Andhra HC (Pre-Telangana)
L.K. Kousalyadevi And Anr. vs Commissioner, Municipal Corporation ... on 20 December, 2005
Equivalent citations: 2007ACJ301, 2006(1)ALD597, 2006(1)ALT281
Author: G. Chandraiah
Bench: G. Chandraiah
JUDGMENT G. Chandraiah, J.
1. Heard both the counsel.
2. Not being satisfied with the compensation awarded by III Additional Chief Judge, City Civil Court, Hyderabad in O.P. No. 647/1993 dated 26-7-1999, the claimants preferred this appeal.
3. The brief facts of the case are that on 23-4-1993 at about 9.20 a.m., the deceased Venugopal was proceeding on his scooter bearing No. ABL 4382 to his work place at BDL, Kanchanbagh, Hyderabad and on reaching Dhobighat at Saidabad, one MCH lorry bearing No. ADT 5008 came from behind and hit the scooter and as a result, Venugopal died on the spot. The pillion rider T.V. Satyanarayana Murthy also sustained injuries. It was alleged that accident occurred due to rash and negligent driving of the driver of the lorry. The deceased was working as Junior Technician, drawing Rs. 3,300/- per month in B.D.L. The 2nd respondent is the wife of the deceased and as she was residing separately, the claimants who are the parents and brother of the deceased, alleged that she is not entitled for compensation. With these averments, they claimed an amount of Rs. 6,00,000/- as compensation under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act).
4. The 1st respondent who is the owner, remained ex parte. The 2nd respondent who is wife of the deceased, denied that there is any severance of marital status and stated that she filed O.P. No. 728/1994 before the same Court for compensation and sought for clubbing of both the cases.
5. The 3rd respondent insurer filed counter and denied the averments of the claimants. It was stated that as the wife filed O.P. No. 728/1994 for compensation, the present petition is not maintainable. In the additional counter affidavit filed, it was also alleged that the accident occurred due to negligence of the deceased and as the matter of accident was not reported to the Insurance Company with the collusion of the claimants, the Insurance Company is not liable to pay compensation and accordingly the claim petition was sought to be dismissed.
6. Based on the above pleadings, the Court below framed the following issues:
(1) Whether the accident in question took place on 23-4-1993 at about 9.20 a.m. due to rash and negligent driving of the lorry (MCH) bearing No. ADT 5008, by its driver?
(2) Whether the petitioners are entitled to any compensation for the death of their son in the motor accident? If so, to what amount?
(3) To what relief?
7. In support of the case of claimants, the father and mother of the deceased examined themselves as P.Ws.1 and 2 and an eyewitness was examined as P.W.3. Exs. A-1 to A-8 were got marked. On behalf of the respondents, the 2nd respondent, who is the wife of the deceased was examined as R.W.1 and Xerox copy of policy was marked as Ex.B-1. On behalf of the insurer or the insured, no one was examined.
8. Based on evidence, the Court below held that as there was no decree of divorce and marriage is subsisting, the 2nd respondent is not disqualified to claim any share in the estate of deceased under the Hindu Succession Act. The Court below further held that accident occurred due to rash and negligent driving of driver of the lorry bearing No. ADT 5008. With regard to assessment of compensation, the Court below took the salary certificate of the deceased Ex.A-4 wherein the salary was shown as Rs. 4,536/-. Taking his future prospects, the Tribunal below assessed the income of the deceased at Rs. 5,000/- and after deducting 1 /3rd towards personal expenses, arrived at Rs. 40,000/-per annum as the contribution of the deceased to his family. As the deceased was aged 31 years as per Ex.A-2 post-mortem certificate, the Tribunal took the age of the mother, who is 51 years, and as the accident occurred prior to amendment Act 54 of 1994, considering the multiplier laid down in Bhagwandas v. Mohd. Arif 1987 (2) ALT 137 : 1987 ACJ 1052 (A.P.), applied the multiplier of 7.06 and granted Rs. 2,82,400/- towards the income of the deceased and also granted Rs. 7,500/- towards loss of estate and in all granted Rs. 2,89,900/-. As stated at the threshold, the claimants filed this petition for enhancement.
