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2019 DIGILAW 524 (HP)

New India Assurance Company Ltd. v. Bhuvnesh Thakur

2019-04-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts, a, challenge, upon, the award pronounced by the learned Motor Accident Claims Tribunal, Bilaspur, upon, Claim Petition No. 36/2 of 2016, as stood, cast therebefore, under, the provisions of Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), (i) AND, whereunder, compensation amount comprised, in, a sum of Rs.47,97,424/- alongwith interest accrued thereon, at the rate of 7.5% per annum, and, commencing from, the date of petition till realization thereof, stood, assessed, vis-a-vis, claimants, (ii) and, the apposite indemnificatory liability thereof, was, fastened upon the insurer/appellant herein. 2. The learned counsel appearing, for, the appellant/insurer, has, not contested, the, validity, of, rendition of affirmative findings, upon, issue No.1, hence appertaining to the demise of Poonam Kumari, being a sequel of rash, and, negligent manner of driving of the offending vehicle, by respondent No.4 herein, nor he has contested the validity of fastening of the apposite indemnificatory liability, upon, the insurer, vis-a-vis, the afore compensation amount. However, the learned counsel appearing for the insurer has with much vigour contended before this Court, (a) that with uncontrovertedly, the deceased being in government employment, and, also her surviving husband one Sanjeev Kumar, also being in government employment, (b) thereupon, the requisite canon for validity applying, vis-a-vis, the last drawn salary of the deceased, hence the multiplier method, did, obviously require qua it being rested, upon, loss of dependency to her surviving husband, and, her child, (c) whereas, with the latter admittedly rather serving in government employment, thereupon, obviously no loss of dependency stand encumbered, upon, him, nor the learned tribunal was enjoined to apply, the, multiplier method, for computation of compensation qua him, nor qua his minor son, given, the latter's father continuing in government employment, hence, all his requisite dependencies, rather being sufficiently taken care, of, by his surviving father. 3. The afore submission has immense merit, and, is anchored, upon, a therewith concurring judgment rendered, by the Hon'ble Apex Court, in a case titled as Manjuri Bera (Smt) vs. Oriental Insurance Company Ltd. And another, reported in (2007) 10 SCC 643 , the relevant paragraphs No. 13 to 15 & 20 whereof are extracted hereinafter:- “13. There are several factors which have to be noted. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency. 14. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163A. 15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae. 16..................... 17................... 18.......................... 19............................... 20. In my opinion, "No Fault Liability", envisaged in Section 140 of the said Act, is distinguishable from the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/- in cases of death [Section 140 (2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. Since, the amount is a fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "No fault Liability" in terms of Section 140 of the said Act. My opinion is confined only to the "No Fault Liability" under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988.” Consequently, in consonance therewith, the, application of the multiplier method of computation of compensation, by the learned tribunal concerned, is, declared to be outside the ambit of the afore extracted paragraph, and, the claimants/respondents No.1 and 2, herein, are, entitled to for a sum of Rs.50,000/-, in, concurrence with the mandate of Section 140 (2) of the Motor Vehicles Act. In addition to the afore amount, the claimants are also entitled to compensation under the conventional heads, namely, loss of estate, loss of consortium, and, funeral expenses, as adjudged, by the learned tribunal. 3. For the foregoing reasons, the instant appeal is allowed, and, the impugned award is modified in the afore terms. All pending applications also stand disposed of. Records be sent back forthwith.