Hon'ble S.C. Chaurasia,J.
Heard the learned counsel for the appellants and learned counsel for the respondents.
The present appeal has been preferred against the impugned award dated 12th January, 2006 passed by the M.A.C.T./Additional District Judge, Court No. 5, Raebareli in M.A.C. No. 30 of 2005.
The learned counsel for the appellants submits that the compensation awarded by the Motor Accidents Claims Tribunal is not in conformity with Schedule-2 of the Motor Vehicles Act as well as it does not meet out the requirement of law.
In brief, the facts of the case are that on 5th January, 2005 at about 08.30 a.m., the husband of the claimant-respondent no. 1, Sri Ramesh Kumar while riding on motorcycle no. 33D-0653 alongwith another mechanic Sri Surendra Kumar, suffered head on collusion with Tata Safari which was being driven rashly and negligently when the accident occurred. Ramesh Kumar succumbed to injuries at the spot. An F.I.R. of the incident was lodged under sections 279,304-A and 427 of the I.P.C. at the police station concerned. The deceased was an electrical mechanic and claims to be earning the monthly income of Rs. 15,000/- and from agricultural produce, Rs. 30,000/- in a year. Accordingly, the dependants of the deceased claimed compensation to the tune of Rs. 27,60,000/-
The Tribunal has framed issues with regard to accident occurred on 5th January, 2005 as Issue No. 1 and with regard to licence and insurance policy as Issue Nos. 2 & 3. After recording the evidence led by the parties, the Tribunal has arrived to the conclusion that the vehicle was insured by the respondent-Oriental Insurance Company and the accident occurred with Tata Safari because of its rash and negligent driving. The Tribunal has also arrived at the conclusion that the dependants of the deceased i.e. the claimants were entitled for compensation. A finding has been recorded by the Tribunal that the vehicle in question was insured with Oriental Insurance Company and the cover note and the documents filed during the course of trial indicate that the insurance of the vehicle was for the period from 22-09-2004 to 21-09-2005. The Tribunal has further arrived to the conclusion that no documentary and trustworthy evidence was produced to establish that the income of the deceased, electrical mechanic was Rs. 15,000/- p.m. Accordingly, the Tribunal has assessed the income of the deceased at the rate of Rs. 100/- per day for 20/-working days in a month. The total income of the decased assessed by the Tribunal is Rs. 2,000/-p.m. and the annunal income of the deceased comes to Rs. 24,000/- No income has been assessed by the Tribunal from the agricultural produce of the deceased. The Tribunal has applied the mutliplier of 17 keeping in view the age of the deceased to 30 years.
Learned Counsel for the appellants submits that since a finding has been recorded by the Tribunal that the deceased was aged about 30 years, the multiplier of 18 should have been applied. It has further been observed by the Tribunbal that notional income of Rs. 2,000/-p.m. of the deceased is too meagre and the multiplier given in the Schedule-2 of the Motor Vehicles Act is too old to apply to assess the damages or compensation.
A perusal of the multiplier shows that the multiplier of 18 has been provided in case the age of the deceased is between 25 to 30 years, and the multiplier of 18 includes the age of 30 years. Keeping in view the fact that the age of the deceased is 30 years, the Tribunal should have applied the multiplier of 18 instead of 17 years. For the mulitiplier of 17, the age of the deceased should have been more than 30 years but not exceeding to 35 years.
In view of the above, we are of the view that the multiplier of 18 should have been applied by the Tribunal.
While assailing the impugned award, it has further been submitted by the learned counsel for the appellants that the structured formula of Schedule-2 of the Motor Vehicles Act is simply a guideline and higher compensation should be paid to the claimants, relying upon the judgment of the Hon'ble Supreme Court in the case reported in (2006) 3 SCC (Crl.) 90, U.P. State Road Transport Corporation Versus Krishna Bala and Others.
Attention of this court has also been invited towards another judgment of the Hon'ble Supreme Court reported in 2008 (2) TAC 394 (S.C.) Laxmi Devi and others Versus Mohammand Tabbar and another, where the Hon'ble Supreme Court held that ther provisions with regard to notional income have become outdated. Keeping in view the fact that almost 15 years have elapsed with regard to notional income provided in the Act and its multiplier under Schedule 2, the court should assess the compensation on the basis of the higher income. Their Lordships of Hon'ble Supreme Court held that even an unskilled labour earns Rs. 100 per day or Rs. 3,000/- per month. Accordingly, the notional income should be minimum at the rate of Rs. 3,000- per month.
