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2017 DIGILAW 381 (GAU)

L. Akila v. Oriental Insurance Co. Ltd.

2017-03-27

SONGKHUPCHUNG SERTO

body2017
JUDGMENT & ORDER : 1. This is an application under section 114 of the Code of Civil Procedure, 1908 praying for review of the judgment and order dated 23.11.2015 passed in MAC Appeal No. 1(K) of 2015 by this Court. 2. Heard Mr. Bendangwabang, learned counsel for the petitioners and also heard Mr. B. Debnath, learned counsel for the respondent/Insurance Company. The main portion of the judgment and order dated 23.11.2015 of this Court on which review is sought for are as follows: “On perusal of the record, it is found that at the time of his death, the age of the deceased was 21 years and as such, in terms of Second Schedule, the compensation payable to the claimants is required to be calculated in the following manner:- (a) Notional income x Multiplier Rs. 15,000 per annum x 17 Less 1/3rd Rs. 2,55,000/- Rs. 85,000/ Rs. 1,170,000/- (b) Loss of Estate Rs. 25,000/- (c) Funeral Expense Rs. 15,000/- Total Rs. 2,10,000/- I have found that the claimants are entitled to an amount to the tune of Rs. 2,10,000/- Although the learned counsel for the appellant submits that the responsibility to pay the aforesaid amount shall be apportioned equally amongst the three vehicles aforesaid, I have found that such a plea is without any justification whatsoever and same is accordingly rejected. In the result, the appeal is partly allowed as indicated hereinabove. Accordingly, the appellant is directed to pay a sum of Rs. 2,10,000/- (less the amount if any, already paid) with an interest @ 9% p.a. on the awarded amount from the date of filing of the claim petition and such amount is to be paid within a period of 30 days from today failing which, the award will carry interest @ 12% p.a. from the date of filing of the claim petition till the date of realisation. Return the LCR.” 3. The point for review raised in the petition are as follows: (i) That this Court had calculated the compensation amount by simply adopting the notional income of the deceased/victim as Rs. 15,000/- p.a. as it is given in the 2nd Schedule of Motor Vehicle Act, 1988 without taking into consideration the often repeated observations of the Hon’ble Supreme Court and the High Courts in the Country, that the same needs to be increased to at least Rs. 30,000/- therefore, the same needs to be reviewed. 15,000/- p.a. as it is given in the 2nd Schedule of Motor Vehicle Act, 1988 without taking into consideration the often repeated observations of the Hon’ble Supreme Court and the High Courts in the Country, that the same needs to be increased to at least Rs. 30,000/- therefore, the same needs to be reviewed. This, plea however, has been abundant by the learned counsel for the petitioners at the time of hearing of this review petition, therefore, I do not intend to dwell on it any further. (ii) The second plea raised in the review petition is that this Court had adopted the figure 17 as multiplier as given in the 2nd Schedule of the Motor Vehicle Act, 1988, whereas the figure 18 should have been the right multiplier as suggested by the Hon’ble Supreme Court. (iii) That since the claim petition was filed under section 163 (A) of the Motor Vehicle Act, 1988, this Court had erred in having deducted 1/3rd from the amount of compensation payable to the petitioners. 4. Since, the first point has been abundant and I am straight away taking up the second point raised by the learned counsel. It is submitted by the learned counsel that in the case of Sarla Verma vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 , the Hon’ble Supreme Court had prepared a chart/table by which the multiplier given in the 2nd Schedule of the Motor Vehicle Act, 1988 has been modified, and as per the modified table for the age group of 21 to 25 years in which age group the victim belonged to the multiplier 17 given in the Act has been replaced by the multiplier 18. But due to oversight or bona-fide mistake the same has been overlooked by this Court, therefore, the compensation awarded to the petitioners ought to be recalculated by replacing the multiplier 17 adopted while calculating the quantum of compensation by this Court by the multiplier 18 as given by Hon’ble Supreme Court. Mr. But due to oversight or bona-fide mistake the same has been overlooked by this Court, therefore, the compensation awarded to the petitioners ought to be recalculated by replacing the multiplier 17 adopted while calculating the quantum of compensation by this Court by the multiplier 18 as given by Hon’ble Supreme Court. Mr. B. Debnath, learned counsel for the respondent, in reply, submitted that in the case of Sarla Verma vs. Delhi Transport Corporation and Another, the Hon’ble Supreme Court was concerned with a petition under 166 of Motor Vehicle Act and not with one under section 163 (A) of the same Act, therefore, there is nothing in that judgment which is applicable in this case, as in this case the application was filed under section 163(A) of the Motor Vehicle Act, 1988. I have gone through the case cited by the learned counsel for the petitioners, it is true that the Hon’ble Supreme Court had given an observation regarding the multipliers as given in the 2nd Schedule of the Motor Vehicle Act and had even prepared a table wherein different multipliers had been suggested in place of the multipliers given in the 2nd Schedule of the Motor Vehicle Act but no definite direction was given for applying/adopting the multipliers suggested in place of the multipliers given in the 2nd Schedule of the Act. In the absence of such definite direction multipliers given in the2nd Schedule of the Act has not lost its relevance, as such, the same has to be followed till it is changed or modified by legislative action or by judicial order. Further, as rightly pointed out by the learned counsel for the respondent, the Hon’ble Supreme Court in that case was concerned with the petition under section 166 of Motor Vehicle Act. Section 163(A) start with none obstante clause with words like “Notwithstanding anything contained in this Act or law for the time being in force or instrument having the force of law………..” Therefore, in any petition filed under this section, Courts’ would have to follow the 2nd Schedule of the Act for calculating the final amount of compensation payable to the claimant or claimants. And this Court had done exactly that, therefore, there is no need for review of the judgment and order dated 23.11.2015 passed by this Court in MAC Appeal No. 1(K) of 2015. 5. And this Court had done exactly that, therefore, there is no need for review of the judgment and order dated 23.11.2015 passed by this Court in MAC Appeal No. 1(K) of 2015. 5. Now coming to the third plea of the petitioners, Mr. Bendangwabang, learned who appeared on their behalf submitted that when notional income as given in the 2nd Schedule of the Act has been adopted as the annual income of the victim, deduction of 1/3rd from the amount of compensation should not have been made, therefore, this Court had committed an error for having done so. This submission of the learned counsel is clearly misconceived in view of what is provided in the 2nd Schedule of the Act which is given here below: “Note: The amount of compensation so arrived at in the case of fatal accident claims shall be reduced by 1/3rd in consideration of the expense which the victim would have incurred towards maintaining himself had he been alive.” In view of the above discussions, I find no merit in the review petition, therefore, the same is dismissed.