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2009 DIGILAW 1690 (PNJ)

New India Assurance Company Limited v. Maya Devi

2009-09-24

A.N.JINDAL

body2009
Judgment A.N.Jindal, J. 1. This judgment of mine shall dispose of three connected appeal Nos. 1552 to 1554 of 2008, having arisen out of the judgment dated 7.2.2008, passed by the Motor Accident Claims Tribunal Rohtak (herein referred as the Tribunal), whereby eight claim petitions were disposed of out of which awards were passed in claim petition No. 145 of 14.6.2006, (Maya Devi and others v. Jaswant Singh and others); No. 167 of 14.6.2006, (Madhu and others v. Jaswant Singh and others); and No. 170 of 15.6.2006, (Raj Kumari and others v. Jaswant Singh and others). 2. The Common facts arising out of the aforesaid claim petitions are that on 6,5.2006, Ram Phal, Narender, Savitri, Sanjay, Suresh Chander, Raj Kumar, Guru Parshad all since deceased and Ashok injured were travtelling in jeep bearing registration No. HR-56T-2501 for going to Rohtak via village Lakhan Majra. When they reached near village Bhagwatipur then Jaswant Singh respondent No. 1 while driving a tanker bearing registration No. PB-12H-5025 (for short the offending vehicle rashly and negligently came from the side of Rohtak and struck into the jeep. Resultantly all the occupants of the jeep suffered multiple injuries. Eventually Ram Phal, Narender, Savitri, Sanjay, Suresh Chander, Raj Kumar, and Guru Parshad died at the spot whereas Ashok suffered injuries. As an after-math of the accident, the different claim petitions were filed wherein different awards were passed. 3. The respondents neither challenged the negligence nor the liability of the insurance company. However, I need to reproduce the relief granted to the appellants. Claim petition No. 167 of 14.6.2006 Madhu and others v. Jaswant Singh and others. While deciding issue No. 6, the Tribunal assessed the salary the of the deceased Suresh Chander to the tune of Rs. 21775-76/- per months and awarded compensation to the tune of 19,04,000/-. Claim petition No. 170 of 15.6.2006, Raj Kumari and others v. Jaswant Singh and others. Compensation to the tune of 17,68,000/-. Claim petition No. 145 of 6.6.2006, Maya Devi and others v. Jaswant Singh and others Compensation to the tune of Rs. 16,32,000/- Interest @ 7.5% per annum was also awarded to the claimants from the date of filing of the claim petition till actual realization, against the respondent Nos. 1 to 3 jointly and severally in all the claim petitions. 4. 16,32,000/- Interest @ 7.5% per annum was also awarded to the claimants from the date of filing of the claim petition till actual realization, against the respondent Nos. 1 to 3 jointly and severally in all the claim petitions. 4. The prime argument and advanced by the learned counsel for the appellant- insurance Company is that the approach of the Tribunal is wrong and erroneous in awarding exorbitant compensation. The deceased in all the three claim petitions were between the age of 50 to 55 years. Some of the claimants were not dependent upon the deceased persons. The deceased were to retire from service within 7-8 years and there were no avenues of their promotion and the Tribunal without applying any proper and suitable parameters applied the multiplier of 17 which was quite against the canons of the judicial administration. It was further contended that though the Insurance Company had moved the application under Section 170 of the Motor Vehicle Act on 16.10.2007, but the Tribunal withheld the decision over it till the decision of the case. Ultimately, the said application was dismissed only on the day when the orders were passed in the main petition. It was also urged that the Tribunal has failed to appreciate the fact that the claim petitions were not being defended properly by the respondent Nos. 1 and2.They after fling the written statement did not produce any witness to corroborate the version set up in the written statement. Since no body appeared on behalf of the respondents to rebut the contention of the claimants, therefore, findings on issue No. 1 were returned against the respondents as such, inference could be drawn that the respondent No. 1 did not contest the application properly and further inference is that they were hand in glove with the claimants. It was further urged that had the application under Section 170 of the Motor Vehicle Act been allowed, then the appellants could have summoned the witnesses in order to establish the negligence of the jeep driver. Thus, the order dated 7.2.2008 declining the application under Section 170 of the Motor Vehicle Act, at the fag end of the case deprived the company of its valuable rights. 