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Judgment
The above noted writ petitions (OJC Nos. 10503/2000, 10504/2000, 3234/2002 and 3235/2002) and Miscellaneous Appeals (M.A. Nos. 737/1998 and 349/1999) are directed against the common award dated 11.9.1998 passed by the Second Motor Accident Claims Tribunal, Cuttack in Misc. Case Nos. 394 of 1990, 395 of 1990 and 396 of 1990.
Claim Misc. Case Nos. 394 of 1990, 395 of 1990 and 396 of 1990 came to be filed before the Second Motor Accident Claims Tribunal, Cuttack (hereinafter referred to as ''the Tribunal'') for grant of compensation in a motor accident.
In Misc. Case No. 394 of 1990, Nirupama Mahalik, Krushna Chandra Mahalik and Ratik Mahalik are the claimants. Misc. Case No. 395 of 1990 was filed by Nirupama Mahalik whereas Misc. Case 396 of 1990 was filed by Ratik Mahalik. In all the cases, the Oriental Insurance Company Limited and National Insurance Company Limited were arrayed as opposite parties.
Case of the claimants before the Tribunal was that on 27.12.1989, deceased Sudhakar Mahalik along with his wife Nirupama Mahalik (claimant No. 1 in Misc. Case No. 394 of 1990) and his minor son Ratik Mahalik (claimants No. 3 in Misc. Case No. 394 of 1990 and sole claimant in Misc. Case No. 396 of 1990) was going from Sudarsanpur to Puri in the jeep bearing registration number ORS 3803. At about 11.30 a.m. near Gopalpur, a truck bearing registration number OIC 4647 came in great speed from the back side without blowing any horn and dashed against the jeep from the back and then fled away. Due to dashing, the jeep capsized on the road and Sudhakar Mahalik, his wife-Nirupama Mahalik and their minor son Ratik sustained injuries on their person. They were immediately shifted to Dharmasala P.H.C. for treatment but the doctor at the P.H.C. declared Sudhakar to be dead. The offending truck was insured with Messers National Insurance Company Limited whereas the jeep was insured with Oriental Insurance Company Limited. The Tribunal on the basis of evidence available recorded a finding that the accident took place because of negligence of both the drivers of the jeep as well the truck and, therefore, both the Insurance Companies are liable to indemnify the loss in equal share. It found that the deceased Sudhakar Mahalik was an I.A.S. Officer and was aged about 35 years at the time of accident and was getting Rs. 4422/- towards his monthly salary at the time of his death. The Tribunal observed that his monthly contribution to his family was Rs. 3000/- per month which comes to Rs. 36,000/- per year and applying the multiplier 15, the total loss of dependency would come to Rs. 5,40,000/-. Having regard to the loss of estate, loss of consortium and funeral expenses, the Tribunal accordingly granted compensation of Rs. 5,49,500/- i.e. Rs. 5,50,000/- for the death of the deceased Sudhakar in Misc. Case No. 394 of 1990. In Misc. Case Nos. 395 of 1990 and 396 of 1990 the Tribunal found that claimants Nirupama Mohalik and her son Ratik Mohalik had sustained minor injuries and accordingly awarded compensation of Rs. 5,000/- for each of them.
As the compensation has been directed to be equally shared by both the Insurance Companies, National Insurance Company has filed M.A. No. 349 of 1999 and Oriental Insurance Company has filed Misc. Appeal No. 737 of 1998 challenging the aforesaid award in Misc. Case No. 394 of 1990.
Sub-section (2) of Section 173 of the Motor Vehicles Act, 1988 lays down that no appeal shall lie against the award of the Claims Tribunal if the amount under appeal is less than Rs. 10,000/-. Therefore, since no appeal lies against the award of the Claims Tribunal in Misc. Case Nos. 395 of 1990 and 396 of 1990, the Oriental Insurance Company and the National Insurance Company have respectively filed writ petitions bearing O.J.C. Nos. 10503 and 10504 of 2000 and O.J.C. Nos. 3234 and 3235 of 2002 challenging the validity for the award in Misc. Case Nos. 395 and 396 of 1990.
As all the above cases arise out of the common award of the Tribunal, they were heard together and are disposed of by this judgment.
Let us first take up the appeals filed by the Insurance Companies (Misc. Appeal Nos. 737 of 1998 and 349 of 1999). The Tribunal has held that the death of Sudhakar Mahalik and sustaining of injuries by Nirupama Mahalik and her son Ratik were caused due to the rash and negligent driving of the respective drivers of both the vehicles and accordingly it held that both the Insurance Companies are liable to indemnify the loss in equal share.
It has been authoritatively laid down by the Supreme Court that an Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merit only if the conditions precedent mentioned in Section 170 of the Motor Vehicles Act, 1988 are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence (See Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, ).
Both the Insurance Companies having not followed the above procedure, they are debarred from contesting the amount on merit in their appeal.
