Excerpt:
motor vehicles act, 1988 - sections 163-a and 166 -.....national insurance company limited v. shyam singh and others 2011(3) r.c.r.(civil) 679 : 2011(4) recent apex judgments (r.a.j.) 49 :(2011) 7 supreme court cases 65. it was a case of death of a bachelor at the age of 19 years. the tribunal calculated the compensation taking the multiplier of 9, as the claimants, the parents of the deceased, were 56 and 55 years old. in the appeal preferred for enhancement, the high court placed reliance on the judgment of hon'ble supreme court of india in smt. sarla verma and others v. delhi transport corporation and another 2009(3) recent apex judgments (r.a.j.) 373 : 2009 (3) rcr (civil) 77 and enhanced the multiplier to 18. the hon'ble supreme court of india has referred to the judgment on the point in ramesh singh v. satbir singh 2008(1) r.c.r.(civil) 844 : 2008(1) r.a.j. 408 : (2008) 2 scc 667, where it has been laid down as under:- "6. we have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. considering the law laid down in new india assurance co. ltd. v. charlie 2005(2) r.c.r.(civil) 550 : air 2005 sc 2157, it is clear that the choice of multiplier is determined by the age of.....
Judgment:
Vijender Singh Malik, J.
The above mentioned cross appeals, one bearing FAO No. 1125 of 2011 having been brought by The New India Assurance Company Limited and the other bearing FAO No. 3155 of 2011 having been brought by the claimants, are directed against the common award dated 6.9.2010 passed by learned Motor Accidents Claims Tribunal, Yamuna Nagar at Jagadhri (for short, "the Tribunal") vide which, the claim petition brought by the claimants under the provisions of section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") has been allowed and a sum of Rs. 4,00,000/- has been awarded as compensation to the claimants. The facts necessary for disposal of these two appeals are as under :
2. On 9.3.2009, Hashim Ali (deceased) was going from Fire Brigade Rakkar Colony, Una (Himachal Pradesh) towards Mahtpur on a motorcycle bearing registration No. RJ-37SA-4132. At about 5.30 p.m., a truck bearing registration No. HP-24B-4572 driven by Nasir Mohammad, respondent No. 1, came from the side of Mahtpur in a rash and negligent manner and the side of the truck had hit the motorcycle. On account of the accident, Hashim Ali fell down on the road and suffered multiple injuries to which he succumbed at the spot. The accident was reported to Police Station, Sadar, Una where FIR No. 92 was registered on 9.3.2009. Hashim Ali was aged 21 years and was earning Rs. 5,000/- per month by working as a tractor driver. A sum of Rs. 8.00 lakhs is claimed as compensation on his death by the claimants.
3. Respondents No. 1 and 2, the driver and owner respectively of the truck in question, have brought a common written statement and have claimed that no accident occurred with the truck in question while it was driven by respondent No. 1. The case registered with the police is said to be false, having been got registered with ulterior motive of getting compensation. It is further averred that respondent No. 1 was holding a valid and effective driving licence and the truck was insured with respondent No. 3 and if the Tribunal finds any amount to be payable to the claimants as compensation, then respondent No. 3 is liable to pay the same.
4. Respondent No. 3, the insurer has also denied any accident to have taken place with the truck in question while it was being driven by respondent No. 1. It was alleged that driver of the vehicle was not holding a valid and effective driving licence and the truck was being plied without registration certificate, route permit and fitness certificate at the time of the alleged accident. The deceased is claimed himself to be negligent while driving the motorcycle. It is further claimed that the claimants are, therefore, not entitled to any amount as compensation. The insurer has also claimed that the owner and insurer of the motorcycle have also not been impleaded as party to the claim petition.
5. On the pleadings of the parties, the following issues were framed by the Tribunal.
1. Whether the accident in question resulting into the death of Hashim Ali was the result of rash and negligent driving on the part of respondent No. 1 Nasim Mohammad, who was driving the truck bearing registration No. HP- 24B-4572? OPP
2. If issue No. 1 is proved, to what compensation amount are the claimants entitled to and from whom? OPP
3. Whether the vehicle was being plied in contravention of the terms and conditions of the insurance policy and the company is absolved of its liability? OPR
4. Relief.
6. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of Rs. 4,00,000/- to the claimants vide the impugned award.
