JUDGMENT
A.M. Sapre, J.
1. The decision rendered in M.A. No. 1132/2001 shall also govern the disposal of other three connected appeals being M.A. No. 1079/2001, M.A. No. 1077/2001 and M.A. No. 1080/2001 because all these appeals arise out of one accident and common award.
2. We do not wish to burden our order by narrating the facts in detail as in all these appeals only two questions are involved. Firstly, whether the Insurance Company was rightly exonerated from the liability arising out of accident in question and secondly, any case for further enhancement in the compensation than what has been awarded by the Tribunal in each of the cases, is made out and if so to what extent?
3. So far as the issue in regard to liability of Insurance Company is concerned, though we are inclined to uphold that finding but keeping in view the law laid down by the Full Bench of this Court in a case , Jugal Kishore and Ors. v. Ramlesh Devi and Ors., we grant liberty/right in favour of the Insurance Company to recover the compensation awarded by the Tribunal in favour of the claimants from the insured i.e., owner of insured vehicle involved in accident in the same proceedings as was observed by the Full Bench in paragraph 22 of the said decision. These observations are based upon the law laid down by the Supreme Court in the cases mentioned in para 22 itself and, therefore, we are of the opinion that such a right/liberty can always be granted in favour of the Insurance Company for making recovery of the awarded sum from the insured on proving the breach of policy qua them.
4. Submission of learned Counsel for Insurance Company in this regard was based upon a decision rendered in National Insurance Co. Ltd. v. V. Chinnamma and Ors. III (2004) ACC 1 (SC). This decision, in our opinion, only holds that Insurance Company is not liable. We too have held by upholding the finding in this regard but had added only one rider by granting them liberty to recover the amount from the insured. This we have done by placing reliance upon the law laid down by this Court in the aforementioned Full Bench case which was based upon the law laid down by the Supreme Court in the cases mentioned in paragraph 22 of the said order. In this view of the matter, we are of the view that we have not departed from the view taken by the Supreme Court in these type of cases.
5. Coming to the facts of the case so far as M.A. No. 1132/2001 is concerned, one Kamal aged 18 years died in the accident while travelling in the offending vehicle i.e., tractor-trolley. Claimants i.e., the L.Rs. of Kamal were awarded a total compensation of Rs. 1,62,000/-. We have gone through the evidence adduced by the parties on the question of income of the deceased and also with a view to find out that multiplication is permissible in such cases. We find that the evidence led by the claimants show that Kamal was earning around Rs. 60,000/- to 70,000/-per year from the agriculture and its produce. There is no documentary evidence except the oral evidence led by the claimants in support of this evidence. The Tribunal has taken into account notional income of Rs. 15,000/- per year as against the evidence led by the claimants. The Tribunal has applied the multiplier of 16 and has accordingly worked out the compensation of Rs. 1,62,000/-, after adding funeral expenses amounting to Rs. 2,000/-. No other compensation under other conventional heads were awarded.
6. Having appreciated the evidence led by the claimants and having taken into account all facts and circumstances of the case including non award of compensation on other functional amount, we consider it proper, reasonable and adequate, to award a total sum of Rs. 2,00,000/- in place of Rs. 1,62,000/- awarded by the Tribunal. In our opinion an award of Rs. 2,00,000/- in the given circumstances and based upon our appreciation of evidence brought on record appears to be reasonable, adequate and proper. The enhanced compensation amount shall carry interest @ 6% per annum from the date of application till realisation. All other findings recorded by the Tribunal are upheld being not challenged, such as nature of accident, liability as indicated above.
7. This takes us to the other appeal being M.A. No. 1079/2000. In this case one Gopalsingh aged 50 years died leaving behind his L.Rs. who filed the claim petition. After taking into account all facts and circumstances of the case, his income, dependency and applying the multiplier, the Tribunal was pleased to award a total sum of Rs. 3,19,000/-.
8. Although, learned Counsel for appellant has made attempt to contend that a case for enhancement is made out in the compensation already awarded by the Tribunal. We are, however, satisfied that the compensation so awarded by the Tribunal appears to be reasonable, proper and adequate, calling no enhancement in the same.
9. Accordingly and in view of the aforesaid disucssion, this appeal (M.A. No. 1079/2001) fails in so far as it relates to the prayer made for enhancement in compensation is concerned. So far as the right to recovery against the Insurance Company, is concerned, it is already granted in favour of the appellants supra and, therefore, no more discussion in that regard is called for.
10. This takes us to appeal being M.A. No. 1077/2001. This is a injury case. Claimant Babulal suffered injury while travelling in the offending vehicle. The Tribunal after taking into consideration the nature of injury sustained by Babulal awarded a sum of Rs. 60,000/- as total compensation payable to him. It is this determination which is sought to be challenged by the appellant in this appeal claiming further enhancement. So the question for determination that arises for consideration in this appeal is whether any further case for enhancmenet of compensation amount as awarded by the Tribunal, is made out?
11. Having heard learned Counsel for the parties and having gone through the evidence on record and taking into account the nature of injury suffered and the treatment taken and the disability seems to have occurred, we consider it proper to enhance the same to Rs. 75,000/- in place of Rs. 60,000/- thereby making an addition of Rs. 15,000/- over and above what was awarded by the Tribunal to the appellant. The enhanced amount shall carry interest @ 6% per annum from the date of application till realisation.
12. As a result, this appeal is allowed in part. The impuned award is modified to the extent indicated above. All other findigns recorded by the Tribunal are upheld being not challenged, such as nature of accident, liability except to the extent indicated supra.
13. This takes us to appeal being M.A. No. 1080/2001. This is also an injury case. One Laxminarain suffered injuries while travelling in the offending vehicle and for that he was awarded a total sum of Rs. 20,000/- by the Tribunal. It is this determination which is sought to be challnged by the appellant in this appeal claiming further enhancement. So the question for determination that arises for consideration in this appeal also is whether any further case for enhancement of compensation amount as awarded by the Tribunal, is made out?
14. After having heard learned Counsel for the parties and having perused the record of the case the only area where we can increase the compensation in this case appears to be of pain and suffering. We, therefore, add Rs. 5,000/- over and above what has been awarded by the Tribunal and modifying the award to the extent of Rs. 25,000/- instead of Rs. 20,000/-. This we are doing because the claimant did not file any medical expenses and the disability certificate and, therefore, there is no case made out for making any enhancement so far as disability and injury issue is concerned.
15. Accordingly and in view of the aforesaid discussions, this appeal succeeds and is hereby allowed in part. The impugned award is modified to the extent indicated above. The enhanced amount shall carry interest @ 6% per annum.
16. We make it clear by making these directions that in view of the law laid down by the Full Bench the Insurance Company will first deposit the amount in the Tribunal awarded by the Court in each case and then in turn will proceed to recover the money from the insured in the same proceedings.
17. Counsel fee Rs. 1,000/- in each case.