Calcutta High Court (Appellete Side)

Ruksana Bibi & Another vs The Divisional Manager on 13 June, 2023

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE

PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK

                           FMA 197 of 2019
                        Ruksana Bibi & Another
                                versus
The Divisional Manager, National Insurance Company Limited & Another

For the Appellants              : Mr. Subir Banerjee, Advocate
                                  Mr. Sandip Bandyopadhyay, Advocate
                                  Mrs. Ruxmini Basu Ray, Advocate

For the Respondent              : Mr. Sanjay Paul, Advocate

Ms. Jaita Ghosh, Advocate

Heard on : 14.09.2022, 13.12.2022

Judgment on : 13.06.2023

Bivas Pattanayak, J. :-

1. This appeal is preferred against the judgment and award dated 28th June,

2018 passed by learned Additional District Judge cum Judge, Motor Accident

Claims Tribunal, Fast Track, 1st Court, Uttar Dinajpur in M.A.C. Case No. 90

of 2014 granting compensation of Rs.1,80,000/- in favour of the claimants

together with interest under Section 163A of the Motor Vehicles Act, 1988.

2. The brief fact of the case is that on 21st May, 2014, at about 17:00 hours,

while the victim aged about 7 years, was standing on the left side "kuccha"

portion of the road at Bilashpur on NH-34 in front of his relative's house, at

that time the offending vehicle bearing registration no.WB-74P/6755 which

was coming from Raiganj side towards Dalkhola side in a high speed dashed

the victim, as a result of which, he was thrown off at a considerable distance

and sustained severe injuries on his person. Immediately after the accident

the victim was taken to Raiganj Sadar Hospital and finding his condition

serious the doctor referred him to Siliguri for better treatment. On way to

Siliguri the condition of the victim deteriorated further and he was taken to

Karandighi Primary Health Centre where the doctor declared him dead. On

account of sudden demise of the minor-victim, the claimants being the

parents of the victim filed application for compensation of Rs.2,00,000/-

together with interest under Section 163A of the Motor Vehicles Act,1988.

3. The claimants, in order to establish their case, examined two witnesses

and produced documents which have been marked as Exhibit 1 to 7

respectively.

4. The respondent no.1- insurance company did not adduce any evidence.

5. By order dated 26th August 2022 service of notice of appeal upon

respondent no.2-owner of the offending vehicle has been dispensed with since

he did not contest the claim application.

6. Upon considering the materials on record and the evidence adduced on

behalf of the claimants, the learned Tribunal granted compensation of

Rs.1,80,000/- in favour of the claimants together with interest under Section

163A of the Motor Vehicles Act.

7. Being aggrieved by and dissatisfied with the impugned judgment and

award, the claimants have preferred the present appeal.

8. Mr. Subir Banerjee, learned advocate for appellants-claimants submitted

that notional income of Rs.30,000/- per annum should be taken into account

in case of minor victim, however the learned tribunal erred in taking

Rs.15,000/- per annum as the income of minor-deceased. In support of his

contention, he relied on the following decisions of the Hon'ble Supreme Court:

i. Kurvan Ansari alias Kurvan Ali & Anr. versus Shyam Kishore

Murmu & Anr. reported in 2021 (4) T.A.C 673 (SC).

ii. Meena Devi versus Nunu Chand Mahto @ Nemchand Mahto &

Ors. reported in 2022 SAR (Civ) 1057

He further submitted that the Hon'ble Supreme Court in its decision passed

in Sarla Verma (Smt) and Others versus Delhi Transport Corporation

and Another reported in 2009 (6) SCC 121 taking into account the quantum

of compensation prepared a table indicating the multiplier actually used in

Second Schedule to the Motor Vehicles Act and as per the said table, in case

of a victim of road accident who is aged below 15 years, the multiplier would

be 20. Such proposition has also been adopted by the Hon'ble Supreme Court

and this Hon'ble Court in the following reports:

i. Reshma Kumari and Others versus Madan Mohan and Another

reported in (2013) 9 SCC 65.

ii. United India Insurance Co. Ltd. versus Shri Buro Mahara and

Others reported in 2015 (2) T.A.C. 753 (Cal.)

iii. Bajaj Allianz General Insurance Company Limited versus

Talamoy Baskey and Another passed in FMA 853 of 2019.