5. To the contrary, learned counsel for the respondents has tried to contradict the arguments while stating that the company was not correct in its approach. 6. Thus, the order dated 7.2.2008 declining the application under Section 170 of the Motor Vehicle Act, at the fag end of the case deprived the company of its valuable rights. 5. To the contrary, learned counsel for the respondents has tried to contradict the arguments while stating that the company was not correct in its approach. 6. As regards the first contention raised by the learned counsel for the Insurance Company the same can be said to be replete with truth. The ground set up by the Insurance Company that its application filed under Section 170 of the Motor Vehicle Act was not allowed at the appropriate stage but was disposed of at the fag end of the case, could not be challenged by the claimants. The court while deciding the application at the fag end of the case was quite erroneous in its approach. There was no fun to decide the application at the last stage when the parties had already led evidence. The order dated 7.2.2008 passed by the Tribunal reveals that the Insurance Company had filed the application under Section 170 of the Motor Vehicle Act on 16.10.2007, but it was decided on the day when the judgment was pronounced in the case. The main object of the application was to seek permission to contest the claim petition on all the available grounds but in the absence of the permission the scope contest the claim petition was very limited and it could not contest the plea regarding negligence set up by the claimants. As such this sole ground is sufficient to set aside the Findings returned by the Tribunal on issue No. 1 As regards issue No. 2 which was framed in connection with the claim petition No. 145 of 6.6.2006, Maya Devi and others v. Jaswant Singh and others, the claimants had pleaded that Ram Phal was 51 years old employed as Assistant Grade-II in Food Corporation of India and was drawing salary of Rs. 16,701/- per month. He was income tax assesse. A sum of Rs. 30,000/- was spent on transportation and last rites therefore he had claimed a sum of Rs. 50 lacs on account of compensation. As regards issue No. 6, it was submitted Madhu and others that Suresh Chander died at the age of 51 years. He was employed as manager in the bank and was drawing salary of Rs. 30,000/- was spent on transportation and last rites therefore he had claimed a sum of Rs. 50 lacs on account of compensation. As regards issue No. 6, it was submitted Madhu and others that Suresh Chander died at the age of 51 years. He was employed as manager in the bank and was drawing salary of Rs. 23,000/- per months. Consequently they claimed a sum of Rs. 32 lacs on account of the compensation. As regards issue No. 8, Raj Kumar and others had claimed that the deceased was employed in Punjab National Bank Lijwana Kalan and was drawing a salary of Rs. 22,000/- per month therefore they were entitled to a sum of Rs. 40 Lacs on account of compensation. 7. Now coming to the evidence besides the statement of Pawan Kumar (PW 3), Mahabir Singh Assistant Grade-II while appearing as PW-11 had deposed that Ram Phal son of Chandgi was working as Assistant Grade-II (Depot) Food Corporation of India, Rohtak and his gross salary was Rs. 16,071/- and after deductions his carry home salary was Rs. 12,287/-. He proved his pay in slip Ex. P-33. 8. As regards age, he had stated that his date of birth was 31.2.1955. Thus, it could safely be concluded that he was more than 51 years of age at the time of accident. As regards Suresh Chander deceased besides the testimony of Deepak Gupta (PWI) Dharambir Clerk-cum-Cashier of Punjab National-Bank, Lijwana Kalan, Jind had appeared as PW-6 and deposed that Suresh Chander was working as Special Assistant in Punjab National Bank and his gross salary was Rs. 21,775.96/- per month and his carry home salary after deductions was Rs. 14,128.96/- per month. He proved computerized salary certificate Ex. P26 in this regard. His age as per post mortem examination was found to 51 years. 9. In case of Raj Kumari and others v. Jaswaht Singh and others, she deposed that Gur Parshad was working as Computer Teller-Operator Punjab National Bank Lijwana Kalan, Dharambir (PW6) proved vide salary statement Ex. P26 that he was drawing gross salary of Rs. 20,560/-. According to Raj Kumari (PW5) he was 48 years old. On appreciation of the evidence, he was found to be 50 years of at the time of occurrence. 10. P26 that he was drawing gross salary of Rs. 20,560/-. According to Raj Kumari (PW5) he was 48 years old. On appreciation of the evidence, he was found to be 50 years of at the time of occurrence. 