Oriental Insurance Co. Ltd. vs Babli Devi and Others

Virender Singh, J.—One Subash Chander S/o. Sh. Duni Chand is the deceased in this case who on 23rd of June' 2004 died in a vehicular

accident while travelling in a Matador bearing registration No. JK14-9457 being plied by one Hakam Singh-respondent No. 7, owned by

Kuldeep Raj -respondent No. 6 and insured by Oriental Insurance Company Limited, Jammu. The deceased was of the age of 30 years at the

time of accident and working as Cook with M/s. J.P. Industries (Kishtwar) getting monthly wages to the tune of Rs. 3090/- per month as reflected

in the document placed on the record. In addition to it, he was also earning about Rs. 2000/3000 per month from the agricultural sources. A claim

petition u/s 166 of Motor Vehicle Act seeking compensation was filed before the Motor Accident Claims Tribunal, Kishtwar by Smt. Babli Devi,

widow of the deceased, her two minor daughters namely Ms. Archana Devi aged 05 years and Ms. Seema Devi aged 03 years along with parents

of the deceased namely Sh. Duni Chand (father) and Smt. Busa Devi (mother).

It is worth mentioning that at the time of the accident, Smt. Babli Devi was pregnant and during the pendency of the claim petition, she gave birth to

a male child. The learned Tribunal has taken that aspect also into consideration while awarding the compensation to the legal representatives of the

deceased.

After the Insurance Company, owner and driver had put in appearance and submitted their respective objections, the following issues were

framed from the pleadings of the parties:-

Whether the deceased has died due to the vehicular accident while travelling in the vehicle bearing registration No. JK14-9457 on 23-06-2004

at Shalimar Kishtwar which accident took place due to the rash and negligent driving of the vehicle by its driver? OPP.

Whether the petitioners are the legal heirs of the deceased as such, entitled to compensation of award in terms of Section 166 M.V. Act? OPD

In case issues No. 1 and 2 are proved in affirmative to what amount of compensation the petitioners are entitled to and from whom? OPP

Whether the petitioners are not entitled to any compensation as the offending vehicle was not in order and the Vehicle was driven by an

unauthorized person not holding a valid driving license. OPR-1

Whether the owner and driver have violated the terms and conditions of the Insurance Policy, if so, how and what would be its effect? OPR-1

Relief.

Ultimately the learned Tribunal held that the accident had taken place due to rash and negligent driving of Hakam Singh?driver of the offending

vehicle. While deciding the main issue with regard to the quantum of compensation, the learned Tribunal took into account the monthly income of

the deceased as Rs. 5000/- per month from all sources and deducting one third out of his total monthly income as his personal expenses, assessed

the income as Rs. 3,334/- per month. Considering the age of the deceased, multiplier of 17 was applied and as such an award of a sum of Rs.

6,80,136/- (Rupees Six Lacs eighty thousand one hundred thirty six only) was passed in favour of the claimants with an interest @ 6 per cent from

the date of institution of the petition till its realization. The entire amount of compensation was then divided into six equal shares, which include

share of the male child also born during the pendency of the petition. Each share turned out to be Rs. 1,13,356/-. So far as the share of two minor

daughters and minor son is concerned, the Tribunal, out of their shares diverted a sum of Rs. 40,068/- (Rs. 13,356 x 3) to the share of widow of

the deceased for the purpose of bringing up three minors, which turned out to be Rs. 1,53,424/- and directed deposit of the share of each of the

minor in a nationalized Bank till their attaining the age of majority, observing further that the widow of the deceased would be entitled to spend

interest on the deposited amount accruing to the share of three minors for their health, welfare and education.

Aggrieved of the impugned award, the Oriental Insurance Company Limited has filed the instant appeal.

