Calcutta High Court (Appellete Side)
Gopal Chandra Dey vs New India Assurance Company Ltd on 8 August, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Partha Sakha Datta
F.M.A. No. 219 of 2008
With
C.A.N. 4075 of 2008
Gopal Chandra Dey
Versus
New India Assurance Company Ltd.
For the Appellant/Petitioner: Mr Santosh Kumar Das,
Mrs Sucharita Paul.
For the Respondent/Opposite Party: Mr Kamal Krishna Das.
Heard on: 11.07.2008.
Judgment on: 8th August, 2008.
Bhaskar Bhattacharya, J.:
This appeal under Section 173 of the Motor Vehicles Act is at the instance of an applicant under Section 163A of the Motor Vehicles Act and is directed against an award dated 13th August, 2007 passed by the Motor Accident Claims Tribunal and Additional District Judge, First Court, Fast Track Court, Sealdah, in M.A.C. Case No.1801 of 2006 thereby disposing of the said application by awarding a sum of Rs.54,500-/ in favour of the appellant along with interest at the rate of 7 percent per annum from the date of filing of the claim-application till the realisation of the awarded amount.
Being dissatisfied, the applicant has come up with the present appeal. It appears from record that the victim, a boy aged 15 years, died of an accident. The offending vehicle was admittedly insured with the New India Assurance Company Limited, the respondent before us. The claimant happens to be the father of the victim. The victim had earlier lost his mother. According to the appellant, the victim was a brilliant student of Class-X studying in the South Point School, Kolkata, and had a bright future. The father, therefore, filed the application as the legal representative praying for compensation to the tune of Rs.1,55,000/- with interest.
The Tribunal below was of the view that the claimant-father being 65 years of age on the date of the accident, the applicable multiplier should be 5 in terms of the Second Schedule of the Motor Vehicles Act and the child being undisputedly a non-earning person, his income should be treated to be the notional income of Rs.15,000/- per annum. Thereafter, by applying the provisions contained in the Second Schedule of the Motor Vehicles Act, the Tribunal came to the conclusion that the appellant was entitled to get Rs.50,000/- plus Rs.4,500/- payable towards his funeral expenditure and the loss of estate. As indicated earlier, the Insurance Company was directed to pay the amount with interest at the rate of 7 percent per annum from the date of filing of the application until the realisation of the amount.
Being dissatisfied, the applicant has come up with the present appeal. Mr Santosh Kumar Das, the learned advocate appearing on behalf of the appellant, strenuously contended before us that his client having applied under Section 163A of the Act, there was no scope of assessing the amount by considering the age of the claimant. Mr Das contends that in a proceeding under Section 163A of the Act, the multiplier should be fixed on the basis of the age of the victim and not according to the age of the claimant.
Mr Das next contends that the present case comes within exceptions as pointed out by this Court in the case of Pato Mondal vs. The New India Assurance Company Limited reported in 2008 (2) WBLR (Cal) page 329, because the claimant has nobody to look after him in his old age and, therefore, some additional compensation should be granted.
Mr Das submits that in the case of Pato Mondal (supra), the Division Bench while relying upon various decisions of the Supreme Court in support of the conclusion that in the case of death of a minor, the age of the claimant is also a relevant factor, totally overlooked the fact that those decisions were passed in the proceedings under Section 166 of the Act. Mr Das contends that his client having filed the application under Section 163A of the Act, the Tribunal below could not deviate from the Second Schedule of the Motor Vehicles Act, which does not approve of taking into consideration the age of the applicant. Mr Das even draws our attention to the form of the application provided by the Motor Vehicles Rules where there is no provision for disclosing the age of the claimant. By referring to the said form, Mr Das contends that the Tribunal below, therefore, could not take into consideration the age of the claimant if the form does not compel the claimant to disclose his age. He, thus, prays for modification of the award based on the age of the victim.
Mr K.K. Das, the learned advocate appearing on behalf of the Insurance Company, on the other hand, has relied upon two decisions of the Supreme Court, one, in the case of Ramesh Singh & Anr. vs. Satbir Singh & Another reported in 2008 AIR SCW 1238 and the other, in the case of Bangalore Metropolitan Transport Corporation vs. Sarojamma & Anr. reported in (2008) 5 SCC 142, in support of his contention that even in a proceeding under Section 163A of the Act, in case of death of a minor, the Supreme Court has assessed the amount not on the basis of the age of the minor victim but based on the age of the claimant. He, therefore, prays for maintaining the award passed by the learned Tribunal.
