Sikkim High Court
The Branch Manager, National Insurance ... vs Tshering Doma Bhutia And Anr on 21 May, 2015
Author: Sunil Kumar Sinha
Bench: Chief Justice
1
MAC Appl. No. 14/2014
Branch Manager, NIC Ltd. vs.
Tshering Doma Bhutia & Anr.
HIGH COURT OF SIKKIM, GANGTOK
(Civil Appellate Jurisdiction)
---------------------------------------------------------------
S.B. : HON'BLE SHRI SUNIL KUMAR SINHA, C.J.
---------------------------------------------------------------
MAC Appl. No. 14/2014
The Branch Manager,
National Insurance Co. Ltd.,
Gangtok Branch Office,
31-A, National Highway,
M.G. Marg, Gangtok,
East Sikkim.
... APPELLANT
Versus
1. Smt. Tshering Doma Bhutia,
W/o Late Kishore Sherpa,
R/o Rumtek, Sajong,
Ranipool, East Sikkim.
2. Ms. Yangchen Bhutia,
D/o Pezo Tshering Bhutia,
R/o Tathangchen,
C/o Bhola Pan Dokan,
Below West Point School,
Gangtok, East Sikkim.
... RESPONDENTS
Appeal under Section 173 of the Motor Vehicles Act, 1988
-------------------------------------------------------------------------
Appearance :
Mr. Manish Kr. Jain, Advocate for the Appellant.
Mr. Ajay Rathi, Mr. Rahul Rathi, Mr. Adithya Makkhim, Ms.
Pema W. Bhutia and Ms. Sachina P.Y. Subba, Advocates for
Respondent No. 1.
Mr. Bhusan Nepal and Mr. Ashok Pradhan, Advocates for
Respondent No. 2.
------ -------------------------------------------------------------------
2
MAC Appl. No. 14/2014
Branch Manager, NIC Ltd. vs.
Tshering Doma Bhutia & Anr.
JUDGMENT
(21.05.2015) Following Judgment of the Court was dictated on Board by SUNIL KUMAR SINHA, CJ.
1. The insurer is aggrieved with the award dated 30.11.2013 passed in MACT Case No. 10 of 2013 by the Motor Accidents Claims Tribunal, East & North Sikkim at Gangtok. By the impugned award, a sum of Rs.5,81,200/- has been awarded as compensation to Respondent No. 1 by the Tribunal with interest @10% per annum from the date of filing of the claim petition till realization.
2. Respondent No. 1 /Claimant is wife of deceased Kishore Sherpa, who died in the motor accident on 24.07.2012. He was aged about 42 years. He himself was driving the vehicle at the time of the accident. He was earning Rs.3,325/- per month. On his death, Respondent No. 1 filed claim petition under Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). The Tribunal held that the liability to pay compensation was that of Insurance Company (Appellant herein). The Tribunal, holding the income of the deceased as Rs.3,325/- per month, applied multiplier of 15 and after deducting 1/3rd, awarded Rs.3,99,000/- towards Loss of Earning. The Tribunal further awarded Rs.25,000/- as Funeral Expenses; Rs.2,500/- as Loss of Estate; Rs.1,00,000/- as Loss of Consortium; Rs.50,000/- as Loss of Non-pecuniary damages and Rs.2,000/- for transportation. The Tribunal, thus, awarded a total sum of Rs.5,81,200/- as compensation to Respondent No. 1/Claimant on account of death of deceased Kishore Sherpa in the said accident. The Tribunal also 3 MAC Appl. No. 14/2014 Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
awarded interest @ 10% per annum from the date of filing of the claim petition, i.e. 28.05.2013, till realization.
3. Mr. Manish Jain, learned Counsel appearing on behalf of the Appellant, has not disputed the liability of the Appellant to pay compensation. He has also not disputed the amount towards Loss of Earning, i.e. Rs.3,99,000/-. He has vehemently argued that as the claim petition was filed under Section 163A of the Act, the amount towards Funeral Expenses, Loss of Estate and Loss of Consortium should have been strictly on the basis of structured formula as is contained in the Second Schedule prepared under Section 163A. He also argued that after directing payment on account of Funeral Expenses, Loss of Estate and Loss of Consortium, a further amount of Rs.50,000/- awarded by the Tribunal towards Loss of Non-pecuniary damages is wholly unjustified. He relied on the decisions of National Insurance Company Ltd. vs. Gurumallamma & Anr. : 2009 (9) SCALE 764, National Insurance Co. Ltd. vs. Chacko : 2012 (1) TAC 464 (Kerala) and an earlier decision of this Court in MAC Appl. No. 21/2014 : Branch Manager, National Insurance Co. Ltd. vs. Smt. Sujita Newar and Others.
