Himachal Pradesh High Court
United India Insurance Company Ltd vs Smt. Munni And Others on 13 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(MVA) No.49 of 2018.
.
Date of decision: 13.08.2018.
United India Insurance Company Ltd. ...Appellant.
Versus
Smt. Munni and others ...Respondents
For the Appellant : Mr. Jagdish Thakur, Advocate.
For the Respondents : Mr.Parmod Negi, Advocate, for
respondent No. 1.
Mr.Malay Kaushal, Advocate, for
respondent No.2.
Mr.Ashwani Kaundal, Advocate, for
respondent No.3.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
No
Whether approved for reporting?1
Tarlok Singh Chauhan, Judge (Oral):
The appellant-Insurance Company has filed the instant appeal against the award passed by learned Motor Accident Claims Tribunal, Solan, District Solan, H.P. Camp at Nalagarh, on 13.09.2017, in Claim Petition No.19-NL/2 of 2014, whereby it has directed the appellant to pay a sum of Rs.6,21,000/- along with interest at the rate of 6% per annum from the date of filing of the petition till its realization to the petitioner-respondent No.1.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 2
2. The facts are not in dispute and the same, therefore, are .
being cursorily noticed.
3. Claimants No.1 and 2 are the wife and son of deceased Shiv Charan, who was a scrap dealer and was hit by Bus No.CH-02- 3065 being driven by Mangat Ram allegedly in a rash and negligent manner at the time when he was in the process of crossing the road.
He sustained multiple grievous injuries and remained under treatment at CHC, Baddi from where though he was referred to Government Medical College and Hospital, Sector 32, Chandigarh, but succumbed to the injuries on the said date. An FIR No.49/2014 was registered against the driver on 22.05.2014, at Police Station, Barotiwala. It was averred that the deceased was 55 years of age and being a scrap dealer was earning more than Rs.20,000/- per month and was the sole earning member of the family. It is on these allegations that the claimant claimed Rs.15,00,000/-as compensation.
4. The owner of the bus and its driver filed joint reply and denied the factum of accident having been taken place and claimed that a false case had been registered against the driver of the bus at Police Station, Barotiwala.
5. The Insurance Company which had been arrayed as respondent No.3 contested the claim petition by filing reply wherein preliminary objections qua maintainability, cause of action, the offending vehicle being driven in violation of mandatory terms and ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 3 conditions of the insurance policy and the provisions of the Motor Vehicles Act, 1988, were raised. On merits, the contents made in .
the pleadings were denied.
6. On 20.02.2015, the learned Tribunal framed the following issues:-
"1. Whether the accident was result of rash and negligent driving of the offending vehicle in question by respondent No.2 and the deceased died in the said accident? OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to compensation. If so, to what amount and from whom? OPP.
3. Whether the driver of the offending vehicle was not holding valid and effective driving licence to drive the vehicle in question at the time of accident? OPR-3.
4. Whether the offending vehicle in question was being plied in violation of terms and conditions of the insurance policy as alleged? OPR-3.
5. Relief."
7. After recording evidence and evaluating the same, the learned Tribunal, awarded a sum of Rs. 6,21,000/- as aforesaid, with interest at the rate of 6% per annum.
8. Feeling aggrieved by the award passed by the learned Tribunal, the Insurance Company has filed the instant appeal, mainly on the ground of quantum as being contrary to the judgment rendered by the Hon'ble Constitution Bench of Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 4I have heard learned counsel for the parties and have gone through the records of the case.
.
9. As regards the award of compensation, the same is now required to be assessed and determined in accordance with the decision of the Hon'ble Constitutional Bench of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
10. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two- Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
11. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:-
"(i) The two-Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 5 strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the .
decision in Reshma Kumari,2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
12. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimant is essentially to be abide by the aforesaid conclusions, more particularly, conclusions ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 6 No.(iii) to (viii) which except for conclusions No.(v) and (vi) are self-
speaking.
.
13. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus:-
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 7 living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependent on the income of the deceased, as in a case where he .
has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-
15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used envisaged adopted in Trilok second in Second in Trilok Chandra as column in Schedule to MV Susamma Chandra clarified in the Table in Act (as seen Thomas Charlie Second from the Schedule to quantum of MV Act compensation) (1) (2) (3) (4) (5) (6) Up to 15 - - - 15 20 years 15 to 20 16 18 18 16 19 years 21 to 25 15 17 18 17 18 years 26 to 30 14 16 17 18 17 years 31 to 35 13 15 16 17 16 years 36 to 40 12 14 15 16 15 years 41 to 45 11 13 14 15 14 years 46 to 50 10 12 13 13 12 years 51 to 55 9 11 11 11 10 years ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 8 56 to 60 8 10 9 8 8 years 61 to 65 6 8 7 5 6 years .
Above to 65 5 5 5 5 5years
14. Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
15. Now, adverting to the award of compensation, the income of the deceased has been taken at Rs.6,000/- per month by the learned Tribunal. However, there was no evidence worth the name led by the claimant to prove that the deceased was in fact earning Rs.6,000/- per month, as alleged.
16. It is not in dispute that the minimum wages at the relevant time were Rs. 5,100/- per month, therefore, the deceased's income shall be deemed to be Rs.5,100/- per month. That apart, no amount appears to have been awarded towards future income which as per Pranay Sethi's case (supra) had to be calculated at 10%.
