RANI & ORS.versusNATIONAL INSURANCE COMPANY LTD. & ORS.

                        [2018] 9 S.C.R. 363                            363


                          RANI & ORS.                                  A
                                  v.
      NATIONAL INSURANCE COMPANY LTD. & ORS.
               (Civil Appeal Nos. 9078-9079 of 2017)
                          JULY 31, 2018                                B
      [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
             DR. D. Y. CHANDRACHUD, JJ.]
      Motor Vehicles Act, 1988:
       s.166 – Motor accident – Resulting in death of one and          C
injury to another person – Two separate claims (one by legal
representatives of deceased and another by the injured person) –
Tribunal granted compensation of Rs.4,53,000/- to the legal
representatives of the deceased and of Rs.1,72,700/- to the injured
claimant – Insurance Company filed appeal – High Court enhanced
                                                                       D
the compensation amount in respect of the deceased and absolved
the insurance company from paying the compensation amount
fastening the liability on the owner of the offending vehicle – In
appeal, claimants sought setting aside the order absolving the
insurance company as well as sought enhancement of the
compensation amount – Held: Claimants are not entitled to              E
enhancement of compensation as the High Court has granted more
than just compensation – However, Insurance Company is directed
to pay the compensation amount to the respective claimants, with
liberty to recover the same from the owner of the offending vehicle.
      Partly allowing the appeals, the Court                           F
       HELD: 1.1 The legal representatives of the deceased did
not file any appeal challenging the award passed by the Tribunal
determining the compensation amount. It is Insurance Company
who had challenged the award in favour of the claimants.
Nevertheless, the High Court enhanced the compensation                 G
amount payable to them by invoking power under Order 41 Rule
33 of the Civil Procedure Code (C.P.C.). The Insurance
Company has not challenged the said view taken by the High
Court as it has already succeeded in getting a finding from the

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364           SUPREME COURT REPORTS                     [2018] 9 S.C.R.


A     High Court that the liability to pay compensation amount was
      restricted to that of the owner of the offending vehicle.
      [Para 11][371-D-F]
             1.2 The Tribunal had found that no evidence regarding the
      income of the deceased was produced by the claimants. That
B     finding has not been over-turned by the High Court. The High
      Court, however, relied upon the driving licence and training
      certificate of the deceased and on that basis, determined the
      notional income of the deceased at the time of accident at
      Rs.10,000/- per month. Neither the driving licence nor the
      certificate could per se be made the basis to assume or infer that
C     the deceased was gainfully employed at the relevant time and
      moreso was earning income of Rs.10,000/- per month. Thus, the
      reason assigned by the High Court for enhancing the notional
      income of the deceased from Rs. 3000/- to Rs.10,000/- per month
      is irrational and tenuous. No tangible logic has been assigned to
D     discard the just finding recorded by the Tribunal in the backdrop
      of lack of evidence regarding the monthly income of the deceased.
      [Para 13][372-A-C]
             1.3 The High Court has already granted more than just
      compensation amount to the legal representatives of the
E     deceased. In that, even if the claim of the appellants regarding
      future prospects, additional medical expenses and additional
      interest amount was to be accepted, on the basis of the notional
      income of Rs.5000/- (Rupees five thousand) per month, the
      question of awarding additional or further compensation amount
      to the appellants in M.F.A. No.5874 of 2011 does not arise. The
F     appeal, however, would succeed to the limited extent that the
      amount of compensation determined by the High Court shall be
      first paid by Insurance Company with liberty to recover the same
      from the owner of the offending vehicle. [Para 14] [372-D-F]
           Singh Ram v. Nirmala and Ors. (2018) 3 SCC 800 ;
G          Pappu and Ors. v. Vinod Kumar Lamba and Anr.
           (2018) 3 SCC 208 : [2018] 1 SCR 195 – relied on.
            2. Even in respect of the appeal filed by the injured
      claimant, the Tribunal had found that he failed to produce any
      evidence regarding his monthly income and the permanent
H     disability suffered by him had been determined as not exceeding
     RANI & ORS. v. NATIONAL INSURANCE COMPANY                             365
                      LTD. & ORS.

