1. This order will govern the disposal of M.A.No.309/2006 (Santosh Kumari and others Vs. Vinayak Prasad Gupta and others) and M.A.No.4394/2011 (The State of M.P. Vs. Santosh Kumari and others) as the same arise from a common award dated 17.8.2005, passed by learned IV Addl. MACT, Rewa, in MVC No.122/1999, by which the learned Claims Tribunal has awarded a total sum of Rs.4,86,000/-with interest @ 7% from the date of filing of application to the claimants by way of compensation on account of death of deceased in the accident occurred on 28.02.1998, and fastened the liability to pay the aforesaid compensation by non-applicants No. 2 & 3 driver of offending vehicle and State jointly and severally.
2. It is not in dispute that deceased-Shiv Prasad Kol was employed as Constable in the Police Department and deputed to perform Lok Sabha Election duty on 28.2.1998 at Village Dhoga, District Sidhi (MP). In the said election, the offending vehicle bearing registration No.MP-19-A/0085, was acquired by nonapplicant No.3. After completion of the voting, when the vehicle was returning, the same fell down in a pit, as a result of which deceased died, who was sitting in the aforesaid vehicle.
3. In short the case of the claimants, excluding the admitted facts, is that Claimant No.1 being the widow of deceased and Claimants No. 2 to 7 children of deceased, preferred a claim petition under Section 166 of the Motor Vehicles Act, seeking compensation on account of death of deceased. According to the claimants, the concerned vehicle was being driven rashly and negligently by its driver/non-applicant No.2 and due to which, it fell down in a pit, resulting into death of deceased on account of injuries sustained by him. The vehicle was hired by State/non-applicant No.3 and at the time of accident, deceased was on his duty. At that time, he was earning Rs.4030/- + D.A. According to the service book, at the time of incident, deceased was 37 years, 7 months and 13 days of age. The compensation awarded by the Tribunal is, too, meager and deserves enhancement; however, by filing the appeal by claimants, inadequacy of the compensation has been assailed.
4. The non-applicants No. 1, 2 & 3, filed their written statements separately. In the written statement, the nonapplicant No.1 has stated that in the year 1999, he has sold the offending vehicle to one Labdharam Sindhi through Santodas Mohandas Laddharam Sindhi. Since non-applicant No.1 has sold the vehicle to Laddharam in the year 1992, he is not responsible for any compensation. Even, non-applicant No.2 was not the driver of the offending vehicle at the time of incident. In the written statement of non-applicant No.2, it is stated that at the time of incident, the offending vehicle was being used for the purpose of Lok Sabha election on the order of Presiding Officer Sidhi. It is also stated in the written statement that Zonal Officer has pressurised and insisted to ply the said offending vehicle on Kachcha Path, due to which the accident occurred. In fact, the offending vehicle was standing for repairs. Insurance of offending vehicle was over prior to the date of incident and information in this respect was already given to the officer concerned. The non-applicant No.3/State in its written statement has stated that at the time of incident, the owner of the vehicle was non-applicant No.1 and due to that, it is not liable for payment of any compensation. During election duty, the persons deputed to perform their election duty, have already been insured and premium in respect thereof has already been paid by the State Government, therefore, compensation of Rs.2,00,000/- has been paid to the claimants as insured amount. An amount of Rs.2,000/- has also been paid to claimants towards cremation. During pendency of present appeal, non-applicant No.1 has died and his name has been deleted by order dated 21.8.2015, which was complied by the appellants vide order dated 26.4.2016.
