Sikkim High Court
Branch Manager, National Insurance Co. ... vs Krishna Bdr. Chettri And Ors on 5 June, 2014
Author: S. P. Wangdi
Bench: S. P. Wangdi
IN THE HIGH COURT OF SIKKIM : GANGTOK
( Civil Appellate Jurisdiction )
J U D G M E N T ( ORAL )
SB M.A.C. APPEAL No.05 of 2014 The Branch Manager, National Insurance Co. Ltd., Opp. Tourism Department, 31-A National Highway, P.O. & P.S. Gangtok, East Sikkim. Appellant Versus
1. Shri Krishna Bdr. Chettri.
S/o Late Tilak Bahadur Chettri, Aged about 48 years.
2. Smt. Maya Chettri, W/o Shri Krishna Bahadur Chettri, Aged about 44 years.
3. Ms.Tara Chettri, D/o Shri Krishna Bahadur Chettri, Aged about 24 years.
Respondents/Claimants
4. Shri Lall Bahadur Bista, S/o Shri D. Bista, R/o Chuja Busty, P.O.Sangkhola, P.S. Singtam, East Sikkim.
(Owner of the Vehicle SK-04/8581 Jeep) Respondent/Owner FOR THE APPELLANT : MR.THUPDEN G. BHUTIA, ADVOCATE FOR THE RESPONDENT : MR. AJAY RATHI WITH NO. 1, 2 & 3. MS.SUSHMA PRADHAN, MR. RAHUL RATHI AND MS. PEMA WANGMU BHUTIA, ADVOCATES NONE FOR RESPONDENT NO.4.
2M.A.C. APPEAL No.05 of 2014 Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others CORAM The Hon'ble Mr. Justice S. P. Wangdi, Judge DATE OF JUDGMENT : 05.06.2014 Wangdi,J.
The Appellant, Branch Manager, National Insurance Company Limited, has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, seeking to assail the impugned judgment and award dated 26.08.2013 passed by the Learned Motor Accident Claims Tribunal, East and North Sikkim at Gangtok, in M.A.C.T. Case No.28 of 2011, whereby the Respondents/Claimants were awarded death compensation of Rs.8,32,000.00 (Rupees eight lakhs thirty two thousand) only with interest @ 10% per annum effective from 18.01.2011, which is the date of filing of the claim petition.
2. The only grievance expressed against the impugned judgment is with regard to the finding on issue no.3 pertaining to monthly income of the deceased which had been arrived at Rs.4,500/- on the ground that at the time of his death he was a student aged 15 years.
3M.A.C. APPEAL No.05 of 2014
Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others
3. Before we proceed further, it may be noted that Mr. Thupden G. Bhutia, learned Counsel for the Appellant Insurance Company, fairly conceded that the Appellant having failed to appear during the trial was proceeded ex parte resulting in the impugned judgment also being delivered ex parte against them. The learned Counsel submits that the monthly income fixed by the Learned Claims Tribunal at the rate of Rs.4,500/- is much on the higher side and ought to have adopted the notional income provided in the second schedule to the Motor Vehicles Act, 1988. In order to justify this submission, it is stated that the deceased was only a child of 15 years and was a non- earning student. Reliance was placed on the decision in R. K. Mallik & Ors. vs. Kiran Pal & Ors. : AIR 2009 SC 2506 in support of his contention.
4. Mr. Ajay Rathi, learned Counsel appearing for the Respondents, on the other hand, submits that there is no error in the learned Motor Accident Claims Tribunal in having arrived at the amount awarded to the Respondents/Claimants in view of the fact that the Claims Tribunal in passing the award had followed the principle enunciated by this Court in New India Assurance Co. Ltd. vs. Nakul Gurung & Ors. : 2011 (3) 4 M.A.C. APPEAL No.05 of 2014 Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others T.A.C. 707 (Sikkim) in which the facts and circumstances under consideration was similar to the one before us. In that case it had been held by this Court that the Claims Tribunal had been vested with a discretion to pass just and reasonable compensation under Section 168 of the Motor Vehicles Act, 1988 and while arriving at such compensation it ought to take a liberal view considering that the claim was being preferred under a benevolent piece of legislation. It is further submitted that if it is possible under the law to grant a higher compensation than that provided under the second schedule to the Motor Vehicles Act, 1988 in a proceeding under Section 166, the Courts ought to adopt the one which is more beneficial to the claimants.
5. Having considered the rival submissions made on behalf of the parties, I am of the considered view that there is no merit in the Appeal filed by the Appellant. The learned Claims Tribunal appears to have arrived at the figure of Rs.4,500/- as the monthly income of the deceased on the basis of minimum wages that would have been earned by the deceased. The judgment in Nakul Gurung's Case (supra) was rendered taking the minimum wages prevalent at that time and the rates prescribed therein was followed as a reasonable basis 5 M.A.C. APPEAL No.05 of 2014 Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others to ensure that just and reasonable compensation was awarded.
6. The question is, whether the same principle can be applied in the present case. The answer in my view would clearly be in the affirmative. We may reproduce paragraph 20 of the judgment in Nakul Gurung's Case (supra) which reads as follows : -
"20. Insofar as the feeble plea of the victim being a non-earning member entitling the claimants compensation of Rs.15,000/- only is concerned, it is to be borne in mind that the claim is made under Section 166 of the Motor Vehicles Act, 1988 and by virtue of Section 168, the Tribunal is vested with the discretion to award just and reasonable compensation against such claim. It is not bound by the Second Schedule to the Act which may, however, be considered as a guideline while determining the notional income of the deceased. It is a well settled principle of law that in applying a law like the present one which is a piece of social legislation, the Courts shall construe the provisions liberally and whenever in a given situation relief may be given in exercise of its discretion, it shall give the optimum possible under the law. In the present case, the claim being under Section 166 of Motor Vehicles Act, the Court has the choice to apply the Second Schedule as a guideline for computing the compensation and that the Schedule leaves it upon the Court to adopt either of the two methods provided therein, i.e., either the multiplier system in Clause 1 or the fixed compensation or under Clause 6 of the Second Schedule, it shall adopt the one which is more beneficial to the claimants. This appears to have been done in the present case by applying more beneficial 6 M.A.C. APPEAL No.05 of 2014 Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others multiplier in Clause 1. Therefore, the plea stands rejected as untenable."
7. The above principle, in my view, would also apply in the present case. Rs. 150/- being the daily wage likely to have earned by the deceased appears to be on the lower side considering the latest rates of labour wages prescribed under Notification No.16/DL dated 6.4.2013 wherein under Table 1 for an unskilled labourer it has been prescribed at Rs.200/- per day.
8. Having regard to the facts and circumstances, and in view of what have been stated hereinabove, the Appeal stands dismissed.
9. No order as to costs.
10. The Appellant Insurance Company shall comply with the award passed by the learned Claims Tribunal as stipulated in paragraph 16 of the impugned judgment. It is made clear that the amount awarded shall be paid not later than 30 days from the date of this judgment after deducting the amount already deposited in equal shares to all the claimants under 7 M.A.C. APPEAL No.05 of 2014 Branch Manager, National Insurance Company Ltd.
Vs. Krishna Bahadur Chettri & Others account payee cheques drawn in their individual names.
11. Compliance report of this order shall be submitted by the Insurance Company to the learned Claims Tribunal on or before 04.07.2014.
12. A copy of this judgment along with the records of the Court of the learned Motor Accident Claims Tribunal, East and North Sikkim at Gangtok be transmitted forthwith to ensure its compliance.
Sd/-
( S. P. Wangdi ) Judge 05.06.2014