Heard Mr. D.S. Chouhan, learned counsel for the appellant, Mr. R. Koul appearing for respondent nos. 1 to 5 [claimants] and Mr. Hamal for

Mr. Kuldeep Raj [owner of the offending vehicle-respondent No. 6]. It is conceded by Mr. Chouhan that presence of Hakam Singh, driver of the

vehicle is not required.

Mr. Chouhan submits that the offending vehicle was carrying passengers more than the authorized capacity as per the route permit and therefore,

this would amount to violation of terms and conditions of the Insurance policy, absolving Insurance Company of its liability to satisfy the award and

indemnify the owner.

When confronted with the facts of the present case, Mr. Chouhan submits that passengers being carried in the offending vehicle were in fact not

more than the prescribed capacity and therefore, the aforesaid argument perhaps will not be available to him. As per the route permit, the persons

travelling in the Matador were not beyond the maximum number as prescribed in the route permit. Therefore, the Insurance Company cannot

escape its liability to satisfy the award.

Even otherwise, the plea taken by Mr. Chouhan with regard to overloading deserves to be rejected in view of the law laid down by Apex Court

in case National Insurance Company Limited v. Anjana Shyam & Ors., reported in AIR 2007 (SCW) 5237.

Following the ratio of the aforesaid judgment, this Court in case Oriental Insurance Company Limited v. Girija Bhat @ Shashoo, reported in 2008

(2) JKJ 1 [HC] in which appellant-Insurance Company had taken plea that the offending vehicle was carrying the passengers against the

authorized capacity, rejected the said plea and held the Insurance Company to satisfy the award. In this Judgment, this Court has also considered

another judgment of this Court rendered in case Oriental Insurance Company Limited v. Dhanwanti Devi, reported as 2007 (2) JKJ 419 [HC]

wherein while dealing with the issue of overloading of passengers against the prescribed limit within the parameters of Section 149(2) of the Motor

Vehicles Act, ultimately, held that liability can be avoided by an Insurance Company only if it can bring its case in any of the conditions prescribed

u/s 149(2) of Motor Vehicles Act' 1988 and the Insurance Company can not avoid its liability to pay the compensation arising out of the use of the

motor vehicle for any other violation.

Mr. Chouhan then joins issue with regard to the quantum of compensation stating that it is on a higher side. Even this contention deserves to be

repelled.

The total amount awarded in favour of the claimants is Rs. 6,80,136/-(Rupees six Lacs eighty thousand one hundred thirty six only). The

documentary evidence on the record is that the monthly income of the deceased was Rs. 3,090/-per month as he was working as a Cook with one

private concern at Kishtwar. The witnesses on oath have stated that besides earning the aforesaid amount, he was also earning about Rs.

2000/3000 per month from the agricultural sources and as such, the total income of the deceased was Rs. 6000/- per month. In cross examination

to one of the witnesses namely PW Randeep Kumar, a specific question was put by the appellant-Insurance Company with regard to the income

of the deceased in which the witness stated that the deceased was working in J.P. Company from 1997 till 2004 as helper Cook and in addition to

that he was a farmer and used to earn Rs. 2000/- per month from the agricultural sources. Learned Tribunal took the income of the deceased from

agricultural pursuits as Rs. 2000 per month and calculated it as Rs. 5000/- per month in all (Rs. 3000 + 2000). In my considered view, the

approach adopted by the Tribunal is absolutely just and proper. Deduction of one third as personal expenses from the monthly income is also

absolutely correct. After deducting the said amount, the income of the deceased comes to Rs. 3,334/-per month i.e., Rs. 40,008/- per annum.

The next issue comes for consideration is as to whether multiplier of 17 as awarded by the Tribunal in this case is correct or not. The age of the

deceased as has come on record was about 30 years. For applying suitable multiplier, one has to apply the same test as observed by their

Lordships in case titled Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , wherein it has been observed thus:-

In New India Assurance Co. Ltd. Vs. Charlie and Another, , thus court noticed that in respect of claims u/s 166 of the MV Act, the highest

multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive

years) and the lowest multiplier would be in respect of person in the age group of 60 to 70 years (normal retiring age). This was reiterated in Tamil

Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, (Susamma Thomas, Trilok Chandra and Charlie (for claims u/s 166 of MV

Act/ is given below in just a position with the multiplier mentioned in the Second Schedule for claims u/s 163-A of M.V. Act (with appropriate

declaration after 50 years).