There is no dispute that the provisions contained in the Second Schedule provided under Section 163-A of the Act is a guideline and while awarding compensaation under Section 168 of the Motor Vehicle Act, the Trubunal has got right to award higher compensation which shall depend upon the facts and circumstances of the case. The notional income provided under the Second Schedule under para 6 is of the year 1994. The Government of India has got power under the Act to chage the structured formula provided under Section 163-A of the Act. Moreover, the structured formula provided under the Second Schedule may be binding for a case under section 163-A of the Act and not in a case where the claim is filled under Section 166 of the Act. The Tribunal has to ascertain the compensation which is just, fair and proper while evaluating the compensation under section 168 of the Act.
In a case reported in 2004(2) TAC 289 Deepal Girish Bhai Soni and others versus United India Insurance Co. Limited, Baroda, Hon'ble Supreme Court dealt with the scope of Section 163-A of the Motor Vehicles Act as well as multiplier and held that the provisions contained in Section 163-A and 166 are distinct and deals with different situation. Multiplier under Second Schedule of the Motor Vehicles Act has been provided in pursuance to the provisions contained in Section 163-A of the Act.
However, their Lordships (three Hon'ble Judges) of Hon'ble Supreme Court in the case of Supe Del and Others(Supra) (Paras 6,8 and 9) held that in a proceeding under Section 166 of the Motor Vehicles Act, the multiplier may be used as guideline and may be applied keeping in view the facts and circumstances of the case and granted interest at the rate of 9% In 2005(1) TAC 609 (SC) Manju Devi and another Versus Musafir Paswan and another and 2005(1) TAC 2004 abati Bezbaruah Versus Dy, Director General,Geologial Survey of India and another, Hon'ble Supreme Court held that multiplier may be accepted for payment of compensation even in a proceeding under Section 166 of the Motor Vehicles Act to evaluate the justness of compensation as provided under Section 168 of the Motor Vehciles Act which is a guideline. The letter and spirit of the judgment of Supe Del (supra) and other cases decided by Hon'ble Supreme Court is that while assessing the justness of compensation under section 168 of the Motor Vehicles Act for the purpose of uniformity, multiplier provided under Second Schedule work as a guildeline. Accordingly, in appropriate case, the tribunal posssess jurisdiction to award higher compensation than what is provided in the multiplier as Hon'ble Supreme Court observed in the subsequent judgmetn of Laxmi Devi(Supra).
In view of the above, even the notional income of the deceased should be assessed at the rate of Rs. 3,000/- per month keeping in view the recent pronouncements of Hon'ble Supreme Court.
We have considered the aforesaid proposition of law in an unreported case decided on 16th Febraury, 2009 passed in F.A.F.O. No. 105 of 2004, State of U.P. Versus Gajraj and Others.
In view of the settled proposition of law, we are of the view that the notional income assessed by the Tribunal is not sufficient to meet out the requirment of law. Although, it is open for this court to direct to pay higher compensation than that of notional income but since the appellants have failed to establish the income of the deceased by cogent, trustworthy and material evidence with regard to higher income, we are of the veiw that the notional income may be assessed at the rate of Rs. 3,000/- per month by applying the multiplier of 18. After dedcuting 1/3 of the income for personal expenses, the annual income of the deceased comes to Rs. 24,000/ by applying the multiplier of 18 and the amount of compensation comes to Rs. 4,32,000/- Apart from the amount of Rs. 4,32,000/-,funeral expenses of Rs. 2,000, for the loss of consortium of Rs. 5,000/- and for solitium of Rs. 2,500/-may also be added while assessing the compensation. Thus, the total compensatiopn which the appellants seem to be entitled comes to Rs. 4,41,500/-
The appeallants shall be entitled for compensation to the tune of Rs. 4,41,500/- in the manner as stated hereinabove. However, the compensation shall be paid to all the claimants in proportion as decided by the Tribunal. Out of Rs. 4,32,500/- the widow of the deceased, Smt. Gangotri Devi shall be paid Rs. 2,00,000/- and an amount of Rs. 1,00,000/- shall be paid to Km. Versa, daughter of late Ramesh Kumar, an amount of Rs. 50,000/- shall be paid to Akash Verma, son of late Ramesh Kumar and the remaining amount of Rs. 91,500/- shall be paid to Smt. Lakhana Devi, wife of late Ram alias Nanha.
The amount falls in the share of minor son and daugher namely Km. Versa and Akash Verma shall be kept in a interest bearing account for the period till they attain the age of majority. However, to meet out their medical and education expenses, if necessary, it shall be open to the mother of the minors, Smt., Gangotri to withdraw the interest from the bank as and when it is necessary.
The interest at the rate of 4% which has been awarded by the Tribunal seems to be meagre in view of the recent trend. The claimants shall be entitled for payment of interest at the rate of 9%. The amount deposited in this court or the Tribunal, shall be released in the aforesaid proportion to the respective claimants. Appeal allowed accordingly.
Order Date :- 7.1.2010-
AKS