Allahabad High Court
National Insurance Company Through ... vs Bankey Bihari Lal Son Of Lala Chail ... on 13 September, 2007
Equivalent citations: 2008(1)AWC201
Author: Amitava Lala
Bench: Amitava Lala, V.C. Misra
JUDGMENT Amitava Lala, J.
1. This appeal has been preferred by the appellant-insurance Company against a judgment and award passed by the learned Judge, Motor Accidents Claims Tribunal, Gorakhpur on 20th April, 2000, under a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'Act', 1988). Against the same judgment and award cross objection No. 121257 of 2002 has also been filed. Therefore, both are being decided by this common judgment.
2. The deceased died in a road accident at Nepal on 13th August, 1992. He was unmarried at that time. He left behind his parents and brother. A claim petition was filed by his parents before the Tribunal at Gorakhpur in 1995. The claim petition became successful. A sum of Rs. 7,70,000/- was awarded by the Tribunal in favour of the claimants. Liability of the owner and Insurance Company for payment of compensation was made joint and several. Award of interest was also allowed at the rate of 12% per annum from the date of presentation of the claim petition till the actual date of payment. The share of compensation in favour of the claimants i.e. rather and mother was made equal. Five issues were framed thereunder which are as follows:
1. Whether this court had jurisdiction to try this claim petition for the accident alleged to have taken place within territory of Nepal in view of para-9 of the claim petition?
2. Whether the accident in question had occurred on 13.8.92 near Narayn Ghat Nepal due to rash and negligent driving of Maruti Van No. DL-4CB-1679 by its driver stated to be dead resulting into the death of Ashish Bansal? If so its effect?
3. Whether the claimants are entitled to get any amount of compensation? If so what is the reasonable amount of compensation and who amongst the OPs. are liable to pay?
4. Whether there was valid and effective insurance of this Maruti Van No. DL-4CB-1679 on the date and time of accident? If so its effect?
5. Whether the driver of Maruti Van No. DL-4CB-1679 in question had valid and effective driving licence On the date and time of accident? If so its effect?
3. Issue No. 1 is related to the question of jurisdiction. We have gone through Section 166(2) of the Act, 1988 for considering such question which is as follows:
Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed.
4. On the basis of said Sub-section either of the places as aforesaid i.e. appropriate place of accident at Nepal, appropriate place of residence/carrying on business of the claimants at Agra, Uttar Pradesh or appropriate place of residence/carrying on business of the respondents i.e. owner of the truck and/or Insurance Company at Gorakhpur, Uttar Pradesh, the respondents under the claim petition, are the appropriate places for hearing of the claim petition. Since the claim petition has been filed in the jurisdiction of Gorakhpur, we hold that the Tribunal at Gorakhpur had the jurisdiction to entertain, try and determine the claim petition of the claimants.
5. Secondly, in the memorandum of appeal a specific point is taken by the appellant that when the accident took place, Section 166 of the Act, 1988 was not amended, therefore, by virtue of unamended Section 166(3) of the Act, 1988, no application could lie unless it is made within a period of six months from the date of occurrence of the accident. However, the Tribunal may entertain the application after the expiry of such period but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. In the instant case the accident took place on 13th August, 1992. The claim petition was filed in the year 1995. But prior to the date of filing of such petition, Sub-section (3) of Section 166 of the Act, 1988 was repealed with effect from 14th November, 1994. Therefore, the claimant can not get the benefit of repealed provision which reads as under:
No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:
Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
6. According to us, ratio of the judgment Dhannalal v. Vijayvarqiya and Ors. is pat on the point. Relevant portion is quoted hereunder:
7. In this background, now it has to be examined as to what is the effect of omission of Sub-section (3) of Section 166 of the Act. From the Amending Act it does not appear that the said Sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the Amending Act to show that benefit of deletion of Sub-section (3) of Section 166 is not be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of Sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place two years before 14-11-1994, when Sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14-11-1994. Can a claim petition be not filed after 14-11-1994, in respect of such accident? Whether a claim petition filed after 14-11-1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when Sub-section (3) of Section 166, was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of Sub-section (3) of Section 166 w.e.f. 14-11-1994? According to us, the answer should be in negative. When Sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when Sub-section (3) of Section 166 was in force.
7. It is to be remembered that when an enactment would prejudicially affect vested rights, the Rule against retrospective operation applies. Filing of a claim petition by the claimant is the vested right under the Motor Vehicles Act i.e. a social piece of legislation. Intention of the legislature is to liberalise the Act to give more benefit to the claimants. Therefore, such liberalised Act should not be put as leaver to nullity vested right of the claimant. Precisely the Act relates to claim not relates to occurrence of accident. Therefore, right accrues not on the date of occurrence but on the date when the lis commences. Therefore, between the date of the accident and the date of filing application, if the law repealed, the effect will be made applicable to the application as if the law was not existing on that date. Hence, we hold and say that the application is squarely covered by the amended Act.
8. Now the third question, as raised by the appellant, is wrong application of multiplier in calculating the appropriate amount of compensation. We have gone through the judgment carefully. According to us, the applicability of multiplier has been thoroughly considered by the Tribunal to arrive at just compensation under Section 166 of the Act, 1988. Deceased was survived by the parents as he died unmarried at the age of 22 years. No denial or rebuttal on the part of the Insurance Company is available in respect of the age of the deceased. Deceased was carrying on business with his father and paying income tax. Parental ages are not backed by any age verification certificate. Brother of the deceased deposed that the age of the mother is 62-63 years or 64 years. However, in the claim petition filed by the father and mother of the deceased on 3rd July, 1995, describing their ages as 53 years and 50 years respectively. Therefore, at the time of award in the year 2000, their ages may not cross 60 years. Against this background multiplier of 8 was applied taking into account the ages of the parents roughly about 60 years alongwith the age of the deceased as 22 years, having cumulative effect.
