Allahabad High Court
Regional Manager National Insurance ... vs Smt. Kusum Devi And 3 Others on 16 January, 2017
Author: Pankaj Mithal
Bench: Pankaj Mithal, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 9 Case :- FIRST APPEAL FROM ORDER No. - 1540 of 2015 Appellant :- Regional Manager National Insurance Co. Ltd. Respondent :- Smt. Kusum Devi And 3 Others Counsel for Appellant :- S.B.L. Gour Counsel for Respondent :- Ram Singh Hon'ble Pankaj Mithal,J.
Hon'ble Prabhat Chandra Tripathi,J.
Heard Sri S.B.L Gour, learned counsel for the appellant-Insurance Company and Sri Ram Singh, learned counsel for the claimants-respondents no.1 and 2.
Respondents no.3 and 4 are deemed to be served in view of the office report dated 04.11.2015 but they are not represented.
The contest in the appeal is between the appellant-Insurance Company and claimants-respondents no.1 and 2 only.
The appellant-Insurance Company has preferred this appeal against the judgment, order and award dated 17.03.2015 passed by the Motor Accidents Claims Tribunal, whereby it has awarded a sum of Rs.37,83,318/- to the claimants-respondents no.1 and 2 with 7% interest per annum from the date of the claim petition till its payment to be paid by the appellant-Insurance Company.
In the motor accident, which took place on 18.02.2013, the son of the claimants-respondents no.1 and 2, namely, Abhishek, aged about 23 years, who was serving in the Border Security Force, had died.
The Tribunal assessed his annual income to be Rs.2,74,872/- and by applying the multiplier of "17" on the basis of his age, determined the compensation payable to the claimants.
Sri Gour, learned counsel for the appellant, has advanced only one submission that the Tribunal committed manifest error of law in applying the multiplier of "17" on the basis of the age of the deceased. The deceased was a bachelor, therefore, the multiplier ought to have been chosen on the basis of the age of the parents of the deceased.
In response to the aforesaid argument, Sri Ram Singh, learned counsel appearing for the claimants-respondents no.1 and 2, has argued that it has been the consistent view that even in the case of death of a bachelor, the multiplier has to be on the basis of the age of the deceased and in view of the 3 judges decision of the Supreme Court in Munna Lal Jain and another Vs. Vipin Kumar Sharma and others, 2015 (3) TAC 1 (SC), any other contrary view is not sustainable.
In view of the respective contention of the parties, the only issue, which arises for consideration in this appeal before us, is whether in case of death of a bachelor, the multiplier has to be applied on the basis of the age of the deceased or on the basis of the age of the dependent parents.
The Second Schedule to the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act") gives the multipliers depending upon the age of the victim for application to determine the amount of compensation.
The use of the expression "Age of the Victim" therein in the first column clearly demonstrates that the multiplier has to be in consonance with the age of the deceased and not of any other person. This leaves no scope for any argument that the multiplier has to be applied on the basis of the age of the dependent of the deceased.
In Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(6) SCC 121, the Apex Court has made out a distinction between the claim petitions filed under Sections 163-A and 166 of the Act and has held that the principles relating to the determination of liability and quantum of compensation are different for claims under Section 163-A of the Act and claims under Section 166 of the Act but even in cases under Section 166 of the Act the principles underlying Section 163-A & the Second Schedule, may be adopted and the multiplier be applied on the basis of the age of the victim but in no case, the multiplier should exceed "18". However, its applicability would depend upon many other factors including the age of the parents.
In Sarla Verma (supra), it has been further observed that basically only three facts:- (i) age of the deceased; (ii) income of the deceased; and (iii) number of the dependants are required to be established by the claimants for the purposes of compensation. The issues to be determined by the Tribunal to arrive at the loss of the dependency are (a) additions/deductions to be made for determining the income; (b) deduction to be made towards personal living of the deceased; and (c) multiplier to be applied with reference to the age of the deceased.
