published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40622
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5373-5375 OF 2013
(Arising out of SLP (C) Nos. 7407-7409 of 2012)
REKHA JAIN & ANR. ... APPELLANTS
VS.
NATIONAL INSURANCE CO.LTD. ... RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
Leave granted by this Court vide order dated 02.07.2013 after
condoning the delay in filing the special leave petitions.
2. These appeals are filed by the claimants namely Rekha Jain and T.A.
Sebastian. They have questioned the correctness of the judgment and award
and order dated 24.2.2011 passed by the High Court of Orissa, Cuttack in
MACA No. 579 of 2007 and order dated 10/03/2011 in MC No. 385 of 2011 in
MACA No. 579 of 2007 in the aforesaid appeal and final order dated
24.11.2011 in M.A.C.A. No.844 of 2007 urging rival facts and legal
contentions.
3. The daughter and the husband of the deceased have filed these appeals
seeking just and reasonable compensation on account of the death of the
deceased in a motor vehicle accident, which took place on 17.08.2001.
The
deceased was traveling alongwith her daughter, the first appellant in her
Maruti Car bearing Regn. No. OR 15 D-9005.
The accident took place on
account of rash and negligent driving of the offending truck bearing Regn.
No. MP 23 D-0096.
The deceased Dr. Grace Jain died on the spot, as she had
sustained grievous injuries on account of the said accident. It is stated
by the appellants that the deceased was a renowned doctor serving as a
lecturer in Odisha College of Homeopathy and Research, Sambalpur and had
private practice as well.
4. It is stated in the claim petition and in the evidence that the
salary of the deceased was Rs.12,000/- per month.
The appellants herein
filed claim petition i.e. Misc.(A) Case No.118 of 2002 claiming
compensation of Rs.27,00,000/- before the Second Motor Accidents Claims
Tribunal, Northern Division, Sambalpur (hereinafter referred to as ‘the
Tribunal’).
5. The owner of the truck (since deleted from the array of parties)
appeared and filed identical written statement in the claim petition as
that of the written statement filed in Rekha Jain’s claim petition.
According to him, the driver of the truck had valid driving licence and the
same was insured with Respondent - National Insurance Company Limited
(hereinafter referred to as the ‘Insurance Company’). The owner of the
offending vehicle has further stated that his driver was not negligent. A
motor cyclist suddenly came in front of the truck overtaking him from its
left side and hence the driver had to move to the right side in order to
avoid accident with the motor cyclist. In that process the truck hit the
Maruti car causing death of the deceased.
6. The respondent-Insurance Company had also filed similar written
statement in both the claim petitions denying its liability on the ground
that the driver of the offending truck was negligent and that the accident
occurred due to the negligence of the driver of the Maruti Car. On behalf
of Rekha Jain, the first appellant herself was examined as a witness PW 3
and two other eye witnesses were examined as PW 1 and PW 2 to prove the
occurrence of the accident. On the basis of documentary and oral evidence
particularly eye witnesses’ evidence, the finding of fact was recorded on
issue Nos. 2 and 3 that the accident took place on account of rash and
negligent driving of the offending truck driver and it was also answered
that the claim petition filed by the appellants is maintainable. The
Tribunal held that the appellant’s mother died and the first appellant was
grievously injured due to the accident involving offending vehicle. The
Tribunal also recorded the finding of fact holding that the accident took
place on account of rash and negligent driving by the driver of the
offending vehicle. Consequently, issue No.4 was answered by awarding
compensation at Rs.10,62,000/- with 6% interest per annum by accepting the
pleading of the appellants that the deceased was a renowned doctor
practicing in Government Hospital.
7. The claim petition Misc.(A) Case No. 118/2002 was allowed with
interest @ 6% per annum from the date on which the claim petition was filed
and the respondents were directed by the Tribunal to deposit Rs.5,00,000/-
each for both the appellants for a period of five years with quarterly
interest payable to them. The Tribunal also directed the payment of
balance amount and interest on the compensation in equal proportion to both
the appellants in cash.
