New India Assurance Co.Ltd. ... vs Smt. Gomti Devi And 4 Ors.
2017 Latest Caselaw 2480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved									     A.F.R
 

 
Case :- FIRST APPEAL FROM ORDER No. - 493 of 2008
 

 
Appellant :- New India Assurance Co.Ltd. Through Its Legal Cell
 
Respondent :- Smt. Gomti Devi And 4 Ors.
 
Counsel for Appellant :- T.J.S.Makker
 
Counsel for Respondent :- M.M.Pandey,Shakeel Ahmad Ansari
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Hon'ble Sheo Kumar Singh-I, J.)

1. The present First Appeal From Order has been filed under Section 173 of the Motor Vehicles Act 1988 against the award dated 23.2.2008 passed by Motor Accidents Claims Tribunal /Additional District Judge, Court No.9, Sultanpur in Claim Petition No. 105 of 2007 whereby an amount of Rs.8,36,124/- was awarded as compensation with interest at the rate of 6% per annum since the date of filing of the petition in favour of claimants.

2. One Shiv Prasad Tewari resident of village Purkhipur, Pargana Baraunsa, Tehsil Sadar, District Sultanpur died on account of injuries sustained in motor accident which occurred on 11.2.2007 at about 1.00 P.M. in village Kunwarpur Majre Tarun. Offending vehicle, Tractor No. U.P.-42-H-6178 which was driven by Ram Chandra, carelessly and negligently crushed the deceased causing death on the spot. Leaving the tractor on side, the driver left away. The information was given to police concerned and a tractor was recovered on the spot. The first information report was lodged in the police station Tarun, District Faizabad which was registered as case crime No. 113 of 2007 under Sections 279, 337, 338, 427, 304-A of I.P.C. and after investigation, charge sheet was submitted against the accused Ram Chandra in the competent court. The widow of the deceased, son and daughter filed a claim petition No. 105 of 2007 for an amount of Rs.17,62,000/- with interest before the Accident Claims Tribunal, Sultanpur. After issuance of notice to the opposite parties, written statement was filed before the Tribunal and the Tribunal formulated five relevant issues to dispose of the  claim petition. The first issue which was framed by the Tribunal was to the effect as to whether on 11th of February, 2007 at about 1.00 P.M. the driver of the offending vehicle, Tractor No. U.P.-42-H-6178, driving the vehicle carelessly and negligently dashed Shiv Prasad causing death on the spot. Second and third issues are to the effect as to whether the vehicle was insured at the time of accident and as to whether the driver had valid and effective driving licence at the time of the accident. After giving an opportunity of hearing to both the parties, the Tribunal decided the claim petition and awarded a total amount of Rs.8,36,124/- with interest @ 6% per annum and directed the appellant to pay the amount within stipulated time, failing which, the amount will be recovered in accordance with law.

3. Aggrieved by the order, the present appeal has been filed on the ground that the deceased was firstly hit by an unknown jeep causing him to fall down and thereafter the alleged offending tractor insured by the appellant crushed his head causing serious injuries and death.

4. Before proceeding with the case, it would be relevant to refer the relevant provisions relating to award compensation in case of Motor Accident.

5. Section 166 makes a provision for application for compensation arising out of an accident which after few amendments reads as under:

"Section 166 - Application for compensation (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."

6. By Act 54 of 1994, Section 163A was brought in the 1988 Act w.e.f. 14.11.1994. Section 163A may be reproduced which reads 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 authorised 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.

