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2007 DIGILAW 549 (GAU)

New India Assurance Co. Ltd. v. Chet Prasad Joshi

2007-08-17

TINLIANTHANG VAIPHEI

body2007
JUDGMENT T. Vaiphei, J. 1. This M.A.C. appeal is directed against the judgment and award dated 5.10.2006 passed by learned Member, Motor Accidents Claims Tribunal, Shillong in M.A.C. Case No. 56 of 2004 awarding a compensation of Rs. 4,33,777 together with interest at the rate of 7 per cent per annum to the sole respondent-claimant. 2. The facts material for disposal of the appeal may be noticed at the very outset. On 11.9.2004 at about 7.45 a.m., a truck bearing registration No. ML 05-c 21085, which was proceeding from parking lot of Bawri Saw Mills towards Luckier Road along the National Highway 40, knocked down one Minu Joshi, a pedestrian, who was standing in from of Hanuman Mandir, Luckier Road. The victim sustained grievous injuries, was removed to Civil Hospital, Shillong, but she succumbed to her injuries before reaching the hospital. In connection with the accident, the police resisted Lumdiengjri P.S. Case No. 101(9) of 2004 under Sections 279/427/304, Indian Penal Code. Deceased is survived by her husband, namely, Chet Prasad Joshi, filed a claim petition under Section 163, Motor Vehicles Act, 1988 ('the Act' for short for short) for payment of compensation to the order of Rs. 4,41,500 for the death for his wife. 3. The Tribunal duly issued notice to the owner and driver of the offending vehicle as well as the appellant insurance company. Appellant contested the claim petition and also applied for and obtained leave from the Tribunal to contest the claim petition even on the quantum of compensation payable. The owner of the vehicle and the driver chose not to contest the case despite proper service of the notice upon them. In the course of trial, three witness were examined on behalf of the claimant respondent, while the insurance company examined one witness to defend their case. At the conclusion of the trial, the Tribunal passed the impugned judgment and award, which is promptly challenged by the insurance company in this appeal. At this stage, it may be noticed that on 18.1.2007,the original claimant, i.e., Chet Prasad Joshi, died during the pendency of this appeal and has been substituted by his daughter, the said Priyanka Joshi, though her legal guardian, Reshmi Joshi, as her legal representative vide the order dated 18.5.2007. passed by this court in C.M.P. Misc. Case No. 118(SH) of 2007. 4. Assailing the impugned judgment and award of the Tribunal, Ms. passed by this court in C.M.P. Misc. Case No. 118(SH) of 2007. 4. Assailing the impugned judgment and award of the Tribunal, Ms. A. Paul, the learned Counsel for the insurance company, makes two fold contentions: (i) there was absolutely no material before the Tribunal to prove that the income of the deceased was Rs. 40,000 per annum and (ii) the Tribunal has misdirected itself in law in taking into account the age of the deceased for choosing the appropriate multiplier. She therefore contends that by overlooking the aforesaid relevant fact, an unduly high amount of compensation was awarded to the respondent. Ms. P. Sarma, learned Counsel for the respondent, however, supports the impugned judgment and award and submits that the compensation awarded by the Tribunal can not be assailed in any manner when considering the fact that the compensation was being shared by the clamant-respondent and his minor daughter, who survived the deceased. 5. On the question of the income of the deceased, the learned Counsel draws my attention to the cross-examination of PWs 1 and 2 and submits that the statement tuition to 10 to 15 students at the fee of Rs. 150 per head, could not be shaken by the insurance company and the finding of the Tribunal thereto is, therefore, based on evidence. She thus submits that no interference is called for in the impugned judgment and award. 6. As noted earlier, the claim petition in the instant case has been filed under Section 163 of the Act. This section begins with a non obstante clause and provides for payment of compensation, on no fault basis, as indicated in the second schedule, to the legal representatives of the deceased or injured, as the case may be. Turning to the Second Schedule, there is a Table fixing the mode of calculation of compensation for a third party accident Claim arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousands payable to the heirs of the deceased victim. 7. According to this Table, the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Under these Schedule (structured formula), the maximum multiplier can be up to 18. In U.P. State Road Trans. 