Gujarat High Court
The vs Dharamsingh on 3 February, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/177/2010 5/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 177 of 2010
With
CIVIL
APPLICATION No. 1073 of 2010
In
FIRST APPEAL No. 177 of 2010
With
CIVIL
APPLICATION No. 1074 of 2010
In
FIRST APPEAL No. 177 of 2010
=========================================================
THE
ORIENTAL INSURANCE COMPANY & 1 - Appellant(s)
Versus
DHARAMSINGH
HIRASINGH CHAUHAN & 5 - Defendant(s)
=========================================================
Appearance
:
MR
RITURAJ M MEENA for
Appellant(s) : 1 - 2.
None for Defendant(s) : 1 -
6.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 03/02/2010
ORAL
ORDER
Heard learned advocate Mr. Meena on behalf of appellant insurance company.
The appellant has challenged award passed by Motor Accident Claims Tribunal, Godhara in MACP no. 791/2006 decided on 31/12/2008. The Claims Tribunal, Godhara has awarded Rs. 4,60,500/- with 7.5% interest being a compensation in favour of claimant.
Looking to appeal memo, present appeal is filed by appellant challenging Rs. 1,68,000/- on the ground that claims Tribunal has committed gross error not to consider age of father while calculating amount of compensation because deceased was unmarried aged 18 years old. According to him, 13 multiplier is required to be taken into consideration by claims Tribunal, which has not been taken. Therefore, claims Tribunal has committed gross error.
He also raised contention that claims Tribunal has not properly understand decision of Apex Court in case of Ramesh Singh & Anr Vs. Satbir Singh & Anr reported in 2008 (2) SCC 667. At page 669, Apex Court held that choice of multiplier is determined by age of deceased or claimant whichever is higher.
He submitted that age of father was 48 years, in such circumstances, correct multiplier would have been 13 and not 18 as held by claims Tribunal. He also raised contention that rate of interest 7.5% is also required to be reduced because it is on higher side. Except that no other contention raised by learned advocate Mr. Meena before this Court.
I have considered contention raised by learned advocate Mr. Meena and I have also perused award passed by Claims Tribunal, Godhara. The claimant has filed application u/s 163A of M. V. Act claiming compensation from respondents because of death of Hemantkumar in accident dated 21/4/2006. According to claimants, deceased Hemantkumar was son of petitioner and he was aged about 18 years. On 21/4/2006, their son was returning back from his duty in General Motors Company at about 2.00 hrs in night time. He was travelling with other passengers in offending vehicle Chhakada being Registration no. GJ-17-U-4779 for going towards Kalol. At about 2.45 hrs when said vehicle was passing through Alindra Chowkadi of Kalol taluka in Panchmahal District situated in sim of Kalol Police station. At that time, said chhakada dashed with stationary vehicle being a truck no. GJ-5-UU-7354 and accident took place. In the result, deceased sustained head injuries and also some other injuries on body and died on the spot.
The complaint in this regard was lodged with Kalol Police Station vide I. CR. No. 92/2006. The claimant no. 1 is father of deceased and claimant no. 2 is mother of deceased. Learned advocate Mr. Meena has not raised any contention in respect to question of negligence which has been decided by claims Tribunal. He raised contention only in respect to quantum specially in applying multiplier while considering age of deceased.
I have considered submission made by learned advocate Mr. Meena relying upon decision of Apex Court. The question is that u/s 163 A when claim petition was filed by claimant whether in such application while calculating compensation or worked out compensation, whether in case of death, multiplier method is to be applicable or not? For that, recently Apex Court has considered this question in two decisions in case of Reshmakumari & Ors Vs. Madan Mohan & Anr reported in 2009 AIR SCW 6999 and in case of National Insurance Co. Ltd Vs. Gurumullamma & Anr reported in 2009 AIR SCW 7434. The aforesaid two decisions are pertaining to claim petition filed by claimant u/s 163 A of M. V. Act. The both decisions given same Division Bench of Apex Court on 23/7/2009. In aforesaid two decision, Apex Court has come to conclusion that multiplier stricto sensu is not applicable in case of fatal accident but it applied only in case of disability in non fatal accident as would appear from Note 5 appended to the second schedule.
