Gauri Shankar Prasad Verma v. Tarlochan Singh Amar Singh Sani
2018-07-13
ANIL KUMAR CHOUDHARY
body2018
DigiLaw.ai
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. This appeal has been preferred by the appellant-claimants being aggrieved by the Judgment and Award dated 05.12.2011 passed by the Motor Vehicle Accident Claims Tribunal, Ranchi in Compensation Case No.77 of 1995 whereby and where under the Tribunal has awarded a compensation amount of Rs. 3,75,000/- along with interest @ 6% per annum thereon from 17.09.2009 to the claimants within the period of 60 days from the date of judgment failing which the Insurance Company was directed to pay interest @ 8% per annum till its payment. 3. The case of the complainants in brief is that the son of the complainants namely Sanjay Verma died in a motor vehicle accident which took place at about 11:35 p.m. on 27.01.1995 caused by the rash and negligent driving of the driver of the truck bearing registration no. MMP3581, while the deceased Sanjay Verma was driving the scooter bearing registration no. MH-02F-3448. 4. It is the case of the claimants that the deceased Sanjay Verma was aged about 28 years at the time of his death and was earning Rs. 2,37,600/- per annum. The claimants have made a total claim of Rs. 27,24,500/-. The tribunal assessed the age of the deceased to be 28 years 1 month 1 day and his income at Rs. 1,98,000/- per annum and taking into consideration the age of the claimant No.1 being the father of the deceased to be 60 years and the age of the claimant No.2 being the mother to be 54 years, applied the multiplier of 5 and further awarded Rs. 2,000/- as funeral expenses and Rs. 2,500/- towards the loss of estate of the deceased. It is pertinent to mention here that there is no dispute between the parties regarding the age of the deceased being 28 years 1 month 1 day on the date of the accident nor there is any dispute regarding the assessment of the annual income of the deceased to be Rs. 1,98,000/- as assessed by the learned tribunal. The deceased Sanjay Verma was not a salaried employee. He was a self-employed person being a freelance Editor (Film) with Multichannel Advertising and Production Pvt. Ltd. Bombay. 5. Mr.
1,98,000/- as assessed by the learned tribunal. The deceased Sanjay Verma was not a salaried employee. He was a self-employed person being a freelance Editor (Film) with Multichannel Advertising and Production Pvt. Ltd. Bombay. 5. Mr. Rajiv Anand, the learned counsel for the appellants submitted that though the appellants have raised several grounds in the appeal memo in challenging the impugned judgment and award but they abandon all other grounds and confine their challenge to the impugned judgment and award for enhancement of compensation only on the following four grounds: (i) The learned tribunal ought to have applied the multiplier on the basis of the age of the deceased and not on the basis of the age of the claimants and instead of the multiplier 5 the Tribunal should have applied the multiplier 17. (ii) The second ground agitated by the learned counsel for the appellants for enhancing the amount of compensation is that besides the assessed annual income of Rs. 1,98,000/-, an addition of 40% income of the deceased should have been added towards future prospects in calculating the total income. (iii) The third ground agitated by the learned counsel for the appellants is that instead of awarding interest from 17.09.2009, the Tribunal ought to have allowed the interest on compensation from the date of filing of the claim petition. (iv) The fourth ground agitated by the learned counsel for the appellants is that instead of granting Rs. 2,000/- as funeral expenses the Tribunal ought to have allowed Rs. 15,000/- as funeral expenses. 6. In support of his first contention regarding the multiplier, learned counsel for the appellants relied upon the judgment of Hon''ble Supreme Court of India passed in the case of Reshma Kumari versus Madan Mohan , (2013) 9 SCC 65 wherein the Bench of three Hon''ble judges of Supreme Court of India has held in paragraph-37 as under- "37. If the multiplier as indicated in Column (4) of the Table read with para 42 of the Report in Sarla Verma , (2009) 6 SCC 121 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 criss-cross of varying methods.
A standard method for selection of multiplier is surely better than a criss-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 multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of 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 up to 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." 7. Learned counsel for the appellants in respect of multiplier to be applied on the basis of the age of the deceased also relied upon the judgment of Hon''ble Supreme Court of India in the case of Munna Lal Jain & Another versus Vipin Kumar Sharma & Others , (2015) 3 TAC 1 (S.C.) wherein the Hon''ble Supreme Court relying upon paragraph -36 of the judgment of Reshma Kumari & Others versus Madan Mohan & Another , (2013) 9 SCC 65 which reads as under : "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.
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 purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (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." Held in paragraph- 9 that whether the multiplier should depend on the age of the dependents or that of the deceased has been given a quietus by the three judge bench decision in Reshma Kumari and observed as under : "9. ... ... It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of the dependants is concerned, there will be always be room for dispute as to whether the age of the eldest or the youngest or even the average etc. is to be taken. 8. In respect of the fourth contention of the appellants regarding funeral expenses of Rs. 15,000/- ought to have been awarded to the claimants, the learned counsel for the appellants relied upon the judgment of the five judges bench of the Hon''ble Supreme Court of India in the case of National Insurance Company Limited versus Pranay Sethi & Others,2017 4 JBCJ 388 (SC) where in paragraph -61 the Hon''ble Court held as under: "61.In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench.
