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Judgment
This appeal has been filed under section 173 of the Motor Vehicles Act (for short hereinafter called as the Act) against the award dated
12.12.2003 passed by the learned Motor Accidents Claims Tribunal, Jammu (for short hereinafter referred to as the Tribunal) in a claim petition
titled Parsina Devi and others versus Dalip Kumar an4 others which was filed by the legal representatives and dependents of the deceasedVijay
Kumar, for claiming compensation under sections 140/166 of the Act, who had died in a vehicular accident on 6.10.2001 near Pindi Sarochan, R.
S. Pura with Bus bearing registration No. JK02D 9221 which was driven by its driver rashly and negligently and in the process it hit the Scooter of
the deceased as a result of which he sustained grievous injuries and succumbed to them on the next day.
The Tribunal after framing issues and recording the evidence of the parties awarded Rs.5,88,680/ in favour of the claimants with interest @ 9%
per annum from the date of filing the claim petition till realisation.
The short question which has been raised in this appeal is whether the 'General Damages, can be awarded when the compensation has been
assessed by multiplier method. Mr. Thakur, learned counsel appearing for the appellantcompany submitted that the compensation in this case has
been assessed by applying the multiplier method, but the learned Tribunal has erroneously also awarded compensation on account of loss of
'consortium', and loss of 'Estate'. On the other hand, Mr. B. L. Kalgotra, learned counsel appearing for the claimants respondents submitted that
there is no bar for awarding compensation under the heads of loss of 'consortium' as well as loss to the 'Estate'. He submitted that even when an
application is moved under section166 of the Act, the compensation can be assessed as per the Second Schedule attached to section 163 A, after
applying the method of multiplier as envisaged in the section. The claimants are also entitled to compensation for loss of 'consortium, and loss to the
'Estate'.
I have given my thoughtful consideration to the submission made by the learned counsel for the parties and also perused the record.
Section166 of the Act envisages that an application for compensation arising out of an accident of the nature specified in subsection(l) of section
165 may be made by the category of persons detailed/specified therein. For facility of reference, Section166 is reproduced as under:
Application for compensation:( 1) An application for compensation arising out of an accident of the nature specified in sub'section(l) of
section 165 may be made
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be
made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be
impleaded as respondents to the application.
Section 163 A of the Act has laid down special provisions as to the payment of compensation on structured formula basis. This section also
reads as under:
163 A. Special provisions as to payment of compensation on structured formula basis: (1) Notwithstanding anything contained in the Act or in any
other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to
pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second
schedule, to the legal heirs or the victim, as the case may be.
Explanation: For the purposes of this subsection, ""permanent disability"" shall have the same meaning and extent as in the Workmen's Compensation
Act, 1923 (8 of 1923).
(2) In any claim for compensation under subsection, the claimant shall not be required to plead or establish that the death or permanent
disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles
concerned of any other person.
(3) The Central Government may, keeping in view the cost of living, by notification in the Official Gazette, from time to time amend the Second
Schedule.
When a claimant claims compensation on the basis of structured formula, as per Second Schedule attached to the Act, the amount of
compensation so arrived at in the case of fatal accident claim shall be reduced by l/3rd in consideration of the expenses which the victim would
have incurred towards maintaining himself had he been alive. In addition to this, compensation as per the structured formula, the ""General
Damages"" are to be awarded in case of death, i.e. 'Funeral Expenses', 'loss of consortium', if beneficiary is the spouse, 'loss of Estate' and Medical
Expenses, but when the complainant has not claimed compensation on the basis of compensation on the structured formula then the 'General
Damages' as per Second Schedule attached to the Act are not to be awarded.