9. The learned counsel for the claimants submitted that the Court below erred in applying the multiplier under the Bhagwandas case (1 supra) instead of the second schedule to Section 163-A. He stated that second schedule under Section 163-A can be made applicable to petitions under Section 166 of the Act and according to which, the multiplier that is to be applied is 16. In support of his contention, the learned counsel relied on the judgments of the learned single Judges of this Court in National Insurance Co. Ltd. v. Ojili Gopal Reddy and K. Matura Bai v. A. Shiva Nageshwara Rao . He further contended that the deceased was aged 31 years and was working as Junior Technician in BDL and was drawing an amount of Rs. 4,537/- per month and there are chances of his future promotion to higher posts. Therefore, he contended that the Court below ought to have taken consideration his future prospects and granted more compensation. In support of his contention, he relied on the judgment of the Apex Court in Jyoti Kaur v. State of M.P. (sic)
10. On the other hand, the learned counsel appearing for insurance company submitted that the second schedule to Section 163-A is not applicable to the claims made under Section 166 of the Act. In support of her contention, she relied on the Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Mokkala Chandramma (D.B.) and also of the judgment of the learned single Judge of this Court in United India Insurance Co. Ltd. v. Dangugula Bheem Bai . In the alternative, she submitted that the accident occurred on 23-4-1993 i.e., prior to the amendment Act 54 of 1994, through which Section 163-A was inserted with second schedule and as the amendment is prospective, the second schedule cannot be made applicable to the accident, which occurred before the amendment and for the present case, law existing as on the date of accident has to be applied. In support of this contention, she relied on the judgment of the Apex Court in Maitri Koley v. New India Assurance Co. Ltd. .
11. In view of the above rival contentions, the following points would arise for my consideration:
(1) Whether the Schedule-II under Section 163-A can be made applicable to the claim petitions under Section 166 of the Act?
(2) If so, whether the schedule inserted to Section 163-A by Act 54 of 1994 dated 14-11-1994 can be made applicable to accidents occurred prior to the said amendment?
(3) To what relief?
12. In order to consider first issue it is necessary to look into Sections 163-A and 166 of the Act. They are extracted as under for ready reference.
Section 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 authorized insurer shall be laible 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 purpose of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 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.
Section 166: Application for Compensation:
(1) 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 6f the legal representatives of the deceased; or
(d) by any agent duly authorized 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 has 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 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) xx (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.
13. From a reading of Section 163-A it is clear that in case of death or permanent disablement of a person, due to accident arising out of the use of the motor vehicle, even though the claimant/s does not plead or establish that such death or permanent disability was due to any wrongful act or neglect or default of the owner of the vehicle, which is insured, still, he is liable to pay compensation. For payment of compensation in case of fatal accidents, second schedule is provided to this section for applying the multiplier, based on age of deceased. This provision was inserted by Amendment Act 54 of 1994 on 14-11-1994.
14. From a reading of Section 166 it is clear that it provides by whom the claim petitions can be made for the accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party, as specified under Section 165(1). Section 166 also specifies the jurisdiction where the claim petitions can to be filed. Further Section 168 contemplates passing of the award by the Claims Tribunal on receipt of claim petitions under Section 166, after adjudication. At this juncture it is to be seen that unlike second schedule provided to Section 163-A, no such schedule is provided to Section 166. Therefore, the Tribunal after adjudication under Section 168 of the Act, can determine the just compensation.
15. As already noted above, Section 163-A with second schedule was inserted by Act 54 of 1994 on 14-11-1994 and prior to the said amendment, this Court used to follow the judgment of Hon'ble Sri Justice M. Jagannadha Rao (as he then was) in Bhagwan Das case (1 supra) wherein His Lordship gave a schedule for application of multiplier based on age and other factors. Subsequently, the amendment has been made to the Act and second schedule was provided only to Section 163-A. Therefore, the question arises whether the said schedule can be made applicable to the applications made under Section 166?
