Oriental Insurance Co. Ltd vs Kanchan Devi And Others

Applicant seeks condoning delay of 53 days in filing this appeal against the judgment and award dated 20.12.2017 passed in file No. 63/Claim by the learned Motor Accident Claims Tribunal (MACT), Doda (for short the Tribunal).

In view of the aforesaid submissions, delay is condoned.

Appeal is taken on Board.

With the consent of both the parties, this appeal is taken up for final consideration at this stage itself since the question involved in this appeal is only with regard to quantum of compensation.

This appeal has been preferred under section 173 of the Motor Vehicles Act, 1988 by the appellant against the judgment and award dated 20.12.2017 passed by the learned Motor Accident Claims Tribunal (MACT), Doda in file No. 63/Claim on the following questions of law:

"i) Whether the learned Presiding Officer, Motor Accidents Claims Tribunal, Doda, was justified in applying multiplier of 18 while awarding compensation to the dependants of the deceased while taking into consideration the age of the deceased instead of the age of the Claimants?

ii) Whether the learned Presiding Officer, Motor Accidents Claims Tribunal, Doda, while awarding compensation in death case resulting from the vehicular accident can allow interest at the rate of 7.5% per annum especially when with the change in economy the banks have lowered the rates of interests on fixed deposits?

iii) Whether the compensation awarded is just, reasonable and based on reliable evidence?

The brief facts arising for consideration in this appeal are that one Sunil Kumar was died as a result of accident which occurred on 01.07.2015 at Ghartall Bag near Nai Dangri, Doda-Bhaderwah road due to rash and negligent driving by the driver of the offending vehicle bearing registration No. JK 02BA-4877 (Bus). It is stated that the deceased was riding motorcycle and hit by the said vehicle coming from the opposite direction, as a result of which, the deceased sustained fatal injuries and died. The claimants-respondent Nos. 1 and 2 herein being father and mother of the deceased have filed their claim petition. The respondent No. 1-insurance company, appellant herein has filed the objections to the claim petition stating therein that the offending vehicle was being driven in contravention of the terms, conditions and limitations to the use of the vehicle prescribed in the policy. On pleading of the parties, following issues were framed:

"Whether an accident took place on 01.07.2015 at Gartall Bag near Nai Dangri on Doda-Bhaderwah road within the jurisdiction of P/S Bhaderwah when the deceased Sunil Singh s/o Ishwar Singh R/O Kathawa, A/P Bug Tehsil Thathri who was plying motor cycle and coming from the opposite side was hit by the offending vehicle bearing registration No: JK02BA-4877 (S-2000 Bus) which was on its way from Doda towards Bhaderwah, driven rashly and negligently by the driver of the offending vehicle, respondent No. 3, as a result of which the deceased sustained fatal injuries and died on spot?

OPP

Whether the driver of the offending vehicle was not holding a valid driving licence at the time of accident?

OPR-1

Whether the vehicle was overloaded at the time of accident and was being driven in violation of the terms and conditions of the Insurance policy, if so, what is its effect on the claim petition?

OPR-1

Whether there was a collision of bus and a motor cycle which was being driven by the deceased in a rash and negligent manner and caused the accident, as such, the answering respondent is not liable to pay the compensation to the petitioners.

OPR1

In case Issue No. 1 is proved in affirmative whether the petitioners are entitled to any compensation under Motor Vehicle Act and if so, from who and to what extent?

OPP

Relief."

The respondent Nos. 1 and 2 (claimants) in support of their claim have produced and examined Shabir Ahmed, Inderjeet Kumar besides Iswar Singh-respondent No. 2 himself as witnesses. Respondent No. 2 has stated that the Bus which was coming from Doda towards Bhaderwah being driven rashly and negligently by its driver and hit the motorcycle coming from the opposite side due to which his son(deceased) was died on spot. The copies of the FIR and Final Report have also been produced by him in support of their claim.

Appellant-insurance company did not lead any evidence in support of its evidence and ultimately after considering the issue No. 1 in the claim petition, the learned Tribunal on the basis of copies of the FIR and Final Report had rightly decided the issue No. 1 in favour of the claimants as there was no rebuttal on behalf of the appellant.

The appellant-insurance company has also failed to produce any witness with regard to the rest of the issues. The onus of which was on the appellant, as such, the only issue is under consideration with regard to what amount of compensation the claimants are entitled to and who would be responsible to pay compensation and in what proportion.

While deciding first issue, the question raised by the appellant is that the multiplier adopted by the Tribunal should be justified with regard to the age of the claimants instead of the age of the deceased. Thus, the Tribunal, according to the appellant, has wrongly applying the multiplier of 18 while taking into consideration the age of the deceased. This issue was considered by the Apex Court in Sube Singh and anr. v Shaym Singh (Dead) and ors, (2018) 3 SCC 18 and it was held that the age of the deceased should be the basis of the multiplier. This issue further came up for consideration before the Apex Court in M/S Royal Sundaram Alliance Insurance Company Ltd. v Mandala Yadagari Goud and others decided on 09.04.2019. The Apex Court, while considering all issues, has held in paragraph No. 1 and has reiterated this issue again in paragraph No. 13 of the reporting, which are reproduced as under:

"1. The only legal issue canvassed before us in these matters, which are in the nature of cross appeals, is that in the case of a motor accident where there is death of a person, who is a bachelor, whether the age of the deceased or the age of the dependents would be taken into account for calculating the multiplier.

We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of three Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents."

Admittedly, the deceased was 22 years old at the time of his death and, as such, in view of the Sarla Verma (Smt.) and ors. v Delhi Transport Corporation and anr, (2009) 6 SCC 121, the multiplier which was to be adopted was 18. Thus, the Tribunal has rightly considered the age of the deceased and adopted the multiplier of 18. Further, while considering the income of the deceased in view of the judgment of the Supreme Court in National Insurance Company Ltd. v Pranay Sethi and others, (2017) 16 SCC 680, since the deceased was self employed, the Tribunal has rightly awarded an increase of 40% of the actual income of the deceased towards his future prospects and after deduction of 50% towards personal expenses. Keeping in view the number of dependants, the loss of income of the deceased was taken as Rs. 4550/- per month. Thus, the total compensation which was granted under different heads, i.e. on account of loss of dependency, last rites and for loss to estate as Rs. 9,82,800, Rs. 15,000/- and Rs. 15,000/-respectively. Therefore, the Tribunal has rightly awarded the compensation which is just and reasonable based on the evidence produced by the claimants before the learned Tribunal. This answers the third question also raised by the appellant. The interest of 7.5% has rightly been awarded by the Tribunal. Thus, there is no infirmity in the award passed by the learned Tribunal.

For the aforesaid reasons, this appeal is without any merit and is dismissed accordingly. File be consigned to the records after due registration.