United India Insurance Co. Ltd. v. Babubhai Ravji Patel
2002-01-23
R.J.KOCHAR
body2002
DigiLaw.ai
JUDGMENT - KOCHAR R.J., J.:-The appellant, the United India Insurance Company Ltd. are aggrieved by the judgement and order dated 8th April 1999 passed by the learned Member of the Motor Accidents Claim Tribunal (MACT) in the application for compensation filed by the parents of the deceased, who met with the fatal accident on 30th June, 1996. It was the case of the applicants (respondent Nos. 1 and 2 herein) in the application that their son was 23 years old on the date of the accident and his gross salary was Rs. 3,100/-. According to them, he was riding scooter while going to his job and was run down by a truck which belonged to the opposite party, respondent No. 3 herein, who had insured the said vehicle with the appellants. From the impugned order it appears that the opposite party, the truck owner, did not contest the application and the Tribunal proceeded ex parte against him. The appellants contested the application on the ground of jurisdiction to pass an award on the basis of no fault liability and that section 144 had an over-riding effect on section 163(a) vide section 147(i). It was also contended by the appellants that they had right to resist the claim by showing contributory negligence on the part of the deceased and that such a right could not be taken away under the provisions of section 163(a) and 163(b) of the Motor Vehicles Act, 1988 (for short the M.V. Act). 2. On the basis of the evidence, the learned Member of the Tribunal framed points for determination and recorded evidence adduced on behalf of the applicants. The appellants did not enter the witness box to lead any evidence contrary in rebuttle. They have however, cross-examined the witness examined by the respondents. The learned Tribunal held that the application filed by the applicants was maintainable under section 163(a) and that the applicants are entitled to claim compensation on the structured formulae under section 163(a) of the M.V. Act and the Tribunal computed the amount of compensation payable to the applicants to the tune of Rs. 4,72,500/- from the opposite party and the appellants jointly and servally. The Tribunal gave its award on 16th June, 1999 directing the appellants to deposit the amount of Rs. 4,72,500/- and apportioned the amount of compensation between the applicants. 3.
4,72,500/- from the opposite party and the appellants jointly and servally. The Tribunal gave its award on 16th June, 1999 directing the appellants to deposit the amount of Rs. 4,72,500/- and apportioned the amount of compensation between the applicants. 3. Shri Sawant, the learned Counsel for the appellants has raised the following points in support of the appeal. i) Under section 163(a)(ii) of the Act, the appellant has a right to plead and establish negligence of the deceased or victim. According to the learned Counsel, the said provisions exempts the claimants from pleading or establishing that the death or permanent disablement in respect of which the claim has been made was due to wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person. Shri Sawant submits that under the said provision, the claimants need not plead or establish the wrongful act or neglect or default of the offending vehicle but the insurance company as well as the owner of the offending vehicle can always so plead and that there is no such specific bar on them. According to him, the Tribunal had not allowed the appellants from pleading and establishing the fact that the victim was negligent and that the accident took place on account of the wrongful act and neglect and default of the victim who did not give signal before taking right turn as a result of which the offending vehicle dashed the scooter on the basis and he died on the spot. 4. This point was canvassed before the Division Bench of this Court (A.P. Shah and S.A. Bobde, JJ.) in a bunch of writ petitions. By their judgement dated 26th July, 2001, the division bench held that there is no force in the aforesaid contention. The learned Judges have aptly described the purpose of section 163(a) in para 9 which reads as under:- "The purpose of this section and the Second Schedule is to avoid long drawn litigation and delay in payment of compensation to the victims or his heirs who are in dire need of relief. Thus the legislature has finally decided to give effect to the suggestions made by the Courts in order to provide social security and instant relief to the victims and their heirs.
Thus the legislature has finally decided to give effect to the suggestions made by the Courts in order to provide social security and instant relief to the victims and their heirs. It would be a complete travesty of justice to brand this salutory provisions as violative of Article 14 of the Constitution as it is intended to provide much needed social security to the victims of the accidents and their relatives." The learned Judges have considered after referring to several authorities cited before them. The point as canvassed by Shri Sawant has, therefore, been finally decided by the division bench of this court and, therefore, it is not open to the appellants to canvas the said point. 5. Shri Sawant has further attacked the judgement of the Tribunal on the ground that the Tribunal has given 17 as the multiplier on the basis of the age of the deceased. According to Shri Sawant, the correct multiplier would be only 13 as according to the learned Counsel, the deceased was not the only son of the applicants which also have another younger son and that the father of the deceased was himself a businessman and that he was not a dependent on the victim and that the father of the victim himself was not very old man as his age at the relevant time was only 48 years. Even the question of the multiplier has been considered by the division bench following the judgement of the Supreme Court. According to the Tribunal, the application was made under section 163(a) and was required to be decided in accordance with the simple language used in the said section. The applicants are entitled to get compensation under the structured formulae laid down by the legislature under section 163(a) read with Second Schedule.
According to the Tribunal, the application was made under section 163(a) and was required to be decided in accordance with the simple language used in the said section. The applicants are entitled to get compensation under the structured formulae laid down by the legislature under section 163(a) read with Second Schedule. I do not find any fault with the decision of the Tribunal in strictly following the provisions of section 163(a) which reads as under:- "163(a) Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or 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 authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be." Explanation :For the purpose 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 vehicles 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." The Tribunal has computed the amount of compensation considering the age group of the deceased and the annual income of the deceased which was proved by the applicants. The Tribunal has taken the multiplier as 17 to compute the compensation as prescribed in the 2nd Schedule. The Tribunal could not have taken any other multiplier as there is a mandate in section 163-A that the compensation would be in accordance with second schedule. There is no discretion left to the Tribunal or to this Court to vary or modify or change the multiplier other than what is prescribed in the second schedule of the Act. 6. I, therefore, do not find any substance in the submissions of Shri Sawant.