5. Shri Sahu, learned counsel for claimants submits that in the alleged accident Shiv Prasad, aged about 38 years, while serving in the Home Department (Police) of State of M.P., has died on the spot on account of injuries sustained by him, while he was travelling during the course of discharging his official duty in the Mini Truck (Bus) bearing registration No. MP-19- A/0085. Learned counsel for the claimants submits that the compensation awarded by the learned Tribunal is unjust, inadequate and on lower side. He further submits that learned Tribunal has not followed the guidelines directed by the Apex Court in awarding just compensation in a death case and has also not taken into account the loss of future prospects of the deceased . He further submits that the deceased being 38 years of age at the time of death, entitled to 50% increase in the future prospects of income as per the legal principle laid down by the Supreme Court in the case of Santosh Devi Vs. National Insurance Company Ltd. and others [(2012) 6 SCC 421]: 2012 (3) T.A.C. 1 (S.C.). Learned counsel for claimants has also relied on the decision rendered by the Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation [2009 ACJ 1298 (SC)] and Kalpana Raj and others Vs. Tamil Nadu State Transport Corporation [2014 (2) T.A.C. 744 (S.C.) and, said that the compensation awarded by the learned Tribunal is against the law laid down by the Hon''ble Apex Court in the said decisions.
6. It is also contended by learned counsel for the claimants that the leaned Claims Tribunal has failed to notice that the deceased was 38 years of age and was posted as Constable in the Police Department. He would have served the department for about 28 years, if he would have been alive and during that period his salary would have certainly doubled. The learned counsel further placed reliance on the decision of the Apex Court in the case of Vimal Kanwar & ors Vs. Kishore Dan & Ors., (2013) 7 S.C.C. 476 : 2013 (2) T.A.C. 6, wherein it is held thus :-
"31. In New India Assurance Co. Ltd., this Court
noticed that the High Court determined the
compensation by granting 100% increase in the
income of the deceased. Taking into consideration
the fact that in the normal course, the deceased
would have served for 22 years and during that
period his salary would have certainly doubled,
upheld the judgment of the High Court....."
7. It is further contended by learned counsel for claimants
that the learned Claims Tribunal has erred in computation of
compensation. In the case of Rabhuvir Singh Matolya & ors
Vs. Hari Singh Malviya & Ors., (2009) 15 S.C.C. 363 :
2009 (2) T.A.C. 645 and in Sarla Verma and others Vs.
Delhi Transport Corporation & another, (2009) 6 S.C.C.
121 : 2009(2) T.A.C. 677, the Apex Court observed that
learned Claims Tribunal has a duty, irrespective of the amount
claimed, to award a just, equitable, fair and reasonable
compensation.
8. Shri Rajesh Choubey, learned Panel Lawyer for the State has submitted that the impugned award fastening the liability on the non-applicant No.3/State is patently erroneous, because the non-applicant No.2/driver of the vehicle was driving the offending vehicle rashly and negligently. The liability would also be fastened on the owner of the offending vehicle. He further submits that one of the claimant has already got employment and claimants have received the amount of insurance by the Election Commission amounting to Rs.2,00,000/-. In the facts and circumstances of the case, it is prayed that since the impugned award suffers from manifest error in saddling the liability on the non-applicant No.3/State, therefore, the appellant/State may be exonerated from its liability.
9. Now coming to the aspect of negligent driving of the said offending vehicle by its driver/non-applicant No.2 is concerned, Vinayak Prasad Gupta (AW/2)and Bamdeo Pathak (AW/3), have stated that accident occurred due to negligent driving of the vehicle by the non-applicant No.2. Jugal Kishore (NAW/3) employee of the Collectorat has stated that the said vehicle was acquired and deployed in election duty. He has also stated that information of accident was received in his office. He further stated that at the time of incident, the vehicle was under the control of State Government. Accordingly, it is rightly concluded and proved by the learned Claims Tribunal that accident occurred due to rash and negligent driving of offending vehicle, the deceased was employed as police constable and deputed to perform election duty and the said vehicle was acquired for the purpose of election duty by the non-applicant No.3/State. It is also proved that during the course of employment, the incident occurred and in that accident deceased sustained injuries and died.
