Jammu & Kashmir High Court
Oriental Insurance Co. Ltd. vs Zohra Begum And Ors. on 7 February, 2008
Equivalent citations: 2008(1)JKJ436
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. These appeals have arisen out of judgment dated October 24, 2003 of Motor Accidents Claims Tribunal Jammu whereby claim petition Nos. 357, 359, 218, 478, 217, 233, 356, 355, 358, 669 and 268 of respondent(s)/claimant(s) have been allowed, awarding them compensation for the death of their predecessor(s)-in-interest on whose earnings would they dependent for their sustenance.
2. These appeals taken up for joint consideration, at the request of learned Counsel for the parties, are being disposed of by this common judgment, because issues raised in these appeals are similar and had arisen out of the compensation claims for the death of those who had died in one single accident on June 5,2000 at Manoti, involving Bus bearing registration No. JK02D-5355.
3. The predecessor(s)-in-interest of the claimants had been traveling on June 5,2000 in Bus bearing registration No. JK02D-5355 owned by Bachan Lal, respondent, when, because of its rash and negligent driving by its driver, it rolled off the road killing and injuring its occupants. The predecessor(s)-in-interest of the claimants had died in this accident.
4. In order to decide the claim petitions, the parties were put by the Tribunal to issues, which read thus:
(1) Whether an accident took place on 5.6.2000 at Manoti Bhalesa Doda due to the rash and negligent driving of the offending vehicle (Bus) bearing registration No. No. JK02D/5355 by its driver in which the deceased namely Riaz Ahmed, Uma Devi, Krishan Chand, Sayada Bano, Ghulam Nabi Bhat, Roshan Lal, Moti Lal, Bachno Devi, Miss Amina, Abdul Shubhan and Bansi Lal have died and the petitioners, Amrik Singh, Ghulam Hassan Bhat, Jaswant Singh, Ajit Singh, Sonu, Preeto Devi, Gh. Nabi Bhat, Naresh Kumar and Naveen Kumar have sustained injuries, if so of what nature? OPP (2) If issue No. 1 is proved in affirmative whether the petitioners are entitled to compensation; if so to what amount and from whom? O.P.P (3) Whether the driver of the offending vehicle was not holding a valid driving license at the time of the accident and the vehicle was being driven in violation of the terms and conditions of the Insurance Policy? OPR1.
(4) Whether Bus was over loaded with passengers, if so what is its effect on the proceedings? OPR1 (5) Relief. O.P. Parties
5. Holding driver of vehicle No. JK02D-5355 responsible for rash and negligent driving, resulting in the accident and death and injuries to its occupants, the Tribunal had decided issue No. 1 in favour of the claimants. Appellant-Insurance company had not led any evidence to prove the issues, onus of proof whereof had been placed on it. The defences taken by the Insurance Company were thus held not available to it and accordingly issue Nos. 3 and 4 were decided against it. The Tribunal accordingly, vide judgment impugned in these appeals, awarded compensation to the claimants.
6. Learned Counsel for the appellant-Insurance company abandoned all other pleas, which the company had taken in its memoranda of appeals, and restricted Company's challenge to the judgment impugned in the appeals and the award(s) made in favour of the claimants only insofar as the quantum of compensation and interest thereon was concerned.
7. I will first deal with the issue raised by learned Counsel for the appellant regarding awarding of excess rate of interest to the claimants by the Tribunal.
8. Before dealing with the issue it would be profitable to refer to what was held by Hon'ble Supreme Court of India in Abati Bezbaruah v. Deputy Director General Geological Survey of India :
Three decisions were cited before us by Mr. A.P. Mohanty learned Counsel appearing on behalf of appellant in support of his contentions. No ratio has been laid down in any of the decisions in regard to the date of interest and the rate of interest awarded on the amount of compensation, as a matter of judicial discretion. The rate of interest must be just and reasonable, depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injury suffered by the victim, enormity of suffering, loss of future income, los of enjoyment of life etc. into consideration. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by the Tribunals, High Courts and the Supreme Court. Interest can be granted even if claimant does not specifically plead for the same as it is consequential in the eye of law. Interest is compensation for forbearance or retention of money and that interest being awarded to a party only for keeping him out of the money which ought to have been paid to him. No principle could be deduced nor any rate of interest can be fixed to have a general application in motor accidents claims cases having regard to the nature of provisions of Section 171, giving discretion to the Tribunal in such matters. In other matters awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4A(3) of the Workmen's Compensation Act are applicable in the matter of fixing rate of interest in a claim under the motor Vehicles Act. The Courts have awarded the rate of interest at different rates depending upon the facts and circumstances of each case. Therefore, in my opinion there cannot be any hard and fast rule in awarding interest and the award of interest is solely on the discretion of the tribunal or the High Court as indicated above.