There is no discretion left to the Tribunal or to this Court to vary or modify or change the multiplier other than what is prescribed in the second schedule of the Act. 6. I, therefore, do not find any substance in the submissions of Shri Sawant. As rightly pointed out by Shri Kotak, the learned Counsel for the respondents herein that the amount of compensation under this Act is not based on the dependance on the deceased as is the case under the Workmen Compensation Act, 1926. The M.V. Act provides for compensation to the claimants or the heirs of the victim who does in the accident caused by the offending vehicle which is insured with the insurance company. The factor of dependency is not relevant under the M.V. Act while granting compensation. According to Shri Kotak it is an atonment of the loss caused to the family of the deceased. In the present case, the applicants have lost their eldest son who was on the threshold of blossom of the life. It is possible that the future of the boy would have been brighter. It is not the economic dependency of the appellants on their son but it is the love and affection and company which the appellants have lost. There is no tabular compensation or measurement for this unexplained factor. It cannot be said that the father who was 48 years old was himself a businessman and therefore, the amount of compensation should be reduced or denied or that since the applicants have another son to depend on the insurance company should be given benefit on that count. Such arguments are stated only to be rejected. If such submissions are accepted they would simply kill the spirit of the Act. 7. In the case of (Lata Wadhwa others v. State of Bihar others)1, reported in 2001 A.C.J. 1735, the Supreme Court has observed, "loss of a child to the parents is irrecoupable and no amount of money could compensate the parents." The Supreme Court has touched the heart of the chord of compensation. There is neither a rod to measure nor a scale to weigh the grief and loss suffered by the parents on the accidental death of their children. None has prescribed a multiplier as yet to heal the life long wounds which are left by the departing children.
There is neither a rod to measure nor a scale to weigh the grief and loss suffered by the parents on the accidental death of their children. None has prescribed a multiplier as yet to heal the life long wounds which are left by the departing children. By providing some monetary compensation we only try to dress up the wounds and nothing more. The parents crave for child is not for economic selfish need in future. The first and foremost desire to have the children is for the progeney and future family generations. The concept of economic dependence is not in the forefront or at the most mental level of the parents. There are innumenable factors and subjective feelings beyond any description in prose. The economic dependence at the most would be a secondary consideration though important in the mundane life as we cannot live without bread and the bread earner. It, therefore, cannot be said that the amount of compensation wholly and exclusively depends on the degree of economic dependence of the parents on their predeceased son or daughter. The economic dependence is only a part of the whole dependence on them for love and affection and attachment. The loss of a son or a daughter can be compensated in the terms of money only to the extent of economic dependence and never for the rest of the emotional or sentimental involvement in the children in our life. Therefore, the Supreme Court has very aptly stated that loss can never be recouped or compensated. The amount of compensation may mitigate the hardship in economic life to some extent and it may soften to a little extent the rigour of sharp difficulties that might be faced by the parents. It is not the loss of an earning hand but it is the loss of the real life in the life of the parents that must be considered as a major factor to be tried to be compensated. I am, therefore, not able to appreciate and accept the submissions of Shri Sawant that since the deceased son of the parents was unemployed, the parents had no economic dependence disentitling them to compensation awarded to them. He was a young boy of 23 years and it can never be presumed that he would have remained unemployed for ever in his life.
He was a young boy of 23 years and it can never be presumed that he would have remained unemployed for ever in his life. He would have been certainly of economic help to his parents even soon, had he not been crushed to death by the fatal accident. The parents are, therefore, entitled to the amount of compensation awarded for not only loss of economic dependence but also for emotional and sentimental loss suffered by them forever. The pain of loss of their son would be ever lasting till their own end. How and who would compensate them for this life long painful memory? The Insurance companies represent the society to pay for the human errors of its members causing injuries to and death of other members. The society or the community as a whole has to collectively undergo sufferings and to suffer the penace for the disabled injured and the bereaved family of the deceased to enable them to bear or endure the irreparable loss of the dear and near, kith and kin. It would be a social atonement, in a way. 8. Shri Kotak the learned Counsel for the applicants respondents has pointed out that the Tribunal has missed to grant interest on the amount of compensation. He submits that though he has not filed any cross objection he is making the said prayer that interest be provided under section 171. It is clear from the judgment and the Tribunal that there is no provision for interest. Under section 171 of the M.V. Act the Tribunal has power to award simple interest at such rate and from such date not earlier than the date of making the claim. In my opinion as an Appellate Court, I can consider the request which has not been specifically granted and which is not been specifically denied by the Tribunal. There is no reason why the applicants should be deprived of the benefit of section 171 of the Act. I, therefore, award interest at the rate of 6% p.a. under section 171 from the date of claim. In the result as the appeal is dismissed, the appellants shall compute the entire amount of compensation with interest. 9. It is submitted that the principal amount of Rs. 4,72,500/- is deposited in the Court and has been invested. The appellants to deposit the interest amount on Rs.
In the result as the appeal is dismissed, the appellants shall compute the entire amount of compensation with interest. 9. It is submitted that the principal amount of Rs. 4,72,500/- is deposited in the Court and has been invested. The appellants to deposit the interest amount on Rs. 4,72,500/- from the date of award till today within a period of eight weeks from today. The respondents-applicants are entitled to withdraw the said amount alongwith interest. It is not necessary to send back this matter for apportionment of the amount awarded. The entire amount shall be divided between the applicants equally. 10. I do not find any illegality or infirmity in the impugned judgment and order of the Tribunal. There is no substance and merit in the appeal and the same deserves to be dismissed with cost quantified at Rs. 5000/-. Appeal dismissed. -----