Allahabad High Court
Ayodhya Prasad vs Hari Saran @ Jabbar And Others on 6 August, 2010
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
[1]
High Court of Judicature at Allahabad Lucknow Bench Lucknow
*******
[Reserved]
A.F.R.
Court No. - 27
1. Case :- FIRST APPEAL FROM ORDER No. - 508 of 2001
Appellant :- Harisaran @ Jhabhar And Another
Respondent :- The New India Assurance Company Ltd. And Another
Appellant Counsel :- R.P.Singh,V.K.Pandey
Respondent Counsel :- Anand Mohan
AND
2. Case :- FIRST APPEAL FROM ORDER No. - 479 of 2001
Appellant :- Ayodhya Prasad
Respondent :- Hari Saran @ Jabbar And Others
Appellant Counsel :- V.K.Pandey
Respondent Counsel :- R.P. Singh,J.N. Mishra
Hon'ble Devi Prasad Singh,J.
Hon'ble S.C. Chaurasia,J.
[Delivered by Hon'ble Devi Prasad Singh,J]
1. Both these appeals have been preferred against the impugned Award dated 25.7.2001 passed by the Motor Accident Claims Tribunal/Additional District Judge, Barabanki in Motor Accident Claim Case No.70 of 2000. Hence both the appeals are decided by this present common judgment.
2. F.A.F.O. No.479/2001 has been preferred by the owners against the Motor Accident Claims Petition No.70/2000, decided by Motor Accident Claims Tribunal, Barabanki by the order dated 25.7.2001 whereas, the F.A.F.O. No.508/2001, has been preferred by the claimants for enhancement of compensation.
3. Brief facts of the case are, one Shrawan Kumar aged about six years, son of the claimant, met with an accident with an Ambassador Car No.UMT-289 which was being driven rashly and negligently by its driver and as a result thereof, Shrawan Kumar succumbed to injuries. Claimant approached the Tribunal under Section 166 of Motor Vehicles Act for compensation.
4. The defence taken is that the Ambassador Car No.UMT No.289 which met the accident, was not insured by the respondent New [2] India Assurance Company. Otherwise also, the driver of the car was not possessing valid driving license hence, respondent New India Assurance Company was not liable to pay compensation. At the time of accident the age of the deceased was about 6 years. The Tribunal framed following issue for adjudication:
1. Whether, deceased Shrawan Kumar succumbed to injuries on account of accident occurred with the Ambassador Car No.UMT-289, driven by its driver rashly and negligently on 29.3.2000 at about 5:30 p.m. at Dundpurwa Baki Road, village Ganaura, Police Station Jahangirabad District Barabanki ?
2. Whether the accident occurred because of rash and negligent driving of the Ambassador Car No.UMT- 289 by its driver?
3. Whether, the Ambassador Car No.UMT-289 was insured by the respondent New India Assurance Company, in case, yes, then its effect?
4. Whether, the driver of the Ambassador Car No.UMT-289 was not possessing any valid and effective driving license, in case yes, then its effect?
5. Whether, the claimants are entitled to compensation, in case yes, then what shall be the quantum of compensation?
5. On behalf of the claimants, two witnesses appeared. PW-1 is the claimant himself and one Sushil Kumar as PW-2. Copy of chargesheet, post mortem report and First Information Report was also filed as documentary evidence.
6. On behalf of respondent, no documentary evidence was filed.
However, defendant No.2 Ayodhya Prasad, owner of vehicle himself is DW-1. Copy of driving license, registered certificates were filed at later stage.
7. The Tribunal recorded finding that deceased Shrawan Kumar succumbed to injuries on account of accident occurred with the Ambassador Car No.UMT-289 on 29.3.2000 at about 5:30 p.m. on account of rash and negligent driving of the vehicle. The deceased was survived by his father, mother and sister. PW-2 Sushil Kumar eyewitness, stated that at the time of accident, he was sitting in the nearby shop and noticed that the car was [3] being driven rashly and negligently by its driver resulting in the accident. He was sitting at a distance of about 10-15 paces from the place of occurrence.