Besides the above, none of the counsel for the Appellants has challenged the findings of the facts recorded by the Tribunal. The eye witnesses P.Ws. 2, 3 and 4 stated that on the date of occurrence at about noon the offending jeep bearing registration number ORS 3803 was moving at a high speed and at that time the offending truck bearing registration number OIC 4647 dashed against the said jeep from its back side as a result of which the jeep capsized on the road and deceased Sudhakar Mahalik who was in the jeep sustained severe injuries leading to his death and his wife Nirupama and son Ritik who were in the jeep sustained injuries on their person.
The claimants have filed cross-objections in both the appeals contending that the compensation awarded for the death of Sudhakar is wholly inadequate. On perusal of the impugned award, we are of the opinion that the grievance of the claimants in this regard has merit. The Tribunal in fact has not taken the future prospects of the deceased officer into account while assessing compensation. Therefore, it is necessary for us to find out what should be the just compensation payable to the claimants following the death of the deceased officer.
The Tribunal noticed that the deceased Sudhakar was an I.A.S. officer and was aged about 35 years at the time of the accident. He was getting Rs. 4422/- towards his monthly salary at the relevant time. According to the Tribunal, he would have spent Rs. 1422/- per month for his own maintenance had he been alive his monthly contribution to the family was taken at Rs. 3000/- per month i.e. Rs. 36,000/- per year. Applying the multiplier of 15, the Tribunal assessed total loss at Rs. 5,40,000/- and having regard to loss of estate, loss of consortium, it fixed the compensation at Rs. 5,50,000/- for the death of Sudhakar.
There is no dispute that at the time of his death, Sudhakar was 35 years old. He would have been in service for 25 years more and in course of this period he would have earned promotions and service benefits because there is nothing on record to the contrary. Keeping in view the future prospects as well as imponderable like accidental death, his gross monthly income could have shot up at least double than what he was earning at the time of his death. Calculating at his rate, his monthly earning would have been Rs. 8800/-till the time of superannuation. The average gross future monthly income may be determined by adding the actual gross income at the time of death, i.e. Rs. 4400/- per month with the maximum income which he would have otherwise got, i.e. Rs. 8800/- per month divisible by two, i.e. Rs. 6600/-. From this gross monthly income further 1/3rd may be deducted for personal expenses and other liabilities which comes to Rs. 2200/-. This amount of Rs. 2200/- may be further deducted from the average gross earning of Rs. 6600/- per month which comes to 4400/- per month i.e. Rs. 52,800/- per year. To this amount, multiplier of 16 may be applied and thus the total amount comes to Rs. 8,44,800/-. To this, a sum of Rs. 15,000/- may be added by way of loss of estate and loss of consortium which comes to Rs. 8,59,800/ rounded to Rs. 8,60,000/-.
Therefore, we fix the compensation payable at Rs. 8,60,000/- along with cost and interest as directed by the Tribunal. Accordingly, the award of the Claims Tribunal dated 11.9.1998 relating to Misc. Case No. 394 of 1990 is modified to the extent mentioned above. Out of the aforesaid amount, a sum of Rs. 8,00,000/- (Rupees eight lakes) be kept in the shape of fixed deposits in any Nationalised Bank in the names of the claimants for 10 years and the balance amount may be paid to them. This may be done within two months hence. Both the Insurance Companies are directed to do the needful accordingly.
Now coming to the writ petitions filed by the Insurance Companies, it may be seen that they are directed against the award of the Tribunal in Misc. Case Nos. 395 of 1990 and 396 of 1990 by which it has granted a sum of Rs. 5,000/- each to Nirupama Mahalik and Ratik Mahalik to be equally shared by both the Insurance Companies.
The above writ petitions have been filed challenging the compensation amounting to Rs. 5,000/- each to Nirupama Mahalik and Ratik Mahalik on the plea that appeals if filed would have been hit by Sub-section (2) of Section 173 of the Motor Vehicles Act, 1988 which prohibits of filing of appeal against the award where the amount in dispute is less than Rs. 10,000/-. In this connection, we may refer to a recent judgment of the Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd. AIR 2003 SCW 930, wherein it has been held as follows:
The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premises that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided u/s 140(2) of the Act.
On perusal of the impugned order, it appears that the Tribunal on appreciation of evidence of eye witnesses has come to categorical finding that drivers of both the vehicles were responsible for the accident leading to the death of he officer Sudhakar Mahalik. The Tribunal also on the basis of evidence has come to hold that Nirupama Mahalik (Wife of the deceased) and her son Ratik Mahalik sustained injuries in the accident and on that basis it had granted compensation to both of them.
The aforesaid finding recorded by the Tribunal is based on appreciation of evidence and is a pure finding of fact. No case is made out by the Insurance Companies for interference by us in exercise of writ jurisdiction. For the reasons aforesaid, we do not find any merit in the writ petitions which are hereby dismissed.
In the result, the appeals and the writ petitions are dismissed and the cross-objection is allowed to the extent indicated above.
Pradip Mohanty, J.
I agree.