(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal is filed by the Oriental Insurance Company Ltd. original opponent no.3 calling in question the legality of the judgement and award dated 16.11.2005 passed by the Motor Accident Claims Tribunal(Aux.), Rajkot in MACP No.762/2002.
2. Brief facts may be noted at this stage:
2.1 On 26.6.2002, one Babulal Tilala was travelling on his scooter going from Lodhika to Rajkot when a luxury bus insured by the appellant insurance company dashed against the scooter. Scooterist died. His legal heirs and dependants i.e. his widow, four minor children and two parents aged 72 and 68 years respectively therefore, filed above-mentioned claim petition claiming compensation of Rs.30 lakhs from the driver, the owner and the insurer of the luxury bus in question. During the pendency of the claim petition, both the parties died. They were therefore, deleted.
2.2 Before the Claims Tribunal, claimants examined Jashuben widow of deceased at exh.24. Claimants also examined one Arvindbhai Dharamshibhai Kamani, exh.23, who happened to be Secretary of Lodhika Seva Sahkari Mandli Ltd. in which the deceased was also employed. The claimants produced several documents before the Claims Tribunal to show the income of the deceased from such service as also to show that the deceased owned agricultural lands from which he was receiving sizable income.
2.3 The insurance company opposed the claim petition on all counts including the question of negligence and quantum of compensation.
2.4 The Claims Tribunal partly allowed the claim petition. Tribunal interestingly came to the conclusion that it was not necessary to prove the negligence of the driver to enable the tribunal to award compensation to the claimants. Alternatively, the tribunal also examined the evidence on record and held that the accident took place due to sole negligence of the driver of luxury bus. With respect to compensation payable to the claimants, the tribunal believed the income of the deceased at Rs.6000/- per month. Looking to the large number of dependants, the tribunal set apart 1/6th thereof for the expenditure of deceased leaving Rs.5000/- for rest of the claimants. Since the deceased was aged about 46 years on the date of accident, tribunal adopted multiplier of 13 and worked out dependency benefits of Rs.7,80,000/- (Rs.5,000x12x13). To such sum, the tribunal added sum of Rs.1,00,000/- towards conventional figures of loss of estate and loss of consortium to wife. A further sum of Rs.10,000/- was added for funeral expenses. Thus by adding sum of Rs.1,10,000/- to the dependency benefits of Rs.7,80,000/-, tribunal drew award of total compensation of Rs.8,90,000/-.
3. It is this award that the insurance company has challenged before us in the present appeal.
4. Learned counsel Shri V.M. Vyas for Shri Rajni Mehta raised following contentions :
1) That the tribunal erred in observing that question of negligence was not relevant. He submitted that unless the negligence of driver of luxury bus was proved, insurance company cannot be held liable to pay any compensation to the claimants.
2) The tribunal erred in holding that driver of the luxury bus was solely negligent in causing the accident. According to his submission, such a conclusion was contrary to the evidence on record.
3) With respect to computation of compensation, counsel submitted that the tribunal erred in believing the income of the deceased at Rs.6000/- which was not borne out from the record.
4) Counsel also submitted that the tribunal erred in awarding Rs.1,00,000/- towards loss of estate and loss of consortium.
5. On the other hand, learned counsel Shri Kishor Paul opposed the appeal contending that tribunal has awarded just compensation which requires no modification. He submitted that though the tribunal was not justified in awarding Rs.1,00,000/- towards loss of estate and loss of consortium, tribunal having failed to account for future rise of income, in the sum total, award need not be disturbed.
6. Having thus heard learned counsel for the parties, we find that the tribunal was not justified in coming to the conclusion that negligence was not required to be established by the claimants and only what was required to be established was occurrence of accident due to use of motor vehicle. Tribunal in this respect referred to Section 140 of the Motor Vehicles Act, 1988(“the Act” for short). Such reference was misplaced since Section 140 of the Act pertains to liability to pay compensation in certain cases on the principle of no fault. Section 140 falls in Chapter-X which itself is for “Liability without fault in certain cases”. It is well known that Section 140 of the Act pertains to no fault liability. On the other hand claim petitions under Section 166 would be based on fault liability to be established before the Claims Tribunal. It is by now well settled that even claim petition under Section 163A are based on fault liability. The Apex Court in a recent decision in case of National Insurance Company Limited v. Sinitha and others reported in (2012) 2 Supreme Court Cases 356 while explaining earlier decision in case of Oriental Insurance Co. Ltd v. Hansrajbhai V.Kodala and others observed that decision in case of Hansrajbhai V.Kodala and others(supra) does not lay down that claim petition under section 163A of the Act is based on no fault liability. Further counsel for the appellant was correct in pointing out that in case of Oriental Insurance Co. Ltd v. Meena Variyal & ors. reported in AIR 2007 Supreme Court 1609, the Apex Court made certain observations which would be relevant for our purpose. In para.9 of the said decision, the Apex Court observed that it is true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim petition. However, that does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. It was observed that ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company.
