The Oriental Insurance Co.Ltd. ... vs Smt. Maya And 3 Ors. .
2017 Latest Caselaw 2482 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved									
 

 
Case :- FIRST APPEAL FROM ORDER No. - 18 of 2008
 

 
Appellant :- The Oriental Insurance Co.Ltd. Through The Manager
 
Respondent :- Smt. Maya And 3 Ors. .
 
Counsel for Appellant :- U.P.S.Kushwaha
 
Counsel for Respondent :- Ashok Kumar Verma
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Sheo Kumar Singh-I,J.

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

1. This first appeal has been filed by the Insurance Company against the order and award dated 20.08.2007 passed by the Motor Accident Claim Tribunal, Court no.2 Unnao, whereby the tribunal has awarded an amount of Rs. 5,69,200/- as compensation with interest @ of 6% per annum in M.A.C.P. No.274 of 2002 Smt. Maya & Others Vs. Mohd. Farukh & others.

2. One Kamlesh Kumar Tiwari died on account of injuries sustained in motor accident which occurred on 23.03.2002 at about 4.30 p.m. with Marshal Jeep No. U.P. 32Z-7214 collided with the scooter of deceased Kamlesh Kumar Tiwari. The widow of the deceased Smt. Maya and two minor children filed a claim petition for an amount of Rs. 8 lakhs with interest before the Accident Claim Tribunal, Unnao. The tribunal after giving an opportunity of hearing to the opposite party and after examining the witnesses produced by the parties and after considering the relevant records which were filed before the Tribunal decided by the impugned order and judgement dated 20.08.2007 and awarded of total amount of Rs.5,69,200/- with interest of 6 % per annum and directed the respondent no.2/appellant-Oriental Insurance Company to pay the amount within two weeks, failing which the amount will be recovered according to law.

3. Aggrieved by the order, the present appeal has been filed on the ground that the accident resulted in the death of the deceased Kamlesh Kumar Tiwari and it was a hit and run accident and the witnesses, produced or examined by the complainant had never seen the occurrence. Further the annual income as calculated by the learned Tribunal is not based on sound reasoning with further argument that the multiplier which has been applied by the Tribunal is not correct and not in accordance with settled law.

4. 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."

5. 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.

6.. 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.

7. 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.

8. 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.

9. 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."

10. 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 Thomas1 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.

11. 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."

12. 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.

13. 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.

14. In light of the above pronouncement and settled the 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.

15. Learned Counsel for the respondent has raised the first objection that it was a hit and run accident and Marshal Jeep Vehicle number as mentioned in the claim petition had never collided with the Scooter of the deceased. Hence, the Insurance Company is not liable for the payment of any compensation.

16. In light of the above fact, learned Counsel for the respondent has submitted that the information with regard to the collision of vehicle under question have been intimated and reported to Superintendent of Police on 17.06.2002 and copy of the receipt have been produced before the Tribunal, which is on record as 38 (c). The above information in writing was received in the office of Superintendent of Police on 28.06.2002.

17. Learned Tribunal had also examined the above facts and found that the accident was due to collision of Marshal Jeep No. U.P. 32Z 7214 and the driver while driving the vehicle carelessly and negligently collided the vehicle with the scooter of the deceased causing serious injuries resulting death of the deceased. Witness No.1 Lalitesh alias (Guddu) and witness no.2. Sarvesh Kumar Tiwari was examined by the Court and the learned Tribunal found that accident was due to carelessness driving of vehicle.

18. On the basis of above submission and version the argument of the learned Counsel for the respondent is not tenable.

19. Learned counsel for the appellant has submitted that the claim has been filed with the collusion of the owner of the Jeep. The basis of the above statement is that the copy of the insurance policy and Registration Certificate of the Marshal Jeep were provided to the claimant. The version of the learned counsel for the appellant, which is based only on the fact that the copy of the policy and the papers were provided to the claimant, does not prove the fact that the claim was filed in collusion with the owner of the vehicle. The complainant vide his letter dated 17.06.2002 communicated the facts that the accident took place due to collision of Marshal Jeep and that too due to careless driving of the driver of the vehicle of Marshal Jeep No.UP-32-Z-7214 and this communication was received in the office of Superintendent of Police on 28.06.2002. The claimant has also examined witness no.1 Lalitesh, who was with the Scooter at the time of incident, and has stated on oath that the incident took place due to collision of the vehicle under question. Thus, the version of the learned counsel is not tenable.

20. Learned counsel has also argued that the terms and conditions of the insurance policy have not been followed and a lesser amount of insurance has been deposited in the present case. There is nothing on record and there is no evidence lead by the Insurance Company prove that any term or condition of the policy was violated by the owner of the vehicle.

21. Learned Tribunal has discussed the facts and found that similar Claim Petition No.94 of 2003 was decided on 07.03.2005 in which Lalitesh PW-1 was injured. In that case it was found that the accident took place due to collision of the vehicle UP-32-Z-7214.

22. In light of the facts we are of the view that the learned Tribunal has correctly appreciated the evidence and has correctly decided the issue no.1 in a positive way. Similarly, on issue no.2 learned Tribunal has also decided that the insurance company failed to prove any violation of the terms and conditions of the insurance policy.

23. Lastly, learned counsel for the appellant has raised the question that the Tribunal has erred in deciding the issue no.5, gross salary as Rs.4660. We have gone through the discussion made by the learned Tribunal and we found that on the basis of evidence and salary certificate the Tribunal was of the view that the deceased was paid Rs.4660/- per month as pay. The papers relating to pay certificate have been proved by the Block Development Officer concerned. The amount so arrived was multiplied by 12 to be annual income and in light of the various pronouncements of Hon'ble the Apex Court for calculating the multiplier and deduction as expenditure in light of Susamma Thomas and Sarla Verma's case 1/3 amount has been deducted from the total annual income. It is settled law that a standard method for selection of multiplier and deduction is surely better than a criss-cross of varying method. In paragrapher 32 of Rishma Kumari and Others vs.. Madan Mohan and other reported in MANU/SC/0287/2013 it was held that in a given situation personal and living expenses may be restricted to 1/3rd and contribution to the family will be taken as 2/3rd. In light of above facts learned Tribunal has correctly appreciated the evidence and has correctly applied the annual income by deducting 1/3rd as personal expenditure in light of facts of the above case.

24. On the basis of above submission, we are of view that there is no illegality or irregularity while calculating the claim compensation and deciding M.A.C.P. No.274 of 2002. The First Appeal from Order lacks merit and deserves to be dismissed and is hereby dismissed. No order as to costs.

25. 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.

Dated :- 18,July, 2017

amit

(Sheo Kumar Singh-I, J.) (Dr. Devendra Kumar Arora, J.)