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2015 DIGILAW 2131 (MAD)

United India Insurance Co. Ltd. v. Marathal

2015-05-28

S.VAIDYANATHAN, V.DHANAPALAN

body2015
Order V. Dhanapalan, J. On 10.4.2015, when this matter was listed for hearing, this court passed the following order: "Heard Mr. G. Masilamani learned senior counsel who has been appointed as amicus curiae by this Court, He has taken us through the legal position, the law laid down by the Supreme Court in various decisions and more particularly, the distinction between the decisions of the Supreme Court in Amrit Bhanu's Shali's case (Amrit Bhanu Shali vs. National Insurance Company -2012 ACJ 2002 (SC) : 2012 (11) SCC 735) and Kanhsingh's case (Kanhsingh and another Vs. Tukaram and others), in which decisions the Supreme Court has taken different yardsticks for applying the multiplier in the motor accident cases. He also relied upon the general principles by deriving the sources from the common law to the statutes and also as to how it has to be interpreted in the judgments with reasons otherwise and which are all the factors to be taken into account while deciding this appeal. He also highlighted upon as to the application of which preposition of law laid down by the Supreme Court and by which Bench, taking into consideration the facts and circumstances of this case. We have given our thoughtful consideration to the above submissions made by the learned Amicus Curiae Considering the valuable time and guidance rendered by the learned Amicus Curiae, while appreciating his efforts, we fix his remuneration at Rs.1,00,000/-(Rupees one lakh only) to be paid by the appellant-United India Insurance Company forthwith. To hear the learned counsel for the parties in this appeal, list the appeal for hearing on 27.4.2015." 2. Pursuant thereto, Mr. G. Masilamani, learned Senior Advocate, has filed his written submissions as Amicus Curiae, which reads thus: "submissions The loss (death) occasioned on account of a person's negligent act give rise to tortious liability against the said person. In respect of a motor vehicle accident caused by rash and negligent driving of the vehicle, a compensation to the dependants of deceased is payable by the driver/owner/insurer for the loss (death) occasioned by the accident. Hence the person of such negligent act would be tortiously liable to pay, to the dependant/legal heirs of the deceased person by way of monetary compensation. 2. Hence the person of such negligent act would be tortiously liable to pay, to the dependant/legal heirs of the deceased person by way of monetary compensation. 2. The Motor Vehicles Act viz., Section 163-A and second schedule to the Act imposes a liability to pay pre determined liquidated damages by the authorized insurer of the vehicle, to the dependants of third party who suffered fatal accident/injury. 3. Section 163-A was inserted by Amending Act 54 of 1954, Section 163-A prescribes the methodology for computing the compensation on a structured formula basis as per the second schedule to the said Act. 4. The wordings in the second schedule indicate that the age of the victim is the sole determining factor for computing the loss occasioned/compensation, in accordance with the said schedule. It should be stated here itself that the multiplier evolved under the Second Schedule to the Act, was with reference to the age of the victim/deceased and not the dependant. Hence the same multiplier cannot be applied to the age of the dependants to determine the loss occasioned/compensation payable to the dependants. Application of the same multiplier for both the deceased and dependants of age 60 and above, by applying the multiplier will be very meagre which if invested in Bank, will not yield the monthly dependency amount received by the aged dependant during the life time of the victim/deceased. 5. The age of the dependant cannot be taken into account for the reason that there could be many number of dependants for such victim. Then, age of which dependant must be taken into consideration would be the next question and as to how the compensation determined to be apportioned between different age group dependants, adopting which multiplier. 6. Supposing the age of the dependant is taken instead of age of the victim for arriving at the right multiplier, then dispute may arise among the dependants as to whose age to be considered for claiming compensation. It may also lead to ancillary issues for the claim of compensation namely as to who are the legal heirs/dependants to the victim in accordance with their respective personal religious laws such as Hindu, Christian and Mohammedan Laws of succession applicable to them. 7. It may also lead to ancillary issues for the claim of compensation namely as to who are the legal heirs/dependants to the victim in accordance with their respective personal religious laws such as Hindu, Christian and Mohammedan Laws of succession applicable to them. 7. A reading of the provisions in the Motor Vehicles Act, namely Section 163-A and the second schedule, the legislative intent is clear and unambiguous that age of the victim is the sole criteria to compute the compensation under second schedule. The same legislative intent should be applicable to Sec. 166 of the Act also. 8. Age of the victim appears to be the most appropriate and definitive factor in determining the compensation in accordance with the scheme, object and purpose of the said Act. The age of the victim always remains an invariable and objective factor in a given fact situation. 