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THE ORIENTAL INS.CO.LTD. v SMT.ASHA HINGER & ORS. - CMA Case No. 1059 of 2006  RD-RJ 1189 (3 March 2007)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
The Oriental Insurance Smt.Asha Hinger & ors.
Company Ltd. Vs.
S.B.CIVIL MISC. APPEAL NO. 1059/2006
Against the award dated 06.12.2005 made by the Motor Accidents Claims
Tribunal [Additional District Judge (Fast
Track) No.5], Udaipur HQ. Salumber in
Claim Case No.394/2005. 7th March 2007
Date of Judgment :
HON'BLE MR.JUSTICE DINESH MAHESHWARI
Mr. Daulat Singh Nimbla for the appellant
Mr. Madan Lal Purohit for the respondents Nos.1 to 5
BY THE COURT:
This appeal has been preferred by the insurer of the vehicle involved in accident against the common award dated 06.12.2005 made by the Motor Accidents Claims Tribunal [Additional District Judge (Fast Track) No.5], Udaipur,
Headquarter Salumber insofar it relates to Claim Case
No.394/2005 whereby the Tribunal has awarded compensation in the sum of Rs.13,89,568/- with interest @ 6% per annum from the date of filing of claim application, on the remaining amount payable after adjustment of Rs.50,000/- paid under No Fault Liability, to the wife, two minor children and parents of the vehicular accident victim Suresh Kumar, about 35 years of age. Essentially, the findings recorded by the Tribunal on responsibility towards accident and on quantification of compensation are assailed in this appeal by the insurer, having been granted permission to contest the matter on merits by the Tribunal.
A brief reference to the background facts would suffice:
The accident in question occurred on 04.06.1999 at about 9:30 a.m. on Udaipur-Salumber Road near Kewada upon collision of a motorcycle bearing registration No. RJ27 5M 0221, driven by the deceased Suresh Kumar taking a pillion- rider Kailash Chandra, and a Maruti car bearing registration
No.GJ 1 RR 5722, belonging to and driven by the non- applicant No.1 Indravardhan and insured by the appellant; both the motorcycle riders sustained injuries; and Suresh
Kumar succumbed to the grievous injuries sustained in this accident. Narrating the incident and asserting the responsibility of the Maruti car driver, the claimants-respondents Nos. 1 to 5 made a claim for compensation in the sum of Rs.35,0000/- and submitted for quantification that the deceased was about 35 years of age and was earning Rs.11,500/- per month while carrying on the business in the name and style of Hinger
Traders as star stockist of Binani Cement; and that he would have contributed for another 35 years at Rs.8,000/- per month to the family. The claim application was put to contest by the appellant-insurer while stating a general denial of the claim averments and specifically on the submissions that the accident occurred for sole negligence of the motorcyclist and there was no responsibility for the accident in the driver of the
Maruti car. Various other submissions regarding violation of policy conditions were also made but the same are not relevant for the subject matter of this appeal. The owner- cum-driver of the aforesaid Maruti car filed a separate reply and while stating general denial of the claim averments stated that the motorcyclist came in a brisk speed negligently and caused the accident while attempting to overtake a truck; and the accident could not be prevented despite all efforts on the part of car driver because of rashness and negligence on the part of the motorcyclist.
It may be pointed out that another claim application was made by Kailash Chandra, the pillion-rider of motorcycle, being Claim Case No.395/2005, for the loss caused to him due to the injuries sustained in the same accident. Though separate issues were framed but thereafter the two claim cases were considered together. In evidence, the claimants examined AW-1 Smt. Asha Hingar, the wife of deceased; AW- 2 Kailash Chandra, the pillion-rider of motorcycle; and AW-3
Roshanlal, the father of deceased. On behalf of the non- applicants, the car owner-cum-driver Indravardhan was examined as NAW-1. The parties produced documentary evidence, of which the relevant shall be referred hereafter.
After hearing the parties, the Tribunal proceeded to re-frame consolidated issues for determination of the questions involved in these cases thus:
"1. 4.6.99 $..1/../5722 ? 2. - - 1 4 $ ? 3. $ $ $ 8 ;<$ $ $ ? $ ?" 4.
Taking up the question of responsibility towards accident in issue No.1, the Tribunal referred to the evidence available on record including the testimony of injured Kailash Chandra
(AW-2) and that of car driver Indravardhan (NAW-1) but found
NAW-1 Indravardhan not trustworthy for attempting to conceal the facts and shifting his stand at different places; and observed that from the statement of AW-2 Kailash Chandra, conclusion was available that accident was caused for the
Maruti car being driven in brisk speed and negligently.