8. Aggrieved by the above said judgment and award both the Insurance
Company as well as the appellants filed appeals before the High Court of
Orissa, which were numbered as M.A.C.A. No. 579 of 2007 and M.A.C.A. No.844
of 2007. as the Insurance Company is aggrieved by fastening of liability
and quantum of compensation and the appellants have prayed for just and
reasonable compensation. The High Court after examining the appeal of the
Insurance Company, found fault with the compensation awarded by the
Tribunal at Rs.10,62,000/- in favour of the appellants taking monthly
earnings of the deceased at Rs. 12,000/-, in the absence of material
evidence produced on record regarding the proof of her monthly salary. The
Tribunal calculated the compensation by deducting 1/3rd out of the monthly
salary towards her personal expenses and her contribution to the
appellants’ family. The same is taken as Rs.8,000/- per month. Hence, her
annual income was assessed at Rs.96,000/-. The age of the deceased is
recorded at about 51 years. Hence, a multiplier of 11 was used for
calculating the loss of dependency of the appellants and Rs.10,62,000/- was
awarded by the Tribunal, which included Rs.6,000/- towards general damages.
The High Court however, arrived at the conclusion and recorded the
finding of fact stating that a compensation of Rs.10,62,000/- is on the
higher side and hence, the same was reduced by the High Court to
Rs.8,00,000/-.
9. Aggrieved by the same, the appeal was filed by the appellants for
modification of the impugned judgment for grant of just and reasonable
compensation to them. It is urged that the appeal of the appellants was
dismissed by the High Court without examining the case independently and
appreciating the pleadings, legal evidence on record and law on the
question and without following the criteria for awarding just and
reasonable compensation. The correctness of the judgment, awards and order
passed on 10.3.2011 in Misc. Case No.385 of 2011 modifying the order dated
24.2.2011 is challenged wherein the modification was only to the extent of
the direction given by the High Court that out of the awarded amount, an
amount equivalent to 60% shall be kept in fixed deposit in the name of
appellants in any nationalized bank for a period of five years and the
balance amount should be disbursed to the appellants.
10. However, the High Court has taken Rs.12,000/- per month as the
monthly income of the deceased for the purpose of determining the
compensation in favour of the appellants. It is urged that this approach
of the High Court in reducing the compensation awarded by the Tribunal is
erroneous in law. Further, the multiplier applied by both the Tribunal as
well as the High Court is contrary to the multiplier mentioned in the
schedule which is applicable for special reasons having regard to the facts
and circumstances of the case placing reliance upon the judgment of this
Court in the case of United India Insurance Co. Ltd. & Ors. v. Patricia
Jean Mahajan & Ors.[1] The relevant paragraph of the judgment reads as
under:
“13. We may refer to the decision in G.M., Kerala SRTC v. Susamma
Thomas. In this case while considering the law on the subject, it was
observed in para 13 of the Report as follows: (SCC p. 183)
“The choice of the multiplier is determined by the age of the deceased
(or that of the claimants whichever is higher) and by the calculation
as to what capital sum, if invested at a rate of interest appropriate
to a stable economy, would yield the multiplicand by way of annual
interest. In ascertaining this, regard should also be had to the fact
that ultimately the capital sum should also be consumed up over the
period for which the dependency is expected to last.”
11. The Tribunal and the High Court have erred in not awarding just and
reasonable compensation in favour of the appellants keeping in view the
principles laid down by this Court in various judgments in the matters of
motor accidents claims keeping in view the object of compensation which
will be the source of the maintenance for them particularly, in respect of
the claimant, appellant no.1. The High Court instead of enhancing the
compensation though the case is made out in the appeal filed by the
appellants for enhancement, has erroneously exercised its jurisdiction and
has reduced the compensation from Rs.10,62,000/- to Rs.8,00,000/- without
taking into consideration the facts of the case that the deceased was a
renowned doctor serving in Odisha College of Homeopathy and Research,
Sambalpur, and she also had private practice and had earned good reputation
in the area.
12. The above said important aspect of the matter had been ignored both
by the Tribunal as well as the High Court in not awarding just and
reasonable compensation in favour of the appellants. Therefore, Mr.
Sukumar Pattjoshi, the learned Senior Counsel for the appellants has sought
for enhancement of compensation as claimed in the claim petition by the
appellants.
