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2014 DIGILAW 551 (CAL)

Sunil Ghosh v. National Insurance Co. Ltd.

2014-06-25

INDIRA BANERJEE, MRINAL KANTI CHAUDHURI

body2014
JUDGMENT : 1. This appeal is against Judgment and Award dated 29th February, 2012 passed by the Motor Accident Claims Tribunal, 9th Court, Alipore in an application for compensation filed by the claimants/appellants under Section 163A of the Motor Vehicles Act, 1988 on account of the accidental death of late Purnima Ghosh, in course of use of a vehicle bearing Registration No. WB-03/5073 owned by the respondent no.2 and covered by a policy of insurance taken out by the respondent no.1/National Insurance Co. Ltd. (hereinafter referred to as the respondent/insurer). 2. By the judgment and award impugned, the learned Tribunal awarded the claimants/appellants compensation of only Rs. 9,500/- towards funeral expenses, loss of estate and loss of consortium observing that compensation of Rs. 9,500/- was just, proper, adequate and equitable in the facts and circumstances of the case. 3. The learned Tribunal proceeded on the basis that since the deceased victim was, during her lifetime, a housewife with no income and neither of the appellants was dependent on her, the claimants/appellants would not be entitled to any compensation except for statutory compensation of Rs. 5,000/- towards loss of consortium, Rs. 2000/- towards funeral expenses and Rs. 2,500/- towards loss of estate. The learned Tribunal framed the following issues: "1. Is the claim case maintainable in its present form? 2. Did the accident occur due to the fault on the part of the driver of the offending vehicle bearing registration No. WB-03/5073 on 19.07.2005? 3. Whether the offending vehicle bearing registration No. WB-03/5073 was under the valid insurance coverage of the National Insurance Co. Ltd.? 4. Are the claimants entitled to get any compensation as prayed for? 5. To what other relief or reliefs, if any, are the petitioners entitled? " 4. The learned Tribunal dealt with all the aforesaid issues together for the sake of brevity and convenience. In our view Issue No.2 i.e. the issue of whether the accident occurred due to the fault on the part of the driver of the offending vehicle, bearing Registration No. WB-03/5073 was not relevant in an application under Section 163A of the Motor Vehicles Act which is based on no fault liability. Section 163A of the Motor Vehicles Act inter alia provides: "[163A. Section 163A of the Motor Vehicles Act inter alia provides: "[163A. Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmens Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule]." 5. The liability under Section 163A arises notwithstanding anything contained in the Motor Vehicles Act or in any other law for the time being in force or any instrument having force of law. In other words notwithstanding any contract and notwithstanding any other law including the law relating to damages and/or law relating to compensation the heirs of a victim killed in a motor accident arising out of the use of a motor vehicle would be entitled compensation as indicated in the Second Schedule of the said Act. 6. The learned Tribunal completely overlooked paragraph 6 of the Second Schedule which provides for notional income of Rs. 15,000/- in case of a victim who had no income prior to the accident. In terms of paragraph 6, in case of fatal accident the notional income of a non-earning person is to be treated Rs. 15,000/- per annum and in case of a non earning spouse the income is to be deemed ?rd of the income of the earning surviving spouse. Since the notional income of a non-earning person is to be deemed to Rs. 15,000/- per annum and in case of a non earning spouse the income is to be deemed ?rd of the income of the earning surviving spouse. Since the notional income of a non-earning person is to be deemed to Rs. 15,000/- per annum, Section 6(a) and Section 6(b) have necessarily be harmoniously construed to mean that a non-earning spouse would be deemed to have notional income equivalent to ?rd of the income of the earning surviving spouse or Rs. 15,000/- per annum whichever is higher. 7. We are unable to appreciate how the learned Tribunal could have declined compensation on the ground that the deceased/victim was a housewife with no income. In the instant case, it appears that the income of the earning spouse was neither mentioned nor proved. On the other hand in the claim application the claimants/appellants claimed compensation on the basis that the deceased/victim earned Rs. 15,000/- per month prior to her death. As per the Second Schedule the income should have been computed at Rs. 15,000/- x 13 being the multiplier applicable to the age group of 45-50 years (the age of the victim being 49 years as per the document produced by the parties). Therefore, the compensation should have been Rs. 1,95,000/- plus Rs. 2000/- plus Rs. 2500/- Rs. 1,99,500/- to be divided equally between the two claimants. In addition, the appellant no.1 being the husband would be entitled to Rs. 5,000/- towards loss of consortium. 8. The judgment and award of the learned Tribunal cannot be sustained and the same is set aside. The appeal is, thus, allowed. 9. The appellants/claimants shall be entitled to compensation of Rs. 1,99,500/- as per the particulars given above in addition to Rs. 5,000/- payable to the claimant husband towards loss of consortium. The aforesaid amount shall carry interest at the rate of 8% per annum from the date of filing of the claim application till full disbursement to the claimants, as per reducing balance, if applicable. The amount awarded by this judgment and order, along with interest, shall be deposited in the learned Tribunal within six weeks from the date of receipt of a certified copy of this order. 10. The lower court records be sent back to the learned Tribunal as early as possible. 11. The amount awarded by this judgment and order, along with interest, shall be deposited in the learned Tribunal within six weeks from the date of receipt of a certified copy of this order. 10. The lower court records be sent back to the learned Tribunal as early as possible. 11. Urgent certified photostat copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties, subject to compliance with all requisite formalities.