Accordingly, issue no.1 was decided in favour of the claimants.
Issue No.3 was decided against the insurer for want of requisite relevant evidence.
Taking up quantification of compensation in issue No.2, so far Claim Case No.394/2005 related with the present appeal is concerned, the Tribunal referred to the oral and documentary evidence adduced by the claimants and found with reference to the Income Tax Clearance Certificate Ex.11 that the income of the deceased was assessed for the
Assessment Year (A.Y.) 1996-1997 at Rs.50,590/-, for A.Y. 1997-1998 at Rs.62,870/-, for A.Y. 1998-1999 at Rs.88,520/- and for A.Y. 1999-2000 at Rs.1,44,620/-. The Tribunal also referred to the tax assessment orders and observed that the evidence led by the claimants Smt. Asha Hingar and others was not specifically rebutted and keeping in view the future enhancement prospects, it would be appropriate to take average income of the deceased at Rs.10,000/- per month; and deducting one-third wherefrom, the Tribunal took loss of contribution for the claimants at Rs.6,667/- per month leading to a multiplicand of Rs.80,004/- per annum. Then, taking the age of deceased at 35 years, the Tribunal applied the multiplier of 17 and assessed pecuniary loss at Rs.13,60,068/-
(80,004x17). Allowing further Rs.25,000/- towards non- pecuniary loss, Rs.2,000/- towards funeral expenses and another Rs.2,500/- towards property loss, the Tribunal found the claimants entitled for compensation in the sum of
Rs.13,89,568/-; and adjusting Rs.50,000/- received by them under No Fault Liability allowed interest on the remaining amount @ 6% per annum from the date of filing of claim application. The Tribunal proceeded to apportion the amount of Rs.13,39,568/- in the manner that the odd amount of
Rs.39,568/- and interest would be equally divided amongst the five claimants to be paid cash through savings bank account; and the remaining Rs.13,00,000/- would be placed in fixed deposits divided in Rs.6,00,000/- in the name of wife of the deceased, Rs.1,00,000/- in the name of father and another
Rs.1,00,000/- in the name of mother, Rs.3,00,000/- in the name of daughter and Rs.2,00,000/- in the name of son of the deceased.
Assailing the award aforesaid, learned counsel for the appellant Mr.Daulat Singh Nimbla submitted that the accident occurred for head-on collision of the car in question with the motorcycle driven by the deceased; that though from the evidence on record, it is established that the accident occurred for exclusive negligence of the motorcyclist but at any rate it were at least a case of contributory negligence and the
Tribunal has been in error in putting the entire responsibility on the car driver. Learned counsel further submitted that the
Tribunal has been in error in adopting a higher figure of
Rs.10,000/- per month towards average income of the deceased and in providing for future enhancement though there was no scope for any addition in the name of future prospects when the deceased was not in any settled job or employment; and that the income of the deceased as suggested by the claimants after his demise by filing a tax return for the A.Y. 1999-2000 could not have been taken into consideration. Learned counsel also submitted that the age of the deceased was above 35 years and in the overall circumstances of the case, application of multiplier of 17 is on the higher side and, therefore, the award deserves suitable modification by downward revision.
Learned counsel Mr.Madan Lal Purohit, appearing for the claimants, on the other hand submitted that this appeal remains absolutely bereft of substance and the Tribunal has not committed any error in recording a finding on responsibility towards accident against the Maruti car driver. Learned counsel referred to the site inspection memo and contended that the car in question was attempted to be shifted sideways at the scene of accident only in order to avoid responsibility for the mishap. Learned counsel submitted that the Tribunal has reasonably assessed the multiplicand in this case taking average income of the deceased at Rs.10,000/- per month and such multiplicand is obviously available looking to the consistent growth of income of the deceased; and for there being no evidence to the contrary, there is no reason to discard the income tax return filed after the death of victim by his wife. Learned counsel further submitted that even if the age of the deceased goes a shade above 35 years that would not be sufficient to apply a lower side multiplier particularly looking to the age of the children of the deceased respectively at 11 and 7 years. According to learned counsel, while awarding compensation the Tribunal has applied all the principles in accordance with law and there is no scope for interference in appeal that has been filed by the insurer only for the sake of it.
Having given a thoughtful consideration to the rival submissions and having scanned through the entire record, this Court is clearly of opinion that the finding on responsibility towards accident as recorded by the Tribunal in issue No.1 calls for no interference; however, quantification of compensation as made by the Tribunal in this case suffers from apparent errors and cannot be approved as such.
