Madhya Pradesh High Court
The Oriental Insurance Co. Ltd. Mandal ... vs Smt. Dalibai on 4 March, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4th OF MARCH, 2024
MISC. APPEAL No. 2939 of 2021
BETWEEN:-
THE ORIENTAL INSURANCE CO. LTD. MANDAL
OFFICE THRU. REGIONAL OFFICE MANDAL OFFICE
MIG-1, M.R.2, RISHI NAGAR, UJJAIN (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ABHAY CHAND JAIN - ADVOCATE)
AND
1. SMT. DALIBAI W/O VISHNUPRASAD, AGED
ABOUT 41 YEARS, GRAM LIMA CHOUHAN, TEH.
SARANGPUR (MADHYA PRADESH)
2. RAMSUDHA S/O VISHUNUPRASAD, AGED ABOUT
23 YEARS, GRAM LIMA CHOUHAN TEHSIL
SARANGPUR DIST RAJGARH (MADHYA
PRADESH)
3. ISHWAR S/O VISHNUPRASAD, AGED ABOUT 19
YEARS, GRAM LIMA CHOUHAN, TEH.
SARANGPUR (MADHYA PRADESH)
4. KU. BABITA MINOR THR NATURAL GUARDIAN
AND NEXT FRIEND MOTHER SMT. DALIBAI W/O
VISHNUPRASAD, AGED ABOUT 41 YEARS, GRAM
LIMA CHOUHAN, TEH. SARANGPUR (MADHYA
PRADESH)
5. RADHESHYAM MINOR THR NATURAL
GUARDIAN AND NEXT FRIEND MOTHER SMT.
DALIBAI W/O VISHNUPRASAD, AGED ABOUT 41
YEARS, GRAM LIMA CHOUHAN, TEH.
SARANGPUR (MADHYA PRADESH)
6. SMT. MANUBAI W/O GANGARAM, AGED ABOUT
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 11-03-2024
13:24:22
2
70 YEARS, GRAM LIMA CHOUHAN TEHSIL
SARANGPUR DIST RAJGARH (MADHYA
PRADESH)
7. GANGARAM S/O NANDRAM, AGED ABOUT 68
YEARS, GRAM LIMA CHOUHAN, TEH.
SARANGPUR (MADHYA PRADESH)
8. MUKHTIYAR S/O MEHMOOD AHMED, AGED
ABOUT 35 YEARS, OCCUPATION: DRIVER GRAM
KACCHI KHEDI, TEHSIL JIRAPUR DIST
RAJGARH (MADHYA PRADESH)
9. MOHAMMAD FARHAN S/O MOHAMMAD ANWAR
KHAN, AGED ABOUT 34 YEARS, OCCUPATION:
TRANSPORT 86, VISHWAVIDHYALAYA MARG,
FREEGANJ UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ABHISHEK GILKE - ADVOCATE FOR RESPONDENTS NO.1 TO 7)
---------------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, the court passed the
following:
ORDER
This appeal has been filed by the appellant - Insurance Company under
Section 173(1) of Motor Vehicles Act, 1988, against the award dated
17.08.2021 passed by Vth Additional Member, MACT Ujjain in Claim Case
No.19/2021for reduction of the amount of compensation.
2. The date of accident, negligence and the issue of liability are not in
dispute and the findings recorded by the Tribunal in this regard are also not in
question. As per the findings of the Tribunal, in case of death of Vishnu
Prasad, the Tribunal has awarded a total compensation of Rs.32,01,400/- along
with interest.
3. Learned counsel for the Insurance Company contended that the Tribunal
has committed error in holding the income of the deceased as Rs.18,000/- per
month without there being any cogent and positive evidence. He further
submitted that the Tribunal has committed error in adding 30% as future
prospects contrary to the judgment of the Apex Court in the case of National
Insurance Co.Ltd.Vs.Pranay Sethiand others (2017) 16 SCC 680 which
ought to have been 25%. The assessment is highly excessive and cannot be
considered as just and proper and prays for reduction of the amount of
compensation.
4. On the other hand learned counsel for the respondent/claimants filed
cross objection under Order 41 Rule 22 read with Section 151 of CPC fo
enhancement of compensation and submitted that the Tribunal has committed
error in awarding amount of compensation on the lower side as the
claimant/respondents no.1 to 7 are wife, children and aged parents of the
deceased and they are entitled to get parental filial consortium. It is also
submitted that there are seven dependants of the deceased and the Tribunal has
committed error in deducting 1/4th for the personal expenses. So when member
of dependants are more than 7 then 1/7th should be deducted and prays for
rejection of the appeal.
