;k fnukWd 01-09-2008 dks le; djhc 7-00 cts izkr% LFkku toktk Fkkuk tokyk tuin vtesj esa tc e`rd psru Lo:i vius vU; ;kf=;ksa ds lkFk JhukFk efUnj jktLFkku cl la[;k ;w0ih0 85 bZ0&9372 ls tk jgk Fkk] rks cl la[;k ;w0ih0 85 bZ0&9372 ds pkyd dh ykijokgh ds dkj.k nq?kZVuk esa e`rd psru Lo:i dh e`R;q gks xbZ\ ;fn gkW rks izHkko\

2&D;k nq?kZVuk ds fnukad] le; ij pkyd ;w0ih0 85 bZ0 9372 ds ikl mDr okgu dks pykus dk oS/k ,oa izHkkoh MzkbZfoax ykbZlsal Fkk\

3& D;k okgu la[;k ;w0ih0 85bZ0 9372 nq?kZVuk dh frfFk ij foi{kh la[;k 02 vksfj;UVy bU'kksjsUl dEiuh ls chfer Fkh\

4& D;k ;kphx.k dksbZ izfrdj dh /kujkf'k izkIr djus dk vf/kdkjh gS ;fn gkW rks fdruk rFkk fdl i{k ls \"

Issues no. 1, 2 and 3 with regard to rash and negligent driving of the bus, the driver of the vehicle being possessed a valid licence on the date of occurrence and the bus was insured with the Insurance Company, the deceased had boarded the said bus on the date and time mentioned in the claim petition, the bus was being driven by the driver rashly and negligently and because of such rash and negligent driving, the bus met with an accident resulting in the death of the deceased Chetan Swaroop, have all been answered in favour of the claimants. There is hardly any challenge to the findings returned in respect of the aforesaid issues no. 1, 2 and 3 before us.

In respect of issue no. 4, the Tribunal has determined the salary of the deceased at Rs.1,42,909/- per year after deducting 1/3rd of the income for personal expenses, the Tribunal assessed his income at the rate of Rs. 99,264/- per year and after applying the multiplier of 11 having regard to the age of the deceased, (which was 52 years ), the compensation has been assessed as Rs. 10,91,904/- to this, it has been added the expenditure towards funeral, loss of companionship etc., the total compenstion has been fixed at Rs. 10,96,404/-. The award of the Motor Accidents Claim Tribunal is subject to challenge before us on two grounds:

(a) That in the claim petition it was mentioned that there were three other brothers of the deceased, who had not been impleaded either as claimants or as respondents to the claim petition. Therefore, having regard to Section 166 of the Act 1988 and its proviso, the claim petition itself was liable to be dismissed for non-impleadment of necessary parties.

(b) The claimants were sister and brother of the deceased. Sister was admittedly married. Her son and husband were earning members and therefore, she cannot be said to be dependent on the income of the deceased. Similarly, qua the right of the brother of the deceased, it is submitted that from his own testimony that whatever money was earned by the deceased, was spent on himself and at times, he used to contribute money towards the expenses of children of the claimant no. 2 and at times when he did not so desire, he did not spend any money for his children. Therefore, there was no dependency of the claimants. No such amount could have been awarded to the claimants except the maximum provided under Section 140 of the Motor Vehicles Act.

In support of his contention, learned counsel for the appellant has relied upon the judgments of the Apex Court in the cases of Mrs. Hafizun Begum vs. Md. Ikram Heque and others, 2007 (4) T.A.C. 1 S.C., Manjuri Bera (Smt.) vs. Oriental Insurance Company Ltd. and another, 2007 (10) SCC 643, Ranu Gupta and others vs. United India Insurance Company Ltd. and others, 2009 (13) SCC 498, Reshma Kumari and others vs. Madan Mohan and another, 2009 (13) SCC 422, Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, 2009 (6) SCC 121, New India Assurance Co. Ltd. vs. Charlie and another, 2005 (10) SCC 720, Helen C. Rebello (Mrs.) and others vs. Maharashtra State Road Transport Corporation and another, 1999 (1) SCC 90, General Manager, Kerala State Road Transport Corporation and Trivandrum vs. Susamma Thomas (Mrs.) and others, 1994 (2) SCC 176.