7. The 1988 Act gives choice to the claimants to seek compensation on structured formula basis as provided in Section 163A or make an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 under Section 166. The claimants have to elect one of the two remedies provided in Section 163A and Section 166. The remedy provided in Section 163A is not a remedy in addition to the remedy provided in Section 166 but it provides for an alternative course to Section 166. By incorporating Section 163A in the 1988 Act, the Parliament has provided the remedy for payment of compensation notwithstanding anything contained in the 1988 Act or in any other law for the time being in force or instrument having the force of law, that the owner of a motor vehicle or authorised insurer shall be liable to pay compensation on structured formula basis as indicated in the Second Schedule in the case of death or permanent disablement due to accident arising out of the use of motor vehicle. The peculiar feature of Section 163A is that for a claim made thereunder, the claimants are not 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 or owners of the vehicle concerned. The scheme of Section 163A is a departure from the general principle of law of tort that the liability of the owner of the vehicle to compensate the victim or his heirs in a motor accident arises only on the proof of negligence on the part of the driver. Section 163A has done away with the requirement of the proof of negligence on the part of the driver of the vehicle where the victim of an accident or his dependants elect to apply for compensation under Section 163A. When an application for compensation is made under Section 163A the compensation is paid as indicated in the Second Schedule.

8. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.

9. In Sarla Verma (AIR 2009) SC 3104, the Court undertook the exercise of comparing the multiplier indicated in Susamma Thomas (AIR 1994) SC 1631, Trilok Chandra (AIR 1996) 4 SCC 362 and Charlie (AIR 2005) SC2157, for claims under Section 166 of the 1988 Act with the multiplier mentioned in the Second Schedule for claims under Section 163A.

10. In paragraph 42 (pg. 140) of the Report, the Court in Sarla Verma laid down that the multiplier shall be used in a given case in the following manner:

"42. 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."

11. In Susamma Thomas though with reference to Section 110B of the Motor Vehicles Act, 1939 - stated that the multiplier method was the accepted norm of ensuring the just compensation which will make for uniformity and certainty of the awards. We are of the opinion that this statement in Susamma Thomas is equally applicable to the fatal accident claims made under Section 166 of the 1988 Act. In our view, the determination of compensation based on multiplier method is the best available means and the most satisfactory method and must be followed invariably by the tribunals and courts.

12. With regard to the addition to income for future prospects, in Sarla Verma, the Court has noted earlier decisions in Susamma Thomas and Sarla Dixit and in paragraph 24 of the Report held as under:

"24.......In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

13. The standardization of addition to income for future prospects shall help in achieving certainty in arriving at appropriate compensation. The method that an addition of 50% of actual salary be made to the actual salary income of the deceased towards future prospects where the deceased had a permanent job and was below 40 years and the addition should be only 30% if the age of the deceased was 40 to 50 years and no addition should be made where the age of the deceased is more than 50 years. Where the annual income is in the taxable range, the actual salary shall mean actual salary less tax. In the cases where the deceased was self-employed or was on a fixed salary without provision for annual increments, the actual income at the time of death without any addition to income for future prospects will be appropriate. A departure from the above principle can only be justified in extraordinary circumstances and very exceptional cases.

14. The multiplier Rule has been applied in all the cases, the compensation is to be awarded in case of Motor Accident, the multiplier to be used should be as mentioned in column no. 4 of the table prepared by applying Susamma Thomas, Trilok Chandra and Charlie's case.

15. In light of the above pronouncement and settled proposition of law, we are of the opinion that multiplier has laid down in the Susamma Thoms and Sarla Verma's case is a best method to calculate for determination of compensation to be paid. In light of the above provisions, we examine the award and compensation determined by the Tribunal.

16. Learned counsel for the appellant has argued that Tribunal had erred in awarding the entire compensation against the appellant. Learned Counsel for the appellant based his arguments on the point of negligence that the deceased was firstly hit by an unknown jeep causing him to fall down and thereafter the alleged offending tractor insured by the appellant crushed the head of the deceased whereby he succumbed to injuries.

17. The matter was raised before learned Tribunal. The perusal of first information report reveals that the aforesaid jeep fled away from the occurrence and was not traced by the police during investigation but it is admitted fact when jeep hit the deceased, he fell down and thereafter the offending vehicle, the tractor crushed his head, due to which he died. The opportunity to save the deceased was available to the driver of the tractor, offending vehicle and proper care and attention was not taken by the driver of the tractor thus the theory of hit and run is not applicable in the present case especially in the case where investigation officer has submitted charge sheet against the driver of the present vehicle in which he was granted bail during facing of trail. On this ground, the theory of contributory negligence or payment of proportionate compensation is not applicable in the present case.