8. DW-1 Ayodhya Prasad, owner of the vehicle, admitted that the accident had occurred on 29.3.2000 at about 5:30 p.m., and on account of said accident, the deceased Shrawan Kumar, aged about 6 years, succumbed to injuries. The vehicle was being driven by Jitendra Kumar who happens to be the son of the owner. The Tribunal on the basis of admitted evidence on record, held that the accident had occurred on aforesaid date, time and place because of rash and negligent driving of the vehicle by its driver Jitendra Kumar whereby, Shrawan Kumar succumbed to injuries. However, Tribunal recorded a finding that Jitendra Kumar was not having valid driving licence. The driving license was valid only upto 21.6.1997. Copy of the driving license filed, does not reveal the name of the Licensing Authority and its operative period. The owner has not produced the driver. Hence finding has been recorded that in absence of driving license, there appears to be violation of terms and condition of New India Assurance Policy and accordingly, decided the issue exonerating the respondent New India Assurance Company, from its liability. However, a finding has been recorded that the vehicle was insured with respondent New India Assurance Company. The Tribunal awarded compensation to the tune of Rs.60,000.00 holding the owner of the vehicle to bear the liability.
9. During the pendency of present appeals, an application was moved under Order 41 Rule 27 of Code of Civil Procedure to adduce additional evidence in the case. The application was allowed, vide order dated 16.7.2010 passed by this Court. The possession of the driving license by the driver as pleaded by the owner while moving the application under Order 41 Rule 27 of Code of Civil Procedure, has not been denied by the respondents.
[4]10. Learned counsel for the respondent New India Assurance Company Limited admitted that the driver was having driving license which was issued from R.T.O., Lucknow and was valid upto 23.7.1997 and later on, it was renewed on 24.7.1997 to 23.7.2000 and now, it has been renewed upto 5.8.2010. Copy of Form-54 has been annexed with supplementary affidavit. The factum of renewal of driving license is not disputed. Accordingly, it is obvious that Jitendra Kumar was possessing valid driving license on the date of occurrence. Accordingly, liability of owner to pay compensation shall shift on the respondent New India Assurance Company Limited.
11. Next question comes to quantum of compensation. It has been vehemently argued that being a minor of 6 years of age, the compensation of Rs.60,000.00 is just and proper. It has been vehemently argued by the learned counsel for the respondent New India Assurance Company Limited that under the tortuous liability, the compensation cannot be more than 50,000.00 in view of law settled by Hon'ble Supreme Court. However, for the reasons discussed hereinafter, the submissions made by the respondent counsel, seems to be misconceived.
12. To decide the present controversy, it is necessary to take into account various statutory provisions contained in the Act.
13. Chapter X of the said Act provides for liability without fault in certain cases. Section 140 provides for liability upon the owner of the vehicle to pay compensation on the principle of no- fault. The said provision reads thus:
"140. Liability to pay compensation in certain cases on the principle of no fault. -
(1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.
(2) The amount of compensation which shall be [5] payable under sub-section (1) in respect of the death of any person shall be a fixed sum of fifty thousand rupees and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of twenty-five thousand rupees.
(3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement.
(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force :
Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163-A."
14. Sections 141 and 142 of the said Act read as under:
"141. Provisions as to other right to claim compensation for death or permanent disablement. -
(1) The right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in Section 163-A (such other right hereafter in this section referred to as the right on the principle of fault) to claim compensation in respect thereof under any other provision of this Act or of any other law for the time being in force. (2) A claim for compensation under Section 140 in [6] respect of death or permanent disablement of any person shall be disposed of as expeditiously as possible and where compensation is claimed in respect of such death or permanent disablement under Section 140 and also in pursuance of any right on the principle of fault, the claim for compensation under Section 140 shall be disposed of as aforesaid in the first place.
(3) Notwithstanding anything contained in sub-section (1), where in respect of the death or permanent disablement of any person, the person liable to pay compensation under Section 140 is also liable to pay compensation in accordance with the right on the principle of fault, the person so liable shall pay the first-mentioned compensation and -
(a) if the amount of the first-mentioned compensation is less than the amount of the second-mentioned compensation, he shall be liable to pay (in addition to the first-mentioned compensation) only so much of the second-mentioned compensation as is equal to the amount by which it exceeds the first-mentioned compensation;
(b) if the amount of the first-mentioned compensation is equal to or more than the amount of the second-mentioned compensation, he shall not be liable to pay the second-mentioned compensation.
