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2007 DIGILAW 1285 (PAT)

Hira Muni Kuwar v. Anil Kumar Sharma

2007-08-06

S.N.HUSSAIN

body2007
Judgment S.N.Hussain, J. 1. Both the Miscellaneous appeals have been filed against the judgment and award dated 27.1.1998 by which the learned 9th Additional District Judge-cum-Motor Accident Claims Tribunal, Saran allowed Claim Case No. 42 of 1993 in part and directed the Oriental Insurance Co. Ltd. and its authorities (respondent 2nd set of M.A. No. 158/98 and appellants of M.A. No. 168/98) to pay to the claimants (appellants of M.A. No. 158/98 and respondent 1st set of M.A. No. 168/ 98) compensation to the tune of Rs. 1,63, 200.00 apart from amounts for loss of estate, loss of consortium and funeral expenses, although claimants had claimed a compensation of rupees ten lacs. Subject matter as well as parties are the same in both the aforesaid appeals, hence they have been heard together and are being disposed of by this common judgment. 2. The claimants have challenged the aforesaid judgment and award in M.A. No. 158 of 1998 on the ground that the compensation fixed by the Tribunal was inadequate as it was fully proved that the deceased Kaushal Kishore, who was the son, husband and father of the claimants, was about 22 years of age and was earning Rs. 2,500.00 per month from his business of sale of clothes, but the Tribunal without any material assumed that he was unemployed and treated his income to be only Rs. 1,200.00 per month and fixed the compensation on its basis. 3. The Oriental Insurance Co. Ltd. and its authorities have challenged the aforesaid judgment and award in M.A. No. 168 of 1998 on the grounds that the Tribunal had wrongly used multiplier of 17 although the multiplier of 9 should have been applied and that the Tribunal wrongly applied the provision of Sec. 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act for the sake of brevity) although the said provision was inserted into the Act by Amending Act 54 of 1994, which cannot be applied retrospectively to the accident in question which took place prior to 1994. 4. Claim Case No. 42 of 1993 was filed on 8.10.1993 under the provision of Sec. 166 of the Act by the claimants, namely the parents, widow and minor children of the deceased Kaushal Kishore, who died in an accident dated 14.9.1993 in which a bus bearing registration no. BEW-4511 owned by O.R Nos. 4. Claim Case No. 42 of 1993 was filed on 8.10.1993 under the provision of Sec. 166 of the Act by the claimants, namely the parents, widow and minor children of the deceased Kaushal Kishore, who died in an accident dated 14.9.1993 in which a bus bearing registration no. BEW-4511 owned by O.R Nos. 1 and 2 of the claim case, who are respondents in both the Miscellaneous Appeals and insured by the Oriental Insurance Co. Ltd., fell into the river at Village Basti Jalal due to the rash and negligent driving by its driver, killing several bus passengers including the above named Kaushal Kishore, aged about twenty one and a half years at the time of accident. These facts are not disputed in these appeals and what is disputed by both the sets of appellants in their respective appeals is the quantum of compensation fixed by the learned Tribunal in its judgment and award which is challenged by them obviously on varied and divergent grounds; one claiming the quantum of compensation fixed to be depressingly low and the other claiming it to be immensely excessive. 5. It transpires from the impugned judgment that the learned Tribunal merely relied upon the calculations provided by the Oriental Insurance Co. Ltd. and its authorities and did not arrive at its own findings with respect to income, compensation, multiplier, loss of consortium and loss of estate. The said Insurance Co. Ltd. and its authorities had pleaded that the monthly income of the deceased should be fixed at Rs. 1,200.00 per month and after deducting one-third as personal expenditure of the deceased, the remaining Rs. 800.00 has to be multiplied by 12 for determining annual income for which multiplier of 17 was to be used upon which the total amount of compensation would come to Rs. 1,63,200.00 apart from Rs. 5,000.00 as loss of consortium and Rs. 2,500.00 as loss of estate. The learned Tribunal without arriving at its own findings and without applying its own mind fixed the compensation etc. in total as fixed/ calculated by the Insurance Company and its authorities, with the only difference that funeral expenses of Rs. 2,500.00 was added thereto. 6. Considering the averments made by the learned counsel of the parties and the materials on record it is quite apparent that the deceased Kaushal Kishore was the only issue of his parents (claimants no. in total as fixed/ calculated by the Insurance Company and its authorities, with the only difference that funeral expenses of Rs. 2,500.00 was added thereto. 6. Considering the averments made by the learned counsel of the parties and the materials on record it is quite apparent that the deceased Kaushal Kishore was the only issue of his parents (claimants no. 1 and 2) and he died in accident on 14.9.1993, when his age was twenty one and a half years (as per his matriculation certificates), leaving behind two old parents, a widow (claimant no. 3), a minor son (claimant no. 4) and two minor daughters (claimant nos. 5 and 6), 7. With respect to the income of the deceased at the time of his death it was the specific claim of the claimants that he used to deal in cloth business from which he used to earn Rs. 2,500.00 per month, which was fully proved by two witnesses. On the other hand, the opposite parties of the claim case did not challenge the said claim, nor produced any evidence whatsoever to disprove the same. In the said circumstances, there was neither any ma terial nor there was any occasion for the learned Tribunal to assume that the deceased was an unemployed youth or was earning Rs. 1,200.00 per month, hence it was incumbent upon the Tribunal to decide the matter on the materials available on the record and not upon the baseless submissions of any party which was not supported by any evidence. 