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2015 DIGILAW 536 (CAL)

New India Assurance Co. Ltd. v. Anita Bhaduri

2015-06-29

INDIRA BANERJEE, SAHIDULLAH MUNSHI

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JUDGMENT : 1. This appeal, filed by the appellant insurer, is against a judgment and award dated 16th August, 2007 passed by the Motor Accident Claims Tribunal in MAC Case No.68/2004/73 of 2004, whereby the learned Tribunal has awarded a lump sum compensation of Rs.7,00,000/- to the claimants/respondents. 2. The claimants have filed a cross objection to the judgment and award under appeal inter alia, contending that the appellant should have been awarded a higher amount. 3. It is now well settled that even in respect of claims under Section 166 of the Motor Vehicles Act, 1988, the structured formula, as contained in the second Schedule of the said Act is a reasonable guideline in determination of compensation for pecuniary loss. 4. This is a case under Section 166 of the Motor Vehicles Act. On the basis of evidence on record, the learned Tribunal was satisfied that there was fault and negligence on the part of the vehicle. 5. If compensation in this case were to be computed in accordance with the principles for computation of compensation under Section 163A which casts a liability on the owner or the authorised insurer to pay compensation in case of death or permanent disablement, irrespective of whether the Motor Vehicle is at fault or negligent, by application of the structured formula in accordance with the second schedule, the respondents/claimants would have been entitled to Rs.7,24,500/- + Rs.5000/- payable towards loss of consortium to the surviving spouse. 6. In this case the Learned Tribunal awarded lump sum compensation of Rs.7,00,000/- only, observing that compensation as per structured formula would exceed Rs.7,00,000/-, but the claimants had claimed Rs.7,00,000/- only. 7. Mr. Singh learned counsel appearing on behalf of the appellant insurer contended that the learned Tribunal erred in law in accepting the contention of the respondent claimants that the deceased victim had a monthly income of Rs.6000/- at the time of his death. 8. Mr. Singh submitted that the amount was excessive considering that the deceased had met with the accident way back in the year 2000, about 15 years ago. 9. We, however, find that the learned Tribunal accepted the monthly income of the deceased victim to be Rs.6000/- considering a certificate issued by the employer, who came to Court and deposed under oath. 10. This is not a case where the income has been determined without any evidence on record. 9. We, however, find that the learned Tribunal accepted the monthly income of the deceased victim to be Rs.6000/- considering a certificate issued by the employer, who came to Court and deposed under oath. 10. This is not a case where the income has been determined without any evidence on record. There is documentary evidence on record in the form of certificate of the employer issued by the employer at the risk of prosecution in the event it was found that the certificate was totally false. There are no materials on record which might give rise to legitimate suspicion that the proprietor of Upward Enterprise would collude with the respondent claimants, issue a false certificate and depose in Court at the risk of prosecution inter alia, for perjury. 11. The income having been determined on the basis of evidence on record with which the learned Tribunal was satisfied, we are not inclined to interfere. There is absolutely no merit in the appeal of the appellant insurer. Now the question is whether the respondent claimants should have been awarded a higher compensation as claimed in their cross objection. 12. The issue of whether the Tribunal was competent to award compensation in excess of what was claimed in an application under Section 166 of the Motor Vehicles Act, 1988 was considered by a Three-Judge-Bench of the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 , The Supreme Court held as follows; "whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At paragraph 10 of Nagappa's case (supra), it was held as follows;- "10. Thereafter, Section 168 empowers the claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be just'. There is no other limitation or restriction on its power for awarding just compensation.". The principle was followed in the later decisions in Oriental Insurance Company Limited v. Mohd, Nasir and another and in Ningamma and another v. United India Insurance Company Limited. Therefore, only requirement for determining the compensation is that it must be just'. There is no other limitation or restriction on its power for awarding just compensation.". The principle was followed in the later decisions in Oriental Insurance Company Limited v. Mohd, Nasir and another and in Ningamma and another v. United India Insurance Company Limited. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not succumb to niceties or technicalities, in such matter. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No.54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the claims Tribunal under sub-section (6) of Section 158 has to be treated as an application for compensation, Section 158(6) of the act reads as follows....." 13. In view of law laid down by the Supreme Court in Rajesh & Ors. v. Rajbir Singh & Ors. (supra) we hold that the Learned Tribunal was obliged to award just compensation even if such compensation exceeded the amount claimed by the claimant. 14. Compensation for pecuniary loss may reasonably be computed by application of the structured formula prescribed in the second schedule by taking the income of the victim, deducting a certain percentage on account of personal expenses of the victim, in case of death, as the multiplicand and multiplying the multiplicand with the multiplier applicable to the age group to which the victim belonged, prescribed in the Second Schedule, as rectified by the Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in (2009) 6 SCC 121 . 15. It is also well settled by several judgments of the Supreme Court including the judgment in Rajesh & Ors. 15. It is also well settled by several judgments of the Supreme Court including the judgment in Rajesh & Ors. v. Rajbir Singh & Ors (supra) the heirs would also be entitled to reasonable compensation for loss of love, care, guidance, funeral expenses and the like, in addition to compensation for pecuniary loss. We hold that the respondents claimants would be entitled compensation of Rs.7,20,000/- + lump sum amount of Rs.50,000/- towards loss of love, affection, mental agony, funeral expenses and the like, considering that the accident took place in the year 2000. 16. Subsequently in later decisions the Supreme Court has awarded much higher amounts under these heads. 17. We are also of the view that the learned Tribunal erred in law in not granting interest to the respondent claimants from the date of filing of the claim application till liquidation of the compensation amount in full. The award is modified by directing that the respondents claimants would be entitled to compensation of Rs.7,70,000/-, which will carry interest at the rate of 8% per annum from the date of filing of the claim application till full liquidation of the awarded amount as per reducing balance. 18. The balance amount shall be deposited in the Tribunal within sixty days from the date of receipt of certified copy of this judgment and order. The Tribunal shall disburse such amount to the claimant No.1, who is the wife of the deceased and the mother of the claimant no.2 by two account payee cheques of equal amount. 19. It will be open to the claimant respondent to withdraw the amount lying in deposit with this Court along with interest accrued thereon. 20. The appeal and the cross objection are disposed of accordingly. The application for early disposal of the appeal being CAN 915 of 2015 is also disposed of.