142. Permanent disablement. -For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:-
(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or
(b) destruction or permanent impairing of the powers of any member or joint; or
(c) permanent disfiguration of the head or face."
15. Section 144 provides for a non-obstante clause.
16. Section 163-A was inserted by Act 54 of 1994 which came into [7] force from 14.11.1994. The said provision has been inserted to provide for a new pre-determined structured formula for payment of compensation to road accident victims on the basis of age/ income of the deceased or the person suffering permanent disablement.
17. Sections 163-A and 163-B read thus:
"163-A. Special provisions as to payment of compensation on structured-formula basis. -
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation. - For the purposes of this sub-section, 'permanent disability' shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
163-B. Option to file claim in certain cases. - Where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both."
18. The second schedule referred to in Section 140 of the Act provides for a structured formula for the purpose of grant of compensation to a third party involved in fatal accident/injury. By reason thereof a multiplier system is introduced pursuant whereto and in furtherance whereof the amount of [8] compensation is required to be calculated having regard to the age of the victim and his annual income. However, in terms of the note appended to the said Schedule the amount of compensation so arrived at in the case of fatal accident, the claims is to be reduced by one-third, in consideration of the expenses which the victim would have incurred towards maintaining himself, had he been alive.
19. Clause (2) of the said Second Schedule provides that the amount of compensation shall not be less than Rs. 50,000/-. It also provides for grant of compensation under several heads, namely, (3) General Damages in case of death, (4). General Damages in case of injuries and disabilities, (5). Disability in non-fatal accidents and (6) notional income for compensation to those who had no income prior to accident. However, the maximum amount which is to be paid under the different heads had also been specified.
20. Chapter XII deals with constitution of claims tribunals, application for compensation, option regarding claims for compensation in certain cases, award of the claims tribunal etc. Sections 166, 167 and 168 read thus:
"166. Application for compensation. -(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so [9] joined, shall be impleaded as respondents to the application.
(2) 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:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) *** (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act.
167. Option regarding claims for compensation in certain cases. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.
168. Award of the Claims Tribunal. -On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such [ 10 ] claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
21. Section 163-A of the Act has been introduced by way of amendment in the year 1994 to provide payment of compensation in motor accident cases in accordance with the Second Schedule by providing structured formula which may be amended by the Central Government from time to time. Section 140 of the Act deals with interim compensation but by inserting Section 163-A, the Parliament intended to provide payment of compensation on the basis of pre-determined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. The power conferred by Section 163-A through amendment of the Act is a deviation from the common law liability under the Law of Torts and is also in derogation of the provisions of the Fatal Accidents Act. Thus, the heirs of the deceased or the victim in terms of the said provisions have been assured by the legislature of speedy and effective remedy which may not be available to the claimants under Section 166 of the Act. Thus, Section 163-A has got overriding effect with regard to payment of compensation on structured formula basis. Sub-section (1) of Section 163-A contains non-obstante clause in terms whereof, the owner of the motor vehicle or the insurer is liable to pay compensation in the event of death or permanent disablement because of accident on the basis of structured formula. Sub-section (2) of Section 163- [ 11 ] A is in pari materia with sub-section (3) of Section 140 of the Act.
22. It may be noted that Section 163-A does not contain any provision identical to sub-section (5) of Section 140 with regard to reduction of an amount of compensation payable under the said section or Section 163-A in case the claimant approaches elsewhere. On the other hand, Section 166 is a broader remedy for a victim of an accident to claim compensation keeping in view the injuries caused. While awarding compensation under Section 166 of the Act, the Tribunal may award compensation keeping in view the provision contained under Section 168 of the Act. While rendering the award of compensation under Section 168 of the Act in pursuance of the proceedings under Section 166 of the Act, the Tribunal has to see justness of the compensation for which the claimant is entitled on specified ground. It is not necessary for the Tribunal to rely upon the structured formula provided in Second Schedule of the Act for payment of higher compensation.