So far the finding on issue no.1 is concerned, the same has been arrived at by the Tribunal after thorough appreciation of evidence available on record disbelieving the testimony of
Maruti car driver, Indravardhan. Having examined the statement of NAW-1 Indravardhan, this Court is satisfied that the considerations adopted by the Tribunal do not suffer from any error in reasonable appreciation of evidence. It is noticed that the non-applicants attempted to suggest some negligence on the part of motorcyclist and from the site inspection memo it appears that the accident occurred almost in the middle of road. Usually such accident involving on-coming vehicles with head-on collision in the middle of road occurs for omission of care and caution on the part of both the drivers but it does not appear appropriate to record such finding in the present case for other significant features of the evidence available on record. The car owner-cum-driver NAW-1 Indravardhan produced three photographs of site and stated that the photographs were snapped immediately after the incident.
From the said photographs Ex.A/1, A/2, and A/3, it appears as if the Maruti car in question was on its extreme left-hand side and rather was taken down the road. These photographs are not and cannot be the photographs taken just after the incident for the simple reason that the motorcycle in question that had collided with the car is not visible in these photographs at all in the entire length and breadth of the road. The site inspection memo that has been referred by learned counsel for the parties (marked as Ex.35 in the statement of AW-2 Kailash
Chandra and whose photostat is available on the record of this case at page C9/30) clearly indicates that at the time of inspection at 5:00 p.m. on 04.06.1999, both the vehicles, the car as well as the motorcycle were lying on the spot. It has been commented in the site inspection memo that car has been got shifted to its side after the accident. Moreover, the photographer who snapped the said photographs has not been produced in evidence nor their negatives have been filed.
It is evident that the car owner has intentionally attempted to mislead the Tribunal by putting forth made up evidence in the form of such photographs that do not depict correct position of the offending vehicle at the time of accident; and for such attempt to misrepresent on material facts, the car owner's testimony losses its credibility; and it cannot be believed that the motorcyclist negligently rammed into the car while trying to overtake another vehicle. With rejection of the case set up by the car owner-cum-driver, there appears no reason to disbelieve the testimony of the injured eyewitness
AW-2 Kailash Chandra, and in the overall circumstances of the case, this Court is satisfied that the Tribunal has recorded the finding on negligence of Maruti car driver after reasonable appreciation of evidence taking a possible view of the matter; and such finding calls for no interference in appeal.
So far quantification of compensation is concerned, the
Tribunal has of course committed fundamental errors that call for interference. The considerations adopted by the Tribunal in taking average income of the deceased at Rs.10,000/- per month cannot be approved. It is noticed from the Income Tax
Clearance Certificate Ex.11 and so also the Income Tax
Returns Ex.12 and 13, that the income of the deceased was assessed at Rs.50,590/- for the A.Y. 1996-1997, at
Rs.62,870/- for the A.Y. 1997-1998, and at Rs.88,520/- for the
A.Y. 1998-1999. Thus, the annual income of the deceased for the accounting year 1997-1998 (i.e., the assessment year 1998-1999) was Rs.88,520/- but then, his income for the next accounting year 1998-1999 ( i.e., the assessment year 1999- 2000) has been shown to the tune of Rs. 1,44,620/- with
Rs.1,37,118/- from business or profession and Rs.8,890/- from other sources in the return Ex.14 filed on 17.12.1999 by the wife of the deceased. The accident occurred on 04.06.1999.
May be the returns of income of the deceased for the assessment years 1996-1997 to 1998-1999 were showing a gradual growth of income but a disproportionate growth about 1.65 times the previous years' income in the return filed by the wife of the deceased calls for proper corroboration with cogent and reliable evidence. It is noticed that according to the claimants, the deceased was engaged in the business of distributorship of a cement manufacturer and was obviously maintaining relevant accounts in that relation. Father of the deceased, AW-3 Roshanlal, examined on 06.10.2003 after closure of evidence of the non-applicants on 03.07.2001, has admitted in his statement that accounts books were in his possession and that he has not filed the same. For the claimants withholding relevant and material evidence in the form of accounts of business and for want of corroboration, this Court is of opinion that the income of the deceased at
Rs.1,44,620/- as attempted to be shown for the assessment year 1999-2000 (accounting year 1998-1999) could not have been accepted for the purpose of reasonable assessment of loss of the economic dependency of the claimants.