It is on the basis of the above decision, that even though Second Schedule of the Act is not strictly applicable to claim petitions filed under Section 166 of the Act, the Courts have been applying the multipliers as laid down in the Second Schedule even to claims preferred under Section 166 of the Act ignoring the income but primarily upon the age of the deceased.
The observation that the multiplier to be applied has to be with reference to the age of the deceased amply signals that the Court following the principles of Section 163-A and the Second Schedule intends to apply the multiplier according to the age of the deceased rather than that of any other person so as to standardize the determination of compensation and to bring about uniformity & consistency in the decisions.
In Munna Lal Jain (supra), one of the questions, which had arisen before the three Judges Bench of the Supreme Court, was whether the multiplier should depend upon the age of the deceased or the dependents.
The Court held that the aforesaid question, which was hanging for long has been given quitous by another three Judges Bench decision in Reshma Kumari and others Vs. Madan Mohan and another 2013(9) SCC 65 by holding that the multiplier has to be used with reference to the age of the deceased.
In Amrit Bhanu Shali and others Vs. National Insurance Company Ltd. and others, 2012 (11) SCC 738, it was held as under:-
"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of the dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of the dependents has no nexus with the computation of compensation."
The aforesaid decision was followed with affirmation by the Supreme Court in case of N. Mansoor and another Vs. United India Insurance Company Ltd. and another, 2014 (1) AICC 214, wherein, the decision of the High Court, which applied the multiplier of "12" on the basis of the age of the parents was set aside restoring that of the Tribunal applying the multiplier of "17" on the basis of the age of the deceased.
In view of the above decisions, it is evident that the multiplier, if any, has to be chosen on the basis of the age of the deceased only.
Sri Gour, learned counsel for the appellant-Insurance Company, submitted that recently the Delhi High Court after analysing all the above decisions, and some more in HDFC Ergo General Insurance Co. Ltd. Vs. Smt. Lalita Devi and others, 2015 (1) TAC 693 has ruled that the multiplier has to be applied on the basis of the age of the parents.
On the other hand, a Division Bench of our own High Court in New India Insurance Co. Ltd. Vs. Gulab Singh and others, 2015 (3) ADJ 10, after considering the entire case law on the subject, held that in case of death of a bachelor aged about 23 years, the age of the claimants-dependents may be relevant for making deduction but not for applying the multiplier and that the choice of the multiplier has to be on the basis of the age of the deceased.
The aforesaid Division Bench has been followed by another Division Bench of this Court in case of Jai Kumari Devi and others Vs. Smt. Pushpa Gupta and another, 2015 (2) AICC 828. The contrary view taken by the various High Courts including Calcutta and Allahabad and even the Supreme Court in New India Assurance Company Limited Vs. Smt. Shanti Pathak and others, 2007(4) TAC 17 (SC) and UPSRTC and others Vs. Trilok Chandra and others, 1996(4) SCC 362 was not accepted in view of three Judges Bench decision of the Supreme Court in Reshma Kumari (supra) and Munna Lal Jain (supra) and for the reason the Supreme Court in the above referred two decisions have not dealt with the subject specifically and had not assigned any reason for taking the age of the dependents for determining the multiplier to be applied in contrast to the age of the deceased.
The view taken by the Division Benches of the Allahabad High Court appears to be more reasonable and logical so as to have uniformity in system of applying the multiplier system.
In this legal scenario, it is difficult for us to follow the learned Single Judge of the Delhi High Court ignoring two Division Benches of our own High Court on the subject in controversy.
This apart, the multiplier is, as provided under Second Schedule to Section 163-A of the Act, chosen and applied on the basis of the age of the victim. Therefore, if we follow the said principle of multiplier system and apply it in claims under Section 166 of the Act, then obviously the multiplier has to according to the age of the deceased.
There cannot be two divergent systems of applying the multiplier, one on the basis of the age of the deceased and the other on the basis of the age of the dependents.
The choice of the multiplier on the basis of the age of the dependents is bound to create confusion.