4. On the other hand, Mr. Ajay Rathi, learned Counsel appearing on behalf of the Claimant/Respondent No. 1, has opposed these arguments and supported the award passed by the Claims Tribunal.
5. I have heard learned Counsel for the parties.
6. This Court, in Sujita Newar (supra) considering all above aspects, has held that if a claimant selects to resort to the provision of Section 163A, a fixed amount in accordance with the Second Schedule alone shall be ordered to be paid under Section 163A irrespective of the loss sustained by him. The amount of compensation ultimately determined under Section 4 MAC Appl. No. 14/2014 Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
163A would be in full and final settlement of the claim for compensation and any amount in deviation thereof would not be held to be correctly awarded to the claimant. It was further held that without the Second Schedule, Section 163A would remain unworkable and the quantum of compensation payable under Section 163A cannot be worked out without resorting to the Second Schedule. Paragraphs 6, 7 and 8 extracted from the Judgment of Sujita Newar (supra) are quoted as under: -
"6. In Deepal Girishbhai Soni vs. United India Insurance Co. Ltd.: (2004) 5 SCC 385, it was held that the remedy for payment of compensation both under Sections 163A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163A or under Section 166 of the Act, but not under both. Section 163A, which has an overriding effect, provides for special provisions as to payment of compensation on structured-formula basis. In Section 163A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of a wide nature which would mean that the provisions of Section 163A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force.
7. In Gurumallamma (supra), it was held that "Section 163A was inserted by Act No.54 of 1994 as a special measure to ameliorate the difficulties of the family members of a deceased who died in use of a motor vehicle. It contains a non-obstante clause. It makes the owner of a motor vehicle or the authorized insurer liable to pay in the case of death, the amount of compensation as indicated in the Second Schedule to his legal heirs. The Second Schedule provides for the amount of compensation for third party Fatal Accident/Injury Cases Claims. It provides for the age of the victim and also provides for the multiplier for arriving at the amount of compensation which became payable to the heirs and legal representatives of the deceased depending upon his annual income. The Second Schedule furthermore provides that in a case of fatal accident, the amount of claim shall be reduced by 1/3rd in consideration of the expenses which the victim would have incurred upon himself, had he been alive. It provides for the amount of minimum compensation of Rs.50,000/-. It furthermore provides for payment of general damages as specified in Note 3 thereof".
8. In Chacko (supra), scope of Section 163A was considered by a Division Bench of Kerala High Court in light of the following questions:-
(i) How is the amount payable in the case of death under Section 163-A of the Motor Vehicles Act ('the Act' hereafter) to be ascertained?5 MAC Appl. No. 14/2014
Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
(ii) Are the Tribunals to employ the multiplier-
multiplicand method to ascertain the quantum of compensation payable in the case of death under the Second Schedule also?
(iii) For what purpose is the "multiplier" furnished in the chart/table in the Second Schedule?
(iv) Even in a claim under Section 163-A are the claimants/legal heirs bound to prove the extent of dependency and loss?
(v) Is negligence or contributory negligence relevant in a claim under Section 163-A?
(vi) Can the Schedule to 163-A be ignored or
disregarded while ascertaining quantum of
compensation under Section 163-A?
(vii) Can the quantum of compensation payable in the case of death be ascertained independently without resort to the Second Schedule in a claim under Section 163-A?
The High Court, while considering the above questions, held vide paragraphs 21 and 23 in the following manner:-
"21. What we intend to note is that a fixed amount in accordance with the Second Schedule alone shall be ordered to be paid under Section 163-A, whatever be the actual loss. Even if the actual loss is much greater, for one who chooses to claim under Section 163-A, this is the only amount that shall be payable. Section 163-A offers a package in full settlement of the claim of compensation. A claimant at his option can claim the amount under Section 163-A. If such a claim is staked, what ever the actual loss (whether the actual loss be more or less) he can get only the amount prescribed under the Second Schedule.