9. In view of the above extracted legal position, the trend noticed in latest judgments of Hon'ble Supreme Court of India in awarding interest in Motor Accidents Claims Cases and keeping in view the facts and circumstances of the present cases, I am of the view that interest awarded by the Tribunal is on a higher side and needs to be scaled down to 7.5% per annum from the date of filing of the claim petitions till realization of the compensation amount.
10. I will now deal with the second plea of the appellant, regarding the quantum of compensation awarded by the Tribunal, which according to the appellant, is excessive. Each case is therefore being taken up separately to deal with the issue.
CIMA No. 63/2004 (Claim Petition No. 357)
11. Zohra begum, her major daughter Shafiqa Bano and three minor daughters had claimed compensation of Rs. 32,50,000/- for the death of Ghulam Nabi Bhat, husband of claimant Zohra begum and father of other claimants, saying that the deceased was a government employee earning an amount of Rs. 10,000/-per month.
12. After examining the claimant's case and considering the submissions made by the appellant, the Tribunal, adopting 14 as the multiplier assessed an amount of Rs. 5,16,768/- as compensation for the death of Ghulam Nabi Bhat by determining the annual dependency of the family on the income of the deceased, at Rs. 36,912/-.
13. Learned Counsel for the appellant has not disputed the findings of the Tribunal insofar as it assesses the monthly dependency of the family on the income of the deceased. His only challenge is to the selection of multiplier made by the Tribunal in assessing the compensation.
14. I have considered the submissions of learned Counsel appearing for the parties made at the time of consideration of this appeal.
15. It is no longer res integra that selection of multiplier depends on various factors ensuring that the selection is made in such a way that the multiplier when multiplied with the annual dependency brings in such amount by way of compensation, which, if invested, would yield the same amount by way of interest, which the deceased would have spent on the family, had he remained alive.
16. Keeping in view the law laid down by the Apex Court, the responsibility of claimant Zohra begum, to look after the needs of the minor daughters and to make suitable arrangements for their marriage, which according to the culture and custom prevalent in the community of the claimants has to be arranged for by the parents, I am of the view that '13' should be the appropriate multiplier which should have been applied in the facts and circumstances of the present case.
17. Calculating the compensation on the admitted loss of annual dependency, the loss of dependency would come to Rs. 4,81,000/-. Adding an amount of Rs. 25,000/-, the traditional amount which, in terms of the judgments of Hon'ble Supreme Court of India, is usually awarded as compensation under the head of non-pecuniary damages, and an amount of Rs. 5000/- for burial expenses the compensation would come to Rs. 5,11,000/-.
18. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
19. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 5,11,000/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
20. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 357.
CIMA No. 64/2004 (Claim petition No. 359)
21. Tara Ram, the father, and Prito Devi, the mother of Master Bansi alias Sunny, who had died in the accident when Bus No. JK02D-5355 had rolled off the road on 5.6.2000 at Manoti, had maintained a claim, seeking compensation for the death of their son, for an amount of Rs. 20 Lacs. Prito Devi, the mother of the deceased, says that her husband Tara Ram too had died because of the shock of death of his only son Bansi, during pendency of the claim petition. The Tribunal has awarded an amount of Rs. 1,25,000/- as compensation for the death of three years old child of remaining surviving mother, Mst. Prito Devi.
22. Insurance Company's counsel says that the compensation awarded by the Tribunal is on the higher side.
23. Loss of son particularly to the mother, who has lost her only son, cannot, strictly speaking, be calculated in terms of money, for no amount of money can fetch her requisite solace needed to recoup the loss. While assessing compensation in such cases the Tribunals and Courts are, therefore, required to keep in mind the Indian settings and the conditions prevailing in the country when still we have not achieved the target of floating such schemes which may take care of such mothers who are left without any source of income, bread winner and social security. Indian mothers, since ages, have been pinning high hopes on their male offspring, who may take care of them in their old age when they need it the most. This is so more in rural arrears where ladies are by and large illiterate. Some amount of compassion is, therefore, required to be kept in mind while deciding compensation cases launched by such mothers.
24. Keeping all these things into consideration and going by the trend noticed in various judgments, as noticed by the Tribunal in the impugned judgment, I do not find any infirmity in the award of the tribunal, awarding an amount of Rs. 1,25,000/- as compensation for the death of the only son of the claimant Prito Devi.
25. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment, reduced to 7.5% from the date of filing of the claim petition till its realization.
26. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent of award of interest. The awarded amount shall accordingly carry interest at the rate of 7.5% per annum. The award of the Tribunal in favour of the claimant shall be an award for an amount of Rs. 1,25,000/- along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
27. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 359.
CIMA 69/2004 (Claim petition No. 218)
28. Suma Devi, her four major sons and one minor daughter had lodged a claim with the Motor Accidents Claims Tribunal Jammu for an amount of Rs. 72,00,000/- as compensation for the death of Moti Lal who had died in the vehicular accident of Bus No. JK02D-5355 at Manoti on 5.6.2000, when the Bus was plying from Jammu to Gandoh.
