ORIENTAL INSURANCE CO. LTD. v. RADHAKRUSHNA MOHAPATRA
1999-12-07
P.K.MISRA
body1999
DigiLaw.ai
JUDGMENT : P.K. Misra, J. - The insurer has filed this appeal u/s 173 of the Motor Vehicles Act (hereinafer referred to as the "Act") challenging the award passed by the 2nd Motor Accident Claims Tribunal (S.D.), Berhampur, in M.A.C. No. 458/94 (106/94). 2. Claim application was filed by the parents and unmarried sisters of the deceased. It was alleged in the claim application that the deceased and another person were returning on a scooter. The offending truck bearing number AP-30/TO-414 belonging to present respondent No. 6 which was being driven in rash and negligent manner, dashed against the scooterist causing the death of the deceased. M.A.C. No. 458/94 (106/94) was filed by present respondents 1 to 5, whereas, M.A.C. No. 42/95 (207/94) was filed by present respondent No. 7, who was accompanying the deceased, for injuries sustained by him. Both the claim applications were taken up together. 3. The owner (respondent No. 6) remained ex-parte in spite of notice. The insurer denied the allegations made in the claim application and took the technical pleas that there was no insurance and there was no valid driving licence. 4. The Claims Tribunal found that the accident, occurred due to rash and negligent driving of the truck driver. It was further found that only present respondents 1 and 2 being the parents-were entitled to receive compensation which was fixed at Rs. 4,04,000/- in all. It was further found that the vehicle had been validly insured with the present appellant and driver of the offending vehicle had a valid driving licence. On these Endings, the present appellant was directed to pay the compensation to present respondents 1 and 2 in M.A.C. No. 458/94. 5. The present apppeal is confined to the award passed in M.A.C. No. 458/94. The only contention raised by the Counsel for appellant relates to the quantum of compensation payable to claimants-respondents 1 and 2. It has been submitted that the Claims Tribunal has committed illegality in applying the muliplier of 16. The loss of dependency has also been challenged. 6. Even though the owner had remained ex parte, no specific permission had been sought for, nor any order had been passed permitting the Insurance Company to contest the proceeding on merit, that is to say, on the questions of negligence and quantum.
The loss of dependency has also been challenged. 6. Even though the owner had remained ex parte, no specific permission had been sought for, nor any order had been passed permitting the Insurance Company to contest the proceeding on merit, that is to say, on the questions of negligence and quantum. In view of the decisions of the Supreme Court reported in 1997 (2) TAC 1 (SC) : I (1997) ACC 341, Narendra Kumar and Anr. v. Yarenissa and Ors. and 1998 (2) TAC 379 (SC) : I (1999) ACC 497 : Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr. the insurer cannot be permitted, to take up defences other than defences contemplated in Section 149 of the Act unless specific order is passed in terms of Section 170 of the Act and similarly, the insurer is not entitled to challenge the award on questions other than the questions contemplated in Section 149 of the Act. Thus, on the face of it, the appeal filed by the Insurance Company challenging the award only on the question of quantum payable is not to be entertained. 7. Apart from the above, even on merit, the contentions raised cannot be accepted. The main ground for challenging the award is that the Claims Tribunal should not have applied the multiplier of 16, as claimants 1 and 2 were aged 50 and 43 resectively. From the evidence on record, it is apparent that the deceased had a good academic career and had obtained M.C.A. qualification from the Utkal University. He was getting a salary of Rs. 2,500/- per month. Keeping in view the qualification, it is obvious that the deceased had a bright future and his salary would have increased in future. 8. In the decision reported in Adikanda Sethi (Dead) through Lrs. and Another Vs. Palani Swami Saran Transports and Another, the Supreme Court had applied the multiplier of 18, where the deceased was aged about 24 years and the parents were the claimants. In the decision reported in 1996 (2) TAC 286 (SC) : I (1996) ACC 592 UPSRTC and Ors. v. Trilok Chandra and Ors., the Supreme Court observed that ordinarily, a multiplier up to 18 can be applied. In the said case, the Supreme Court had applied the multiplier of 15, where the age of the deceased was 35 years.
In the decision reported in 1996 (2) TAC 286 (SC) : I (1996) ACC 592 UPSRTC and Ors. v. Trilok Chandra and Ors., the Supreme Court observed that ordinarily, a multiplier up to 18 can be applied. In the said case, the Supreme Court had applied the multiplier of 15, where the age of the deceased was 35 years. In the facts and circumstances of the present case, keeping in view the age of the deceased who was about 25 years, the age of the claimants-mother and father, and keeping in view the expectancy of life in Indian society, applying the multiplier of 16 cannot be said to be arbitrary or excessive. Similarly, in view of the fact that the deceased being a highly qualified technical person would have risen to a great extent in his life had he survived the unfortunate accident, compensation of Rs. 4,04,000/- having regard to all the facts and circumstances of the case cannot be characterized as excessive. 9. That apart, though the Tribunal has held that the unmarried sisters in the presence of their parents were not entitled to any amount, it is obvious that the deceased would have contributed substantially for the purpose of maintenance as well as marriage of his unmarried sisters. Even though the amount is now directed to be paid to the parents of the deceased, it is obvious that substantial portion of the said amount would be spent for the purpose of the marriage of the three daughters of claimants-respondents 1 and 2. Having regard to all these aspects, I do not think it is a fit case where the quantum of compensation should be reduced. 10. For the afroesaid reasons, the Misc. Appeal is dismissed. There will be no order as to costs.