XXX XXX XXX
23. There is a contention strenuously urged that the Second Schedule should not be rigidly followed. We fail to understand this contention.
Look at the language of Section 163-A. The amount that would be payable is prescribed (indicated) under the Second Schedule. Without the Second Schedule, Section 163-A will come to a grinding halt and the Section cannot be worked. In a claim under Section 166, the Second Schedule can be used as a guide. But without a valid and binding Second Schedule, Section 163-A cannot operate. There must therefore be a valid Second Schedule to decide amounts payable under 163-A. To us it appears that it would be puerile to accept the validity of Section 163-A without an effective schedule. The scheme of Section 163-A would be lost if there is no valid schedule. Section 163-A cannot be worked if there is no schedule which can be followed rigidly.""
7. Now, coming to the case in hand, the Tribunal has awarded Rs.25,000/- towards Funeral Expenses, whereas according to the Second 6 MAC Appl. No. 14/2014 Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
Schedule, it will not go beyond Rs.2,000/-. The Tribunal has not assigned any reason for awarding the said amount under the aforesaid head.
8. The Tribunal has further awarded Rs.1,00,000/- towards Loss of Consortium. This appears to have been awarded in terms of the judgment of Rajesh and Others vs. Rajbir Singh and Others (2013) 9 SCC 54. Mr. Jain has argued that when the claim petition itself was filed under Section 163A, the ratio laid down in Rajesh (supra) would not be applicable in this case, as Rajesh (supra) was not a claim filed under Section 163A and it was a claim filed under Section 166.
9. The argument appears to be correct in light of the two independent provisions of the Act, one under Section 163A and the other under Section
166. When the claim was filed under Section 163A, the Tribunal ought to have followed the provision contained in the Second Schedule, as in such cases, the ratio relating to a claim under Section 166 would not apply. Thus, the amount awarded under this head was not correct. I am of the view that the Tribunal should have awarded Rs.5,000/- instead of Rs.1,00,000/- towards Loss of Consortium.
10. Mr. Jain lastly contended that the Tribunal vide paragraph 12 has awarded Rs.50,000/- towards Loss of Non-pecuniary damages. His contention was that when the Tribunal has already awarded various amounts towards Funeral Expenses and Loss of Consortium as also the Loss of Estate, there was no proprietary in awarding Rs.50,000/-, saying it to be the Non-pecuniary damages.
7MAC Appl. No. 14/2014
Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
11. In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd. and Others : (1995) 1 SCC 551, it was held that Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant towards : (i) medical attendance; (ii)loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii)damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. It was further held that the amount of compensation for Non-pecuniary damages is not easy to determine but the award must reflect that the different circumstances have been taken into consideration.
12. In the instant case, as stated above, the Tribunal, on the one hand, already awarded compensation towards the Loss of Estate and Loss of Consortium and, on the other hand, it also awarded Rs.50,000/- towards Non-pecuniary damages, which appears to be a repetition. This deserves to be set aside in view of R.D. Hattangadi (supra).
8MAC Appl. No. 14/2014
Branch Manager, NIC Ltd. vs. Tshering Doma Bhutia & Anr.
13. I, therefore, re-compute the compensation as follows:-
(i) Loss of Earning - Rs.3,99,000.00
(ii) Funeral Expenses - Rs. 2,000.00
(iii) Loss of Estate - Rs. 2,500.00
(iv) Loss of Consortium - Rs. 5,000.00
(v) Transportation to
Hospital - Rs. 2,000.00
===============================
TOTAL - Rs.4,10,500.00
===============================
The Respondent No. 1 Claimant shall be entitled to receive a sum of Rs.4,10,500/- as compensation on account of death of deceased Kishore Sherpa in the motor accident. She shall also be entitled to receive interest @10% per annum on the said amount of Rs.4,10,500/- from the date of filing the claim petition till realization.
14. The Appeal is allowed to the extent indicated above.
15. There shall be no order as to costs.
(Sunil Kumar Sinha)
Chief Justice
21.05.2015
Approved for Reporting : Yes/No.
Internet : Yes/No.
jk