Furthermore, it is submitted that the Hon'ble Supreme Court in several of its

decisions bearing in mind the changed economic scenario including the rise

in cost of living and rate of inflation directed the Central Government to

amend the Second Schedule to the Motor Vehicles Act. Relying on the

decision of Hon'ble Supreme Court in Puttamma & Ors. versus K. L.

Narayana Reddy & Anr. reported in 2014 SAR (Civil) 276, he submitted

that the Second Schedule has become redundant, irrational and unworkable

due to changed economic scenario including the present cost of living and

current rate of inflation and increased life expectancy. Therefore, the

compensation should be assessed, in an application under Section 163A of

the Act, keeping in mind the changes in the economic scenario and the cost of

living, inflation rate since the enactment of the Second Schedule has been

made way back in the year 1994. Further relying on U.P. State Road

Transport Corporation and Others versus Trilok Chandra and Others

reported in (1996) 4 SCC 362 he submitted that the Second Schedule can at

best be used as a guide for assessment of compensation.

He further submitted that there should not be any deduction towards

personal and living expenses of the deceased while computing the

compensation amount since the victim in the case at hand is a minor aged 7

years and he relied on the decision of Hon'ble Supreme Court in Kurvan

Ansari alias Kurvan Ali (supra).

Further he submitted that Motor Vehicles Act is a beneficial piece of

legislation and courts/tribunals are to provide 'just compensation' under

Section 168 of the Act. Since in the case at hand rash and negligent act has

been proved hence the application of the claimants under Section 163A of the

Act be treated as an application under Section 166 of the Act for providing

'just compensation'. To buttress his contentions, he relied on the decision of

this Court passed in Smt. Upasi Singha & Ors. versus The Oriental

Insurance Co. Ltd. & Ors. reported in (2010)4 WBLR (Cal) 552 and Smt.

Bhagya Majumdar & Ors. versus The New India Assurance Company

Ltd .& Anr. reported in (2012)2 WBLR (Cal) 653.

In the light of his aforesaid submissions, he prayed for modification and

enhancement of the compensation amount.

9. In reply to the contentions raised on behalf of the appellants-claimants,

Mr. Sanjay Paul, learned advocate for the respondent no.1-insurance

company, submitted that in an application under Section 163A of the Motor

Vehicles Act, the Second Schedule is to be strictly followed and the

determination of the compensation should be on the basis of the structured

formula provided in the Second Schedule to the Motor Vehicles Act. Thus, the

income of minor victim, the deduction towards personal and living expenses

and the multiplier is to be applied following the Second Schedule to the Act.

In support of his contention, he relied on the decision of Hon'ble Supreme

Court in Deepal Girishbhai Soni and Others versus United India

Insurance Co. Ltd., Baroda reported in AIR 2004 SC 2107. He also placed

reliance on decision of this Court passed in Smt. Pato Mondal versus The

New India Assurance Company Limited & Anr. (F.M.A. No. 1805 of 2006)

and other appeals and Sri Shama Prasad Roy @ Nemai Roy @ Nemay

Roi versus National Insurance Company Ltd (F.M.A. No. 407 of 2012).

He further submitted that the learned tribunal has erroneously granted

general damages under the conventional heads of loss of estate and funeral

expenses to the tune of Rs.30,000/- which is beyond the scope of the Second

Schedule and should be modified.

Further he submitted that there is no occasion for treating the application

under Section 163A of the Act as an application under Section 166 of the Act

and the decisions of this Hon'ble Court in Smt. Upasi Singha (supra) and Smt.

Bhagya Majumdar (supra) are factually distinguishable and hence is not

applicable.

10. Having heard the learned advocates for the respective parties, it is found

that appellants-claimants have raised the following grounds in the present

appeal:

Firstly, whether the income of the minor victim aged 7 years should be

considered at Rs.30,000/- per annum.

Secondly, whether the multiplier of 20 is to be adopted in case of a minor

aged below 15 years.

Thirdly, whether the 1/3rd of the income of the minor-victim should be

deducted towards his personal and living expenses.

Lastly, whether the present application under Section 163A of the Act be

treated as an application under Section 166 of the Act for providing 'just

compensation'.