13. On the other hand, Mr. S.L. Gupta, the learned counsel for the
Insurance Company sought to justify the impugned judgment passed by the
High Court in its appeal and the appeal filed by the appellants contending
that the High Court has rightly considered the facts and legal evidence on
record and has modified the impugned judgment of the Tribunal and awarded
compensation of Rs.8,00,000/- with 6% interest per annum and giving
direction as contained in the impugned judgment passed in the appeal of the
Insurance Company and modifying the same vide order dated 10.3.2011 in the
instant appeal regarding 60% of deposit of the awarded amount including the
interests. Therefore, he has prayed for dismissal of the appeals as there
is no merit.
14. In view of the aforesaid rival factual and legal contentions, the
following points would fall for our consideration:
1. Whether the High Court is justified in reducing the
compensation from Rs.10,62,000/- to Rs.8,00,000/- with 6%
interest per annum?
2. Whether the appellants are entitled for enhanced
compensation?
3. What award?
15. We have perused the impugned judgment and evidence on record
particularly the evidence of PW 3, the first appellant who is the daughter
of deceased. It should have been taken into consideration that the
employment of the deceased was a public employment. Therefore, it was a
stable employment for a period of another seven years and there could have
been revision of wages and promotional benefits accrued in her favour if
she was alive. Therefore, for determining the annual income of the
deceased, the principles laid down in Sarla Verma & Ors. v. Delhi Transport
Corp. & Anr[2] should have been applied to the case of the appellants by
taking into consideration the monthly salary of the deceased at Rs.12,000/-
to which 30% should have been added as future prospects of income as
mentioned above and that much amount could have been taken as monthly
income of the deceased for the purpose of determining the compensation
towards the loss of dependency of the appellants. The relevant paragraph of
the case reads as under:
“24. In Susamma Thomas this Court increased the income by nearly 100%,
in Sarla Dixit the income was increased only by 50% and in Abati
Bezbaruah the income was increased by a mere 7%. In view of the
imponderables and uncertainties, we are in favour of adopting as a
rule of thumb, an addition of 50% of actual salary to the actual
salary income of the deceased towards future prospects, where the
deceased had a permanent job and was below 40 years. (Where the annual
income is in the taxable range, the words “actual salary” should be
read as “actual salary less tax”). The addition should be only 30% if
the age of the deceased was 40 to 50 years. There should be no
addition, where the age of the deceased is more than 50 years. Though
the evidence may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different yardsticks
being applied or different methods of calculation being adopted. Where
the deceased was self-employed or was on a fixed salary (without
provision for annual increments, etc.), the courts will usually take
only the actual income at the time of death. A departure therefrom
should be made only in rare and exceptional cases involving special
circumstances.”
This aspect of the matter is not taken into consideration by the
Tribunal while awarding compensation. Nonetheless, it has accepted the
claim made by the appellants that the salary of the deceased was Rs.12,000/-
per month and the multiplier 11 was applied and awarded compensation of
Rs.10,62,000/-.
The same has been interfered with by the High Court in the
Appeal filed by the Insurance Company though it has no right to challenge
the quantum of compensation as it has got limited defence as provided under
Section 149(2) of the Motor Vehicles Act in the absence of permission from
the Tribunal to avail the defence on behalf of the insurer as required
under Section 170(b) of the Act.
This principle has been laid down by
three judge Bench decision of this Court in National Insurance Co. Ltd. vs.
Nicolletta Rohtagi & Ors.[3] The relevant paragraphs of the judgment read
as under:
“15. It is relevant to note that Parliament, while enacting sub-section
(2) of Section 149 only specified some of the defences which are based on
conditions of the policy and, therefore, any other breach of conditions
of the policy by the insured which does not find place in sub-section (2)
of Section 149 cannot be taken as a defence by the insurer.
If Parliament
had intended to include the breach of other conditions of the policy as a
defence, it could have easily provided any breach of conditions of
insurance policy in sub-section (2) of Section 149.
If we permit the
insurer to take any other defence other than those specified in sub-
section (2) of Section 149, it would mean we are adding more defences to
the insurer in the statute which is neither found in the Act nor was
intended to be included.
16. For the aforesaid reasons, we are of the view that the statutory
defences which are available to the insurer to contest a claim are
confined to what are provided in sub-section (2) of Section 149 of the
1988 Act and not more and for that reason if an insurer is to file an
appeal, the challenge in the appeal would confine to only those grounds.”
