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2019 DIGILAW 2444 (ALL)

National Insurance Company Limited v. Vimla Devi

2019-10-31

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : Pradeep Kumar Srivastava, J. Heard Sri Manish Kumar Nigam, learned counsel for the appellant-National Insurance Company and Sri Prakash Singh, learned counsel for the claimant-respondents. Perused the record. 2. This appeal has been filed against the judgment and award dated 09.1.2014 passed in M.A.C.P. No. 177 of 2011 (Smt. Vimla Devi and others Vs. Balloo and others) by which, the learned Tribunal has awarded Rs.4,27,000/- as compensation along with simple interest at the rate of 7% per anum from the date of institution of petition. 3. Learned counsel for the appellant has challenged the said award on the basis that the age of the deceased was wrongly determined to be 53 years, whereas in the postmortem report, it is mentioned that the age of the deceased was 58 years, hence multiplier of 11 which was applied by the learned Tribunal is incorrect and the multiplier of 9 should have been applied. Moreover, towards loss of consortium Rs.1,00,000/- and for funeral expenses Rs.25,000/- have been awarded which is not correct in view of the U.P. Motor Vehicle Amended Rules, 2011 which provides for consortium from Rs.5,000/- to Rs.10,000/- and for funeral expenses Rs.5,000/- which ever is less. As such, the compensation which was awarded by the learned Tribunal is excessive and, therefore, the amount of compensation is liable to be modified, accordingly. 4. This claim petition came up before the learned Tribunal on account of death of the deceased by the accident caused by the offending vehicle which was being driven by its driver rashly and negligently which caused the death of the deceased as the offending vehicle went to the wrong side and dashed the deceased. The claim petition was filed by the widow, son, daughter and the mother of the deceased which was contested by the owner and driver of the offending vehicle and the same was also contested by the Insurance Company. On the basis of the pleadings, the following issues were framed:- (1) Whether, the driver of vehicle no. R.J. 20 C.B.1927 on 13.2.2011 at about 4.00 p.m. driving the vehicle rashly and negligently dashed Matadeen near Badagaon Bus Stand due to which Matadeen received serious injuries and due to that injuries, Matadeen died? (2) Whether on the date of accident, the driver of vehicle no. R.J. 20 C.B.1927 was having valid and effective license? (3) Whether on the date of accident, the vehicle no. (2) Whether on the date of accident, the driver of vehicle no. R.J. 20 C.B.1927 was having valid and effective license? (3) Whether on the date of accident, the vehicle no. R.J. 20 C.B.1927 was fully insured with the Insurance Company? (4) Whether the claimant-respondents are entitled for compensation? If yes, then how much and from whom? 5. In support, oral evidence was given by the claimants along with police papers, such as, FIR, postmortem report, charge sheet, driving license of driver, registration certificate of the offending vehicle and the papers relating to the insurance. No oral evidence was given from by the opposite parties nor any document was filed. On the basis of evidence on record, after due perusal, the impugned award was passed by the learned Tribunal. 6. The learned counsel for the Insurance Company has agitated the impugned award on the basis that the amount awarded for loss of consortium and against the funeral expenses is excessive. The second argument is that the age of the deceased was determined to be 53 years, whereas it should have been 58 years in view of postmortem report. As such, multiplier applied by the learned Tribunal was wrong and instead of multiplier of 11, the multiplier of 9 should have been applied. 7. So far as second argument is concerned, the learned Tribunal has determined the age of the deceased on the basis of the oral testimony given from the side of the claimant-respondents in which witnesses have stated the age of the deceased to be 53 years. The postmortem report cannot be an evidence on the basis of which, the age could be determined by the learned Tribunal and, therefore, the learned Tribunal has rightly determined the age of the deceased to be 53 years. The multiplier of 11 has been applied by the learned Tribunal. In Sarla Verma Vs. The postmortem report cannot be an evidence on the basis of which, the age could be determined by the learned Tribunal and, therefore, the learned Tribunal has rightly determined the age of the deceased to be 53 years. The multiplier of 11 has been applied by the learned Tribunal. In Sarla Verma Vs. Delhi Transport Corporation Ltd., (2009) AIR SC 3104, the Supreme Court has laid down as below: "We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." 