11. With regard to the determination of income of the minor-victim, it has

been strenuously argued on behalf of the appellants-claimants relying on

Kurvan Ansari alias Kurvan Ali (supra) and Meena Devi (supra) that the

notional income of Rs. 30,000/-per annum in case of a minor victim should

be taken into account for assessment of compensation bearing in mind the

present cost of living. Further placing reliance on Puttamma (supra) he argued

that although such income is a deviation from Second Schedule to the Act

but it can be accepted since the Second Schedule has become redundant. The

Second Schedule to the Act provides for notional income of Rs.15,000/- per

annum in case of non-earning person. If income of the minor-victim of

Rs.30,000/- per annum, as pressed into service, is accepted, it would no

doubt be a deviation from the structured formula provided in the Second

Schedule to the Act. At this stage, the question which falls for consideration

is whether the Second Schedule to the Act is to be strictly followed or there

can be deviation from it. In order to appreciate the aforesaid question, it

would be profitable to refer to the observation of three-Judges Bench of

Hon'ble Supreme Court in Deepal Girishbhai Soni (supra) which is reproduced

hereunder:

"46. Section 163-A which has an overriding effect provides for special provisions as to payment of compensation on structured formula basis. Sub- section (1) of Section 163-A contains non-obstante clause in terms whereof the owner of the motor vehicle or the authorised insurer is 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. Sub-section (2) of Section 163-A is in pari materia with sub-section (3) of Section 140 of the Act.

47. xxxxxxxxxxxxxxxx

48. By reason of the Section 163-A, therefore, the compensation is required to be determined on the basis of a structured formula whereas in terms of Section 140 only a fixed amount is to be given. A provision of law providing for compensation is presumed to be final in nature unless a contra indication therefor is found to be in the statute either expressly or by necessary implication. While granting compensation, the Tribunal is required to adjudicate upon the disputed question as regard age and income of the deceased or the victim, as the case may be. Unlike Section 140 of the Act, adjudication on several issues arising between the parties is necessary in a proceeding under Section 163-A of the Act."

The larger bench of the Hon'ble Court in the above decision clearly lays down

the proposition that Section 163A of the Act, which has an overriding effect,

provides for special provisions as to payment of compensation which is

required to be determined on the basis of a structured formula.

Bearing in mind the aforesaid observation of the Hon'ble Court, at the outset,

it is found that the report in respect of Meena Devi (supra) relates to claim

petition filed under Section 166 of the Motor Vehicles Act and thus does not

apply to the case at hand, since the application in the present case has been

filed under Section 163A of the Motor Vehicles Act.

The decision rendered by the Hon'ble supreme Court in Kurvan Ansari alias

Kurvan Ali (supra), though passed in respect of application under Section

163A of the Act, yet has not considered the decision of the larger bench of the

Hon'ble Supreme Court in Deepal Girishbhai Soni (supra), which clearly holds

that the determination of compensation in an application under Section 163A

of the Act should be made on the basis of the structured formula of the

Second Schedule to the Motor Vehicles Act. I find substance in the

submission of Mr. Paul, learned advocate for the respondent no.1-insurance

company, that such findings in Kurvan Ansari alias Kurvan Ali (supra), is a

departure from the principles of law laid down by a larger bench in Deepal

Girishbhai Soni (supra).

In Trilok Chandra (supra) after finding that the Second Schedule suffer from

several defects the Hon'ble Supreme Court observed that it can only be used

as a guide. However, in Reshma Kumari (supra) while making reference the

Hon'ble Court observed that though in Trilok Chandra (supra) the Hon'ble

Supreme Court pointed out certain purported calculation mistakes in the

Second Schedule but in fact there is no mistake therein.

In Puttamma (supra) the Hon'ble Supreme after considering the observation in

Deepal Girishbhai Soni (supra) in paragraph no.41, 42, 52, 53, 57 and 72held

that the Second Schedule has become redundant, irrational and unworkable

and issued direction upon the Central Government for making proper

amendments to the Second Schedule. But has not considered the observation

of larger bench in Deepal Girishbhai Soni (supra) made in paragraph no. 46

and 48 respectively that Section 163A of the Act, which has an overriding

effect, provides for special provisions as to payment of compensation which is

required to be determined on the basis of a structured formula.