29. The claims Tribunal assessed the monthly income of the deceased at Rs. 4000/- and monthly economic loss to the family at Rs. 3134/-. Applying 11, as against 13, the prescribed multiplier in the Second schedule of the Motor Vehicles Act, 1988, the loss of dependency was assessed at Rs. 4,13,688 and the total compensation which was awarded by the Tribunal to the claimants is Rs. 4,48,688.
30. Learned Counsel for the appellant does not dispute the finding of the Tribunal whereby it assesses the income of the deceased at Rs. 4000/- per month. All that he says in support of the appeal, questioning the quantum of compensation, is that the Tribunal had erred in adopting the UNIT SYSTEM to make deductions from the income of the deceased rather than following the law laid down by Hon'ble Supreme Court of India in deducting 1/3rd out of the assessed income of the deceased, which amount would have been spent by him on his personal expenses had he survived. Learned Counsel therefore submits that the finding of the Tribunal needs to be modified.
31. Learned Counsel questions the selection of multiplier by the Tribunal too and submits that the multiplier selected by the Tribunal is on the higher side, and, keeping in view the facts and circumstances of the case, 10 should have been the appropriate multiplier in respondent's-claimant's case.
32. Learned Counsel for the claimants has supported the award of the Tribunal, saying that the Tribunal had not committed any error in awarding compensation which was just compensation in view of the facts and circumstances of the case.
33. I have considered the submissions of learned Counsel for the parties. Law regarding adopting of multiplier method for assessment of compensation in cases arising out of Motor Vehicular accidents, is by now well settled, and for assessment of just compensation, in terms of Section 168 of the Motor Vehicles Act, multiplier method has been recognized as the accepted method of determining the compensation. It has been held by Hon'ble Supreme Court of India in U.P. State Road Transport Corporation v. Trilok Chandra and Abati Bezbaruah v. Deputy Director General Geological Survey of India reported as AIR 2003 SC 1817 that there should not ordinarily be any deviation in assessing just compensation under Section 168 of the Motor Vehicles Act on the basis of multiplier method unless, however, a special case is made out for justifying deviation there from.
34. In view of the above legal position, Tribunal's finding of adopting Unit System method, in making deductions, in the absence of any special case having been either set up or found to have been made out by the Tribunal, cannot be sustained. The finding of monthly dependency recorded by the Tribunal by not following the multiplier system in its entirety is, therefore, unsustainable and is accordingly set aside and the method adopted by the Tribunal in making deduction from the income of the deceased by adopting Unit method is accordingly disapproved.
35. I would accordingly, while adopting multiplier method in its entirety and deducting 1/3rd out of the assessed income of the deceased, assess the monthly dependency of the family on the income of the deceased at Rs. 2667/- and rounding it off the monthly dependency would come to Rs. 2700/-.
36. The multiplier selected by the Tribunal cannot, however, be said to be on higher side keeping in view the age of the sons and daughter of the deceased, who, according to the statement of one of the sons of the deceased, have still been studying in schools and the family has no independent income, sufficient for supporting them. The family being dependent on the earnings of the deceased, the multiplier selected by the Tribunal cannot thus be faulted.
37. Multiplying the annual dependency of Rs. 32,400/- with the selected multiplier of 11, the multiplicand would come to Rs. 3,56,400/-. Adding the conventional amount of Rs. 25,000/- on account of loss of estate and consortium and an amount of Rs. 5000/- for the funeral expenses of the deceased, the total compensation payable to the claimants would come to Rs. 3,86,400/-.
38. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
39. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall now be for an amount of Rs. 3,86,400/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain unaltered.
40. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 218.
CIMA No. 71/2004 (Claim petition No. 478)
41. Kunti Devi, her two minor sons, two minor daughters and her father in-law had filed a claim petition, seeking an amount of Rs. 20,00,000/- as compensation for the death of Krishan Chand, her husband, who had died in a Motor Vehicular accident at Manoti when Bus No. JK02D-5355, because of its being driven rashly and negligently by its driver, had rolled off the road, resulting in death and injuries to persons who were traveling in it.
42. The deceased was serving as a Pharmacist in the Medical department of the State government at Sub District Hospital Gandoh and was getting a salary of Rs. 7879/- per month. The Tribunal, taking into account the future prospects of promotion etc. of the deceased, has taken his monthly income at Rs. 11,850/- and selecting 11 as multiplier, had awarded an amount of Rs. 12,30,360/- as compensation which included loss of dependency of Rs. 11,85,360/-.
43. Learned Counsel for the appellant has questioned the award of the Tribunal on the ground that while assessing the annual dependency of the family on the income of the deceased, the Tribunal had erroneously taken into consideration the promotional prospects of the deceased, without there being any evidence in support there for and had further erred in not following the multiplier method in its entirety by making 1/3rd deduction out of the assessed income of the deceased.
