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2015 DIGILAW 509 (CAL)

Oriental Insurance Co. Ltd. v. Nayantara Mal

2015-06-18

INDIRA BANERJEE, SAHIDULLAH MUNSHI

body2015
JUDGMENT : 1. Though this matter is appearing under the heading application, by consent of the parties we take up this appeal for hearing by treating the same as on day's list. 2. This appeal filed by the appellant insurer is against a Judgment and Award dated 14th January, 2015 passed by the Motor Accident Claims Tribunal, 4th Court, Additional District and Sessions Judge, Suri, Birbhum in M.A.C. Case No.128/2013 being a claim application under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V. Act'). 3. By the Judgment and Award under appeal, the learned Tribunal has awarded the respondents/claimants total compensation of Rs.8,97,000/- as per the particulars given below : - income (Rs.3000/- x 12) Rs.36,000/- Less: ⅓rd towards personal expenses Rs.12,000/- Rs.24,000/- Adding: 50% towards future prospect (Rs.24,000/- + Rs.18,000/-) Rs.42,000/- Compensation after adding multiplier 16 (16 x Rs.42,000/-) Rs.6,72,000/- Adding: Rs.1 lack consortium to the Petitioner no.1 Rs.1,00,000/- Adding: Rs.50000/- each to the Petitioner 2 and 3 for loss and care of guidance Rs.1,00,000/- Funeral and incidental expenses Rs. 25,000/- The total compensation thus awarded Rs.8,97,000/- 4. The short question involved in this appeal is whether the learned Tribunal could have, in an application under Section 163A for compensation, added 50% to the income of the victim towards future prospects or awarded Rs.1,00,000/- towards loss of consortium to the spouse, Rs.50,000/- to each of the children for loss of care and guidance or Rs.25000/- towards funeral and incidental expenses. 5. It also appears that the learned Tribunal made a calculation error in computing the total pecuniary loss to the family taking into account future prospects. Even assuming 50% could have been added towards future prospects, the deduction of ?rd towards personal expenses would have to be made after addition towards future prospects. In the instant case, the learned Tribunal deducted ?rd from the actual income towards personal expenses and thereafter added 50% of the entire income towards future prospects and thereby erred in law. 6. As observed above, the judgment and award impugned in the instant appeal has been rendered in an application under Section 163A of the M.V. Act. Section 163A of the M.V. Act is set out herein below for convenience : "S. 163A : Special provisions as to payment of compensation on structured formula basis. 6. As observed above, the judgment and award impugned in the instant appeal has been rendered in an application under Section 163A of the M.V. Act. Section 163A of the M.V. Act is set out herein below for convenience : "S. 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 or 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 Workmen's 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." 7. Section 163A casts a liability on the owner of a motor vehicle or the authorised insurer to pay compensation as indicated in the Second Schedule of the M.V. Act to the legal heirs, or the victim, as the case may be, in case of death or permanent disablement due to accident arising out of the use of the motor vehicle. Sub-Section 2 of Section 163A of the M.V. Act makes it absolute clear that in any claim for compensation under Section 163A (1), the claimant is not 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. 8. 8. The liability of the owner and/or insurer to pay compensation as per the schedule is irrespective of whether there was any fault on the part of the motor vehicle and irrespective of whether there was any fault or contributory negligence on the part of the victim. 9. Section 166 of the M.V. Act also provides for compensation. The said Section is extracted herein below for convenience : "Section 166.- Application for compensation. 1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claim Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant reside, and shall be in such form and contain such particulars as may be prescribed; Provided that where no claim or compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section 6 of section 158 as an application for compensation under this Act." 10. In an application under Section 166 of the M.V. Act, the Tribunal would have to be satisfied on the basis of materials on record that there was fault or negligence on the part of the motor vehicle involved in the accident. In an application under Section 166 of the M.V. Act, the Tribunal would have to be satisfied on the basis of materials on record that there was fault or negligence on the part of the motor vehicle involved in the accident. Compensation under Section 166 of the M.V Act is not restricted only to cases of death and permanent disability. 11. On the other hand, Section 163A is a special provision with regard to payment of compensation with a non-obstante clause. The liability is irrespective of any other provision of the M.V. Act or any other law including the law of tort, the law of contract or any other law relating to damages and compensation and irrespective of any instrument having force of law. 12. The condition precedent for grant of compensation under Section 163A is that there should have been death or permanent disablement due to an accident arising out of use of a motor vehicle. Once the victim of death or disablement due to an accident arising out of the motor vehicle, the compensation would have to be computed as per the Second Schedule of the M.V. Act. 13. However, in Sarla Verma and Others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 , the Supreme Court noticed that there were palpable errors in the Second Schedule. The law which has emerged from Sarla Verma and others v. Delhi Transport Corporation and others (supra) and other judgments of the Supreme Court is that the Second Schedule serves as a guideline for computation of compensation and the court may deviate from the schedule in an appropriate case. It is, however, necessary to remember that the claim for compensation in Sarla Verma related to Section 166 of the M.V. Act and not Section 163A of the M.V. Act. However, the errors noted by the Supreme Court in Sarla Verma in relation to the table in the Schedule would have to be taken into account even for computation of compensation under Section 163A of the M.V. Act. 14. However, the errors noted by the Supreme Court in Sarla Verma in relation to the table in the Schedule would have to be taken into account even for computation of compensation under Section 163A of the M.V. Act. 14. The apparent errors in the multipliers would be evident from the fact that the multiplier for the age group of upto 15 years is 15 but if any of the thirteen income figures as given in the Schedule is multiplied by 15, the total does not tally with the compensation figures given in the Schedule for the said age group. For example, if the income figure 3000 is multiplied by 15, the total is Rs.45,000/-and not Rs.60,000/- as indicated in the Schedule. Similarly, if the income figure Rs.4200/- is multiplied by 15, the income figure would be Rs.63,000/-and not Rs.84,000/- as given in the Schedule. 