10. Now coming to the aspect of loss of dependency, the deceased being a Govt. servant, was employed as Constable and earning about Rs.4030/- + D.A. Total Rs.4838/- per month. However, learned Tribunal after applying multiplier of 14, has awarded compensation of Rs.4,76,000/- by adding Rs.5,000/- for all conventional heads and Rs.5,000/- for love and affection. The total compensation awarded by learned Claims Tribunal to claimants amounting to Rs.4,86,000/-, which according to learned counsel for claimants is meagre and on lower side.
11. The Apex Court in the case of Rajesh and others Vs. Rajbir Singh and others [2013 ACJ 1403] has given a definite and conclusive findings with regard to just, equitable, fair and reasonable compensation, in a fatal accident. The guiding principle for determining the compensation has been considered by the Apex Court in para 3, 7, 8, 10, 11, 13, 14 & 15 which is as follows :-
"3. In Nagappa V. Gurudayal Singh, 2003 ACJ
12 (SC), it has been held by this Court that the
main guiding principle for determining the
compensation is that it must be just. It has also
been held that the award must be reasonable."
7. The expression ''just compensation'' has been
explained in Sarla Verma''s case, 2009 ACJ 1298
(SC), holding that the compensation awarded by a
Tribunal does not become just compensation merely
because the Tribunal considered it to be just. ''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. After surveying almost all the
previous decisions, the court has almost
standardized the norms for the assessment of
damages in motor accident.
8. At para 11, it has been held as follows :
"(11) In Susamma Thomas, 1994, ACJ 1
(SC), this court increased the income by
nearly 100 per cent, in Sarla Dixit, 1996 ACJ
581 (SC), the income was increased only by
50 per cent and in Arati Bezbaruah, 2003
ACJ 680 (SC), the income was increased by a
mere 7 per cent. In view of imponderables
and uncertainties, we are in favour of adopting
as a rule of thumb, an addition of 50 per cent
of actual salary to the actual salary income of
the deceased towards future prospects, where
the deceased had a permanent job and was
below 40 years. [(Where the annual income is
in the taxable range, the words ''actual salary''
should be read as ''actual salary less tax'']. The
addition should be only 30 per cent if the age
of the deceased was 40 to 50 years. There
should be no addition, where the age of
deceased is more than 50 years. Though the
evidence may indicate a different percentage of
increase, it is necessary to standardize the
addition to avoid different yardsticks being
applied or different methods of calculations
being adopted. Where the deceased was selfemployed
or was on a fixed salary (without
provision for annual increments, etc.), the
courts will usually take only the actual income
at the time of death. A departure therefrom
should be made only in rare and exceptional
cases involving special circumstances."
10. Consequently, it has been held at para 14, as
follows :-
"(14). We find it extremely difficult to fathom
any rationale for the observation made in the
judgment in Sarla Verma''s case, 2009 ACJ 1298
(SC), that where the deceased was self-employed
or was on a fixed salary without provision for annual
increment, etc., the courts will usually take only the
actual income at the time of death and a departure
from this rule should be made only in rare and
exceptional cases involving special circumstances. In
our view, it will be naive to say that the wages or
total emoluments/income of a person who is selfemployed
or who is employed on a fixed salary
without provision for annual increment, etc., would
remain the same throughout his life. Rise in the
cost of living affects everyone across the board. It
does not make any distinction between rich and
poor. As a matter of fact, the effect of rise in prices
which directly impacts the cost of living is minimal
on the rich and maximum on those who are selfemployed
or who get fixed income/emoluments.
They are the worst affected people. Therefore, they
put in extra efforts to generate additional income
necessary for sustaining their families. The salaries
of those employes under the Central and State
Governments and their agencies/instrumentalities
have been revised from time to time to provide a
cushion against the rising prices and provisions have
also been made for providing security to the families
of the deceased employees.
11. Since the court in Santosh Devi''s case,
2012 ACJ 1428 (SC), actually intended to follow
the principle in the case of salaried persons as laid
down in Sarla Verma''s case, 2009 ACJ 1298
(SC) and to make it applicable also to self-employed
and persons on fixed wages, it is clarified that the
increase in the case of those groups is not 30 per
cent always; it will also have a reference to the age.
