The National Insurance Company Limited vs Radhey Shyam Balmiki and Others

J.K. Ranka, J—Both these Civil Misc. Appeals u/Sec. 173 of the Motor Vehicles Act have been preferred by the non-claimant-appellant (Insurance Company) assailing the common award dt. 16/03/2015 passed by the Motor Accident Claims Tribunal, Bahrod in MACT Case No. 45/2012 & 31/2012.

Since facts and controversy involved are identical, both these appeals are being decided by this common order.

The relevant facts, necessary for disposal of the instant appeals, are that on 15/01/2010, while Manoj Kumar and Dhanraj Balmiki were going on motor cycle for attending duties in the morning shift in Ginni International Company and as soon as they reached Neemrana Circle at NH-8 at 5.45 am, a vehicle (Tanker) bearing No. RH-55-C-5549, which was being driven by this driver in rash and negligent manner, hit both of them as a result of which Manoj Kumar expired on the spot and Dhanraj Balmiki sustained grievous injuries. FIR to this effect was lodged in the concerned police station and the police, after investigation, filed challan against driver u/Sec. 279, 337, 338 and 304-A IPC before the competent court of jurisdiction.

Claim petition was filed before the ld. Tribunal by the dependents of deceased Manoj Kumar as also by the injured-Dhanraj Balmiki and the ld. Tribunal, after considering each and every fact and material and evidence on record, awarded claim to the extent of Rs. 7,23,000/- in favour of the dependents of the deceased-Manoj Kumar and Rs. 3,15,329/- in favour of the claimant-respondent (injured- Dhanraj Balmiki) which has been assailed by the appellant-Insurance Company in the instant appeals.

Ld. counsel for the appellant submits that order of the ld. Tribunal is perverse as income was not proved by father of the deceased-Manoj Kumar and no evidence of any sort was placed on record about earning of income to the extent of Rs. 6,000/-. He further contended that the deceased was a bachelor a man of the age of 26 years and, therefore, multiplier ought to have been adopted taking into consideration average age of his father and mother while the ld. Tribunal has adopted the multiplier by considering age of the deceased. He further contended that the amount allowed for loss of love and affection to the tune of Rs. 50,000/- and funeral expenses to the tune of Rs. 25,000/- is excessive and exorbitant and the order of the ld. Tribunal, therefore, deserves to be reversed.

As regards the claim petition of the claimant-respondent (Dhanraj) is concerned, counsel submits that in this case also, no evidence was placed as to earning income of Rs. 6,000/- per month by the injured-Dhanraj and even the multiplier adopted of 16 is not proper. He contends that the Doctor, who issued disability certificate, did not appear in the witness box and therefore, the certificate issued by the Medical Board itself was doubtful. He further contends that the amount awarded under the head of medical bills and other expenses was highly excessive and the order of the ld. Tribunal, therefore, deserves to be reversed.

I have considered the arguments advanced by counsel for the appellant and in my view, the order of the Tribunal is a detailed one and the Tribunal has considered each and every issue and has elaborately discussed all the issues which were framed. Admittedly, both i.e. the deceased namely; Manoj Kumar and the injured-Dhanraj were going on the same motorcycle for attending their duties in Ginni International Company where on the fateful day of 15/01/2010, on account of rash and negligent driving by the driver of the vehicle bearing No. RH-55-C-5549, the accident took place due to which Manoj Kumar expired on the spot while Dhanraj sustained serious injuries and later on treated in SMS Hospital at Jaipur.

The ld. Tribunal has taken into consideration the FIR, charge-sheet, notice u/Sec. 133 of the Motor Vehicle Act, mechanical report, inspection of the site including seizure of motorcycle, registration certificate, insurance cover note and other material and in my view, has taken into consideration each and every aspect. An amount of Rs. 6,000/- per month has been assessed as income of both Manoj Kumar and Dhanraj which in my view has been rightly assessed and the said amount for the employees of an international company, cannot be said to be excessive or unreasonable in any manner. The claimants-respondents led evidence about earning of income to the extent of Rs. 6,000/- per month but no material contrary to it has been placed on record by the appellant before the Tribunal so as to come to a conclusion that the said two persons were not earning income to the extent of Rs. 6,000/- per month. Accordingly, taking into consideration the fact that the accident is of the year 2010, even otherwise, the salary of a person, employed in an International Company, can be said to be Rs. 6,000/- per month and I do not find any infirmity in this regard.

