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2013 DIGILAW 390 (CAL)

Chhaya Sarkar v. Oriental Insurance Co. Ltd.

2013-06-28

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

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JUDGMENT : 1. An interesting question has been raised by Mr. Saidur Rahaman, learned Counsel appearing for the appellants, in this appeal, apart from other common issues. The victim was a bachelor. He died in the accident leaving him surviving his parents. As per the voter identification card, the victim was 23 years old and his mother was 36 years old, as claimed by the claimants. Mr. Parimal Kumar Pahari, learned Counsel appearing for the Insurance Company, has raised doubt, and in our view, very rightly. 2. Mr. Rahaman would, however, raised a legal issue as to whether the Tribunal was justified in choosing the multiplier considering the age of the mother and ignoring the age of the victim. He would contend, the decision in the case of Reshma Kumari and Others Vs. Madan Mohan and Another, the Larger Bench discussed the decision in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, in v. mode be case and of the to would a should cases as Chandra all said decision Act, U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, (1996) 4 SCC 362 was overruled by implication. 3. On the other issue, Mr. Rahaman would submit, the Tribunal ignored the assertion with regard to the income of the victim. Even if it was not proved, the ratio decided Laxmi Devi and Others Vs. Mohammad Tabbar and Another, (2008) 12 SCC 165 should be followed. 4. Per contra, Mr. Pahari has relied upon the decision in the case of Trilok Chandra & Ors. (supra), and would contend, the same is still holding the field. He would rely upon another decision in the case of New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and Others, (2007) 10 SCC 1 on the issue. 5. We have considered the rival contentions. We do not agree with the view expressed by Mr. Rahaman on the legal issue raised by him. 6. In Trilok Chandra & Ors. (supra), the Apex Court observed, age of the mother must have a dominant role for choice of multiplier. The issue was again discussed in the case of Smt. Sarala Verma and Others (supra), particularly paragraph 15, where the Apex Court observed, the mother is the only lawful claimant in case of death of a bachelor. 7. (supra), the Apex Court observed, age of the mother must have a dominant role for choice of multiplier. The issue was again discussed in the case of Smt. Sarala Verma and Others (supra), particularly paragraph 15, where the Apex Court observed, the mother is the only lawful claimant in case of death of a bachelor. 7. In Reshma Kumari (supra), two-Judge Bench of the Apex Court referred two questions to be answered by the larger Bench. (i) Would the Second Schedule be followed in all cases? (ii) What would be the effect of "future Prospect"? The Larger Bench accordingly answered the queries made by the two-Judge Bench that would not include the issue raised by Mr. Rahaman before us. Section 163A would prescribe a composite formula to be followed in case of the poor victims belonging to the lower income group having a maximum limit of income of Rs. 40,000 per annum. Section 166 did not restrict any Court compelling it to follow a particular formula. It would enable the Court to award "just compensation", hence any victim or the next to kin in case of death, irrespective of the income of the victim, would be entitled to approach the Tribunal for "just compensation" and the Tribunal would be free to decide considering the evidence that was led before it. While awarding "just compensation", there is no restriction on the Tribunal that would debar them from using that rough and ready mode of calculation. These are the basics in the motor accident claims adjudication. 8. Ordinarily in all cases, the Tribunal considers the age of the victim. The logic is, had the victim been alive, he would have served his family, his loss to the family should be calculated to have proper compensation assessed. The fixation of multiplier would have the backdrop of various considerations where age of the victim has a dominant role. Similarly, the choice of multiplier would be as per the age of the victim, on that score there cannot be any scope of disagreement. 9. The choice of multiplier in case of a bachelor's death would, however, depend upon a different logic. If we look to paragraph 15 of the case of Smt. Sarah Verma and Others (supra), we would find, the Apex Court considered, who would be affected by the death of the bachelor. 9. The choice of multiplier in case of a bachelor's death would, however, depend upon a different logic. If we look to paragraph 15 of the case of Smt. Sarah Verma and Others (supra), we would find, the Apex Court considered, who would be affected by the death of the bachelor. Ultimately, the Apex Court came to conclusion, it was the mother who would be mostly affected by such death. Apart from the emotion and loss of life and bonding, the mother is deprived of her sustenance that her child being the victim, could provide had he/she been alive, hence the mother's age or her proximate longevity span would have a dominant role on the choice of multiplier. The logic is sound. In our view, Trilok Chandra & Ors. (supra), still holds the field and no decision of the Apex Court is yet to overrule the same, either expressly or by implication. Mr. Rahaman's contention, on that score, is thus rejected. 10. The victim died in 2009. Applying the ratio decided in Laxmi Devi and Others Vs. Mohammad Tabbar and Another, (2008) 12 SCC 165 we assess his income notionally at Rs. 3,500 per month. The Tribunal erroneously applied the multiplier of 17. Considering the age of the victim, it should be 17, we reduce it to 14, since mother is the sole dependant, the usual deduction of 50% of the income on account of personal expense is allowed. 11. The appeal, thus, succeeds and is allowed. The award is, thus, modified as follows: 12. The award would carry interest at the rate of 6% per annum on and from the date of filing of claim petition until it was actually deposited and/or paid. The differential awarded sum would also carry interest at the same rate from the date of filing of the claim petition till the payment is made. The Insurance Company is directed to pay the differential awarded sum as well as the interest in the same proportion fixed by the Tribunal to the claimant No. 1 being the mother of the victim through account payee cheque to be sent at the recorded address by speed post. Such payment must reach the claimant within four weeks from the date of communication of this order. With these observations the appeal is disposed of along with the application without any order as to costs. Such payment must reach the claimant within four weeks from the date of communication of this order. With these observations the appeal is disposed of along with the application without any order as to costs. The Registry is directed to send down the records at once, if received by this time. Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.