10% to the whole body and compensation had been awarded to                 A
him on that basis. Resultantly, in this appeal also, Insurance
Company is directed to pay the compensation amount awarded
to the claimant in the first place, with liberty to recover the same
from the owner of the offending vehicle. [Para 15] [373-A-C]
                        Case Law Reference                                 B
      (2018) 3 SCC 800             relied on              Para 14
      [2018] 1 SCR 195             relied on              Para 14
      CIVIL APPELLATE JURISDICTION :                    Civil Appeal
Nos. 9078-9079 of 2017.                                                    C
      From the Judgment and Order dated 12.02.2016 of the High
Court of Karnataka at Bengaluru in M.F.A. No. 5874/2011(MV) C/W
M.F.A. No.5876/2011(MV).
      Anand Sanjay M. Nuli, Dharm Singh, Nanda Kumar K.B.
(for M/s. Nuli & Nuli, Advs.) Advs. for the Appellants.                    D
      Parmanand Gaur, Ekansh Bansal, Advs. for the Respondents.
      The Judgment of the Court was delivered by
       A. M. KHANWILKAR, J. 1. These appeals take exception to
the common judgment and order dated 12th February, 2016 passed by          E
the High Court of Karnataka at Bengaluru in M.F.A. No.5874 of 2011
(MV) and M.F.A. No.5876 of 2011 (MV). Both these appeals were
filed by the respondent No.1 (National Insurance Co. Ltd.) questioning
the correctness of the judgment and Award passed by the Motor Accident
Claims Tribunal, Bangalore dated 3rd January, 2011 in MVC No.7055 of
                                                                           F
2009 and 7056 of 2009, respectively.
       2. The former claim petition MVC No.7055 of 2009 was filed by
the legal representatives of Satish (the deceased) who had succumbed
to the injuries suffered, in an accident which occurred on 17th March,
2009, while he was riding a motorcycle bearing Registration
No.KA-05-EJ-4029 along with his friend, Anand, who was travelling          G
with him as a pillion rider. Police complaint regarding the accident was
lodged by Anand, appellant in Civil Appeal No.9079 of 2017. The
accident was caused by a lorry bearing Registration No.MH-43-U-3365,
which was being driven at a high speed in a rash and negligent manner.
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366            SUPREME COURT REPORTS                           [2018] 9 S.C.R.


A     The said lorry came from behind and hit the motorcycle on which Satish
      and Anand were going from Bangalore towards Tumkur. Both of them
      fell down and suffered serious injuries. Satish, who was riding the
      motorcycle, succumbed to his injuries. The appellant Anand was
      hospitalized as an indoor patient and had to undergo surgeries for
      fracture of collies (left) and ACL tear with MCL tear, right knee with
B
      hemarthrosis.
             3. Resultantly, separate claim petitions were filed before the
      MACT at Bangalore by the legal representatives of the deceased (Satish)
      and by Anand. The claim petitions proceeded ex parte against the owner
      of the offending lorry. After analysing the relevant evidence, the
C     Tribunal found that the accident had occurred due to the rash and
      negligent driving of the driver of the offending vehicle. The Tribunal also
      noted that the respondents had not challenged the chargesheet materials
      and other documents to disprove the case of the claimants and as such,
      there was no material to suggest that it was a case of contributory
D     negligence.
             4. Having said that, the Tribunal proceeded to determine the
      compensation amount to be paid to the claimants. While doing so, it has
      noted that the legal representatives of the deceased (Satish) did not
      produce any document to show his monthly income from mechanic work.
E     The Tribunal noted that the age of the deceased (Satish) was around 30
      years at the relevant time when the accident occurred, and there were
      three dependents in his family namely, his wife, daughter and mother
      (claimants). In the absence of evidence regarding income of the
      deceased (Satish), the Tribunal took notional income at the rate of
      Rs.3,000/- per month and after providing deduction of 1/3rd amount
F     towards personal expenses and applying multiplier of 17, determined the
      loss of dependency at Rs.4,08,000/- (Four Lakh Eight Thousand only).
      In addition, the Tribunal granted Rs.5,000/- towards transportation of
      dead body from hospital to home, Rs.10,000/- under the head of loss of
      consortium, Rs.10,000/- under the head of loss of love and affection,
G     Rs.10,000/- towards loss of estate and Rs.10,000/- towards funeral and
      obsequies ceremonies. The total compensation amount payable to the
      legal representatives of the deceased (Satish) was determined at
      Rs.4,53,000/- (Four Lakh Fifty Three Thousand only) with interest at
      the rate of 6% per annum from the date of petition till the date of deposit
      by the respondents. The Tribunal issued further directions about the
H     disbursal and appropriation of the amount amongst the three claimants.
     RANI & ORS. v. NATIONAL INSURANCE COMPANY                                367
          LTD. & ORS. [A. M. KHANWILKAR, J.]