16. In my considered view, as no specific schedule is provided for calculation of compensation by applying multiplier method, I am of the view that the said schedule can be taken as a guiding principle for calculation of compensation by applying multiplier method. In fact a Division Bench of the Apex Court in Oriental Insurance Co. Ltd. v. Hansrajbhai 2001 (3) ALT 34 (SC) held that compensation which can be granted as per structured formula basis was not in addition but in the alternative to determination of compensation on the basis of fault liability or no fault liability. It was further held that object of providing schedule to Section 163-A was to avoid delay. A three Judge Bench of the Apex Court in Supe Dei v. National Insurance Co. Ltd. held at paragraph No. 8 as follows:
...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.
17. A learned single Judge of this Court in K. Matura Bai's case (3 supra) taking into consideration the judgments of the Apex Court cited 8 and 9 supra and also taking into consideration the judgment of the learned single Judge of this Court in Bhagwan Das case (1 supra) held as under:
18. From the foregoing discussion, it is obvious that there is every distinction between the claims under Sections 140, 163-A and 166 of the Act. No fault liability is in respect of death or permanent disablement under Section 140 of the Act and the owner is liable to pay the compensation. However, under Section 163-A even though there has been no fault on the part of the driver, the owner and Insurer are liable to pay the compensation in respect of death or permanent disablement as given in the structured formula in the Second Schedule appended to the Act. However, Section 166 mandates that the Tribunal should consider the facts and circumstances of each case and determine just compensation. This is in respect of death or grievous injuries resulting in permanent disablement or any other injuries to qualify them. This distinction cannot be overlooked. Be it the case of assessment of compensation under Section 163-A or assessment of compensation under Section 166, the multiplier in the structured formula as given in the Second Schedule appended to the Act being the statutory provision shall have to be followed. A fortiori the multiplier table as given in Bhagwandas case (1 supra) having not been updated so far, there is no option for the Tribunal except to follow the statutory multiplier as given in the structured formula. Deviation is permissible from these multipliers as held by the judgments of the Apex Court only in proper cases and under the compelling circumstances. The legal position thus appears to be obvious from the concatenation of the cases discussed herein above.
(Emphasis added)
18. Another learned single Judge of this Court in Gopal Reddy's case (2 supra) also relying on the judgment of the Apex Court in Supe Dei's case (cited 9 supra) held that appropriate multiplier for assessment of claims on application filed under Section 166 of the Act, in schedule II notified under Section 163-A of the Act, can be taken as a guideline instead of multiplier given in Bhagwandas case (1 supra).
19. Further in the latest Division Bench judgment of the Apex Court in TNSTC Ltd. v. K.I. Bindu considering the grant of compensation under Section 168 of Motor Vehicles Act, 1988 and Schedule II, in a fatal motor accident, observed that the Second Schedule to the Act suffers from many defects, but however, it can be taken as a guide, but cannot be said to be a ready reckoner. The relevant portion is extracted as under:
18. In fact in Trilok Chandra case after reference to the 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 an 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 to 25 years when an ordinary Indian citizen starts independently earning and the lower would be in respect of a person in the age group of 60 to 70, which is the normal retirement age.
20. The quintessence of the above judgments of the Apex Court and the learned single Judge of this Court is that the second schedule to Section 163-A can be taken as a guiding factor for considering the claim applications under Section 166 of the Act and it cannot be taken as a ready recokoner and if there are compelling and justifying circumstances, the second schedule to Section 163-A can be deviated, to do complete justice to the parties and the appropriate highest multiplier can be 18 for the age group of 21 to 25 and the lower multiplier can be applied to the age group of 60 to 70. Further, the two leaned single Judges of this Court in the decisions cited 2 and 3 supra, gave further reason for taking the second schedule as a guideline, that the table given by the leaned single judge of this Court in Bhagwan Das case (1 supra) was not updated.
