Court No. - 22
RESERVED ON 20.12.2018 DELIVERED ON 25.2.2019
Case :- FIRST APPEAL FROM ORDER No. - 260 of 2005
Appellant :- National Insurance Co. Thru' Asstt. Manager
Respondent :- Smt. Shyama Devi & Ors. Counsel for Appellant :- Manish Kumar Nigam Counsel for Respondent :- Ajit Kumar
Hon'ble Salil Kumar Rai,J.
1. The present appeal has been filed by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') against the judgement and award dated 27.4.2004 passed by the Motor Accident Claims Tribunal/Special Judge (E.C.) Act, Bareilly (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 664 of 2002, whereby the Tribunal awarded a compensation of Rs. 6,72,000/- to the claimants-opposite party Nos. 1 to 3.
2. Motor Accident Claim Petition No. 664 of 2002 was filed by the claimants-opposite party Nos. 1 to 3 alleging that Smt. Neeta Devi died on 26.10.2001 in an accident caused due to rash and negligent driving of Vehicle No. R.S.D./4635 (hereinafter referred to as, 'offending vehicle'), which was owned by respondent No. 4 and was insured with the appellant. The claimants, i.e., the opposite party Nos. 1 to 3 are the legal representatives of the deceased Smt. Neeta Devi. Respondent Nos. 2 and 3 are the sons of the deceased Smt. Neeta Devi while respondent No. 1 is the mother-in-law of the deceased Smt. Neeta Devi. It was alleged in the claim petition that Smt. Neeta Devi was engaged in business and agriculture and had Fixed Deposits of nearly Rs. 12 lacs and shares the value of which was assessed to be Rs. 10 lacs. In view of the aforesaid, the claimants-opposite party Nos. 1 to 3 prayed for a compensation of Rs. 50 lacs for the death of Smt. Neeta Devi. It is relevant to note that Shri Ghan Shyam Veer Saxena who was the husband of the deceased Smt. Neeta Devi and the father of claimants-opposite party Nos. 2 and 3 and son of claimant-opposite party No. 1, had also died in the same accident and Claim Petition No. 662 of 2002 was filed by claimants-opposite party Nos. 1 to 3 claiming compensation for the death of Shri Ghanshyam Veer Saxena.
3. Motor Accident Claim Petition Nos. 662 of 2002 and 664 of 2002 were trialled together and were also decided by a common judgement and award dated 27.4.2004 and a compensation of Rs. 13,72,800/- was awarded to the claimants in Motor Accident Claim Petition No. 662 of 2002. The Tribunal had framed issues regarding factum of accident, negligence of the driver of the offending vehicle in causing the accident, the inter-se liability of the owner of the vehicle and the Insurance Company to pay compensation to the claimants and the amount of compensation payable to the claimants in the different claim petitions. In its award dated 27.4.2004, the Tribunal decided the issues regarding factum of accident and the negligence of the driver of the offending vehicle in favour of the claimants and also held the Insurance Company liable to pay compensation to the claimants. Against the judgement and award dated 27.4.2004 passed by the Tribunal awarding a compensation of Rs. 13,72,800/- to the claimants in Motor Accident Claim Petition No. 662 of 2002, a First Appeal From Order No. 2805 of 2004 under Section 173 of the Act, 1988 was filed by the Insurance Company, which was dismissed by this Court vide its order dated 7.12.2018. The findings regarding negligence of the driver of the offending vehicle in causing the accident and the alleged contributory negligence of the driver of the vehicle in which the deceased Smt. Neeta Devi was travelling were challenged by the Insurance Company in the aforesaid appeal, but the same were rejected by this Court vide its order dated 7.12.2018. Thus, the findings of the Tribunal regarding negligence of the driver of the offending vehicle in causing the accident resulting in the death of Smt. Neeta Devi and the liability of the Insurance Company to pay compensation to the claimants have become final and are not required to be decided in the present appeal.
The issue in the present appeal is restricted to the amount of compensation payable to the claimants for the death of Smt. Neeta Devi.
4. In Motor Accident Claim Petition No. 664 of 2002, the Tribunal, taking into account, the interest received by the deceased Smt. Neeta Devi on her Fixed Deposits and after applying a multiplier of 14, awarded a compensation of Rs. 6,72,000/- to the claimants. The Tribunal did not award any compensation for non-pecuniary damages.