A full Bench of Punjab and Harayana High Court in case reported as AIR 1979 Punjab and Haryana 50, Lachhman Singh and others versus
Gurmit Kaur and others, while assessing the damages has laid down the following principles:
(1) The compensation to be assessed is the pecuniary loss caused to the dependents by the death of the person concerned, and no compensation
is to be assessed on any extraneous consideration like love, affection, mental agony or any such similar consideration. Solatium is alien to the
concept of compensation;
(2) For the purpose of calculating the just compensation, annual dependency of the dependents should be determined in terms of the annual loss
accruing to them due to the abrupt termination of life. For this purpose, annual earning of the deceased at the time of the accident and the amount
out of the same which he was spending for the maintenance of the dependents will be the determining factor. This basic figure will then be
multiplied by a suitable multiplier;
(3) The suitable multiplier; as referred to in 2 above, shall be determined as held in Sudhakar's case (AIR 1977 SC 1189) (supra), decided by the
Supreme Court as well as in Mallet's case (1969 Ace CJ 312) (HL) (supra), by taking into consideration the number of years of the dependency
of the various dependents, the number of years by which the life of the deceased was cut short and the various imponderable factors such like early
natural death of the decease, his becoming incpabable of supporting the dependents due to illness or any other natural handicap or calamity, the
prospects of the remarriage of the widow, the coming up of age of the dependents and their developing their independent sources of income as
well as the pecuniary benefits which might accrue to the dependents on account of the death of the person concerned. Such benefits, however,
should not include the amount of the insurance policy of the deceased to which the dependents may become entitled on account of its maturity as a
result of the death.
(4) The method adopted in certain decision of this Court of multiplying the amount of the annual loss to the dependents with the number of years by
which the life has been cut short without anything else cannot be sustained and all those decisions in which this view has been taken are hereby
overruled;
(5) The compensation cannot be assessed on the basis of the so called interest theory as the same provides the dependents with the capital as well
as the amount of annual loss earned by way of interest and it also suffers from a number of other defects, as have been discussed in this judgment;
and
(6) Consideration of ever growing inflation and the decrease in the money value are also not relevant for the purpose of assessment of
compensation.''
The Apex Court in Deepal Girishbhai Soni versus United Insurance Co. Ltd. Baroda, AIR2004 SC2107,has held as under:
''It may be true that Section 163B provides for an option to a claimant to either go for a claim under Section 140 or Section 163A of the Act, as
the case may be, but the same was inserted 'exabundanti cautela' so as to remove any misconception in the mind of the parties to the lis having
regard to the fact that both relate to the claim on the basis of nofault liability. Having regard to the fact mat Section 166 of the Act provides for a
complete machinery for laying a claim on fault liability, the question of giving an option to the claimant to pursue their claims either under Section
163A or Section 166 does not arise. If the submission of the learned counsel is accepted the same would lead to an incongruity.
It was further held by the Apex Court in the aforesaid case as under:
Having regard to the fact that S. 166 of the Act provides for a complete machinery for laying a claim on fault liability, the question of giving an
option to the claimant to pursue their claims either under S. 163A and 166 being final and independent of each other as statutorily provided, a
complainant cannot pursue his remedies there under simultaneously. One, thus, must opt/elect to go either for a proceeding under S. 163A or
under S. 166 of the Act, but not under both.
Under Sections 163 A (2) of the Act, when an application is moved for compensation on the basis of structured formula, the claimant shall not
require to plead or to establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act
or neglect or default of the owner of the vehicle or vehicles concerned or of any other person and the compensation is to be awarded as per
Second Schedule appended to it. When an application under section 166 of the Act has been moved for compensation, the claimant shall require
to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to the wrongful act or neglect
or default of the owner of the vehicle. Under sections 163Aand 166 of the Act a complete different procedure has been prescribed.
Therefore, the remedies under sections 163 A and 166 of the Act are alternate and independent to each other and not additional.
Once the compensation has been assessed under section 166 by applying multiplier method then the 'General Damages' under the heads of
'consortium' and loss of 'Estate' cannot be awarded, as love and affection, mental agony and other materials cannot be taken into consideration.
While assessing the compensation under section 166, the income and age of the deceased at the time of death, dependency and age of the claimant
is to be taken into consideration and then multiplier method is to be applied.
For the reasons mentioned above, the award is modified to the extent that the claimantsrespondents are not entitled to any compensation under
the heads of loss of 'consortium' and loss of 'Estate'. Therefore, Rs. 15,000/ awarded under each head totalling Rs. 30,000/ is deleted out of the
compensation awarded by the Tribunal.
With the aforesaid modification, this appeal shall stand disposed of.