5. I have heard the learned counsel for the parties and perused the record.
6. Learned counsel for the Insurance Company submitted that the Tribunal
has committed error in assessing the income of the deceased as Rs.18,000/- per
month. He submitted that according to the pay slip Ex.P-14, Ex.P-15 and Ex.
P-16, the deceased got conveyance allowance of Rs.1250/- and mobile
allowance of Rs.250/- which should not have been added in the income of the
deceased. In the case of National Insurance Company Vs. Indira Srivastava
2008 ACJ 614 the Apex Court held that allowances like travelling allowance
(conveyance allowance) allowance for newspaper/periodicals, telephone,
servant, club fee, car maintenance etc. by virtue of vocation need not be
included in the salary while computing the net earnings of the deceased.
7. So considering the aforesaid judgment, the Tribunal has committed error
in assessing the income of the deceased as Rs.18,000/- per month which is not
sustainable in law. Hence, conveyance allowance and mobile allowance must
be deducted from the salary. In the considered opinion of this Court net salary
of the deceased was Rs.18,000/- and after deducting Rs.1,500/-, the salary
comes to Rs.16,500/-. The finding of the Tribunal in this regard is modified
and net salary of the deceased should be taken as Rs.16,500/-.
8. Learned counsel for the appellant also submits that the Tribunal has also
committed error in adding future prospect as 30%, whereas it should be 25% as
per the judgment of the Apex Court in the case of Pranay Sethi (Supra).
9. In the case of Pranay Sethi (Supra)the Apex Court held that when the
deceased has permanent job then 30% future prospect must be added in the age
group of 42-50 years. So, the finding of the Tribunal in this regard is just and
proper and this Court is of the considered opinion that no interference is called
for in this regard.
10. Learned counsel for the appellant submitted that respondents no.2 and 4
got married during the pendency of the claim petition before the Tribunal so
they are not dependent upon the deceased.
11. On the other hand, learned counsel for the respondents/claimants
submits that respondents no.2 and 4 are daughter of the deceased and in the
case of Kirti and another etc Vs. Oriental Insurance Company Limited
reported in (2021) 2 SCC 166 the Apex Court held that :-
10. We have thoughtfully considered the rival submissions. It cannot
be disputed that at the time of death, there in fact were four
dependents of the deceased and not three. The subsequent death of
the deceased's dependent mother ought not to be a reason for
reduction of motoraccident compensation. Claims and legal
liabilities crystallise at the time of the accident itself, and changes
post thereto ought not to ordinarily affect pending proceedings. Just
like how appellant-claimants cannot rely upon subsequent increases
inminimum wages, the respondent-insurer too cannot seek benefit
ofthe subsequent death of a dependent during the pendency of
legalproceedings. Similarly, any concession in law made in this
regard byeither counsel would not bind the parties, as it is legally
settled thatadvocates cannot throw-away legal rights or enter into
arrangements contrary to law.
12. In view of the aforesaid judgment, in the present case, it cannot be
disputed that at the time of death of the deceased, there in fact were seven
dependants of the deceased. The subsequent marriage of the daughter of the
deceased ought not to be a reason for reduction of the motor accident
compensation.
13. Learned counsel for the appellant-Insurance Company relied on the
judgment of the Apex Court in the case of Amrit Bhanu Shali and others Vs.
National Insurance Company Limited and others 2012 ACJ 2002 and
Manjuri Bera Vs. Oriental Insurance Company Limited and another 2007
ACJ 1279.
14. The above two judgments are Division Bench verdict and the judgment
in the case of Kirti and another (Supra) is a three Judges Bench verdict.
15. In the case of National Insurance Company Ltd. vs. Birender and
Others reported in 2020 (11) SCC 356 , Hon'ble Apex Court has held that
"even major married and earning sons of deceased being legal representatives
have a right to apply for compensation and it would be bounden duty of
Tribunal to consider application irrespective of whether they were fully
dependent on deceased or not, in accordance with law". Para numbers 12 and
14 are reproduced as below:-
"12. The legal representatives of the deceased could move application for
compensation by virtue of clause (c) of Section 166(1). The major married
son who is also earning and not fully dependent on the deceased, would be
still covered by the expression "legal representative" of the deceased. This
Court in Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd.,
(2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] had expounded that liability
to pay compensation under the Act does not cease because of absence of
dependency of the legal representative concerned. Notably, the expression
"legal representative" has not been defined in the Act. In Manjuri Bera
[Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008)
1 SCC (Cri) 585] , the Court observed thus: (SCC pp. 647-48, paras 9- 12)
"9. In terms of clause (c) of sub-section (1) of Section 166 of
the Act in case of death, all or any of the legal representatives
of the deceased become entitled to compensation and any such
legal representative can file a claim petition. The proviso to
said sub-section makes the position clear that where all the
legal representatives had not joined, then application can be
made on behalf of the legal representatives of the deceased by
impleading those legal representatives as respondents.
