Bombay High Court
Arvind Rajaram Nikhade vs The Oriental Insurance Co. Ltd, ... on 28 October, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO.354/2010
Arvind Rajaram Nikhade,
aged about 55 years, Occ. Service,
r/o Balvant Colony, Near Mitra Nagar,
Kaulkhed Road, Akola, Tq. Dist. Akola. .....APPELLANT
...V E R S U S...
1 The Oriental Insurance Co. Ltd.
Akola, through its Divisional Manager,
Rayat Haveli, Old Cotton Market,
Akola, Tq. Dist. Akola.
2. Rameshwar Daulatrao Shinde,
Aged about adult, Occ. Tractor Owner,
r/o Warla, Tq. Dist. Washim. ...RESPONDENTS
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Mr. C. A. Joshi, Advocate for appellant.
Mr. P. N. Khadgi, Advocate for respondent no.1.
Mr. A. A. Choube, Advocate for respondent no.2.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 28.10.2021
ORAL JUDGMENT
1. Heard Mr. Joshi, learned counsel for appellant,
Mr.Khadgi, learned counsel for respondent no.1 and Mr. Choube,
learned counsel for respondent no.2, owner of offending vehicle.
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2. Cause for giving rise to the filing of the present appeal
is judgment passed by learned Member, Motor Accident Claims
Tribunal, Akola dated 08.12.2009 in M.A.C.P. No.233/2004. The
appellant is Sectional Engineer. While proceeding for his official
work to village Kumbhi on motorcycle bearing registration No.
MH-30/C-5677, he met with an accident near village Pimpalgaon.
The offending vehicle was tractor owned by respondent no.2
having registration No. MH-30/I-5259, which was duly insured
with respondent no.1-Oriental Insurance Company Ltd. Due to
accident, appellant suffered injuries and was required to be an
indoor patient in various hospitals and he has suffered 20%
permanent disability.
3. The appellant approached to the Claims Tribunal by
filing claim petition under Section 166 of the Motor Vehicles Act.
The said was registered as MACP No. 233/2004. In the said claim
petition, appellant claimed Rs.10,00,000/- as compensation from
respondent in the said claim petition. On being noticed, insurance
company as well as the tractor owner appeared and filed their
written statements. The common thread of their defence was that
the appellant also contributed in the accident. In addition to the
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said, it was the defence of the insurance company that the tractor
driver was not holding license and therefore i.e. the breach of
condition of the policy. Therefore, the insurance company is not
liable for payment of compensation.
4. Parties went for trial. The appellant entered into
witness box. He was thoroughly cross-examined. He also
examined one witness Dr. Abhay Kashinath Patil, Orthopedic
Surgeon as his witness. Nobody entered into the witness box for
and on behalf of insurance company. However, respondent no.2
examined one Santosh Savant as witness. This Santosh Savant, at
the relevant time, was driving the vehicle and by examining said
Santosh Savant, respondent no.2 has, in fact, challenged the claim
of insurance company that the driver was not holding the license.
5. After appreciation of the pleadings, documents and
evidence, as brought on record the learned Member, MACT vide
judgment and award dated 08.12.2009, partly allowed the claim
put forth by the appellant. According to award, respondent nos.1
and 3 were held to be jointly and severally liable to pay
compensation of Rs.3,34,000/- inclusive of interim compensation
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under Section 140 of the Motor Vehicles Act. It was also observed
by the learned Member of the Tribunal that the appellant will be
entitled to claim interest at the rate of 9% p.a. in case insurance
company and the tractor owner fail to deposit the compensation
as directed within a period of 60 days.
6. Felt aggrieved thereby, appellant has filed present
appeal. According to learned counsel for appellant, compensation
granted to him is inadequate. On the other hand, learned counsel
for the insurance company submitted that the tribunal has granted
just and adequate compensation. Further, the respondents did not
challenge the finding recorded against them.
7. In view of the rival submissions made before this Court,
following points arise for determination.
Sr.No. Points Answer
1 Whether the compensation as awarded In the negative
by Motor Accident Claims Tribunal in
favour of the appellant is just and
adequate?
2. What order? As per final order
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8. There is no dispute in this case that the appellant was
discharging his duty as Sectional Engineer with Public Works
Department, Sub Division, Mehkar, District Buldhana. From the
impugned judgment itself, it is clear that the learned Member of
the Tribunal has assessed the income of the appellant on the basis
of his monthly salary as Rs.14,000/-, which is not seriously
challenged. The learned Tribunal has granted compensation by
considering 20% disability. While considering the income by 20%,
disability, the learned Member has not applied the multiplier
which is seriously challenged before this Court. The law is well
settled on this aspect. It would be useful to refer here the
authoritative pronouncement of the Honb'le Court in Sandeep
Khanuja Vs. Atul Dande & anr. ; reported in 2017 (4) Mh. l. J. 1.
Paragraph nos.12 and 13 thereof are as under:
"12. We may observe at the outset that it is now a
settled principle, repeatedly stated and restated time and
again by this Court, that in awarding compensation the
multiplier method is logically sound and legally well
established. This method, known as 'principle of multiplier',
has been evolved to quantify the loss of income as a result
of death or permanent disability suffered in an accident.
