advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, January 24, 2017

When we find that under one head, reasonable amount has been awarded and under another head, nothing has been awarded though it should have been so awarded and at the same time, we notice that eventual figure of the award of compensation payable to the claimants appears to be just and reasonable then in such eventuality, we do not consider it proper to interfere in such award in our appellate jurisdiction under Article 136 of the Constitution. In other words, if by applying the tests and guidelines, we find that overall award of compensation is just and fair, then, in our view, such award deserves to be upheld in claimants’ favour. We find it to be so in the facts of this case having taken note of all relevant facts and circumstances of the case.

                                                       NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.3862 OF 2013

D.M., Oriental Insurance Co. Ltd.  ……Appellant(s)


                             VERSUS


Swapna Nayak & Ors.               ……Respondent(s)

      WITH

                     CIVIL APPEAL Nos.3863-3864 OF 2013

Swapna Nayak & Ors.                ……Appellant(s)


                             VERSUS


M/s Oriental Insurance Co. Ltd.   ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    C.A. No. 3862 of 2013 is  filed  by  the  Oriental  Insurance  Company
Ltd.(for short, “the Insurance Company”) and C.A.  Nos.  3863-3864  of  2013
are filed by the claimants.  These appeals  are  filed  against  the  common
final judgment and order dated 21.09.2012 of the High  Court  of  Orissa  at
Cuttack in M.A.C.A. No.1 of 2012 and M.A.C.A. No. 62  of  2012  whereby  the
High
Court partly allowed M.A.C.A. No.1 of 2012 filed by  the  Insurance  Company
and,  in  consequence,  dismissed  M.A.C.A.  No.62  of  2012  filed  by  the
claimants.
2)    In order to appreciate the issue  involved  in  these  appeals,  which
lies in a narrow compass, it is necessary to set out the relevant  facts  in
brief infra.
3)    On 16.12.2006, one Mathurananda Nayak, a resident of U.S.A.,  and  his
mother Jita Nayak along with two  others  while  coming  from  Cuttack  side
towards Aredi on NH No. 5 by a car bearing  Registration  No.  OR-02-S-0565,
collided with a truck bearing Registration No. OR-09-E-6357  driven  by  its
driver which was coming from Paniloili  side.   As  a  result  of  the  said
accident, Mathurananda Nayak, Jita  Nayak  along  with  driver  of  the  car
sustained injuries and later succumbed to the injuries on the same day.
4)    The claimants in this  appeal  are  wife  and  sons  of  the  deceased
Mathurandanda Nayak, who was aged about 36 years at the  time  of  accident.
He was working as a Senior Information  System  Analyst  under  Traci  Cagle
Human Resource Representative a Xilinx Inc-2100 Logic Drive  San  Jose,  CA-
95124, U.S.A. and was earning $97,080,60 per annum by  way  of  salary.   He
had come to India for few days when unfortunately he met  with  an  accident
and died.
5)    The legal heirs of the deceased filed two separate claim  applications
for  compensation  under  Section  166  of  the  Motor  Vehicles  Act,  1988
(hereinafter referred to as “the Act”)  before  the  Motor  Accidents  Claim
Tribunal, Cuttack (for short, “the Tribunal”)  being  MAC  No.  25  of  2007
(filed by legal heirs of Mathurananda Nayak) and MAC No. 30 of  2007  (filed
by the legal heirs of Jita Nayak) against the owner of the vehicle  and  the
Oriental Insurance Company Ltd. being the insurer of the truck.
6)    The owner of the insured vehicle did not appear in  spite  of  service
and the applications were proceeded ex-parte.
7)    By a common Award  dated  25.10.2011  in  MCA  No.  25  of  2007,  the
Tribunal allowed the applications. So far  as   M.C.A.  No.25  of  2007  was
concerned, the Tribunal held that the accident was caused due  to  rash  and
negligent driving of truck driver, that the  deceased  was  aged  36  years,
that annual income of the deceased was Rs.43,68,624/-  (in  Indian  currency
by applying the exchange rate of Rs.45/- per  dollar).   The  Tribunal  then
applied the multiplier of 15 and  after  deducting  1/3rd  towards  personal
expenses and adding therein some amount towards conventional heads,  awarded
a total sum of Rs.4,36,95,740/- to the claimants  and  accordingly  directed
the Insurance Company to pay the awarded sum to  the  claimants  along  with
interest at the rate of 7.5% from the date of application.
8)    So far as MCA No. 30 of 2007 was concerned, the Tribunal, by  applying
the multiplier of 5, awarded a sum of Rs.1,29,500/-  with  interest  at  the
rate of 7.5% p.a. for the death of Jita Nayak.
9)    Challenging the said award, the Insurance Company filed MACA  No.1  of
2012 before the High Court and the claimants filed MACA No.62  of  2012  for
enhancement of compensation amount awarded to them by the Tribunal.
10)   By impugned common judgment dated 21.09.2012, the  High  Court  partly
allowed  the  appeal  filed  by  the  Insurance  Company  and  reduced   the
compensation amount of Rs.4,36,95,740/-, which was awarded by the  Tribunal,
to  Rs.3,75,00,000/-.  It was held that the Tribunal deducted 1/3rd  towards
personal expenses of the  deceased  but  did  not  deduct  anything  towards
income tax from the salary. The High Court, therefore, interfered  with  the
