Partly allowed

Smt Kamli and Another v. Kailash Chand and Others

Rajasthan HC21 Aug 2023CMA/4041/2016

Case brief

AI extract

What is this about?

The High Court enhanced compensation to Rs.5,00,000 for the death of an 11-year-old minor, applying principles from Kishan Gopal regarding notional income and multiplier. The Court also set aside the Tribunal's direction to recover money from the vehicle owner, directing the insurer to deposit the enhanced amount with interest.

What did the court decide?

Compensation enhanced to Rs.5,00,000 with 8% interest; insurer directed to deposit amount with Tribunal within two months; recovery direction set aside.

Smt Kamli and Another Vs Kailash Chand and Others — Insurance | Rajasthan HC (2023)

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[2023:RJ-JP:19488]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Miscellaneous Appeal No. 4041/2016

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Smt Kamli Devi W/o Shri Babu Lal Swami, aged about 30 years,

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Babu Lal Swami S/o Shri Prabhu Dayal Swami, aged about 32 years,

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Both B/c Swami, R/o Near Bus Stand, Narayanpur Road, Chatarpura, Tehsil Bansoor, District Alwar.

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----Appellants

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Versus

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Kailash Chand S/o Shri Ramavtar Gurjar, B/c Gurjar, R/o Berawali Bagda Padavali Gadhi, Tehsil Thanagazi, District Alwar (Driver & Owner of Vehicle Pickup No.RJ-05-G-4096).

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Umrao Yadav S/o Shri Manguram Yadav, B/c Aheer, R/o Haskola, Tehsil Kotputali, District Jaipur.

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(Insure Owner of Vehicle Pickup No.RJ-05-G-4096).

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Shri Ram General Insurance Company Limited through its Regional Manager, Regional Office at E/8 EPIP, RIICO Industrial Area Sitapura Jaipur.

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(Insurance Company of of Vehicle Pickup No.RJ-05-G-4096).

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----Respondents

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For Appellant(s) : Mr. Shri Ram Joshi For Respondent(s) : Mr. R.S. Bhati

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HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Order

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21/08/2023

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The present civil misc. appeal has been filed by the appellants-claimants under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) against the judgment and award dated 28.04.2016 passed by the Judge, Motor Accident Claims Tribunal, Kotputali, District Jaipur (for short ‘the Tribunal’) in MACT

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Case No.136/2012 whereby an amount of Rs.2,55,000/- has been awarded as compensation to the appellants-claimants.

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The appellants-claimants submitted a claim petition claiming compensation of Rs.39,90,000/-.

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Learned Tribunal after framing the issues, evaluating the evidence available on the record and after hearing the counsel for the parties, decided the claim petition of the claimant-appellant awarding compensation to the tune of Rs.2,55,000/- under various heads in favour of the appellants-claimants. 4. Learned counsel for the appellants submits that the deceased -Kumari Sulochana was a healthy girl of 11 years of age at the time of accident but the learned Tribunal has awarded a meager compensation of Rs.2,55,000/- only. 5. Learned counsel for the appellant submits that the Hon’ble Apex Court in the case of Kishan Gopal & Anr. Vs. Lala & Ors , reported in 2013 ACJ 2594 has awarded compensation of Rs.4,50,000/- plus Rs.50,000/- in the conventional heads thus a total sum of Rs.5,00,000/- in the matter of a child death in road accident. 6. Learned counsel for the appellant, therefore, prays that re-computation of the award in the present case may be done in the light of judgment of the Hon’ble Apex Court in the case of Kishan Gopal (supra).

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Per contra, learned counsel for the respondent Insurance Company submits that the Tribunal while deciding the claim petition of the claimants-appellants has correctly taken into consideration the factors while calculating the award in this case on the basis of evidence produced before it.

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Learned counsel for the respondent further submits that the learned Tribunal after considering the material and evidence available on record has rightly held that the driver of the offending vehicle did not have valid driving license for driving commercial vehicle and thus, reached to a conclusion that Insurance Company shall pay the compensation to the claimants and then recover from the owner of offending vehicle. Thus, the judgment and award dated 28.04.2016 does not call for any interference by this Court.

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I have considered the submissions made by the learned counsel for the parties and gone through the judgment and award dated 28.04.2016 as well as the material available on the record. 10. The Hon'ble Apex Court in the case of Kishan Gopal (supra) has held that in the case of minor, while applying the multiplier of 15, the notional income could be taken as Rs.30,000/- instead of Rs.15,000/- for non- earning member as specified in the Schedule to the aforesaid Act. Relevant para of the aforesaid judgment reads thus :

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“In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the nonearning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed

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substantially to the family of the appellants by working hard. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation[3], the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas[4], which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.”

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Now, applying the abovesaid principles with the case in our hand, in this case also, at the time of accident, the age of the deceased is 11 years. It is true, the deceased, had she been alive, would have very helpful to her parents in their elderly life. Hence, it is appropriate to fix Rs.30,000/- as notional income for this case also.

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Accordingly, the compensation fixed by learned Tribunal is enhanced as follows:

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Loss of Pecuniary : Rs.4,50,000/Conventional Heads : Rs. 50,000/Total : Rs.5,00,000/-

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So far as contention of learned counsel for the respondent – Insurance Company regarding pay and recover is concerned, the learned Tribunal while deciding Issue No.4 has held that driver of the offending vehicle did not possess driving license (DL) to drive the commercial vehicle and simply possess driving license to drive private cars only, therefore, the learned Tribunal has directed the Insurance Company to pay the compensation to the claimants and then to recover the same from the owner of the offending vehicle. In this regard, the Hon’ble Supreme Court in the case of Mukund

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Dewangan Vs. Oriental Insurance Company Ltd. reported in AIR 2017 SC 3668 had held as follows :

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“(i) ‘Light motor vehicle’ as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2 (15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.

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(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.

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(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle” in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy

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goods vehicle in section 10(2)(g) and “heavy passenger motor vehicle” in section 10(2)(h) with expression ‘transport vehicle’ as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.

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(iv) The effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.

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In view of the above, the findings of the learned Tribunal with regard to giving directions to the Insurance Company to pay the compensation to the claimants and recover the same from the owner of the offending vehicle is set aside.

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In view of the discussions aforesaid, the impugned judgment and award dated 28.04.2016 passed by the Tribunal is modified to the aforesaid extent. The claimants-appellants are entitled to get a sum of Rs.5,00,000/- as compensation. Insurance Company is directed to deposit enhanced amount of compensation with the Tribunal within a period of two months from the date of receipt of certified copy of this order. On deposition of the said amount, the same may be disbursed to the appellant. The enhanced amount shall carry 8% interest from the date of filing of claim petition till the actual payment is made.

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