Research › Search › Judgment

Orissa High Court · body

2007 DIGILAW 740 (ORI)

Divisional Manager, The New India Assurance Co. Ltd. v. Mitradatta Mishra

2007-09-21

I.MAHANTY

body2007
JUDGMENT I. MAHANTY, J. : The new India Assurance Company Ltd. has filed these Letters Patent Appeals, seeking to challenge the common judgment passed by the learned Single Judge of this Court in M.A.Nos. 639 & 638 of 1993, whereby, the present appellant’s challenge to the Award passed by the 3rd Motor Accident Claims Tribunal, Puri in Misc. Case Nos. 640 and 637 of 1990 directing the Appellant to pay compensation of a sum of Rs. 1,20,000/- and Rs. 9,00,000/- respectively was dismissed thereby affirming the award passed by the 3rd M.A.C.T., Puri. 2. The brief facts leading to the present challenge are that the respondents 1 & 2 claimants (son and daughter) filed an application for compensation under Section 166 of the Motor Vehicles Act, before the 3rd Motor Accident Claims Tribunal, Puri claiming compensation for the death of their mother and father respectively. The facts indicated in their application were that on 12.5.1990 at about 4.00 P.M. while their father and mother were coming on a scooter, near Khadia Chhack between Khurda and Bhubaneswar, a Mini Truck bearing registration number OR-H-7340 belonging to respondent No. 3 came from the opposite direction and dashed against the scooter, resulting in the death of both the father and mother of the respondents 1 & 2. Respondents 1 & 2 filed Misc. Case No. 637/90 before the Tribunal claiming compen¬sation for death of their father and Misc. Case No. 640/93 for death of their mother. Both the aforesaid Misc. Cases were dis¬posed of by a common judgment and award dated 6.10.1993. 3. In the claim petition it was alleged that due to the rash and negligent driving of Mini Truck bearing registration number OR-H-7340 (belonging to respondent No. 3 and insured by the Appellant) the accident took place in which the claimants lost their parents. In the said claim petitions it was averred that the father of the claimants was serving as an Assistant Professor in Indian Institute of Management, Bangalore and was drawing a total sum of Rs. 5130/- as total emoluments and that he was aged about 34 years at the time of accident. The record further reveals that respondent No. 3, owner of the offending vehicle did not file any written statement nor did it contest the matter before the Tribunal and therefore, he was set ex parte. 5130/- as total emoluments and that he was aged about 34 years at the time of accident. The record further reveals that respondent No. 3, owner of the offending vehicle did not file any written statement nor did it contest the matter before the Tribunal and therefore, he was set ex parte. It is only the appellant-insurance Company (Insurer of Respondent No. 3’s vehicle) who filed the written statement raising various contentions therein. 4. The learned Tribunal saddled the liability on the Insurance Company and directed the present appellant to pay a sum of Rs. 9,00,000/- in Misc. Case No. 637 of 1990 towards death of the claimants’ father and a further sum of Rs. 1,20,000/- in Misc. Case No. 640 of 1990 towards the death of the claimants’ mother, vide award dated 6.10.1992. 5. The Insurance Company being aggrieved by the awards passed by the Tribunal filed two appeals, namely, Misc.Appeal Nos. 639 of 1993 and 638 of 1993 before this Court against the aforesaid award and both the matters were disposed of by a common judgment dated 26th July, 2000 dismissing the appeals and affirm¬ing the orders passed by the Tribunal. Hence, the present letters patent appeals. 6. Shri S.S.Rao, learned counsel for the Insurance Compa¬ny/appellant before us, inter alia, contended as follows : (i) That even though the Hon’ble Single Judge had accepted the Insurance Company’s contention that the Tribunal had erroneously applied the multiplier of ‘25’ years’ purchase, in view of the decision of the Hon’ble Supreme Court in the case of U.P. State Road Transport Corporation and others v. Trilok Chan¬dra and others, 1996 ACJ 831 and had recomputed compensation amount by applying the correct multiplier of ’15, yet the Hon’ble Single Judge had fallen into error by taking into consideration “future financial prospects” of the deceased father while re-computing the compensation amount and therefore arriving at a figure similar to that had been earlier determined by the Tribu¬nal. (ii) The Insurance Company contended that the basis of computation of compensation should have been limited to the “take home pay” of the deceased and not the ‘gross pay’ received or likely to receive in the future. (ii) The Insurance Company contended that the basis of computation of compensation should have been limited