In so far as the claim of the claimants of deceased Manoj Kumar are concerned, the Tribunal, after taking into consideration the judgment of the Hon''ble Apex Court in the case of Amritbhanu Shali v. National Insurance Company Ltd. : MACD 2012 (SC) 147, has rightly taken into consideration the multiplier in accordance with age of the deceased, who is admittedly said to be of the age of 26 years. Recently, the Hon''ble Apex Court (Three Judges Bench) in Munna Lal Jain and Others Vs. Vipin Kumar Sharma and Others(2015) 2 ACC 806 : (2015) ACJ 1985 : (2015) 7 AD (SC) 185 : (2015) 4 ALD 114 : (2015) 4 ALLMR 436 : (2015) 4 BomCR 72 : (2015) 3 CGLJ 93 : (2015) 3 RCR(Civil) 447 : (2015) 3 RLW 2021 : (2015) 6 SCALE 522 : (2015) 6 SCC 347 : (2015) 2 WLN 113 has also held ad-infra:--

"12. The remaining question is only on multiplier. The High Court following Santosh Devi (supra), has taken 13 as the multiplier. Whether the multiplier should depend on the age of the dependants or that of the deceased, has been hanging fire for sometime; but that has been given a quietus by another three-Judge Bench decision in Reshma Kumari (supra). It was held that the multiplier is to be used with reference to the age of the deceased. One reason appears to be that there is certainty with regard to the age of the deceased but as far as that of dependants is concerned, there will always be room for dispute as to whether the age of the eldest or youngest or even the average, etc., is to be taken. To quote:

"36. In Sarla Verma, this Court has endeavoured to simplify the otherwise complex exercise of assessment of loss of dependency and determination of compensation in a claim made under Section 166. It has been rightly stated in Sarla Verma that the claimants in case of death claim for the purposes of compensation must establish (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. To arrive at the loss of dependency, the Tribunal must consider (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. We do not think it is necessary for us to revisit the law on the point as we are in full agreement with the view in Sarla Verma."

In Sarla Verma (supra), at paragraph-19, a two-Judge Bench dealt with this aspect in Step 2. To quote:

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Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased."

The multiplier, in the case of the age of the deceased between 26 to 30 years is 17. There is no dispute or grievance on fixation of monthly income as Rs. 12,000.00 by the High Court."

Keeping in view the above judgments, the deceased being a major and was of the age of 26 years and therefore, the multiplier has rightly been adopted taking into consideration his own age and I do not find any infirmity in adopting the multiplier.

In so far as the amount allowed in the case of death of Manoj Kumar on account of loss of love and affection at Rs. 50,000/- and funeral expenses to the tune of Rs. 25,000/- cannot be said to be excessive or unreasonable considering the fact the Hon''ble Apex Court has held in several cases that on account of love and affection, reasonable amount is to be allowed. Accordingly, I do not find any infirmity in allowing amount to the extent of Rs. 50,000/- towards loss of love and affection and Rs. 25,000/- against funeral expenses.

In so far as the amount allowed in the case of injured Dhanraj is concerned, admittedly he received serious injuries and fracture on both legs and also received serious injuries on head and was referred to SMS Hospital, Jaipur where he remained admitted from 15/01/2010 to 27/01/2010 and incurred substantial amount in medical treatment and others. The Tribunal has considered the disability to the extent of 22.3% as per the disability certificate issued by the Medical Board of Government Hospital, Alwar and the said certificate cannot be doubted in any manner and to say that the concerned Doctor did not appear in evidence, in my view, will be too much as once a Medical Board of a Govt. Hospital has opined about certain disability, unless contrary material is placed, it cannot be discarded or disbelieved. As regards assessing income of the injured-Dhanraj is concerned, the Tribunal has assigned reasons for the same and in my view, the income assessed cannot be said to be excessive. The multiplier and other factors considered by the Tribunal looking to the age of injured-Dhanraj cannot be said to be unjust in any manner and the medical expenses allowed, being based on vouchers placed on record, the same are found to be reasonable.

For the reasons assigned and discussion made herein above, both the appeals, being devoid of merit, are hereby dismissed.