Oriental Insurance Co. Ltd v. Syed Ibrahim and others) has determined a compensation amount of Rs
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.899 of 2011 ====================================================== 1. Sanjay Kumar Sah S/O Late Raghu Nath Sah R/O Aliganj, P.S. Mojahidpur And District - Bhagalpur 2. Rakhi Devi W/O Sanjay Kumar Sah R/O Aliganj, P.S. Mojahidpur and District - Bhagalpur .... .... Appellant/s Versus 1. Sri Bindeshwari Pd. Yadav S/O Sri Baldeo Prasad Yadav R/O Bakhadda, P.O. Kathrang And District - Banka 2. Rajendra Kumar Pandey S/O Late Sant Lal Pandey R/O Rajoun, District - Banka 3. The Diisional Manager, United India Insurance Co. Ltd. Bhagalpur .... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. Ganpati Trivedi For the Respondent/s : Mr. Sanjay Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 06. 02-08-2013 Reg: I.A. No. 1965 of 2013 This application under Section 5 of Limitation Act has been filed for condonation of delay of 5 days. Having heard learned counsel for the parties and being satisfied by the reasons assigned, the delay is condoned. I.A. No. 1965 of 2013 is allowed. Reg: M.A. No. 899 of 2011
Legal Reasoning
Heard Mr. Ganpati Trivedi, learned counsel for the appellants and Mr. Sanjay Singh for the respondents. With the consent of the parties the matter has been taken up for final disposal at this stage itself. Patna High Court MA No.899 of 2011 (6) dt.02-08-2013 2 This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 21.6.2011 / 01.08.2011 passed by the learned Additional Sessions Judge, F.T.C.I-cum-Motor Vehicles Accident Claim Tribunal, Bhagalpur, whereby the learned tribunal while allowing the claim case has quantified compensation at Rs. 75,000/- together with interest payable from the date of the order. This appeal has been filed seeking enhancement of the compensation amount as well as for payment of the interest with effect from the date of filing of the claim case in terms of Section 171 of the Act. The facts are not in dispute and thus is not being reproduced. The only relevant fact is that the deceased was aged six years. Though the claimants who are the parents had set up a claim of Rs. 1, 74,500/-, the tribunal taking note of decision of the Supreme Court reported in 2008(1) ACC 406:(2007)11 SCC 512 512 (Oriental Insurance Co. Ltd. vs. Syed Ibrahim and others) has determined a compensation amount of Rs. 75,000/- and after reducing the amount paid to the claimants under the interim award of Rs. 50,000/- the insurance company has been directed to make payment of the balance amount together with interest quantified at 8 per cent payable with effect from the date of the award. Patna High Court MA No.899 of 2011 (6) dt.02-08-2013 3 I have heard Mr. Ganpati Trivedi appearing on behalf of the appellants and Mr. Sanjay Singh appearing for the respondent no. 3 insurance company. Though the owner and the driver of the vehicle have appeared through counsel Mr. Purushottam Kumar Das but there is no representation on their behalf today. Mr. Trivedi has questioned the quantification of the compensation on two grounds. He submits that the courts have been referring to the second Schedule to the Act as a guideline for determination of compensation including compensation payable to minors. It is submitted that in view of the notional income fixed under paragraph-6 of the second Schedule by the legislature as applicable to non earning persons, the determination ought to have been made after applying an appropriate multiplier but the tribunal upon misreading the judgment passed in the case of Syed Ibrahim (supra) has determined the compensation payable at Rs. 75,000/- which is inclusive of all the components. He submits that the Supreme Court in the case of New India Assurance Co. Ltd. vs. Satender and others reported in (2006)13 SCC 60 : AIR 2007 SC 324 has held that in a case of minor where the parents are the claimants, the relevant factor would be the age of parents. He submits that since the mother of the claimant was aged about 30 years, hence the calculation should have been done by applying Patna High Court MA No.899 of 2011 (6) dt.02-08-2013 4 the multiplier after taking into consideration of the age of the mother. He has further questioned the award of interest by the tribunal which entitles the claimants to the interest from the date of the order. It is submitted that in terms of the provisions of Section 171 of the Act, the claimants are entitled to interest from the date of filing of the claim case. The arguments of Mr. Trivedi has been contested by Mr. Singh appearing for the insurance company who has submitted that the tribunal having applied its mind to the facts governing the case has made a determination of compensation and in absence of any perversity in the same, this Court would not interfere with such determination. Mr. Singh has relied upon a judgment of the Himachal Pradesh High Court reported in 2006 ACJ 260 (HP) (Hukmabati and others v. Punjab Roadways and others) and a judgment rendered in the case of the Himachal Road Transport Corporation vs. Bimla Kanwar reported in 2002 ACJ 346 (HP) in support of his submission. I have heard learned counsel for the parties and I have perused the materials on record including the award impugned. No doubt initially a lump sum amount was being paid by way of compensation in case of minors and it is perhaps based upon this notion that the tribunal has not ventured into the intent of the Patna High Court MA No.899 of 2011 (6) dt.02-08-2013 5 legislature as reflected in Schedule-2 to the Act. It has also been the consistent view of the courts that a compensation amount is not to be treated as a bonanza but has to appear reasonable. The Schedule-2 to the Act no doubt is relatable to a compensation determined under the no fault liability as envisaged under Section 163A of the Act but then it is being referred to by way of guidelines and more particularly when it comes to a case of non earning victims. The judgments rendered in the case of Satender (supra) and the subsequent judgment rendered in the case of R.K. Malik reported in (2009)14 SCC 1 manifests that the compensation even in the case of minors as non earning members, has to be determined keeping in view the Schedule-2 to the Act. Paragraph-6 of Schedule-2 determines a notional income for compensation in relation to non earning members at Rs. 15,000/- per annum. The Supreme Court in the case of Satender (supra) has held that in case of minor, the appropriate multiplier would be determined with reference to the age of the parents. In fact even in the case of Syed Ibrahim (supra) the Supreme Court while advocating for determination of just compensation in case of minors, has also held that in such cases the relevant factor would be the age of the parents. In view of my discussions and the judgments referred to Patna High Court MA No.899 of 2011 (6) dt.02-08-2013 6 above, the claim put forth by the claimants requires determination, keeping in mind the following aspects: (a) The determination of the compensation has to be made with reference to paragraph 6 of the second schedule relatable to non earning member by applying the multiplier applicable to the parents; (b) The quantification of loss as against the future prospects is to be made; (c) The non pecuniary loss against pains and sufferings suffered by the parents is to be determined; (d) Interest is payable from the date of filing of the application in view of Section 171 of the Act. The judgment and order impugned is silent on all these aspects and thus cannot be upheld and is accordingly set aside. The matter is remitted back to the tribunal for determination afresh, in accordance with law. This appeal is allowed. This Court would appreciate for an early disposal of the matter preferably within three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J)