It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, as addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 9.
(vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 9. So far as the date from which the interest to be awarded is concerned, it is submitted by the learned counsel for the appellants that since the appellants have no laches in diligently pursuing the claim petition before the Tribunal, they are no way responsible for the delay in disposal of the claim petition hence, the Tribunal ought to have awarded interest from the date of filing of the claim petition. 10. Per Contra, learned counsel for the insurance company has submitted that the Hon''ble Supreme Court of India in the case of U.P. State Road Transport Corporation & Others versus Trilok Chandra & Others , (1996) ACJ 831 wherein the Hon''ble Supreme Court of India held in para-17 which reads as under: "17. ..... Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of multiplier. ... ..." 11. Learned counsel for the respondent- Insurance Company further relied upon the judgment of Hon''ble Supreme Court of India in the case of Central Board of Dawoodi Bohra Community & Another versus State of Maharashtra & Another , (2005) 2 SCC 673 wherein the Hon''ble Supreme Court in paragraph -12 has held as under: "12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:- (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum.
(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. ... ..." 12. It is then submitted by the learned counsel for the respondent that the contention of the appellants that the multiplier should be determined on the basis of the age of the deceased when the aged parents of the deceased are the claimants is fallacious and submitted that this appeal being without any merit be dismissed. 13. Having heard the submissions made at the Bar and after perusal of the record, the following points for determination emerge up for consideration in this appeal: (i) Whether the Tribunal was correct in applying the multiplier of 5 instead of 17? (ii) Whether the Tribunal should have added 40% to the annual income of the deceased assessed by it in respect of future prospects in applying the multiplicand? (iii) Whether the Tribunal ought to have awarded interest from the date of filing of the claim petition? (iv) Whether the Tribunal ought to have awarded Rs. 15,000/- as funeral expenses instead of Rs. 2,000/-? 14. In support of the case, the applicants have only examined the claimant No.1- A.W.1. He is not eye-witness to the occurrence. Besides the oral testimony, the claimants have proved the following documents: (i) Ext. 1 is the C.C. of F.I.R (with objection) (ii) Ext. 2 is the Copy of P.M. report (with objection) (iii) Ext. 3 is the original death certificate (with objection) (iv) Ext. 4 Original driving license (with objection) (v) Ext. 5 Original birth certificate (with objection) (vi) Ext. 6 Certificate of B.Sc. issued by R.U. (with objection) (vii) Ext. 7 Certificate of Film and Television Institute, Pune (with objection) (viii) Ext.
2 is the Copy of P.M. report (with objection) (iii) Ext. 3 is the original death certificate (with objection) (iv) Ext. 4 Original driving license (with objection) (v) Ext. 5 Original birth certificate (with objection) (vi) Ext. 6 Certificate of B.Sc. issued by R.U. (with objection) (vii) Ext. 7 Certificate of Film and Television Institute, Pune (with objection) (viii) Ext. 8 Salary certificate of the deceased Sanjay Verma (with objection) 15. On the other hand, from the side of the respondent- Insurance Company, no witness was examined but the Insurance Company proved the following documents: (i) Ext. A is the letter dated 06.08.1998 (with objection) (ii) Ext. B is the postal receipt of letter sent (with objection) (iii) Ext. B/1 is the Acknowledgement receipt (with objection) (iv) Ext. B/2 is the Telegraph (with objection) (v) Ext. C is the Investigation Report (with objection) (vi) Ext. D is the Insurance Policy (with objection) (vii) Ext. D/1 is the courier service report (with objection) 16. So far as the first point of determination is concerned, as has been already mentioned above, the three judge Bench of Hon''ble Supreme Court of India in the case of Reshma Kumari after relying upon U.P. S. R. T. C. & Others versus Trilok Chandra & Others has categorically held that the multiplier is to be applied with reference to the age of the deceased. In view of this settled principle of law and particularly the fact that Trilok Chandra has already been considered by Hon''ble Supreme Court in the case of Reshma Kumari and application of multiplier on the basis of the age of the deceased has also been approved by the five judge bench of the Hon''ble Supreme Court of India in Pranay Sethi , in view of the settled principle of law, that the law laid down by the larger Bench of Hon''ble Supreme Court being binding upon the Bench of lesser or of co-equal strength as has been held in the case of Central Board of Dawoodi Bohra Community & Another , hence the observations made in Trilok Chandra relied upon by the learned counsel for the respondent will be of no help to answer the first point for determination.