9. It is only to avoid the ambiguity, uncertainty and arbitrariness which may arise while applying the common law principles the legal system was shifted to statutory law. Hence the policy and object behind the enactment of S.163 A should not be defeated by applying the age of dependant to determine the compensation when the statute prescribe the age of the victim especially the result including injustice. Such an exercise cannot be done in the absence of a separate standardized multiplier evolved with respect to the age of dependants. Application of law should be uniform as far as possible and the result of application should yield determinable/ expectable results. Uncertainty in legal determination shall engender arbitrariness which is anti thesis to Rule of law. 10. The Parliament has chosen the age of the victim (in the Second Schedule) to be the sole determining factor in deciding the exact multiplier for computing compensations under Section 163-A However, no separate schedule/provision/multiplier has been enacted by the Parliament for different age group of the dependants. Such a multiplier for dependants may not be made or supplied by Court. The non-provision of multiplier to dependants was not a 'causus omisus'. But consciously omitted since multiplier to dependants is not to be applied to determine the compensation. 11. The line of judgments reiterating the dictum that age of the victim as the counting factor are indeed based upon specific issue raised in the said cases and decided accordingly on reasoning. The non-provision of multiplier to dependants was not a 'causus omisus'. But consciously omitted since multiplier to dependants is not to be applied to determine the compensation. 11. The line of judgments reiterating the dictum that age of the victim as the counting factor are indeed based upon specific issue raised in the said cases and decided accordingly on reasoning. However, in Kanhsingh (Hon'ble Gopala Gowda and C. Nagappan JJ) no issue appear to have been raised with regard to age of dependant/deceased no reasoning given and hence cannot be said to be a 'ratio decidendi'. 12. In Amrit Bhanu shali case reported in 2012 ACJ 2002 (Hon'ble Singhvi and Mukhopadhaya JJ).Following the Sarla Verma case reported in (2009) 6 SCC 121 has held that age of the deceased must be taken to select the multiplier. In the said case one of the claimants was the sister of the deceased. But the tribunal held that sister was not a dependant was she was married and the parents of the deceased were held to be the dependants. The tribunal taking into account the age of the victim (26 years) had awarded a compensation of Rs.8.66 lakhs by adopting 17 as they multiplier. Against this award, the Insurance Company appealed to the High Court. The High Court had reduced the compensation to Rs.6.68 lakhs by adopting 13 as the multiplier. Aggrieved by this order, the claimant appealed to the Supreme Court wherein a specific plea was raised by the insurance company that multiplier has to be applied as per the age of the deceased or as per age of the claimant whichever age is higher. However the Apex Court rejected the said pleas and held that the tribunal has rightly considered the age of the deceased and taken 17 as the multiplier. Similar is the decision arrived at in Mansoor vs. United India Insurance reported in (2013) 12 SCALE 324 (Hon'ble Singhvi and Nagappan JJ) where the age of the victim was taken to determine the compensation. Mansoor case arose from Hon'ble High Court, Madras. 13. The Application of multiplier fell for consideration recently before a three-Judge Bench in Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 . In the said case this Court held: "35. We have already noticed the Table prepared in Sarla Verma for the selection of a multiplier. Mansoor case arose from Hon'ble High Court, Madras. 13. The Application of multiplier fell for consideration recently before a three-Judge Bench in Reshma Kumari v. Madan Mohan (2013) 9 SCC 65 . In the said case this Court held: "35. We have already noticed the Table prepared in Sarla Verma for the selection of a multiplier. The table has been prepared in Sarla Verma having regard to the three decisions of this Court, namely, Susamma Thomas, Trilok Chandra and Charlie for the claims made under Section 166 of the 1988 Act. The Court said that multiplier shown in column (4) of the Table must be used having regard to the age of the deceased. Perhaps the biggest advantage by employing the Table prepared in Sarla Verma is that the uniformity and consistency in selection of the multiplier can be achieved. The assessment of extent of dependency depends on of the unique situation of the individual case. Valuaing the dependency of the multiplicand is to some extent an arithmetical exercise. The multiplicand is normally based on the net annual value of the dependency on the date of the deceased's death. Once the net annual loss (multiplicand) is assessed, taking into account the age of the deceased, such amount is to be multiplicand by a 'multiplier' to arrive at the loss of dependency. 