44. Learned Counsel for the claimants, on the other hand, submitted that the Court should take judicial notice of the promotional prospects of the deceased, who was a government employee, and, in that view of the matter the award of the Tribunal cannot be said to be unjustified on the ground that the Tribunal had taken into consideration the future prospects of the service career of the deceased.
45. I have considered the submissions of learned Counsel for the parties and gone through the pleadings and evidence produced by the claimants in support of their claim.
46. The claimants had not set up any case in their claim petition for the promotional prospects of the deceased. No worthwhile evidence too has been led by them to justify the award of the Tribunal insofar as it takes into consideration the prospective income of the deceased.
47. Law is well settled on the point that mere assertion that deceased would have earned more income during his life time cannot be accepted unless some evidence is produced on records regarding the future promotional prospects and rise in the income of the deceased
48. Support in this regard may be had from BiJoy Kumar Dugar v. Bidyadhar Dutta and Ors. 2006 (2) Supreme 374, where, while dealing with the question Hon'ble Supreme Court of India had held as follows:
To appreciate the respective contentions of the learned Counsel for the parties, we have gone through the relevant material on record. It is by now well-settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a 'multiplier'. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to one's earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT.
The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs. 4,000/- per month, as the earning of the deceased and after deducting Rs. 400/- per month for his pocket expenses, the remaining sum of Rs. 3600/- has been divided into three equal shares, out of which two shares, i.e. Rs. 2400/- per month or Rs. 28,800/- (wrongly mentioned as Rs. 28,000/- in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs. 2,000/- has been given for funeral expenses and a further amount of Rs. 6,000/- under the head "Loss of Estate". The total sum awardable is Rs. 3,53,600/- but since the deceased was held liable for contributory negligence, the liability of the insurer with whom the bus in question was insured is fixed at 50%, i.e. to the extent of Rs. 1,76,800/- with interest at the rate of 10% per annum from the date of the filing of the claim application till the date of payment. The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable compensation to the claimants.
49. In view of law laid down by Hon'ble Supreme Court of India on the issue in question, the finding of the Tribunal in assessing the income of the deceased at Rs. 11,850/- is unwarranted. The claimants had, however, proved the income of the deceased to be Rs. 7879/- per month by producing PW Gandharab Singh and the salary certificate issued in this behalf. Rounding off the figure, the monthly income of the deceased at the time of his death is required to be assessed at Rs. 7900/-. Deducting 1/3rd out of the assessed income of Rs. 7900/-, the annual dependency of the family on the income of the deceased would come to Rs. 63,204/-, which, when rounded off, would be Rs. 63,300/-.
50. Keeping in view the facts & circumstances of the case, the age of the minor sons and daughters of the deceased and the responsibility which has befallen upon claimant Kunti Devi, to feed, bring up, educate and arrange for the marriages of the sons and daughters of the deceased, I am of the view that appropriate multiplier in this case should be 13 as against the prescribed multiplier of 16 in the Second Schedule of Motor Vehicles Act, 1988. 13 has been adopted as multiplier with a view to ensure that the family of the deceased continues to get the same financial support which it would have got, had the deceased been alive.
51. Multiplying the annual dependency of Rs. 63,300/- with the selected multiplier of 13, the multiplicand would come to Rs. 8,22,900/-. Adding the conventional amount of Rs. 25,000/- on account of loss of estate and consortium and an amount of Rs. 5000/- for the funeral expenses of the deceased, the total compensation payable to the claimants would come to Rs. 8,52,900/-.
The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
52. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 8,52,900/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
53. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 478.
CIMA 72/2004 (Claim petition No. 217)
54. Ms. Sayeda Bano aged 20 years had died in the Motor Vehicular accident when Bus No. JK02D-5355 had rolled off the road at Manoti on 5.6.2000 when it was plying from Jammu to Gandoh. Her parents, Nazir Ahmed and Jana Begum had filed a claim petition before the Motor Accidents Claims Tribunal Jammu seeking compensation for an amount of Rs. 27,60,000/-. The Tribunal has awarded an amount of Rs. 99,000/- to the parents while denying compensation to the brother, along with interest at the rate of 9% per annum from the date of filing of the claim petition till realization of the compensation amount.
55. During the course of hearing of this appeal, learned Counsel for the appellant was unable to point out any defect in the assessment of the compensation by the Tribunal, in view of law laid down by Hon'ble Supreme Court of India in Manju Devi v. Musafir Paswan 2005 ACJ 99 where an amount of Rs. 2,25,000/- had been allowed as compensation for a boy aged 13 years.
56. I have gone through the findings returned by the Tribunal while assessing the amount of compensation in favour of the parents of the deceased Sayeda Bano and do not find any ground to interfere with the amount of compensation awarded to the claimants. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
57. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent of award of interest. The awarded amount shall thus carry interest at the rate of 7.5% per annum. The award of the Tribunal in favour of the claimant shall be an award for an amount of Rs. 99,000/- along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
58. This appeal is accordingly disposed of with the above, modification in the award of the Tribunal in claim petition No. 217.