Therefore, the first question that arises for determination in this appeal is whether in a proceeding under Section 163A of the Act, the Tribunal was entitled to rely upon the age of the claimant for finding out the multiplier.
After hearing the learned counsel for the parties and after going through the provision contained in Section 163A of the Act, we find that the legislature by way of amendment in the year 1994 introduced the said provision notwithstanding anything contained in any other law for the time being in force in order to give immediate relief to the comparatively weaker section of the people where the annual income of the victim was less than Rupees forty thousand. In those cases, even the negligence of the offending vehicle is not required to be proved. However, if a claimant avails of the said provision, after the disposal of the said proceedings, he cannot start afresh under Section 166 of the Act in expectation of any additional compensation. (See: Deepal Girish Bhai Soni and others vs. United India Insurance Company Ltd. reported in 2004(2) T.A.C. 289(SC)).
It is true that the provisions of Section 163A of the Act, as it stands, do not permit, taking into consideration the age of the claimant, while assessing the amount of compensation in such a proceeding but we cannot lose sight of the provisions contained in Article 141 of the Constitution declaring that the law laid down by the Supreme Court would be the law of the land binding upon all. Once the Supreme Court specifically lays down that in case of a bachelor died of an accident, while assessing compensation by way of the multiplier method, the age of the claimant is also to be considered, such decision is binding upon all the Courts and the Tribunals in this country. Therefore, the decisions of the Apex Court relied upon by Mr K.K. Das, the learned counsel appearing on behalf of the Insurance Company, applying the aforesaid principles to the proceedings under Section 163A of the Act are binding upon us as precedent.
Mr S.K. Das, the learned advocate for the appellant, as a last resort, submitted before us that those two decisions cited by Mr K.K. Das should be ignored as those were passed by totally overlooking the mandatory provisions of the Statute and thus, cannot be a binding precedent. In support of such contention, he relied upon the decision of the Apex Court in the case of N. Bhargavan Pillai vs. State of Kerala reported in AIR 2004 SC 2317.
In the case of N. Bhargavan Pillai vs. State of Kerala (supra), a Bench of the Supreme Court refused to follow an earlier decision of another Bench in the case of Bore Gowda vs. State of Karnataka reported in 2000(10) SCC 260 on the ground the said decision did not even indicate that Section 18 of the Probation Act was taken note of and in view of the specific statutory bar, the view, if any, expressed without analysing the statutory provision could not be treated as a binding precedent and at the most, was to be considered as having been rendered per incuriam. In our opinion, there is no scope of a counsel to contend before a High Court that it should ignore the decision of a Supreme Court on the ground that the relevant provisions of a Statute were not brought to the notice of that Court. (See: Ballabhdas Mathurdas Lakhani and others vs. Municipal Committee, Malkapur reported in AIR 1970 SC 1002, the last sentence of paragraph 4 at page 1003). In a recent decision of the Apex Court in the case of Director of Settlements, A. P. and others, vs. M. R. Apparao and another reported in AIR 2002 SC 1598, a Bench consisting of three Judges of the Supreme Court made the following observations, which, in our opinion, would be the answer to the contention of Mr Das:
"The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (See AIR 1970 SC 1002 and AIR 1973 SC 794). When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984 (2) SCC 402 and 1984 (2) SCC 324)."
We, therefore, find no substance even in the last submission of Mr Das. The next question is whether the appellant is entitled to get additional compensation having regard to the fact that there is no person to look after him in his old age.
In our view, the appellant having approached the Court under Section 163A of the Act there is no scope of considering such aspect. As pointed out in the case of Pato Mondal (supra), the special features as mentioned in paragraph 31 of the said judgement could be taken into consideration only in a proceeding under Section 166 of the Act where the applicant had ventured to take the burden of proving the fact that due to rash and negligent driving of the offending vehicle the victim suffered and such position has been specifically indicated in paragraph 32 of the said judgement.
All the points taken by the learned counsel for the appellant having failed, we find no merit in this appeal and the same is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Partha Sakha Datta, J.)