HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1105 of 2007 Petitioner :- Oriental Insurance Co. Ltd. Through Its Senior Division Respondent :- Sri Vinod Kumar Joshi And 2 Ors. Petitioner Counsel :- Suresh Panjwani Hon'ble Devi Prasad Singh,J.
Hon'ble S.C. Chaurasia,J.
Heard learned counsel for the appellant and the learned counsel for the respondents.
The present appeal has been filed under Section 173 of the Motor Vehicles Act against the impugned award dated 6.8.2007 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 15 in Claim Petition No. 301 of 2005, Vinod Kumar Joshi & another vs. Thakur Travelling Agency & another.
In brief, claimant Vinod Prasad alongwith his son Kamal Deep alias Aashu were going to their residence from Rajajipuram on Motor Cycle bearing number U.P. 32/A.L.--3062. When they reached near the hospital situated at nearby Saadat Ganj Police Station, Lucknow, a Bus No. U.P. 32 T/7265 being driven rashly and negligently dashed with the motor cycle. In consequence thereof, Kamal Deep alias Aashu succumbed to the injuries at the spot. Kamal Deep was aged about 14 years. F.I.R. was lodged and the claimants approached the tribunal for payment of compensation. Issues were framed with regard to accident, insurance policy as well as driving licence. The tribunal recorded a finding that the accident had occurred because of rash and negligent driving of the bus driver. Keeping in view the age of boy as 14 years as also the future prospect, the tribunal has assessed the income of the deceased to the extent of Rs. 15,000/- and applying the multiple of 16 awarded compensation to the extent of Rs. 2,44,500/- which includes funeral expenses of Rs. 2000/- and loss of estate of Rs. 2500/-. Feeling aggrieved, the appellant has preferred the instant appeal.
Admittedly, the claim petition was filed under Section 163-A of the Motor Vehicle Act (hereinafter referred to as the Act). Now it is well settled law that when ever claim petition is filed under Section 163-A of the Act, then compensation may be awarded on structured formula. For convenience, Section 163-A of the Act is reproduced as under:-
"163-A- Special provisions as to payment of compensation on structured formula basis.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
A plain reading of Section 163-A of the Act reveals that in any claim for compensation under sub-section (1) of Section 163-A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which claim has been made, was caused due to wrongful act or neglect or default of the owner of the vehicle and the Court concerned may award compensation under Second Schedule to the legal heirs or the victim, as the case may be. Second Schedule of the Act provides that the amount of compensation so arrived at shall be reduced by 1/3rd in consideration of expenses which the victim would have incurred towards maintaining himself had he been alive. The boy having 14 years of age would also be required for the some amount for his maintenance. Moreover, the provision contained in Second Schedule is statutory in nature and while awarding compensation, it shall be obligatory for the Court to deduct 1/3rd amount in lieu of personal expenses. The case would have been different in case the claim petition would have been filed under Section 166 of the Act.
Since it has been admitted at bar that there was no option before the tribunal except to deduct 1/3rd of the amount from the compensation determined under Section 163-A of the Act, from the total income assessed by the tribunal which is 15,000/- 1/3rd amount i.e. 5,000/- may be deducted towards personal expenses. The age of the deceased was held to be 14 years. Multiplier given in Second Schedule should have been applied. Accordingly, total compensation by applying multiplier of 15 comes to Rs. 1,50,000/- In addition to 1,50,000/- claimant shall be entitled to Rs. 2,000/- for funeral expenses and Rs. 2,500/- for loss of Estate. Hence, total compensation comes to Rs. 1,54,500/-
In view of above, we allow the appeal filed by the Oriental Insurance Company in part and modify the impugned award with the finding that the claimants shall be entitled for compensation to the extent of Rs. 1,54,500/-. The appellant shall deposit the entire compensation before the Tribunal within a period of two months and the tribunal shall release the amount in favour of claimant-respondents within one month thereafter. The amount deposited in this Court shall be remitted by the Registry to the tribunal within one week. The amount already deposited shall be adjusted from the total sum.
The appeal in part is allowed accordingly.
Order Date :- 27.4.2011 Rizvi