=========================================================== 1. Nahida Anjum wife of Late Aftab Alam 2. Laila Begum wife of v. 1. Anil Kumar Singh son of J
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.48 of 2007 =========================================================== 1. Nahida Anjum wife of Late Aftab Alam 2. Laila Begum wife of Umrul Hassan M/o-deceased Aftab Alam 3. Rahila Anjum (minor). 4. Asar Aftab(minor) 5. Nayeela Anjum(minor) 6. Nagis Aftab (minor), Serial No. 3 to 6 are minor sons and daugher of Late Aftab Alam under the guardianship of their Nahida Anjum , appellant No.1, all are resident of village + P.O. Chainpur Bangra P.S. Maniari, District Muzaffarpur .... .... Appellant/s Versus 1. Anil Kumar Singh son of Jawahar Prasad Singh, resident of Azad Colony, Maripur, District /Town Muzaffarpur 2. Abdul Khalique, son of Md. At and P.O. Golmuri, P.S. Campus, District Jamshedpur 3. Divisional Manager, the Oriental Insurance Company Ltd.at Motijheel, Muzaffarpur 4. Divisional Manager, the National Insurance Company Ltd. at Motijheel, Muzaffarpur .... .... Respondent/s =========================================================== Mr. Ajay Kumar, Adv. For the Appellant/s : Mr. Mukesh Prasad Singh, Adv. Mr. Krishna Kishore Sinha, Adv. Mr. Durgesh Kumar Singh, Adv. For the Respondent/s : =========================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT Date: 06-12-2013 Heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. Mukesh Prasad Singh, learned counsel for the respondent No.4, and Mr. Krishna Kishore Sinha, learned counsel for the respondent No.3. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 7.11.2006/18.11.2006 passed by the 9th Additional Motor Accident 2
Legal Reasoning
Patna High Court MA No.48 of 2007 dt.06-12-2013 2 / 9 Claim Tribunal, Muzaffarpur in Claim Case No. 132 of 2003. This appeal was heard along with M.A. No. 482 of 2006 and after hearing the parties, orders were reserved on 27.8.2013. However, at the stage of passing of the final order in the two appeals this Court discovered that the present appeal stands admitted vide
Decision
order passed 17.1.2008 and thus cannot be disposed of at the stage of hearing under Order 41 Rule 11 of the Code of Civil Procedure along with the other appeal which was yet to be admitted. In the circumstance and since orders were reserved in this appeal along with M.A. No. 482 of 2006, this Court while pronouncing the order on 4.12.2013 whereby M.A. No. 482 of 2006 was dismissed, directed this appeal to be posted for hearing and it is in these circumstances that the matter has been listed today. The office note accompanying this appeal points out a typographical error in paragraph 1 at page 2 and the last paragraph at page 21 of the judgment and order dated 4.12.2013 passed in M.A. No. 482 of 2006 with M.A. No. 48 of 2007 in so far as the number of the claim case is concerned, which has been incorrectly typed as 132 of 2002 in place of Claim Case No. 132 of 2003. The number of the Claim Case appearing in paragraph 1 and the last paragraph of the order dated 4.12.2013 is modified to read as Claim Case No. 132 of 2003 in place of Claim Case No. 132 of 2002 3 Patna High Court MA No.48 of 2007 dt.06-12-2013 3 / 9 and which shall be deemed to have been pronounced accordingly. The claimants before this Court are seeking enhancement in the compensation amount. Whereas owner of the truck bearing No. BR06G-4302 is respondent No.1- Anil Kumar Singh, the owner of the Indica car being registration No. JH-05E-0505 is respondent No.2- Md. Abdul Khalique. Whereas the Oriental Insurance Company- respondent No.3 is the insurer for the truck owned by the respondent No.1, the National Insurance Company is the insurer for the Indica car owned by the respondent No.2 By order dated 17.01.2008 this appeal was admitted for hearing, the Lower Court Records were called for and notices were issued to the respondents under ordinary process. Although notice was validly served on respondent Nos. 3 and 4 but was not served on respondent Nos. 1 and 2 i.e. the owner of the truck and the Indica car respectively and in these circumstance vide order passed on 10.4.2008 this Court directed for fresh service under registered cover. Although notice was validly served on respondent No.2, the owner of the Indica car but remained unserved as against the owner of the truck-respondent No.1. 4 Patna High Court MA No.48 of 2007 dt.06-12-2013 4 / 9 Vide order passed on 10.7.2008 the appellants were directed to take fresh service of notice on respondent no.1 under registered cover. As the order was peremptory and the appellants failed to ensure compliance of the order passed on 10.7.2008, this appeal stood rejected as against the respondent No.1. Perusal of the office note dated 13.1.2009, manifests that the appeal stood restored as against the respondent No.1 vide order passed on 23.12.2008 in M.J.C. No. 2098 of 2008. Notices were issued but again remained unserved and in the circumstances this Court vide order passed on 12.2.2009 again required fresh service of notice on respondent No.1 under registered cover. The order was peremptory. The appellant again failed to ensure compliance of the said order passed on 12.2.2009 and in consequence, the appeal stood dismissed as against the respondent No.1. A second restoration was filed giving rise to M.J.C. No. 2171 of 2009 for restoration of the appeal as against the respondent No.1 but the same also was dismissed for non prosecution. No step was taken thereafter by the appellant to restore this appeal as against the respondent No.1 and the matter has reached the stage of final hearing. I have heard Mr. Ajay Kumar, learned counsel for the claimants who were appellants before this Court, Mr. Krishna Kishore Sinha, learned counsel for the respondent No.3, the Oriental Insurance 5 Patna High Court MA No.48 of 2007 dt.06-12-2013 5 / 9 Company and Mr. Durgesh Kumar Singh, learned counsel for the respondent No.4, the National Insurance Company. As observed, hereinabove, whereas this appeal stands dismissed as against the respondent No.1, the owner of the truck, the respondent No.2 has failed to enter appearance despite valid service. Mr. Ajay Kumar, learned counsel for the appellants has argued for enhancement