It is further relevant to notice that the deceased was not in any settled job or employment but was essentially engaged in trading business. By the very nature of such source of income, in the first place, no component of future prospects could have been provided; and secondly, the aspect of a part of the income earned by the deceased from his business retaining itself to the claimants could not have been ignored.
Thus, the estimate put by the Tribunal on the average income of the deceased at Rs.10,000/- per month i.e., Rs.1,20,000/- per annum, is obviously excessive and stands higher than a reasonable estimate available for the claimants in this case. Having regard to the income and the nature of business of the deceased otherwise shown, and taking into account other contingencies, this Court is of opinion that even on a liberal estimate, it would not be safe to take average income of the deceased beyond Rs.90,000/- per annum particularly when the same had been to the tune of
Rs.88,520/- for the accounting year 1997-1998.
The Tribunal has further erred in applying the multiplier of 17 though it was directly available on record that the age of the deceased was above 35 years, rather two months below 36 years; his date of birth indisputably being 15.08.1963 as stated in his income tax returns Ex.12, 13, and 14 and so also in his driving licence Ex.9. The submission that in view of minor children of the deceased, application of multiplier of 17 remains justified cannot be accepted for the simple reason that while assessing loss of economic dependency of the claimants, an overall picture is required to be taken into consideration and the respective age of the victim and all the claimants cannot be lost sight of. Moreover, in view of the higher multiplicand standing in this case, the multiplier as provided by the Second Schedule to the Motor Vehicles Act cannot ipso facto be applied for the purpose of assessment of just compensation. The deceased being at about 36 years of age and then a part of the business income likely to retain itself to the claimants and looking to the overall circumstances of the case, this Court is of opinion that a multiplier of 15 could only be provided for the claimants to the maximum.
In the aforesaid view of the matter, this Court is of opinion that taking average income of the deceased at
Rs.90,000/- and deducting one-third wherefrom, reasonable loss of contribution for the claimants stands at Rs.60,000/- per annum and with application of multiplier of 15, pecuniary loss comes to Rs.9,00,000/-. Retaining Rs.25,000/- allowed by the
Tribunal towards non-pecuniary loss, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards property damage, this Court is of opinion that even on a liberal assessment the claimants are entitled for compensation in the sum of
Rs.9,29,500/- and not beyond. The assessment as made by the Tribunal in the sum of Rs.13,89,568/- being too excessive, deserves suitable modification.
Accordingly, this appeal succeeds to the extent indicated above and in place of the amount of Rs.13,89,568/- as allowed by the Tribunal, the claimants shall be entitled for compensation in the sum of Rs.9,29,500/- and shall be entitled for interest at the rate of 6% per annum after deducting
Rs.50,000/- already received under No Fault Liability, of course, from the date of filing of claim application i.e., 07.08.1999.
This appeal by the insurer filed on 01.03.2006 came up for consideration before this court on 04.08.2006 when the record was sent for and then on 05.10.2006 this Court noticed the delay caused by the insurer in making payment to the claimants in this matter particularly when the award was made as back as on 06.12.2005. This Court commented that it would have been discreet on the part of the appellant, an insurer, if at all acting bona fide, to have deposited reasonable amount with the Tribunal so as to avoid the necessity of award being put to execution against it and, at the same time to provide the claimants with reasonable relief. Therefore, while declining the prayer for interim relief, the insurer was directed to deposit the entire amount with the Tribunal but the amount to be placed in fixed deposit was ordered to be kept intact in view of pendency of this appeal. As the amount of award would now stand reduced, therefore, it is considered appropriate to resettle the apportionment of the award amount keeping in view the order already passed by this Court and keeping in view of the interests of respective claimants and their requirements.
In the circumstances of the case, this Court is of opinion that interest of justice shall be served if Rs.50,000/- are reduced from the amount of Rs.1,00,000/- apportioned by the Tribunal for the father of the deceased and another
Rs.50,000/- are reduced from Rs.1,00,000/- apportioned by the Tribunal in the name of mother of the deceased; and thereafter, the remainder of the amount that is required to be reduced in view of the modification ordered herein, be deducted from out of the amount ordered to be placed in the name of the wife of the deceased; and, therefore and thereby, the amount ordered to be placed by the Tribunal at
Rs.3,00,000/- for the daughter of the deceased and
Rs.2,00,000/- for the son of the deceased shall not be disturbed.
With the observations, directions and modification aforesaid, this appeal succeeds in part to the extent indicated above; but the parties are left to bear their own costs of this appeal.
It shall be required of the Tribunal to carry out apportionment afresh in conformity with the directions and observations supra and to issue necessary orders for refund of the amount to the insurer.
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