Calcutta High Court (Appellete Side)
Chhaya Sarkar & Anr vs The Branch Manager on 28 June, 2013
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
F.M.A. 44 of 2012
Chhaya Sarkar & anr.
-Versus-
The Branch Manager, Oriental Insurance Co. Ltd. & anr.
For the Appellants :- Mr. Saidur Rahaman.
For Respondent :- Mr. Parimal Kumar Pahari.
Insurance Company Heard & Judgment on :- June 28, 2013 Re.: C.A.N. 1396 of 2013.
An interesting question has been raised by Mr. Saidur Rahaman, learned counsel appearing for the appellants, in this appeal, apart from other common issues. The victim was a bachelor. He died in the accident leaving him surviving his parents. As per the voter identification card, the victim was 23 years old and his mother was 36 years old, as claimed by the claimants.
Mr. Parimal Kumar Pahari, learned counsel appearing for the Insurance Company, has raised doubt, and in our view, very rightly.
Mr. Rahaman would, however, raise a legal issue as to whether the tribunal was justified in choosing the multiplier considering the age of the mother and ignoring the age of the victim. He would contend, the decision in the case of Reshma Kumari and others Versus Madan Mohan and another reported in 2013 A.C.J. 1253, the larger Bench discussed the decision in the case of Smt. Sarala Verma and others Vs. Delhi Transport Corporation and Another, reported in 2009 (2) T.A.C. 677 (S.C.) and observed, in all cases the second Schedule to the said Motor Vehicles Act, 1988 should be followed as a rough and ready mode of calculation of compensation. According to Mr. Rahaman, the second Schedule would consistently suggest, the choice of multiplier would be dependent upon the victim's age. According to Mr. Rahaman, the decision in the case of U.P. State Road Transport Corporation 2 & Ors. Vs. Trilok Chandra & Ors., reported in 1996 ACJ 831 was overruled by implication.
On the other issue, Mr. Rahaman would submit, the tribunal ignored the assertion with regard to the income of the victim. Even if it was not proved, the ratio decided in Laxmi Devi and others vs. Mohammad Tabbar and another reported in 2008 ACJ 1488 (SC) should be followed.
Per contra, Mr. Pahari has relied upon the decision in the case of Trilok Chandra & Ors. (supra) and would contend, the same is still holding the field. He would rely upon another decision in the case of New India Assurance Co. Ltd. Versus Shanti Pathak and others reported in 2007 A.C.J. 2188 on the issue.
We have considered the rival contentions. We do not agree with the view expressed by Mr. Rahaman on the legal issue raised by him.
In Trilok Chandra & Ors. (supra) the Apex Court observed, age of the mother must have a dominant role for choice of multiplier. The issue was again discussed in the case of Smt. Sarala Verma and others (supra) particularly paragraph 15, where the Apex Court observed, the mother is the only lawful claimant in case of death of a bachelor.
In Reshma Kumari (supra) two-Judge Bench of the Apex court referred two questions to be answered by the larger Bench.
i) Would the second Schedule be followed in
all cases?
ii) What would be the effect of "future
Prospect"?
The larger Bench accordingly answered the queries made by the two-Judge Bench that would not include the issued raised by Mr. Rahaman before us. Section 163A would prescribe a composite formula to be followed in case of the poor victims belonging to the lower income group having a maximum limit of income of Rs.40,000/- per annum. Section 166 did not restrict any Court compelling it to follow a particular formula. It would enable the Court to award "just compensation", hence any victim or the next to kin in case of death, irrespective of the income of the victim, would be entitled to approach the tribunal for "just compensation" and the tribunal would be free to decide considering the evidence that was led before it. While awarding "just compensation", there is no restriction on the 3 tribunal that would debar them from using that rough and ready mode of calculation. These are the basics in the motor accident claims adjudication.
Ordinarily in all cases, the tribunal considers the age of the victim. The logic is, had the victim been alive, he would have served his family, his loss to the family should be calculated to have proper compensation assessed. The fixation of multiplier would have the backdrop of various considerations where age of the victim has a dominant role. Similarly, the choice of multiplier would be as per the age of the victim, on that score there cannot be any scope of disagreement.
The choice of multiplier in case of a bachelor's death would however, depend upon a different logic. If we look to paragraph 15 of the case of Smt. Sarala Verma and others (supra), we would find, the Apex Court considered, who would be affected by the death of the bachelor. Ultimately, the Apex Court came to conclusion, it was the mother who would be mostly affected by such death. Apart from the emotion and loss of life and bonding, the mother is deprived of her sustenance that her child being the victim, could provide had he / she been alive, hence the mother's age or her proximate longevity span would have a dominant role on the choice of multiplier. The logic is sound. In our view, Trilok Chandra & Ors. (supra) still holds the field and no decision of the Apex Court is yet to overrule the same, either expressly or by implication. Mr. Rahaman's contention, on that score, is thus rejected.
The victim died in 2009. Applying the ratio decided in Laxmi Devi and others vs. Mohammad Tabbar and another reported in 2008 ACJ 1488 (SC), we assess his income notionally at Rs.3,500/- per month. The tribunal erroneously applied the multiplier of 17. Considering the age of the victim, it should be 17, we reduce it to 14, since mother is the sole dependant, the usual deduction of 50% of the income on account of personal expense is allowed.
The appeal, thus, succeeds and is allowed. The award is, thus, modified as follows :-
The Annual Yearly Income Rs. 42,000/-
(Rs. 3,500 x 12)
Less: 50% personal expenses Rs. 21,000/-
Rs. 21,000/-
4
Using Multiplier of 14, Rs. 2,94,000/-
(Rs. 21,000 x 14) the assessment would be
Less Already Paid Rs. 1,74,500/-
Total Balance compensation Rs. 1,19,500/-
The award would carry interest at the rate of 6% per annum on and from the date of filing of claim petition until it was actually deposited and/or paid. The differential awarded sum would also carry interest at the same rate from the date of filing of the claim petition till the payment is made.
The Insurance Company is directed to pay the differential awarded sum as well as the interest in the same proportion fixed by the Tribunal to the claimant no.1 being the mother of the victim through account payee cheque to be sent at the recorded address by speed post. Such payment must reach the claimant within four weeks from the date of communication of this order.
With these observations the appeal is disposed of along with the application without any order as to costs.
The Registry is directed to send down the records at once, if received by this time.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
( Banerjee, J.) ( Dr. Mrinal Kanti Chaudhuri, J.) ns.