Bimla vs Partap Singh And Others

Arun Kumar Tyagi, J

The claimant Bimlamother of deceasedSuresh Ku mar has filed the present appeal seeking enhancement of the compensation awarded by learned Motor Accident Claims Tribunal, Rohtak (for short 'the Tribunal') vide award dated 10.11.2005 passed in MACT Petition No.36 of 2003 titled as Bimla Vs. Partap Singh and others on account of death of Suresh Kumar due to injuries suffered in a motor vehicle accident which took place on 13.04.2003.

The claimant filed the abovesaid claim petitio n under Section 163A of the Motor Vehicles Act, 1988 (for short 'the M.V. Act') on the averments that on 13.04.2003 the deceased was driving Jeep bearing registration No.HR153097. When he reached near village Sisar Khas, the rear tyre of the Jeep bursted and the Jeep fell into the pits due to which deceasedSuresh Kumar received mu ltiple injuries. He was taken to the PGI, Rohtak where he succumbed to his injuries on 14.04.2013. DDR No.22 dated 27.04.2003 was registered at Police Station Meham, District Rohtak regarding the accident.

While pleading that deceasedSuresh Kumar was a ged about 24 years and earning Rs.2,500/ per month by working as a driver and claiming herself to be dependent and legal representative of the deceased, the claimant prayed for award of compensation of Rs.5,00,000/ with costs and interest at the rate o f 18% per annum against respondents No.1 to 3 jointly and severally.

In their joint written statement respondents No.1 and 2 owners admitted the claim except that the amount claimed is on higher side. In its written statement respondent No.3 took preliminary objections qua deceasedSuresh Kumar not having val id and effecting driving licence at the time of the accident and breach of the terms and conditions of the insurance policy, controverted material averments made in the petition and denied its liability.

The Tribunal framed the issues and recorded the evidence produced by the parties. On perusal of the material on record and consideration of the submissions made by the learned Counsel for the parties the Tribunal held that Suresh Kumar died due to injuries suffered in accident arising out of the use of the Jeep bearing registration No.HR153097. The Tribunal assessed i ncome of the deceasedSuresh Kumar as Rs.2,500/ per month, dedu cted 1/3rd towards his personal expenses, applied the multiplier of 17 and by adding Rs.5,000/ towards medical treatment and fun eral expenses awarded total compensation of Rs.3,45,000/ to the claimant with costs and interest at the rate of 9% per annum and directed respondents No.1 to 3 to pay the compensation amount jointly and severally.

Feeling aggrieved, the claimant has filed present appeal for enhancement of compensation.

I have heard arguments addressed by learned Counsel for the appellant and learned Counsel for respondent No.3Insurance Company and have gone through the record.

Learned Counsel for the appellant has argued that the Tribunal did not properly assess income of the deceased. The Tribunal wrongly applied the multiplier of 17. The Tribunal awarded lesser amount towards medical treatment and funeral expenses and did not award any amount towards loss of estate and loss of consortium. The Tribunal also awarded lesser rate of interest. Therefore, the impugned award may be modified and the compensation awarded by the Tribunal may be enhanced. In support of his arguments, learned Counsel for the petitioner has placed reliance on the judgments in case Puttama and others Vs. K.L. Narayana Reddy and another : 2014(1) RCR (Civil) 443 (Supreme Court); Dulasia Bai and others Vs. Shikari Uraon and others : 2015(28) RCR (Civil) 328 (Chhattisgarh High Court); National Insurance Company Ltd. Vs. Smt. Vimla and others : 2017(2) MPWN 58 (Madhya Pradesh High Court) AND Pudukottai Vs. S. Amali Annamal and others : 2017(4) ACC 696 (Madras High Court).

On the other hand learned Counsel for respondent No.3 Insurance Company has argued that the Tribunal has awarded just and adequate compensation and the claimants are not entitled to enhancement of the amount awarded. Therefore, the appeal may be dismissed.

It may be observed at the very outset that in the present case, the findings of the Tribunal as to deceasedS uresh Kumar having died due to injuries suffered in accident arising out of the use of Jeep bearing registration No.HR153097 and entitle ment of the claimant to payment of compensation for his death have not been challenged by the respondents and the same being based on cogent and reliable evidence do not call for any interference by this Court.

In claim petition filed under Section 163A of the M.V. Act, amount of compensation has to be assessed as per the structured formula embodied in the Second Schedule of the M.V. Act. Learned Counsel for the appellant has stressed for modification of the same in view of the increase in cost of living since enactment thereof and the question which arises as to whether the structured formula can be modified.

In Master Mallikarjun Vs. Divisional Manager, The National Insurance Company limited and another : 2013 ACJ 2445 Hon'ble Supreme Court observed as under:

"8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non earning persons is to take the notional income as Rs.15,000/ per year. A child ca nnot be equated to such a nonearning person. Therefore, th e compensation is to be worked out under the non pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the nonpecuniary damages. In othe r words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.

Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick ."

In Puttama and others Vs. K.L. Narayana Reddy and another : 2014(1) RCR (Civil) 443 Hon'ble Supreme Court observed as under:

"56. The Central Government was bestowed with duties to amend the Second Schedule in view of Section 163A( 3), but it failed to do so for 19 years in spite of repeated observations of this Court. For the reasons recorded above, we deem it proper to issue specific direction to the Central Government through the Secretary, Ministry of Road Transport & Highways to make the proper amendments to the Second Schedule table keeping in view the present cost of living, subject to amendment of Second Schedule as proposed or may be made by the Parliament. Accordingly, we direct the Central Government to do so immediately. Till such amendment is made by the Central Government in exercise of power vested under subsection (3) of Section 163A of Act, 1988 or amendment is made by the Parliament, we hold and direct that for children upto the age of 5 years shall be entitled for fixed compensation of Rs.1,00,000/(rupees one lakh ) and persons more than 5 years of age shall be entitled for fixed compensation of Rs.1,50,000/ (rupees one lakh and fifty thousand) or the amount may be determined in terms of Second Schedule whichever is higher. Such amount is to be paid if any application is filed under Section 163A of the Act, 1988."

