UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.110/2011
BUM BAHADUR & ANR. ..... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
DHIRAJ KUMAR & ORS ..... Respondents
Through: Ms. Suman Bagga, Advocate for the
respondent No.3
% Date of Decision : April 28, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
ORDER (Oral)
: REVA KHETRAPAL, J.
1. This appeal is directed against the judgment and award of the
Motor Accident Claims Tribunal dated 26th October, 2010 passed in
MAC. APP. 110/2011 Page 1 of 12
case No.05/10 titled “Bum Bahadur and Anr. vs. Dhiraj Kumar and
Ors.”
2. With the consent of the parties, the matter is taken up for final
hearing at this stage. Since a short point is involved and the counsel
for the parties are agreed that it will not be necessary to refer to the
lower court records, the same have not been requisitioned.
3. The brief facts relevant for the decision of the present appeal
are that on 22.12.2009 at about 2.30 a.m., one Monu suffered fatal
injuries in a road accident which took place at Rohtak Road, 21,
Dharam Colony, opposite Metro Station Nangloi, Delhi, when his
motorcycle was struck by a tempo bearing No.DL-1LG-5711. The
appellants, who are the parents of the deceased, filed a claim petition
claiming a total sum of ` 20 lakhs by way of compensation from the
respondents No.1 and 2, the owner and the driver respectively of the
offending tempo, and the respondent No.3 – Insurance Company.
Pertinently, the claim petition was filed under the provisions of
Section 163-A of the Motor Vehicles Act 1988. Since there was no
need to establish rash and negligent driving on the part of the driver
MAC. APP. 110/2011 Page 2 of 12
of the offending vehicle, the learned trial court proceeded to assess
the compensation payable to the appellants as follows:
“…………the deceased was stated to be
working as a labourer and was stated to be
earning ` 40,000/- per annum. No income
proof has been filed by the petitioners. In these
circumstances, the income of the deceased can
very well be assessed on the basis of the chart
available in the Minimum Wages Act. The date
of accident was 22.12.2009 on which the
minimum wages for an unskilled labourer were
` 3953/-. Accordingly, the total annual income
of deceased comes out to be ` 3953 x 12 =
47436/-. Since the annual income limit in cases
u/s 163A MV Act can only be upto ` 40,000/-, I
hereby treat the annual income of the deceased
to be ` 40,000/- instead of ` 47436/-. It has
been held by the Hon’ble Supreme Court in a
judgment titled Sarla Verma Vs. DTC decided
on 15.4.2009 in C.A. No.3483/08 that in case
of death of a bachelor the multiplier is required
to be ascertained on the basis of the age of the
mother of the deceased. As per the ESI identity
card of the father of the deceased, the year of
birth of the mother of the deceased is 1970.
The date of accident is 22.12.2009.
Accordingly, the age of mother of the deceased
as on the date of accident come out to be 39
years for which the relevant multiplier as
mentioned in the aforesaid judgment is 15.
Therefore, the loss of dependency to the
petitioners would be 40,000/- x 15 = `
6,00,000/-. It can very well be presumed in
terms of the aforesaid judgment of the Hon’bleMAC. APP. 110/2011 Page 3 of 12
Supreme Court of India that the deceased might
have been spending one-half of ` 6,00,000/- on
his personal expenses as he had left behind two
dependents as he was bachelor. Therefore,
after deducting one-half towards personal
expenses, the total loss of dependency per
month comes out to be ` 3,00,000/-. To this the
general damages were to be added as ` 2,000/-
towards funeral expenses and ` 2500/- towards
loss of estate in terms of the aforesaid judgment
of Hon’ble High Court in Ram Parkash case
(Supra). No other general damage can be
considered by the Tribunal as directed by the
judgment of Hon’ble High Court of Delhi in
National Insurance Company Limited Vs.
Nirmal Kaur MAC Appeal No.112/10 decided
on 17.5.2010. Therefore, in total, I hereby
award a sum of ` 3,04,500/- in favour of the
petitioners and against the respondents.
RELIEF:
I award ` 3,04,500/- (Rupees three lacs
four thousand and five hundred only) as
compensation with interest at the rate of 7.5%
per annum including interim award, if any from
the date of filing the petition i.e. 11.01.2010 till
the notice under Order 21 Rule 1 is given by the
insurance company, in favour of the petitioner
and against the respondents on account of their
liability being joint and several.”