Learned counsel for the respondents, on the contrary, pointed out that an application for compensation can only be dismissed for non-impleadment of the necessary party on grounds flowing from under Order I Rule 9 of C.P.C. and not otherwise. It is stated that none of the other brothers came forward to claim compensation or object to the right of the claimants as legal representatives of the deceased either before the Tribunal or before the High Court. It is then stated that the brothers, who have not been impleaded and were not necessary parties, inasmuch, as no relief had been claimed against them. Therefore, even if there has been non-impleadment of other legal representatives, namely, three other brothers of the deceased, the same cannot be said to be fatal nor the claim petition can be rejected on that ground. No such objection/plea was raised on behalf of the Insurance Company or by the owner of the vehicle before the Tribunal. If such protest would have been raised, the other brothers may have been impleaded as proforma respondents.

So far as the issue of determining the compensation is concerned, reliance has been placed upon the recent judgement of the Apex Court in the case of Montford Brothers of St. Gabriel and another vs. United India Insurance and another, 2014 (1) T.A.C. 970 (S.C.). It is submitted that the plea of dependency is only one of factors, which is to be taken into consideration for the purpose of deductions to be made from the income of the deceased. However, in absence of there being any dependency on the income of the deceased, it cannot be said that the application would not be maintainable and in that circumstance, the Tribunal may deduct the portion of the income of the deceased which he was used to spend on himself and the remaining income has to be treated as the income for determination of compensation after application of multiplier with regard to the age of the deceased. Strong reliance in this regard is placed on paragraphs- 11 and 16 of the judgment as well as the operative portion as contained in para-18 in the case of Montford (supra) wherein compensation of Rs. 2,52,000/- awarded by the Tribunal for the death of Alex Chandy Thomas, the brother of St. Gabriel, who had renounced the world, has been upheld and the Insurance Company was asked to deposit the same.

In rejoinder, Sri Arvind Kumar, learned counsel for the appellant, refers to Section 221 of the Motor Vehicles Rules, 1989 which provides as under:-

"221. Code of Civil Procedure to apply in certain cases- The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to proceedings before the Claims Tribunal, namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX; Rules 3 to 10 of Order XIII; Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of Order XXIII."

He therefore submits that the said principles in the matter of non-impleadment of the parties as provided under Order I Rules 8 and 9 may not apply. With reference to the judgment in the case of Montford Brothers (supra), it is submitted that in that case no issue on quantum of compensation had been raised and therefore, any finding returned therein cannot be relied upon.

In the alternative, since the deceased was a bachelor and the claimants were not dependent upon his earnings, the minimum deduction which should have been made from the income of salary, should have been 50 per cent and that the multiplier of 10 in place of 11 should have been applied.

We have heard counsel for the parties and examined the record of the present appeal.

From the issue which have been raised before us by the counsel of the parties having regard to the material placed before us, we may first decide the impact of non-impleadment of other brothers as claimants or as proforma respondents in the claim petition.

From the copy of claim petition which has been filed along with the memo of appeal (annexure no. 1), it is apparent that the claimants had specifically disclosed that they were brother and sister of the deceased and that there were three other brothers, whose names had also been mentioned. There was no concealment with regard to any legal representative in the application filed by the claimants. It is also not in dispute that the other brothers were also stated to be residing with the claimant no. 2. None of the three brothers had come forward to file any claim petition in respect of the death of the deceased-Chetan Swaroop due to accident nor they contest the claim petition filed by the present claimants either before the Tribunal nor having brought any petition in the High Court.

We have no hesitation to record that the other brothers against whom no relief has been claimed in the claim petition, can at best be said to be proper parties, they do not fall within the description of necessary party. None impleadment of proper parties will not render the application bad having due regard to the legal principles as enshrined in Order I Rule 9. The application for compensation cannot be dismissed for non-impleadment/misrepresantion or non-joinder of the other brothers. Therefore, in the facts of the case, we do not think it proper to accept the plea on behalf of the appellant in that regard.

We may record that mere use of word 'shall' in proviso-2 to Section 166 of Motor Vehicles Act will not make impleadment of other legal representative as mandatory so as to be fatal to the proceedings in a case of non-impleadment inasmuch as for such non-impleadment no consequence have been provided under Section 166 of Motor Vehicles Act.

The legal position in that regard has been settled by the Apex Court in the case of Ram Deen Maurya (DR.) vs. State of Uttar Pradesh and others, reported in 2009 (6) SCC 735. In paragraph-52 it has been held as follows:

"52. While considering the non-compliance of procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice and furthers its ends and, therefore, if the consequence of non- compliance is not provided, the requirement may be held to be directory. "

Therefore, this ground must fail.

