Bombay High Court
The Oriental Insurance Company Ltd. ... vs Ravindra S/O Ananda Jadhav And Others on 29 November, 2019
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment 1 28FA1298.17 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
First Appeal No. 1298/2017
The Oriental Insurance Company Ltd.
Bansilal Chambers, Survarna Nagar,
Buldana, Dist. Buldana.
Nagpur Office:- Through its 'Claims
T.P. Hub', 15 A. D. Complex, Mount
road, Extension, Sadar, Nagpur-01.
.... APPELLANT
(Ori. R. No. 2)
(On R.A.)
// VERSUS //
1. Shri Ravindra S/o Ananda Jadhav,
Age 45 years, Occ. Labour,
2. Sou. Nanda W/o Ravindra Jadhav,
Age 40 years, Occ. Education, (Orig. Petitioners)
3. Nitin S/o Ravindra Jadhav,
Age 24 years, Occ. Education,
All R/o. Hatedi, Bk., Tq. Buldana,
Dist. Buldana.
4. Shivaji Daulat Jadhav,
Age Major, Occ. Business,
R/o. Hatedi Bk., Tq. Chikhli,
Dist. Buldana. (Ori. R.No.1)
Owner of vehicle
.... RESPONDENT
(On R.A.)
_________________________________________________________________
Shri L. Limaye, Advocate for applicant.
Shri A. J. Thakkar, Advocate for respondent Nos. 1 to 3
Shri S. Bhalerao, Advocate for respondent No. 4.
___________________________________________________________________
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Judgment 2 28FA1298.17 .odt
CORAM: VINAY JOSHI, J.
DATE OF RESERVING THE JUDGMENT :- 14.11.2019
DATE OF PRONOUCING THE JUDGMENT:- 29.11.2019
JUDGMENT
Heard finally with consent of both sides. This appeal is directed by Insurer against judgment and award passed by the Member, Motor Accident Claim Tribunal, Buldana in M.A.C.P. No. 61/2011, where the Tribunal awarded compensation of Rs. 6,87,000/- with interest thereon @ 9% per annum from the date of filing of the claim petition.
2. The facts leading to institute this appeal are that on 13.11.2010, deceased Sachin was returning from Shegaon by Ape vehicle bearing registration No. MH-28/H-3502. The said Ape vehicle was dashed by one unknown vehicle. In said accident, Sachin sustained grievous bodily injury to which he succumbed on the spot. The concerned Police registered crime against driver of unknown vehicle. The original claimant chose to approach the Tribunal to claim compensation on structural formula basis in terms of Section 163-A of the Motor Vehicles Act, 1988 (for short 'the M. V. Act'). After considering the evidence placed on record, the Tribunal awarded above said compensation.
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Judgment 3 28FA1298.17 .odt
3. The appellant - Insurer challenged the impugned judgment mainly on three counts. The first challenge is about addition of 50% amount towards future prospects, secondly deduction of 1/3 rd amount of income towards living and personal expenses and lastly the amount awarded by the Tribunal towards general damages. According to appellant, the claimants have approached to the Tribunal under special provisions of grant of compensation under Section 163-A of the M. V. Act which is based on structural formula, hence they are not entitled for future prospects as well as general damages other than what has been specified in Second Schedule. Likewise, it is urged that though the deceased was bachelor, the Tribunal erred in deducting 1/3rd amount instead of 1/2 amount towards living and personal expenses of deceased. On the other hand, respondents/claimants have supported the judgment of the trial Court by citing some decisions.
4. The first objection is about addition on account of future prospects. It is urged that since the petition is under Section 163-A of the M.V. Act, claimants are not entitled for said addition, but the entitlement is only as per Second Schedule. In this regard, the appellant relied on the decision of this Court in case of Late Suman Vihswanath Chavan & ors. Vs. The Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon decided on 29.10.2018 by this Court (Aurangabad Bench) . Besides that, on the same points, the appellant relied on the judgment delivered by different High Court in cases of (1) Cholamandalam MS General Insurance ::: Uploaded on - 29/11/2019 ::: Downloaded on - 30/11/2019 04:32:31 ::: Judgment 4 28FA1298.17 .odt Co. Ltd. Vs. Ankit Kumar and others, decided on 30.01.2019 by Punjab- Haryana High Court, (2) United India Insurance Co. Ltd. Vs. R. Shanthy, decided on 04.02.2019 by the Madras High Court, (3) the Oriental Insurance Co. Ltd. Vs. Sukhveer Kaur and others, decided on 10.05.2019 by the Punjab and Haryana High Court, at Chandigarh, (4) National Insurance Co. Ltd. Vs. Shooni and others, decided on 30.04.2019 by Punjab and Haryana High Court, at Chandigarh and (5) HDFC Ergo General Insurance Co. Vs. Panki Devi, decided on 30.05.2019 by Rajasthan High Court at Jodhpur . In these cases, the different High Courts equally refused to make addition on account of future prospects in the petition under Section 163-A of the M. V. Act.
5. On the other hand, the claimants supported the judgment of the trial Court by relying on the judgment of Chhattisgarh High Court in case of Branch Manager, Cholamandalam MS General Insurance Co. Ltd.Vs. Sadhuram Yadav and others, 2019 ACJ 1788 . In the said case, it is observed that Second Schedule under Section 163-A of the M. V. Act only prescribes that the annual income of the deceased shall not be more than 40,000/- but, it does not limit in computing the compensation under future prospects.
