Miscellaneous Appeal No. 828 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.828 of 2011 ====================================================== 1. Indu Devi W/O Suresh Rai R/O Village - Solempur, P.O. Mustafapur, P.S. Ahiyapur, Distt. - Muzaffarpur 2. Suresh Rai S/O Ramdeo Rai R/O Village - Solempur, P.O. Mustafapur, P.S. Ahiyapur, Distt. - Muzaffarpur Versus 1. Dhananjay Kumar S/O Mauje Lal Sah R/O Village - Hanka, P.O. Harka Mansabi, P.S. Minapur, District - Muzaffarpur 2. Divisional Manager, New India Assurance Company Ltd., Club Road Near Jubba Sahni Paru, Muzaffarpur .... .... Appellant/s .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sunil Kumar Pandey, Adv. For the Respondent/s : Mr. Sanjay Singh, Adv. Mr. Mukteshwar Prasad Singh, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 9 04-07-2013 This appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as the ‘Act’) arises from a judgment and award dated 5.3.2011/18.03.2011 passed in Claim Case No. 15 of 2009 whereby the claimants being aggrieved by the quantum of compensation have prayed for enhancement thereof. Thus the sole issue raised in the present appeal is whether or not the compensation is in accordance with the provisions of the Act or is contrary thereto.
Legal Reasoning
I have heard Mr. Sunil Kumar Pandey, learned counsel appearing for the appellants and Mr. Mukteshwar Prasad Singh learned counsel appearing for the Insurance Company. 2 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 2 / 7 Since it is a matter concerning the claimants and the Insurance Company who have registered their appearance before this Court, this Court does not feel the necessity to hear the other parties more particularly, since the claim amount is payable by the Insurance Company. It is the contention of Mr. Pandey appearing for the appellants that even while it was the case of the claimants who are the parents of the deceased, that he was engaged in milk business and was earning about Rs. 2100/- per month and had led oral evidence in support thereof, the Tribunal in absence of any evidence to the contrary, has disbelieved this fact and has relied upon clause 6 of the second Schedule of the Act for determination of his annual income which was determined at Rs. 15000/- per annum. It is submitted that the Clause 6 of the second Schedule is only applicable to such of the deceased who had no income prior to the accident. It is contended by Mr. Pandey that since it is the case of the claimant that the deceased was engaged in milk business and was earning there from and also supporting the family, unless there were evidence to the contrary, the Tribunal could not have resorted to Clause-6 which certainly is not applicable to earning members and that at best the Tribunal could have relied upon the schedule to the Minimum Wages Act, 1948 for any notional fixation. Another issue raised by the appellants is 3 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 3 / 7 that the direction to keep the compensation amount in a fixed deposit takes away the liberty of the appellants to utilize the compensation to their benefit. The arguments of Mr. Pandey is contested by Mr. Singh appearing for the Insurance Company who while supporting the finding of the Tribunal has submitted that in absence of any evidence to support the factum of income there was no other option available to the Tribunal than to take recourse to the provisions of Clause 6 of the Second schedule to the Act. Mr. Singh, even while supporting the award of the Tribunal to that extent has however, tried to raise the question of multiplier to submit that the Tribunal has ignored the judicial pronouncement as to the determination of multiplier which in the present case has to be determined with reference to the age of the claimant and the age of the deceased whichever be higher. It is contended by Mr. Singh that in terms of the age of the mother, the multiplier could not have been 16. I have heard learned counsel for the parties and have perused the materials on record. It is not in contest that this is a claim raised under Section 166 of the Act and not under Section 163A of the Act. This Court has consciously observed as such for the reason that whereas the 4 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 4 / 7 claim raised under Section 166 is founded on fault based liability, the compensation determined under Section 163A is on the principle of no fault liability. In other words, until the claimants raising claim under Section 166 are able to prove the fault of the offending vehicle, they are not entitled to any compensation. There is no mid path in such claim case. On the other hand a claim under Section 163 A is based on no fault liability and thus the second schedule to the Act makes a reference to Section 163A of the Act. The Supreme Court has drawn a distinction between the two claims in the case of Sarla Verma reported in (2009) 6 SCC 121 more particularly, paragraph 37 thereof to hold that the principle relating to determination of liability and computation of compensation under Section 166 are different to a claim made under Section 163-A. It further held that Section 163- A of the Act and the Second Schedule do not apply for determination of compensation in applications under Section 166 of the Act. In view of the pronouncement of the Supreme Court taken note of above it is no more in issue that though the second schedule is being referred to by way of guideline, it certainly cannot form the sole basis for computation of compensation under Section 166 of the Act. Mr. Pandey is correct when he submits 5 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 5 / 7 that Clause 6 of the Schedule cannot be made applicable for determination of compensation under Section 166 of the Act even in absence of any evidence contradicting the claim. In fact, in cases where the claimants have not been able to produce documentary evidence of income, the Tribunal has been relying upon the schedule of wages fixed under the Minimum Wages Act 1948. Apart from the legal position noted above, even otherwise Clause 6 of the Second Schedule is apparently not applicable to cases where the deceased was the earning member of the family. A mere absence of any evidence in support of income cannot form a basis for resorting to Clause 6 which is primarily designed for computation of compensation in case of a deceased having no income. Having observed as such, it is to be seen as to what was the minimum wage applicable on the date of accident i.e. 8.10.2008. The Notification issued by the State Government bearing memo No. 5MW/402/06/Shrank No.4172 Patna dated 13.11.2007 issued under Section 3 of the Minimum Wages Act, 1948 and the Schedule-II attached thereto manifests that with effect from 01.10.2007 the Minimum Wages payable along with the variable dearness allowance was Rs. 81 per day. The monthly income on the basis of 26 working days would be about Rs. 2100/- per month and this is exactly the amount which was claimed by 6 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 6 / 7 the claimants as the monthly income of the deceased. The statement on income of the deceased as stated by the claimants for determination of compensation of Rs. 2100/- per month finds support from the Notification of the State Government in its Labour Department, dated 13.11.2007 which was effective from 1.10.2007 and would be applicable to case in hand since the accident took place on 8.10.2008, i.e. subsequent thereto. The other issue raised by Mr. Pandey was that there was no occasion for the Tribunal to direct for keeping the compensation amount in fixed deposit relying upon the Susamma Thomas case reported in (1994)2 SCC 176. I am in agreement that the submission of learned counsel inasmuch as the Supreme Court in the case of Susamma Thomas (supra) more particularly paragraph 23 thereof has clearly laid down the circumstances in which the Tribunal can direct for keeping the compensation amount under fixed deposit and which is not to be done in a routine manner until and unless such time the Tribunal is of the opinion that the case in question falls within either of the Clause set out in paragraph 23 of the judgment (supra). In my opinion the present case does not make out any such circumstance warranting the compensation amount to be put in fixed deposit and to that extent the direction is set side. 7 Patna High Court MA No.828 of 2011 (9) dt.04-07-2013 7 / 7 As regarding the issue of multiplier as raised by Mr. Mukteshwar Prasad Singh learned counsel appearing for the Insurance Company is concerned, in absence of any appeal to that effect, this Court does not feel necessity to deal with the said objection. In consequence the matter is remitted back to the Tribunal to determine the compensation amount afresh on the basis of the monthly income of the deceased being Rs. 2100/- and for directing the Insurance Company for ensuring compliance thereof. The appeal is allowed. An early disposal of the matter preferable within three months from the date of production/receipt of order would be appreciated. Bibhash/- (Jyoti Saran, J)