8. At the time of the accident or at the time of filing of the claim case in the year 1993, Sec. 163-A was not included in the Act and it was inserted much later vide Act No. LIV of 1994 and hence calculation of compensation was to be done according to Sec. 168 of the Act which provided that the Claims Tribunal has to make an award determining the amount of compensation which appears to it to be just. Hence the statute clearly provides that the compensation should neither be a bonanza nor should it be a pittance, rather the Tribunal should see what is just, equitable, fair and reasonable compensation in a particular set of facts. Hence the statute clearly provides that the compensation should neither be a bonanza nor should it be a pittance, rather the Tribunal should see what is just, equitable, fair and reasonable compensation in a particular set of facts. Reference in this regard may be made to a decision of the Hon ble Apex Court in case of Heten C. Rebello (Mrs.) and Others vs. Maharashtra State Road Transport Corporation and Another, reported in (1999)1 SCC 90 . 9. In another decision in case of State of Haryana and Another vs. Jasbir Kaur and Others, reported in (2003)7 SCC 484 the Hon ble Apex Court had specifically held that there can be no golden rule applicable to all cases for compensation to measure the value of human life or limb and hence damages cannot be measured by precise mathematial calculations rather it has to depend upon the particular facts, circumstances and special feature of every case and every method or mode adopted by the Tribunal for assessing Compensation has to be just, which is the pivotal consideration. Though the expression "which appears to it to be just" in Sec. 168 of the Act, vests a wide discretion in the Tribunal, the determination of compensation has to be done by a judicious approach to the facts and evidence on record and not by whims, wild guesses and arbitrariness. 10. From the facts and circumstances of this case as well as from the provisions of law and the case laws it is quite apparent that the Tribunal had done exactly what has been deprecated by the Hon ble Supreme Court and that the Tribunal had not done what was expected from it according to the provisions of Law. The Tribunal in the impugned judgment did not at all consider what compensation appears to it to be just and reasonable, rather it arbitrarily and whimsically accepted the calculation of the Insurance Company without any judicious approach towards the facts and evidence on record as well as the enormity of loss to the claimants. 11. In the said circumstances the impugned judgment and award dated 27.1.1998 is set aside only with respect to the amount of compensation fixed. The income of the deceased as per the unrebutted evidence on record was Rs. 2,500.00 per month, which on calculation comes to Rs. 11. In the said circumstances the impugned judgment and award dated 27.1.1998 is set aside only with respect to the amount of compensation fixed. The income of the deceased as per the unrebutted evidence on record was Rs. 2,500.00 per month, which on calculation comes to Rs. 30,000.00 per year, out of which one-third has to be deducted as personal expenditure of the deceased and hence compensation has to be calculated on the basis of dependency of Rs. 20,000.00 per annum multiplied by the appropriate multiplier. 12. In the instant case which is of the year 1993, Second Schedule of the Act is not applicable as it was inserted into the Act much later by Amending Act LIV of 1994, hence the claim of the Insurance Company in this court that a different multiplier should have been used by the Tribunal as provided in the Second Schedule is not sustainable in Law. Furthermore it is quite apparent from the impugned order that it was the Insurance Company and its authorities themselves who claimed before the Tribunal that appropriate and just multiplier in the instant case would be seventeen which was accepted by the Tribunal. Hence the Insurance Company cannot be allowed to take a U-turn in these appeals and take a contradictory stand before this court that the multiplier of 17 was not legal, just and proper. 13. However, the Hon ble Apex Court in case of General Manager, Kerala State Road Transport Corporation vs. Mr. Susamma Thomas and Others, reported in AIR 1994 SC 1631 has held that as per the old Law the multiplier should rarely exceed 16 as maximum for any age. There being no such rarity in the facts and circumstances, but considering the age of the deceased and his dependents the proper multiplier should have been sixteen and not seventeen. But neither the said fact, nor the provision of Law had been considered by the Tribunal while passing the impugned order. 14. As per the aforesaid facts, circumstances and position in Law the multiplier of sixteen has to be used for capitalisation of the amount of dependency Rs. 20,000.00 per annum as calculated above and hence the amount of compensation (Rs. 20,000 x 16) comes to Rs. 3,20,000.00. To the said amount, Rs. 14. As per the aforesaid facts, circumstances and position in Law the multiplier of sixteen has to be used for capitalisation of the amount of dependency Rs. 20,000.00 per annum as calculated above and hence the amount of compensation (Rs. 20,000 x 16) comes to Rs. 3,20,000.00. To the said amount, Rs. 10,000.00 has to be added for loss of consortium, loss of estate and funeral expenses as has been held by the Tribunal in the impugned judgment and award. Thus the claimants are entitled to get Rs. 3,30,000.00 as total amount of compensation etc. for the death of Kaushal Kishore from the Insurance Company. Any amount if already paid to the claimants has to be deducted from the said amount. The balance amount has to be paid by the Insurance Company to the claimants with interest at the rate of 9 per cent per annum from the date of filing of the claim case till the date of realisation as held in case of State of Haryana and Another (supra). 15. With the aforesaid directions/observations, M.A. No. 168 of 1998 is dismissed, whereas M.A. No. 158 of 1998 is allowed and the impugned order of the Tribunal is modified to the abovementioned extent.