4. Mr. O.P. Mannie, the learned counsel for the appellants, seeks
to assail the aforesaid assessment of compensation by the Claims
Tribunal on two counts:
MAC. APP. 110/2011 Page 4 of 12
(i) The learned Tribunal erred in deducting one-half of the
income of the deceased towards his personal expenses on
the ground that the deceased was a bachelor, though a
deduction of only 1/3rd could have been made in
accordance with the structured formula laid down in the
Second Schedule to the Motor Vehicles Act, 1988.
(ii) The learned Tribunal in accordance with the Second
Schedule should have applied the multiplier of 16
keeping in view the age of the mother of the deceased,
which was admittedly 39 years on the date of the
accident, instead of the multiplier of 15.
5. Ms. Suman Bagga, the learned counsel for the respondent
No.3, on the other hand, sought to support the award of the Tribunal
by contending that the award was a just and fair award.
6. In the present case, as no proof of the income of the deceased
was forthcoming on the record, the Claims Tribunal took the
minimum wages of an unskilled labourer as the basis for assessment
of the income of the deceased. Thus far, the Claims Tribunal cannot
MAC. APP. 110/2011 Page 5 of 12
be faulted. The Tribunal then proceeded to deduct one-half of the
earnings of the deceased towards his personal expenses on the
premise that since the deceased was a bachelor, in consonance with
the judgment of the Hon’ble Supreme Court in Smt. Sarla Verma and
Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121,
50% of his income was required to be deducted towards the personal
and living expenses. What the Tribunal failed to notice was that in
Sarla Verma’s case (supra), the Hon’ble Supreme Court was dealing
with a claim petition preferred under Section 166 of the Motor
Vehicles Act, 1988, whereas in the present case the claim petition was
instituted under Section 163-A of the Act.
7. Section 163-A was inserted in the Act to provide for payment
of compensation in motor accident cases in accordance with the
Second Schedule on the principle of no fault liability. A three Judge
Bench of the Supreme Court in Deepal Girishbhai Soni and Ors. vs.
United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385, after
taking note of the fact that Section 163-A had been introduced in the
Act with effect from 14.11.1994 as a social security provision
MAC. APP. 110/2011 Page 6 of 12
intended for the grant of immediate relief to a section of the people
whose annual income was not more than ` 40,000/-, held that
compensation under the provisions of Section 163-A read with the
Second Schedule appended thereto was required to be paid in
accordance with a structured formula. It was further observed that
Section 163-A, which begins with a non-obstante clause, provides for
special provisions as to payment of compensation on the principle of
no-fault-liability. Paragraph 50 of the aforesaid decision is apposite,
which reads as under:
“50. Apart from the fact that compensation is
to be paid by applying multiplier method under
the Second Schedule other relevant factors,
namely, reduction of one-third in consideration
of the expenses which the victim would have
incurred towards maintaining himself, general
damages in case of death as also in the case of
injuries and disabilities as also the disability in
non-fatal accidents, a notional income for
compensation to those who had no income
prior to accident are provided for, are required
to be considered………………………”
8. Referring to the judgment of the Supreme Court in Deepal
Girishbhai Soni’s case (supra), a learned Single Judge of this Court
(Hon’ble Mr. Justice Pradeep Nandrajog) in the case of United India
MAC. APP. 110/2011 Page 7 of 12
Insurance Co. Ltd. vs. Kaushalya Devi & Ors., 2008 ACJ 1267,
negated the plea of the claimants/respondents that assessment of
compensation in excess of the annual income of ` 40,000/-, as
stipulated in the Second Schedule to the Motor Vehicles Act, 1988,
was permissible where compensation was assessed under Section
163-A of the said Act, and held that 1/3rd of the income was liable to
be deducted as the personal expenses of the deceased. The following
pertinent observations were made in paragraphs 8 and 9 of the said
decision:
“8. It may be that the M.V. Act 1988 is a
beneficial legislation and, thus, deserves liberal
construction with a view to implement the
legislative intent but Courts cannot travel
beyond the enacted provisions and extend the
scope of the statute on the pretext of extending
the statutory benefits to those who are not
covered thereby or exceeding the limits of
compensation.