The Hon'ble Supreme Court in its decision passed in M/s Trimurthi

Fragrances (P) Ltd. Through its Director Shri Pradeep Kumar Agarwal

versus Government of N.C.T. of Delhi Through its Principal Secretary

(Finance) & Ors. reported in 2022 LiveLaw (SC) 778 held as hereunder:

"19........ It is settled that the majority decision of a Bench of larger strength would prevail over the decision of a Bench of lesser strength, irrespective of the number of Judges constituting the majority."

Further Justice Hemant Gupta, J (as his Lordship then was) after agreeing

with the majority decision also expressed his opinion and concluded as

follows.

"G. The conclusion (1) is that a decision delivered by a Bench of largest strength is binding on any subsequent bench of lesser or coequal strength. It is the strength of the Bench and not number of Judges who have taken a particular view which is said to be relevant. However, conclusion (2) makes it absolutely clear that a Bench of lesser quorum cannot disagree or dissent from the view of law taken by a Bench of larger quorum. Quorum means the bench strength which was hearing the matter.

H. Thus, it has been rightly concluded that the numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the judgment"

Bearing in mind the aforesaid proposition, the principles laid down in Deepal

Girishbhai Soni (supra) by a larger bench of Hon'ble Supreme Court that in an

application under 163A of the Act the compensation is required to be

determined on the basis of a structured formula as per Second Schedule to

the Act still holds the field and needs to be adhered to. The Second Schedule

to the Act provides for notional income of Rs.15,000/- per annum in case of

non-earning persons. This Hon'ble Court has consistently considered the

notional income of Rs. 15,000/- per annum in case of a minor-victim in an

application under Section 163A of the Act in Smt. Pato Mondal (supra), Sri

Shama Prasad Roy @ Nemai Roy @ Nemay Roi (supra), Sabina Yeasmin &

Anr. versus The Branch Manager, New India Assurance Co. Ltd. & Anr.

reported in (2016) 2 WBLR (Cal) 71 and National Insurance Company Ltd.

versus Jayanti Barik and Another reported in 2019 (1) T.A.C. 201 (Cal.).

Therefore, in view of the above discussion the notional income of Rs.15,000/-

per annum is to be taken into consideration, in case of a minor-victim, in an

application under Section 163A of the Act.

12. With regard to the second issue relating to multiplier, it has been argued

vociferously on behalf of the appellants-claimants relying on Reshma Kumari

(supra), Shri Buro Mahara (supra), Talamoy Baskey (supra) that the multiplier

should be 20. Per contra, Mr. Paul, learned advocate for the respondent no.1-

insurance company relying on Smt. Pato Mondal (supra) and Sri Shama

Prasad Roy @ Nemai Roy @ Nemay Roi (supra), argued that in case of a minor-

victim the multiplier should be 15.

In this regard, reference may be made to the decision of the Hon'ble Supreme

Court in case of Reshma Kumari (supra) wherein the Hon'ble Supreme Court

held as follows:

"43.2. In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed."

Further in paragraph 40 of the decision of Sarla Verma (Smt) (supra), it is

found that a table has been prepared upon noticing several decisions which is

reproduced hereunder for convenience:

"40. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163-A of MV Act (with appropriate deceleration after 50 years):


                    Age of the   Multiplier    Multiplier   Multiplier   Multiplier    Multiplier
                    deceased      scale as     scale as      scale in     specified     actually
                                 envisaged     adopted        Trilok     in Second      used in
                                     in        by Trilok     Chandra     Column in      Second
                                 Susamma       Chandra          as       the Table    Schedule to
                                  Thomas                     clarified   in Second    MV Act (as
                                                            in Charlie    Schedule     seen from
                                                                         to the MV        the
                                                                             Act      quantum of
                                                                                      compensati
                                                                                          on)




                      (1)       (2)        (3)     (4)       (5)       (6)
                    Up to 15     -           -      -        15         20
                      yrs
                    15 to 20    16         18      18        16        19
                      yrs
                    21 to 25    15         17      18        17        18
                      yrs
                    26 to 30    14         16      17        18        17
                      yrs
                    31 to 35    13         15      16        17        16
                      yrs
                    36 to 40    12         14      15        16        15
                      yrs
                    41 to 45    11         13      14        15        14
                      yrs
                    46 to 50    10         12      13        13        12
                      yrs
                    51 to 55     9         11      11        11        10
                      yrs
                    56 to 60     8         10      09         8         8
                      yrs
                    61 to 65     6         08      07         5         6
                      yrs
                    Above 65     5         05      05         5         5
                      yrs