16. In our considered view the Tribunal and the High Court have erred in
not following the principles laid down in Sarla Verma’ case (supra)
in
fixing the monthly income at Rs.12,000/- in the absence of documentary
evidence having regard to the fact that the deceased was employed as
Lecturer in Odisha College of Homeopathy and Research, Sambalpur and she
also had private practice.
The Tribunal in exercise of its original
jurisdiction has taken Rs.12,000/- as her monthly income and has deducted
1/3rd out of the monthly salary towards her personal expenses and computed
the compensation both on the loss of dependency as well as the conventional
heads and has awarded Rs.10,62,000/-.
The same should not have been
interfered with by the High Court in exercise of its appellate
jurisdiction.
Hence, the impugned judgment, award and order passed in the
Misc. Case no. 385/2011 in M.A.C.A No. 579/2007 is required to be
interfered with.
So also the order dated 10.3.2011 in Misc. Case No.385 of
2011 modifying the earlier direction issued by the High Court to deposit
60% of the awarded amount in any of the Nationalized Bank, is required to
be interfered with.
Accordingly, both the impugned judgment, award and
orders dated 24.2.2011 and 10.03.2011 are hereby set aside by allowing the
civil appeals.
17. Having regard to the facts, circumstances and the finding recorded by
the Tribunal in its judgment, we restore the same in awarding compensation
in favour of the appellants at Rs.10,62,000/- with interest at the rate of
6% per annum. The appeal of the appellants for enhancement is disposed of
in the above terms. We further keep the order of the Tribunal dated
20.3.2007 in so far as the directions issued by it for deposit of awarded
amount in M.A.C. No. 118 of 2002 are concerned.
18. The appeals are disposed of accordingly. There will be no order as
to costs.
………………………………………………J.
[G.S. SINGHVI]
……………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
August 1, 2013.
-----------------------
[1] 2002(6) SCC 281
[2] 2009 (6) SCC 121
[3] (2002) 7 SCC 456
-----------------------
18
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5373-5375 OF 2013
(Arising out of SLP (C) Nos. 7407-7409 of 2012)
REKHA JAIN & ANR. ... APPELLANTS
VS.
NATIONAL INSURANCE CO.LTD. ... RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
Leave granted by this Court vide order dated 02.07.2013 after
condoning the delay in filing the special leave petitions.
2. These appeals are filed by the claimants namely Rekha Jain and T.A.
Sebastian. They have questioned the correctness of the judgment and award
and order dated 24.2.2011 passed by the High Court of Orissa, Cuttack in
MACA No. 579 of 2007 and order dated 10/03/2011 in MC No. 385 of 2011 in
MACA No. 579 of 2007 in the aforesaid appeal and final order dated
24.11.2011 in M.A.C.A. No.844 of 2007 urging rival facts and legal
contentions.
3. The daughter and the husband of the deceased have filed these appeals
seeking just and reasonable compensation on account of the death of the
deceased in a motor vehicle accident, which took place on 17.08.2001.
The
deceased was traveling alongwith her daughter, the first appellant in her
Maruti Car bearing Regn. No. OR 15 D-9005.
The accident took place on
account of rash and negligent driving of the offending truck bearing Regn.
No. MP 23 D-0096.
The deceased Dr. Grace Jain died on the spot, as she had
sustained grievous injuries on account of the said accident. It is stated
by the appellants that the deceased was a renowned doctor serving as a
lecturer in Odisha College of Homeopathy and Research, Sambalpur and had
private practice as well.
4. It is stated in the claim petition and in the evidence that the
salary of the deceased was Rs.12,000/- per month.
The appellants herein
filed claim petition i.e. Misc.(A) Case No.118 of 2002 claiming
compensation of Rs.27,00,000/- before the Second Motor Accidents Claims
Tribunal, Northern Division, Sambalpur (hereinafter referred to as ‘the
Tribunal’).
5. The owner of the truck (since deleted from the array of parties)
appeared and filed identical written statement in the claim petition as
that of the written statement filed in Rekha Jain’s claim petition.