23. Hon'ble Supreme Court in the case of 2004 (2) T.A.C. 289;
Deepal Girish Bhai Soni and others Versus United India Insurance Co. Ltd. Baroda has proceeded to observe as under:
"52. It may be true that Section 163-A provides for an option to a claimant to either go for a claim under Section 140 or Section 163-A of the Act, as the case may be, but the same was inserted 'ex- abundanti cautela' so as to remove any misconception in the mind of the parties to the lis having regard to the fact that both relate to the claim on the basis of no fault liability. Having regard to the fact that Section 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under Section 163-A or Section 166 does not arise. If the submission of the learned Counsel is accepted the same would lead to an incongruity.
53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the legislative intent but it is trite [ 12 ] that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the Court would not travel beyond the same and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered thereby. (See Regional Director, Employees' State Insurance Corporation, Trichur v. Ramanuja Match Industries, A.I.R. 1985 S.C. 278).
57. We, therefore, are of the opinion that remedy for payment of compensation both under Section 163- A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both."
24. Thus, the Hon'ble Supreme Court ruled that power conferred under Section 163-A and 166 are independent to each other as statutorily provided and the claimant does not have got right to pursue both remedy simultaneously.
25. In the case of Deepal Girish Bhai Soni (supra), the Hon'ble Supreme Court further held that the annual income of Rs. 40,000/- provided under the Second Schedule, keeping in view the provision contained under Section 163-A of the Act cannot be treated as cap. The Tribunal has got power to award more compensation in case necessary, keeping in view the facts and circumstances of the case. For convenience, para 67 of the judgment is reproduced as under :-
"67. We, therefore, are of the opinion that Kodala (supra) has correctly been decided. However, we do not agree with the findings in Kodala (supra) that if a person invokes provisions of Section 163-A, the annual income of Rs. 40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act."
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26. The provisions with regard to no fault liability have been provided by the legislature to meet out the contingency where it is found that rash or negligent driving causing death or injury to the person cannot be proved. Whereas in terms of Section 140 of the Act, a statutory liability has been cast upon the owner in case of death or permanent disablement; both under Section 163-A as also Section 166 of the Act, the insurer has been made responsible. The payment of amount in terms of Section 140 of the Act is ad hoc in nature. A claim made thereunder, is in addition to any other claim which may be made under any other law for the time being in force. Section 140 of the Act imposes a liability on the owner of the vehicle to pay compensation where death or permanent disablement of any person has resulted from accident arising out of the use of a motor vehicle and accordingly, a fixed amount may be provided as compensation.
27. Now the question which cropped up for consideration is as to whether while awarding compensation, the structured formula given in the Second Schedule may be relied upon to award compensation by applying multiplier in a case under Section 166 of the Act.
28. Section 168 of the Act provides that while awarding compensation, it shall be incumbent upon the Tribunal to award just and proper compensation. The Tribunal has to ascertain the net income of the deceased available for the support of himself or herself and his dependants, and to deduct therefrom such part of his/her income which the deceased was accustomed to spend upon himself/herself. As regards both self-maintenance and pleasure, the Tribunal has also to ascertain as to what part of his net income , the deceased would have spent for the benefit of his dependants. The number of years of the dependency of dependants as well as the number of years by which the life of [ 14 ] the deceased was cut-short may also be necessary factor for calculating the compensation.
29. While considering the question of just compensation payable in a case, all relevant factors should be kept in mind. Section 168 contemplates for payment of just and fair compensation. It shall include the expectancy of life and family status, the status of dependants and liabilities left over by the deceased, depending upon the facts and circumstances of the case.