CIMA No. 74/2004 (Claim Petition No. 233)
59. Sumitra Devi, her one major son, three minor sons and one minor daughter had lodged a claim with the Motor Accidents Claims Tribunal Jammu for an amount of Rs. 15,00,000/- as compensation for the death of Roshan Lal who had died in the vehicular accident of Bus No. JK02D-5355 at Manoti on 5.6.2000, when the Bus was plying from Jammu to Gandoh.
60. The claims Tribunal assessed the monthly income of the deceased at Rs. 4500/- and monthly economic loss to the family at Rs. 3200/-. Applying 14, as against 15, the prescribed multiplier in the Second schedule of the Motor Vehicles Act, 1988, the loss of dependency was assessed at Rs. 5,37,600/- and the total compensation which was awarded by the Tribunal to the claimants is Rs. 5,72,600/-.
61. Learned Counsel for the appellant does not dispute the finding of the Tribunal whereby it assesses the income of the deceased at Rs. 4500 /- per month. All that he says in support of the appeal, questioning the quantum of compensation, is that the Tribunal had erred in adopting the UNIT SYSTEM to make deductions from the income of the deceased rather than following the law laid down by Hon'ble Supreme Court of India in deducting 1/3rd out of the assessed income of the deceased, which amount would have been spent by him on his personal expenses had he survived. Learned Counsel thus submits that the finding of the Tribunal needs to be modified.
Learned Counsel questions the selection of multiplier by the Tribunal and submits that the multiplier selected by the Tribunal is on the higher side, and, keeping in view the facts and circumstances of the case, 11 should have been the appropriate multiplier in respondent's-claimant's case.
62. Learned Counsel for the claimants has supported the award of the Tribunal, saying that the Tribunal had not committed any error in awarding compensation which was just compensation in view of the facts and circumstances of the case.
63. I have considered the submissions of learned Counsel for the parties. Law regarding adopting of multiplier method for assessment of compensation in cases arising out of Motor Vehicular accidents, is by now well settled and for assessment of just compensation in terms of Section 168 of the Motor Vehicles Act, multiplier method has been recognized as the accepted method of determining the compensation. It has been held by Hon'ble Supreme Court of India in U.P. State Road Transport Corporation v. Trilok Chandra reported as SO and Abati Bezbaruah v. Deputy Director General Geological Survey of India reported as that there should not ordinarily be any deviation in assessing just compensation under Section 168 of the Motor Vehicles Act on the basis of multiplier method unless, however, a special case is made out for justifying deviation therefrom.
64. In view of the above legal position, Tribunal's finding of adopting Unit System method, in making deductions, in the absence of any special case having been either set up or found to have been made out by the Tribunal, cannot be sustained. The finding of monthly dependency recorded by the Tribunal by not following the multiplier system in its entirety is, therefore, unsustainable and is accordingly set aside and the method adopted by the Tribunal in making deduction from the income of the deceased by adopting Unit method is accordingly disapproved.
65. I would accordingly, while adopting multiplier method in its entirety and deducting 1/3rd out of the assessed income of the deceased, assess the monthly dependency of the family on the income of the deceased at Rs. 3000/-.
66. The multiplier selected by the Tribunal cannot, however, be said to be on higher side keeping in view the age of the sons and daughter of the deceased, who, according to the statement of one of the sons of the deceased, had still been studying in schools and the family had no independent income, sufficient for supporting them. The family being dependent on the earnings of the deceased, the multiplier selected by the Tribunal cannot thus be faulted.
67. Multiplying the annual dependency of Rs. 36,000/- with the selected multiplier of 14, the multiplicand would come to Rs. 5,04,000/-. Adding the conventional amount of Rs. 25,000/- on account of loss of estate and consortium and an amount of Rs. 5000/- for the funeral expenses of the deceased, the total compensation payable to the claimants would come to Rs. 5,34,000/-.
68. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
69. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 5,34,000/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
70. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 233.
CIMA No. 77/2004 (Claim Petition No. 356)
71. Hazra Begum, widow, her minor son, daughter, and parents of deceased Abdul Subhan had lodged a claim with the Motor Accidents Claims Tribunal Jammu for an amount of Rs. 62,00,000/- as compensation for the death of Abdul Subhan who had died in the vehicular accident of Bus No. JK02D-5355 at Manoti on 5.6.2000, when the Bus was plying from Jammu to Gandoh.
72. The Claims Tribunal assessed the monthly income of the deceased at Rs. 3000/- and monthly economic loss to the family at Rs. 2200/-. Applying 15, as against 18, the prescribed multiplier in the Second schedule of the Motor Vehicles Act, 1988, the loss of dependency was assessed at Rs. 3,96,000/- and the total compensation which was awarded by the Tribunal to the claimants was Rs. 4,56,000/-, which included an amount of Rs. 25,000/- under the head "medical expenses" also.
