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2001 DIGILAW 745 (PAT)

New India Assurance Company Ltd. v. Sushila Devi

2001-08-16

S.K.KATRIAR

body2001
Judgment 1. This appeal at the instance of the Insurance Company is directed against the judgment and order dated 12.4.99, passed by the learned 4th Addl. District Judg-cum-Addl. Claims Tribunal, Munger, in Claim Case No. 53 of 1997 (Sushila Devi V/s. Ajay Kumar & Ors), whereby claim application under Section 163A of the Motor Vehicles Act, 1988 , has been allowed and the claimant has been granted compensation quantified at Rs. 1,02,000/- within one month from the date of the order but without any interest. 2. An accident took place on the road near Dakra Pool within the limits of Naya Ramnagar Police Station on 13.8.97 at about 12 noon which led to a criminal case, being Naya Ramnagar PS Case No. 70 of 1997 under Sections 279, 379, 304 IPC. A truck bearing registration no. BR-08G-5051, and insured with the appellant company, had struck one Nitish Kumar, a boy, according to the claimant-applicant, to be of 10 years. As a result of the accident, Nitish Kumar died. However, according to the postmortem report, the boy was aged 8 year at the time of his death. The parents of the deceased filed Claim Case under Section 163A of the Act claiming compensation to the extent of Rs. 2,25,000/- with interest in addition to the expenses of funeral, loss of consortium loss of estate and for expenses in medical treatment. 3. Written statements were filed by ther owner of the vehicle as well as the Insurance Company. The owner of the vehicle was opposite party no.1 before the Tribunal and took the stand that the vehicle was insured with the Insurance Company and, therefore, he is not liable to pay the compensation which is realizable from the Insurance Company. The Insurance Company was opposite party no. 2 before the Tribunal. In its written statement, the company took the stand that the claim is time-barred, suffers from non-joinder and misjoinder of parties, the owner of the vehicle did not have valid route permit, and the driver of the vehicle has not been made a party. It also took the stand that the driver of the vehicle was not is possession of a valid licence. Therefore, the Insurance Company was not liable to pay the compensation. 4. It also took the stand that the driver of the vehicle was not is possession of a valid licence. Therefore, the Insurance Company was not liable to pay the compensation. 4. On a consideration of the materials on record, the Tribunal passed the impugned order whereby he held that the accident had taken place resulting in death of Nitish Kumar. It also held that the vehicle in question, namely, BR 08G-5051, was owned by respondent no.2, and was insured by the Insurance Company. In other words, in view of the position that the driver has not been impleaded as party respondent. The learned Tribunal has held that there is no need to decide the age of the child because the difference is small and has no bearing on the result of the claim. It has decided the question of dependency and after applying the multiplicity of 10, held that compensation of Rs. 1,00,000/- would be adequate. He has granted a sum of Rs. 2000/- towards funeral expenses. He has further held that in the facts and circumstances of the case there is no question of compensation for loss of consortium. The Tribunal has, therefore, granted a total compensation of Rs.1,02,000/-, but no interest has been granted. 5. While assailing the impugned order, learned counsel for the appellant submits that the claimants have not established that the driver was in possession of a valid licence. He next submits that law is well settled that in case the person is below the age of 18 years, there is no question of deciding the issue of dependency, the compensation cannot be granted by applying the multiplier system, and lumpsum amount ought to have been granted. He relies on the judgment of a learned Single Judge of this Court reported in 1998(2) PLJR 616 (National Insurance Co. V/s. Phoolbharan Devi & Ors.) and submits that the impugned award is under. Section 163A of the Act, and not under Section 166 of the Act. 6. On the other hand, (earned counsel for the claimant (respondent no.1) submits that the appellant has not been able to make out a case for reduction in the impugned award. On the contrary, in his submission, the Tribunal has not granted compensation under various heads which ought to have been granted. 6. On the other hand, (earned counsel for the claimant (respondent no.1) submits that the appellant has not been able to make out a case for reduction in the impugned award. On the contrary, in his submission, the Tribunal has not granted compensation under various heads which ought to have been granted. He relies on a Division Bench judgment of Gujrat High Court reported in AIR 1996 Gujrat 130 (Kantibhai Valabhai Patel V/s. Pravin Nathubhai). 7. Having considered the submissions, I am of the view that the Tribunal has erred in applying the multiplier system. It is well settled that in case of persons below the age of 18 years who are non-earning members, the multiplier system should not be applied. It should be done on the basis of a lumpsum quantification. Learned counsel for the appellant has rightly relied on the judgment of this Court reported in 1998(2) PLJR 617 (Oriental Insurance Co. Ltd. V/s. Paspati Prasad). The same related to the death of a child aged six years who was naturally a non-earning member and the Tribunal had awarded a sum of Rs.1,25,000/- as compensation. The Insurance Company had on similar ground appealed before this Court which was allowed, and the amount of compensation was reduced to. Rs. 50,000/- on the basis of no-fault liability. I would prefer to apply and follow the judgment of our own High Court in preference to the judgment of the Gujrat High Court which is without any reasons. In that view of the matter, I hereby hold that the Tribunal has erred in applying the multiplier system. It ought to have granted compensation on lumpsum basis. Accordingly, a sum of Rs. 50,000/- wouid be adequate in the facts and circumstances of the present case. However, the same shall carry interest @ 10% from the date of the application till the date of realisation. Admittedly, no part of the compensation has been paid to the applicant. In that view of the matter, let the statutory amount of Rs. 25,000/- deposited in this Court be handed over by a cheque in the name of Smt. Sushila Devi (respondent no.1) and be handed over to Mr. Ambarish Kumar Jha, learned counsel for respondent no. 1. Admittedly, no part of the compensation has been paid to the applicant. In that view of the matter, let the statutory amount of Rs. 25,000/- deposited in this Court be handed over by a cheque in the name of Smt. Sushila Devi (respondent no.1) and be handed over to Mr. Ambarish Kumar Jha, learned counsel for respondent no. 1. The balance amount per A/c Payee cheque or demand draft in favour of Smt. Sushila Devi shall be handed over by the appellant company to the learned court below who, in its turn, will hand over the same to the claimant or her lawyer by A/c. Payee Cheque or Demand Draft within a period of one month from today. 8. In the result, this appeal is disposed of with the aforesaid modification.