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2017 DIGILAW 687 (GUJ)

NEW INDIA ASSURANCE COMPANY LIMITED THROUGH LEGAL CELL v. RAMRAJ BJHAGVANDAS MORIYA

2017-03-27

A.G.URAIZEE

body2017
JUDGMENT : 1. The appellant Insurance Company has challenged the judgment and award dated 30th April, 2012 passed by the Learned Chairman, Motor Accident Claims Tribunal, Vadodar in Motor Accident Claim Petition No.1728 of 2007 filed for the limited purpose of addition of appropriate multiplier. The deceased was unmarried and claimants– respondents herein are the parents. According to the appellant-Insurance Company, appropriate multiplier should be on the basis of the age of the parents of the deceased. 2. Brief facts giving rise to the appellants are that Pravinbhai, who was the son of the respondents-claimants on 22.11.2007, while riding bicycle, met with an accident with tanker bearing registration No.GRQ/4458. The deceased suffered fatal injuries and died instantaneously on the spot. The deceased was aged 22 years when he met with an accident therefore, respondents Nos.3/1 and 3/2 herein preferred an application as per the Section 163-A of the Motor Vehicles Act (“M.V. Act” for short), 1988 to recover compensation of Rs.4,83,800/- from the respondent No.1 from the appellants and respondents No.1 and 2 jointly and severally. The Tribunal by the impugned judgment and award directed the appellants and respondents No.1 and 2 to pay a sum of Rs.4,83,800/- with 7.5% interest from the date of filing of claim petition with proportionate costs jointly and severally. While determining the compensation the tribunal decided the dependency of the claimants on which an appropriate multiplier of the basis of the age of the deceased. According to the appellant-Insurance Company, the multiplier ought to have adopted appropriate multiplier on the basis of the age of the parents (Claimants) and therefore, this appeal. 3. I have heard Mr. V.C. Thomas, learned advocate for Mr. Vibhuti Nanavati, learned advocate for the appellant. Mr. Hiren M. Modi, learned advocate for the claimants. There is no representation on behalf of the respondents No.1 and 2, despite service of Rule of this appeal. 4. Relying upon the decision of the Supreme Court in the case of National Insurance Company Limited Versus Gurumallamma and Anothers, (2009) 16 SCC 43 . Mr. Thomas submits that the tribunal ought to have considered the age of the parents for deciding the dependency. He further submits that the appeal may be allowed and the impugned judgment and award may be modified accordingly. 5. Mr. Modi, learned advocate for the claimants on the other hand had supported the impugned judgment and award. Mr. Thomas submits that the tribunal ought to have considered the age of the parents for deciding the dependency. He further submits that the appeal may be allowed and the impugned judgment and award may be modified accordingly. 5. Mr. Modi, learned advocate for the claimants on the other hand had supported the impugned judgment and award. He submits that the provisions of Section 163-A of the Motor Vehicles Act are independent provisions and have overriding effect on the other provisions of the Act. It is his submission that while deciding the dependency of the claimants for compensation under Section 163-A of the M.V. Act, the age of the victim is to be considered. In his submission the tribunal has not committed any error and therefore, the appeal may be dismissed. 6. The Supreme Court in the case of National Insurance Co. Ltd. Versus Sinitha, (2012) 2 SCC 356 , has observed as under in paragraphs No.29 and 31 as under in respect of provision of Section 163-A of the M.V. Act. “29. The heading of Section 163A also needs a special mention. It reads, “Special Provisions as to Payment of Compensation on Structured Formula Basis”. It is abundantly clear that Section 163A, introduced a different scheme for expeditious determination of accident claims. Expeditious determination would have reference to a provision wherein litigation was hitherto before (before the insertion of Section 163A of the Act) being long drawn. The only such situation (before the insertion of Section 163A of the Act) wherein the litigation was long drawn was under Chapter XII of the Act. Since the provisions under Chapter XII are structured under the "fault" liability principle, its alternative would also inferentially be founded under the same principle. Section 163A of the Act, catered to shortening the length of litigation, by introducing a scheme regulated by a pre-structured formula to evaluate compensation. It provided for some short-cuts, as for instance, only proof of age and income, need to be established by the claimant to determine the compensation in case of death. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. 31. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. There is also not much discretion in the determination of other damages, the limits whereof are also provided for. 31. At the instant juncture, it is also necessary to reiterate a conclusion already drawn above, namely, that Section 163A of the Act has an overriding effect on all other provisions of the Motor Vehicles Act, 1988. Stated in other words, none of the provisions of the Motor Vehicles Act which is in conflict with Section 163A of the Act will negate the mandate contained therein (in Section 163A of the Act). Therefore, no matter what, Section 163A of the Act shall stand on its own, without being diluted by any provision. Furthermore, in the course of our determination including the inferences and conclusions drawn by us from the judgment of this Court in Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala (supra), as also, the statutory provisions dealt with by this Court in its aforesaid determination, we are of the view, that there is no basis for inferring that Section 163A of the Act is founded under the "nofault" liability principle.” 7. It is manifestly clear from the aforesaid proposition of law that the provision of Section 163-A which has been alone provisions and they have overriding effect of the other provisions of the Act. The compensation under Section 163-A has to be computed on the basis of the structured formula provided in the Second Schedule of the Act. Second Schedule only provides for the payment of compensation on the basis of the age of the victims. 8. Reliance on the decision of the Supreme Court in the Case of Gurumallamma and Anothers (Supra), by the learned advocate for the appellants would not take the case any further in as much as in that case the tribunal has decided compensation on the basis of the Structured Formula provided in the Second Scheduled of the Act. It is observed as under in paragraphs No.8, 9, 10, 11 and 12. “8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. It is observed as under in paragraphs No.8, 9, 10, 11 and 12. “8. Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs.7,60,000/-. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities. 9. The Parliament in laying down the amount of compensation in the Second Schedule, as indicated hereinbefore, in its wisdom, provided for payment of some amount which should be treated to be the minimum. It took into consideration the fact that a person's potentiality to earn is highest when he is aged between 25 and 30 years and that is why in case of permanent disability multiplier of 18 has been specified. The very fact that even if the deceased had an income of Rs.3,000/- per month, he being aged about 15 years would receive a sum of Rs.60,000/- but if his income was Rs.40,000/- per annum, his legal heirs and representatives would receive a sum of Rs.8,00,000/-. In the case of any non-earning person, the notional income has been fixed at Rs.15,000/- per annum. 10. The deceased was running a hotel. He was, therefore, having some income. No document, however, was produced in support of the statement of the claimant (the mother of the deceased) that his income was 3,300/- per month. On what basis such a claim was made has not been disclosed. No document was produced. The deceased was not an income tax payee. Income of Rs.3,300/- might have been chosen so as not to cross the deadline of income of Rs.40,000/- per annum. 11. On what basis such a claim was made has not been disclosed. No document was produced. The deceased was not an income tax payee. Income of Rs.3,300/- might have been chosen so as not to cross the deadline of income of Rs.40,000/- per annum. 11. Although both the Tribunal as also the High Court has accepted the same, in our opinion, the income of the deceased should be determined at Rs.24,000/- per annum. Applying the said principle, the claimant would have been entitled to a compensation of Rs.4,22,000/-. From that sum, one- third should be deducted. 12. In view of the aforementioned finding, we are of the opinion that it is not necessary for us to take into consideration, the decisions cited at the bar suggesting that in a case of death of an unmarried person and wherein the claimants are the parents of the deceased, the age of the deceased shall be irrelevant factor for applying the multiplier specified in the Second Schedule.” 9. In view of the above, I am of the opinion that the tribunal has not committed any error in deciding the dependency of the claimants on the basis of the age of the deceased. The impugned judgment and award does not warrant any interference in this appeal. 10. For the foregoing reasons, the appeal fails and hereby dismissed. Record and Proceedings is ordered to be remitted to the Trial Court to the forthwith. Parties are left to bear their own costs.