Allahabad High Court
The New India Insurance Co. Ltd. vs Gulab Singh And 2 Others on 21 January, 2015
Author: Vikram Nath
Bench: Vikram Nath, Dinesh Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 AFR Case :- FIRST APPEAL FROM ORDER No. - 156 of 2015 Appellant :- The New India Insurance Co. Ltd. Respondent :- Gulab Singh And 2 Others Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- S.D. Ojha Hon'ble Vikram Nath,J.
Hon'ble Dinesh Gupta,J.
Heard Sri Rakesh Bahadur, learned counsel for the appellant and Sri S.D. Ojha, learned counsel representing the claimant-respondent nos. 1 and 2.
This appeal under Section 173 of Motor Vehicles Act, 1988 has been preferred by the Insurance Company assailing the correctness of the award dated 25.09.2014 passed by Additional District Judge/Motor Accident Claim Tribunal, Court No.13, Meerut in Motor Accident Claim Case No.1279 of 2011, Gulab Singh and another Vs. Smt. Parul Sharma and another whereby the Tribunal has awarded compensation of Rs.13,05,000/- along with interest to the claimants against the Insurance Company.
Relevant facts giving rise to the claim petition are that in the forenoon of 02.10.2011 Govinda (deceased) was travelling by private bus no. DL IP 8059 along with other passengers which was going from village Jaiee to Meerut city. At about 11.30 a.m. the bus stopped near Jail Chungi Chopla for the passengers to deboard. The deceased while trying to step down from the bus fell down as the driver of the bus suddenly started without giving sufficient time to the deceased to get down and as a result he was crushed under the wheels of the bus. The deceased suffered severe injuries which later on proved fatal. First information report of the accident was lodged at Police Station Civil Lines, Meerut on 02.10.2011 at 9.15 P.M. and registered as Case Crime No. 550 of 2011 under Section 279/304 I.P.C.
Claim petition was filed by the parents of the deceased who were shown to be 40 years and 38 years against the owner of the offending vehicle Smt. Parul Sharma and the Insurance Company namely New India Insurance Co. Ltd.
It was alleged in the claim petition that the deceased was a physically and mentally fit person aged about 23 years and his monthly income was Rs. 15,000/-. Compensation to the tune of Rs.15,15,000/- was claimed. Both the opposite parties i.e. the owner and the Insurance Co. filed their written statement denying the factum of incident. The owner further stated without admitting the factum of incidence that the driver had valid and effective driving licnence, the bus had valid route permit and was duly insured with the New India Insurance Co. Ltd. and that there was no breach of any of the conditions of the Insurance policies.
The Insurance Co. in its written statement further alleged that the claimants never lodged any claim with the Insurance Company, the driver of the bus did not hold valid and effective licence and the accident took place on account of sole negligence of the deceased. It further alleged that the petition was bad for non joinder of necessary parties, there was collusion between the claimant, the owner and driver of the offending vehicle, that the accident took place on account of the own negligence of the deceased.
On the basis of the pleadings the Tribunal framed the following six issues:-
1.Whether on 02.10.2011 at about 11.30 A.M. Near Jail chungi chaupla, Meerut, the driver of Vehicle Bus no.DL IP 8059 driving the vehicle at high speed, in very rash and negligent manner and, while deceased was stepping down from the bus driver of the bus without giving proper sufficient time to deceased for coming down from the bus suddenly started the bus resulting deceased fell down on the road and as a result crushed under the wheel of bus causing grievous injuries to the deceased, causing the death of Govinda?
2.Whether on the date and time of accident in question the driver of the offending vehicle no. DL IP 8059 was not having valid and effective driving licence?
3.Whether on the date and time the offending vehicle Bus no. DL IP 8059 was having valid R.C., fitness and permit and was insured with O.P. no.2?
4.Whether there is any collusion between petitioner's and O.P. no.1?
5.Whether the accident in question took place due to contributory negligence on the part of the deceased?
6. Whether the claimant is entitled to any compensation? If so, to what amount from whom?
With regard to the finding on the issue nos. 1 to 4 which were decided in favour of the claimants, the appellants have not raised any objection.
While deciding issue no.5 the Tribunal took into consideration the evidence of PW 1 and PW 2 and further noted the fact that the owner and the Insurance Co. did not lead any evidence and accordingly held that there was no contributory negligence on the part of the deceased.