Therefore, contention raised by learned advocate Mr. Meena can not be accepted by this Court and decision which has been relied by learned advocate Mr. Meena as referred above, where claim petition u/s 163 A has been examined by claims Tribunal. This aspect recently considered by this Court in case of ICICI LOMBARD GENERAL INSURANCE CO. Ltd Vs. Kanji Bachuhai Ayar in first appeal no. 101/2010 decided on 29/1/2010. The relevant discussion made by this Court after considering both decision of Apex Court in para 4 to 8 are as under:
4.0 Relying upon aforesaid two decisions, learned Advocate Mr. Nanavati raised contention that the Claims Tribunal has considered Rs.3,000/- as monthly income of the deceased, which yearly comes to Rs.36,000/- and considering age of the deceased 19 years, multiplier of 16 has been applied. Accordingly, the Claims Tribunal has committed gross error in relying upon annual income of Rs.36,000/- and considered Rs.6,84,000/- being amount of compensation and after deduction of 1/3rd amount, which comes to Rs.4,60,500/-, as awarded by the Claims Tribunal. The total amount of compensation available as per Second Schedule to the claimant when yearly income of the deceased comes to Rs.36,000/- then it comes to Rs.6,84,000/- after deducting 1/3rd amount Rs.2,28,000/- remaining amount comes to Rs.4,56,000/- and Rs.2,000/- has been awarded towards Funeral Expenses and Rs.2,500/- has been awarded towards Loss of Estate. The total amount comes to Rs.4,60,500/-. But, learned Advocate Mr. Nanavati submitted that such calculation is not correct and Second Schedule has been found by the Honourable Apex Court erroneous. Therefore, according to his calculation from Rs.3,000/-
monthly income if 1/3rd is deducted then it comes to Rs.2,000/- and yearly income comes to Rs.24,000/- and then applying a multiplier of 16 at an age of 19 years, it comes to Rs.3,84,000/- towards Loss of Dependency and thereafter, Rs.2,500/- towards Loss of Estate and Rs.2,000/- towards Funeral Expenses, in all comes to Rs.3,88,500/- and not Rs.4,60,500/-. Therefore, there is an excess of Rs.72,000/- awarded by the Claims Tribunal, which found apparently a calculation error while considering Second Schedule r/w. Section 163A of the Act. Except this, no other submission has been made by learned Advocate Mr. Nanavati.
5.0 I have considered submissions made by learned Advocate Mr. Nanavati and I have also considered both decisions of the Honourable Apex Court as relied by the learned Advocate Mr. Nanavati as referred above. In the case of Gurumallamma, the Honourable Apex Court has clearly observed that, "Multiplier stricto sensu is not applicable in the case of fatal accident. The multiplier would be applicable only in case of disability in non-fatal accidents as would appear from the Note 5 appended to the Second Schedule. Thus, even if the application of multiplier is ignored in the present case and the income of the deceased is taken to be Rs.3,300/- per month, the amount of compensation payable would be somewhat between 6,84,000/- to Rs.7,60,000/-. As the Second Schedule provides for a structured formula, the question of determination of payment of compensation by application of judicial mind which is otherwise necessary for a proceeding arising out of a claim petition filed under Section 166 would not arise. The Tribunals in a proceeding under Section 163A of the Act is required to determine the amount of compensation as specified in the Second Schedule. It is not required to apply the multiplier except in a case of injuries and disabilities." Similarly, in the case of Reshma Kumari (supra) in Para 38, the Honourable Apex Court has observed that, Second Schedule refers to Sec. 163A of the 1988 Act, which as noticed hereinbefore, provides for quantum of compensation to third party in case of fatal accidents or injuries suffered. It provides for a table. It specifies the amount requires to be paid to legal heirs / representatives of the deceased in the case of fatal accident and the claims in the case of injuries suffered by them depending upon his age and annual income as specified therein .
5.1 Thereafter, in Para 40 of the said decision, the Honourable Apex Court has observed that, It, however, appears to us that there is no mistake therein. Amount of compensation specified in the Second Schedule only is required to be paid even if a higher or lower amount can be said to be the quantum of compensation upon applying the multiplier system . In the same decision, in Para 41, the Honourable Apex Court has observed that, The multiplier, in terms of the Second Schedule, is required to be applied in a case of disability in non-fatal accident. Consideration for payment of compensation in the case of death in a 'no fault liability' case vis-?-vis the amount of compensation payable in a case of permanent total disability and permanent partial disability in terms of Second Schedule is to be applied by different norms. Whereas, in the case of fatal accident the amount specified in the Second Schedule depending upon the age and income of the deceased is required to be paid wherefor the multiplier is not to be applied at all but in a case involving permanent total disability or permanent partial disability the amount of compensation payable is required to be arrived at by multiplying the annual loss of income by the multiplier applicable to the age of the injured as on the date of determining the compensation and in case of permanent partial disablement such percentage of compensation, which would have been payable in the case of permanent total disablement as specified under item (a) of the Second Schedule .