In other words, in the case of self-employed or
persons with fixed wages, in case the deceased
victim was below 40 years, there must be an
addition of 50 per cent to the actual income of the
deceased while computing future prospects.
Needless to say that the actual income should be
income after paying the tax, if any.
13. Whether the Tribunal is competent to award
compensation in excess of what is claimed in the
application under Section 166 of the Motor Vehicles
Act, 1988, is another issue arising for consideration
in this case. At para 10 of Nagappa''s case, 2003
ACJ 12 (SC), it was held as follows :-
"(10). Thereafter, section 168 empowers the
Claims Tribunal to ''make an award determining the
amount of compensation which appears to it to be
just''. Therefore, only requirement for determining
the compensation is that it must be ''just''. There is
no other limitation or restriction on its power for
awarding just compensation."
14. The principle was followed in the later
decisions in Oriental Insurance Co. Ltd. V. Mohd.
Nasir, 2009 ACJ 2742 (SC) and in Ningamma V.
United India Insurance Co. Ltd., 2009 ACJ
2020 (SC).
15. Underlying principle discussed in the above
decisions is with regard to the duty of the court to
fix a just compensation and it has now become
settled law that the court should not succumb to
niceties or technicalities in such matters. Attempt of
the court should be to equate, as far as possible,
the misery on account of the accident with the
compensation so that the injured/the dependents
should not face the vagaries of life on account of the
discontinuance of the income earned by the victim."
12. Now, the point for consideration is, whether State would
be held liable vicariously to pay the compensation to the
claimants. It is admitted position that the offending vehicle was
requisitioned and acquired by the State/non-applicant No.3 on
the basis of the order of Collector Sidhi, for Lok Sabha Election
at the relevant time, in which deceased was travelling. It is also
admitted position that the non-applicant No.2 was driving the
offending vehicle due to Lok Sabha Election. The said vehicle
fell down in the pit and accident occurred in which deceased
died.
13. Learned Claims Tribunal in para 8 of the impugned award has held that since the non-applicant No.2 was already aware of the pit, he cannot take a plea that he has not seen the pit due to darkness and due to rash and negligent driving of the offending vehicle, the accident occurred, which led to death of deceased. Therefore, learned Claims Tribunal came to the conclusion that non-applicant No.2/driver is also liable to pay the compensation.
14. Learned counsel for the State/non-applicant No.3 submitted that even if the offending vehicle was requisitioned for Lok Sabha election purpose and it was under the control of the State government, still the owner of the vehicle was vicariously liable to pay compensation arising out of the accident.
15. Above contention of learned counsel for the State/nonapplicant No.3 has no merit. In this context, the Apex Court in the case of Brij Lal V. Mangal Chand Maheshwari (1987 ACJ 522) has held in paras 12 & 13 as follows:-
"12......once the owner of the vehicle
surrenders control of the same to another person, it
is the latter who becomes liable for the payment of
compensation vis-a-vis the accident which is caused
by the rash and negligent driving of his driver. In
this context an earlier judgment of this Court in
Municipal Committee, Sonepat V. Khushi Ram
(1983 PLR 313) may be noticed. In that case a
vehicle owned by the Haryana State was in
possession and under the control of the Municipal
Committee, Sonepat. The driver who was in
employment of the Municipal Committee caused the
accident and a point arose whether the Haryana
Government as owner or whether the Municipal
Committee Sonepat which was in possession and
control of the vehicle was vicariously liable to pay
the compensation. In no uncertain terms it was
held in this judgment that it was the Municipal
Committee and not the State of Haryana which was
liable to pay the compensation. It was observed
that since the Haryana State had no control over the
driver and he was not in its employment, and on the
other hand the driver was acting in the course of the
employment of the Municipal Committee at the time
of the accident, the Committee at the time of the
accident, the vicarious liability would be that of the
Municipal Committee. The High Court of Madhya
Pradesh took the same view in State of Madhya
Pradesh V. Premabai, 1979 ACJ 503."
