Jammu & Kashmir High Court
New India Assurance Co. Ltd. vs Sushma Devi And Ors. on 24 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CIMA No.711/2010
MP Nos. 1079/2010, 686/2014
Date of decision:- 24.11.2017
New India Assurance Co. Ltd. Vs. Sushma Devi & ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Appellant(s) : Mr. R.K.Gupta, Sr. Advocate with
Mr. Ratish Mahajan, Advocate.
For respondent (s) : Mr. R.K.Jain, Advocate.
Mr. Vishnu Gupta, Advocate.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. In the instant Civil 1st Miscellaneous Appeal, the appellant has assailed the judgment/Award dated 22nd July, 2010 passed by the Moor Accident Claims Tribunal, Jammu (in brevity, the MACT), by which the petitioner Nos. 1 to 3 (respondents herein) are held entitled to compensation of Rs. 4.52,400/- (Rupees Four Lacs, Fifty Two Thousand and Four Hundred) along with interest @ 7.5% per annum, from the date of filing of claim petition till realization.
2. The facts leading to the filing of the instant appeal are that the respondent Nos. 1 to 3 filed a claim petition under Section 163-A of Motor Vehicles Act before the MACT, Jammu for grant of compensation on account of death of Shri Raj Kumar, who had died in a road traffic accident on 1st December, 2008 near Magal Kote Panthal while driving the Truck Trailer bearing Registration No. JK02AE-3029. The respondent No. 4, namely, Jagan Nath Sharma being the owner of the offending vehicle was impleaded as respondent in the claim petition filed by the respondent CIMA No. 711/2010 a/w connected MP Page 1 of 11 2 Nos. 1 to 3 before MACT, Jammu along with appellant-Insurance Company being the insurer of the offending vehicle.
3. The appellant-Insurance Company after its service filed objections to the claim petition by taking various defences available to it. One of the specific defence raised by the appellant-company in its objections to the claim petition was that the deceased being the son of the insured-owner of the Truck Trailer involved in the accident, did not fall in the definition of third party and further that the claim petition was filed in collusion with the respondent No. 4 and, therefore, the claim petition filed by the respondent Nos. 1 to 3 was not maintainable under the Motor Vehicle Act and deserved to be dismissed.
4. The MACT, Jammu vide its judgment (Annexure-A) dated 22nd July, 2010 rejected the defences raised by the appellant-company and passed the aforesaid award in favour of respondent Nos. 1 to 3 and against the appellant-company. The appellant-company being aggrieved of the aforesaid judgment/award impugned challenges its illegality, validity and correctness on the following amongst other grounds:-
(a) The judgment/award impugned is ex-facie bad, contrary to the facts of the case and law on the point and the same, therefore, deserves to be set aside.
(b) Despite the appellant-company having raised preliminary objection to the maintainability of the claim petition under Section 163-A of Motor Vehicles Act, the Tribunal neither framed any issue in this regard nor returned any finding on this.
The judgment/award impugned is, thus, wholly illegal and deserves to be set aside on this score alone.
(c) The Chapter XI of the Motor Vehicles Act provides for the insurance of Motor Vehicles against third party risk. Section 147 of the Act provides for the requirements of the policies and limits of the liability. Under Sections 147 and 149 of the Motor Vehicles Act, the Insurance Company is liable to indemnify the insured-owner in respect of death or bodily injury CIMA No. 711/2010 a/w connected MP Page 2 of 11 3 caused to a third party by the use of the vehicle. In the present case, the deceased being the son of the insured-owner, did not fall in the definition of the third party and, therefore, the claim petition was required to be rejected at the threshold. The Tribunal while allowing the claim petition held that the company has to indemnify the owner of the vehicle for third party risk, but nowhere in the judgment impugned, the Tribunal had held as to how he deceased came within the definition of third party. The Tribunal, therefore, by passing the award impugned has erred in law and the award impugned, therefore, deserves to be set aside.
(d) The company had also raised a plea that the claim petition has been filed in collusion with respondent No. 4 and, therefore, also filed an application seeking permission to defend the claim petition under Section 170 of the Motor Vehicles Act. The Tribunal, however, rejected the application of the appellant- Insurance Company merely on the ground that the claim petition was being contested by respondent No. 4. The order of rejection of the appellant-company filed under Section 170 of the Motor Vehicles Act is also bad in the eye of law and the consequent award passed is, thus, also illegal and deserves to be set aside.
(e) The collusion of respondent No. 4 with the claimants in filing the claim petition is apparent from the record that the respondent No. 4 appeared as witness in the claim petition and admitted the claim of the claimants (respondent Nos. 1 to 3 herein). The respondent No. 4 neither in his objections to the claim petition nor in his statement stated that how the appellant- company was liable to indemnify him in the present case. The Tribunal totally ignored the admitted facts and passed the award impugned.
