Branch Manager, National Insurance Company Ltd. , G. T. Road, Sasaram, Rohtas v. Shanti Devi
1996-07-10
J.N.DUBEY
body1996
DigiLaw.ai
JUDGMENT J.N. Dubey, J. This appeal is directed against the award dated 31st March of the Additional District Judge–mum. Motor Accidents Claims Tribunal, Rohtas, Awarding Rs. 1,44,000/- as compensation to the respondents 1 to 2 with 12% interest from the date of filing of the claim petition. 2. It appear that respondents 1 to 2 filed a claim petition before the Claims Tribunal stating that on 24th January 1991 at about 9.30 P.M. their son, Dhanjay Prasad Gupta aged about 18 years, a fruit seller, was returning from the market When he reached near the gate of Murli Manohar Mill, on the main road of Nokha Bazar, he was knocked down by the Tractor no. BRZ 3010 causing serious injuries to him. He was removed to the Nokha Hospital where he was declared dead. It was further stated that the tractor was being driven rashly and negligently at the time of accident. 3. The owner and the driver of the tractor appeared before the Claims Tribunal but neither filed written statement nor contested the claim petition. However, appellant, the Insurance Company, filed written statement stating that although the tractor was insured with it but in view of the fact that the same was being driven in violation of the condition of the Policy, it was not liable to pay any compensation. 4. Respondents 1 and 2 appeared themselves before the Claims Tribunal and also examined three more witnesses in support of their claim. On the other hand, as stated above, the owner and driver of the tractor neither filed written statement not contested the claims. The Insurance Company, which contested the claim also did not lead any evidence in support of their claim that the tractor was being driven in violation of the condition of the Policy. As a matter of fact, it did not even bother to file a copy of the Insurance Policy. Thus, on one hand there was overwhelming evidence from the side of the respondents 1 and 2 to prove the factum of incident, the age and income of the deceased, on the other hand there was no evidence at all in rebuttal on any point including that the tractor was being driven in violation of the condition of the Policy. 5. The Claims Tribunal after considering the evidence on record awarded Rs.
5. The Claims Tribunal after considering the evidence on record awarded Rs. 1,44,000/- as compensation with 12% interest from the date of filing of the claim petition. Feeling aggrieved the Insurance Company has filed this appeal. 6. Heard the learned counsel for the appellant and perused the record. 7. Learned counsel for the appellant contended that the tractor was being driven in violation of the condition of Policy and, as such, the appellant was not liable to pay any compensation. He further contended that compensation could not be legally awarded on a multiplier of twenty. I find no substance in the first argument of the learned counsel. Admittedly the appellant neither filed copy of the Insurance Policy nor lead any other evidence in support of their claim that the tractor was being driven in violation of the condition of the policy and, therefore, it cannot be reasonably claimed that the Claims Tribunal erred in any manner in rejecting this plea. Firstly, breach of every condition of Policy could not absolve the Insurance Company of its liability and secondly there was no material on record to establish the breach of any condition. However, I find substance in the argument of the learned counsel that compensation could not be legally calculated on a multiplier of twenty. In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas (Mrs.) and ors (1994) 2 Supreme Court Cases–176, the Supreme Court held thus:– “It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period of life expectancy was lost, deducted a percentage therefrom towards the uncertainties of future life and award the resulting same as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would between 30 and 34. This is wholly impermissible. We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis.
This is wholly impermissible. We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary case, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Court have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicle Act, 1939 insofar as it envisages the compensation to be ‘just’, the statutory determination of a ‘just’ compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a ‘just’ compensation which will make for uniformity and certainly of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases. “The multiplier represents the number of years’ purchase on which the loss of dependency is capitalized. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs. 1, 00,000 is invested at 10% annual interest, the interest ill take care of he dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000 would be 20. The multiplier, i.e. the number of years purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowance for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum.
Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person "or that of the dependents whichever is higher) goes up." From the above, it is clear that according to the Supreme Court the operative multiplier should rarely exceed 16 as maximum. 8. It will not be out of place to point out here that by Motor Vehicles (Amendment) Act, 1994, after section 163 of the Principal Act a new section 163A has been inserted which reads as under : “Special provisions as to payment of compensation on structured formula basis (1) Not withstanding anything contained in this Act of in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising but of the use of motor vehicle, compensation, as indicated in the second Schedule, to the legal heirs of the victim, as the case may be. Explanation-For the purposes of this sub-section “permanent disability” shall have the same meaning and extent as in the workmen’s Compensation Act, 1923 (8 of 1923) (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicle concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.” 9. The multipliers for calculating the compensation of a victim according to the Second Schedule are :– AGE OF VICTIM MULTIPLIER Up to 15 Yrs. 15 Above 15 Yrs but not exdg 20 Yrs. 16 Above 20 Yrs but not exdg 25 Yrs. 17 Above 25 Yrs but not exdg 30 Yrs. 18 Above 30 Yrs but not exdg 35 Yrs. 17 Above 35 Yrs but not exdg 40 Yrs. 16 Above 40 Yrs but not exdg 45 Yrs. 15 Above 45 Yrs but not exdg 50 Yrs. 13 Above 50 Yrs but not exdg 55 Yrs. 11 Above 55 Yrs but not exdg 60 Yrs.
18 Above 30 Yrs but not exdg 35 Yrs. 17 Above 35 Yrs but not exdg 40 Yrs. 16 Above 40 Yrs but not exdg 45 Yrs. 15 Above 45 Yrs but not exdg 50 Yrs. 13 Above 50 Yrs but not exdg 55 Yrs. 11 Above 55 Yrs but not exdg 60 Yrs. 8 Above 60 Yrs but not exdg 65 Yrs. 5 Above 65 Yrs 5 From the above, it is clear that operative multiplier cannot exceed beyond 18 in any case. 10. The multiplier for calculating the compensation of the victim of the age group of 15 to 20 years is 16. Since the age of the deceased was 18 Years the correct multiplier for calculating compensation in this case under the amended provision would be 16. 11. In General Manager, Kerala S.R.T.C Trivandrum (Supra) the Supreme Court applied the multiplier of 12 for calculating the compensation of the deceased who was 39 years of age, while the multiplier for calculating the compensation for the victim of that age group under the Second Schedule is 16. Learned counsel for the appellant contends that as the multiplier for both the age group of 15 to 20 and 35 to 40 is 16 in the Second Schedule, therefore, when the Supreme Court has calculated the compensation on the multiplier of 12 for the victim of 39 years, the same should be applied in this case, even if the amended provision is not applicable to this case. In my opinion it is not necessary for me to decide whether the amended provision in applicable to the present case or not in as much as the case can be decided on the basis of decision of the Supreme Court in General Manager Kerala S.R.T.C. Trivandrum (supra) without taking into consideration the multiplier contained in the Second Schedule. Since according to the Supreme Court the operative multiplier should rarely exceed 16, in my opinion, it will be appropriate to calculate the compensation on the basis of multiplier of 16 instead of 20, Thus, the amount of compensation will be reduced from Rs. 1,44,000/- to Rs. 1,15,200/-. 12. In the result, the appeal succeeds and is allowed in part. The amount of compensation awarded to the respondents 1 and 2 is reduced form Rs. 1,44,000/- to Rs. 1,15,200/-. No order as to costs. Appeal allowed in part.