Santosh S/O Khaduji Mangrulkar vs Abdul Jabbar S/O Abdul Rahim And 4 ...
2017 Latest Caselaw 3610 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH, NAGPUR

                      FIRST APPEAL NO.400 OF 2015

          Santosh s/o Kahduji Mangrulkar,
          R/o Kotha, P.O. Kosarsur, Tal. Warora,
          Dist. Chandrapur, Owner of Tractor &
          Trailer bearing No. MH-34/F191;
          MH-34/F-467.                ....... APPELLANT


                               ...V E R S U S...


 1]       Abdul Jabbar s/o Abdul Rahim
          Aged about 69 years, 
          Occ: Nil.

 2]       Sahija Begum w/o Abdul Jabbar
          Aged about 64 years, 
          Occ: Housewife.

 3]       Parveen Begum (Sister) w/o Syed
          Ali (Divorcee), Aged 33 years,
          Occ: Nil.

 4]       Nasreen Begum d/o Abdul Jabbar
          Aged about 20 years,

          All residents of Nayee Basti,
          Ward No.77, Nayee Mangalwari,
          Nagpur-1.

 5]       The Branch Manager,
          United India Insurance Co. Ltd.,
          Abhishek, 2nd Floor, Mul Road,
          Chandrapur-1 Insurer of the 
          vehicle No.MH-34/F191;
          MH-34/F-467.                 ....... RESPONDENTS


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         Shri K.B. Ambilwade, Advocate for Appellant.
         Shri C.A. Anthony, Advocate for Respondent Nos.1 to 4.
         Shri M.R. Johrapurkar, Advocate for Respondent No.5.
 -------------------------------------------------------------------------------------


                     FIRST APPEAL NO.1121 OF 2014


 1]       Abdul Jabbar s/o Abdul Rahim,
          Aged 79 years, Occ: Nil.

 2]       Sahija Begum w/o Abdul Jabbar,
          Aged 70 yrs., Occ: Housewife.

 3]       Parveen Begum (sister) w/o Sayed Ali
          (Divorce) aged 39 yrs. Occ: Nil.

 4]       Nasreen Begum d/o Abdul Jabbar,
          Aged about 35 yrs., Occ: Household.

          All r/o Nayee Basti, Ward No.77,
          Nayee Mangalwari, Nagpur-1.      ....... APPELLANTS


                                ...V E R S U S...


 1]       Santosh Kahduji Mangrulkar,
          Aged major, Occ: Agril.,
          R/o Kotha, P.O. Kasarsur, Tah. Warora,
          Dist. Chandrapur, Owner of 
          Tractor-Trailer.

 2]       The Branch Manager,
          United India Insurance Co. Ltd.,
          Abhishek, 2nd Floor, Mul Road,
          Chandrapur. Insurer of the 
          vehicle No.MH-34/F-191,
          MH-34/F-467.                 ....... RESPONDENTS


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         Shri C.A. Anthony, Advocate for Appellants.
         Shri K.B. Ambilwade, Advocate for Respondent No.1.
         Shri M.R. Johrapurkar, Advocate for Respondent No.2.
 -------------------------------------------------------------------------------------

 CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J. 

th DATE: 27 JUNE, 2017.

ORAL JUDGMENT

1] As both these appeals are arising out of one and

same judgment of Motor Accident Claims Tribunal, Nagpur in

Claim Petition No.815 of 1999 decided on 04.08.2014, they

are decided by this common judgment and order. By the

impugned judgment, the learned Tribunal has partly allowed

the claim petition, thereby entitling the claimant to get the

total compensation of Rs.1,60,500/- with interest at the rate

of 7.5% per annum from the date of petition, till the date of

payment. Being aggrieved by the same the original claimants

have preferred First Appeal No.1121 of 2014; whereas the

original respondent No.1, the owner of the offending vehicle,

has preferred First Appeal No.400 of 2015.

For the sake of convenience the parties are referred to

by their original nomenclature.