       5. As regards the claim petition filed by Anand (claimant) in M.V.C.   A
No.7056 of 2009, the Tribunal noted that he had suffered fracture of
collies (left) and ACL tear with MCL tear, right knee with hemarthrosis
and had undergone operation for his left hand with K-wire. He was an
indoor patient in the hospital for 4 days and had spent huge amounts
towards medicine, treatment, food, conveyance and other charges.
                                                                              B
After analysing the evidence of PW-2 and PW-3, the Tribunal found
that the permanent disability suffered by Anand was not exceeding 10%
of the whole body due to fracture of collies and right knee injury. The
Tribunal further held that no evidence had been produced by him to
prove his income and therefore, the Tribunal assessed his notional
income at Rs.3,000/- per month. The Tribunal then proceeded to grant          C
compensation amount payable to Anand towards pain and suffering at
Rs.30,000/-, medical expenses at Rs.26,500/-, loss of earning during laid
up period at Rs.15,000/-, loss of future earning on account of permanent
disability at Rs.61,200/-, loss of amenities and future unhappiness at
Rs.15,000/-, attendant charges, diet and travelling at Rs.10,000/- and
                                                                              D
future medical expenses at Rs.15,000/-. The total compensation amount
was Rs.1,72,700/- (One Lakh Seventy Two Thousand and Seven
Hundred Only) payable by the respondents with interest at the rate of
6% per annum from the date of petition till the date of deposit with the
rider that the amount towards future medical expenses would not carry
any interest. The operative order passed by the Tribunal reads thus:          E
                               “O R D E R
          Both the petitions M.V.C. No.7055/2009 & 7056/2009 filed
      by U/Sec. 166 of MV Act by the petitioners are hereby partly
      allowed against the respondents with costs.
                                                                              F
           The petitioners in M.V.C.No.7055/2009 and 7056/2009 are
      awarded with total compensation amount of Rs.4,53,000/-
      (Rupees four lakhs fifty three thousand only) and Rs.1,72,700/-
      (Rupees one lakh seventy two thousand seven hundred only),
      respectively in both the cases, with 6% interest p.a. from date of
      petitions till date of deposit. Future medical expenses does not        G
      carry any interest in M.V.C. No.7056/2009.
            Both the respondents are jointly and severally liable to pay
      above said compensation amount with costs and interest to the
      petitioners. However, it is directed to 1st respondent to deposit
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368            SUPREME COURT REPORTS                            [2018] 9 S.C.R.