5. Learned counsel for the appellant has challenged the amount of compensation awarded by the Tribunal on the ground that the interest from the Fixed Deposits held by Smt. Neeta Devi would be payable to the claimants even after the death of Smt. Neeta Devi and cannot be considered to be loss of dependency caused due to the death of Smt. Neeta Devi. Learned counsel for the appellant has also argued that the Tribunal had erred in applying a multiplier of 14 while determining the compensation payable to the claimants- opposite party Nos. 1 to 3.
6. I have considered the submission of the learned counsel for the appellant.
7. At the time of the accident, the deceased was 45 yeas old. Thus, according to the judgement of the Supreme Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another 2009 (6) SCC 121 the Tribunal rightly applied a multiplier of 14.
8. The learned counsel for the appellant may be right in contending that interests accruing on the Fixed Deposits held by the deceased Smt. Neeta Devi were payable to the claimants even after the death of Smt. Neeta Devi and, therefore, cannot be considered while determining the multiplicand. However, for reasons stated subsequently, the award passed by the Tribunal in awarding a compensation of Rs. 6,72,000/- to the claimants is not liable to be set aside merely due to the aforesaid error in the award.
9. Admittedly, the deceased was a house wife. It is on record that the husband of the deceased was a Sub-Registrar and, after deductions, was drawing a salary of Rs. 13,996/-. According to the II Schedule of Act, 1988, the notional income of a spouse would be 1/3 of the income of the earning/surviving spouse. If the salary of the husband of the deceased is taken as the criterion, the notional income of the deceased would be more than Rs. 4,500/- per month. However in the present case, the spouse of the deceased also died in the same accident. Thus, in the present case, the II Schedule of Act, 1988 would not be helpful to assess the notional income of the deceased. In Jitendra Khimshankar Trivedi & Others Vs. Kasam Daud Kumbhar & Others, 2015 (4) SCC 237, the Supreme Court fixed the notional income of a house wife as Rs. 3,000/- per month for determining compensation under the Act, 1988. In the present case also it would be appropriate to fix the income of the deceased, who was a house wife as Rs. 3,000/- per month, i.e., Rs. 36,000/- per annum. If 1/3 is deducted as personal expenses of the deceased and 25% is added as a future prospects to the aforesaid notional income, the multiplicand would be Rs. 30,000/- per annum. The addition of 25% as future prospects is in light of the judgement of the Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi (2017) 16 SCC 680 and because at the time of the accident the deceased was 45 years old. Applying a multiplier of 14, the loss of dependency, i.e., pecuniary damages for the death of Smt. Neeta Devi, would be Rs. 4,20,000/-.
10. As stated earlier, the Tribunal has not awarded any compensation under the conventional heads. According to the judgement of the Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram (2018 SCC Online SC 1546) the claimants-opposite party Nos. 2 and 3 were entitled to Rs. 40,000/- each, i.e., a total amount of Rs.
80,000/- for loss of parental consortium due to the death of Smt. Neeta Devi and Rs. 50,000/- each, i.e., a total of Rs. 1,00,000/- for loss of love and affection due to the death of their mother, i.e., Smt. Neeta Devi. In addition to the aforesaid amount, the claimants were also entitled, as compensation, to Rs. 15,000/- for loss of estate and Rs. 15,000/- as funeral expenses. Thus, the claimants-opposite party Nos. 1 to 3 were entitled to a compensation of Rs. 2,10,000/- under the conventional heads.
11. Thus, even by all conservative estimates, the claimants were entitled to a compensation of Rs. 6,30,000/-. The estimate is referred as conservative because of the meager amount fixed as notional income of a house wife. In any case, the difference between the amount assessed by this Court and that awarded by the Tribunal is merely Rs. 42,000/-. In case compensation is determined by treating the notional income of the deceased as Rs. 4,500/- per month, i.e., the standard fixed by the II Schedule to Act, 1988 and in view of the fact that the husband of the deceased was drawing a salary of Rs. 13,996/- per month, the pecuniary damages would be much more than Rs. 4,20,000/- and the total compensation payable to the claimants would also be much more than the compensation awarded by the Tribunal. In any case compensation cannot be assessed with mathematical precision. For the aforesaid reasons, the difference of Rs. 42,000/- between the compensation assessed by this Court and the compensation paid by the Tribunal cannot be a sufficient ground to interfere in the present appeal and modify the award of the Tribunal.
11. For the aforesaid reasons, the appeal is dismissed.
Order Date :- 25.2.2019
Anurag/-