2] Brief facts of the appeals can be stated as follows :

The petitioner No.1 is the father, petitioner No.2

is the mother and petitioner Nos.3 and 4, are the sisters of

deceased Abdul Shakeel, who died in a motor accident on

01.01.1999. As per the case of the petitioners, on that date at

about 01:45 hrs. deceased was driving his Maruti Esteem Car

No.DD-03 A-0833 from Chandrapur to Nagpur. At Khapri, the

deceased and other occupants of the car had a dinner at

Dhaba and thereafter they left for Nagpur. When the car

reached in front of Vidarbha Bottlers on Chandrapur-Nagpur

road in night, it collided with the trolley bearing No.MH-34

F-407 of the tractor bearing No.MH-34 F-191, which was

proceeding ahead of the car. It was the contention of the

petitioner that the trolley was not having any indicator or

parking light nor it was having plough lamp.

Therefore, deceased could not have identified the tractor and

collided with the trolley of the tractor from its rear side. As a

result of the said collusion deceased sustained grievous

injuries and succumbed to death. Similarly, other occupants

in the car also sustained grievous injuries. Police have

however registered an offence vide Crime No.3 of 1999 under

Sections 279, 338, 304-A and 427 of the I.P.C. against the

deceased at Sonegaon Police Station.

3] According to the petitioners the deceased was not

at all responsible, at least not alone responsible, for the

accident, thought the Police has registered offence against

him alone. Hence, they have filed petition for compensation

against the respondents before the Tribunal. It was submitted

by them that at the time of accident deceased was 26 years

and serving as a Mechanic with M/s. Nagpur Auto Deal and

getting salary of Rs.5000/- per month. Due to his untimely

death, the petitioners had lost their only source of income

and, hence they were constrained to approach the Tribunal

seeking compensation of Rs.5,00,000/- jointly and severally

from respondent No.1 who was the registered owner of the

offending tractor and trolley and respondent No.2, with

whom the tractor and trolley were insured with.

4] This claim petition came to be resisted by

respondent No.1, the owner of the tractor and trolley, vide

his written statement Exh.15 contending inter alia that the

sole cause of the accident was rash and negligent driving of

the deceased. It was stated that deceased had tried to

overtake the tractor and trolley. At that time one truck which

was coming from opposite direction, dashed the car of the

deceased and fled away from the spot. It was contended that

the respondent No.1 is thus falsely implicated in this case.

According to respondent No.1, the truck which gave dash to

the car of the deceased and the owner and insurer of that

truck are not joined in the petition. The petitioners had also

not joined the owner and insurer of the car, which the

deceased was driving. Hence, the petition was not

maintainable for non-joinder of necessary parties. It was

further contended that the deceased was driving the car

under the influence of alcohol, and hence, as the deceased

was at fault for the accident, being in the position of a

tortfeasor, his legal heirs, the appellants herein cannot be

entitled to get any amount of compensation. Hence, the

petition needs to be dismissed.

5] Respondent No.2-the Insurance Company of the

tractor and trolley, resisted the petition vide written

statement at Exh.17 adopting the stand taken by respondent

No.1 that deceased was alone responsible for cause of

accident, as his car dashed to the truck and trolley, which was

proceeding on the proper side of the road and ahead of the

car. It was submitted that Police had also registered the

offence against the deceased. Therefore, the legal

representative of the deceased are not entitled to get

compensation. In the alternate, it was submitted by the

respondent No.2, that the driver of tractor was not holding

valid and effective driving licence. Hence, in view of the

breach of the terms and conditions of the policy, the

insurance company is not liable to indemnify respondent

No.1.

6] As regards the quantum of compensation claimed

by the petitioners, it was submitted that as the deceased has

himself contributed to the cause of accident, if any liability

for payment of compensation is to be fastened on respondent

No.1, then it should be proportionate to the negligence.

Lastly, it was submitted that the amount claimed by the

petitioners towards compensation is exorbitant and

unreasonable. Therefore, on this count also, the petition is

liable to be dismissed.

