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2007 DIGILAW 1581 (ALL)

ORIENTAL INSURANCE CO. LTD v. SUMEGHA SHARMA

2007-05-22

AMITAVA LALA, V.C.MISRA

body2007
AMITAVA LALA, J. ( 1 ) THIS appeal has been filed by the insurance company on the ground of contributory negligence, nonjoinder of necessary parties and wrong fixation of quantum of compensation. ( 2 ) FACTS remain that on the Agra-Delhi highway a tanker and Tata Safari were coming from the same side. Suddenly the tanker in question turned negligently from left to right side without giving any signal as a result thereof it collided with Tata safari coming behind the tanker from the same side. The deceased was a passenger of Tata Safari. ( 3 ) THE Tribunal considered the cause of negligence on the basis of several judgments of the Honble Supreme Court as well as of this court and found that when the passenger died due to collision of two vehicles, the nature of relief is composite one and the same can be claimed by the claimants from either of the vehicles. ( 4 ) APART from the above, we find that there is gross negligence on the part of the driver of the tanker which has been insured by the insurance company moving from left to right as per the map as annexed with the appeal being Annexure 3 herein. Therefore, when factually, it has been found that negligence is attributable to the tanker the claimants are entitled to claim compensation from the owner of the tanker. We do not find any reason as to why the decision of the Tribunal is said to be fallible on the ground of non-joinder of necessary parties. If there is any confusion in the mind of the court about the negligence on the part of the tanker then cause of interference may arise. It appears that the court below was satisfied with the negligence of the tanker. Therefore, we are of the considered view that there was no necessity of making Tata safari as a necessary party in the present claim petition. Hence in totality, we do not find any infirmity in the impugned order passed by the Claims Tribunal in holding the owner of the tanker responsible for the accident. ( 5 ) HOWEVER, the real dispute arose with regard to fixation of the quantum of the compensation by the Tribunal. According to the appellant insurance company, fixation of quantum being Rs. ( 5 ) HOWEVER, the real dispute arose with regard to fixation of the quantum of the compensation by the Tribunal. According to the appellant insurance company, fixation of quantum being Rs. 9,13,000 is excessive in nature and the same is without any basis and if such amount is allowed to be given to the claimants wrong precedent would be established for the future. ( 6 ) FACTUALLY, the deceased was an income tax payee. He has shown his income as Rs. 1,12,830 for the year 2005-2006. He has also shown a deduction of Rs. 17,535, on account of one of the schemes of U. L. P. He has also shown his taxable income is as Rs. 95,295. According to the appellant, the Tribunal excluded Rs. 17,535 from his actual income and even thereafter without any basis founded a figure of Rs. 80,000 as income and then deducted 1/3rd being rs. 26,700 thereby fixed his final income at Rs. 53,300 and awarded compensation on such amount by multiplying the same by 17 thereafter. ( 7 ) A decision in New India Assurance co. Ltd. v. Kalpana, 2007 ACJ 825 (SC), was cited to show that multiplier of 13 will be applicable in the case of the deceased but not of 17, because in U. P. State Road trans. Corpn. v. Trilok Chandra, 1996 acj 831 (SC), it was held that Schedule under the Act is not ready-reckoner, but a guide. Therefore, the rigidity of Second schedule of section 163-A of the Motor vehicles Act, 1988 (hereinafter referred to as the Act) may not be applicable in this case. ( 8 ) WE find that the said judgment impugned before us is arising out of section 166 of the Act, which speaks about just compensation. In a case of just compensation, the principle of multiplier under second Schedule may not be applied but it is desirable that the multiplier system as far as practicable is to be taken into account irrespective of the fact that the application is made under section 166 of the Act to arrive at just compensation. Therefore, the question arose when the applicability of the Second Schedule is only a guide, it can go not only on the lower side but also on the higher side depending upon the facts and circumstances of each case. Therefore, the question arose when the applicability of the Second Schedule is only a guide, it can go not only on the lower side but also on the higher side depending upon the facts and circumstances of each case. In the referred case, the Tribunal itself found that the income was not established, therefore, reduced the quantum of just compensation. In the present case the income is backed up by documentary evidence, i. e. , income tax return. Therefore, according to us, such document is best piece of documentary evidence for arriving at a conclusion to calculate the multiplicand. The Tribunal did not signify any reason as to why the basis of income supported by a proved document will be ignored and income will be reduced accordingly. Sometimes it is also passing in the mind of the court that huge sum is arriving at which should not be given, because such sum is not made to pay by way of compensation. In any event, when the court will consider the quantum, the relevant factors to come to conclusion cannot be ignored to say about any documentary evidence. Therefore, we find that it is a fact of the case which remains for consideration of quantum of compensation as fixed by the Tribunal on higher side, we do not find any reason to delay the proceedings for the sake of hearing the parties. Therefore, we dispose of the appeal by remanding it back to the Tribunal concerned to determine quantum of compensation afresh in the light of the judgment and on the basis of the appropriate evidence and finalise the same in accordance with law. ( 9 ) WITH the above direction, the appeal is disposed of finally at the admission stage. No order is passed as to costs. ( 10 ) THE statutory amount, if any, deposited be remitted back to the Tribunal as early as possible. Orders accordingly. .