7. According to this Table, the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Under these Schedule (structured formula), the maximum multiplier can be up to 18. In U.P. State Road Trans. Corporation v. Trilok Chandra (1996) 4 SCC 362 the Apex Court held that neither the Tribunal nor the courts can go by the ready-reckoner; that it can only be used as a guide; that besides, the selection of multiplier can not in all cases be solely dependent on the age of the deceased. For example, thus held by the top court therein, if a deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of multiplier. Apparently, taking a cue from the aforesaid observations of the Apex Court, it is strenuously urged by the learned Counsel for appellant insurance company that the Tribunal has fallen into grave error of law by choosing the age of the deceased, who was 34 years old at the time of her death, for applying the multiplier. 8. On examination of the impugned judgment and award, there can be no dispute that the age of the deceased at the age of the deceased at the time of the accident was approximately 33 years, whereas the age of the original claimant was 47 years at the time of the award. It is also not in dispute that the original claimant was a pensioner and cannot be said to be wholly dependent on the deceased. Thus, in this view of the matter, the normal course to be adopted by the Tribunal ought to have been to choose the age of the original claimant for the purpose of appropriate multiplier. However, in the instant case, the other undisputed fact on record is that the deceased is survived not only by the original claimant but also by the original claimant but also by their minor daughter, the substituted respondent herein. The original claimant is now no mote and has expired on 18.1.2007. 9. The substituted respondent is hardly 14 years old and is looked after by her aunty who is her legal guardian. She has practically no legal duty to maintain her. The original claimant is now no mote and has expired on 18.1.2007. 9. The substituted respondent is hardly 14 years old and is looked after by her aunty who is her legal guardian. She has practically no legal duty to maintain her. In the aforesaid circumstances, the multiplier of 17 adopted by the Tribunal, though not appropriate, need not be interfered with since, in my judgment, the amount so awarded is just and fair. On the income of the deceased, I have taken the pain of going through the evidence of PWs 1 and 2 to examine if there is any evidence to sustain the finding of the Tribunal that the annual income of the deceased was Rs. 40, 000 per annum. 10. In the cross-examination PW 1 revealed that his wife (the deceased used to give tuition to 12 to 15 children of class I, II, and III at their residence and used to charge Rs. 150 each student. This is corroborated by the evidence of PW 2, who was staying with the deceased family in the same compound, by deposing in his examination-in chief that the deceased used to give tuition to small children. The aforesaid statements have neither been re butted nor contradicted by the insurance company. Though the learned Counsel for the insurance company relies on the statement of PW 3 stating that the deceased had no independent income of her own to show that the deceased had no income of her own, we need not be detained by this for the simple reason that this statement is only hearsay evidence. Moreover, it is no part of the official duty of the PW 3 to inquire the income from this taken by the insurance company from this statement to successfully disprove the income of the deceased asserted by the respondent. In the view that I have taken, the impugned judgment and award does not suffer from serious infirmity calling for my interference. 11. The offshoot of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. There in on record that 50 per cent of the awarded amount has already been paid to the respondent. 11. The offshoot of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. There in on record that 50 per cent of the awarded amount has already been paid to the respondent. If that is so, the remaining 50 percent together with the interest due shall be disbursed by the appellant in the fowling manner: 60 by per centum of the balance amount shall be deposited in a fixed deposit in any of the nationalized banks for a period of five years for earning maximum interest, while the remaining amount will be released to the minor respondent will be released to the minor respondent through her legal guardian after proper identification by a responsible person. The entire exercise shall be completed by the appellant within two months from the date of receipt of the judgment. However, on the peculiar facts of the case, the parties are directed to bear their own respective costs. Appeal dismissed