Santdeen Pahadi Vs Jugnath Yadav

Poonam Pahadi D/o Santdeen Pahadi Aged About 30 Years All are Resident of Mela Ground Katghora, Tahsil Katghora, District Korba, Chhattisgarh, District : Korba, Chhattisgarh

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--- Appellants/ Claimants

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versus

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Jugnath Yadav S/o Bajrang Yadav Aged About 35 Years R/o Karampur Mazhapara, Police Station Visrampur, District Sarguja, Chhattisgarh ( Driver Of Offending Vehicle Tanker Bearing Registration No. C.G. 15/ AC-3591)

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Smt. Manju Singh W/o Vinod Kumar Singh Aged About 35 Years Resident Of Inderpur Aoodegi, Thana- Aoodegi, District Surajpur Chhattisgarh ( Owner Of Offending Vehicle Tanker Bearing Registration No. C.G. 15 AC 3591)

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Branch Manager The Oriental Insurance Company Limited Ambikapur, District- Surajpur Chhattisgarh ( Insurer Of Offending Vehicle Tanker Bearing Registration No. C.G. 15 AC 3591)

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--- Respondents

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For Appellants : Mr. Harshmander Rastogi, Advocate PAWAN For Respondent No. 3 : Mr. Abhishek Vinod Deshmukh, Advocate KUMAR For Respondents No.1 & 2 : None appeared, though served. JHA Digitally signed by Hon'ble Shri Justice Parth Prateem Sahu PAWAN KUMAR JHA

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C.A.V Order

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Appellants-claimants have filed this appeal under the provisions of Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) questioning the legality and sustainability of the award dated 20.08.2019 passed by Learned Additional Tribunal to the Upper Motor Accident Claims Tribunal, Katghora,

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District Korba, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 60/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act of 1988 in part, awarded total sum of ₹ 50,000/- as compensation to the appellants-claimants along with interest @ 9% p.a. and fastened the liability to satisfy the amount of compensation upon Respondent No. 3/ Insurance Company.

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Facts of the case relevant for disposal of this appeal are that on 04.12.2017 at about 05:00 pm when Ravindra Pahadi was travelling on a motor cycle and returning from Bilaspur to his house at Katghora, on the way one tanker bearing registration No. CG15AC3591 (for short “offending vehicle”) driven by Respondent No. 1/ Non-applicant No. 1 rashly and negligently dashed the motorcycle of Ravindra Pahadi and caused accident. In the accident Ravindra Pahadi suffered grievous injuries over his head, face and other parts of the body and succumbed to the motor accidental injuries suffered by him.

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Appellants claimants who are father, mother and siblings of the deceased, filed an application under Section 166 of the Act of 1988 seeking ₹ 41,22,000/- as compensation pleading therein that on the date of accident deceased was about 29 years of age able bodied person, he was working as Fireman at D.B. Power Limited and was earning ₹ 12,000/- per month.

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Non-applicants No. 1 & 2/ Respondents No. 1 & 2 -Driver and the owner of the offending vehicle submitted reply to the claim application, denying all the adverse pleadings made therein, have further stated that the accident was not caused by non-applicant No. 1 driver and further that forged and fabricated report is lodged in the police station against offending vehicle and its driver. Offending vehicle was insured by non-applicant No. 3 and the liability, if any, to satisfy the amount of compensation would be upon non-applicant No. 3/ Insurance Company.

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Non-applicant No.3-Insurance Company has also submitted its reply denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident non-applicant No. 1 driver of offending vehicle was not possessing valid and effective driving licence, as such, there was breach of conditions of insurance policy. There was contributory negligence on the part of deceased.

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Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties has formulated as many as four issues for consideration and recorded a finding that deceased Ravindra Pahadi died on account of injuries suffered by him in a motor vehicle accident caused by offending vehicle due to rash and negligent driving by nonapplicant No. 1. Breach of conditions of insurance policy was not found to be proved. Claimants were not dependent upon the income of deceased and awarded a sum of ₹ 50,000/- as compensation on other conventional heads.