9. We find from the Second Schedule under Section 163A of the Act, 1988 that multiplier of 8 will be applicable in the case of the ages between 55-60 years when multiplier of 5 will b3 applicable in case of ages between 60-65 years and above also. Therefore, we do not find any ambiguity in applying multiplier of 8. We also find that multiplier of 17 will be applicable in case of age between 20-25 years. To justify the cause, the Tribunal relied upon two very important judgments General Manager, Kerala State Road Transport Corporation. Trivandrum v. Susamma Thomas (Mrs.) and Ors. and in U.P. State Road Transport Corporation and Ors. v. Trilok Chandra and Ors. We have gone through both the judgments. In both the judgments the deceased was married. However, the discussion is about the applicability of multiplier method. In paragraph 13 of of the judgment in Re: Susamma Thomas (Supra) the Supreme Court held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. Making reference to the above judgment, three Judges' Bench of the Supreme Court in Re: Trilok Chandra (Supra) held that there should be maximum multiplier upto 18 and not 16. However, it was also held that since there are several mistakes in multiplication in the aforesaid Second Schedule, neither the Tribunals nor the Courts tan go by it as ready reckoner. It can only be used as a guide. Besides, the selection of multiplier can not in all cases be solely dependent on the age of the deceased. For example, if the deceased a bachelor, dies at the age of 45 years and his dependents are his parents, age of the parents would also be relevant in the choice of multiplier.
10. Therefore, the argument as put forth by appellant-Insurance Company before this Court that in the case of death of bachelor, only the age of the parents will be considered is not a sound submission. The word "also" as in the aforesaid three Judges' judgment of the Supreme Court denotes that both the ages of the deceased and the parents even in the case of bachelor ought to be taken into account. Moreover, multiplier method as under the Second Schedule of the Statute which relates to the age of victim can not be ignored by interpretation. Hence, the calculation of the Tribunal to ascertain compensation by adopting multiplier method giving cumulative effect of both the ages of the deceased and parents is not at all wrongful application. Determination has to be rational with judicious approach. Therefore, the Court has weighed such rationality on the basis of the available materials to arrive at "just" compensation and found justiciable.
11. We also find from the record that the claimants have filed a cross objection to the appeal on 21st July, 2002 i.e. after a period of two years from the date of filing the appeal by the Insurance Company contending mainly that the application of multiplier in awarding compensation should have been between 20-25 because while working out annual dependency of the claimants, relevant factor to be taken into consideration is age of the dependants at the time of death in accident. Moreover, total income of the deceased at the time of accident and enhancement of income from time to time, future inflation and other factors in carrying out business with his father are to be taken into account by the Tribunal. Although a point is involved herein about recovery of certain amount by the claimants in a proceeding under Workmen's Compensation Act and such point was taken by both the parties in their respective statements but nobody insisted for hearing on such point. Therefore, we ignore the same only keeping in mind such admitted factum that the claimants have realised certain amount of compensation apart from the awarded amount hereunder.
12. The claimants, relying upon three Judges' Bench judgment of the Supreme Court Naqappa v. Gurudayal Singh and Ors. contended before this Court that compensation to a victim of a motor vehicle accident or in case of a fatal accident to the legal representatives is awarded under two heads, namely, special damages--which are suffered by the victim or the legal representatives and general damages--hich include compensation for pain and sufferings, loss of amenities, earning capacity and prospective expenses including expenses for medical treatment. With regard to the first part of the damages, that is, special damages suffered by the victim or the legal representative, it can be easily proved on the basis of (he evidence which is in possession of the claimant. However, with regard to the second part--general damages/compensation, it would be a matter of conjectures depending on the number of imponderables. While calculating such damages, the Tribunal/court is required to have some guesswork taking into account the inflation factor. Even if it is found later that the damage suffered was much greater than was originally supposed, no further action could be brought. It is well settled Rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all. Two actions, therefore, will lie against the same party for personal injury sustained in the same accident.
13. However, the appellant-Insurance Company objected to the cross-objection taking a plea that as per Order 41 Rule 22 of the Code of Civil Procedure cross-objection can not be filed after a period of two years of initiation of the proceeding and notice upon it.
14. According to us, Motor Accidents Claims Tribunal is not the "Court" under Section 3 of the Code of Civil Procedure but when a Judge of such Court sits as a Judge of Tribunal he follows the principles laid down under such Code. For the said reason under Section 195 of the Act, 1988 a provision has been made. Above all, it is an impractical approach to entertain a cross-objection only for enhancement of the claim amount of the claimants after a period of two years from the date of filing the appeal when the same is not backed by any cogent reason other than reiteration of facts. Even thereafter if we go by 'he factual background, we find that the claimants admittedly were compensated even before the compensation was granted by the Tribunal. Hence, even without going into the controversy of granting compensation twice we can construe that the claimants' intention is not encouragable.
15. Thus, in totality neither the appeal nor the cross-objection succeeds. Therefore, both are dismissed on contest without imposing any cost.
16. Interim order, if any, stands vacated.
17. However, prayer of the appellant- Insurance Company about remittance of the statutory deposit of Rs. 25,000/- for the purpose of adjustment with the claim of the claimants stands allowed having incidental effect.
V.C. Misra, J.
18. I agree.