7] On these rival pleadings of the parties, the learned

Tribunal framed necessary issues at Exh.22. In support of

their case, the petitioner No.1, the father of the deceased,

namely Abdul Jabbar, examined himself and two more

witnesses by name Satish and Arun, who were travelling in

the car at the time of accident, to prove that the cause of the

accident was the rash and negligent driving of the tractor and

trolley. As against it, respondent No.1, the owner of the

tractor and trolley, also entered into the witness box to prove

that it was the rash and negligent driving of the deceased

himself, which has resulted into the accident. Both the parties

then relied upon various documentary evidence like F.I.R.

Exh.31, postmortem report Exh.34 and the copy of driving

licence of the driver at Exh.45.

8] On appreciation of this oral and documentary

evidence produced on record by both the parties, the Tribunal

was pleased to hold that both the deceased and the driver of

the tractor and trolley were equally responsible for the cause

of accident.

9] As regards the quantum of compensation, the

learned Tribunal was pleased to hold that, in absence of any

evidence to prove the income of the deceased from salary, his

notional income was required to be considered at Rs.3000/-

per month. The Tribunal then applied the multiplier of '17'

and held the petitioner entitled to get the total amount of

compensation to the tune of Rs.3,06,000/-. The learned

Tribunal further awarded Rs.5000/- towards funeral expenses

and Rs.10,000/- towards the loss of estate. Accordingly, the

total compensation to which the petitioners were held

entitled was considered to be Rs.3,25,000/-. The Tribunal

apportioned the same equally and held that the petitioners

were entitled only to the extent of Rs.1,60,500/- towards

compensation.

10] As regards the liability of the Insurance Company,

the learned Tribunal found that the driver of the tractor and

trolley was having learner's licence and that too of L.M.V. car.

Therefore, there was breach of the terms and conditions of

the insurance policy. Accordingly, the insurance company of

the tractor and trolley was exonerated from the liability.

The liability to pay the amount of compensation of

Rs.1,60,500/- was fastened on the respondent No.1, the

owner of tractor trolley alone.

11] This judgment of the Tribunal is challenged, both

by the petitioners/claimants and also by the respondent No.1

the owner of the tractor and trolley. The main grievance

raised by learned counsel for the petitioners is that the

evidence on record clearly goes to prove that the tractor and

trolley was proceeding on the road at a night time and

without any tale lamp or the reflector. In such a situation,

according to learned counsel for petitioners the driver of the

tractor and trolley alone was responsible for the accident that

has occurred. According to learned counsel for the

petitioners, merely because the Police has registered the case

against the deceased, the Tribunal has held the deceased

equally responsible for the cause of accident; hence the said

finding of the Tribunal needs to be set aside. Further it is

submitted that relying on some noting made in the

postmortem report that the contents of stomach were having

odour of alcohol, the Tribunal has held that the deceased was

under the influence of alcohol at the time of accident.

However, while arriving at this finding the Tribunal has

ignored the oral evidence of two witnesses examined by the

petitioners. They were the occupants of the car at the time of

accident and they have categorically deposed that the

deceased has not taken any drink at the Dhaba.

12] Further it is submitted by the learned counsel for

the petitioners that the quantum of compensation awarded by

the Tribunal is not just and reasonable. The Tribunal has not

awarded any amount towards the future prospects of the

deceased, by ignoring the decision of the Apex Court in the

case of Santosh Devi v. National Insurance Co. Ltd. reported in

(2012) 6 SCC 421. It is also urged that the amount awarded

by the Tribunal towards the loss of consortium, loss of love

and affection and the funeral expenses is also meagre and not

in tune with the recent decision of the Apex Court in the case

of Rajesh and others vs. Rajbir Singh and others reported in

(2013) 9 SCC 54. Thus, according to the learned counsel for

the petitioners, the interference is warranted in the impugned

judgment and order of the Tribunal on all the scores.