A           above compensation amounts within 30 days from date of this
            order, after deducting any amount paid as interim compensation
            being insurer of offending vehicle.
                After depositing of compensation amount awarded in M.V.C.
            No.7055/2009, a sum of Rs.1,15,000/- and Rs.60,000/-, in names
B           of first and third petitioners respectively shall be deposited as FD
            in any nationalized or scheduled Bank of their choice for a period
            of 5 years. No loan on said FD is permitted without permission of
            this tribunal.
               Remaining amount with occurred interest shall be released in
C           the names of first and third petitioner through account payee
            cheques on proper identification respectively and separately.
               Entire amount ordered in the name of minor second petitioner
            represented by her natural guardian and mother/first petitioner in
            M.V.C. No.7055/2009 shall be kept as FD in her name in any
D           Nationalized or scheduled Bank of her choice for a period of 5
            years or till she attain the age of majority, whichever is later. No
            loan on FD is permitted without permission of this tribunal. First
            petitioner is entitled to receive periodical interest on said FD amount
            for maintenance of petitioner No.2.

E               After deposit of compensation amount in M.V.C.
            No.7056/2009, a sum of Rs.85,000/- shall be kept as FD in the
            name of petitioner in any Nationalized or scheduled Bank of his
            choice for a period of 5 years. No loan on FD is permitted without
            permission of this tribunal.

F              Remaining amount together with accrued interest shall be re-
            leased in the name of petitioner in M.V.C. No.7056/2009 through
            account payee cheque on proper identification.
                Advocate’s fees is fixed at Rs.500/- in each case.
                Draw award accordingly.”
G             6. Against this common award passed by the Tribunal, the
      respondent No.1 Insurance Company carried the matter in appeal
      before the High Court being M.F.A. No.5874 of 2011 (MV) and M.F.A.
      No.5876 of 2011 (MV), respectively. The principal issue raised by the
      Insurance Company was that the Tribunal could not have fastened the
H
     RANI & ORS. v. NATIONAL INSURANCE COMPANY                                     369
           LTD. & ORS. [A.M. KHANWILKAR, J.]

liability on the insurer as the offending vehicle did not possess a valid          A
permit to operate in the State of Karnataka in view of Section
149(2)(a)(i)(a) of the Motor Vehicles Act, 1988. For, the permit was
limited to the State of Maharashtra.
       7. The appellants did not file substantive appeals but filed cross
objections in the appeals filed by the insurer bearing M.F.A.                      B
Crob. Nos.187 and 188 of 2013. The said cross objections, however,
came to be dismissed for non compliance of office objections.
Nevertheless, in the appeal filed by the Insurance Company against
compensation amount awarded to the deceased (Satish), the High Court
chose to enhance the compensation amount payable to the legal heirs of
the deceased (Satish) by taking into account his notional income as                C
Rs.10,000/- per month. This was done by the High Court without
overturning the finding recorded by the Tribunal that no evidence was
produced by the claimants to substantiate the monthly income of the
deceased (Satish) at the relevant time. What the High Court instead did
was to rely upon the driving licence of the deceased and a training                D
certificate of the deceased issued by Bajaj Auto limited, mentioning that
Satish had attended the training. As aforementioned, the High Court
redetermined the compensation amount payable to the legal
representatives of the deceased (Satish) on a higher notional income of
the deceased at the rate of Rs.10,000/- per month and arrived at the
following calculation on the basis of which the appeal was disposed of in          E
the following words:
      “9. The total compensation payable in M.F.A. No.5874/2011 comes
      to Rs.16,00,068/-, which is rounded off to Rs.16,00,000/- and the
      break up is as follows:-
                                                                                   F
      (i) Towards loss of dependency           : Rs.13,60,068/-
      (ii) Towards loss of consortium to R1 : Rs. 1,00,000/-
      (iii) Towards loss of love and affection : Rs. 1,00,000/-
           to R2
                                                                                   G
      (iv) Conventional heads                  : Rs.        40,000/-
                                              ----------------------------
                                     Total         Rs.16,00,068/-
                                             -----------------------------------
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370            SUPREME COURT REPORTS                            [2018] 9 S.C.R.


