Smt. Sarupi Devi And Ors. vs Katar Singh And Ors.
2003 Latest Caselaw 922 Del

JUDGMENT

S.K. Mahajan, J.

1. The appellants have filed this appeal for enhancement of compensation for the death of one Mr. Ran Singh, husband of appellant no.1 and father of appellants 2 to 5 who had died in a road accident on 25.7.1982 allegedly caused due to the rash and negligent driving of the offending vehicle by its driver. The facts in short giving rise to this appeal are:-

On 25.7.1982, the deceased was sleeping in front of his house away from the road when oil tanker owned by respondent no.2 and being driven by respondent no.4 and insured with respondent no.3 ran over the deceased resulting in his death at the spot. The deceased was 45 years of age at the time of the death and was an agriculturist cultivating 12 bighas of ancestral land and allegedly taking another 4 acres of agriculture land on `batai' for cultivation. Claiming that the accident was caused entirely due to the rash and negligent driving by the tanker by its driver, the appellants filed the petition before the Motor Accident Claims Tribunal claiming compensation from the respondents. In the written statement filed by the driver of the vehicle it was stated that the accident was not caused because of his rash and negligent driving but some persons in the village with whom the driver had a fight took away his tanker and it was because of the driving of the tanker by the said persons that the accident had taken place.

2. In the written statement filed by the insurance company admitted that the vehicle was insured by it but its liability was limited to Rs.1,50,000/-. No other plea was taken by the insurance company in its written statement. On the pleadings of the parties the Tribunal framed the following issues:-

1. Whether the deceased Ran Singh died due to rash and negligent driving of vehicle No. DHL 1769 on the part of Respondents 1 & 4.

2. Whether the petitioners are the LRs of the deceased?

3.To what amount of compensation are the petitioner entitled and from whom?

4. Relief.

3. While the appellants produced witnesses to prove not only that the accident was caused due to the rash and negligent driving of the tanker by its driver but also to prove the income of the deceased. No evidence whatsoever was led by any of the respondents despite opportunities granted for this purpose. On the basis of the evidence, the Tribunal held that the accident was caused due to the rash and negligent driving of the tanker by its driver and as the deceased had died because of the injuries sustained in the said accident, the appellants were entitled to receive compensation from the respondents. Taking the income of the deceased at Rs.1500/- per month and deducting 1/3rd of the same towards his personal expenses, the loss of dependency to the family of the deceased was taken at Rs.1000/- per month or say Rs.12000/- per annum. Applying the multiplier of 8, the Tribunal awarded total compensation of Rs.96,000/- in favor of the appellants. As already mentioned above this award has now been challenged by the appellants by filing the present appeal. Respondents including the Insurance Company have not challenged any of the findings given by the Tribunal.

4. The contention of learned counsel for the appellants is that while assuming the income of the deceased the Tribunal has not taken into consideration the future prospects in the life and career of the deceased. It is submitted that even assuming the income of the deceased in 1982 was Rs.1500/- per month, as held by the Tribunal, the Tribunal considering his age ought to have doubled the income for purposes of deciding the dependency to the family of the deceased. It is also the contention of learned counsel for the appellant that the deceased was only 45 years of age at the time of the death and the Tribunal, therefore, ought to have applied the multiplier in terms of the Second Schedule of the Motor Vehicles Act.

5. Learned counsel for the respondent, insurance company has, however, contended that the liability of the insurance company was limited and even if the compensation is enhanced, this Court should hold that the insurance company is not liable to pay more than Rs.1,50,000/- in terms of the policy of the insurance. It is also the contention of learned counsel for the respondent that the Tribunal has taken the income of the deceased at Rs.1500/- per month without their being any material before him.

6. I have carefully considered the arguments advanced by learned counsel for the parties and have also perused the material before the Trial Court and I am unable to agree with learned counsel for the respondent that the liability of the insurance company should be held to be limited. No evidence whatsoever was produced before the Tribunal by the insurance company to prove that it had not charged extra premium from the insured so as to cover more liability in respect of an accident. To prove that the liability of the insurance company was limited, it was incumbent upon the insurance company not only to prove the policy but also to prove that extra premium was not charged. Even if the liability of the insurance company under the statute is limited, nothing prevents the insurance company to cover the extra risk by charging more premium. As neither the policy of the insurance has been proved nor any witness has been produced to show that extra premium was not charged from the insured, I am unable to hold that the liability of the insurance company was limited. I am also not in agreement with learned counsel for the respondent that the income of the deceased has been taken on a higher side. Firstly no appeal or cross objections have been applied by the respondents including the insurance company to challenge the award of the Tribunal and secondly no witness was produced before the Tribunal to show as to what should have been the income of the deceased. The Tribunal having come to a finding that on the basis of the material before him that the income of the deceased could be taken at Rs.1500/- per month, I do not find any infirmity or illegality in the said finding which may call for interference with the same.

7. The Tribunal has admittedly not taken into consideration the future prospects in the life and career of the deceased. The rise in inflation and the rising cost of living, in my opinion, ought to have been taken into consideration by the Tribunal to decide the loss of dependency to the family of the deceased. Applying the principles laid down by the Supreme Court in Sarla Dixit Versus Balwant Yadav and others, 1996 ACJ 581, this Court will not be in error in taking the average income of the deceased at Rs.2250/- per month. Deducting 1/3rd from this towards personal expenses of the deceased, the loss of dependency to the family would come to Rs.1500/- per month or say Rs.18,000/- per year. Though, Second Schedule to the Motor Vehicles Act was inserted in the year 1994, and the accident had taken place in 1992, however, this Court can still take guidance from the said schedule to find out as to what should be the correct multiplier to be applied in this case. The deceased was aged 45 years at the time of the death and in terms of the Second Schedule the correct multiplier in such cases is 15.

8. Applying the multiplier of 15 to the loss of dependency of Rs.18,000/- per year the loss of dependency to the family comes to Rs.2,70,000/-. Adding to this the conventional figure of Rs.15,000/- towards non-pecuniary damages like loss of estate, loss of affection and funeral expenses etc., the appellants would be entitled to a total compensation of Rs.2,85,000/-.

9. I, accordingly, allow this appeal and modify the award and direct that the appellants would be entitled to the compensation of Rs.2,85,000/- . The appellants will also be entitled to interest on the enhanced compensation @ 9% per annum from the date of the filing of the application before the Tribunal till payment. In the facts of this case, however, I leave the parties to bear their own costs.