13] Learned counsel for the respondent No.1 has also

challenged the judgment of the Tribunal on the count that the

Tribunal has failed to appreciate the evidence on record

properly, as regards the cause of accident. It is submitted that

though there was no fault on the part of driver of the tractor

and trolley, the Tribunal has held respondent No.1 liable to

pay the amount of compensation. It is submitted that if the

car driven by the deceased has given dash to the tractor and

trolley from behind, then in no way the driver of the tractor

and trolley can be held liable for the accident, which has

occurred. It is submitted that there is also evidence to show

that the deceased was under the influence of alcohol and

Tribunal has rightly considered the same.

Therefore, respondent No.1 cannot be held liable to pay

compensation to the petitioners, who are legal heirs of the

deceased who is proved to be the tortfeasor as Police had

registered the offence against him.

14] Learned counsel for respondent No.1 has also

challenged the finding of the Tribunal of exonerating the

insurance company from its liability. In this respect, it is

submitted by learned counsel for the petitioners and

respondent No.1 that even assuming that the driver of the

tractor and trolley was not having valid and effective licence,

in that case also the insurance company has to first discharge

its liability towards the third party and then can recover the

said amount from the owner of the vehicle, namely

respondent No.1. However, insurance company cannot be

absolved of its liability, altogether. To substantiate this

submission, the reliance is placed on the land mark decision

of the Apex Court in the case of National Insurance Co. Ltd. v.

Swaran Singh and others reported in 2004 ACJ 1.

15] As regards respondent No.2-Insurance Company,

learned counsel appearing for it has supported the judgment

and order of the Tribunal, by pointing out that in case of

breach of terms of policy, the insurance company cannot be

held liable to pay the amount of compensation. Herein the

copy of the driving licence is produced on record by the

petitioners, which clearly goes to show that it was a learner's

driving licence and secondly the said driving licence was only

for driving of L.M.V. and not for the goods carrier.

Thus, according to the learned counsel for the respondent

No.2, no interference is warranted in the impugned judgment

of the Tribunal on that point. However, so far as the

involvement and liability of the driver of the tractor and

trolley in the said accident, it is submitted that the Tribunal

has not properly appreciated the oral and documentary

evidence on record, which was clearly proving that the sole

cause of accident was the rash and negligent driving of the

deceased as his car dashed to the tractor and trolley from

behind, coupled with the fact that as per the postmortem

report, the deceased was found under the influence of

alcohol.

16] In the light of these rival submissions advanced

before me by learned counsels, the first and foremost issue

raised for determination is, whether the cause of accident was

rash and negligent driving of the deceased alone or to some

extent, may be to the extent of 50%, as held by the Tribunal,

the driver of the tractor and trolley was also responsible?

17] It is an undisputed position that on the

intervening night between 31.12.1998 and 01.01.1999 the

deceased was driving his Maroti car from Chandrapur to

Nagpur along with some occupants in the car, including

P.W.2-Satish and P.W.3-Arun. It is deposed by these two

witnesses that they took dinner at Khapri Dhaba and after

dinner, they left for Nagpur. At about 01:45 hrs., when the

car came in front of Vidarbha Bottlers on Wardha-Nagpur

road, at that time tractor No.MH-34 F-191 attached with

trolley No.MH-34 F-467 and owned by respondent No.1 was

proceeding ahead of the car. According to their evidence, as

the coupling with which the trolley was attached to the

tractor suddenly broke, the trolley got disconnected from the

tractor and therefore, car collided with the trolley. It is

deposed by them that deceased could not identify the trolley

immediately as it was not having any tale lamp or indicator.

Hence, the deceased could not control the speed of the car as

a result the car dashed on the trolley which resulted into the

death of the deceased.

18] However, it has to be observed that this case put

up by the two witnesses that the coupling of the trolley got

suddenly broken and hence, the trolley was disconnected

from the tractor, therefore, the car dashed on the trolley does

not find place, in the F.I.R. lodged immediately after the

accident or even, in any other material produced on record.