relying inter alia on two judgments of the Supreme Court rendered in the case of Sarla Verma reported in (2009) 6 SCC 121 and a recent judgment of the Supreme Court rendered in the case of Rajesh and Ors.Vs. Rajbir Singh reported in 2013 ACJ 1403:(2013) 9 SCC 54. On the strength of the two judgments learned counsel sought enhancement of the compensation amount on the following grounds namely: (a) Despite the evidence as regarding the income of the deceased being available on record in the form of Ext.1 which is a certificate issued by the employer supporting the monthly income of the deceased at Rs. 3000/- per month and the evidence was supported by the oral evidence of the proprietor who deposed as applicant witness No.5, the Tribunal has created a serious error in relying upon the second schedule to the Act which is only applicable to non earning victims of accident. Learned counsel in support of 6 Patna High Court MA No.48 of 2007 dt.06-12-2013 6 / 9 his submission has relied upon the judgment of the Supreme Court reported in (1999) 9 SCC 213 (State of U.P. Vs. Hem Raj ) and (2001) 9 SCC 167 (Dr. K.G. Poovaiah Vs. General Manager) (b) Following the judgment of the Sarla Verma(supra), and considering that the dependents were six in number, the deduction towards personal living expenses of the deceased on the principles laid down in paragraph 30 of the judgment ought to have been 1/4th and not 1/3rd as held by the Tribunal. (c) In terms of the judgment of Rajesh and Ors. (supra) the amount towards consortium ought to have been Rs. 1 lac and not 5000/- as awarded by the Tribunal. The arguments of Mr. Ajay Kumar has been contested by Mr. Durgesh Kumar Singh appearing for the National Insurance Company and Mr. Krishna Kishore Sinha, appearing for the Oriental Insurance Company Ltd. to submit that the compensation awarded by the Tribunal is on the basis of the materials available on record and in absence of any glaring infirmity, the same requires no interference. Mr. Singh, while contesting the argument of claimant as regarding the monthly income, has submitted that in absence of any payment register or any authentic register the only course available for 7 Patna High Court MA No.48 of 2007 dt.06-12-2013 7 / 9 the Tribunal was to rely upon the second schedule and which suffers from no infirmity. In so far as issue of consortium is concerned, it is submitted that there is no strait jacket formula to be applied in all cases and a number of facts including status of the employee and the period in which the accident occurred would again be important while examining such issues. I have heard learned counsel for the parties and I have perused the materials on record. The arguments advanced by Mr. Ajay Kumar is based upon propositions formulated by him on the strength of the judgments passed by the Supreme Court and which is binding upon all Courts including this Court. Be it a case of Sarla Verma or Rajesh and Others (supra), the law laid down on the issue of deduction towards personal living expenses, fixation of salary or consortium cannot be contested upon. There is a command in the direction of the Supreme Court passed in the case of Rajesh and Ors.(supra) in so far as the issue of consortium and funeral expenses is concerned, requiring the Courts to award at least Rs.1 lac towards consortium and Rs. 25,000/- towards funeral expenses. Even on the issue of deduction towards personal and living expenses, there is no contest and the judgment of Sarla Verma stands approved by the larger Bench in the case of Reshma Kumari in the judgment reported in (2013) ACJ 1253: (2013) 9 SCC 65. 8 Patna High Court MA No.48 of 2007 dt.06-12-2013 8 / 9 Thus considering the rival arguments, this Court is convinced that the claimants has made out a case for indulgence. The question is whether such relief can at all be granted to the appellant in absence of the respondent No.1, the owner of the truck against whom this appeal stands rejected. This is an appeal seeking enhancement of the compensation amount and any order of this Court in favour of the claimants would be binding on the owners of the offending vehicles to be indemnified by the respective Insurance Company under the provisions of Section 147 and 149 of the Motor Vehicles Act, 1988. In the present appeal it is not in dispute rather is admitted position that whereas the Oriental Insurance Company has discharged its liability under the award by making payment of their part of compensation, the National Insurance Company is yet to make payment thereof. Perhaps since the matter was being contested before this Court by the National Insurance Company in M.A. No. 482 of 2006 hence the delay but the said appeal of the Insurance Company stands rejected vide order passed on 4.12.2013 thus affirming the judgment and award impugned to that extent. In so far as the present appeal is concerned, notwithstanding the fact that the Oriental Insurance Company the insurer for the offending truck of which the respondent No.1 is the owner and against whom this appeal stands 9 Patna High Court MA No.48 of 2007 dt.06-12-2013 9 / 9 rejected, is in attendance but any order of enhancement of the compensation amount would create a liability for the owner of the two vehicles for payment of the enhanced amount which though may be indemnified by the respective Insurance Company but the fact remains that for the said indemnification the owner has to be present and has to be heard. The judgment and award which forms basis of this appeal is not severable and binds the owner of the two vehicles whose liability has to be discharged by their respective insurers. It is thus obvious that this appeal cannot proceed in absence of the one of the owner when the award binds both of them and cannot be severed. The conduct of the appellants in allowing the appeal to get dismissed not once but twice and also allowing the restoration application to be dismissed for non prosecution, this appeal cannot proceed and is rendered incompetent in absence of the respondent No.1 and is dismissed accordingly. Let the Lower Court Records received in connection with Claim Case No. 132 of 2003 be returned to the Court of 9th Additional Motor Accident Claim Tribunal, Muzaffarpur forthwith. Bibhash/- (Jyoti Saran, J)