73. Learned Counsel for the appellant does not dispute the finding of the Tribunal whereby it assesses the income of the deceased at Rs. 3000 / - per month. All that he says in support of the appeal, questioning the quantum of compensation, is that the Tribunal had erred in adopting the UNIT SYSTEM to make deductions from the income of the deceased rather than following the law laid down by Hon'ble Supreme Court of India in deducting 1/3rd out of the assessed income of the deceased, which amount would have been spent on his personal expenses had he survived. Learned Counsel further submits that the finding of the Tribunal needs to be modified.
74. Learned Counsel questions the selection of multiplier by the Tribunal and submits that the multiplier selected by the Tribunal is on the higher side, and, keeping in view the facts and circumstances of the case, 12 should have been the appropriate multiplier in respondent's-claimant's case.
75. Learned Counsel for the claimants has supported the award of the Tribunal, saying that the Tribunal had not committed any error in awarding compensation which was just compensation in view of the facts and circumstances of the case.
76. I have considered the submissions of learned Counsel for the parties. Law regarding adopting of multiplier method for assessment of compensation in cases arising out of Motor Vehicular accidents, is by now well settled and for assessment of just compensation in terms of Section 187 of the Motor Vehicles Act, multiplier method has been recognized as the accepted method of determining the compensation. It has been held by Hon'ble Supreme Court of India in U. P. State Road Transport Corporation v. Trilok Chandra reported as and Abati Bezbaruah v. Deputy Director General Geological Survey of India reported as that there should not ordinarily be any deviation in assessing just compensation under Section 168 of the Motor Vehicles Act on the basis of multiplier method unless, however, a special case is made out for justifying deviation there from.
77. In view of the above legal position, Tribunal's finding of adopting Unit System method, in making deductions, in the absence of any special case having been set up or found to have been made out by the Tribunal, cannot be sustained. The finding of monthly dependency recorded by the Tribunal by not following the multiplier system in its entirety is, therefore, unsustainable and is accordingly set aside and the method adopted by the Tribunal in making deduction from the income of the deceased by adopting Unit method is accordingly disapproved.
78. I would accordingly, while adopting multiplier method in its entirety and deducting 1/3rd out of the assessed income of the deceased, assess the monthly dependency of the family on the income of the deceased at Rs. 2000/-.
The multiplier selected by the Tribunal cannot, however, be said to be on higher side keeping in view the age of the sons and daughter of the deceased, who, according to the statement of one of the claimants, had still been studying in schools and the family had no independent income, sufficient for supporting them. The family being dependent on the earnings of the deceased, the multiplier selected by the Tribunal cannot thus be faulted.
79. Multiplying the annual dependency of Rs. 24,000/- with the selected multiplier of 15, the multiplicand would come to Rs. 3,60,000/-. Adding the conventional amount of Rs. 25,000/- on account of loss of estate, love and affection and consortium, an amount of Rs. 5000/- for the burial expenses of the deceased, and an amount of Rs. 25,000/- awarded under the head 'medical expenses', the total compensation payable to the claimants would come to Rs. 4,15,000/-.
80. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment, reduced to 7.5% from the date of filing of the claim petition till its realization.
81. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 4,15,000/-, along with interest at the rate of 7.5% per annum from filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
82. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 356.
CIMA No. 78/2004 (Claim petition No. 355)
83. Ms. Amina aged 8 years daughter of Nizamdin Gujjar and Mst. Bago had died in the accident and her parents had filed claim petition No. 355, claiming an amount of Rs. 39 lacs as compensation.
84. Relying on a judgment of Hon'ble Supreme Court of India in Lata Wadhwa v. State of Bihar reported as , the Tribunal has awarded an amount of Rs. 1,50,000/- as compensation to Mst. Bago, the only surviving claimant because Nizamdin Gujjar had died during the pendency of the claim petition.
85. Learned Counsel for the appellant has questioned the quantum of compensation on the ground that the same is on higher side and the selection of the multiplier by the Tribunal was inappropriate.
86. I have considered the submissions of learned Counsel for the appellant and am of the view that, looking to the age of the mother of the deceased, the Tribunal has not erred in selecting the multiplier because, even if the age of the claimant had to be taken into consideration, the multiplier would remain the same. In an almost similar case Hon'ble Supreme Court of India had ruled in Manju Devi and Anr. v. Musafir Paswan and Anr. reported as 2005 ACJ 99, as under:
As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a multiplier of 15 would have to be applied. As per the Second Schedule, he being a non-earning person, a sum of Rs. 15,000 must be taken as the income. Thus the compensation comes to Rs. 2,25,000.
87. In view of the law laid down by Hon'ble Supreme Court of India in the above referred case, I do not find any infirmity in the award, insofar as it awards Rs. 1,50,000/- as compensation to Mst. Bago.
The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment, reduced to 7.5% from the date of filing of the claim petition till its realization.
88. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent of award of interest. The award of the Tribunal in favour of the claimant shall be an award for an amount of Rs. 1,50,000/- along with interest at the rate of 7.5% per annum from filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
89. This appeal is accordingly disposed of with the above, modification in the award of the Tribunal in claim petition No. 355.
CIMA 79/2004 (Claim petition No. 358)
90. Claiming compensation of an amount of Rs. 39 Lac for the death of Bachno Devi in the motor vehicular accident regarding vehicle No. JK02D-5355 at Manoti on 5.6.2000, her husband Harbans Lal, two major sons, Mikhu Ram and Vijay and two minor sons, Sonu and Viku, aged 12 years and 9 years, had filed claim petition No. 358 before Motor Accidents Claims Tribunal Jammu, which had awarded an amount of Rs. 3,99,000 as compensation, after assessing the income of the deceased at Rs. 3000 per month and applying 16 as the multiplier.
91. Learned Counsel for the appellant does not dispute the finding of the Tribunal whereby it assesses the income of the deceased at Rs. 3000/- per month. Appellant's learned Counsel, however, questioning the selection of the multiplier by the Tribunal, says that the facts and circumstances of the case would justify multiplier of 11 only.
92. Learned Counsel for the claimants, however, justifies the selection of multiplier by the Tribunal, in view of the facts and circumstances of the case.
93. I have considered the submissions of learned Counsel for the parties.
94. Reiterating the view taken in U.P. State Rood Transport Corporation v. Trilok Chandra reported as , it has been held in Abati Bezbaruah v. Deputy Director General Geological Survey of India reported as by Hon'ble Supreme Court of India that the law is now well settled that payment of compensation on the basis of structured formula, as provided for under the Second Schedule, should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for the determination of the amount of compensation.
95. While fixing just compensation under the Motor Vehicles Act, regard thus needs to be had to the facts and circumstances of each case and every effort needs to be made by the Court to ensure that exit of the person from the family, on whom the claimant(s) was/were dependent, should be compensated in such a way that the dependent(s) continue receiving almost the same amount which they would have been getting had the deceased survived.
96. Keeping in view the law laid down by Hon'ble Supreme Court of India and that the deceased is survived by only two minor sons, when their father too is alive, I am of the view that thirteen '13' should be the appropriate multiplier in the present case and, accordingly, the compensation calculated on the basis of annual dependency of Rs. 24000/-, as worked out by the Tribunal, which finding has not been disputed by the counsel for the appellant, the amount of compensation payable to the claimants would come to Rs. 3,27,000/-.
97. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date of filing of the claim petition till its realization.
98. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 3,27,000/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
99. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 358. CIMA No. 80/2004 (Claim Petition No. 669)
100. Two minors, namely, Ashok Kumar and Amrica Devi aged 10 and 12 years had claimed compensation for the death of their mother OM Dei, who was one of the passengers in the vehicle which had met with the accident at Manoti. They had filed their claim through their uncle Ram Dayal because their father had pre-deceased their mother. Sole bread winner for the minors having died, her income was assessed at Rs. 3000/- per mensum in view of law laid down by Hon'ble Supreme Court of India in Lata Wadhwa v. State of Bihar reported as . Deducting 1/3rd of this income, which the deceased would have spent on herself, had she survived, the Tribunal assessed their annual dependency at Rs. 24,000/-. Taking the age of the deceased to be 32 years, multiplier of 16 as against the prescribed multiplier of 17 as mentioned in the Second Schedule appended to the Motor Vehicles Act, had been adopted by the Tribunal thereby awarding an amount of Rs., 3,89,000/- as compensation for the death of the deceased which included Rs. 5000/- for funeral expenses.
101. Learned Counsel for the appellant submits that the Tribunal has erred in selecting the multiplier, which, according to him, should have been 12/13 because the age of the deceased was more than 41 years at the time of her death.
102. I have considered the submissions of learned Counsel for the appellant and gone through the claim petition.
103. Learned Counsel for the appellant is right in his submission that the deceased was 41 years of age at the time of her death and not of 32 years of age, as noticed by the Tribunal. This is so because the claim petition records the age of the deceased at the time of her death as 41 years and not as 32 years as noticed by the Tribunal. The Tribunal has, therefore, erred in selecting requisite multiplier by taking the age of the deceased as 32 years.
104. The Second Schedule prescribes 15 as the multiplier for victims in the age group of 40-45 years. Although the schedule pertains only to those cases which may be covered by Section 163A of the Motor Vehicles Act, yet in view of law laid down by Hon'ble Supreme Court, multiplier suggested in the schedule serves as a guiding factor to determine and select the requisite multiplier, which may vary in view of the facts and circumstances of each case.
105. Keeping in view the facts and circumstances of the case and bearing in mind that the amount of compensation should be such which should place the dependents in almost the same financial position in which they had been prior to the death of their bread winner, 1 am of the view that 14 should be the appropriate multiplier in the present case.