7. Both, the insurer as well as the claimants are aggrieved by the quantum of compensation and have brought their respective appeals.
8. I have heard Mr. L.M.Suri , learned Senior Advocate assisted by Mr. Neeraj Khanna, learned counsel for the Insurance company and Mr. R.S.Mamli, learned counsel for the claimants in both the appeals. I have gone through the record carefully.
9. Mr. L.M.Suri, learned senior counsel for the insurance company has submitted that the deceased had though been a young man of the age of 21 years, yet the multiplier of 18 adopted by learned Tribunal is not correct. According to him, the deceased had been a bachelor and in case of a bachelor, where the claimants are his parents, the multiplier should be governed by the age of the claimants and not the age of the deceased. He has cited before me a number of decisions of Hon'ble Supreme Court of India to support his submission that in the case of death of a bachelor, the multiplier would be governed by the age of the claimants.
10. The first case cited before me is National Insurance Company Limited v. Shyam Singh and others 2011(3) R.C.R.(Civil) 679 : 2011(4) Recent Apex Judgments (R.A.J.) 49 :(2011) 7 Supreme Court Cases 65. It was a case of death of a bachelor at the age of 19 years. The Tribunal calculated the compensation taking the multiplier of 9, as the claimants, the parents of the deceased, were 56 and 55 years old. In the appeal preferred for enhancement, the High court placed reliance on the judgment of Hon'ble Supreme Court of India in Smt. Sarla Verma and others v. Delhi Transport Corporation and another 2009(3) Recent Apex Judgments (R.A.J.) 373 : 2009 (3) RCR (Civil) 77 and enhanced the multiplier to 18. The Hon'ble Supreme Court of India has referred to the judgment on the point in Ramesh Singh v. Satbir Singh 2008(1) R.C.R.(Civil) 844 : 2008(1) R.A.J. 408 : (2008) 2 SCC 667, where it has been laid down as under:-
"6. We have given anxious consideration to these contentions and are of the opinion that the same are devoid of any merits. Considering the law laid down in New India Assurance Co. Ltd. v. Charlie 2005(2) R.C.R.(Civil) 550 : AIR 2005 SC 2157, it is clear that the choice of multiplier is determined by the age of the deceased or claimants whichever is higher. Admittedly, the age of the father was 55 years. The question of mother's age never cropped up because that was not the contention raised even before the Trial Court or before us. Taking the age to be 55 years, in our opinion, the courts below have not committed any illegality in applying the multiplier of 8 since the father was running 56th year of his life."
In view of the aforesaid, it has been laid down by Hon'ble Supreme Court that the Tribunal had rightly applied the multiplier of 8 by taking the average age of the parents, who were 55 and 56 years old.
11. Another case cited before me is a decision of Hon'ble Supreme Court of India in Shakti Devi V. New India Insurance Co. Ltd. and Anr. 2010(4) R.C.R.(Civil) 950 : 2010(6) Recent Apex Judgments (R.A.J.) 321 : JT 2010 (12) SC 106 . It was again a case of death of bachelor of the age of 22 years and multiplier of 11 was applied. It has been held therein as under:-
"12. . . . As regards the personal expenses, since the deceased was not married, we are satisfied that the principle stated in Sarla Verma (supra) that 50% should be treated as the personal and living expenses of the bachelor may be applied. Seen thus, the annual loss of dependency would come to Rs. 12,000/-. Insofar as multiplier is concerned, the Tribunal applied the multiplier of 8. Learned counsel for the appellant argued that the multiplier of 18 should have been applied keeping in view the age of the deceased. The argument is devoid of any substance. In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher. The exact age of the claimant has not come on record. As per the evidence of AW1 (Pankaj Kumar Sinha), on the date of his deposition, the claimant's age was about 63 years. The date of deposition of AW-1 is not available. The accident occurred in 1991 and the date of decision of the Tribunal is June 6, 2000. Ordinarily, the Tribunal would not have taken much time after the evidence was complete. We may assume that the statement of AW-1 was recorded somewhere in 1998 or 1999. If that be so, the age of the claimant on the date of the accident would be about 54-55 years. As per the table prepared in Sarla Verma (supra) , the multiplier of 11 would, therefore, be applicable. By multiplying the annual loss of dependency (Rs. 12000/-) with the multiplier of 11, the claimant becomes entitled to the compensation in the sum of Rs. 1,32,000/-. The compensation determined by the Tribunal at Rs. 60,000/- and confirmed by the High Court in the appeal is manifestly erroneous and is enhanced to Rs. 1,32,000/-."