(f) Admittedly, as per FIR and Challan, the accident had been caused by the rash and negligent driving of the deceased himself. Therefore, the claim petition under Motor Vehicles Act even under Section 163-A of Motor Vehicles Act was not maintainable and deserved to be dismissed.
(g) The claim petition was otherwise also not maintainable for the non-joinder of necessary parties. The mother of the deceased, who is alive, was neither impleaded as claimant nor as respondent in the claim petition. This fact has come from the statement of respondent No. 1 as well as respondent No. 4, who CIMA No. 711/2010 a/w connected MP Page 3 of 11 4 had deposed as witnesses in the claim petition. Despite the fact having come to the knowledge of the respondents, no step was taken to implead the mother of the deceased as a party to the claim petition. Despite the arguments having been advanced on this point, the Tribunal has also not returned any finding on the same. This Hon'ble Court in the judgment reported in 2007 (3) JKJ 373 has held that "all the legal representatives of the deceased are required to be impleaded as claimants or proforma respondents. Having not done so, the claim petition was liable to be dismissed."
(h) The Tribunal below again erred in selecting the appropriate multiplier in the case. As per the post-mortem report, the deceased was aged 37 years of age at the time of death and the multiplier provided in the age group of 35 to 40 was applicable. The Tribunal below took the age of the deceased as 34 years and applied the multiplier provided in the age group of 30 to 35. On this score also, the award impugned is bad and the same deserves to be set aside.
5. I have considered the rival contentions of parties. The fact of claim petition filed before court below is that on 01.12.2008 the deceased Raj Kumar was driving the offending vehicle No. JK02AE-3029 ( Troller ) which met with an accident near Magal Kot, Panthal due to sudden landslide and failing of stores on the vehicle. The deceased was immediately shifted to Banihal Hospital ,where he was succumbed to the injuries on the same day. That the offending vehicle was owned by respondent No. 4 herein and was insured with appellant herein.
Appellant herein filed objections and from the pleadings of the parties the following issues came to be framed by court below:-:
1. Whether the accident occurred on 01.12.2008 near Magal Kote Panthal by rash and negligent driving of offending vehicle No. JK02 AB-3029 in the hands of erring driver in which deceased Raj Kumar sustained fatal injuries?CIMA No. 711/2010 a/w connected MP Page 4 of 11 5
2. If issue No. 1 is proved in affirmative whether petitioners are entitled to the compensation, if so to what amount and from whom?
3. Whether at the time of accident driver of offending vehicle was not holding valid and effective driving license and drove the vehicle in violation of terms and conditions of insurance policy?
4. Relief.
6. The claimant No. 1 besides herself coming into the witness box also produced Om Parkash and another Om Parkash S/o Pt. Sukh Ram as witnesses in the case whereas Jagan Nath Sharma-owner also appeared in the case and insurance company has not produced any evidence.
7. After conclusion of trial, the finding of tribunal on issues No. 1 and 2 read as under:-
"Assessment of Claim:
The assessment of compensation, however, be made good but cannot be said to be foolproof. In every such assessment certain assumptions are to be made and there is all possibility of variance from Judge to Judge in applying the various principles enunciated by the Courts from time to time Lord Viscount Simon has evolved a method of assessment known as "Nance's method" more popularly as "discounting method". The another popular method, which is known as Davis Method was evolved by Lord Wright.
Hon'ble Supreme Court while dealing with a matter evolved a formula. Yearly Income Yearly expenditure on Deceased gives the sum expended on legal representatives. If this amount is capitalized subject to certain deductions, pecuniary loss to the family can be assessed. While improving the above formula Supreme Court in CKS Iyer's case has stated that there is no exact uniform rule for measuring the value of CIMA No. 711/2010 a/w connected MP Page 5 of 11 6 human life and measure of damage cannot be arrived at by mathematical calculation but the amount recoverable depends upon life expectancy of legal representative beneficiaries. In the same period Lord Diploc has evolved Interest Capitalization method by calculating net pecuniary loss on annual basis and multiplied with number of years purchase. The Hon'ble Supreme Court of India with the development of accident claims has decided the landmark case of Susmma Thomas has started giving appreciation to the annual income of deceased. This appreciation ranges to the double of income depending upon the nature of job, age, future prospects etc. Supreme Court has held that after determining and doubling annual income, 1/3 should be deducted towards the expenses of be incurred on the deceased and the remaining amount should be multiplied by a multiplier depending on the age of deceased and beneficiary. The maximum multiplier approved by Supreme Court in this case was 16. Later, Supreme Court's 3 Judges Bench has approved the Davis formula along with determination of dependency on unit basis in which the adults have been taken as 2 units and the minors has been taken as 1 unit. The multiplier, which was approved as 16 in Sushma Thomas case, was increased to maximum of 18. In this case the court did not allow double of the amount except that a premium may be given looking to the future prospects. But, in a recent Supreme Court judgment, in order to make compensation just and to taken consideration of overall factors multiplier was reduced from 16 to 12 in case of deceased of 38 years. In same facts and circumstances, in another case/Supreme Court has said for determination of multiplier depends upon (1) age of deceased (2) age of claimants (3) marital status (4) education and employment of the claimants; and (5) loss of pecuniary benefits. The Supreme Court has also held that criteria of awarding compensation include some guess work, some hypothetical consideration and some amount of sympathy linked CIMA No. 711/2010 a/w connected MP Page 6 of 11 7 with the nature of disability caused are all involved. But, all such elements are required to be viewed with the objective standard.