15. It is also rather strange that the multiplier should be 15 for the age group of below 15 years, 16 for the age group of 15 to 20 years, 17 for the age group of 20 to 25 years, 18 for the age group of 25 to 30 years, 17 again for the age group of 30 to 35 years, 16 for the age group of 35 to 40 years, 16 for the age group of 40 to 45 years, 13 for the age group of 45 to 50 years, 11 for the age group of 50 to 55 years, 8 for the age group of 55 to 60 years, 5 for the age group of 60 to 65 year s and 5 again for the age group of above 65 years. 16. It is absurd that the same multiplier should be applicable for the age group upto 15 years and the age group of 40 to 45 years. Similarly the same multiplier 17 is given for the age group of 20 to 25 years and 30 to 35 years whereas the multiplier for the age group 25 to 30 years is 18. 17. Similarly the same multiplier 17 is given for the age group of 20 to 25 years and 30 to 35 years whereas the multiplier for the age group 25 to 30 years is 18. 17. While it is obvious that a lesser multiplier is provided for higher age group for the obvious reason that the life expectancy is likely to be shorter, there could be no logic as to why the multiplier for the age groups of upto 15 years, 15 to 20 years and 20 to 25 years should be less than the multiplier for the age group of 25 to 30 years. As observed above, six multipliers if applied to the income figures do not tally with the corresponding compensation amount shown in the table. The income figures however, match with the corresponding compensation figures if the multipliers are taken to be 20 for the age group of upto 15 years, 19 for the age group of 15 to 20 years, 18 for the age group of 20 to 25 years, 17 for the age group of 25 to 30 years, 16 for the age group of 35 to 40 years. 18. In Sarla Verma (supra) the Supreme Court laid down what the multipliers that should be followed for different age groups. Ordinarily, compensation under Section 163A is to be computed by multiplying the monthly income by 12 and arriving at the annual income, deducting ?rd of the aforesaid amount towards personal expenses of the victim and thereafter multiplying the figure with the multiplier applicable to the age group to which the victim belonged at the material time of the accident as per the judgment of the Supreme Court in Sarla Verma (supra). In this case the victim was in the age group of 31 to 35 years. The multiplier should have been 16 as per the judgment of the Supreme Court in Sarla Verma (supra). The learned Tribunal has applied the correct multiplier. 19. The learned Tribunal however, erred in adding 50% towards future prospects. The learned Tribunal also erred in awarding Rs.1 lakh towards consortium to the spouse, Rs.50,000/- each to the children and funeral and incidental expenses of Rs.25,000/-. 20. Compensation under Section 163A is to be computed in accordance with the Second Schedule as rectified in Sarla Verma (supra) under Section 163A there is no scope for addition of future prospects. The learned Tribunal also erred in awarding Rs.1 lakh towards consortium to the spouse, Rs.50,000/- each to the children and funeral and incidental expenses of Rs.25,000/-. 20. Compensation under Section 163A is to be computed in accordance with the Second Schedule as rectified in Sarla Verma (supra) under Section 163A there is no scope for addition of future prospects. The judgment in Sarla Verma (supra) pertained to Section 166, where fault and negligence of the offending vehicle had been established. 21. We find from the judgment and award under appeal that the respondents claimants had claimed that the deceased was a mason earning Rs.3,300/- per month. The learned Tribunal erred in law in assessing the notional income to be Rs.3,000/- per month. There was no reason at all not to accept the income as claimed by the claimants in respect of which there was also oral evidence. The learned Tribunal failed to appreciate that daily labourers, mazdoors and other self-employed persons who are not income tax payers cannot possibly adduce documentary evidence of their income. Some guess work and estimation is permissible. Proceedings under the M.V. Act are not decided in the manner in which civil suit is decided. The learned Tribunal has erred in taking Rs.3000/- as the notional income. 22. We accept that the income of the deceased was Rs.3,300/- per month as claimed and we direct that the compensation should be computed as follows : Annual income (Rs.3,300/- x 12) Rs.39,600/- Less: ⅓rd be deducted as personal expenses (Rs.39,600/- (-) Rs. 13,200/-) Rs.26,400/- Multiplied by 16 i.e. Rs.26,400/- x 16 Rs.4,22,400/- Add: Loss of estate Rs. 2,500/- Add: Funeral and incidental expenses Rs.2,000/- Rs.4,26,900/- 23. In addition the claimant respondent No.1 being the spouse shall get Rs.5,000/- towards loss of consortium. 24. The claimants shall be entitled to interest at the rate of 9% per annum as awarded by the learned Tribunal from the date of filing of the claim application till full payment to the claimants. 25. It will be open to the appellant insurer to withdraw the amount deposited with the learned Registrar General of this Court along with interest accrued thereon. 25. It will be open to the appellant insurer to withdraw the amount deposited with the learned Registrar General of this Court along with interest accrued thereon. The appellant insurer shall within thirty days from the date of receipt of a certified copy of this order issue one cheque in the name of the claimant respondent no.1 towards her own share and compensation of minors and a cheque in the name of the mother towards her th share. The cheques should be deposited in the learned Tribunal. 26. The appeal and the application are, thus, disposed of. 27. The Lower Court records shall forthwith be sent down to the court below. 28. Photostat certified copy of this order, if applied for, be expeditiously supplied to the learned Advocates appearing for the parties subject to compliance of requisite formalities.