While deciding issue no.6 the Tribunal relying upon the pay certificate and the evidence of PW 3 was of the view that the deceased was receiving Rs.9,000/- per month from the services rendered at M/s. Piyush and Company. It, however, did not accept the income of Rs.6,000/- as alleged by the claimants for the private work but allowed only Rs.1,000/- thus holding the total income of the deceased to the Rs.10,000/- per month. It further, after considering the series of judgment of the Apex Court with regard to award of future prospects allowed only 25% as future prospects. The Tribunal further deducted 50% of the income towards personal expenses of the deceased. Further relying upon the judgment in the case of Sarla Verma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 multiplier of 17 was applied taking into consideration the age of the deceased.
The Tribunal took into consideration the judgment in the case of Amrit Bhanu Shali and others. Vs. National Insurance Company & others reported in 2012(4) T.A.C. 775 S.C. which laid down that it is the age of the deceased which is to be taken into consideration for calculating the compensation. The Tribunal also referred to the judgment in the case of Rajeshwari and others Vs. Oriental Insurance Company reported in 2012(4) T.A.C. 782 S.C. Based upon the aforesaid findings the Tribunal awarded compensation of Rs.13,05,000 along with 7% interest from the date of filing of the petition till the date of payment. It also issued directions as to how the compensation would be appropriated.
Sri Rakesh Bahadur, learned counsel for the appellant has raised following four points:
1. The Tribunal erred in taking the age of the deceased for computing the compensation whereas in fact the age of the claimants should have been taken into consideration.
2. The income of the deceased was not proved as such the Tribunal erred in determining the income of the deceased as Rs.10,000/-.
3. The future prospects of 25% awarded by the Tribunal was not warranted as the salary of the deceased was not proved.
4. The Insurance Company had taken a plea of contributory negligence and had filed an affidavit to that effect but the same has not been considered by the Tribunal.
With regard to the first point Sri Rakesh Bahadur learned counsel has relied upon the following judgments:
(i) New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and others dated 10.7.2007 passed in Appeal (Civil) No.2926 - 2927 of 2007.
(ii) New India Assurance Co. Ltd. V. Charlie and Anr. J.T. 2005(11) SC 264.
(iii) 2008(2) SCC 667 Ramesh Singh and another Vs. Satbir Singh and another.
(iv) U.P. State Road Corporation & Ors. Vs. Trilok Chandra & Ors. 1996(4) SCC 362.
On the other hand Sri S.D. Ojha, learned counsel for the claimant-respondents has submitted that the Tribunal has taken into consideration the material facts, the evidence on record and the prevailing law on all the issues, the judgment is just, valid and proper and does not suffer from any infirmity; none of the grounds raised by the appellant are sustainable in law. Sri Ojha has placed reliance upon the judgment of the Apex Court in the case of M. Mansoor and another Vs. United India Insurance Co. Ltd. And another, 2013 AIR SCW 6497 With regard to the first point as to whether the age of the deceased or the age of the claimants is to be taken into consideration, for computation of the compensation learned counsel for the appellant has relied upon the judgment of the Apex Court dated 10.7.2007 passed in Appeal (Civil) No.2926 - 2927 of 2007, New India Assurance Company Ltd. Vs. Smt. Shanti Pathak and others, a copy of the said judgment has been annexed as Annexure 1 to the affidavit filed in support of the Stay Application.
We have perused the said order of the Apex Court and we are of the view that Supreme Court has not laid down any law or ratio with regard to the issue raised by the appellant but the Apex Court only on the facts of the said case that the matter was pending since long had directed that age of the claimants may be taken into consideration for computing the compensation.
Sri Rakesh Bahadur has vehemently contended that a judgment by a three judge Bench of the Apex Court is binding on a Bench of coordinate strength or lesser strength.
According to him the judgment in the case of Smt. Shanti Pathak (supra) having been delivered by a three Judge Bench the same would prevail over any judgment taking a different view delivered by a two Judge Bench. According to him all other judgments be it Amrit Bhanu Shali (supra) or M. Mansoor (Supra) being subsequent in point of time and lhaving been rendered later in point of time by a Bench of two Judges could not have been relied upon.
Law regarding binding precedents is well settled. When a point does not fall for decision of a court but incidentally arises for its consideration and is not necessary to be decided for such a decision does not form a part of the ratio of the case, but it is treated as a decision passed sub silentio. It may also be noted that a point in respect of which no argument was advanced and no citation or authority was made and no discussion and adjudication is made is not binding and would not be followed. The Apex Court has held that such decisions are treated having been passed sub silentio. Reference may be had to judgments of Apex Court in Delhi Airtech Services (P) Ltd. Vs. State of U.P. Reported in (2011)9 SCC 354 and Municipal Corporation of Delhi Vs. Gurnam Kaur reported in AIR 1989 SC 38.