Recognition to this principle was given for the first time in
the year 1966 in the case of Municipal Corporation of Delhi v.
Subhagwanti & Ors. (1966) 3 SCC 649. Again, in Madhya
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Pradesh State Road Transport Corporation, Bairagarh, Bhopal v.
Sudhakar & Ors., (1977) 3 SCC 64, the Court referred to an
English decision while emphasising the import of this
principle in the following manner:
"4. A method of assessing damages, usually followed
in England, as appears from Mallet v. McMonagle,
1969 ACJ 312 (HL. England) is to calculate the net
pecuniary loss upon an annual basis and to "arrive at
the total award by multiplying the figure assessed as
the amount of the annual 'dependency' by a number
of 'year's purchase' that is the number of years the
benefit was expected to last, taking into consideration
the imponderable factors in fixing either the multiplier
or the multiplicand..."
13. While applying the multiplier method, future
prospects on advancement in life and career are taken into
consideration. In a proceeding under Section 166 of the
Act relating to death of the victim, multiplier method is
applied after taking into consideration the loss of income to
the family of the deceased that resulted due to the said
demise. Thus, the multiplier method involves the
ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case
and capitalising the multiplicand by an appropriate
multiplier. The choice of the multiplier is determined by
the age of the deceased or that of the claimant, as the case
may be. In injury cases, the description of the nature of
injury and the permanent disablement are the relevant
factors and it has to be seen as to what would be the
impact of such injury/disablement on the earning capacity
of the injured. This Court, in the case of U.P. State Road
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Transport Corporation & Ors. v. Trilok Chandra & Ors.
(1996) 4 SCC 362 justified the application of multiplier
method in the following manner:
"13. It was rightly clarified that there should be no
departure from the multiplier method on the ground
that Section 110-B, Motor Vehicles Act, 1939
(corresponding to the present provision of Section
168, Motor Vehicles Act, 1988) envisaged payment of
'just' compensation since the multiplier method is the
accepted method for determining and ensuring
payment of just compensation and is expected to
bring uniformity and certainty of the awards made all
over the country."
The multiplier system is, thus, based on the
doctrine of equity, equality and necessity. A departure
therefrom is to be done only in rare and exceptional cases."
9. In view of the aforesaid, in my view, learned Member,
MACT has committed error in observing that since the learned
Member is considering 20% disability, it is not necessary to apply
multiplier in this case. Therefore, that finding needs to be upset in
this appeal.
10. Similarly, the learned Member, in my view, has erred
in not granting interest. The learned Member has granted 9%
interest, if the insurance company or tractor owner fail to deposit
awarded amount in the Court within 60 days. That itself shows
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and speaks that the learned Member has disallowed the claim of
the interest of the appellant. In my view, the appellant will be
entitled for the interest also.
11. In view of the aforesaid, in addition to the amount
what is already awarded in favour of the appellant, following
amount will have to be awarded additionally.
Rs.14,000/- salary per month X 12 Months =
1,68,000/- (-) 20% disability i.e. Rs. 8400/-. Rs.
8400/- will have to be multiplied by the multiplier.
12. Now, what should be the multiplier in this case. As per
Exh.-51, which is case summary, age of the appellant is recorded
by the doctor as 49 years. Similarly, Exh.-52 is the certificate
given by Vidarbha Neurosurgical and Spinal Institute, Akola. That
also shows that age of the appellant in the year 2004 was 49
years. The appellant adduced his evidence in the year 2008 and
that time he gave his age as 52 yeas.
13. In view of the documentary evidence in the nature of
the certificates issued by the doctor, which is not challenged by
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the insurance company, the Court can safely come to the
conclusion that at the time of accident, the appellant was aged
about 49 years.
14. In view of the law laid down by the Hon'ble Apex Court
in Sarla Verma and Ors. .vs. Delhi Transport Corporation and anr.
Reported in (2009) 6 SCC 121, the multiplier will be 13.
Therefore, 8400 X 13 = 1,09,200/-. Thus, this is the amount for
which the appellant will be entitled, in addition to the amount
already awarded in appeal. Plus he will be entitled to interest at
the rate of 7.5% p.a. on the amount which is already awarded by
the Tribunal. Consequently, following order is passed.
ORDER
(i) The appeal is partly allowed.
(ii) Judgment and award dated 08.12.2009
passed in Motor Accident Claims Petition No.
233/2004 is set aside to the extent of not granting
compensation by applying the principal of multiplier
and not granting interest.
(iii) The appellant will be entitled to receive
compensation as granted by learned Member, Motor
Accident Claims Tribunal, Akola. In addition to that,
the appellant will be entitled to Rs.1,09,200/- and also
interest at the rate of 7.5% per annum on the amount
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already deposited. In addition to that, interest on
Rs.1,09,200/- from the date of petition till its
realization.
(iv) Statement of learned counsel of the
insurance company is accepted that the insurance
company will deposit the amount as granted in this
judgment before the tribunal within a period of 2 ½
months from today.
After the amount is deposited, the
appellant would be entitled to withdraw the same.
(v) Decree be drawn up accordingly.
JUDGE
kahale