18. Learned counsel for appellant has further submitted that no witnesses were produced by the claimants and only son of the deceased was examined as a witness on the side of the claimants, thus the theory of accident by offending vehicle as narrated in the claim petition is not proved.

19. Learned counsel for respondents has submitted that just after crushing the deceased, the police and the local persons attended the incident immediately where tractor was seized by the police and later on, on the basis of the tractor, the accused Ram Chandra, driver was also arrested and after investigation, it was found that the accident took place on 11.2.2007 by the Tractor No. U.P.-42-H-6178 which was driven by Ram Chandra, opposite party No.3 in the claim petition. Ram Chandra, the driver was also examined during the course of hearing of the claim petition as D.W.1. He had admitted that he was driver of the tractor at the time of accident and tractor was seized by the police station Tarun, District Faizabad and later on, it was released by the Court on the application of the owner of the vehicle. P.W.1 Surendra Kumar Tiwari had narrated in his statement that when he reached at the spot, police was present there. The tractor was on the side of the accident which was later on seized by the police authorities. In this way, the claimants have proved the version of accident and also proved by leading the admissible evidence that the tractor was involved in the accident and crushed the deceased causing death. The learned counsel for appellant further submitted that no opportunity was given to the appellant for verification of salary certificate.

20. We have gone through the records of the lower court and found that original certificate issued by the competent authority was placed before the court by the claimant and it has been proved by the P.W.1. Last pay certificate of the concerned department Vidyut Vitran Mandal, Sultanpur was issued by the competent authority and since it is an official communication thus it does not require to be proved unless it is denied or found to be false on any ground. On the basis of salary certificate, the learned Tribunal has calculated the monthly pay as Rs.12,916/- and by multiplying with 12 as annual income, it was calculated as Rs.1,54,992/- and by deducting 1/3 of the amount, net annual income comes as Rs.1,03,328/-.

21. The multiplier method involves an ascertainment of the loss of dependancy or the multiplicand having regard the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased and by the calculation as to what capital sum, if invested at the rate of appropriate to stable economy would yield the multiplicand by way of annual interest. The learned Tribunal while calculating the income has also considered the law as laid down in Sarla Verma case (A.I.R. 2009) SC page 3104 and also considered Susamma Thomas case 1994(2) SCC page 176.

22. Admittedly the age of the deceased at the time of accident was about 59 years and the Tribunal has applied the multiplier of 8. Learned counsel for the appellant has submitted that multiplier applied by the Tribunal is not correct and is of very high.

23. We have gone through the provisions of Motor Vehicles Act wherein second schedule of Motor Vehicles Act and in second column multiplier apply in case of death of a person between 56 to 60 years is 8 and thus it is in accordance with the provisions contained in Motor Vehicles Act. If we examine it in the light of Sarla Verma's case then the multiplier, which is required to be used is 9. In this way, in our view, it requires to be increased but since no appeal for enhancement has been filed by the claimants, thus without discussing the issue, we leave it here with the observation that the multiplier applied by the Tribunal is in accordance with second schedule of the Act and not in any way in a higher side.

24. On the basis of above submission, we are of the view that the points as raised by the learned counsel for appellant were fully discussed by the Tribunal in Order and Judgment dated 23.2.2008 and has no irregularity or illegality while using the annual income or application of multiplier while calculating the claim compensation in M.A.C.P. No.105 of 2007. The learned Tribunal has calculated the amount in accordance with the law.

25. The First Appeal From Order lacks merit and deserves to be dismissed and is hereby dismissed. No order as to costs.

26. Statutory amount deposited by the appellant before this court shall be remitted to the Tribunal concerned within three weeks from today for adjustment and disbursement to the claimants in accordance with the award.

Order Date :- 18.7.2017

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