Jharkhand High Court
Jimdar Sundi vs (1) Bir Singh Sundi Son Of Late ... on 28 June, 2022
M.A.No.112 of 2010
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.112 of 2010
[Against the Judgment and Award dated 22.04.2010 passed in Motor
Accident Claim Case No.59 of 2005 by the learned Presiding Officer,
Motor Accident Claim Tribunal-cum-A.D.J. (F.T.C.-V), Chaibasa]
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1. Jimdar Sundi, son of Late Gindru Sundi
2. Smt. Malti Rani Sundi @ Rani Sundi, W/o Sri Jimdar Sundi, both
residents of Pataguira, P.S. Chaibasa Muffasil, District West
Singhbhum .... .... Appellants
Versus
(1) Bir Singh Sundi son of Late Sagar Sundi resident of village
Pataguira, P.O. Bara guira, P.S. Chaibasa Muffasil, District
Singhbhum West.
(2) National Insurance India Ltd., having its Branch Office at Sadar
Bazar, Chaibasa, P.O. & P.S. Chaibasa, District Singhbhum West.
.... ... Respondents
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For the Appellants : Mr. Shivam Utkarsh Sahay, Advocate
Mrs. Swati Shalini, Advocate
For the Resp. No.1 : None
For the Resp. No.2 : Mr. Pratyush Kumar, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court: - Heard the parties.
2. No one turns up on behalf of the Respondent No.1 in spite of
repeated calls even though notice of this appeal has been validly served
upon him. Hence, this appeal is heard and disposed of ex-parte so far as
Respondent No.1 is concerned.
3. This appeal is preferred against the Judgment and Award dated
22.04.2010 passed in Motor Accident Claim Case No.59 of 2005 by the
learned Presiding Officer, Motor Accident Claim Tribunal-cum-A.D.J.
M.A.No.112 of 2010
(F.T.C.-V), Chaibasa whereby and where under the learned tribunal has
awarded the claimants a sum of Rs.90,000/- along with interest @ 6% per
annum since the date of claim petition until the actual date of recovery of
the amount of compensation.
4. The brief facts of this case is that the deceased- Turam Sundi, a 14
years old boy, died in a motor vehicle accident as the driver of the
offending tractor was driving the said vehicle rashly and negligently
which dashed the deceased who was riding a bicycle. The said tractor was
insured with the respondent No.2- Insurance Company.
5. The learned tribunal assessed the multiplier basing upon the age of
the dependents and taking into consideration that the younger parents
being the mother was 44 years of age, they used the multiplier of 13 and
taking the notional income to be Rs.15,000/- per annum, they deducted
one-third income of the deceased towards his personal expenses and
therefore, awarded a sum of Rs.90,000/-.
6. Mr. Shivam Utkarsh Sahay-learned counsel for the appellants relies
upon the judgment of the Hon'ble Supreme Court of India in the case of
Kurvan Ansari @ Kurvan Ali & Another Vs. Shyam Kishore Murmu &
Another reported in 2022 (1) SCC 317, paragraph 16 of which reads as
under:
"16. In view of the above, we deem it appropriate to take notional income of
the deceased at Rs 25,000 (Rupees twenty-five thousand only) per annum.
Accordingly, when the notional income is multiplied with applicable
multiplier of 15, as prescribed in Schedule II for the claims under Section
163-A of the Motor Vehicles Act, 1988, it comes to Rs 3,75,000 (Rs 25,000
× multiplier 15) towards loss of dependency. The appellants are also
entitled to a sum of Rs 40,000 each towards filial consortium and Rs
15,000 towards funeral expenses. Thus, the appellants are entitled to the
following amounts towards compensation:
(a) Loss of dependency : Rs 3,75,000-00
(b) Filial consortium (Rs 40,000 × 2) : Rs 80,000-00
(c) Funeral expenses : Rs 15,000-00
Total : Rs 4,70,000-00
and submits that the learned tribunal ought to have taken the notional
income of the deceased to be Rs.25,000/- per annum and the multiplier to
be 15 in view of the principle of law settled by Hon'ble Supreme Court of
M.A.No.112 of 2010
India in the case of Sube Singh and Anr. vs. Shyam Singh (Dead) and
Others reported in 2018 (3) SCC 18, para 4 and 5 of which reads as under:
"4. On the basis of the finding recorded by the Tribunal and affirmed by the High Court, it is evident that
the deceased was 23 years of age on the date of accident i.e. 22-9-2009. He was unmarried and his parents
who filed the petition for compensation were in the age group of 40 to 45 years. The High Court, relying on
the decision in Ashvinbhai Jayantilal Modi [Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra
Sharma, (2015) 2 SCC 180 : (2015) 1 SCC (Civ) 792 : (2015) 1 SCC (Cri) 855] held that multiplier 14
will be applicable in the present case, keeping in mind the age of the parents of the deceased. The legal
position, however, is no more res integra. In Munna Lal Jain [Munna Lal Jain v. Vipin Kumar Sharma,
(2015) 6 SCC 347 : (2015) 3 SCC (Civ) 315 : (2015) 4 SCC (Cri) 195] decided by a three-Judge Bench of
this Court, it is held that multiplier should depend on the age of the deceased and not on the age of the
dependants. We may usefully refer to the exposition in paras 11 and 12 of the reported decision, which read
thus: (Munna Lal Jain case [Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 : (2015) 3 SCC
(Civ) 315 : (2015) 4 SCC (Cri) 195] , SCC pp. 351-52)