106. Multiplying the annual loss of dependency by 14, the compensation payable to the claimants would come to Rs. 3,36,000/-. Adding an amount of Rs. 5000/- for funeral expenses of the deceased the total compensation payable by the appellant to the claimants would thus come to Rs. 3,41,000.
107. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment, reduced to 7.5% from the date of filing of the claim petition till its realization.
108. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 3,41,000/-, along with interest at the rate of 7.5% per annum from filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
109. Appeal No. 80/2004 is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 669.
110. Rehana, the widow, her minor son and daughter and parents of deceased Riaz Ahmed had lodged a claim with the Motor Accidents Claims Tribunal Jammu for an amount of Rs. 42,40,000/- as compensation for the death of Riaz Ahmed who had died in the vehicular accident of Bus No. JK02D-5355 at Manoti on 5.6.2000, when the Bus was plying from Jammu to Gandoh.
111. The claims Tribunal assessed the monthly income of the deceased at Rs. 3000/- and a monthly economic loss to the family at Rs. 2200/-. Applying 15, as against 17, the prescribed multiplier in the Second schedule of the Motor Vehicles Act, 1988, the loss of dependency was assessed at Rs. 3,96,000/- and the total compensation which was awarded by the Tribunal to the claimants is Rs. 4,31,000/-.
112. Learned Counsel for the appellant does not dispute the finding of the Tribunal whereby it assesses the income of the deceased at Rs. 3000/- per month. All that he says in support of the appeal, questioning the quantum of compensation, is that the Tribunal had erred in adopting the UNIT SYSTEM to make deductions from the income of the deceased rather than following the law laid down by Hon'ble Supreme Court of India in deducting 1/3rd out of the assessed income of the deceased, which amount would have been spent on his personal expenses had he survived. Learned Counsel accordingly submits that the finding of the Tribunal are required to be modified.
113. Learned Counsel questions the selection of multiplier by the Tribunal and submits that the multiplier selected by the Tribunal is on the higher side, and, keeping in view the facts and circumstances of the case, 13 should have been the appropriate multiplier in respondent's-claimant's case.
114. Learned Counsel for the claimants has supported the award of the Tribunal, saying that the Tribunal had not committed any error in awarding compensation which was just compensation in view of the facts and circumstances of the case.
115. I have considered the submissions of learned Counsel for the parties. Law regarding adopting of multiplier method for assessment of compensation in cases arising out of Motor Vehicular accidents, is by now well settled and for assessment of just compensation in terms of Section 168 of the Motor Vehicles Act, multiplier method has been recognized as the accepted method of determining the compensation.
116. In view of the above legal position and the view taken by me while deciding CIMA No. 77/2004, the Tribunal's finding of adopting Unit System method, in making deductions, in the absence of any special case having been either set up or found to have been made out by the Tribunal, cannot be sustained. The finding of monthly dependency recorded by the Tribunal by not following the multiplier system in its entirety is, therefore, unsustainable and is accordingly set aside and the method adopted by the Tribunal in making deduction from the income of the deceased by adopting Unit method is accordingly disapproved.
117. I would accordingly, while adopting multiplier method in its entirety and deducting 1/3rd out of the assessed income of the deceased, assess the monthly dependency of the family on the income of the deceased at Rs. 2000/-.
118. The multiplier selected by the Tribunal cannot, however, be said to be on higher side keeping in view the age of the minor son and daughter of the deceased, who, according to the statement of one of the claimants, had still been studying in schools and the family had no independent income, sufficient for supporting them. The family being dependent on the earnings of the deceased, the multiplier selected by the Tribunal cannot thus be faulted.
119. Multiplying the annual dependency of Rs. 24,000/- with the selected multiplier of 15, the multiplicand would come to Rs. 3,60,000/-. Adding the conventional amount of Rs. 25,000/- on account of loss of estate and consortium, and an amount of Rs. 5000/- for the burial expenses of the deceased, the total compensation payable to the claimants would come to Rs. 3,90,000/.
120. The interest awarded by the Tribunal at the rate of 9%, however, appears to be excessive; it is accordingly, for the reasons given in earlier part of this judgment reduced to 7.5% from the date; of filing of the claim petition till its realization.
121. The findings of the Tribunal on issue No. 2 are accordingly modified to the extent indicated above. The award of compensation made by the Tribunal in favour of the claimants shall thus be for an amount of Rs. 3,90,000/-, along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. Rest of the terms of the award shall remain the same.
122. This appeal is accordingly disposed of with the above modification in the award of the Tribunal in claim petition No. 268.
123. Registrar Judicial shall release the amount deposited by the appellant-Insurance Company in each appeal in favour of the claimant(s) as per the award(s) made in the claim petitions, in terms of this judgment, if not already received, on their proper identification. The remaining amount if any in each case, shall be released in favour of the appellant-company along with interest accrued thereon, by a payees account cheque.