According to him, the driver of the truck had valid driving licence and the
same was insured with Respondent - National Insurance Company Limited
(hereinafter referred to as the ‘Insurance Company’). The owner of the
offending vehicle has further stated that his driver was not negligent. A
motor cyclist suddenly came in front of the truck overtaking him from its
left side and hence the driver had to move to the right side in order to
avoid accident with the motor cyclist. In that process the truck hit the
Maruti car causing death of the deceased.
6. The respondent-Insurance Company had also filed similar written
statement in both the claim petitions denying its liability on the ground
that the driver of the offending truck was negligent and that the accident
occurred due to the negligence of the driver of the Maruti Car. On behalf
of Rekha Jain, the first appellant herself was examined as a witness PW 3
and two other eye witnesses were examined as PW 1 and PW 2 to prove the
occurrence of the accident. On the basis of documentary and oral evidence
particularly eye witnesses’ evidence, the finding of fact was recorded on
issue Nos. 2 and 3 that the accident took place on account of rash and
negligent driving of the offending truck driver and it was also answered
that the claim petition filed by the appellants is maintainable. The
Tribunal held that the appellant’s mother died and the first appellant was
grievously injured due to the accident involving offending vehicle. The
Tribunal also recorded the finding of fact holding that the accident took
place on account of rash and negligent driving by the driver of the
offending vehicle. Consequently, issue No.4 was answered by awarding
compensation at Rs.10,62,000/- with 6% interest per annum by accepting the
pleading of the appellants that the deceased was a renowned doctor
practicing in Government Hospital.
7. The claim petition Misc.(A) Case No. 118/2002 was allowed with
interest @ 6% per annum from the date on which the claim petition was filed
and the respondents were directed by the Tribunal to deposit Rs.5,00,000/-
each for both the appellants for a period of five years with quarterly
interest payable to them. The Tribunal also directed the payment of
balance amount and interest on the compensation in equal proportion to both
the appellants in cash.
8. Aggrieved by the above said judgment and award both the Insurance
Company as well as the appellants filed appeals before the High Court of
Orissa, which were numbered as M.A.C.A. No. 579 of 2007 and M.A.C.A. No.844
of 2007. as the Insurance Company is aggrieved by fastening of liability
and quantum of compensation and the appellants have prayed for just and
reasonable compensation. The High Court after examining the appeal of the
Insurance Company, found fault with the compensation awarded by the
Tribunal at Rs.10,62,000/- in favour of the appellants taking monthly
earnings of the deceased at Rs. 12,000/-, in the absence of material
evidence produced on record regarding the proof of her monthly salary. The
Tribunal calculated the compensation by deducting 1/3rd out of the monthly
salary towards her personal expenses and her contribution to the
appellants’ family. The same is taken as Rs.8,000/- per month. Hence, her
annual income was assessed at Rs.96,000/-. The age of the deceased is
recorded at about 51 years. Hence, a multiplier of 11 was used for
calculating the loss of dependency of the appellants and Rs.10,62,000/- was
awarded by the Tribunal, which included Rs.6,000/- towards general damages.
The High Court however, arrived at the conclusion and recorded the
finding of fact stating that a compensation of Rs.10,62,000/- is on the
higher side and hence, the same was reduced by the High Court to
Rs.8,00,000/-.
9. Aggrieved by the same, the appeal was filed by the appellants for
modification of the impugned judgment for grant of just and reasonable
compensation to them. It is urged that the appeal of the appellants was
dismissed by the High Court without examining the case independently and
appreciating the pleadings, legal evidence on record and law on the
question and without following the criteria for awarding just and
reasonable compensation. The correctness of the judgment, awards and order
passed on 10.3.2011 in Misc. Case No.385 of 2011 modifying the order dated
24.2.2011 is challenged wherein the modification was only to the extent of
the direction given by the High Court that out of the awarded amount, an
amount equivalent to 60% shall be kept in fixed deposit in the name of
appellants in any nationalized bank for a period of five years and the
balance amount should be disbursed to the appellants.