to the “take home pay” of the deceased and not the ‘gross pay’ received or likely to receive in the future. (iii) Although it is a fact that the claimants are the two minor children of the deceased and suffered a great loss on account of the death of their parents, yet the claimants should have been awarded a “just compensation” in accordance with law and instead, the amount awarded by the Tribunal was far in excess of the amount due and payable and was, therefore, “unjust”. (iv) That the direction for the payment of interest @ 9% from the date of claim and 12% in case of default to pay the amount within one month, to be computed from the date of claim, is erroneous and have been imposed without jurisdiction and default interest @ 12% should not have been computed from the date of claim. 7. Shri S.K.Padhi, learned senior counsel appearing for the claimants, on the other hand, supported the award passed by the Tribunal as well as the order of the learned Single Judge and stated as follows : (i) That the appellant should have no grievance whatsoever against the judgment passed by the Hon’ble Single Judge since the learned Single Judge modified the Tribunal’s award, in so far as applying the multiplier of ‘25’ is concerned for which the learned Single Judge reduced the multiplier to ’15. (ii) Learned counsel further submitted that the learned Single Judge justifiably took into consideration the judgment of the Hon’ble Supreme Court in the case of Smt. Sarala Dixit and another v. Balwant Yadav and others, AIR 1996 SC 1274 and contended that had the said decision been fully extended to the present case, the compensation should be more than Rs. 16,00,000/-. Shri Padhi further submits that the Hon’ble Single Judge committed no error by following the aforesaid dicta of the Hon’¬ble Supreme Court and taking into account the “future financial prospects” of the deceased. 16,00,000/-. Shri Padhi further submits that the Hon’ble Single Judge committed no error by following the aforesaid dicta of the Hon’¬ble Supreme Court and taking into account the “future financial prospects” of the deceased. Consideration of “future prospects’ has been made by the Hon’ble Supreme Court in the case of Sarala Dixit (supra) and applying the said formula and considering the fact that the deceased was an Assistant Professor in the Indian Institute of Management, Bangalore and was aged about 32 years at the time of his death came to hold that although the deceased’s gross salary at the time of death was Rs. 5,130/-, taking into consideration his academic record, service particulars and future prospects, held that the deceased's’ gross monthly income would have definitely increased by double the said amount, i.e. by Rs. 10,000/-. Therefore the deceased's’ average gross future monthly income can be determined by adding his actual gross monthly income at the time of his death, i.e. Rs. 5000/- to the likely future enhancement in salary, i.e. Rs. 10,000/- the amount was arrived at Rs. 15,000/- per month. This amount of Rs. 15,000/- was thereafter divided by 2 (two), i.e. Rs. 7,500/-. By deducting 1/3rd therefrom, i.e. Rs. 2500/- per month towards his ‘personal expenses’, his average gross monthly contribution was determined to be Rs. 5000/- per month, Rs. 60,000/- per annum. Multiplying the aforesaid amount by the multiplicand ‘15’, the compensation amount was determined to Rs. 9,00,000/- for the death of the father of the claimants. In this respect Shri Padhi submitted that future financial prospects have been correctly taken into account and personal expenses 1/3rd having been deducted from the computation no basis exists for entertaining the objection of the Insurance Company for limiting consideration to the “take home pay” of the de¬ceased. (iii) Accordingly, Shri Padhi submitted that in the facts and circumstances of the present case, the amount of compensation i.e. Rs. 9,15,000/- for the death of the father and Rs. 1,20,000/- for the death of the mother of the claimants was in accordance with law and is “just compensation”. (iii) Accordingly, Shri Padhi submitted that in the facts and circumstances of the present case, the amount of compensation i.e. Rs. 9,15,000/- for the death of the father and Rs. 1,20,000/- for the death of the mother of the claimants was in accordance with law and is “just compensation”. (iv) Shri Padhi submitted that although the accident took place on 12th May, 1990 where the parents of the claimants passed away and the award was passed in the year 1993, but the Insurance Company has chosen to prolong the litigation and deny the claimants’ benefit of compensation for 17 long years and the appeal, therefore, should be dismissed. (v) In so far as the award of interest fixed by the Tribunal is concerned, Shri Padhi fairly submitted that the direction to pay default interest @ 12% per annum to be computed from the date of claim is not in consonance with law laid down by the Apex Court and High Court and, therefore, the said default interest at the rate of 12% should be computed only from the date of default and not from the date of claim. 