A           10. Accordingly, M.F.A.No.5874/2011 is allowed and the impugned
            judgment and award passed by the Tribunal in M.V.C.
            No.7055/2009 stands modified granting a compensation of
            Rs.16,00,000/- instead of Rs.4,53,000/- (enhanced compensation
            comes to Rs.11,47,000/-). The enhanced compensation shall carry
            interest at 6% p.a., from the date of petition till its deposit. The
B
            Secretary, Legal Services Committee is directed to communi-
            cate the order to the owner of the offending vehicle and also
            intimate him to deposit the amount within a period of three months.
            In case of failure to deposit the amount by the owner of the
            offending vehicle, the Legal Services Committee to take action
C           as per law.”
            As regards the appeal preferred by the insurer against the Award
      passed in favour of Anand, appellant in Civil Appeal No.9079 of 2017,
      the same was disposed of on the following terms:

D           “11. In M.F.A. No.5876/2011 the contention is liability cannot be
            fastened on the insurer as there is violation of permit by admittedly
            plying the vehicle in Karnataka. Therefore, liability is to be fastened
            on the owner.
            12. M.F.A. No.5876/2011 is disposed of. The owner is directed to
E           satisfy the award. The amount in deposit is directed to be refunded
            to the insurer-appellant.”
              8. The insurer succeeded before the High Court, as the liability to
      pay compensation amount has been restricted to that of the owner of
      the offending vehicle. Therefore, the insurer did not file appeal against
      the enhancement of compensation amount payable to the legal
F
      representatives of the deceased (Satish). The present appeal (Civil
      Appeal No.9078 of 2017), however, has been filed by the widow and
      daughter of the deceased (Satish). They have challenged not only the
      correctness of the view taken by the High Court absolving the insurer
      from the liability to pay compensation but also for further enhancement
G     of compensation amount. Similarly, Anand, the injured pillion rider, has
      also filed a separate appeal challenging the decision of the High Court in
      restricting the liability to pay compensation amount to that of the owner
      of the offending vehicle but also on the quantum of compensation amount.
      In both the appeals, it is alternatively urged that the compensation amount
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     RANI & ORS. v. NATIONAL INSURANCE COMPANY                                 371
           LTD. & ORS. [A.M. KHANWILKAR, J.]

payable to the respective claimants should be first paid by the Insurance      A
Company with liberty to recover the same from the owner of the
offending vehicle, respondent No.2 herein.
      9. The respondent No.1 Insurance Company, on the other hand,
submits that by virtue of statutory provisions, it cannot be made liable to
pay the compensation amount as the offending vehicle did not have a            B
valid permit for being operated in the State of Karnataka. It is also
contended that no direction be issued against the Insurance Company to
pay and recover as it may be difficult for the Insurance Company to
trace the owner of the offending vehicle. For, the owner of the
offending lorry has not chosen to appear even before this Court.
                                                                               C
       10. We have heard Mr. Anand Sanjay M. Nuli, learned counsel
appearing for the appellants and Mr. Parmanand Gaur, learned counsel
for the respondents.
       11. Taking the appeal filed by the legal representatives of the
deceased (Satish) first, as mentioned earlier, they did not file any appeal    D
challenging the award passed by the Tribunal determining the
compensation amount payable to them at Rs.4,53,000/- (Four Lakh Fifty
Three Thousand only) with interest at the rate of 6% per annum from
the date of petition till the date of deposit. It is respondent No.1
Insurance Company who had challenged the award in favour of the
claimants and in those appeals, the claimants (including appellants in         E
Civil Appeal No.9078 of 2017) filed cross objections which, however,
came to be dismissed for non- removal of office objections.
Nevertheless, the High Court enhanced the compensation amount
payable to them by invoking power under Order 41 Rule 33 of the Civil
Procedure Code (C.P.C.). The Insurance Company has not challenged              F
the said view taken by the High Court as it has already succeeded in
getting a finding from the High Court that the liability to pay
compensation amount was restricted to that of the owner of the
offending vehicle, namely respondent No.2 herein.
        12. Assuming that the legal representatives of the deceased (Satish)   G
(appellant in Civil Appeal No.9078 of 2017) could ask for enhancement
of the compensation amount in the present appeal whilst challenging the
finding of the High Court to absolve the Insurance Company of its
liability to pay the compensation amount, the question is whether the
appellants are justified in claiming further enhanced compensation amount.
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372                SUPREME COURT REPORTS                       [2018] 9 S.C.R.