"11. The remaining question is only on multiplier. The High Court [Munna Lal Jain v. Vipin
Kumar Sharma, 2012 SCC OnLine Del 4540] following Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC
(L&S) 167] has taken 13 as the multiplier. Whether the multiplier should depend on the age of the
dependants or that of the deceased, has been hanging fire for some time; but that has been given a quietus
by another three-Judge Bench decision in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9
SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . It was held that the multiplier is to be used
with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the
age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to
whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote: (Reshma
Kumari case [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3
SCC (Cri) 826] , SCC p. 88, para 36)
'36. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 :
(2009) 2 SCC (Cri) 1002] , this Court has endeavoured to simplify the otherwise complex exercise
of assessment of loss of dependency and determination of compensation in a claim made under
Section 166. It has been rightly stated in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] that the claimants in case of death claim for
the purposes of compensation must establish (a) age of the deceased (b) income of the deceased; and
(c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i)
additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards
the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to
the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we
are in full agreement with the view in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] .'
12. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2
SCC (Cri) 1002] at para 19 a two-Judge Bench dealt with this aspect in Step 2. To quote: (SCC p. 133)
'19. ... Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of active career, the appropriate multiplier should be
selected. This does not mean ascertaining the number of years he would have lived or worked but for the
accident. Having regard to several imponderables in life and economic factors, a table of multipliers with
reference to the age has been identified by this Court. The multiplier should be chosen from the said table
with reference to the age of the deceased.'"
5. Considering the aforementioned principle expounded in Sarla Verma [Sarla Verma v. DTC,
(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , which has been affirmed by the
Constitution Bench of this Court in National Insurance Co. Ltd. v. Pranay Sethi [National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : AIR 2017 SC 5157] , the appellants are justified in insisting for
applying multiplier 18.
and further submits that the learned tribunal would have given the filial
consortium of Rs.(40,000/- x 2) = Rs.80,000/- and funeral expenses of
Rs.15,000/- and in total ought to have awarded Rs.4,70,000/-. It is next
submitted that the tribunal erroneously absolved the Insurance Company
of its liability under the policy only because the driver of the offending
M.A.No.112 of 2010
vehicle; at the time of accident was not holding any valid and effective
driving licence.
7. Learned counsel for the appellants next relies upon the judgment of
the Hon'ble Supreme Court of India in the case of Pappu & Others Vs.
Vinod Kumar Lamba & Another reported in (2018) 3 SCC 208 paragraph-
19 of which reads as under:-
"19. In the present case, the owner of the vehicle (Respondent 1) had
produced the insurance certificate indicating that Vehicle No. DIL 5955
was comprehensively insured by Respondent 2 (insurance company) for
unlimited liability. Applying the dictum in National Insurance Co.
Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] , to subserve the ends of justice, the insurer
(Respondent 2) shall pay the claim amount awarded by the Tribunal to the
appellants in the first instance, with liberty to recover the same from the
owner of the vehicle (Respondent 1) in accordance with law."
and submits that in case this court finds that the insurance company
is not liable to pay the compensation, the respondent No.2- Insurance
Company be directed to pay the awarded amount at the first instance to
the appellants/claimants with liberty to recover the same from the owner
of the vehicle in accordance with law by way of execution of the judgment
and award. Hence, it is submitted that the impugned judgment and award
be modified accordingly.
8. Mr. Pratyush Kumar- learned counsel for respondent No.2-
Insurance Company on the other hand defended the impugned judgment
and award and submits that since the driver of the offending vehicle was
not having any licence, so, the Insurance Company ought not be directed
to pay the compensation amount. Hence, it is submitted that this appeal,
being without any merit, be dismissed.
09. Having heard the rival submissions made at the Bar and after
carefully going through the materials in the record, the following two
points crop up for determination in this appeal:-
(i) whether the compensation amount is to be enhanced?
(ii) whether the respondent No.2- Insurance Company be directed to
pay the compensation amount with right to recover the same from the
owner of the offending vehicle?