10. However, the High Court has taken Rs.12,000/- per month as the
monthly income of the deceased for the purpose of determining the
compensation in favour of the appellants. It is urged that this approach
of the High Court in reducing the compensation awarded by the Tribunal is
erroneous in law. Further, the multiplier applied by both the Tribunal as
well as the High Court is contrary to the multiplier mentioned in the
schedule which is applicable for special reasons having regard to the facts
and circumstances of the case placing reliance upon the judgment of this
Court in the case of United India Insurance Co. Ltd. & Ors. v. Patricia
Jean Mahajan & Ors.[1] The relevant paragraph of the judgment reads as
under:
“13. We may refer to the decision in G.M., Kerala SRTC v. Susamma
Thomas. In this case while considering the law on the subject, it was
observed in para 13 of the Report as follows: (SCC p. 183)
“The choice of the multiplier is determined by the age of the deceased
(or that of the claimants whichever is higher) and by the calculation
as to what capital sum, if invested at a rate of interest appropriate
to a stable economy, would yield the multiplicand by way of annual
interest. In ascertaining this, regard should also be had to the fact
that ultimately the capital sum should also be consumed up over the
period for which the dependency is expected to last.”
11. The Tribunal and the High Court have erred in not awarding just and
reasonable compensation in favour of the appellants keeping in view the
principles laid down by this Court in various judgments in the matters of
motor accidents claims keeping in view the object of compensation which
will be the source of the maintenance for them particularly, in respect of
the claimant, appellant no.1. The High Court instead of enhancing the
compensation though the case is made out in the appeal filed by the
appellants for enhancement, has erroneously exercised its jurisdiction and
has reduced the compensation from Rs.10,62,000/- to Rs.8,00,000/- without
taking into consideration the facts of the case that the deceased was a
renowned doctor serving in Odisha College of Homeopathy and Research,
Sambalpur, and she also had private practice and had earned good reputation
in the area.
12. The above said important aspect of the matter had been ignored both
by the Tribunal as well as the High Court in not awarding just and
reasonable compensation in favour of the appellants. Therefore, Mr.
Sukumar Pattjoshi, the learned Senior Counsel for the appellants has sought
for enhancement of compensation as claimed in the claim petition by the
appellants.
13. On the other hand, Mr. S.L. Gupta, the learned counsel for the
Insurance Company sought to justify the impugned judgment passed by the
High Court in its appeal and the appeal filed by the appellants contending
that the High Court has rightly considered the facts and legal evidence on
record and has modified the impugned judgment of the Tribunal and awarded
compensation of Rs.8,00,000/- with 6% interest per annum and giving
direction as contained in the impugned judgment passed in the appeal of the
Insurance Company and modifying the same vide order dated 10.3.2011 in the
instant appeal regarding 60% of deposit of the awarded amount including the
interests. Therefore, he has prayed for dismissal of the appeals as there
is no merit.
14. In view of the aforesaid rival factual and legal contentions, the
following points would fall for our consideration:
1. Whether the High Court is justified in reducing the
compensation from Rs.10,62,000/- to Rs.8,00,000/- with 6%
interest per annum?
2. Whether the appellants are entitled for enhanced
compensation?
3. What award?
15. We have perused the impugned judgment and evidence on record
particularly the evidence of PW 3, the first appellant who is the daughter
of deceased. It should have been taken into consideration that the
employment of the deceased was a public employment. Therefore, it was a
stable employment for a period of another seven years and there could have
been revision of wages and promotional benefits accrued in her favour if
she was alive. Therefore, for determining the annual income of the
deceased, the principles laid down in Sarla Verma & Ors. v. Delhi Transport
Corp. & Anr[2] should have been applied to the case of the appellants by
taking into consideration the monthly salary of the deceased at Rs.12,000/-
to which 30% should have been added as future prospects of income as
mentioned above and that much amount could have been taken as monthly
income of the deceased for the purpose of determining the compensation
towards the loss of dependency of the appellants. The relevant paragraph of
the case reads as under:
“24. In Susamma Thomas this Court increased the income by nearly 100%,
in Sarla Dixit the income was increased only by 50% and in Abati
Bezbaruah the income was increased by a mere 7%. In view of the
imponderables and uncertainties, we are in favour of adopting as a
rule of thumb, an addition of 50% of actual salary to the actual
salary income of the deceased towards future prospects, where the
deceased had a permanent job and was below 40 years. (Where the annual
income is in the taxable range, the words “actual salary” should be
read as “actual salary less tax”). The addition should be only 30% if
the age of the deceased was 40 to 50 years. There should be no
addition, where the age of the deceased is more than 50 years. Though
the evidence may indicate a different percentage of increase, it is
necessary to standardise the addition to avoid different yardsticks
being applied or different methods of calculation being adopted. Where
the deceased was self-employed or was on a fixed salary (without
provision for annual increments, etc.), the courts will usually take
only the actual income at the time of death. A departure therefrom
should be made only in rare and exceptional cases involving special
circumstances.”