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Learned counsel for appellants-claimants would submit that learned Claims Tribunal erred in recording a finding that the appellants/ claimants were not dependent upon the deceased overlooking the fact that the deceased was son of appellants No. 1 & 2 and brother of appellants No. 3 & 4. Learned Tribunal has not awarded any amount of compensation towards mental pain and agony and irreparable loss suffered by appellants No. 1 & 2. The award of ₹ 50,000/- only on other conventional heads is on lower side, hence, in the facts of the case the amount of compensation be suitably enhanced. He would submit that the award of interest is also on lower side. Claims Tribunal awarded 9% interest instead of 12% as prayed by claimants in their application.

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Learned counsel for Respondent No. 3/Insurance Company vehemently opposes the submission of learned counsel for appellants and would further submit that learned Claims Tribunal has rightly considered the pleadings and

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the evidence available on record and came to the conclusion that the father/ appellant No. 1 is a retired Government servant from Police Department, getting pension and the mother/ appellant No. 2 is a Government servant engaged as Teacher in the Government school. Both of them are getting handsome pension and salary and therefore they cannot be said to be dependent upon the income of deceased. Claims Tribunal has rightly rejected the claim towards the loss of dependency, however, the amount of compensation awarded under the other conventional heads is just and proper which does not call for any interference.

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I have heard learned counsel for the respective parties and also perused the record of claim case.

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Perusal of pleadings made in the application under Section 166 of the Act of 1988 would show that the claimants have also made a claim under Section 140 of the Act of 1988 also. Claimants are father, mother, brother and sister of the deceased. Claimants in support of their claim have examined AW-1, mother of deceased, AW-2, Naresh Dewangan and AW-3, Sanjay Kumar Singh. AW-1, mother of deceased in her evidence admitted that she is working as Teacher and posted at Primary Government School, Pandripali, her salary is Rs. 60,000/- per month. It is also stated that her husband who was not residing with them since long is a retired Government officer from the Police Department and he is getting pension. She stated that her deceased son was unmarried.

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AW-2, Naresh Dewangan, witness to the accident, has stated that the accident occurred due to rash and negligent driving by the driver of the offending vehicle. After the accident, deceased was taken to hospital where doctor declared him to be dead. This witness also lodged a report in the concerned police station.

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AW-3, Sanjay Kumar Singh, a proprietor of the Shiv Shakti Associate, Champa, where the deceased was stated to be working. In his evidence inchief he stated that he was being paid ₹ 12,000/- per month and ₹ 2,000/- as expenses. Claimants have also placed on record the certificate Ext. P-10(C) issued by the D.B. Power Limited with regard to engagement of the deceased.

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Mr. Ajit Kumar Maharaj, officer of Oriental Insurance Company, was examined as NAW-1. Mr. Pawan Sahu, Assistant Grade-3 at RTO, Ambikapur was examined as NAW-2.

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Learned Claims Tribunal upon appreciation of pleadings and evidence brought on record by the respective parties came to the conclusion that as the appellant No. 1 is a retired Government servant, who is getting pension and appellant No. 2 is a Government teacher who is getting monthly salary of ₹ 60,000/- and appellants No. 3 & 4 are children of appellants No. 1 & 2, hence, the appellants-claimants have not suffered loss of dependency and therefore rejected the claim of appellants-claimants to the extent of awarding compensation on the head of loss of dependency/ loss of income, however, awarded ₹ 15,000/- towards funeral expenses, ₹ 15,000/- towards loss of estate, ₹ 20,000/- towards loss of love and affection and mental pain and agony, making total sum of compensation of ₹ 50,000/-. The accident, nature of injuries resulting in death of late Ravindra Pahadi due to motor vehicle accident caused by offending vehicle has been found to be proved by the Tribunal. The said finding is not challenged by non-applicants. The appeal is filed by the appellants-claimants seeking enhancement of compensation awarded by the Claims Tribunal.