36. In Sarla Verma, this court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purpose of compensation must establish (a) age of deceased (b) income of the deceased; (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma. 37. If the multiplier as indicated in column (4) of the Table read with para 42 of the Report in Sarala Verma is followed. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma. 37. If the multiplier as indicated in column (4) of the Table read with para 42 of the Report in Sarala Verma is followed. The wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. A standard method for selection of multiplier is surely better than a Chris cross of varying methods. It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of a multiplier in claim application made under section 166 in the cases of death. We do accordingly. If for the selection of a multiplier column (4) of the table in Sarla Verma is followed there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A. As regards the cases where the age of the victim happens to be upto 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the second schedule subject to correction as pointed out in column (6) of the table in Sarla Verma should be followed. This is to ensure that the claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in Column (4) of the Table in Sarla Verma should be followed. Final Submissions Therefore the age of the victim shall be the criteria to select the applicable multiplier as held in Amrit Bhanu Shali vs. National Insurance Company Ltd., reported in 2012 ACJ 2002. Final Submissions Therefore the age of the victim shall be the criteria to select the applicable multiplier as held in Amrit Bhanu Shali vs. National Insurance Company Ltd., reported in 2012 ACJ 2002. Personal view I pray leave of this Hon'ble Court to place my personal view on the subject as follows: The liability of the fort feasor, is to compensate the loss occasioned arising out of his negligent act, Once the loss is determined in accordance with the principles of multiplicand and multiplier as provided in the statute and the laws laid down by the Apex Court, with reference to the age of the victim/deceased, that amount is liable to be paid by the person who was guilty of negligent act. The fort feasor is not concerned about as to who are the dependants, their age their apportionment etc. His liability is only to pay the compensation to make good the loss occasioned due to death caused by him. The negligent person may not be conferred with benefit of retaining a part of the compensation amount determined on the reasoning the dependant/applicant is an aged person. Even in equity and general principles of justice, out of the two persons namely, (1) The tort feasor or (2) the aged dependants of the victim, as to who should enjoy or derive benefit from the full compensation determined, the aged dependants would qualify better even though they may be over compensated. The perpetrator of death cannot have a better claim as against the dependants of the victim to derive any benefit from out of the compensation determined. Conferring benefit either full or part of the compensation on the wrong doer shall indeed militate against the general principle of reasonableness. The import and the meaning of compensation should not be stretched to such an extent to benefit the wrong doer in preference to the dependant of the victim/deceased. The word compensation is to be interpreted with reference to the context to do complete and undiluted justice to the parties affected by the negligent act of a person, instead of conferring part or full benefit arising out of the negligent act on the person who acted negligently, Dated at Chennai on this the 20th day of April, 2015. Sd G. Masilamani Senior Advocate Amicus Curiae" 3. Sd G. Masilamani Senior Advocate Amicus Curiae" 3. In the light of the above stated legal position and considering the opinion of the Amicus Curiae, we are of the view that while adopting the multiplier for arriving at the lust compensation in a motor accidents case, the age of the victim is the factor to be taken into consideration and not the age of the dependant/s. 4. As the clarification sought for had been appropriately answered by this Court, we direct the Registry to list the C.M.A. before the appropriate Court for consideration on merits. As regards the personal view expressed by the Amicus Curiae it is open to the Court concerned to take note of the same in accordance with law.