Heera Devi & Others vs Paramjeet Singh & Others

Sudhanshu Dhulia, J

This is an appeal arising out of the award dated 25.07.2015 passed by the Motor Accident Claims Tribunal, Rudrapur, District Udham Singh Nagar in MACT Case No.143 of 2013, whereby a compensation of Rs.3,00,000/- (Rupees Three Lakh Only) has been awarded to the claimants.

Brief facts of the case are that on 14.05.2013 at about 03:35 p.m. one Lalji Prasad aged about 32 years was going on his motorcycle to his house from "Mahtosh". On this motorcycle were sitting the mother of Lalji Prasad namely Gulabo Devi aged about 54 years and two girl children namely Roshni and Kiran, aged about 12 years and 9 years respectively. It is alleged that when they reached near Premnagar Puliya, Gadarpur at about 03:35 pm, a truck bearing registration no. JK 02 C -1752 dashed the motorcycle from the back and crushed it, as a result of which, all the four persons who were riding on the motorcycle sustained injuries and ultimately all of them passed away. Thereafter, a claim petition was filed by the claimants and a compensation of Rs.6,00,000/- (Rupees Six Lakh Only) was claimed on account of death of Ms. Kiran.

The claim was admittedly moved under Section 163-A of the Motor Vehicles Act, 1988. Section 163-A of the Motor Vehicles Act, 1988 reads as under:-

"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 authorised insurer shall be liable 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 of or the victim, as the case may be.

Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 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."

Written statements were filed by the insurance company, the driver as well as the owner of the ill fated truck.

On the basis of the pleadings, the learned Motor Accident Claims Tribunal framed the following issues:-

"1. Whether on 14.05.2013 at about 3:30 p.m. when Kiran, the daughter of claimant no. 1 was coming towards her house, along with her maternal uncle Lalji Prasad on a motorcycle, the motorcycle had an accident in Gadarpur with a truck bearing registration no. JK -02C-1752, which was being driven rashly and negligently by its driver?

Whether the accident in question occurred due to contributory negligence of the driver of the motorcycle, on which the deceased was a pillion rider? If yes, it's effect?

Whether the owner of the motorcycle no. UA-03-0970 involved in the alleged accident and his insurance company are necessary parties? If yes, it's effect?

Whether on the date and time of accident in question, the driver of the vehicle was not having valid and effective driving licence and the owner of the vehicle was not having valid insurance and papers? If yes, then its effect?

Whether the claimants are entitled to any relief, if yes then from which of the parties and to what extent?"

The learned Motor Accident Claims Tribunal while deciding issue nos. 1 & 2 came to the conclusion that the accident in question occurred due to rash and negligent driving of the truck by its driver and due to the said accident Kiran had sustained injuries which resulted in her death.

While deciding issue no. 3, the learned Tribunal came to the conclusion that the owner of the motorcycle and the insurance company are not the necessary parties.

So far as issue no. 4 is concerned, the learned Motor Accident Claims Tribunal came to the conclusion that the driver of the vehicle was having valid and effective driving licence on the date and time of the accident and the owner of the vehicle was having valid R.T.O. Papers and valid insurance.

As far as the compensation amount is concerned, the learned Motor Accident Claims Tribunal keeping in view the age of the deceased Kiran as 9 years, fixed her annual notional income as Rs.20,000/- (Rupees Twenty Thousand Only). The learned Tribunal thereafter applied a multiplier of 15 and calculated the amount of compensation to the tune of Rs.3,00,000/- (Rupees Three Lakh Only). No other expenses, however, have been added to the compensation. Aggrieved by the amount of the compensation, the appellants have filed the present appeal before this Court. There is no appeal of the Insurance Company.

Admittedly, under the Second Schedule to Section 163-A of the Motor Vehicles Act, 1988, which was applicable at the relevant time, the annual notional income of a person who is a non-earning member is calculated at the rate of Rs.15,000/- (Rupees Fifteen Thousand Only). However, after the amendment made in the year 1994 and after the various decisions of the Hon'ble Apex Court from time to time, this notional income has to be increased from Rs.15,000/-(Rupees Fifteen Thousand only) to Rs.30,000/- (Rupees Thirty Thousand only), which has to be considered by the Tribunal under the facts and circumstances of each case. In this case, it has been fixed to Rs.20,000/- (Rupees Twenty Thousand only) per annum.

Learned counsel for the appellants has relied upon a decision of the Hon'ble Apex Court in the case of Kishan Gopal and another vs. Lala and others, reported in (2014) 1 SCC 244, where a child of 10 years of age died under the similar circumstances, and an amount of Rs.30,000/-(Rupees Thirty Thousand Only) as notional income was fixed and Rs.50,000/- (Rupees Fifty Thousand Only) was given under the conventional heads. While doing so, the Hon'ble Apex Court has relied upon its earlier decision in the case of Lata Wadhwa vs. State of Bihar, reported in (2001) 8 SCC 197, where although the category is given under the no income category but the general assumption is that since the child belongs to low income category, generally there is some earning of the child as well in one form or the other. In Kishan Gopal case (supra) the notional income at Rs.30,000/-(Rupees Thirty Thousand Only) was fixed with a multiplier of 15 and an amount of Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand Only) was calculated apart from Rs.50,000/- (Fifty Thousand Only) under the conventional heads.

The tribunal has not considered the totality of the facts and circumstances of the case and has fixed the amount in a mechanical way.

In view thereof, the notional income of the girl child Kiran is fixed at the rate of Rs.30,000/- (Rupees Thirty Thousand Only) per annum, which is appropriate. On this amount applying the multiplier of 15, the amount of compensation comes to Rs. 4,50,000/- (Rupees Four Lakh Fifty Thousand Only). Apart from this, the claimants are also entitled for a further amount of Rs.50,000/- (Rupees Fifty Thousand Only) under the conventional heads. Thus the total compensation which is liable to be given to the claimants comes to Rs.5,00,000/- (Rupees Five Lakh Only), on which they shall be given an interest at the rate of 9 percent per annum from the date of the judgment passed by the learned Tribunal i.e. 25.07.2015.

The appeal is allowed. Let the learned Tribunal calculate the entire amount of compensation as per the above determination after adjusting the amount already given to the claimants, which shall be deposited by the insurance company within a period of three weeks from the date of production of a certified copy of this order. After the amount of compensation is deposited by the insurance company, let the amount be released in favour of the claimants forthwith.