Age of the deceased Multiplier scale as envisaged in Susamma Thomas Multiplier scale as adopted in Trilok Chandra Multiplier scale in Trilok

Chandra as clarified in Charlia Multiplier specified in second column in the Table in Second Schedule to MV Act. Multiplier actually used in

second Schedule to MV Act (as seen from the quantum of compensation)

Age of the Multiplier Multiplier Multiplier Multiplier Multiplier

deceased scale as specified in

scale as scale in actually

envisaged inadopted in second

Trilok used in

Susamma Trilok column in

Thomas Chandra Chandra as second

the Table in

clarified in Schedule to

Second MV Act (as

Charlia

Schedule to seen from

MV Act.

the quantum

of

compensation)

1 2 3 4 5 6

Up to 15 years 15 20 !

15 to 20 years 16 18 18 16 19

21 to 25 years 15 17 18 17 18

26 to 30 years 14 16 17 18 17

31 to 35 years 13 15 16 17 16 |

36 to 40 years 12 14 15 16 15

41 to 45 years 11 13 14 15 14

46 to 50 years 10 12 13 13 12

51 to 55 years 09 11 11 11 10

56 to 60 years 08 10 09 08 08

61 to 65 years 06 08 07 05 06

Above 65 years05 05 05 05 05

Tribunals/courts adopted and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in

column 2 of the Table above); some follow the multiplier with reference to Trilok Chandra (set out in column 3 of the Table above); some follow

the multiplier given in the second column of the Table in the Second Schedule to MV Act (extracted in column 5 of the Table above); and some

follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the Table

above). For example, if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per

Charlie, or 16 as per the multiplier given in column 2 of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the

Second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to

the retiring age. It is necessary to avoid this Kind of inconsistency. We are concerned with cases falling u/s 166 and not under 163-A of M.V.Act.

In cases falling u/s 16 of the M.V.Act, Devises Method is applicable.

We, therefore, hold that the multiplier to be used should be as mentioned in column 4 of the Table above (prepaid by applying Susamma

Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 for the age groups of 15 to 20 and 21 to 25 years, reduced

by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years

and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for

61 to 65 years and M-5 for 66 to 70 years.

Since age of deceased was about 30 years, the multiplier of 17 is applied by the learned Tribunal, which is absolutely on the basis of Sarla Verms's

case (supra).

In view of the above, I do not find that the learned Tribunal has faulted either in assessing the income of the deceased or applying the multiplier.

Therefore, the total amount of Rs. 6,80,136/- (Rupees six Lacs eighty thousand one hundred thirty six only) awarded as compensation in favour of

the claimants is absolutely just and does not call for any reduction. Even the interest @ 6% per annum granted by the Tribunal is also correct.

The net result is that the award impugned herein by the appellant-Insurance Company does not deserve to be disturbed on any count. Ordered

accordingly.

Conceded position is that the total amount already stands deposited with the Registrar Judicial of this Court. I have been informed that it is

deposited as F.D.R. with the J&k Bank Limited, branch High Court complex, jammu. Some of the amount has already been disbursed to the

claimants at different stages as is borne out from the records. The claimants thus shall be entitled to the entire awarded amount in terms of the

award of the learned Motor Accident Claims Tribunal kishtwar, minus the amount already received by them during the pendency of the instant

appeal. The interest accrued upon the awarded amount as F.D.R. shall also go to the share of the claimants in terms of the award.

Registrar Judicial to take all these aspects into account while disbursing the balance amount of the award to the claimants.