Hence, in view of the settled principle of law, this Court is of the considered view that in this case the Tribunal ought to have applied the multiplier basing upon the age of the deceased instead of the age of the claimants and keeping in view the principle of law settled in Sarla Verma and Pranay Sethi as well as the other cases as discussed above, since the age of the deceased has been assessed by the tribunal to be 28 years 1 month 1 day, which is not disputed by any of the parties, hence as decided in the case of Sarla Verma the multiplier 17 should have been applied by the Tribunal. The first point of determination is answered accordingly. 17. So far as the contention of the appellants regarding adding 40% of the income of the deceased towards future prospects is concerned in view of the principle of law as settled by the Hon''ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi the Tribunal ought to have added 40% of the established income of Rs. 1,98,000/- as assessed by it and which is not disputed by the parties, to the said income of the deceased from his self-employment as the age of the deceased was undisputedly below 40 years, for calculating the multiplicand in this case. This point for determination is answered accordingly. 18. So far as the fourth point of determination is concerned, as has been held by the Hon''ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi , the claimants are entitled to funeral expenses of Rs. 15,000/- as only Rs. 2,000/- has been awarded by the Tribunal in the impugned judgment and award, the claimants are entitled to Rs. 13,000/- more compensation in this respect. This point for determination is answered accordingly. 19. Now, coming to the point of determination No.3 regarding the date from which the interest is awarded is concerned, it is settled principle of law that the interest on compensation amount is to be awarded from the date of filing of claim application but in case of laches on the part of the claimant(s) interest from the later date can be awarded by the Tribunal.
In this case, the perusal of the case reveals that the claim petition was filed under Section 163 A of the Motor Vehicle Act, 1988. Though the law was amended with the introduction of the second schedule to the said Motor Vehicle Act, 1988 by Act No.54 of 1994 and the table restricted claims under section 163A of the Motor Vehicle Act, 1988 to income of the deceased up to Rs. 40,000/- yet even though it is the case of the claimants that the annual income of the deceased was Rs. 2,37,600/- still the claimants continued with the said claim petition and only on 06.07.2004, they filed a petition to convert the claim petition under Section 163 A, to an application under Section 166 of the Motor Vehicle Act, 1988 which was of course rejected by the Tribunal and when the claimants challenged the said order of the Tribunal, in W.P.(C) Case No.4850 of 2004, this Court vide order dated 06.08.2009 set aside the order dated 30.07.2004 passed by the Presiding Officer, Motor Vehicle Accidents Claims Tribunal, Ranchi, whereby he rejected the said petition dated 06.07.2004 of the claimants to convert the proceeding under Section 163 A of the Motor Vehicle Act, 1988 to a proceeding under Section 166 of the Motor Vehicle Act, 1988 and directed the Tribunal to allow the petitioners/ claimants to carry out necessary amendment in the claim petition filed under Section 163 A of the Motor Vehicle Act, 1988 for converting the same to an application under Section 166 of the Motor Vehicle Act, 1988. So, in view of these facts, certainly the delay till 06.07.2004 in disposal of the claim petition is because of the laches on the part of the claimants. But since 06.07.2004 that is the date when, the claimants filed the petition for conversion of the proceeding under Section 163 A of the Motor Vehicle Act, 1988 to a proceeding under Section 166 of the Motor Vehicle Act, 1988, and though the Tribunal rejected the same yet the same was ultimately allowed by this Court, so the claimants-appellants cannot be held responsible for the delay from 06.07.2004 to 17.09.2009-when the copy of the original application was received in the Tribunal.
So, in view of the discussion made above, this Court is of the considered view that in the facts and circumstances of this case as discussed above, the claimants are entitled to simple interest @ 6% from 06.07.2004 to the date of payment with the defaulting clause of 2% extra interest in case of the Insurance Company defaulting in payment of the amount with interest within the time stipulated by this court. The third point for determination is answered accordingly. 20. In view of the findings of the points for determination as already mentioned above, the multiplicand applicable is Rs. 1,98,000/- + 40% of Rs. 1,98,000/- which comes to Rs. 2,77,200/-. So, the total annual income including the future prospects comes out to Rs. 2,77,200/- and setting aside 50% of the same towards personal expenses of the deceased, the multiplicand comes out to Rs. 1,38,600/-. So, the total compensation by multiplying the said multiplicand with multiplier 17 comes out to Rs. 23,56,200/- and over and above that the claimants are entitled to differential amount of funeral expenses that is Rs. 13,000/- which in total comes to Rs. 23,69,200/-. Accordingly, the respondent No.2- Insurance Company is directed to pay Rs. 23,69,200/- less the amount, if any already paid by it to the claimants, and simple interest @ 6% per annum on the compensation amount of Rs. 23,69,200/- from 06.07.2004 to 16.09.2009 and interest on the residual amount after deducting amount, if any paid, @ 6% from 17.09.2009 to the date of actual payment within a period of three months from the date of production/receipt of this order. 21. The impugned judgment and award is modified to the aforesaid extent and this appeal is disposed of accordingly. 22. Let a copy of this judgment be supplied to the respondent No.2- The United India Insurance Company Limited through his lawyer appearing in the record for necessary compliance. 23. Let the lower court records be sent back to the learned court below along with a copy of this judgment forthwith.