6.0 In view of the above observations made in both the cases by the same Division Bench of the Honourable Apex Court deciding the question on 23rd July 2009, it is made clear that in case of fatal accident, multiplier system is not to be applied but only annual income of deceased r/w. compensation in case of death between a particular age, the figure, which has been given against that column is only to be taken into account. Therefore, in this case, considering Rs.36,000/- as annual income and age of deceased as 19 years, a multiplier of 16 is not to be applied but only to consider the amount of compensation in case of death, which has been mention below annual income of Rs.36,000/-, which comes to Rs.6,84,000/-, which has been rightly arrived at by the Claims Tribunal, after proper reading and understanding the Second Schedule and thereafter, it requires to be deducted 1/3rd amount in consideration of the expenses, which the victim would have incurred towards maintaining himself had he been alive. Therefore, according to my opinion, Claims Tribunal has rightly adopted the method by not applying the multiplier but considering the annual income of the deceased and compensation in case of death, which comes to, considering the age of 19 years, Rs.6,84,000/- has been properly assessed and thereafter, rightly deducted 1/3rd amount for doing so, the Claims Tribunal has not committed any error which requires interference by this Court.
7.0 In view of both the above decisions of the Honourable Apex Court, according to my opinion, the Honourable Apex Court has made it clear in both the cases that multiplier method is to be applied in case of injury means non-fatal accident but in case of fatal accident, multiplier method of Second Schedule is not applicable but Claims Tribunal has to consider only annual income of the deceased and the age of deceased and amount of compensation in case of death given in Second Schedule is to be considered.
8.0 Therefore, submissions made by learned Advocate Mr. Nanavati in Ground D of the Appeal Memo that after deducting 1/3rd amount from the monthly income of Rs.3,000/-, a multiplier of 16 has been applied, which cannot be made applicable in case of death. Therefore, the contention raised by learned Advocate Mr. Nanavati in respect of applicability of Second Schedule in case of death is confusing himself and also creating confusion before this Court and without going into entire decisions in both the cases cannot be accepted as in both decisions it has been made clear that multiplier method of Second Schedule r/w. Sec. 163A is applicable only in case of injury only and it is irrelevant and not applicable such multiplier method in case of death and in such circumstances, in case of death Claims Tribunal has to consider the annual income of deceased, age of deceased and compensation workout in the Second Schedule in case of death is to be considered and thereafter to deduct 1/3rd amount, whatever amount come that is the amount of compensation available to the claimant. That method has been rightly applied by the Claims Tribunal and accordingly, compensation has been rightly worked out, for that, according to my opinion, the Claims Tribunal has not committed any error, which requires any interference by this Court.
In view of aforesaid observation made by this Court after considering two decision of Apex Court while considering provision of section 163 A read with second schedule, it is clear from observation made by Apex Court as well as second schedule itself that in case of fatal accident, multiplier method is not applicable but claims Tribunal has to consider monthly income of deceased then actual income as per annual income is considered and after considering age of deceased whatever amount of compensation specified in second schedule is to be considered. Thereafter, to deduct 1/3 amount being a personal expenses of deceased, then whatever amount comes, that can be considered to be dependency of claimants. While calculating amount of compensation in case of claim petition filed u/s 163A of M. V. Act, age of claimant is not necessary to be considered but age of deceased is to be considered and multiplier method is not applicable in case of death but it applied only in case of injury or non fatal accident. Therefore, contention raised by learned advocate Mr. Meena can not be accepted, hence rejected.
The contention in respect to rate of interest is also not accepted because looking to accident occurred in the year 2006 this being a reasonable rate of interest awarded by claims Tribunal, for that, claims Tribunal has not committed any error which would require interference by this Court.
According to my opinion, claims Tribunal has rightly calculated amount of compensation and rightly considered age of deceased as per second schedule and rightly not applied multiplier according to age of parents. Hence, there is no substance in present appeal, accordingly present first appeal is dismissed. Today, first appeal is dismissed, therefore, no order is required to be passed on civil applications. Therefore, both civil applications are disposed of.
(H.K.RATHOD, J) asma Top