10. Learned counsel for the appellant while extending sympathy towards the persons who had died in an unfortunate accident, as a result of which three families were ruined and deprived of the love and affection, suffered pecuniary and non pecuniary loss. While keeping reservations that the deceased were not the sole bread winner and many members of their families were major and in business, yet, it was urged that the Tribunal without taking note of the parameters set out by the Apex Court through various judgments, neither applied the proper multiplier nor took note of the other attending circumstances. It was also urged that though all the three deceased were the public servants i.e., employees with Food Corporation of India public sector Bank and they were also income tax assessees, yet, the court did not make any deductions of income tax towards their salary. The court also did not apply the suitable multiplier as per directions issued in case General Manager Kerala State Road Transport Corporation v. Susamma Thomas (1994) 2 SCC 176 and U.P. State Road Transport Corporation v. Trilok Chander 1996(2) R.R.R. 718.(1996)4 SCC 362. The court at random applied the multiplier of 17 in the case. 11. Having given my thoughtful consideration to the rival contentions of the learned counsel for the appellant, it may be observed that principles relating to the determination of the liability of compensation are different for claims made under Sections 163 -A and 166 of Motor Vehicle Act. It was observed in case Oriental Insurance Company Limited v. Meena Variyal 2007 (2) RCR (Civil) 698, that Section 163-A and second Schedule in terms do not apply to determination of compensation in application under Section 166. It was observed in case Oriental Insurance Company Limited v. Meena Variyal 2007 (2) RCR (Civil) 698, that Section 163-A and second Schedule in terms do not apply to determination of compensation in application under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas however held that the operative (maximum) multiplier should be increased as 18 instead of 16 indicated in Susamma Thomas even in cases under Section 166 of Motor Vehicle Act by borrowing the principle underlying Section 163-A and the Second Schedule the Apex Court in Oriental Insurance Company Limited v. Meena Variyal, observed as under :- "Section 163-A begins with a non obstacle clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims 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 thousand payable to the heirs of the deceased victim. According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus Under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case.....Besides the selection of multiplier can not in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents arc his parents age of the parents, would also he relevant in the choice of the multiplier.....what we propose to emphasis is that the multiplier cannot exceed 18 years purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16..." 12. As a matter of fact, the Apex Court as well as this Court while considering the normal expectancy of the life to be 70 years has been awarding compensation while applying the multiplier method and maximum multiplier earlier was 16 and it was extended to 18. As a matter of fact, the Apex Court as well as this Court while considering the normal expectancy of the life to be 70 years has been awarding compensation while applying the multiplier method and maximum multiplier earlier was 16 and it was extended to 18. There was never a principle that when a man dies at the age of 50 years having only 7-8 years service in his hand family was also to draw pension on account of his death then still the multiplier of 17 could be applied in such cases. The principle of multiplier has been settled in case of petition under Section 166 of Motor Vehicle Act, by the Apex Court in case Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (3) RCR (Civil) 77 which reads as under :- "19. In New India Assurance Co. Ltd. v. Charlie, 2005 (2) RCR (Civil) 550 : [2005 (10) SC 720], this Court noticed that in respect of claim under Section 166 of the M. V. Act the highest multiplier applicable was 18 and that the said multiplier should he applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. v. Rajapriya 2006 (1) RCR (Criminal) 598 : 2005 (4) RCR (Civil) 628 : [2005 (6) SCC 236] and U.P. State Road Transport Corporation v. Krishna Bala 2006 (3) RCR (Civil) 488: 2007 (4) RAJ. 603 : [2006 (6) SCC 249]. The multiplier indicated in Susamma Thomas Trilok Chandra and Charlie (for claims Under Section given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of MV Act (with avvrovriate deceleration after 50 years). 