30. The case reported in 2002 (3) T.A.C. 378 (S.C.); Supe Dei and others Versus National Insurance Co. Limited and another relates to a situation where the proceeding under Section 166 of the Act has taken place. In Supe Dei and others (Supra), the Hon'ble Supreme Court held that the multiplier under Second Schedule is meant for proceedings under Section 163-A of the Act. The courts may take the multiplier provided under Second Schedule as guide-line to determine the compensation under Section 166 of the Act. The judgment in the case of Supe Dei and others (Supra) has been delivered by the Bench of three Hon'ble Judges of Supreme Court. For convenience, paras 6, 7, 8, and 9 of the judgment are reproduced as under:-
"6. The learned Counsel appearing for the respondent, Insurance Company fairly stated that according to the age of the deceased as found by the Tribunal, the multiplier of 17 is to be applied as provided in the Second Schedule to the Act. It is not disputed that though the Second Schedule to the Act in terms does not apply in the case since the claim is not made under Section 163-A of the Act, it serves as a guideline for the purpose of determination of compensation under Section 166 of the Act.
7. On consideration of the submission made by the learned Counsel for the parties and on perusal of the judgment of the Tribunal and the High Court, we find ample substance in the contention raised by Ms. Suri that no reason has been stated by the Tribunal or the High Court for fixing 15 as the multiplier.
[ 15 ]
8. While considering the question of just compensation payable in a case all relevant factors including the appropriate multiplier are to be kept in mind. The position is well settled that the Second Schedule under Section 163-A to the Act which gives the amount of compensation to be determined for the purpose of claim under the section can be taken as a guideline while determining the compensation under Section 166 of the Act. In that view of the matter, there is no reason why multiplier of 17 should not be taken as the appropriate multiplier in this case.
9. Coming to the question of interest this Court in the case of Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 A.C.J. 428: 1999 (3) T.A.C. 649 (i) (S.C.), observed that 9 percent is the appropriate rate of interest to be awarded and that rate is being applied in motor accident compensation cases."
31. In the case reported in 2005 (1) T.A.C. 2004; Abati Bezbaruah Versus Dy. Director General, Geological Survey of India and another, again Hon'ble Supreme Court ruled that the provision for payment of compensation on the basis of structured formula as provided under the Second Schedule should ordinarily not be deviated while exercising power under Section 168 of the Act and the structured formula as provided under the Second Schedule may be applied by the Courts while granting compensation. The relevant para-11 of the judgment in the case of Abati Bezbaruah (supra) is reproduced as under:-
"11. It is now a well settled principle of law that the 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 determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be restored to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of the each case."
32. In the case reported in 2005 (2) T.A.C. 305 (S.C.); Tamil Nadu State Transport Corporation Ltd Versus S. Rajapriya [ 16 ] and others, the Hon'ble Supreme Court (Bench of two Hon'ble Judges) while interpreting Section 168 of the Act has applied multiplier provided under Second Schedule with regard to the payment of compensation. Hon'ble Supreme Court held that for the purpose of Section 168, the Second Schedule is to serve as a guide line but cannot be said to be ready reckoner. It has also been observed by Hon'ble Supreme Court that the Second Schedule suffers from many defects.
33. Needless to say that cases of Deepal Girish Bhai Soni and others (supra) and Supe Dei and others (Supra) are decided by the Bench of three Hon'ble Judges, the applicability of multiplier provided under Second Schedule for awarding compensation under Section 166 read with Section 168 has been upheld with rider that it should not be applied mechanically but in special case even higher compensation may be awarded keeping in view the facts and circumstances of the case.
34. The case reported in 2006 (1) T.A.C. 1 (S.C.): Managing Director, Tamilnadu State Road Transport Corporation Ltd. Versus K.S. Bindu and others, also relates for grant of compensation under Section 168 of the Act. Though Hon'ble Supreme Court has not approved the multiplier used by the High Court but simultaneously observed that multiplier may be increased. The Hon'ble Supreme Court has held as under, to reproduce relevant portion :-
"18. In both General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and others, 1994 (2) S.C.C. 176:
1994(1) T.A.C. 323 (S.C.) and U.P. State Road Transport Corporation and others v. Trilok Chandra and others, 1996 (4) S.C.C. 362: 1996 (2) T.A.C. 286 (S.C.) the multiplier appears to have been adopted by this Court taking note of the prevalent banking rate of interest.
19. In fact in Trilok Chandra's case (supra), after [ 17 ] reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian Citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age."