Therefore, the High Court was justified in its view [Manjuri
Bera v. Oriental Insurance Co. Ltd., 2003 SCC OnLine Cal
523 : (2004) 2 CHN 370] that the appellant could maintain a
claim petition in terms of Section 166 of the Act.
10. ... The Tribunal has a duty to make an award, determine
the amount of compensation which is just and proper and
specify the person or persons to whom such compensation
would be paid. The latter part relates to the entitlement of
compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a deceased
person, and includes any person who intermeddles with the
estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or sued. Almost in
similar terms is the definition of legal representative under the
Arbitration and Conciliation Act, 1996 i.e. under Section
2(1)(g).
12. As observed by this Court in Custodian of Branches of
Banco National Ultramarino v. Nalini Bai Naique [Custodian
of Branches of Banco National Ultramarino v. Nalini Bai
Naique, 1989 Supp (2) SCC 275] the definition contained in
Section 2(11) CPC is inclusive in character and its scope is
wide, it is not confined to legal heirs only. Instead it stipulates
that a person who may or may not be legal heir competent to
inherit the property of the deceased can represent the estate of
the deceased person. It includes heirs as well as persons who
represent the estate even without title either as executors or
administrators in possession of the estate of the deceased. All
such persons would be covered by the expression "legal
representative". As observed in Gujarat SRTC v. Ramanbhai
Prabhatbhai [Gujarat SRTC v. Ramanbhai Prabhatbhai,
(1987) 3 SCC 234 : 1987 SCC (Cri) 482] a legal
representative is one who suffers on account of death of a
person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and child."
14. It is thus settled by now that the legal representatives of
the deceased have a right to apply for compensation. Having
said that, it must necessarily follow that even the major
married and earning sons of the deceased being legal
representatives have a right to apply for compensation and it
would be the bounden duty of the Tribunal to consider the
application irrespective of the fact whether the legal
representative concerned was fully dependent on the deceased
and not to limit the claim towards conventional heads only.
The evidence on record in the present case would suggest that
the claimants were working as agricultural labourers on
contract basis and were earning meagre income between
Rs.1,00,000 and Rs 1,50,000 per annum. In that sense, they
were largely dependent on the earning of their mother and in
fact, were staying with her, who met with an accident at the
young age of 48 years."
16. The same analogy will be applicable in the present case, where claimants
are married daughters."
17. In view of the aforesaid discussions, it is found that Tribunal has
committed error in holding respondents no.2 and 4 are not dependant upon the
deceased. So finding of the Tribunal in this regard must be modified to the
extent that there are seven dependants upon the deceased. In the case of Sarla
Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298 the Apex Court
held that where family members dependent on the deceased exceeded six then
1/5th to be deducted for personal expenses. So Tribunal has committed error in
deducting 1/4th for the personal expenses. The Tribunal has also committed
error in not awarding filial consortium to the respondents no.2 and 4. So
respondents no.2 and 4 are also entitled for consortium.
18. Learned counsel for the Insurance Company submitted that interest in
future prospect must not be awarded as per the judgment in the case of
Oriental Insurance Company Limited Vs. Champabati Ray and others
2020 ACJ 2409.
19. In the aforesaid judgment, the Gauhati High Court has not considered
the verdict of the Apex Court, hence this judgment cited by the Insurance
Company is of no help in giving benefit to the Insurance Company. In view of
the aforesaid discussion, the just and proper amount of compensation is as
follows:-
Income of the deceased Rs.16,500/- p.m + 30% (F.P.) x 12
=Rs.2,57,400/-(less 1/5th)=
Rs.2,05,920/- X 14=Rs.28,82,880/-
Consortium Rs.3,08,000/-
Loss of estate Rs.16,500/-
Funeral expenses Rs.16,500/-
Total Amount Rs.32,23,880/-
Compensation awarded by Tribunal Rs.32,01,400/-
Enhanced amount Rs.22,480/-
20. Accordingly, the instant appeal filed by the Insurance Company is
dismissed. However, the cross-objection filed by the claimants is allowed to
the extent indicated above.
(HIRDESH)
JUDGE
RJ