This aspect of the matter is not taken into consideration by the
Tribunal while awarding compensation. Nonetheless, it has accepted the
claim made by the appellants that the salary of the deceased was Rs.12,000/-
per month and the multiplier 11 was applied and awarded compensation of
Rs.10,62,000/-.
The same has been interfered with by the High Court in the
Appeal filed by the Insurance Company though it has no right to challenge
the quantum of compensation as it has got limited defence as provided under
Section 149(2) of the Motor Vehicles Act in the absence of permission from
the Tribunal to avail the defence on behalf of the insurer as required
under Section 170(b) of the Act.
This principle has been laid down by
three judge Bench decision of this Court in National Insurance Co. Ltd. vs.
Nicolletta Rohtagi & Ors.[3] The relevant paragraphs of the judgment read
as under:
“15. It is relevant to note that Parliament, while enacting sub-section
(2) of Section 149 only specified some of the defences which are based on
conditions of the policy and, therefore, any other breach of conditions
of the policy by the insured which does not find place in sub-section (2)
of Section 149 cannot be taken as a defence by the insurer.
If Parliament
had intended to include the breach of other conditions of the policy as a
defence, it could have easily provided any breach of conditions of
insurance policy in sub-section (2) of Section 149.
If we permit the
insurer to take any other defence other than those specified in sub-
section (2) of Section 149, it would mean we are adding more defences to
the insurer in the statute which is neither found in the Act nor was
intended to be included.
16. For the aforesaid reasons, we are of the view that the statutory
defences which are available to the insurer to contest a claim are
confined to what are provided in sub-section (2) of Section 149 of the
1988 Act and not more and for that reason if an insurer is to file an
appeal, the challenge in the appeal would confine to only those grounds.”
16. In our considered view the Tribunal and the High Court have erred in
not following the principles laid down in Sarla Verma’ case (supra)
in
fixing the monthly income at Rs.12,000/- in the absence of documentary
evidence having regard to the fact that the deceased was employed as
Lecturer in Odisha College of Homeopathy and Research, Sambalpur and she
also had private practice.
The Tribunal in exercise of its original
jurisdiction has taken Rs.12,000/- as her monthly income and has deducted
1/3rd out of the monthly salary towards her personal expenses and computed
the compensation both on the loss of dependency as well as the conventional
heads and has awarded Rs.10,62,000/-.
The same should not have been
interfered with by the High Court in exercise of its appellate
jurisdiction.
Hence, the impugned judgment, award and order passed in the
Misc. Case no. 385/2011 in M.A.C.A No. 579/2007 is required to be
interfered with.
So also the order dated 10.3.2011 in Misc. Case No.385 of
2011 modifying the earlier direction issued by the High Court to deposit
60% of the awarded amount in any of the Nationalized Bank, is required to
be interfered with.
Accordingly, both the impugned judgment, award and
orders dated 24.2.2011 and 10.03.2011 are hereby set aside by allowing the
civil appeals.
17. Having regard to the facts, circumstances and the finding recorded by
the Tribunal in its judgment, we restore the same in awarding compensation
in favour of the appellants at Rs.10,62,000/- with interest at the rate of
6% per annum. The appeal of the appellants for enhancement is disposed of
in the above terms. We further keep the order of the Tribunal dated
20.3.2007 in so far as the directions issued by it for deposit of awarded
amount in M.A.C. No. 118 of 2002 are concerned.
18. The appeals are disposed of accordingly. There will be no order as
to costs.
………………………………………………J.
[G.S. SINGHVI]
……………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
August 1, 2013.
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[1] 2002(6) SCC 281
[2] 2009 (6) SCC 121
[3] (2002) 7 SCC 456
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