8. The above multiplier system has been further affirmed by the Supreme Court in National Insurance Company Vs. Pranay Sethi & others, (2017) AIR SC 5157 and it cannot be said that there is any illegality in applying the multiplier of 11 years as the available multiplier is of 11 at the age from 51 to 55 years in view of the law laid down by the Supreme Court. It is pertinent to mention that multiplier system has been provided under law law to maintain uniformity in determining quantum of compensation in order to avoid variation. A multiplier of 11 has rightly been applied by the learned Tribunal and I do not find any illegality in that. 9. In Sarla Verma (supra), it has been held by the Supreme Court that a proceeding before the Tribunal is in the nature of inquiry in which a very few thing is required to be established. The Court observed: "Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The Court observed: "Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased." 10. So far as the award of compensation under the conventional head is concerned of consortium and funeral expenses is concerned, in order to maintain uniformity in this respect, the Supreme Court has made it clear in Pranay Sethi (supra) that "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." There is no reason which could afford opportunity for deviation from the above principle laid down in Pranay Sethi (supra). As such, the learned counsel for the appellant has submitted that the said amount for the loss of consortium is liable to be reduced to Rs.40,000/- and for the funeral expenses, the same is liable to be reduced to Rs.15,000/-. The learned Tribunal has awarded Rs. 100000/- for loss of consortium, Rs. 25000/- against funeral expenses and Rs. 5000/- for the loss of estate. 11. Learned counsel for the claimant-respondents has submitted that the learned Tribunal has not considered that the amount for the loss of estate should be much more in view of pronouncement of Supreme Court in Pranay Sethi (supra) and the learned Tribunal has also not calculated the income in the head of future prospect and nothing has been awarded for the loss of affection to the children. 12. The learned counsel for the appellant has submitted that if it was so and the claimant-respondent was feeling that the awarded amount is in lower side and has not been properly calculated in view of legal principles, he should have filed appeal. The learned counsel for the respondent has however countered it on the ground that even if no appeal has been filed, the Court is enough authorized to correct the amount in the aforesaid head under Order 41 Rule 33 of the Civil Procedure Code. 13. The learned counsel for the respondent has however countered it on the ground that even if no appeal has been filed, the Court is enough authorized to correct the amount in the aforesaid head under Order 41 Rule 33 of the Civil Procedure Code. 13. It should be noted that the income which has been determined by the learned Tribunal is on the basis of the notional income as the Tribunal determined that claimants were not able to show any income and the finding was given by the learned Tribunal that the deceased was not having any income at all. When this finding has been given that the deceased was not having any income at all, it was not necessary for the learned Tribunal to add any future income as the future income is only permissible in the case of income and not in the case of no income. Therefore, the finding reached by the Tribunal on that point is not required to be disturbed. So far as the amount of loss of estate is concerned, the Tribunal should have awarded Rs. 15000/-, whereas, only Rs. 5000/- has been awarded. 14. In view of above, I do not find any force in other arguments from either side and with the modification that amount of loss of consortium should be Rs.40,000/- and funeral expenses should be Rs.15,000/-. As such an amount of Rs. 70000/- is required to be deducted and Rs. 10000/- should be added against the loss of estate in view of the submission of the learned counsel to respondent-claimant as the amount for the loss of estate should be Rs. 15000/- and not Rs. 5000/- which has been awarded by the learned Tribunal. Thus, a deduction of Rs.60,000/- from the total amount of compensation is required to be made. 15. In view of above discussion, the amount of compensation comes to Rs.3,67,000/-. With this modification, the impugned award is upheld and this appeal is finally disposed. 16. The amount of Rs.25,000/- deposited by the appellant shall be remitted back to the Tribunal which shall be adjusted against the amount of compensation.