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In the aforementioned facts, the question arises for consideration of this Court is whether the claimants who are mother, working in the Government school being a Government Teacher, the father, retired Government servant

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getting pension and the siblings of the deceased are entitled for more amount of compensation than what is awarded by the Tribunal?

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The application seeking compensation is filed under Section 166 of the Act of 1988. In the body of application, claimants have also made a claim under Section 140 of the Act of 1988. Section 166 deals with the ‘Application for

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Compensation’ which is extracted below for ready reference.

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“ 166 . Application for Compensation: (1) An application for compensation arising out of an accident of the nature specified in sub-section ( 1 ) of section 165 may be made--

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(a) by the person who has sustained the injury; or

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(b) by the owner of the property; or

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(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

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(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

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Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

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1[Provided further that where a person accepts compensation under section 164 in accordance with the procedure provided under section 149, his claims petition before the Claims Tribunal shall lapse.]

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2[(2) Every application under sub-section ( 1 ) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

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3* * * * *.]

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4[(3) No application for compensation shall be entertained unless it is made within six months of the occurrence of the accident.]

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5[(4) The Claims Tribunal shall treat any report of accidents forwarded to it under⁶ [section 159] as an application for compensation under this Act.]

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7[(5) Notwithstanding anything in this Act or any other law for the time being in force, the right of a person to claim compensation for injury in an accident shall, upon the death of the person injured, survive to his legal representatives, irrespective of whether the cause of death is relatable to or had any nexus with the injury or not.]

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Sub-section 1 of Section 166 envisages a person who can file an application seeking compensation in case of death of a person in a motor vehicle accident. It is not in dispute that the appellants-claimants are the legal representatives of the deceased as envisaged under Section 166(1)(c).

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Section 140 of the Act of 1988 talks of liability to pay compensation in certain cases on the principle of no fault.

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The object of the Act of 1988 is to award just and fair compensation, it should not be bonanza. Under this Act, any person who suffers due to death of a person in the motor vehicle accident is entitled to seek compensation. The Act of 1988 is a beneficial piece of legislation enacted for providing monetary relief to the victim or their families who suffered in motor accident.

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Section 168 of the Act of 1988 deals with the concept of “just compensation” which has to be determined on the foundation of fairness, reasonableness and equability.

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It is not in dispute that the mother of deceased is a Government servant earning monthly salary of ₹ 60,000/- odd and appellant No. 1-father is a pensioner being retired Government servant from Police Department, they are having their own separate income. It is not a case of appellants No. 1 & 2 that they were dependent upon the income of deceased. Hence, in the

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opinion of this Court, learned Tribunal has not erred in rejecting the claim of appellants towards loss of dependency. In the facts of the case ie., fatal accident case where the parents of the deceased has filed an application, it is for the Tribunal to award just compensation to the old aged father and mother of the deceased being sufferer because of death of his grown up major son. Though at present either father and the mother cannot be said to be dependent on deceased, however, they would become dependent upon the deceased in their later part of life due to their old age. The dependency of the old aged parents upon the children may not be financially only, but, the they may be dependent socially, physically and emotionally. Due to old age, life of old aged parents cuts off from the society outside their house and restricted only with the persons relatives residing inside the house. Therefore, they also suffered loss of companionship on account of death of their son. In the old age, parents become dependent upon their children for other things like for food, medical checkups, taking care of them etc.

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Hon’ble Supreme Court in the case of Smt. Manjuri Bera vs. Oriental Insurance Company Ltd. reported in (2007) 10 SCC 643 while considering the application filed by the married daughter of the deceased has observed that the liability under Section 140 of the Act does not cease because there was absence of dependency and held thus:

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“ 1 3 . There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings.

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As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency.

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14 . Section 165 of the Act also throws some light on the controversy. The Explanation includes the liability under Sections 140 and 163-A.

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15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned amicus curiae.”

