Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Jayanti Barik & Anr on 11 September, 2018
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01 11.09.2018
PG
C.A.N. 3600 of 2017
with
F.M.A. 3251 of 2013
National Insurance Company Limited
Vs.
Jayanti Barik & Anr.
Mr. Arabinda Kundu ......for the appellant-
insurer
Mr. Jayanta Kr. Mondal....for the claimant-
respondent no.1-
1. This is an appeal from an award dated November 27, 2011 passed by the Motor Accident Claims Tribunal, 1st Court, Hooghly in M.A.C. Case No. 169 of 2011, registered on an application under section 163-A of the Motor Vehicles Act, 1988 (hereafter the 'Act').
2. The claim was made in respect of the death of the son of the claimant [respondent no. 1 before us], who was below 15 years as on the date of accident, on the principle of 'no fault liability' under section 163-A of the Act. After considering the evidence and the submissions made, the tribunal was pleased to award compensation in the following terms:
"...........In view of the particular facts and circumstances of the instant case where the parents have lost their minor son who have pursuing studies I find it proper to allow a sum of Rs. 50,000/- as non pecuniary damage. The petitioner is also allowed a sum of Rs. 2000/- as funeral expenses and thus the total amount of compensation payable in favour of the petitioner no.1 by the O.P./insurance company is Rs. 2,02,000/-. Over and above the said amount the O.P./insurance company is allow liable to pay interest @ Rs. 4% per annum starting from the date of filing of the instant case till the date of actual payment.......".
3. The appeal has been carried before us for the sole reason enumerated in ground no. V of the memorandum of appeal that the tribunal erred in law in awarding a sum of Rs. 50,000/- as non- pecuniary damage.
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4. Mr. Kundu, learned advocate appearing for the appellant emphasised that this was under the general classification of compensation for loss of expectancy of life of the said deceased below the age of 15 years.
5. Mr. Mondal, learned advocate appearing on behalf of the claimant strenuously contended that even though it might be counter-intuitive, the Hon'ble Supreme Court has spoken loudly in several cases that even in applications under section 163-A aforesaid, such a component of compensation can be and in fact ought to be awarded. In this connection, he has relied upon the judgment in the case of R.K. Malik & Anr. vs. Kiran Pal & Ors. : 2009 (3) T.A.C. 1(S.C.). After relying upon the discussions, which find place in paragraphs 15 to 31, he has relied upon the ratio at paragraph 32 that claim with regard to future prospect should have been addressed by the tribunal. According to him, while considering such claims, the various aspects which are to be considered by tribunal at paragraph 32 also forms part of the ratio.
6. Mr. Kundu on the other hand has drawn our attention to a judgment reported in (2011) 14 SCC 639 : Ranjana Prakash vs. Divisional Manager, particularly paragraph 8 of the report aforesaid, that the High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation. In fact, he submits that it is a general principle of law that in his appeal, without there being a cross- objection or a cross appeal, he will either succeed in his appeal or lose. Any benefit, which is given to the respondent can only be consequential and not independent.
7. That apart, he has relied upon a judgment of Deepal Girishbhai Soni vs. United India Insurance Company Limited : (2004) 5 SCC 385, particularly paragraph 48 wherein it has been held by Their 3 Lordships that by reason of section 163-A, the compensation is required to be determined on the basis of a structured formula. It is submitted by him that the judgment in the case of R.K. Malik (supra) does not consider this prior judgment on a reference by a larger Bench and, as such, the same cannot be relied upon to derogate from the principles of law laid down in Deepal Girishbhai Soni (supra).
8. While finding force in such submissions, we hold that the amount of Rs. 50,000/- is not a component of 'no fault liability' compensation under section 163-A aforesaid and, therefore, the learned tribunal could not have awarded the amount of Rs. 50,000/- for non-pecuniary damages.
9. Unfortunately though for Mr. Kundu, in our ultimate decision, the amount of compensation which the claimant is ultimately entitled, has to be determined having regard to the law laid down in the decisions in Reshma Kumari & Ors. vs. Madan Mohan : (2013) 9 SCC 65 and Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr : (2009) 6 SCC 121.
10. In Reshma Kumari (supra), the Supreme Court held as follows:
"43.2 In cases where the age of the deceased is upto 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in column (C) (6) of the table in Sarla Verma should be followed."
11. In paragraph 40 of the decision in Sarla Verma (supra), we find a table prepared upon noticing several decisions and the header of column (b) thereof, reads as follows:
" Multiplier actually used in Second Schedule to the M.V. Act (as seen from the quantum of compensation)".
We find therefrom that the multiplier for a victim of a road accident who was aged below 15 years, would be 20.
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12. We, accordingly, re-determine compensation payable to the claimant in the manner as follows:
Sl. Heads Calculation
No.
(i) Notional yearly Income Rs. 15,000/-
(ii) Less 1/3rd on account of Rs. 15,000 x 1/3
personal and living =Rs. 5,000
expenses of the victim =Rs. 15,000-5000
=Rs. 10,000/-
(iii) Compensation after Rs. 10,000 x 20
multiplier of 20 is applied =Rs. 2,00,000/-
(iv) Loss of Estate Rs. 2,000/-
(v) Funeral Expenses Rs. 2,500/-
Total Compensation awardable Rs. 2,04,500/-
13. In the absence of any cross-objection or cross appeal, the claimant would not be entitled to anything more than Rs. 2,02,000/-.
14. Since the compensation awarded by the tribunal has been secured by the appellant before the Registrar General of this Court without interest, we grant liberty to the claimant to approach the Registrar General for release of such sum, who shall release the same in her favour forthwith in accordance with law.
15. Insofar as the interest component is concerned, the appellant is directed to credit the same in the bank account of the claimant by electronic fund transfer within a month from date of receipt of a certified copy of this judgment and order. To facilitate compliance of this order, we direct the claimant-respondent no.1 to furnish to the appellant, within a week from date, the particulars of the bank account in which such sum is to be credited.
16. In the result, the appeal stands dismissed.
17. In view of dismissal of the appeal, nothing survives for decision in the application (C.A.N. 3600 of 2017) and the same too stands dismissed.
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18. There shall be no order as to costs.
19. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
(PROTIK PRAKASH BANERJEE, J.) (DIPANKAR DATTA, J.)