7. We therefore, disapprove the observations of the learned Judge that it was not necessary to ascertain the negligence of driver of luxury bus in order to enable the tribunal to award compensation to the claimants in a claim petition filed under Section 166 of the Act.
8. Having said so, we recall that the tribunal also examined whether the driver of the luxury bus was negligent. The tribunal relied on panchnama of the scene of the incident as well as the statement of the cleaner to come to the conclusion that it was the sole negligence of the luxury bus driver which caused the accident. From the record it emerges that one Narsibhai Shamjibhai, president of Cooperative society in which the deceased was employed lodged a complaint before the police on 26.6.2002 regarding the accidental death of the deceased. He ofcourse was not an eyewitness. During the course of investigation, panchnama of scene of incident was drawn which was produced on record. Statements of witnesses including that of cleaner of bus were recorded. Cleaner's statement also was produced before the Court at exh.18.
9. In his statement, cleaner had stated that on 26.6.2002, in the afternoon the bus had come from Bhavnagar and after reaching Rajkot had proceeded towards Jamnagar. On Rajkot-Kalavad road, the bus crossed the bridge of river Nyari where another road joins the highway from where one Bajaj scooter came towards the luxury bus whereupon the driver of the luxury bus blew horn and took the bus on the wrong side of the road and had gone off the road when the scooter dashed against the luxury bus.
10. In the panchnama of the scene of incident, it is recorded that the scooter had crashed under the right front wheel of the bus. Upon reading of the statement of the cleaner of the bus and the panchnama, it emerges that the scooterist had already entered the highway. He was coming towards the bus. The cleaner in fact stated that the scooter was coming from opposite direction towards the bus which means that the scooterist had already reached his correct side on the highway. He also stated that the bus driver took the bus to the wrong side and in fact went off the road at which point of time, accident occurred.
11. We are unable to agree with the counsel for the appellant that part of negligence should be attributed to the scooterist. Nothing has come on record to suggest that luxury bus driver tried to apply brake. In fact cleaner of the bus himself stated that the driver had swerved the bus to the wrong side and in fact had gone off the road. If that be so, we fail to see how the scooterist can be attributed any negligence in causing the accident. Even if he was coming from the by-lane to enter the highway, it emerges from the record that he had already entered the highway, had taken a right turn and was coming from opposite direction of the luxury bus. It is not a case where he was still entering the highway, when the incident took place. The luxury bus had no reason at all to go on the wrong side to such an extent that the bus would go off the road. Most importantly the defendants did not examine any witness. Driver of the bus was also not examined. He, under the circumstances be the best person to throw light on the manner in which the accident took place. We have no hesitation in confirming the view of the learned Judge in this regard.
12. This brings us to question of compensation payable to the claimants. The claimants examined the secretary of the society in which the deceased was working. The witness in his deposition at exh.23 stated that in the year 1998- 1999 till the month of July deceased was drawing salary of Rs.3500/- per month which was with effect from August 1998 increased to Rs.4000/- per month. In the year 1998-1999, deceased was paid total salary of Rs.46,000/-. The society had also paid incentive bonus to all the employees, had also paid travelling allowance and 10% by way of provident fund was deposited in the account of the employee. Deceased had thus received a total emolument of Rs.78,100/- in the said year. Similarly, in the year 1999-2000 his pay was increased to Rs.6000/- with effect from January 2000. In that year he drew a total salary of Rs.54,000/-, bonus of Rs.24,000/-, travel allowance of Rs.11,500/- and Rs.5400/- was deposited in the provident fund account. He thus received a total emolument of Rs.94,800/- in the said year. In the year 2000-2001 his monthly salary was Rs.6000/-. He was paid total salary of Rs.72,000/- in the said year. He was paid Rs.24,000/- towards bonus, Rs.12,800/-towards travelling allowance and Rs.7200/- was deposited in his provident fund account. He thus received a total emolument of Rs.1,16,000/- in the said year. Similarly, in the year 2001-2002, his salary for first three months was Rs.6000/- which was later on increased to Rs.7500/-. He was paid total salary of Rs.85,500/-. Rs.30,000/- was paid towards bonus and Rs.8550/- was deposited in his provident fund account. He thus received a total of Rs.1,37,250/-.