There may be cases, where dependents may not be parents alone and the other dependents may be of younger age. Then the difficulty would arise as to whose age should be taken as the base for choosing the multiplier.
In some cases, both the parents of the deceased may be alive and having vast age difference, then also, the difficulty would arise as to the choice of the multiplier.
In such a situation, one method would be to take the average age of all the dependants or the parents and to apply multiplier accordingly, but this may also not be a complete answer, which may give consistency to the decisions.
In fact, all cases of death of a bachelor or even otherwise have to be dealt with in a uniform pattern and in any case, if the multiplier has to be applied, it has to be taken on the basis of the age of one particular person, which under Second Schedule, is deceased itself. Therefore, if we borrow the said principle of applying the multiplier, then it is more sound to borrow it in entirety and to apply as envisaged in the Schedule that is on the basis of the age of the deceased.
In P.S. Som Nath and others Vs. District Insurance Officer and another 2011(1) TAC 861 (SC), the deceased, who was aged about 33 years, had left behind his sister and the mother. The Tribunal applied the multiplier of "16" but the High Court held that the multiplier of "5" ought to have been applied on the basis of the age of the mother.
The aforesaid decision was reversed by the Supreme Court and that of the Tribunal was restored on the ratio laid down in Sarla Verma (supra) holding that as the deceased was looking after the entire family, the proper course was to compute the compensation on the basis of the age of the deceased.
In an earlier decision of the Supreme Court in the case of Tamil Nadu State Transport Corporation Limited Vs. S. Raja Priya and others, AIR 2005 SC 2985, it was held that the choice of the multiplier is to be determined by the age of the deceased or in any case, if it is to be on that of the claimants, the higher of the two.
Thus, we find that even if the age of the dependents is taken into consideration, the multiplier, which is on the higher side, has to be applied. Therefore, in the case of death of a bachelor, it is more safe to stick to choosing the multiplier on the basis of the age of the deceased, rather than that of any of the claimants or the parents.
The loss of dependency so determined may then be reduced depending upon the age of the claimants but the choice of the multiplier would always be on the basis of the age of the deceased.
In view of the above, we do not find any force in the submission of Sri Gour, learned counsel for the appellant-Insurance Company and hold that in a claim under Section 166 of the Act, in case of death of a bachelor, the choice of the multiplier would depend upon the age of the deceased and not on that of the dependents or the parents.
Sri Ram Singh, learned counsel for the claimants-respondents no.1 and 2, pressed cross-objections for the purposes of enhancement of compensation awarded by the Tribunal on the ground that since the age of the deceased was 23 years, the multiplier of "18" ought to have been applied rather than that of "17".
Sri Gour, learned counsel for the appellant-Insurance Company, does not dispute that in view of law laid down in Sarla Verma, if the deceased is aged about 23 years, the multiplier has to be "18".
In view of the aforesaid facts and circumstances, the claimants-respondents no.1 and 2 are entitled to enhancement of compensation by applying the multiplier of "18".
Accordingly, taking the annual income of the deceased to be Rs.4,12,308/- and applying the multiplier of "18", the loss of income is determined to be Rs.74,21,544/-.
Now, by reducing the said sum by half on account of personal expenses of the deceased, it works out to be Rs.37,10,742/-. Adding to it, a sum of Rs.2,63,700/- towards medical expenses as determined by the Tribunal and Rs.15,000/- towards the loss of love and affection etc., the total compensation payable to the claimants-respondents no.1 and 2 is worked out Rs.37,10,742 + Rs.2,63,700 + Rs.15,000 = Rs.39,89,442/-.
In the end, the appeal is dismissed and the cross-objections are allowed to the above extent. The judgment, order and award of the Tribunal shall stand modified as indicated above and in place of the compensation of Rs.37,83,318/-, the claimants-respondents no.1 and 2 shall be entitled to compensation of Rs.39,89,442/- with 7% interest per annum from the date of the claim petition till its payment from the appellant-Insurance Company.
Order Date :- 16.1.2017 Nadim