So far as the issue no. 2 is concerned, we find that the judgments which have been relied upon by the appellant, all deal with cases where dependency was claimed and on that basis it was determined as to what part from the salary had to be deducted towards personal expenses and thereafter multiplier to be applied. The judgements which have been relied by the appellant's counsel are therefore, distinguishable in the facts of the present case.

In our opinion, the judgment relied by the respondent-claimants is very near to the facts of the present case. The case of Montford Brothers (supra) the Apex Court has noticed that the deceased was a Roman Catholic, who had joined the Church Services by renouncing his family. The claimants were a charitable society. The Court has gone on to hold that the charitable society did answer the description of legal dependence and had a right to file a claim petition in case of death of their brother, namely, Alex Chandy Thomas. The Apex Court after noticing Section 166 of Motor Vehicles Act, 1988 in extenso and Section 2(11) of the Code of Civil Procedure as well as the judgments in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Raman Bhai Prabhatbhai and Anr., AIR 1987 S.C. 1690: 987 (2) T.A.C. 1, had gone on to hold that the provisions of Section 110 of the old Act were beneficial piece of legislation and provided for compensation to those, who had suffered loss. The Apex Court thereafter held that the claim petition filed by the Church is maintainable even if where there is no dependency. The Apex Court thereafter set aside the judgment of the High Court which held that the claim petition was not maintainable for want of dependency and restored the judgment of the Tribunal awarding Rs. 2,52,000/- to the Montford Brothers of St. Gabriel.

From the facts of the case and the law, which has been laid down in the case of Montford Brothers (supra) what follows is that legal representative, even if not depend upon the deceased, who expired due to motor accident, is entitled to compensation under the Motor Vehicles Act.

We are, therefore, of the opinion that in the facts of irrespective of the dependency of the claimants upon the income of the deceased, the claim petition on their behalf under Section 166 of the Motor Vehicles Act was clearly maintainable.

Now coming to the issue whether determination of the income of the deceased was faulty, what we find is that there is hardly any material on record for disputing the quantum of yearly income which has been determined by the claims Tribunal. Therefore, we see no reason to take any other view.

This takes the Court to the core issue as to what percentage of the income of the deceased would have been spent on himself and what percentage would have been used or utilized for the claimants.

We may record that the counsel for the parties did not place any precedent before us in the matter of what per centage of the income is to be deducted towards personal expenses, in case where no dependency is pleaded by the claimants, who are legal representatives.

Since, in the facts of the case, there is hardly any pleading on dependency on the income of the deceased that the Tibunal has not returned any finding thereto.

In our opinion, in such circumstances, 65 % of the total income must be presumed to be consumed by the deceased for his own purposes and accordingly, for the purposes of determining the annual income over which the multiplier is to be applied, the annual income must be reduced accordingly.

We therefore hold that 65 per cent of the total income must have been utilized by the deceased on self. The total yearly income determined by the Tribunal, should be reduced by 65 per cent for the purpose of determination of the amount to be awarded to the claimants. On this 35 per cent of the total income, the multiplier as provided in the case of Sarla Verma v. Delhi Transport Corporation 2009 (6) SCC 121 has to be applied.

According to the Insurance Company, the multiplier of 10 would be applicable having regard to the age of the deceased, which was 52 years.

We find that under the judgement of Sarla Verma (supra), the multiplier of 11 has been provided in case the age of the deceased is between 51 to 55. Therefore, there is no error in the application of multiplier of 11 in the facts of the case. If the multiplier of 11 is applied to the income after reducing the same by 65 per cent, the total compensation works out as Rs. 5,50198/- and in addition to which a sum of Rs. 4500/- be given towards funeral expenses etc. This, in our opinion, would be the fair compensation in the facts of the case.

In view of the aforesaid, the appeal is partly allowed.

The total compensation awarded by the Tribunal to the claimant-respondents is reduced to Rs. 5,54,698/-. Since the entire money has already been deposited as per the order of Tribunal in terms of the directions issued by this Court on 1.11.2011, it is provided that on an application being made by the appellant along with a certified copy of this order, the excess amount so deposited along with the interest shall be returned to the appellant within two weeks from the date of presentention of application by means of an account payee cheque.

Order Date :- 2.5.2016

Naresh