12. The last case cited before me by Mr. L.M.Suri, learned senior counsel for the insurance company is a decision of Hon'ble Supreme Court of India in New India Assurance Company Ltd. v. Smt. Shanti Pathak and Ors 2007(3) R.C.R.(Civil) 593 : 2007(4) R.A.J. 131 : JT 2007 (9) 318 . In this case, the deceased was a bachelor of the age of 25 years and multiplier of 5 was approved instead of 17, which was adopted by the Tribunal.
13. On the other hand, Mr. R.S.Mamli, learned counsel for the claimants has submitted that the multiplier has to be adopted irrespective of the consideration that the deceased had been married or unmarried by keeping the age of the deceased in view. According to him, the multiplier, therefore, is not to be governed by the age of the claimants, the parents of a bachelor. He has cited before me a decision of a coordinate bench of this court in National Insurance Co. Ltd. v. Azad Singh and others 2011(7) R.C.R.(Civil) 2199 : 2010 ACJ 2384 , where the deceased had been a bachelor, who died at the age of 25 years and the claimants had been his parents aged 52 years. The Tribunal had adopted multiplier of 18 while computing compensation. In the appeal brought by the insurer, it had been held that due to advances in medical sciences, availability of better medical treatment and awareness of diseases and their treatment, parents could survive at least upto the age of 75 years and, therefore, the multiplier of 18 was found to be correct and the award made by the Tribunal was upheld.
14. In view of the consistent view of Hon'ble Supreme Court in the cases cited above, where it is laid down that the multiplier would be determined by the age of the deceased or that of the claimants, whichever is higher, the multiplier would have to be taken from the age of the claimants here who are of the age of 44 and 42 years. In the presence of the decision of Hon'ble Supreme Court in Smt. Sarla Verma's case (supra) , the age of the claimants being higher, the multiplier would have to be determined with reference to their age. Since the age of the claimants is 44 and 42 years respectively, the average age being 43 years, the multiplier as taken from the decision in Smt. Sarla Verma's case (supra) would be 14.
15. Mr. R.S. Mamli has also made a submission with regard to the dependency of the claimants. According to him, the deduction of 1/3rd should have been made to determine the dependency of the claimants.
16. The claimants before me are the parents of the deceased and there is no plea in the entire case that any other member of the family was also dependent on the income of the deceased. When the dependent family members had been two and the deceased had been a bachelor, the deduction as laid down by Hon'ble Supreme Court in Smt. Sarla Verma's case (supra) is 50%.
17. For the aforesaid reasons, the dependency assessed by learned Tribunal at Rs. 21,400/- per month is correct. However, the multiplier available in this case is 14 and multiplying the annual dependency at Rs. 21,400/- with 14, the compensation comes to Rs. 2,99,600/-. Adding to it a sum of Rs. 10,000/- under the heads of funeral expenses and loss of estate, I find that a sum of Rs. 3,09,600/- is the compensation payable to the claimants.
18. For the aforesaid reasons, appeal preferred by the insurer i.e. FAO No. No. 1125 of 2011 is allowed and the compensation awarded by the Tribunal in a sum of Rs. 4,00,000/- is reduced to Rs. 3,09,600/-, while the appeal preferred by the claimants, i.e., FAO No. 3155 of 2011 is dismissed. There shall be no order as to costs.
Appeal allowed.