10. So far as first point for determination is concerned, in view of the
M.A.No.112 of 2010
settled principle of law as has been held by the Hon'ble Supreme Court of
India in the case of Kurvan Ansari @ Kurvan Ali Vs. Shyam Kishore
Murmu (supra), this Court has no hesitation in holding that the
appropriate notional income should be Rs.25,000/- per annum and in
view of the principle of law settled in the case of Sube Singh and Anr. vs.
Shyam Singh (Dead) and Others (supra) and also in the case of Kurvan
Ansari @ Kurvan Ali & Another Vs. Shyam Kishore Murmu & Another
(supra), the multiplier should be 15 depending upon the age of the
deceased and not on the age of the claimant and further the claimant is
entitled to filial consortium of Rs. (40,000/- x 2) = Rs.80,000/- and funeral
expenses of Rs.15,000/-, that makes the total amount of compensation to
Rs.4,70,000/-, less the amount, if any, already paid to the claimant. The
first point for determination is answered accordingly.
11. So far as the second point for determination is concerned, the
Hon'ble Supreme Court of India has held as under in paragraph-17 of its
judgment in the case of Pappu & Others Vs. Vinod Kumar Lamba &
Another (supra):-
"17. This issue has been answered in National Insurance Co.
Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] In that case, it was contended by the insurance
company that once the defence taken by the insurer is accepted by the
Tribunal, it is bound to discharge the insurer and fix the liability only on
the owner and/or the driver of the vehicle. However, this Court held that
even if the insurer succeeds in establishing its defence, the Tribunal or the
court can direct the insurance company to pay the award amount to the
claimant(s) and, in turn, recover the same from the owner of the vehicle.
The three-Judge Bench, after analysing the earlier decisions on the point,
held that there was no reason to deviate from the said well-settled principle.
In para 107, the Court then observed thus: (SCC p. 340)
"107. We may, however, hasten to add that the Tribunal and the
court must, however, exercise their jurisdiction to issue such a
direction upon consideration of the facts and circumstances of each
case and in the event such a direction has been issued, despite
arriving at a finding of fact to the effect that the insurer has been
able to establish that the insured has committed a breach of contract
of insurance as envisaged under sub-clause (ii) of clause (a) of sub-
section (2) of Section 149 of the Act, the insurance company shall be
entitled to realise the awarded amount from the owner or driver of
the vehicle, as the case may be, in execution of the same award
having regard to the provisions of Sections 165 and 168 of the Act.
However, in the event, having regard to the limited scope of inquiry
in the proceedings before the Tribunal it had not been able to do so,
M.A.No.112 of 2010
the insurance company may initiate a separate action therefor
against the owner or the driver of the vehicle or both, as the case
may be. Those exceptional cases may arise when the evidence
becomes available to or comes to the notice of the insurer at a
subsequent stage or for one reason or the other, the insurer was not
given an opportunity to defend at all. Such a course of action may
also be resorted to when a fraud or collusion between the victim and
the owner of the vehicle is detected or comes to the knowledge of the
insurer at a later stage."
12. The Hon'ble Supreme Court of India in the case of Manuara
Khatun & Others Vs. Rajesh Kr. Singh & Others reported in (2017) 4
SCC 796 has also held that when the insurance policy is valid then even
though the Insurance Company is absolved of the liability to pay the
compensation amount, still the Insurance Company can be directed to pay
the amount with a right to recover the same from the owner of the vehicle
by way of execution of the judgment and award.
13. Considering the aforesaid settled principles of law, this Court has
no hesitation in holding that the learned tribunal erred by not directing
the Insurance Company to pay the compensation amount and recover the
same from the owner of the offending vehicle in execution of the
judgment and award. The 2nd point for determination is answered
accordingly.
14. In view of the discussions made above, the impugned judgment
and award dated 22.04.2010 passed in Motor Accident Claim Case No.59
of 2005 by the learned Presiding Officer, Motor Accident Claim Tribunal-
cum-A.D.J. (F.T.C.-V), Chaibasa is modified by directing the respondent
No.2- Insurance Company to pay Rs.4,70,000/- to the appellants/
claimants with interest thereon @ 6% per annum from the date of filing of
the claim petition to till date of actual amount less any amount, if any,
already paid, within three months from the date of this judgment.
15. Further the respondent No.2- Insurance Company is given liberty to
recover the compensation amount paid to the appellants/ claimants from
the owner of the offending vehicle (respondent No.1) by executing the
judgment and award as per law laid down by the Hon'ble Supreme Court
of India in para-26 in the case of Manager, National Insurance Co. Ltd. v.
Saju P. Paul & Another reported in (2013) 2 SCC 41.
M.A.No.112 of 2010
16. This appeal is disposed of with the aforesaid modification in the
impugned judgment and award.
17. No order as to costs.
18. Let a copy this Judgment along with the Lower Court Records be
sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 28th of June, 2022
AFR/ Animesh