In view of the above case laws, one can say that the assessment of compensation is to be guided by way of applying precedents on the facts and circumstances of a particular case. It should not be misunderstood that injured or legal representatives of the deceased should be given exorbitant claim, but the law restricts them to be just compensation so as to save the injured or legal representatives of deceased from possible pecuniary and non-pecuniary losses guided by the above judgments.
In view of the aforesaid discussion and since the evidence provided by the petitioner is clear, cogent and satisfactory and even in the evidence of respondent No.1 the accident stood proved beyond any shadow of doubt as such, both these issues are proved in favor of the petitioners.
Relief:-
Now coming to the relief, the income of the deceased has to be fixed. The income of the deceased has been shown at Rs. 3300/- besides the trip etc. in the claim petition as well as in the statements of the witnesses including the owner of the offending vehicle. Looking into the circumstances the case the income of the deceased is fixed at Rs. 3300- PM which is genuine in view of the prevailing circumstances which too has not been rebutted by the other side. Out of the monthly income 1/3th is to be deducted towards the personal expenses of the deceased leaving behind sum of Rs. 2200-PA and Rs. 26400/-PA. Now for assessing compensation a suitable multiplier has to be selected. The tribunal is guided by 2nd Schedule of Motor Vehicles Act. The age of the deceased is shown 34 at the time of his death and thus falls in the age group of 30-35 years and multiplier of 17 is provided under the 2nd Schedule. However because of uncertainties of life the multiplier is slashed and multiplier of CIMA No. 711/2010 a/w connected MP Page 7 of 11 8 16 is applied. When Rs. 26400/- is multiplied by 16 the amount comes to Rs. 4,22,400/-. A sum of Rs. 15000/- is also awarded for funeral expenses and another sum of Rs. 15000/- for consortium to the widow of the deceased.
Thus the petitioner has been found entitled to the compensation of death of deceased Raj Kumar under the following heads:
1. For loss of dependency Rs. 422400/-
2. For funeral expenses Rs. 15000/-
3. Consortium to widow Rs. 15000/-
Total Rs. 4, 52, 400/- (Rupees four lacs fifty two thousands and four hundred only)."
8. Tribunal below has finally held that claimants are held entitled to compensation of Rs.4,52,400/- in all which appears to be just and fair. The same shall be satisfied by respondent-New India Assurance Company. Interim compensation if any received shall be deducted. Simple interest @ 7.5% PA is also allowed on award money from the date of filing of claim petition till realization.
9. I have heard learned counsel for the parties.
10. From the perusal of memo of appeal, it is evident that appellant has challenged the award on two grounds. First ground is that the age of deceased was 37 years of age at the time of death and the multiplier provided in the age group of 35 to 40 was applicable. The Tribunal below took the age of the deceased as 34 years and applied the multiplier provided in the age group of 30 to 35. On this score also, the award impugned is bad and the same deserves to be set aside.
CIMA No. 711/2010 a/w connected MP Page 8 of 11 911. I have gone through this aspect of the matter. In the petition, the age of deceased Raj Kumar has been mentioned as 34 years at the time of death. As per schedule 163-A of M.V. Act, the multiplier provided for age group between 30-35 is 17, so I do not find any infirmity of law in applying this multiplier.
12. Next ground taken is that, as per FIR and Challan, the accident had been caused by the rash and negligent driving of the deceased himself. Therefore, the claim petition under Motor Vehicles Act even under Section 163-A of Motor Vehicles Act was not maintainable and deserved to be dismissed.
13. I have considered this aspect of matter; Tribunal has rejected this aspect of matter relying on judgment of Supreme in Deepal Girishbhai Soni and ors. Vs. United India Insurance Co. Ltd., reported in 2004 ACJ
934.