13. .....In such circumstances it can be presumed
that who-soever was driving the jeep was doing so
under the authority of the Bank. It was held by this
Court. In Mohinder Singh and Anr. v. Gurdial
Singh and Anr. 1978 A.C.J. 279 (P&H), that in
the normal circumstances when a person happens to
be driving a vehicle it is to be presumed that he had
the authority of the owner to drive and was driving
in the course of the employment of the owner unless
evidence is placed on the record to prove the
contrary. In the present case, this presumption has
not been rebutted by the Bank. The contention that
the jeep was being driven by the owner himself at
the time of the accident has not been found
believable. Hence, disagreeing with the Tribunal on
the point of liability I hold that it is the respondent,
the Primary Land Development Bank, Sirsa, which
has to pay compensation to the claimant.
16. Further, in the case of State of Madhya Pradesh V.
Premabai and others (1979 ACJ 503), it has been held that
master is vicariously liable for the acts of his servant acting in
the course of his employment. Paras 5, 7 & 8 of this report
read as follows :-
"5. Admittedly, the respondent No. 2 was in the
employment of the State Government in the Raipur
Development Block. According to the case pleaded by the
State Government, the jeep was being driven at the
relevant time by the respondent No. 2 in discharge of
sovereign functions of the State which amounts to an
admission that the respondent No. 2 was driving the vehicle
in discharge of his Official duties. The driver is primarily
liable for the death of Ramavtar and Shivprasad due to his
rash and negligent driving. Since at the relevant time he
was driving the vehicle in discharge of his official duties, the
State Government is vicariously liable for the acts of its
employee. The Supreme Court in Sitaram v. Santanuprasad
AIR 1966 SC 1697, has held that a master is vicariously
liable for the acts of his servant acting in the course of his
employment. For the master''s liability to arise, the act must
be a wrongful act authorised by the master or a wrongful
and unauthorised mode of doing some act authorised by
the master. The driver of a car taking the car on the
master''s business makes him vicariously liable if he commits
an accident. Reiterating this principle in a recent case of
Pushpabai v. Ranjit G. and P. Co. (AIR 1977 5C 1735), the
Supreme Court has further held that (at pp. 1743, 1744):
"For the master''s liability to arise the test is whether
the act was done on the owner''s business or that it
was proved to have been impliedly authorised by the
owner. The law is settled that master is vicariously
liable for the acts of his servants acting in the course
of his employment. Unless the act is done in the
course of employment the servant''s act does not make
the employer liable.
The recent trend in law is to make the master liable for
acts which do not strictly fall within the term ''in the
course of the employment'' as ordinarily understood.
The owner is not only liable for the negligence of the
driver if that driver is his servant acting in the course of
his employment but also when the driver is, with the
owner''s consent, driving the car on the owner''s
business or for the owner''s purposes".
Therefore, the State of Madhya Pradesh is liable for
payment of compensation for the acts of its driver, even
if the State Government is not owner of the jeep in
question.
8. The Claims Tribunal was not right in holding the State
Government to be the owner of the jeep in question. Under
the general law of Torts and also under the Fatal Accidents
Act, the driver is primarily liable for compensation for
causing death or injuries by his rash and negligent driving of
the vehicle. His master is also vicariously liable for the acts
of his servant. Section 110-B only stipulates that the
Tribunal shall specify the amount which shall be paid by the
insurer, or owner or driver of the vehicle. It does not provide
that these three persons are alone liable for the accident.
The owner''s liability is not absolute. If the vehicle is
entrusted to an independent person and it is in the
complete control of that independent person, the owner
cannot be made liable for the act of that independent
person or his servant. The House of Lords in Arthur White
(Contractors) Ltd. v. Tarmac Civil Engineering Ltd. (1967) 3 All ER 586, has held:
"Owner of an excavator gave it on hire and
provided a driver. Hire agreement stipulated
that the driver would be deemed to be the
hirer''s servant. When an accident took place
due to negligence of the driver, the hirer was
entirely liable and not the owner".