17. However, then the compensation as awarded under heads (ii) to (iv) is not at all sustainable in view of the ratio of the judgment in Pranay Sethi's case (supra) whereby the amount of Rs.15,000/- towards loss to estate as against Rs.1,00,000/-(loss of love and affection), funeral expenses at the rate of Rs.15,000/- as against Rs.25,000/-and loss of consortium at the rate of Rs.40,000/-
::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 9as against Rs.1,00,000/- could have been awarded in favour of the claimant in view of the ratio of judgment in Pranay Sethi's case .
(supra). Thus, in this manner, the total compensation now under these three heads would work out to be Rs.15,000+Rs.15,000 +40,000/-=Rs.70,000/-.
18. It would be noticed that the learned trial Court has allowed the claim petition with interest at the rate of 6% per annum, which rate, according to the learned counsel for the claimant, ought to have been 9%. Even though, no cross-objections or cross-appeals have been filed by the claimant, however, this Court in exercise of its power under Order 41 Rule 33 of the Code of Civil Procedure can always award the appropriate interest.
19. Order 41 Rule 33 of the Code of Civil Procedure reads as under:-
"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised In favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 10
20. It cannot be disputed that the object of the aforesaid rule is to empower the Appellate Court to do complete justice between .
the parties. This rule gives the Court ample power to make an order appropriate to meet the ends of justice. It enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. The necessary condition for exercising the power under the rule is that the parties to the proceedings are before the Court and the question raised properly arises out of the judgments of the lower Court. In that event, the Appellate Court can consider any objection to any part of the order or decree of the Court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised and each case therefore must depend upon its own facts. Although, the general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily, the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. But in exceptional cases, the rule enables the Appellate Court to pass such decree or order as sought to have been passed even if such decree or order would be in favour of parties who have not filed any appeal.
21. The scope of the rule has repeatedly come up for consideration before the Hon'ble Supreme Court, but I need only ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 11 refer to the judgment rendered in Pralhad and others vs. State of Maharashtra and another (2010) 10 SCC 458 wherein it was .
held:
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass, or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provisions, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modeled on Order 59 Rule 10 (4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.
20. In Banarsi vs. Ram Phal (2003) 9 SCC 606, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate Court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 12 prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when .
such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p. 619, para 15 : AIR para 15 at p. 1997). It has also been held by this Court in Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 SCC (para 21), that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict. 22. In view of the aforesaid interpretation given to Order 41 Rule 33 CPC by this Court, we are of the opinion that the High Court denied the relief to the appellants to which they are entitled in view of the Constitution Bench decision in K.S. Paripoornan vs. State of Kerala, (1994) 5 SCC 593.by taking a rather restricted and narrow view of the scope of Order 41 Rule 33 CPC and also on a misconstruction of the ratio in Paripoornan."
22. Adverting to the rate of interest, earlier the Courts had been granting interest at the rate of 12% for the accidents that had occurred in 80s and 90s. However, in recent cases, the rate of interests have been varying from 7.5% to 9%. The Hon'ble Supreme Court in its two recent decisions in V. Mekala vs. M. Malathi and another 2014 ACJ 1441 and Anjani Singh and others vs. Salauddin and others 2014 ACJ 1565 has awarded interest at the rate of 9% per annum from the date of filing of the petition.
23. Therefore, I am of the considered view that the interest instead of 6% as awarded by the learned Tribunal below, the claimant should be awarded interest at the rate of 9% per annum.
Ordered accordingly.
24. In view of the aforesaid discussion, the appeal filed by the Insurance Company is partly allowed and compensation as ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP 13 awarded by the learned Tribunal in favour of the claimant is reduced in the following manner by drawing a comparative table:-
.
Sr. Award passed by the Tribunal Modified Award by this Court
No.
Details/Particulars Details/Particulars
(i) Age of the deceased: 55 years
(ii) Assumed salary plus future Modified salary plus future prospects:
prospects:Rs.6,000+0=Rs.6,000/- Rs.5,100+Rs.510 (10%)=5610/-
(iii) After deduction of 1/2 : Rs.6,000 (-) After deduction of 1/2 : Rs.5,610 (-)
Rs.3,000= Rs. 3,000/- Rs.2,805/-= Rs. 2,805/-
(iv) Annual: Rs.3,000x12=Rs.36,000/- Annual: Rs.2,805 x 12=Rs.33,660/-
(v) Multiplier of 11: Rs.36000x11= Multiplier of 11 : Rs. 33,660x11=
Rs,3,96,000/- Rs.3,70,260/-
(vi) Plus: Plus
(i)Loss of love and affection: (i) Loss to estate: Rs.15,000/-
Rs.1,00,000/-
(ii) Funeral expenses: Rs.25,000/- (ii) Funeral expenses: Rs.15,000/-
(iii)Loss of consortium: Rs.1,00,000/- (iii) Loss of consortium : Rs.40,000/-
(vii) Total Award: Rs.6,21,000 plus Total Modified Award:
interest @ 6 % per annum Rs.4,40,260/- plus interest @ 9% per annum.
25. Accordingly, the appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan ) 13th August 2018. Judge (krt) ::: Downloaded on - 17/08/2018 22:58:06 :::HCHP