14. In United India Insurance Co. V. Sunil Kumar 2013 ACJ 2856 the Hon'ble Supreme Court while reiterating the decision in Deepal's case (supra) held as under :-
"The Three- Judge Bench of this Court in Deepal Girishbhai Soni & Ors. v. United India Insurance Co. Ltd., Baroda [(2004) 5 SCC 385] made a detailed analysis of the scope of Sections 166 and 163-A and held that the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other, as statutorily provided, a claimant cannot pursue his remedies there under simultaneously. The Court also extensively examined the scope of Section 163-A and held that Section 163-A was introduced in the Act by way of a social security scheme and is a Code by itself. The Court also held that Section 140 of the Act deals with interim compensation but by inserting Section 163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long- drawn trial or without proof of negligence in causing the accident. The Court noticed that Section 163-A was inserted making a deviation from the common law liability under the Law of Torts and also in derogation of the provisions of the Fatal Accidents Act. The Three-Judge Bench also held that Section 163-A has an overriding effect and provides for special provisions as to payment of compensation on structured formula basis. Sub- section (1) of Section 163-A contains a non-obstante clause, in terms whereof the owner of the motor vehicle or the authorized insurer is CIMA No. 711/2010 a/w connected MP Page 9 of 11 10 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. The Court also held that the scheme of the provisions of Section 163-A and Section 166 are distinct and separate in nature. In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force"
has been used, which goes to show that the Parliament intended to insert a non- obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. The above-mentioned Three-Judge Bench judgment was not placed before the learned Judges who decided the Sinitha's case (supra).
6. We find, both Sections 140 and 163-A deal with the case of death and permanent disablement. The expression "permanent disablement" has been defined under Section 142, so far as Section 140 is concerned. So far as Section 163-A is concerned, the expression "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. Both Sections 140 and 163-A deal with cases of no fault liability. In order to prefer a claim under Section 140(2), claimant need not plead or establish that death or permanent disablement, in respect of which claim has been made, was due to any wrongful act, neglect or default of the deceased or the disabled person. Similarly, under Section 163-A also, claimant shall not be required to plead or establish that death or permanent disablement, in respect of which claim has been made, was due to any wrongful act, neglect or default of the deceased or the injured, as the case may be. In other words, an enquiry as to who is at fault is foreign to the determination of a claim under Section 140 as well as Section 163-A. Claim under Section 140 as well as Section 163-A shall not be defeated by the Insurance Company or the owner of the vehicle, as the case may be, by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement claim has been made. So also, the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of share of such person in the responsibility for his death or permanent disablement.
7. We find, in Sinitha's case (supra), one of the factors which weighed with the learned Judges was the absence of a similar provision like sub- section (4) of Section 140 in Section 163-A which, according to the learned Judges, has been intentionally and purposefully done by the legislature. We find it difficult to accept that view. We are of the view that if such an interpretation is given, the very purpose and object of Section 163-A would be defeated and render the provision otiose and a claimant would prefer to make a claim under Section 140, rather than under Section 163-A of the Act by exercising option under Section 163-B of the Act. Because, if a claim under Section 140, is raised because of Section 140(4), such a claim would not be defeated by the owner of the vehicle or the insurance company, as the case may be, and the claimant may get a fixed sum prescribed under Section 140(2). Sub-section (4) of Section 140 has been introduced by the legislature since claim under Section 140 would be followed by CIMA No. 711/2010 a/w connected MP Page 10 of 11 11 Section 166. So far as Section 163-A is concerned, claim is restricted on the basis of pre-determined formula, unlike in the case of application under Section 166.
8. We are, therefore, of the view that liability to make compensation under Section 163-A is on the principle of no fault and, therefore, the question as to who is at fault is immaterial and foreign to an enquiry under Section 163-A. Section 163-A does not make any provision for apportionment of the liability. If the owner of the vehicle or the insurance company is permitted to prove contributory negligence or default or wrongful act on the part of the victim or claimant, naturally it would defeat the very object and purpose of Section 163-A of the Act. Legislature never wanted the claimant to plead or establish negligence on the part of the owner or the driver. Once it is established that death or permanent disablement occurred during the course of the user of the vehicle and the vehicle is insured, the insurance company or the owner, as the case may be, shall be liable to pay the compensation, which is a statutory obligation.
9. We, therefore, find ourselves unable to agree with the reasoning of the Two- Judge Bench in Sinitha's case (supra). Consequently, the matter is placed before the learned Chief Justice of India for referring the matter to a larger Bench for a correct interpretation of the scope of Section 163- A of the Motor Vehicles Act, 1988, as well as the points no.(iii) to (v) referred to in Shila Datta's case."
15. In view of above, as the decisions of Hon'ble Apex Court in Deepal Girishbhai Soni's case and United India Insurance Co. V. Sunil Kumar's case (supra) still hold good, so there is no infirmity in the award /judgment passed by tribunal. Hence, this appeal is dismissed as is without any merit. The amount, if deposited, shall be released in favour claimants as per award of Tribunal.
(Sanjay Kumar Gupta) Judge Jammu 24.11.2017 Ram Krishan CIMA No. 711/2010 a/w connected MP Page 11 of 11