9. It is thus obvious that the IInd schedule
referred to in Section 163-A of the M.V. Act
1988 provides for a structured formula which
has to be applied while assessing compensation
to a third party involved in a fatal
accident/injury. A multiplier system is
introduced, pursuant whereto and in
furtherance whereof the compensation has to beMAC. APP. 110/2011 Page 8 of 12
calculated having regard to the age of the
victim or the dependants as also the annual
income of the deceased/injured.”
9. I am, therefore, of the opinion that the appropriate deduction
towards the personal and living expenses of the deceased would be
one-third and not one-half of the income of the deceased, as has been
deducted by the Tribunal.
10. Adverting to the second limb of the case of the appellants with
regard to the appropriate multiplier to be adopted in the instant case,
in the Second Schedule of the Act there is a table fixing the mode of
calculation of compensation for third party accident claims arising out
of fatal accidents. The first column of this table gives the age-group
of victims of accident, the second column thereof indicates the
multiplier and the subsequent horizontal figures indicate the quantum
of compensation in thousands payable to the heirs of the deceased
victims. According to this table, the multiplier varies from 5 to 18
depending on the age-group to which the victim belongs. In
paragraph 19 of the judgment of the Supreme Court in the case of
Smt. Sarla Verma (supra), the multipliers indicated in the cases of
MAC. APP. 110/2011 Page 9 of 12
Kerala State Road Transport Corporation vs. Susamma Thomas
AIR 1994 SC 1631, UP State Road Transport Corporation vs. Trilok
Chandra (1996) 4 SCC 362 and New India Assurance Co. Ltd. vs.
Charlie AIR 2005 SC 2157 for claims made under Section 166 of the
Motor Vehicles Act were given in juxtaposition with the multipliers
mentioned in the Second Schedule for claims made under Section
163-A of the Motor Vehicles Act. Not satisfied with this, in
paragraph 20 of its judgment, the Supreme Court further clarified that
it was concerned with cases falling under Section 166 and not under
Section 163-A of the Motor Vehicles Act, thereby making it
abundantly clear that in cases under Section 163-A of the Motor
Vehicles Act the multipliers set out in the Second Schedule must be
strictly adhered to. For the sake of ready reference, the table in
paragraph 19 is reproduced hereunder:
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier
deceased scale as scale as scale in specified in actually used
envisaged adopted by Trilok second in Second
in Trilok Chandra as column in Schedule to
Susamma Chandra clarified in the Table MV Act (as
Thomas Charlie in II seen from the
Schedule to quantum of
MV Act compensation)
(1) (2) (3) (4) (5) (6)
Upto 15 yrs. – – 15 20
MAC. APP. 110/2011 Page 10 of 12
15 to 20 yrs. 16 18 18 16 19
21 to 25 yrs. 15 17 18 17 18
26 to 30 yrs. 14 16 17 18 17
31 to 35 yrs. 13 15 16 17 16
36 to 40 yrs. 12 14 15 16 15
41 to 45 yrs. 11 13 14 15 14
46 to 50 yrs. 10 12 13 13 12
51 to 55 yrs. 9 11 11 11 10
56 to 60 yrs. 8 10 09 8 8
61 to 65 yrs. 6 08 07 5 6
Above 65 yrs. 5 05 05 5 5
11. A bare glance at the said table is sufficient to show that the
appropriate multiplier for the age-group of persons between 36 to 40
years of age is the multiplier of 16 and not the multiplier of 15 as
applied by the Tribunal. The age of the mother of the deceased at the
time of the accident was admittedly 39 years and accordingly the
multiplier of 16 must be applied to augment the multiplicand of `
40,000/- in the instant case. Thus calculated, the loss of dependency
of the appellants, after deducting 1/3rd towards the personal expenses
and maintenance of the deceased, works out to ` 4,26,666.66 (i.e. `
40,000/- x 2/3 x 16), which may be rounded off to ` 4,27,000/-.
Adding to these pecuniary damages the non-pecuniary damages
awarded by the Tribunal, the total amount of compensation payable to
the appellants works out to ` 4,31,500/-.
MAC. APP. 110/2011 Page 11 of 12
12. The award is accordingly modified to the extent that the
respondent No.3 – Insurance Company is held liable to pay an
enhanced amount of ` 1,27,000/- to the appellants within 30 days
from today along with interest to be calculated @ 7.5% per annum
from the date of the institution of the petition till the date of its
realisation.
The appeal stands disposed of accordingly.
REVA KHETRAPAL
(JUDGE)
April 28, 2011
km
MAC. APP. 110/2011 Page 12 of 12