The copy of F.I.R. Exh.31 and copy of spot panchnama Exh.35

clearly go to show that the tractor and trolley were

proceeding ahead on the road and from behind, the car

driven by the deceased came in fast speed and gave dash to

the said tractor and trolley. Neither the F.I.R. nor contents of

spot panchnama in any way support the evidence of these two

witnesses that the coupling of the trolley was suddenly

broken or found separated from the tractor. If it was a case,

needless to state that the Police would not have filed the

F.I.R. and charge-sheet against the car driver alone, holding

him responsible for the accident. The contents of the F.I.R.

reveal that the car was driven by the deceased in a rash and

negligent manner and it gave dash from behind to the tractor

and trolley which was proceeding ahead. The spot

panchnama also prove that the damage was caused to the

front portion of the car like bonnet and the rare portion of the

trolley. Therefore, the evidence of these witnesses that the

cause of accident was equally on the part of the driver of the

tractor and trolley cannot be accepted.

19] Similarly, the contention raised by the respondent

No.1 that the accident took place because the deceased tried

to overtake the tractor and trolley, and at that time one truck,

which was coming from opposite direction gave dash to the

car and fled away from the spot of accident also, cannot be

accepted. The spot panchnama and the F.I.R. which is lodged

by the Police after the necessary inquiry, does not make

reference to truck coming from opposite direction and giving

dash to the car of the deceased. The spot panchnama Exh.35

conversely goes to show that the car was found entangled

below the trolley. The damage was also found caused to the

trolley on account of the dash. Not only that, some tyre marks

of the car were also found at the spot. Therefore, the spot

panchnama rules out the case put up by the respondent No.1

that the tractor and trolley were falsely implicated in the

accident.

20] The manner in which the accident had taken place

is more than sufficiently proved on record to the extent that

the car driven by the deceased came from behind in a fast

speed and then dashed to the tractor and trolley which were

proceeding ahead of the road. Therefore, normally, if any

vehicle gives dash from behind, then the vehicle which is

proceeding ahead and the driver of the said vehicle are not

held responsible for the accident, provided that the said

vehicle is running on proper side of the road and is found to

be driven in the moderate speed. Herein however, the learned

counsel for the petitioners has relied upon Rule 227 of the

Maharashtra Motor Vehicles Rules, 1989 which provides as

follows:

227. Driving of tractors on roads.--

(1) No tractor, when fitted for being driven on a public road, shall be driven on such road at a speed exceeding ten kilometers per hour and no such tractor shall take sharp turns on such road :

Provided that, if such tractor be a crowler tractor, it shall not be driven on an asphalt road between 9 a.m. to 9 p.m. (2) Every such tractor, when driven on a metalled road, shall be driven as far as possible on the side strips of such road."

The main emphasis of learned counsel for the petitioners is

on clause (2) of Rule 227, which provides that every such

tractor driven on a metalled road shall be driven as far as

possible on the side strips of such road. Herein it is submitted

that the tractor was not found to be on the side strip of such

road, but the spot panchnama shows that it was very much on

the metalled tar road, and therefore, some fault definitely lies

on the part of the driver of the tractor and trolley. Further the

evidence of witnesses who were travelling in the car, that the

tractor and trolley were without the tale lamp or the indicator

has remained unshattered, even after their cross-examination.

Though respondent No.1 has examined himself to prove that

tale lamp was on, he has put up a completely different

version that car was not dashed to his trolley from behind

and the said version is falsified by spot panchnama which

clearly proves the damage caused to rear portion of the

trolley. Hence, to some extent the liability of driver of tractor

and trolley cannot be denied.

21] At the same time, it is also necessary to consider

the evidence on record which prove that the driver of the

tractor and trolley was not having a valid driving licence.

The copy of his driving licence which is produced at Exh.45

shows that it was a learner's licence and that too only for

L.M.V. car. Having regard to these facts, the liability of the

driver of the tractor and trolley, in the cause of the accident,

has to be considered. The real question is to which extent, he

can also be held liable for contributory negligence?