6. Particularly, I have gone through the judgment of this Court in above referred case of Late Suman Vishwanth Chavan. In said case, the similar question regarding grant of future prospects and compensation under conventional head was considered. In that regard, this Court posed a specific question to be answered in para 10 as follows:-
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Judgment 5 28FA1298.17 .odt "Whether in the petitions filed under Section 163-A of the M. V. Act, the ration or law laid down by the Apex Court in "Smt Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr." [2009(5) Mh. L. J. 775], "National Insurance Company Ltd. Vs. Pranay Sethi and others" (supra), or "Reshma Kumari vs Madan Mohan"
[2018(3) Mh.L.J.70] is applicable".
7. This Court after considering both pronouncements of Hon'ble Apex Court categorically held that when the claim is under Section 163-A of the M. V. Act, the determination should only be on structural formula basis. There can be no addition towards loss of future prospects. Besides, it is observed that addition on account of conventional heads should also be on the structural formula basis i.e. as per Second Schedule of Section 163-A of the M. V. Act.
8. Undoubtedly, principles relating to determination of liability and quantum of compensation are different for claims under Section 163-A of the M. V. Act and claim under Section 166 of the M.V. Act. It is the choice of the claimants to seek compensation either on structural formula basis as provided under Section 163-A of the M. V. Act or make an application under Section 166 of the M. V. Act. If claimants opt under Section 163-A, then they are not required to plead or establish that the death or permanent disablement was due to any wrongful act or neglect or default. Though the ::: Uploaded on - 29/11/2019 ::: Downloaded on - 30/11/2019 04:32:31 ::: Judgment 6 28FA1298.17 .odt special provisions of Section 163-A of the M. V. Act provides immunity in proving negligence however, it has its inbuilt mechanism to grant compensation strictly on the basis of the Second Schedule provided to the Section itself. Section 163-A of the M. V. Act begins with non-obstance clause to the effect that it shall override other provisions of the Act. Sub-clause (1) of Section 163-A of the M. V. Act provides that liability to pay the compensation due to vehicular accident is as indicated in the Second Schedule. This leaves no scope to interprate differently since the special provision speak about grant of compensation as per Second Schedule. This Court in above referred case of Late Suman Vishwanth Chavan took a resume of Supreme Court cases and ultimately held that in claims under Section 163-A of the M. V. Act, the claimants are not entitled for addition of income on account of future prospects. There is no reason to take different view since by choice, claimant came under Section 163-A of the M. V. Act which has its own mechanism to award sum only on structural formula basis. Therefore, addition made by the Tribunal on account of future prospects needs to be corrected.
9. As regards to addition on account of conventional heads, the learned Tribunal made addition of Rs. 50,000/- toward loss of estate and Rs. 25,000/- on account of funeral expenses. As noted above, one has to adhere to the structural formula as provided in Second Schedule. Permissible addition would be as per Clause (3) of Second Schedule which is Rs. 2000/- ::: Uploaded on - 29/11/2019 ::: Downloaded on - 30/11/2019 04:32:31 :::
Judgment 7 28FA1298.17 .odt towards funeral expenses, Rs. 5000/- on loss of consortium and Rs. 2500/- towards loss of estate. The Tribunal cannot deviate from structural formula therefore, the additions made under of these head needs to be corrected.
10. The last objection of the Insurer is about deduction on account of living and personal expenses of deceased. The Tribunal has deducted 1/3rd amount towards living and personal expenses of the deceased. It is argued by Insurer that deceased being bachelor, in view of decision of Apex Court in case of Smt. Sarla Verma (referred supra), there should be deduction of 50% towards living and personal expenses. In-fact, decision of Sarla Verma was relating to claim petition under Section 166 of the M. V. Act. Herein the claim is under Section 163-A which pertains to the grant of compensation as per Second Schedule. The note below Clause (1) of Second Schedule specifically provides that there shall be deduction by 1/3 rd amount towards living and personal expenses of deceased. The deceased may be bachelor, but when Tribunal goes as per structural formula basis, it should apply formula as it stands. The Tribunal has rightly deducted 1/3rd amount towards living and personal expenses of deceased. Notably while arguing other points, insurer insisted to apply structural formula, but this time for its own benefit seeking deviation from formula which is not approvable.
The object of Section 163-A of the M. V. Act is to pay
compensation without there being any long drawn litigation on
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Judgment 8 28FA1298.17 .odt
predetermined formula which is known as structural formula. 11 The above discussion leads to hold that petitioners are not entitled for addition on account of future prospect. The entitlement under non-pecuniary heads shall be strictly as per Second Schedule. Likewise, the deduction on account of living and personal expenses shall be 1/3rd as per Second Schedule since the claim is under Section 163-A of the M. V. Act.
12. Therefore, the claimants are entitled for following sums under different heads:-
Loss of dependency : 4,08,000/-
Loss of consortium : 5,000/-
Loss of estate : 2,500/-
Funeral expenses : 2,000/-
-------------------------
Total 4,17,500/-
--------------------------
13. In the result, this Court holds that the responds/claimants are entitled for compensation of Rs. 4,17,500/- with interest as per order of Tribunal. It flows that the appeal deserves to be partly allowed in above terms. The claimants are entitled for total compensation of Rs. 4,17,500/- with interest as awarded by the Tribunal. Resultantly, the impugned judgment and award is modified to that extent by reducing the quantum of compensation. Appeal stand disposed of in above terms. No order as to costs.
JUDGE Gohane.
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