The header of column (6) reads as "Multiplier actually used in Second Schedule

to MV Act (as seen from the quantum of compensation)". The aforesaid

proposition has also been followed by this Hon'ble Court in Shri Buro Mahara

(supra), Sabina Yeasmin (supra), Jayanti Barik (supra) and Talamoy Baskey

(supra). Thus, bearing in mind the aforesaid, the multiplier for a victim of

road accident who was aged below 15 years would be 20.

13. The next issue that has fallen for consideration in the present appeal is

whether deduction of 1/3rd of the annual income of a minor should be made

towards his personal and living expenses or not. Learned advocate for the

appellants-claimants relying on Kurvan Ansari alias Kurvan Ali (supra) have

argued that since the victim was a minor and was non-earning, hence there

should not be any deduction towards personal and living expenses. Although

such argument has been pressed into service on behalf of the claimants yet

following the observation of the Hon'ble Supreme Court in Deepal Girishbhai

Soni (supra) that the determination of compensation in an application under

Section 163A of the Act should be made on the basis of the structured

formula of the Second Schedule to the Act, deduction of 1/3rd of the notional

income towards personal and living expenses as provided under the Second

Schedule is to be taken into account. In Kurvan Ansari alias Kurvan Ali

(supra), the Hon'ble Supreme Court has not deducted any amount towards

personal and living expenses, however, the decision of the larger bench

passed in Deepal Girishbhai Soni (supra) has not been considered in the said

decision. Therefore, following the proposition laid down in Deepal Girishbhai

Soni (supra), I do not find any merit in the argument advanced by learned

advocate for the appellants-claimants in this regard.

14. The last issue relates to treating the present application under Section

163A of the Act as an application under Section 166 of the Act. Mr Banerjee,

learned advocate for the appellants-claimants relying on Smt. Upasi Singha

(supra) and Smt. Bhagya Majumdar (supra) submitted that the present

application under Section 163A of the Act as an application under Section

166 of the Act on the ground that rash and negligent act of the driver has

been proved. Though the learned tribunal has discussed regarding the

materials pertaining to rash and negligent act of the driver but has neither

framed any issues with regard to rash and negligent act of the driver of the

offending vehicle nor has made any conclusive findings of the said fact. In

Smt. Upasi Singha (supra), the learned Tribunal proceeded dealing with

aspects germane to an application under Section 166 of the Act and

considering the same, this Court held that mere caption of an application

cannot decide the real nature of the same which is quite distinguishable from

the case at hand. In Smt. Bhagya Majumdar (supra), this Court distinguishing

Smt. Upasi Singha (supra) held that in the absence of any opportunity to the

insurance company to rebut the claim of the appellants it would be improper

to make such conversion from Section 163A. In view of the above discussion

the argument advanced on behalf of appellants-claimants fall short of merit.

15. Mr Paul, learned advocate for respondent no.1-insurance company has

indicated that the learned tribunal has granted Rs.30,000/- towards general

damages beyond the scope of Second Schedule which needs to be modified. It

is found that learned tribunal has granted general damages under

conventional heads of loss of estate and funeral expenses of Rs 15,000/-

each. However, following the Second Schedule the claimants are entitled to

Rs. 2,500 /- towards loss of estate and Rs.2000/- towards funeral expenses

and hence the amount under such heads needs to be modified.

16. In view of the above discussion, the calculation of compensation is made

hereunder:

Calculation of Compensation Notional yearly income Rs. 15,000/-

             Less: 1/3rd on account of         Rs. 5,000/-
             personal and living expenses
             of the victim (Rs.15,000 x 1/3)
                                               Rs. 10,000/-




             Compensation after multiplier   Rs. 10,000 x 20
             of 20 is applied                Rs. 2,00,000/-
             Loss of estate                  Rs. 2,500/-
             Funeral expenses                Rs. 2,000/-
             Total compensation awardable Rs. 2,04,500/-