35. The aforesaid proposition of law has been reiterated by the Bench of two Hon'ble Judges of Hon'ble Supreme Court in 2007 (1) T.A.C. 795 (S.C.); New India Assurance Company Limited Vs. Smt. Kalpana and others.
36. In the case of Laxmi Devi (supra), the Hon'ble Supreme Court ruled that the multiplier provided under Second Schedule is of year 1994. Much inflation has been taken place and even unskilled labours are paid Rs. 100/- per day. Accordingly, the minimum income even on notional basis should be assessed on the basis of Rs. 3,000/- per month. For convenience, relevant portion of the judgment of Laxmi Devi (supra) is reproduced as under :
"7...........................It was nobody's case that the deceased was not working at all. His wife has entered in the witness box and had asserted that he earned Rs.140/- per day. Even if we ignore the exaggeration, the figure arrived at by the High Court at Rs.100/- per day and Rs.3,000/- per month appears to be correct. However, considering that the claimant would get only 6% interest, we would choose to grant the multiplier of 14 instead of 12. Accordingly, the notional income as applied would be Rs.24,000 X 14 = Rs.3,36,000/- and to this will be added the other compensation like Rs.2,000/- as funeral expenses, Rs. 5000/- for the loss of consortium to the widow and Rs.2,000/- for the loss of estate. The claimants would, therefore, be entitled to a sum of Rs.3,45,000/-. The said sum shall carry the interest at the rate of 6% per annum from the date of claim petition."
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37. A three-judge Bench of Hon'ble Supreme court in the case reported in 1996 (4) S.C.C. 362: U.P. State Road Transport Corporation. v. Trilok Chandra, has taken note of statutory provisions contained in Motor Vehicles Act, 1988 as amended by Amendment Act 54 of 1994. Their lordships noted that though the multiplier given in 2nd Schedule of the Motor Vehicles Act, 1988 suffers from certain anomalies, neither Tribunals, nor Courts can go by the ready reckoner. It can only be used as a guideline. Their lordships accepted the 2nd Schedule and guideline in arriving at a just and fair compensation and also held that courts cannot depend upon exclusively on the age of victim but in an appropriate case, the age of the claimant may also be a decisive factor if the deceased happens to be a bachelor and in no case, the multiplier should exceed 18 years' purchase factor.
38. In view of above, while deciding the case under Section 166 read with Section 168 of the Act, the Tribunal may award compensation taking assistance from the structured formula provided under Second Schedule of the Act. However, it shall always be open for the Tribunal to award higher compensation under Section 166 read with Section 168 of the Act keeping in mind the justness and fairness of the compensation with reasoned order. Even the notional income should not be less than Rs. 3,000/- per month.
39. The compensation awarded by the Tribunal, is under statutory provisions contained in the Motor Vehicles Act. It is not tortuous liability governed by common law for payment of compensation but here the liability to pay compensation is statutory. Whenever liability to pay compensation is to be adjudicated under statute, then relevant statutory provisions should alone, be taken into account to decide the issue with regard to payment of compensation or a dispute.
40. In the case of 2001 (2) TAC page 243: New India Assurance [ 19 ] Company. Vs. Kamla and others, their lordships have not considered the statutory provisions and earlier judgment of larger Bench where it has been held that just and fair compensation should be awarded keeping in view the statutory provisions contained under Section 68 of Motor Vehicles Act. Their lordships have only reduced the compensation without laying down the law and also without taking into account the 2nd Schedule of Motor Vehicles Act.
41. In the case of 2001 8 ACC 197: Lata Vadhwa. Vs. State of Bihar and others, also, their lordships have not held that the provisions contained in 2nd Schedule of Motor Vehicles Act, shall not be applicable in the event of death of minor. Meaning thereby, 2nd Schedule shall cover the filed as guideline whether it is minor or major. The 2nd Schedule specifically deals with the case of minor also providing multiplier as evident at the face of record. Once legislature to their wisdom has provided a guideline in the form of 2nd Schedule, then Court cannot close eyes to such statutory provisions while awarding compensation on the death of minors.