The learned Tribunal has considered it as a case of 50% 50%

negligence. However, in my considered opinion, having

regard to the factual position which is proved on the record,

it cannot be to the extent of 50%, especially because the dash

was given by the car from behind and it was not a head on

collusion. When any person is driving a car on the highway,

the driver has to anticipate the movement of all sorts of

vehicles on the road. The driver of the car cannot be expected

to say that as tractor was moving at slow speed, he could not

control the speed of his car and hence the accident took

place. The tractor and trolley, as per Rule 227 of the

Maharashtra Motor Vehicles Rules, 1989, quoted above, is

expected by the law itself, to drive it in slow speed and

therefore, the deceased should have driven the car in

moderate speed and be in control of it. However, the fact that

at the spot of accident the skid marks of the car were found,

clearly goes to show that though the deceased tried to control

the speed of the car, he could not to do so. Hence, two

inevitable inferences are that the car was in fast speed and

therefore, deceased could not control the speed and if it was

not in fast speed, then he has lost the control of the car, being

under the inference of alcohol. This inference needs to be

drawn, having regard to the postmortem report, the copy of

which is produced on record at Exh.44. In para 21 of the

postmortem report it is observed that the contents of the

stomach were having alcohol odour. Though two occupants

in the car who are examined by the petitioners, namely Satish

and Arun, have stated that at Dhaba they had alone taken the

drink and the deceased has not, it becomes difficult to accept

their testimony. Considering that it was a night of the 31st

December and the presence of alcoholical odour in the

stomach contents makes it sufficient to infer that the

deceased has consumed some alcohol at Dhaba, especially

when the witnesses are admitting that they had the drinks at

Dhaba.

22] As regards the authority relied upon by the

learned counsel for the petitioners, that of National Insurance

Co. Ltd. vs. Smt. Jayashri and others reported in 2015 (1)

T.A.C. 418 (Bom.), in that case except for the opinion of some

witnesses that the deceased was riding the bicycle in a zigzag

manner and smelt of liquor, there was no other evidence

showing that the deceased was under the influence of

alcohol. Hence, it was held that unless the blood samples

were obtained and sent for analysis, there cannot be

conclusive proof of alleged intoxication. Here there is medical

and forensic evidence produced in the form of the opinion,

expressed by the Doctor who has conducted the postmortem,

categorically stating that the stomach contents were having

odour of alcohol.

23] So far as the reliance placed by the learned

counsel for the petitioners on Section 85 of the Bombay

Prohibition Act, needless to state that the section invites

criminal liability for driving vehicle in a rash and negligent

manner under the influence of alcohol and therefore, there

may be the necessity of getting the conclusive proof of the

presence of alcohol in blood samples. In the instant case, for

imposing civil liability, the oral evidence which is produced

on record and the postmortem report is sufficient to holding

that the deceased was under the influence of alcohol at the

time of accident.

24] Therefore, having regard to this entire evidence

on record, it has to be held that the liability of the

contributory negligence on the part of the deceased in the

accident that has occurred, is definitely far more, and it is to

the extent of 75%. Whereas the contributory negligence of

the driver of the tractor and trolley is proved to the extent of

25% only, considering that it was driven on the tar road and

the driver was not having valid and effective driving licence.

25] Now coming to the quantum of compensation, the

petitioners have claimed the compensation of Rs.5,00,000/-

on the count that the deceased was 26 years of age and

earning salary of Rs.5000/- per month from his service in

M/s. Nagpur Auto Deal. However, as rightly held by Tribunal,

no documentary or oral evidence of the Manager of the

M/s. Nagpur Auto Deal is produced on record to show that

the deceased was working as employee with M/s. Nagpur

Auto Deal and drawing a salary of Rs.5000/- per month.

His salary certificate is also not produced on record.