16. In the light of position of law stated above, after having
heard learned counsel for the parties and on going through the
evidence adduced and after taking into consideration the
material evidence available on record, it appears that the
amount awarded by the learned Tribunal is on lower side and
deserves enhancement and the State/non-applicant No.3 is held
liable vicariously and to pay compensation to the claimants.
17. As stated above, since the deceased was earning Rs.4838/- per month, at the relevant time and deceased being about 38 years of age at the time of death, he is entitled to 50% increase in the future prospects of income as per the legal principle laid down by the Apex Court in Santosh Devi case (supra).
18. Also, since the deceased was about 38 years of age at the time of the accident, a multiplier of 15 seems appropriate for determining the quantum of compensation as per the principle laid down by Apex Court in Sarla Verma case (supra).
19. Further, since the deceased has left behind his wife and six children, the amount to be deducted under the head of personal expenses is 1/5th of the total income in the light of the principle laid down in Sarla Verma case (supra), which was reiterated in Santosh Devi case (supra).
20. The learned Claims Tribunal awarded a sum of Rs.5,000/- towards loss of consortium and Rs.5,000/- towards loss of love and affection by minor children, which is on the lower side in the light of the principle laid down in Rajesh case (supra), wherein the Apex Court awarded Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance to minor children. Accordingly, I find it appropriate to award compensation of Rs.1,00,000/- each towards loss of consortium and towards loss of love and affection.
21. Learned Claims Tribunal awarded Rs.2,000/- towards funeral expenses, which is also on lower side in the light of aforesaid decisions. Accordingly, I find it appropriate to award Rs.25,000/- for funeral expenses and cost of litigation.
22. Further, learned Claims Tribunal awarded the compensation with interest @7% per annum. I concur with this holding of learned Claims Tribunal in the light of the decision of Apex Court in the case of Municipal Corporation of Delhi Vs. Uphaar Tragedy Victims Association & Ors [(2011) 14 SCC 481] and accordingly, the amount will carry interest at the rate of 7% per annum on the compensation awarded to claimants.
23. Accordingly, the claimants are entitled to enhanced compensation as per the heads, which are as follows :-
| S.No | Heads | Calculation |
| (i) | Salary | Rs.4838 p.m. |
| (ii) | 50% of salary to be added as future prospects | Rs.4838+50%( 2419)= Rs.7257 |
| (iii) | 1/5th of (ii) deducted as personal expenses of the deceased | Rs.7257- 1451=5806/- p.m. |
| (iv) | Compensation after multiplier of 15 is applied | Rs.5806x12x15 =10,45,080/- |
| (v) | Loss of consortium | Rs.1,00,000/- |
| (vi) | Loss of care and guidance for minor children | Rs.1,00,000/- |
| (vii) | Funeral expenses | Rs.25,000/- |
| Total compensation - insurance amount which has already been paid to claimants | Rs.12,70,080- 2,00,000= Rs.10,70,080 |
24. Resultantly, with the aforesaid, M.A.No.309/2006, is hereby allowed and M.A.No.4394/2011, is hereby dismissed, without affecting the direction of the Tribunal regarding apportionment of the amount of compensation as above, and liability of non-applicants No. 2 & 3. The compensation awarded hereinabove, shall be apportioned between the claimants as per the impugned award. The amount of compensation will carry interest @ 7% per annum as awarded by the Claims Tribunal from the date of filing of the Claim Petition i.e. 7.12.1999 till its realisation. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are at liberty to file an application before the Claims Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. If the amount of compensation as mentioned herein above is not deposited by non-applicants No. 2 & 3, within a period of three months from the date of passing of this order, the said amount shall carry interest @ 10% per annum from today, till payment.
25. The M.A.No.309/2006 stands allowed and M.A.No.4394/2011, stands dismissed in view of the foregoing discussions and settled principles of law. Parties shall bear their own costs.