With respect we may mention that the judgment in the case of Smt. Shanti Pathak (supra) did not lay down any ratio, it contained only a passing reference. There is no adjudication on the issue as to whether the age of claimants or the age of deceased is to be applied while determining the multiplier. Thus we are not convinced that the judgment in the case of Smt. Shanti Pathak (supra) can be said to be a binding precedent.
Sri Rakesh Bahadur, learned counsel for the appellant then placed reliance on judgment of Apex Court in the case of New India Assurance Co. Ltd. V. Charlie and Anr. reported in J.T. 2005(11) SC 264. He has further referred to another judgment 2008(2) SCC 667 Ramesh Singh and another Vs. Satbir Singh and another which has relied upon the judgment in the case of Charlie (supra). He has referred to paragraph 14 of the report in the case of Charlie (supra) which according to him in principle should be applied in determining the compensation.
Paragraph 14 of the said judgment is reproduced hereunder:
"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
We are afraid that this judgment can be of any help to the appellant inasmuch as in the case of Charlie (supra) it has itself been held that choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher.
Further in the case of Trilok Chandra (supra) we are unable to find any ratio being laid down on the issue in question regarding applicability either of the age of claimants or the age of deceased for calculating the compensation.
It would also be relevant to note that the judgment in the case of Charlie (supra) and Trilok Chandra (supra) has been subsequently considered by the Apex Court in its detailed and celebrated judgment in the case of Sarla Verma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 which is presently being followed by the Apex Court, the High Court and the Tribunals in ascertaining the compensation in the case of death. In all the cases it has been held that it is the age of the deceased which is to be taken into consideration for applying the multiplier.
We may also note here that the 2nd Schedule which provides the table for applying the multiplier mentions the age of victim/deceased. It no where refers to the age of claimants. Thus also the argument that age of the claimants is to be taken into consideration for applying the multiplier can not be sustained. The age of dependents/claimants may be relevant for making any deduction but not for applying the multiplier.
In the present case the Tribunal relied upon the judgment of the Apex Court in the case of Amrit Bhanu Shali and others. Vs. National Insurance Company & others reported in 2012(4) T.A.C. 775 S.C. and also in the case of Rajeshwari and others Vs. Oriental Insurance Company reported in 2012(4) T.A.C. 782 S.C. which followed the judgment in the case of Amrit Bhanu Shali (supra).
In the case of Amrit Bhanu Shali (supra) the facts were quite similar as to the present appeal. The deceased there was also an unmarried male aged about 26 years and his parents had lodged the claim. The High Court had applied the multiplier taking into consideration the age of the claimants. In the Appeal before the Apex Court one of the issues raised was that the multiplier had been wrongly applied as the age of the deceased was relevant and to be considered for applying the multiplier. Such facts are stated in paragraph 13 of the report. After considering the respective arguments and the law on the point the Apex Court in paragraph 17 of the report held that the multiplier is to be applied on the basis of the age of the deceased and not on the basis of the age of the dependents. It is further observed that the age of the dependents has no nexus with the computation of the compensation. Para 17 of the report is reproduced below:-
"15. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.
16. In the case of Sarla Verma (supra) this Court held that the multiplier to be used should be as mentioned in Column (4) of the table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of the death was 26 years, the multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased rightly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and brining it down to the multiplier of 13.
17. The appellants produced Income Tax Returns of deceased Ritesh Bhanu Shali for the years 2002 to 2008 which have been marked as Ext. P10C. The Income Tax Return for the year 2007-2008 filed on 12.03.2008 at Raipur, four months prior to the accident, shows the income of Rs.99,000 per annum. The Tribunal has rightly taken into consideration the aforesaid income of Rs.99,000 for computing the compensation. If the 50% of the income of Rs.99,000 is deducted towards ''personal and living expenses' of the deceased the contribution to the family will be 50%, i.e., Rs.49,500 per annum. At the time of the accident, the deceased Ritesh Bhanu Shali was 26 years old, hence on the basis of decision in Sarla Verma (supra) applying the multiplier of 17, the amount will come to Rs.49,500x 17 =Rs.8,41,500. Besides this amount the claimants are entitled to get Rs.50,000 each towards the affection of the son, i.e. Rs.1,00,000 and Rs.10,000 on account of funeral and ritual expenses and Rs.2,500 on account of loss of sight as awarded by the Tribunal. Therefore, the total amount comes to Rs.9,54,000 (Rs.8,41,500/+Rs.1,00,000/+ Rs.10,000/+ Rs.2,500) and the claimants are entitled to get the said amount of compensation instead of the amount awarded by the Tribunal and the High Court. They would also be entitled to get interest at the rate of 6% per annum from the date of the filing of the claim petition leaving rest of the conditions mentioned in the award intact."
