National Insurance Co. Ltd. vs Smt. Probhati Adhikary and others

Indira Banerjee, J. - The defects, noted by the Additional Stamp Reporter, are no defects in the eye of law. There is no question of replacing the word ''Award'' from the classification of appeal with the word ''Order''. We are informed that statutory amount has been deposited.

This appeal is against a judgment and award dated 30th November, 2013 passed by the Motor Accident Claims Tribunal/Judge, Special Court-cum-Additional District and Sessions Judge, Alipore, South 24-Parganas in MAC Case No.235 of 2001, being an application filed by the respondent nos.1 and 2, hereinafter referred to as ''the respondent claimants'', under Section 163A of the Motor Vehicles Act, 1988, on account of the death of their son, Joykrishna Adhikary, in a motor accident in course of use of a mini truck being vehicle no.WB-03A-7658, owned by the respondent no.3, Naresh Sahu and covered by a policy of insurance taken out by the appellant insurer, National Insurance Company Limited.

By the judgment and award impugned, the learned Tribunal awarded the respondent claimants total compensation of RS. 3,88,500/- on account of the death of their only son. It appears that the learned Tribunal arrived at the finding that the deceased victim had annual income of RS. 36,000/-. From RS. 36,000/-, one-third, that is, RS. 12,000/- was deducted towards personal and living expenses of the deceased. The balance amount of RS. 24,000/- was multiplied by "16", being the multiplier applicable to the age group to which the deceased victim belonged at the time of his death. It appears that at the time of accident, the deceased victim was about 27 years of age.

Learned Counsel, appearing on behalf of the appellant insurer, argued that in view of the judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, reported in (2009) 6 Supreme Court Cases 121, 50% of the annual income of the deceased victim should have been deducted towards personal and living expenses of the deceased victim and not just one-third.

It is interesting that the appellant insurer, a nationalised company, governed by Article 14 of the Constitution of India, should file an appeal on the ground that half of the measly income of RS. 3,000/- per month should have been deducted towards personal and living expenses of the deceased employee, but quietly accepted the multiplier of "16" applied by the learned Tribunal though in the very same judgment of Sarla Verma (supra), the Supreme Court held that the multiplier applicable to the age group of 26 to 30 years would be "17" and not "16".

Be that as it may, this is an application under Section 163A and not Section 166 of the Motor Vehicles Act. Section 163A provides for statutory compensation in accordance with the Second Schedule to the Motor Vehicles Act whenever there is death or permanent disability, irrespective of whether there is any fault or negligence on the part of the owner or any other person. The scope of Section 166 is wider. Compensation under Section 166 can be claimed for any damage or any injury caused on account of fault and negligence on the part of the offending motor vehicle.

While in an application under Section 166, fault and negligence of the offending vehicle is to be proved. Fault and negligence of the offending vehicle is inconsequential in an application for a statutory compensation under Section 163A, which has to be computed more or less in accordance with the Second Schedule to the Motor Vehicles Act.

In an application under Section 166, compensation need not be restricted to the Second Schedule. However, the Supreme Court has, in several judgments, held that even in case of compensation for pecuniary loss in cases not covered by Section 163A, the Second Schedule would serve as a reasonable guideline for computation of pecuniary loss. However, compensation need not be restricted to pecuniary loss alone and in cases under Section 166, the Supreme Court has awarded compensation far in excess of what is being provided under the Second Schedule. Compensation has also been awarded for loss of amenities, loss of love etc., which are not contemplated under Section 163A. Of course, there are certain apparent errors in the Second Schedule which has been noted by the Supreme Court in various judgments, including Sarla Verma (supra). The multiplier applicable in the fourth column of Sarla Verma (supra) would apply in all cases whether under Section 163A or Section 166.

The deduction of one-third of the income of the deceased victim towards personal and living expenses, which is in accordance with Section 163A read with the Second Schedule, does not call for interference in an application under Section 163A. On the other hand, the multiplier should have been "17" and not "16".

It is true that the respondent claimants are not before us. However, an appeal is a continuation of the original proceedings and in a claim case, the court is obliged to see that the claimants are given compensation, which is just and proper. We, accordingly, modify the award to the extent that the multiplier applied is "17" and not "16", as per the fourth column in paragraph 40 of Sarla Verma (as reported in Supreme Court Cases).

The respondent claimants shall be entitled to compensation as follows:

Add: Annual Income

=

RS.

36,000/-

Less: one-third, towards personal expenses, i.e., ( RS. 36,000/- �)

=

(-)

RS.

12,000/-

RS.

24,000/-

Add: Multiplier ''17'', applicable to age group of 26-30 ( RS. 24,000/- x 17)

=

RS.

4,08,000/-

Add: Funeral expenses etc.

=

(+)

RS.

2,000/-

Add: Loss of estates

=

(+)

RS.

2,500/-

Total

=

RS.

4,12,500/-

We are also surprised that the learned Tribunal should have awarded interest @ 9% per annum only in case of default and not otherwise.

In view of the judgments of the Supreme Court in Surti Gupta v. United India Insurance Co. and Anr., reported in 2015 SAR (Civil) 571 and Civil Appeal Nos.348-349 of 2015, arising out of SLP (C) Nos.4897-4898 of 2014 (Smt. Neeta w/o Kallappa and Ors. etc. v. the Div. Manager, MSRTC, Kolhapur), where the Supreme Court held the High Court and the Tribunal had erred in awarding interest at a rate less than 9% per annum, we direct that the claimants would be entitled to interest at the rate of 9% per annum from the date of filing the claim application till full liquidation of the amount awarded in terms of this judgment and order to the claimants.

The amount awarded by us shall be deposited in the learned Tribunal positively within sixty days from the date of receipt of a certified copy of this judgment and order and on deposit, compliance shall be reported to this Court. On deposit of the entire awarded amount with the learned Tribunal, it will be open to the appellant insurer to withdraw RS. 25,000/- deposited in this Court.

The appeal and the application are disposed of.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the appellant, subject to compliance of all requisite formalities.

Sahidullah Munshi, J. - I agree.