42. In the case reported in 2005 (1) TAC 609 (S.C.): Manju Devi and another. Vs. Musafir Paswan and another), where a boy of 13 years of age, was killed in an accident, their lordships had applied multiplier and awarded compensation to the tune of Rs.2,25,000.00. It shall be appropriate to reproduce relevant para 2 and 3 of the said judgment as under:
"2. In the case of U.P. State Road Trans. Corpn. v.
Trilok Chandra, 1996 A.C.J. 831: 1996 (2) T.A.C. 286 (S.C.), it has been held by this Court that payment being made is just compensation. It has been held that the multiplier method must be accepted method for determining and ensuring payment of just compensation as it is the method which brings uniformity and certainty to awards [ 20 ] made all over the country. In view of this authority, it will have to be held that the award of compensation had to be made by the multiplier method.
3. 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/-."
43. In the case reported in 2008 (2) T.A.C. 818 (Cal.): Smt. Pato Mandal. Vs. New India Assurance Company Limited and another, where a minor boy of 15 years of age, succumbed to injuries in an accident, after dealing with the case of Lata Vadhwa's case (supra), Calcutta High Court observed that even for minor, compensation should be awarded keeping in view the notional income as provided under 2nd Schedule of the Motor Vehicles Act which comes to Rs.1,54,500.00. The Division Bench of Calcutta High Court rightly observed that the case of Lata Wadhwa (supra) relates to death of children out of fire, and is not applicable. To reproduce relevant para-18 and 19 of Smt. Pato Mandal's case (supra) as under:-
"18. In our opinion, the observations of the Apex Court, in the said case of Lata Wadhwa (supra), in connection with the assessment of death of the children out of fire arising out of a function, cannot have any application to a case of death arising out of a motor accident. Such compensation is required to be assessed under the provisions of the Motor Vehicles Act, 1988. The said Act does not provide for different multipliers in case of victims aged up to 15, whereas Shri Chandrachud, in that case, applied different [ 21 ] multipliers inconsistent with the ones mentioned in the Act. Similarly, the grant of compensation at the flat rate of Rs.75,000/- in case of death of a child below 10 years, as assessed by Shri Chandrachud, is not provided in the Act. Nor is there any provision for assessing the contribution of the children aged above 10 to be Rs.12,000/- per annum in the Act as followed by Shri Chandrachud. The Supreme Court, however, held that the figures arrived at by Shri Chandrachud were inadequate and accordingly, enhanced the compensation for the death of a child below the age of 10 to Rs.2 lacs and that of a child above 10 but below 15 to be Rs.4.1 lacs.
19. Therefore, even in the case of Lata Wadhwa (supra), the Apex Court granted more amount of compensation than the minimum amount of Rs.1,54,500/- by treating the notional income of the child to be Rs.15,000/- per annum as provided in the Act."
44. Needless to say that law laid down by a Bench of larger strength, is binding upon subsequent Bench of lesser or co- equal strength as laid down by Hon'ble Supreme Court, in the case reported in AIR 2005 SC 752: Central Board of Dawoodi Bohra Community. Vs. State of Maharashtra. Accordingly, we are in respectful agreement with the judgment of Calcutta High Court in the case of Smt. Pato Mandal (supra).
In the event of conflicting judgment of Hon'ble Supreme Court, the decision which is being supported by larger Bench, based on statutory provisions should be followed.
45. A division bench of this Court in the case reported in 2009 (3) ALJ 276: Ram Ji Sahu and others. Vs. U.P. State Road Transport Corporation and others, after considering the case [ 22 ] of Lata Wadhwa (supra), and other cases, had awarded compensation of Rs.1,54,500.00, taking into account the notional income as per 2nd Schedule along with interest at the rate of 9% per annum.
46. In view of the above, both the appeals are allowed. The impugned Award is modified. The claimants are entitled for compensation to the tune of Rs.1,54,500.00 along with interest at the rate of 9% from the date of filing of application before the Tribunal from the respondent New India Assurance Company Limited. Let the amount deposited in this Court be remitted to Tribunal and Tribunal shall proceed expeditiously to award compensation to the claimants as above.
[Justice S.C. Chaurasia] [ Justice Devi Prasad Singh] Order Date :- August 6 , 2010 Rajneesh)