Sri S.D. Ojha, learned counsel for the respondent has placed reliance upon the judgment of the Apex Court in the case of M. Mansoor and another Vs. United India Insurance Co. Ltd. And another reported in 2013 AIR SCW 6497 and Reshma Kumari Vs. Madan Mohan, 2013(2) TAC 369 SC. In the case of M Mansoor (supra) also the Apex Court taking into consideration the judgment of Amrit Bhanu Shali (supra) and Sarla Verma (supra) applied the multiplier for computing the compensation based on the age of the deceased.
The facts of the case in M. Mansoor (supra) are also similar to the facts of the present case. The deceased was a bachelor aged 24 years and survived by his parents who were the claimants. The Tribunal had applied the multiplier of 17 taking the age of the deceased to be applicable. On appeal by the Insurance Company the High Court held that multiplier of 12 was applicable taking into consideration the age of the claimants. Both the Tribunal and High Court had deducted 1/3rd as expenses of the deceased. On appeal by the claimants the Apex Court following the ratio laid down in the case of Amrit Bhanu Shali (supra) applied the multiplier of 18 taking into consideration the age of the deceased, but it directed for deduction of 50% as personal expenses of the deceased relying upon the judgment in the case of Sarla Verma (supra).
The application of multiplier in computation of compensation in cases of death and objection filed under Section 166 or 163 A of Motor Vehicles Act 1988 was also considered by Apex Court in Reshma Kumari (supra) and after considering the relevant cases General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas, State Road Transport Corporation Vs. Trilok Chandra, New Delhi India Assurance Co. Vs. Shanti Pathak, Sarla Verma (supra) and New India Insurance Company Ltd. Vs. Charli and others.
The Apex Court summarised its conclusion as follows:
(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma17 read with para 42 of that judgment.
(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma17 should be followed.
(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma17 for determination of compensation in cases of death.
The judgments relied upon by the appellants are not applicable in the facts of the present case. They are of no help to the appellant. Even otherwise they are earlier in point of time. Further the judgments relied upon by the Tribunal and also placed before us by the learned counsel for the respondent are subsequent in point of time, involving similar facts as that in the present case and lay down the law deciding the issue.
For all the reasons recorded above we reject the first argument raised by Sri Rakesh Bahadur, learned counsel for the appellant.
Coming to the next ground taken by the appellant that the salary of the deceased was not proved we find that the claimants had set up the case that the deceased was doing service in M/s. Piyush & Company, Meerut and also doing sewing work and he was earning Rs.9,000/- from the Company and Rs.6,000/- from his private work, thus the total earning being Rs.15,000/- per month. The Tribunal has also mentioned that pay certificate was filed which was issued by the Proprietor of the company. Further, P.W. 3 was produced to prove the said certificate. P.W. 3 also produced attendance register of the employee and proved that the salary of the deceased was Rs. 9000/- per month. Further the Tribunal recorded that nothing could be elicited in the cross examination to disbelieve the evidence of PW 3.
Since there was no proof or evidence with regard to the earning of Rs.6,000/- by private work as claimed by claimants, the Tribunal did not allow the same as claimed but only allowed Rs.1,000/- in that regard and accordingly proceeded to determine the income of the deceased to be Rs.10,000/- per month.
The income of the deceased thus arrived at by the Tribunal upon consideration of material evidence on record can not thus be interfered with being a finding of fact. Accordingly the second argument is also rejected.
The third argument raised with regard to the future prospects of 25% we find that the same is also placed on the lower side by the Tribunal whereas under settled law it should have been 50% of the salary as laid down in the case of Sarla Verma (supra).
The last point raised with regard to the contributory negligence we find that the Tribunal while deciding issue no.5 has considered the evidence placed on record. The Insurance Company-appellant did not lead any evidence but only filed an affidavit, whereas from the side of the claimants P.W. 1 and P.W. 2 have supported their claim petition and proved the negligence of the bus driver which caused the death of their son.
This finding also does not require any interference.
For all the reasons recorded above, we do not find any merit in this appeal.
Accordingly, the appeal is dismissed.
Order Date :- 21.1.2015/vkg