Therefore, the Tribunal has rightly considered the notional

income of Rs.3000/- per month and applied the multiplier of

'17'. The Tribunal has however, not granted additional

amount towards the future prospects of the deceased and in

this respect the Tribunal has committed an error in not

relying on the judgment of Santosh Devi v. National Insurance

Co. Ltd. referred (supra) though cited before it on the count

that it is a two bench judgment. Whereas the judgment in

Sarla Verma (Smt.) and others v. Delhi Transport Corporation

and another reported in AIR 2009 SC 3104 was the decision of

Full Bench. However, in the case of Santosh Devi, this very

Judgment of Sarla Verma was clarified and also made

applicable to the persons who are self- employed or engaged

on fixed wages. This judgment in Satosh Devi is further

clarified in the recent decision of Rajesh vs. Rajbir Singh

reported in (2013) 9 SCC 54, holding that "the principle

regarding addition to be made to actual income of the

deceased, existing at the time of his death towards future

prospect in the case of salaried persons, as laid down in Sarla

Verma, is made applicable in the judgment of Santosh Devi to

the persons self-employed and engaged on fixed wages."

However, it was clarified that the increase in the case of those

groups, namely self-employed and engaged on fixed wages,

cannot be always 30%. It must have a reference to the age of

the deceased. In other words, in the case of self-employed

persons or persons with fixed wages, where the deceased

victim was below 40 years, there must be an addition of 50%

to the actual income of the deceased, while computing future

prospects. In the instant case therefore, having regard to the

fact that the income of the deceased from his salary is

considered as notional to be Rs.3000/- per month and having

regard to his age of 26 years, there has to be an addition of

50% to the said income, towards his future prospects.

26] Having regard to the fact that deceased was

unmarried at the time of accident, according to the learned

counsel for the petitioners only 1/3rd of the said amount is

required to be deducted towards his personal and living

expenses, whereas according to learned counsel for

respondent No.1, 50% of the said amount is required to be

considered towards his personal and living expenses, as he

was unmarried. In this respect, one can again take recourse to

the judgment of the Apex Court in the case of Sarla Verma

(Smt.) and others vs. Delhi Transport Corporation, wherein it

was held that, "if the deceased was a bachelor and the

claimants are the parents, the deduction follows a different

principle. In regard to bachelors, normally 50% is to be

deducted as personal and living expenses, because it is assumed

that a bachelor would tend to spend more on himself. Even

otherwise, there is also the possibility of his getting married in a

short time, in which event the contribution to the parents and

siblings is likely to be cut drastically. Further, subject to

evidence to the contrary, the father is likely to have his own

income and will not be considered as a dependent . In the

absence of evidence to the contrary, brothers and sisters will not

be considered as dependents, because they will either be

independent and earning, or married, or be dependent on the

father. Thus, even if the deceased is survived by parents and

siblings, only the mother would be considered to be a

dependent, and 50% would be treated as the personal and

living expenses of the bachelor 50% as the contribution to the

family".

27] Herein in the case, deceased is survived by his

parents and two sisters. Hence having regard to the law laid

down by the Apex Court in the case of Sarla Verma (Smt.)

and others vs. Delhi Transport Corporation and another, it has

to be held that 50% of the income of the deceased is required

to be deducted towards his personal and living expenses and

50% towards his contribution to the family.

28] The petitioners then also become entitled to the

compensation on other additional heads, like to the loss of

consortium, loss of love and affection and the funeral

expenses. The Tribunal has awarded the amount of

Rs.10,000/- towards loss of estate and the amount of

Rs.5000/- towards funeral expenses. Learned counsel for the

petitioners has therefore, placed reliance on the recent

decision of the Apex Court in the case of Rajesh v. Rajbir

Singh (supra), wherein it was held that the amount of

compensation towards loss of consortium which is fixed in

the range of Rs.5000/- to Rs.10,000/-, in the case of Sarla

Verma (Smt.) and others v. Delhi Transport Corporation and

another needs to be revisited and accordingly, it was held that

it would be just and reasonable that the courts award at least

Rs.1,00,000/- for loss of consortium and Rs.1,00,000/- for

loss of care and guidance for minor children. In the instant

case, though the deceased was bachelor however, as his

parents and sister have lost his love and affection, the amount

of Rs.50,000/- needs to be awarded towards to the loss of

estate, love and affection and Rs.25,000/- towards the funeral

expenses.

