Manoj Kumar Jha v. The Branch Manager, The New India Assurance Co. Ltd. & Ors.

.... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

06. 05-07-2013 Mr. Ajay Kumar for the appellant, Mr. M.P. Jaisawal for the respondent nos. 1 and 2 i.e. the New India Assurance Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 2 Company Limited and Mr. Barun Kumar Choudhary for the respondent nos. 6 and 7, the Oriental Insurance Company Limited are present. Considering the nature of the dispute raised in this appeal, this Court is of the opinion that it would not require notice to the other respondents including the other beneficiaries, the driver and the owner inasmuch as the contest is in between the appellant and the respondent nos. 6 and 7 who are in appearance before this Court. This appeal under Section 173 of the Motor Vehicles Act has been filed for enhancement of the compensation awarded vide judgment and award dated 16.9.2011/15.10.2011 passed by 1st Additional District and Sessions Judge-cum-Motor Vehicle Accident Claims Tribunal, Naugachia, District-Bhagalpur in Claim Case No. 121 of 2008. Facts of the matter leading to the claim case in question in brief is that the deceased mother of the claimant Sushila Devi @ Sheela Devi was traveling in a Bolero Jeep bearing registration no. JH-04A-6979 when it hit against a motorcycle. The mother of the claimant suffered serious injuries for which she was treated in different hospitals and ultimately she died on 18.12.2004. The Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 3 claim case in question was filed four years thereafter in the year 2008 giving rise to Claim Case No. 121 of 2008 and which has since been allowed by the judgment and award dated 16.09.2011 directing he insurance company of the Bolero Jeep to make payment of the compensation amount along with interest of 8 per cent payable from the date of the award until its realization together with the amount towards medical expenses, funeral expanses and loss of estate. Two issues has been raised by the appellant claiming enhancement, namely; (a) that the compensation amount was incorrectly arrived at by applying the multiplier 5 in terms of the second Schedule to the Act when in terms of the law laid down in the judgment of Sarla Verma reported in (2009) 6 SCC 121 it ought to have been 7, and (b) that the medical expenses could not have been limited to Rs. 15,000/- again by following the second Schedule when in fact the claimant had filed medical bills to the tune of Rs. 1,79,067/-. I have heard Mr. Ajay Kumar appearing for the appellant and Mr. Barun Kumar Choudhary for the respondent nos. 6 and 7 and Mr. M.P. Jaisawal for the respondent nos. 1 and 2 on the issue. The claim of the appellant is apparently based upon the Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 4 judgment rendered in the case of Sarla Verma (supra) and Mr. Ajay Kumar relying upon the observation of the Court present at paragraph-37 submits that the determination of liability and compensation under Section 166 of the Act is distinct from those determined under Section 163A of the Act. With reference to the position settled under the said judgment Mr. Ajay Kumar has relied upon paragraph 40 to 42 to submit that in terms of the law laid down under the judgment of the Supreme court the correct multiplier in the present case would be 7, in view of the fact that the Tribunal has held the age of the deceased to be 65 years although the claimants had mentioned that the age was about 55 years. He thus submits that even going by the determination of age by the Tribunal, the correct multiplier would be 7 in terms of the judgment rendered in the case of Sarla Verma and not 5. Learned counsel in support of his submission has also relied upon the paragraph 19 of the judgment to submit that the mode of determination of the multiplicand which forms the basis of the determination of the compensation, the determination of multiplier and the actual calculation of other amount against loss of estate, loss of consortium and medical expenses has also been laid down and that it has been held that medical expenses of the deceased Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 5 before death (if incurred) should be paid meaning thereby the expenses incurred by the family on the treatment of the deceased and not the notional amount as mentioned at paragraph-4(iii) of the second Schedule. With reference to the recent judgment of the Supreme Court reported in 2013 ACJ 1253 (Reshma Kumari vs. Madan Mohan), it was submitted that a similar matter relatable to determination of compensation based upon multiplier in a matter arising from a case filed under Section 166 of the Act was referred to a larger bench and a three judges’ bench of the Supreme Court has held that the standard fixed in the Sarla Verma judgment would be applicable to cases filed under Section 166 of the Act. He thus submits that in view of the indisputable position emanating from the judicial pronouncement rendered in the Sarla Verma and Reshma Kumari’s case, the matter requires a reconsideration. Mr. Choudhary, learned counsel even while confronting the arguments of Mr. Ajay Kumar could not disagree with the legal position emanating under the judgments of the Supreme Court save and except that as the judgments relied upon by the appellant before this Court was never pressed into service before Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 6 the Tribunal, hence no error as such could be found in the award impugned. Mr. Jaisawal, appearing for the respondent nos. 1 and 2 has supported the award. I have heard learned counsel for the parties and have perused the award in question. The judgment rendered in the case of Sarla Verma and Reshma Kumari (supra) cannot be contested by the insurance company. It is by now well settled that a claim case arising under Section 166 of the Act is distinct from a claim filed under Section 163A of the Act. Whereas the former is based on determination of fault liability, the latter is based on no fault liability. Once the compensation is based on a fault liability, even if the Tribunal relies upon the second Schedule as a guideline, the same cannot be a determining factor insofar as claim under Section 166 is concerned. Apart from the said legal position, the judgment of the Supreme Court relied upon by Mr. Kumar does not leave any room for doubt on either of the two issues. Though the claimants had asserted that the age of the deceased was 55 years but in view of the medical documents on record, the Tribunal determined the age as 65 years. Paragraph-42 of the judgment rendered in the Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 7 case of Sarla Verma holds that the multiplier of 7 would be applicable in cases of the deceased aged 65 years and thus the said judgment would be binding not only on this Court but also the Tribunal even if the same was not brought to the notice of the Tribunal. That brings this Court to the second issue regarding the limit fixed on the medical expenses claimed by the claimant of Rs. 1,79,067/-. Although the claimants had set up a claim of Rs. 2,00,910/- but they had submitted bills only for the amount of Rs. 1,79,067/-. The Tribunal even while noting this fact as also observing that there was nothing on record to disbelieve the claim but relying upon the provisions underlying paragraph 4(iii) of the second Schedule which puts a limit of Rs. 15,000/- towards any medical expenses claim, the claim of the appellants were allowed to the extent of Rs. 15,000/-. In view of the judgment rendered in Sarla Verma case, more particularly at paragraph 19 (iii) the Tribunal would have to reconsider the claim in terms of the bills submitted of Rs. 1,79,067/- subject to the appellant establishing its genuineness and after granting opportunity to the insurance company to confront the same. Patna High Court MA No.38 of 2012 (6) dt.05-07-2013 8 In view of the conclusion drawn by me hereinabove, this matter is remitted back to the Tribunal for recalculation of the compensation amount by applying the multiplier 7 as applicable to deceased aged 65 years in terms of the judgment rendered in the case of Sarla Verma as also for fresh consideration by the Tribunal on the claim of medical expenses in terms of the bills submitted by the appellant of Rs. 1,79,067/- subject to the appellant establishing its genuineness as also after affording the insurance company to place their case and contest the claim. Any final order on the aforesaid aspects be passed expeditiously in accordance with law and preferably within a period of three months from the date of receipt/production of a copy of the order. This appeal is disposed of with the direction aforesaid. The Lower Court Records in Claim Case No. 121 of 2008 be returned to the Tribunal concerned forthwith. S.Sb/- (Jyoti Saran, J)