determination  made  by  the  Tribunal   and   accordingly   re-worked   the
compensation and reduced it to Rs.3,75,00,000/-.  All  other  findings  were
withheld.  As a  consequence,  the  claimants’  appeal  for  enhancement  of
compensation was dismissed.
11)   Challenging the  said  judgment  of  the  High  Court,  the  Insurance
Company has filed C.A. No. 3862 of 2013 seeking  further  reduction  in  the
award of compensation whereas the claimants have filed C.A.  Nos.  3863-3864
of 2013 seeking enhancement in the compensation.
12)   Heard Mr. Vishnu Mehra, learned counsel  for  the  Insurance  Company.
None appears for the claimants though served.
13)    Mr.  Vishnu  Mehra,  learned  counsel  appearing  for  the  appellant
(Insurance Company-insurer of the  offending  vehicle)  contended  that  the
High Court though was right in allowing the appeal filed  by  the  Insurance
Company in part and was also right in reducing the quantum  of  compensation
awarded by the Claims Tribunal from Rs.4,36,95,740/-  to  Rs.3,75,00,  000/-
but according to him,  the  High  Court  should  have  further  reduced  the
compensation instead of confining it to Rs.3,75,00,000/- only.
14)   Placing reliance on the decisions in   Bijoy  Kumar  Dugar  vs.  Bidya
Dhar Dutta & Ors.,  2006 (3) SCC 242,  Reshma  Kumari  &  Others  vs.  Madan
Mohan And Another, 2013 (9) SCC 65 and United  India  Insurance  Co.  Ltd  &
Others vs. Patricia Jean Mahajan And  Others,  2002  (6)  SCC  281,  learned
counsel contended that the High Court erred in  applying  multiplier  of  15
for determining the  quantum  of  compensation  payable  to  the  claimants.
According to him, keeping in view the law laid down in the  cases  cited  at
the bar, the multiplier of 10 at best could  be  applied  in  place  of  15.
Learned Counsel further contended  that  in  the  absence  of  any  evidence
adduced by the claimants on the issue of future prospects  of  the  deceased
in his life, no case is made out for award of any  compensation  under  this
head.
15)    Having  heard  the  learned  counsel  for  the  appellant  (Insurance
Company) and on perusal of the entire record of the case, we have formed  an
opinion to dismiss both the appeals and, in  consequence,  are  inclined  to
uphold the order of the High Court which, in our view,  does  not  call  for
any interference.
16)   On perusal of the decisions  cited  at  the  bar  and  further  having
regard to the totality of the facts and circumstances of the  case  and  the
concurrent findings of two  courts  and  on  material  issues  such  as  the
determination of annual income of the  deceased,  his  age,  the  number  of
dependents etc., we do  not  find  any  good  ground  to  interfere  in  the
impugned order.  In our view, such findings, apart  from  being  concurrent,
cannot be said to be, in any way, arbitrary and nor they result in  awarding
a bonanza or a  windfall  to  the  claimants  so  as  to  call  for  further
reduction in the compensation awarded by the High Court.
17)   In other words, in our view, what has been eventually awarded  to  the
claimants by the High Court appears to be just and  reasonable  compensation
within the meaning of Section 166 of the Act and there does not  appear  any
good ground for further enhancement under any of the heads  including  under
the head of future prospects as claimed by the  claimants  in  their  appeal
and nor any case is made out for further reduction by  applying  the  lesser
multiplier or to make further deduction  in  the  salary  component  of  the
deceased as claimed by the Insurance Company.
18)   When we find that under one head, reasonable amount has  been  awarded
and under another head, nothing has been awarded though it should have  been
so awarded and at the same time, we  notice  that  eventual  figure  of  the
award of compensation payable to  the  claimants  appears  to  be  just  and
reasonable then in such  eventuality,  we  do  not  consider  it  proper  to
interfere in such award in our appellate jurisdiction under Article  136  of
the Constitution. In other words, if by applying the tests  and  guidelines,
we find that overall award of compensation is just and fair,  then,  in  our
view, such award deserves to be upheld in claimants’ favour. We find  it  to
be so in the facts of this case having taken note of all relevant facts  and
circumstances of the case.
19)   In the light  of  foregoing  discussion,  we  find  no  merit  in  the
appeals, i.e., the appeal filed by the  Insurance  Company  seeking  further
reduction in the  compensation  and  the  appeals  filed  by  the  claimants
seeking enhancement in the compensation and accordingly dismiss the  appeals
and, in  consequence,  uphold  the  order  of  the  High  Court  calling  no
interference therein.
20)   Let the entire amount of compensation awarded to the claimants by  the
High Court be paid to the claimants by  the  Insurance  Company  within  one
month from the date of receipt of this judgment after adjusting  the  amount
already paid. No costs.


.……...................................J.
                                     [J. CHELAMESWAR]


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]

      New Delhi,
      January 23, 2017.
-----------------------
10


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.