29] Thus, the total compensation amount to which the

petitioners become entitled can be assessed as follows:

  Sr. No.    Heads                                            Calculation
  1.         Salary                                           Rs.3000 per month

2. 50% of above (i) to be added as future (Rs.3000 + Rs.1500)= prospects. Rs.4500 per month

3. 1/2 of deducted as personal expenses of Rs.4500 - 2250 = the deceased. 2250 p.m.

4. Compensation after multiplier of 17 is Rs.2250 x 12 x 17 = applied. Rs.4,59,000/-

5. Loss of love, affection and estate Rs.50,000/-

  6.         Funeral expenses                                 Rs.25,000/-
  Total compensation awarded                                  Rs.5,34,000/-




 30]              Considering   that   the   contributory   negligence   on

the part of the deceased is held to be 75%, petitioners will

become entitled to get the amount of Rs.1,33,500/- only as

compensation.

31] Now, the next question for consideration is from

whom the petitioners can recover this amount? The Tribunal

has exonerated the insurance company totally on the count

that the deceased was not having the valid and effective

licence at the time of accident. The copy of the driving licence

of the driver of tractor and trolley is produced on record at

Exh.45 and it supports the stand of insurance company that

he was not holding valid and effective licence for driving

tractor as it was a learner's licence and that too for the light

motor vehicle only and not for goods vehicle, like the tractor

and trolley. Hence, apparently there was breach of the

insurance policy.

32] However, the further question for consideration is

whether on that count the insurance company can be totally

exonerated from its liability to compensate the third party

like the petitioners? The law in this respect is no more res

integra as it is fairly settled by the judgment of the Apex

Court in the case of National Insurance Co. Ltd. vs. Swaran

Singh and others reported in 2004 ACJ 1. The very question

raised for consideration in the said case was, as to whether

the insurance company is liable to satisfy the award if the

vehicle was driven by a person holding a learner's licence at

the time of accident, and it was held that "a person holding a

learner's licence would thus also come within the purview of

duly licenced as such a licence is also granted in terms of

provisions of Motor Vehicles Act and Rules framed there

under. Hence, even if there exists a condition in the contract

of insurance that the vehicle cannot be driven by a person

holding a learner's licence, the same would run counter to the

provisions of Section 149 (2) of the Motor Vehicles Act.

Hence, the insurance company has to satisfy the claim of the

third party and then to recover the awarded amount from the

owner or driver of the vehicle."

33] In this judgment it was further held that, "even if

it is proved that the driver is possessing licence for one type

of vehicle, but found driving another type of vehicle, insurer

will not be allowed to avoid its liability, merely on technical

breach of conditions concerning driving licence.

However, in each case the facts needs to be considered as to

whether the driver, not having the requisite type of licence,

was the main or contributory cause of accident. It was held

that for minor breaces of licence conditions, which are not the

direct cause of the accident, the insurance company cannot be

exempted from its liability.

34] In the instant case, therefore, the insurance

company i.e. respondent No.2 cannot be exonerated from the

liability to compensate the petitioners at the first instance.

The insurance company however, can recover the said

amount from respondent No.1, the owner of the vehicle.

35] In the result therefore, both the appeals are partly

allowed, with no order as to costs. The impugned judgment

and award of the Tribunal is modified as follows:

The petitioners are held entitled to get the total amount

of compensation to the tune of Rs.1,33,500/- inclusive of the

amount of no fault liability.

36] The respondent Nos.1 and 2 shall pay jointly and

severally the amount of Rs.1,33,500/- (inclusive of no fault

liability) to the petitioners with interest at the rate of 7.5%

per annum from the date of petition till the realization of the

said amount.

37] The amount of compensation be paid to the

petitioners in proportion as per the award passed by the

Tribunal.

38] The respondent No.2 is at liberty to recover from

the respondent the amount of compensation, if paid to the

petitioners.

Appeal is disposed of in above terms.

JUDGE

NSN