Due to modification of structured formula embodied in the Second Schedule of the M.V. Act being within the competence of the Central Government or the Parliament as observed by Hon'ble Supreme Court, the same cannot be deviated from except as directed by Hon'ble Apex Court In Master Mallikarjun's Case (Supra) and Puttama's Case (Supra) and compensation payable to the claimant has to be determined in terms of the Second Schedule of the M.V. Act.

The claimant pleaded in the claim petition and testified as PW1 that deceasedSuresh Kumar was earning Rs.2,50 0/ per month by working as a driver. In view of the same, assessment of income of the deceased as Rs.2,500/ per month by the Tribuna l cannot be said to be improper and inadequate. Since, there is no provision in the Second Schedule of the M.V. Act for addition of any amount towards future prospects, no addition can be made in income of the deceased at the time of his death towards future prospects.

As per the structured formula provided for in the Second Schedule of the M.V. Act, multiplier has to be applied on the basis of age of the deceased. It may also be observed here that in National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017 (4) R.C.R. (Civil) 1009, Hon'ble Supreme court held that the age of the deceased should be the basis for applying the multiplier. In the present case deceasedSuresh Kumar was proved to be aged ab out 28 years at the time of his death as per his date of birth i.e. 14.07.1974 mentioned in his driving licence Ex.R1. In view of the age of the deceased being 28 years at the time of his death and Second Schedule of the M.V. Act, multiplier of 18 was applicable for assessment of the amount of compensation and the Tribunal erred in applying the multiplier of 17. When multiplier of 18 is so applied the amount of death compensation comes to (Rs.2500 x 12 x 18 = Rs.5,40,000/). Out of the above said amount 1/3 rd will be liable to be deducted towards personal expenses of the deceased as per Note to Para I of the Second Schedule of the M.V. Act. When so deducted, amount of compensation payable to the claimant comes to (Rs.5,40,000 - Rs.1,80,000 =) Rs.3,60,000/.

Under Para 3 of the Second Schedule of the M.V. Act, amount of Rs.2,000/ can be awarded towards funeral expenses, Rs.5,000/ can be awarded towards loss of consortiu m if beneficiary is the spouse, amount of Rs.2,500/ can be awarded tow ards loss of estate and actual expenses incurred before death supported by bills/vouchers but not exceeding Rs.15,000/ can be awarded towards medical expenses.

In Pranay Sethi's Case (Supra) Hon'ble Supreme Court observed that the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/, Rs.40,000/ and Rs.15,000/ respective ly. However, the observations made in abovesaid case are restricted in applicability to claim petitions filed under Section 166 of the M.V. Act and are not applicable to the present claim petition under Section 163A of the M.V. Act.

DeceasedSuresh Kumar is proved to have remain ed admitted in the Hospital w.e.f. 13.04.2003 to 14.04.2003. The Tribunal has awarded amount of Rs.5,000/ towards medical tr eatment and last rites of the deceased but the Tribunal did not award any amount towards loss of estate. In the facts and circumstances of the case, the claimantmother of the deceased is entitled to an a mount of Rs.2,000/ towards funeral expenses and amount of Rs.2,500/ towards loss of estate and Rs.5,000/ towards actual expenses incur red on medical treatment of the deceased.

The observations in Puttama and others Vs. K.L. Narayana Reddy and another : 2014(1) RCR (Civil) 443 (Supreme Court); Dulasia Bai and others Vs. Shikari Uraon and others : 2015(28) RCR (Civil) 328 (Chhattisgarh High Court); National Insurance Company Ltd. Vs. Smt. Vimla and others : 2017(2) MPWN 58 (Madhya Pradesh High Court) AND Pudukottai Vs. S. Amali Annamal and others : 2017(4) ACC 696 (Madras High Court) relied upon by learned Counsel for the appellant in support of his arguments for modification of formula given in Second Schedule of the M.V. Act are not applicable to the facts of present case and are not of any help to the appellant.

Accordingly, compensation payable to the claimants on account of death of Suresh Kumar is tabulated as under:

Sr.

Head

Compensation

No.

1.

Monthly income of the deceased

Rs.2,500/ per month

2.

Annual Dependency

Rs.2500 x 12 = Rs.30,000/

3.

Loss of Dependency

Rs.30000 x18 =Rs.5,40,000/

4.

Deduction of 1/3rd on account of

Rs.540000 - 180000 (1/3) =

personal expenses

Rs.3,60,000/

5.

Medical expenses

Rs. 5,000/

6.

Funeral Expenses

Rs.2,000/

7.

Loss of Estate

Rs.2,500/

Total Compensation

Rs.3,69,500/-

In the present case, the Tribunal directed the payment of compensation amount with interest at the rate of 9% per annum from the date of filing of the claim petition till realization of the whole amount which cannot be said to be improper and inadequate and the same does not call for any modification.

It follows from the above discussion that the claimant is entitled to payment of compensation of Rs.3,69,500/ with costs and interest at the rate of 9% per annum from the date of filing of the petition till realization. The amount of Rs.3,45,000/ awarded to the claimant by the Tribunal shall be liable to be deducted from the amount calculated as above.

The appeal is, accordingly, allowed with costs in terms of the above said modifications of the award dated 10.11.2005.