Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 1895 (ALL)

Oriental Insurance Co. Ltd. , Lko. v. Tabassum Nishat and Others

2013-07-19

SATISH CHANDRA, SIBGHAT ULLAH KHAN

body2013
Satish Chandra, J.— Present appeal has been filed by the appellant-Insurance Company under Section 173 of Motor Vehicle Act, 1988, against the judgment and award dated 29.03.2013 passed by the Motor Accident Claim Tribunal, Lucknow in Claim Petition No.550 of 2006, where a total compensation of Rs.13,29,500/- was awarded along with the interest @ 6% per annum. The brief facts of the case are that on 28.09.2006, at about 17 O' clock, Sri Mazahar Ali Hasmi was going from Purania Chauraha to Khadra by walking. From the opposite direction, a Mahindra Pickup No-U.P 30 A/6089 was coming, whose driver was driving it carelessly and negligently and hits Sri Hasmi, who died on the spot. The claimants-respondents have filed the claim petition. The Tribunal after examining the entire evidence has awarded a total compensation of Rs.13,29,500/-. Being aggrieved, the Insurance Company has filed the present appeal. With this background, Sri Anil Srivastava, learned counsel for the Insurance Company submits that the deceased was an employee of the State Government working as Senior Clerk in the office of Cane Commissioner, Lucknow and admittedly he had married third times without divorcing his second wife. He also submits that as per service rules, the deceased was prohibited to marry another lady during the life time of non divorcing first living wife and in such event his services were liable to be terminated. So, the claimants are not entitled for any compensation. Learned counsel further submits that as per the salary certificate of the deceased, his gross salary and other allowances comes to a total of Rs.8,022/per month which he was receiving at the time of his death, but the Tribunal erroneously assessed and presumed the income of the deceased @ Rs.15,000/- per month which has resulted in miscarriage of justice. Learned counsel for the appellant-Insurance Company submits that maximum annual income will have to be taken Rs.40,000/- per annum as per IInd Schedule of Section 163 A of the Act. In the instant case, the annual income of the deceased is much higher. So, the award is bad and the same is not sustainable in the eye of law. Lastly, he made a request that the impugned award may kindly be set aside. After hearing learned counsel for the appellant and on perusal of the record, it appears that the deceased died on the spot due to the accident in question. So, the award is bad and the same is not sustainable in the eye of law. Lastly, he made a request that the impugned award may kindly be set aside. After hearing learned counsel for the appellant and on perusal of the record, it appears that the deceased died on the spot due to the accident in question. The accident is undisputed. The driver of the vehicle Sri Rajendra Prasad was holding a valid driving licence on the date of accident. The vehicle in question was insured with the appellant-Insurance Company and on the date of accident, insurance police was alive. It may be mentioned that polygamy it is a question of personal law as the deceased was a Muslim and has no relevance for the purpose of Motor Vehicle Act. Regarding the salary, it may be mentioned that the pay scale was revised w.e.f. 01.01.2006 which was duly paid to all the employees, of course, belated. The Tribunal has discussed this issue by observing that the revised pay scale will have to be taken for the purpose of computation of the compensation. 1/3rd income was deducted for the self-expenditure, while computing the compensation. When it is so, then the finding appears reasonable. Regarding the Second Schedule to section 163 A, it may be mentioned that the second schedule to the Act may serve as a guide but cannot be used as an invariable ready reckoner, as per the ratio laid down in the case of Managing Director, T.N.S.T.C.Ltd. Vs. K.I.Bindu & others, (2005) 8 SCC 473 . by observing that though a special provision for assessment of compensation on structured formula basis for the purpose of a claim petition under Section 163-A of the Act has been inserted in the Act with effect from 14th November, 1994, but no such formula has been laid down for determination of compensation in a claim petition under Section 166 of the Act. In a catena of decisions, certain broad principles which could be applied for assessing just compensation have been highlighted. It has been observed that in a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered and likely to be suffered by them as a result of adrupt termination of life, as per the ratio laid down in the case of Syed Basheer Ahamed & others Vs. Mohd. It has been observed that in a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered and likely to be suffered by them as a result of adrupt termination of life, as per the ratio laid down in the case of Syed Basheer Ahamed & others Vs. Mohd. Jameel and another 2009 (1) T.A.C. 794 (SC). Section 168 of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just." However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression "which appears to the just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards. In the light of above discussions, we find no reason to interfere with the impugned award passed by the Tribunal and the same is hereby sustained along with the reasons mentioned therein. The amount, if any, deposited in this Court shall be remitted to the concerned Tribunal, who is directed to pay the compensation to the claimants-respondents, at the earliest, in terms of the award. In the result, the appeal filed by the appellant-Insurance Company is dismissed. ____________