603 : [2006 (6) SCC 249]. The multiplier indicated in Susamma Thomas Trilok Chandra and Charlie (for claims Under Section given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of MV Act (with avvrovriate deceleration after 50 years). Age of the deceased Multiplier scale as envisaged in Susamma Thomas Multiplier scale as adopted by Trilok Chandra Multiplier scale in Trilok Chandra as clarified in Charlie Multiplier specified in second schedule in second column in the table in II schedule to MV Act Multiplier actually used in second schedule to MV Act (as seen from the quantum of compenation) 1 2 3 4 5 6 Upto 15 yrs - - - - 15 15 to 20yrs 16 18 18 16 19 21 to 25 yrs 15 17 18 17 18 26 to 30 yrs 14 16 17 18 17 31 to 35 yrs 13 15 16 17 16 36 to 40 yrs 12 14 15 16 15 41 to 45 yrs 11 13 14 15 14 46 to 50 yrs 10 12 13 13 12 51 to 55 yrs 9 11 11 11 10 56 to 60 yrs 8 10 9 8 8 61 to 65 yrs 6 8 7 5 5 Above 65 yrs 5 5 5 5 5 20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with a reference to Susamma Thomas (set out in column 2 of the some follow the multiplier with reference to Trilok Chandra (set out in column 3 of the above table); some multiplier with reference to Charlie (set out in column 4 of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the above); and some follow multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is 38 years the multiplier would he 12 as per Susamma Thomas, 14 as per Trilok Chandra, 12 as per Charlie or 16 as per the multiplier given in column (2) of the Second Schedule of the MV Act or 15 as per the multiplier actually adopted in the second Schedule of MVAct. For example if the deceased is 38 years the multiplier would he 12 as per Susamma Thomas, 14 as per Trilok Chandra, 12 as per Charlie or 16 as per the multiplier given in column (2) of the Second Schedule of the MV Act or 15 as per the multiplier actually adopted in the second Schedule of MVAct. Some Tribunals as in this case apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163A of the MV Act. In cases falling under Section 166 of the MV Act Davies method is applicable. 21. We, therefore, hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie) which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-l7 for 26 to 30 years, M-l6 for 31 to 35 years, M-l5 for 36 to 40 years M-l4 for 41 to 45 years and units for every five years that is M-11 for 51 to 55 years M-9 for 56 to 60 years M-7 for 61 to 65 years and M-5 for 66 to 70 years." 13. Thus, the Tribunal, even if would have considered the parameters as laid down in Susamma or Trilok Chandras cases (supra) or the guidelines as laid down in second Schedule to Motor Vehicle Act, the multiplier could be said to have not been correctly applied by the Tribunal. The Tribunal has also not dealt with salary and deduction part in this case correctly. The Tribunal should have taken note of only that income which could have fallen in the hands of the deceased for using the same to maintain his family that certainly was after deducting his own dependency as well as making deductions towards the income. The Tribunal should have also taken note of the compensation to be awarded to the claimant on account of transportation expenses on funeral and last rites as well as loss of consortium. The Tribunal should have also taken note of the compensation to be awarded to the claimant on account of transportation expenses on funeral and last rites as well as loss of consortium. It should have also taken note of the fact that if there was any likelihood of an increase of income of the deceased by way of promotion or otherwise as laid down in Sarla Vermas case (supra). 14. Thus, the award passed by the Tribunal without application of aforesaid parameters has rendered the same as invalid qua the appellants without effecting the award passed in case of the other claimants (in the absence of any appeal filed by them or by the Insurance Company inviting interference by this Court). 15. Notwithstanding the fact that the application under Section 170 of the Motor Vehicle Act has been dismissed the Tribunal at the fag end of the case which also renders the award invalid. However, since the Insurance Company has not challenged these findings filing appeal qua the award passed in the other claim petitions, therefore, findings on issue No. 1 have become final qua the award passed in the other claim petitions as such now the appellants are estopped to assail the findings on issue No. 1 in the present appeals also. As such I hesitate to interfere with the findings returned by the Tribunal on the aforesaid issue. 16. In the result, I hereby accept all the three appeals, set aside the impugned award on the question of quantum of compensation and remit the case back to the Tribunal to proceed in accordance with law and to settle as to what appropriate compensation the appellants are entitled for. The parties are directed to appear before the Tribunal on 1.12.2009.