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In the same judgment, Hon’ble Mr. S.H. Kapadia, J. as he then was, concurrenting with the view taken by Hon’ble Justice Dr. Arijit Pasayat, as he then was, has observed thus:

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“ 20. In my opinion, “no-fault liability”, envisaged in Section 140 of the said Act, is distinguishable from the rule of “strict liability”. In the former, the compensation amount is fixed. It is Rs 50,000 in cases of death [Section 140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallised amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under “no-fault liability” in terms of Section 140 of the said Act. My opinion is confined only to the “no-fault liability” under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988.”

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In the aforementioned decision, the accident was dated 11.05.1998 and in that facts of the case Hon’ble Supreme Court considering the provisions under Section 140 further observed that the amount of compensation to be awarded under Section 140, the statutory compensation could constitute part of his estate and therefore held to be entitled for compensation in “no-fault liability” under Section 140 which should be not less than ₹ 50,000/-.

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Hon’ble Supreme Court considering that the schedule appended to the Motor Vehicles Act is of the year 1994 and due to lapse of time, rise in price index, economy and also considering other aspects has held that the schedule appended to the Act of 1988 requires amendment and considering that just compensation is to be awarded under the benevolent legislation of the Act of 1988 during the needs of price index and the economy of the country at enhanced income, the amount fixed for funeral expenses, loss of estate etc.

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Hon’ble Supreme Court in the decision of Meena Devi vs. Nunu Chand Mahto reported in (2023) 1 SCC 204 has observed that the objective of granting compensation under the Act of 1988 is to ensure that just and fair compensation is paid to the aggrieved party.

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In the case of Sarla Verma v. DTC , reported in (2009) 6 SCC 121 Hon’ble Apex court has held in para-16 as under:

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“ 16. ...Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.”

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In the case at hand, claimants No. 1 & 2 are the aged parents of the deceased, one is father aged about 64 years who is a retired Government servant and another is mother aged about 59 years is a Government Teacher

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on the date of accident. They have lost their major earning son in a motor accident. Under the Indian culture and society it is the duty of the son to take care of his parents during their old age as their guardian. Though at present the parents one of whom is receiving pension and another is salary will not be dependent financially upon the deceased son, however, they will become dependent upon his son for their care, companion at later stage of their life when they will become infirm due to their old age. Hence, in the opinion of this Court, the compensation is to be awarded considering the aforementioned aspect of ground reality of life of a person. The amount of compensation towards no-fault liability is fixed under the statute in the year 1994. Considering the object of the Act of 1988 to award just compensation to the person who had suffered loss. Death of major grown up child in front of his/her parents cannot be compensated in terms of money, however, the parents considering the entirety of facts and circumstances of the case can be awarded reasonable sum towards loss of life of their children. In the facts of the case, I find it appropriate to award ₹ 2,00,000/- towards loss of estate, ₹ 40,000/- each towards loss of consortium as held by Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130, ₹ 15,000/towards funeral expenses. The accident is of 04.12.2017, award is dated 20.08.2019. According to the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in ( 2017) 16 SCC 680 has held that the reasonable figures under the conventional heads like loss of consortium, loss of estate and funeral expenses should be subject to enhancement of 10% every three years. Hence, the compensation under the heads of consortium, loss of estate and funeral expenses has to be increased @ 10%, which accordingly comes to ₹ 44,000/- & ₹ 16,500/-.

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Now the appellants shall be entitled for total sum of compensation of ₹ 3,04,500/- [ ₹ 2,00,000 + ₹ 44,000 + ₹ 44,000 + ₹16,500] instead of ₹ 50,000/- as awarded by learned Claims Tribunal. And appellants No. 3 & 4/ claimants No. 3 & 4 (brother and the sister of the deceased) are held to be not entitled for amount of compensation. Aforesaid amount of compensation shall carry interest @ 9% p.a. from the date of filing of claim application till its realization. Other conditions of the impugned award shall remain intact. Any amount paid pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above.

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In the result, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above.

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Sd/(Parth Prateem Sahu) Judge

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pwn

Santdeen Pahadi v. Jugnath Yadav

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Santdeen Pahadi v. Jugnath Yadav

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