8. We have perused the judgment rendered by the Hon’ble Supreme Court in the case of U.P.State Road Transport Corporation and others (supra) and the conclusion in the said judgment is that neither the Tribunal nor the Court can go by the ready reckoner, which can only be used as a guide and further held that the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. But while holding so, the Hon’ble Court emphasized that “the multiplier cannot exceed ‘18’ years’ purchase factor. Having so held the Hon’ble Supreme Court further held in the facts of the said case that the multiplier that had been used was found to be excessive but even if the multiplicand was corrected and the correct multiplier had been applied, the compensation would work out to near about the same figure and, therefore, by holding that the Tribunal/Court fell into an error in the choice of the multiplier did not interfere with the quantum of compensation. 9. 9. Considering the aforesaid judgment and the facts of the present case, we find that although the Tribunal had applied an excessive multiplier of 25, the same was reduced by the Hon’ble Single Judge to 15 and therefore, the judgment of the Hon’ble Single Judge is absolutely in conformity with the judgment of the Hon’ble Apex Court rendered in the case of U.P.State Road Trans¬port Corporation (supra). 10. We further find that the Hon’ble Supreme Court in the case of Smt. Sarla Dixit (supra) while dealing with the question of computation of proper compensation, took into consideration the fact that the deceased in the said case was the only bread-winner in the family and died at the age of 27 due to the accident and had put in 7 years service by that time. The Hon’ble Supreme Court while taking into consideration the fact that the deceased was earlier the Lieutenant in the Army and had been promoted to the rank of a Captain also considered that he was qualified for promotion to the rank of a Major at the time of his death. Taking the “future prospects” of the deceased into account, held it not to be unreasonable to hold that his gross monthly income would have more than doubled in his normal carri¬er. It is this principle, laid down in the case of Smt. Sarala Dixit (supra) that the Hon’ble Single Judge had applied and we find no reason as to why we would hold any different view in the matter. The deceased admittedly had a brilliant academic carrier and have been appointed as Asst. Professor in Indian Institute of Management, Bangalore which is undisputedly one of the most prestigious Institutes in the country. The deceased’s gross salary at the time of death was Rs. 5130/- and he was aged about 32 years at the time of his death and, therefore, Hon’ble Single Judge considering the “future prospects” of the deceased, hold that the salary would have doubled and took the same into account for the purpose of computing the just and proper compensation. 11. We are of the view that the learned Single Judge has determined compensation in accordance with law in terms of the judgments of the Hon’ble Supreme Court as noted hereinabove. 11. We are of the view that the learned Single Judge has determined compensation in accordance with law in terms of the judgments of the Hon’ble Supreme Court as noted hereinabove. Therefore, we find no reason whatsoever to interfere in the present appeal, except to the extent directing that interest @ 9% is to be computed from the date of claim in view of the judgment of this Hon’ble Court in the case of Oriental Fire and General Insurance Company Ltd. v. Buli Dei and others, 74 (1992) CLT 141. We are of the view that the amount of compensation as awarded, is just and proper in the facts of the present case. The interim orders stand vacated. The appellant is directed to make necessary deposit of the awarded amount within a period of one month from today along with the interest @ 9% from the date of this claim. It is further directed that if any amount is in deposit in favour of the claimants, the same be released in their favour along with accrued interest thereon forthwith by the Registry upon proper verification of identity. 12. Appeal is disposed of in terms of the aforesaid directions made hereinabove with liberty being given to the appellant-Insurance Company to proceed against the owner of the vehicle for violation of the terms and conditions of the insur¬ance policy, if any, in accordance with law. A. K. GANGULY, C.J. I agree. Appeal disposed of.