13. In the cross examination such statements were not seriously disputed. All that was asked to the witness was that bonus would be paid only if the society earned profit to which the witness agreed. The claimants had also produced a certificate dated 20.7.2002 issued by the secretary of the said society showing all the above payment details in a tabular form.
14. The claimants also examined widow of the deceased at exh.24. In addition to salary, she stated, that deceased was earning sizable income through agricultural operations on the agricultural land that deceased held. She also produced several documents such as land record of the agricultural land and orders and resolutions passed by the Cooperative society with respect to service of the deceased. For example at exh.30 she produced resolution dated 24.6.2001 by which the society had passed resolution to increase the salary of the deceased from Rs.6000/ to Rs.7500/. At exh.31 she produced resolution dated 24.6.1999 of the society deciding to pay bonus to the employees. Similar resolution for payment of bonus in the year 19992000 was produced at exh.33. She also produced documentary proof of society having paid bonuses to the deceased from time to time.
15. From the above it can be seen that undisputedly the deceased was employed as a secretary in the Cooperative society drawing regular salary. His monthly salary went up from Rs.3500/- in the year 1998 to Rs.7500/- in the year 2002. With respect to such assertions of the claimants, we have no hesitation in accepting the same since the same were supported by reliable oral as well as documentary evidence on record. Not only did the current secretary of the society appeared before the tribunal and gave detailed account of such payments, he also produced certificate to this effect. Wife of the deceased also produced several documents in form of resolutions, receipts, etc. indicating that salary of deceased was increased lastly from Rs.6500/- to Rs.7500/- per month and that like several other employees of the society he was being paid bonuses, travelling allowance etc. There is no serious dispute that society as an organisation was covered under provident fund scheme and that 10% of the basic salary was being contributed by the employer directly in the Provident Fund Account of the employees including the deceased.
16. Tribunal thus in believing Rs.6000/ per month as the salary of the deceased in our view committed no error whatsoever. Even therefore, completely ignoring the alleged agricultural income of the deceased, claimants had established before the Claims Tribunal that the deceased was drawing salary in excess of Rs.6000/ per month even ignoring additional sums such as bonus, provident fund contribution by employer and other sundry perquisites.
17. In fact in our view the tribunal erred in completely ignoring the increase in salary. Firstly, as established by the claimants on record, salary of the employees of the society was being revised from time to time. In case of deceased himself, salary went up from Rs.3500/- to Rs.7500/- per month in a span of about five years or so. Secondly, deceased was aged about 46 years on the date of accident. As per the decision of Apex Court in case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121, 30% increase in salary for future income could easily have been considered. Therefore, even if we accept the contention of the counsel for the appellant that as much as 1/4th of the income should be set apart for the deceased despite there being large number of dependants, it would emerge that basic sum of Rs.6000/- per month of income considering the future rise of 30% would come to Rs.7800/- per month and setting apart 1/4th thereof would leave a sum of Rs.5800/- (rounded off) for the claimants as against Rs.5000/- believed by the tribunal. With respect to multiplier, no serious quarrel was raised before us. These figures would be relevant in context of our later conclusion with respect to the amount awarded by the tribunal under the head of loss of estate and loss of consortium.
18. At this stage, we would advert to such issues. We have noticed that the tribunal awarded a combined sum of Rs. 1,00,000/ for loss of estate of the deceased and loss of consortium to the wife and sum of Rs.10,000/ for funeral expenses. We are of the opinion, learned Judge erred in awarding such sums.
19. In case of New India Assurance Co. Ltd. v. Takhuben Raghabhai and others reported in 2008 ACJ 989, Division Bench of this Court in somewhat similar situation by a detailed judgement, reduced such conventional figure of Rs.25000/- and Rs.15,000/- respectively. We find that even funeral expenses considering the date of accident could be reduced to Rs.5000/-. In all therefore, the claimants could have been awarded sum of Rs.45,000/- against Rs.1,10,000/- by the tribunal. There is thus now scope for reduction under this head by Rs.65,000/-. However, in earlier portion of the judgement, we have reached to the conclusion that tribunal ought to have taken future increase in income on the basis of established facts.
20. The tribunal having failed to do so, in our view, shortfall resulting from such error would more than offset the higher amount towards loss of estate and consortium granted by the tribunal.
21. In the result, appeal fails and is dismissed.
R & P be transmitted to the trial Court.
(Akil Kureshi,J.) (C.L. Soni,J.) (raghu)