21. But the learned counsel for the insurance company relied on a Division Bench judgment of this Court in United India Insurance Co. Ltd. v. Mokkala Chandramma (5 supra) wherein it was held that multiplier as provided in second schedule to Section 163-A cannot be made applicable to the applications filed under Section 166 of the Act and the table given in Bhagwan Das case (1 supra) has to be applied. The learned counsel also relied on the judgment of the learned single Judge of this Court in United India Insurance Co. Ltd. v. Dangugula Bheem Sa/(6 supra), wherein it was held that schedule II of Act applies to petitions filed under Section 163-A, but not to petitions filed under Section 166. From a reading of these two judgments (5 and 6 supra) it could be seen that the judgment of the Apex Court in Supe Dei (9 supra) was not brought to the notice of this Court. Considering the judgment of the Apex Court in Hansrajbhai case (8 supra) the Division Bench in Mokkala Chandramma's case (5 supra) observed at paragraph No. 7 ...that the Apex Court held that the Second Schedule is not properly drafted and, therefore, suggestion was made by the apex Court to the Central Government to take necessary action as early as possible as regards the error in the Second Schedule and the need for amendment in view of the rise in the cost of living. In other words, it means that the Supreme Court never said that if the petition is filed under Section 166 of the Motor Vehicles Act, the multiplier given in Second Schedule is to be applied." However, from a reading of above judgments of the Division Bench and the judgment of the learned single Judge (5 and 6 supra) it is clear that second schedule to Section 163-A cannot be made applicable to applications under Section 166 of the Act. Even in the judgments cited by the counsel for the claimants, there is no categorical ruling that second schedule to Section 163-A of the Act can be made strictly applicable to the applications under Section 166 of the Act. The essence of these judgments is only to the effect that the second schedule to Section 163-A can be taken as a guideline for arriving at the appropriate multiplier, forgrant of compensation for the applications made under Section 166 of the Act, since the multiplier method, as per the judgment of the Apex Court in G.M. Kerala SRTC v. Susamma Thomas , is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. Therefore, there appears to be no conflicting view between the above judgments relied on by the counsel for the claimants and the respondent-insurance company.
22. Therefore, as already expressed, in my considered view, following judgments of the Apex Court (cited 9 and 10) and this Court (cited 2 and 3), it can safely be concluded that the second schedule to Section 163-A can be taken as a guideline for the applications made under Section 166 of the Act, as no specific schedule was provided and this is only to avoid delays in calculation of compensation by applying appropriate multiplier. Further in exceptional cases, this Court is always at liberty to deviate from the second schedule and award compensation by applying appropriate multiplier, not more than 18.
23. The issue framed is answered accordingly.
24. Coming to the second issue, it is to be noted that in the present case, the accident occurred on 23-4-1993 i.e., prior to the amendment by Act 54 of 1994 on 14-11 -1994 and the said amendment has prospective effect. However, as per the discussion above, the second schedule can be taken only as a guide line for awarding just compensation by applying the multiplier, taking the age and annual income of the deceased. However, to take the second schedule as a guideline, the said provision shall, at least, be existing as on the date of accident. Therefore, as the said provision was not available as on the date of accident, the law existing as on the date of accident, shall be made applicable. The Apex Court also in Maitri Koley v. New India Assurance Co. Ltd. (7 supra) held that the second schedule could not be applied for determination of compensation in a claim arising out of accident which occurred before 1988 Act came into force and the law prevailing as on the date of accident shall be applied. But however, in the said judgment, the apex Court confirmed the multiplier of 14, to an accident which occurred on 1-4-1986 i.e., even prior to the promulgation of 1988 Act, due to rash and negligent driving of the driver
25. As already stated above, Hon'ble Sri Justice M. Jagannadha Rao (as he then was) considering all the facts and circumstances and by scientific method, provided a schedule in Bhagwan Das case (1 supra) and the this Court has been following the same. The very same Hon'ble Judge while presiding a Division Bench of another High Court i.e., High Court of Delhi, in the decision reported in Rattan Lal Mehta v. Rajinder Kapoor 1996 ACJ 327 (Delhi) (D.B.) taking into mortality rate prior to 1994 i.e., during which year, the amendment Act 54 of 1994 was introduced, and also subsequent mortality rate, and further to avoid anomalies, in payment of compensation, since prior to 1994, as there was no schedule, and the Courts were applying multiplier based on facts and circumstances and subsequent in 1994 as amendment was made and second schedule was introduced with maximum multiplier of 18, held that:
37...A whole range of discrimination between cases and cases can easily be avoided. That is why we have taken pains to give reasons as to why the statutory multiplier table provided for prospective use can also be used for accidents which occurred before 14-11-1994.