A            13. The Tribunal has found that no evidence regarding the income
      of the deceased (Satish) was produced by the claimants. That finding
      has not been over turned by the High Court. The High Court, however,
      relied upon the driving licence of the deceased and training certificate of
      the deceased issued by Bajaj Auto Limited and on that basis, determined
      the notional income of Satish (Deceased) at the time of accident at
B
      Rs.10,000/- per month. Neither the driving licence nor the certificate
      could per se be made the basis to assume or infer that the deceased
      (Satish) was gainfully employed at the relevant time and moreso was
      earning income of Rs.10,000/- per month. In other words, the reason
      assigned by the High Court for enhancing the notional income of the
C     deceased (Satish) from Rs. 3000/- to Rs.10,000/- per month is irrational
      and tenuous. No tangible logic has been assigned to discard the just
      finding recorded by the Tribunal in the backdrop of lack of evidence
      regarding the monthly income of the deceased (Satish).
             14. We are of the view that the High Court has already granted
D     more than just compensation amount to the legal representatives of the
      deceased (Satish). In that, even if the claim of the appellants regarding
      future prospects, additional medical expenses and additional interest
      amount was to be accepted, on the basis of the notional income of
      Rs.5000/- (Rupees five thousand) per month, the question of awarding
      additional or further compensation amount to the appellants in M.F.A.
E     No.5874 of 2011 does not arise. The appeal, however, would succeed to
      the limited extent that the amount of compensation determined by the
      High Court shall be first paid by the respondent No.1 Insurance
      Company with liberty to recover the same from the owner of the
      offending vehicle (respondent No.2 herein). We are inclined to allow the
F     appeal to this limited extent, keeping in mind the exposition in Singh
      Ram Vs. Nirmala and Ors.1 and Pappu and Ors. Vs. Vinod Kumar
      Lamba and Anr. 2
             15. Reverting to the appeal preferred by respondent No.1
      Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted
G     in paragraph Nos.11 and 12 of the impugned judgment reproduced above,
      the High Court disposed of the said appeal by absolving the insurer from
      the liability to pay compensation amount. As noticed earlier, the
      appellant (Anand) did not file any appeal against the award passed by
      1
          (2018) 3 SCC 800
      2
H         (2018) 3 SCC 208
      RANI & ORS. v. NATIONAL INSURANCE COMPANY                                   373
            LTD. & ORS. [A.M. KHANWILKAR, J.]

the Tribunal for enhancement of compensation amount and the cross                 A
objection filed by him in the appeal filed by the Insurance Company
came to be dismissed for non- prosecution. Even in respect of this
appeal, the Tribunal had found that he failed to produce any evidence
regarding his monthly income and the permanent disability suffered by
him had been determined as not exceeding 10% to the whole body and
                                                                                  B
compensation had been awarded to him on that basis. Resultantly, we
intend to dispose of this appeal on the same basis by directing the
respondent No.1 Insurance Company to pay the compensation amount
awarded to the claimant (Anand) in the first place, with liberty to
recover the same from the owner of the offending vehicle (respondent
No.2).                                                                            C
       16. In view of the above, the appeals are partly allowed by directing
the respondent No.1 Insurance Company to first pay the compensation
amount to the respective claimants as determined by the High Court and
Tribunal as the case may be, with liberty to recover the same from the
owner of the offending vehicle, respondent No.2. The impugned                     D
judgment and order passed by the High Court stands modified to this
limited extent.
      17. The appeals are allowed in the aforementioned terms with no
order as to costs.
                                                                                  E

Kalpana K. Tripathy                                     Appeals partly allowed.




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