39. In fact, if ad hoc multipliers like 26, etc., are used for pre 14-11-1994 accidents and only maximum multiplier of 18 as per the table is bound to be used for post 14-11-1994 accidents, there will be undue overpayment in regard to accidents prior to 14-11 -1994, i.e., in the seventies or eighties, when survival rates were far less than in 1994. Our view will eliminate any such anomaly.
26. Therefore in my view though the accident occurred prior to 1994 amendment came into force, since the multiplier method in the second schedule to Section 163-A, which is prospective and can be taken only as a guideline to the applications under Section and further even the Apex Court in the decision reported in United India Insurance Co. Ltd. etc. v. Patrician Jeean Mahajan held that in exceptional circumstances, different multiplier can be applied instead of the specified multiplier in second schedule, but not exceeding 18 and the apex Court in the decision reported in Maitri Koley's case (7 supra) applied the multiplier of 14 to an accident which occurred even prior to the promulgation of Motor Vehicles Act, 1988 due to rash and negligent driving of the driver of the vehicle, and further as the learned single Judges of this Court (2 and 3 supra) held that the table in Bhagwan Das (1 supra) has not been updated which was delivered in 1987 and as the present accident occurred in the year 1993, where a young Technician in a Government undertaking died in an accident at the age of 31, who was having future prospects, which the Tribunal has not given due weightage, which ought to have been given as per the judgment of the Apex Court in Jyoti Kaul v. State of M.P. (4 supra), and further as the judgment of the Apex Court cited 9 supra in Supe Dei's case was not brought to the notice of the Division Bench (5 supra), while holding that second schedule cannot be made applicable to the applications-under Section 166, I feel it appropriate to increase the multiplier.
27. Accordingly, I hold that the amendment made by Act 54 of 1994 is only prospective and the issue is answered in the affirmative. Notwithstanding the amendment and its applicability to Section 166, taking the judgments of the Apex Court and also the facts and circumstances of the case .wherein a young technician aged 31 working in a Government undertaking died in an accident, due to rash and negligent driving of the driver of the lorry and also the age of his mother, who is 51 and his future prospects, the multiplier is increased from 7.06 to 14.
28. With regard to future income of the deceased, the claimants did not lead any evidence, except marking the salary certificate Ex.A-4, wherein he was shown to be drawing an amount of Rs. 4,536/- per month. Therefore, the Tribunal has rightly fixed the income of the deceased at Rs. 5,000/- and deducted 1/3rd towards the personal expenses of the deceased and arrived at Rs. 40,000/- as annual income of the deceased.
29. Applying the multiplier 14 to the income of the deceased at Rs. 40,000/-, the claimants will be entitled to Rs. 5,60,000/- along with Rs. 7,500/- granted by the trial Court towards loss of estate.
30. With regard to interest, I feel it appropriate to apply the bank rate existing, which is 7.5 per cent and the Apex Court also in Bindu's case (10 supra) granted interest at the rate of 7.5 per cent per annum in a motor accidents claim, considering the interest rate in nationalized banks. Accordingly the interest is granted at the rate of 7.5 per cent per annum on the compensation amount from the date of the petition till realization.
31. The appeal is accordingly allowed the extent indicated above. No costs.