{"id":137228,"date":"2002-07-09T00:00:00","date_gmt":"2002-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-s-ahammed-hussain-anr-vs-irfan-ahammed-anr-on-9-july-2002-2"},"modified":"2017-01-05T01:59:16","modified_gmt":"2017-01-04T20:29:16","slug":"h-s-ahammed-hussain-anr-vs-irfan-ahammed-anr-on-9-july-2002-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-s-ahammed-hussain-anr-vs-irfan-ahammed-anr-on-9-july-2002-2","title":{"rendered":"H.S.Ahammed Hussain & Anr vs Irfan Ahammed & Anr on 9 July, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
H.S.Ahammed Hussain & Anr vs Irfan Ahammed & Anr on 9 July, 2002<\/div>\n
Author: B.N.Agrawal<\/div>\n
Bench: R.C.Lahoti, B.N.Agrawal.<\/div>\n
           CASE NO.:\nAppeal (civil) 3670  of  2002\nAppeal (civil)\t3671\t of  2002\n\n\n\nPETITIONER:\nH.S.AHAMMED HUSSAIN & ANR.\n\n\tVs.\n\nRESPONDENT:\nIRFAN AHAMMED & ANR.\n\nDATE OF JUDGMENT:\t09\/07\/2002\n\nBENCH:\nR.C.LAHOTI, B.N.AGRAWAL.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Maqbool Pasha & Anr.Vs.\n<\/p>\n
Irfan Ahammed & Anr.\n<\/p>\n
J U D G M E N T<\/p>\n
B.N.AGRAWAL, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tBy the impugned judgments rendered by Karnataka High Court in two
\nseparate appeals jointly preferred by the insurer as well as the insured, the same
\nhave been partly allowed and compensation awarded by the Motor Accident
\nClaims Tribunal has been reduced viz. in one case from Rs. 3,13,000\/- to
\nRs. 1,71,000\/- and in another from Rs. 3,49,000\/- to Rs. 1,83,000\/-.  While
\ndisposing of the appeals, the High Court directed that out of the compensation
\nawarded, 25% shall be payable to fathers of the respective victims and 75% to
\ntheir mothers together with proportionate interest.  It was further directed that out
\nof the amount of compensation payable to the mothers of the victims,
\nRs. 50,000\/- shall be kept in fixed deposit in a nationalised bank for a period of
\nfive years with liberty to draw the interest.\n<\/p>\n
The short facts are that one Irfan Ahammed-respondent No. 1 owned a
\nlorry bearing No. CNG-6409 and Vazeer Ahamed and Rafeeq Ahamed , sons of
\nthe appellants of these appeals were working as a coolie therein.  On Ist June,
\n1996, when respondent No. 1 was driving the said vehicle in which the aforesaid
\ntwo persons were also travelling as coolie, the same met with an accident at
\n10.00 a.m. as a result of rash and negligent driving of the respondent No.1
\nresulting into the deaths of Vazeer and Rafeeq, for which two claims petitions
\nwere filed before the Motor Accident Claims Tribunal by parents of each of the
\nvictims for awarding compensation in their favour on account of death of their
\nsons under the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’).
\nAge of victim Rafeeq was 21 years and his father’s age was 45 years whereas
\nthat of his mother was 40 years.  The age of another victim Vazeer was 22 years
\nand that of his father\tand mother was 53 years and 45 years respectively at the
\ntime of the accident.  The claimants in both the petitions claimed the income of
\ntheir respective sons to be Rs. 4500\/- per month.  The claim was contested by
\nthe owner as well as the insurance company on grounds, inter alia, that the
\naccident had not taken place on account of any rash or negligent act on the part
\nof the owner in driving the vehicle.  Both the cases were heard together.  On
\nbehalf of the claimants, two witnesses were examined.  Father of Rafeeq was
\nexamined as PW1 and that of Vazeer as PW2 and in  their evidence, they stated
\nthat the monthly income of their sons was Rs. 3,000\/-.\tThe owner of the vehicle
\nwas examined as RW1 who, in his deposition, denied payment of Rs. 3,000\/- per
\nmonth to each of the victims.  The Tribunal by a common judgment having found
\nthe income of each of the victims to be Rs. 3,000\/- per month, awarded
\ncompensation to the tune of Rs. 3,49,000\/- in favour of the parents of Rafeeq and
\nRs. 3,13,000\/- in favour of those of Vazeer together with interest thereon at the
\nrate of 6% per annum from the date of filing of the petition till realisation. Two
\ndifferent appeals were preferred before the High Court against awards of the
\nTribunal and each of the appeals was jointly filed by insurer as well as the
\ninsured.  The High Court was of the view that the evidence in relation to income
\nof the two victims was neither reliable nor satisfactory but found their income to
\nbe Rs. 18,000\/- per annum which was little more than  Rs. 1500\/- per month that
\nwas prescribed as notional income as a non-earning person under the Second
\nSchedule to the Act.  After deducting 1\/3rd towards personal and living expenses
\nof the deceased, the contribution towards family was assessed at Rs. 12,000\/-
\nper annum.  According to the High Court in selecting multiplier, the age of
\nyounger out of the two parents was required to be taken into consideration.  As
\nthe age of the mother of Rafeeq was found to be 40 years, the High Court held
\nthat the multiplier to be applicable was 14 and compensation was reduced to Rs.
\n1,83,000\/- from Rs. 3,49,000\/-.\t So far Vazeer is concerned, as the age of his
\nmother was found to be 45 years, it was held that the multiplier applicable would
\nbe 13 and consequently the compensation awarded by the Tribunal to the tune of
\nRs. 3,13,000\/- was reduced to Rs. 1,71,000\/-.  It was directed that 25% of
\ncompensation shall be paid to the father of each of the victims and 75% to their
\nmothers and the compensation payable to the mothers shall be kept in fixed
\ndeposit in a nationalised bank for a term of five years with liberty to draw the
\ninterest.  Hence, these appeals by special leave.\n<\/p>\n
Ms. Kiran Suri, learned counsel appearing on behalf of the appellants in
\nthese two appeals submitted that the High Court was not justified in entertaining
\nand allowing joint appeals preferred by insured and insurer both challenging the
\nquantum of compensation awarded by the Tribunal as insurer was entitled to
\nraise only such defences as are enumerated in Section 149(2) of the Act and
\nquantum of compensation is not a ground available to the insurer under Section
\n149(2) of the Act, therefore, allowing such appeals would defeat the very purpose
\nengrafted under Section 149(2) of the Act.  A reference in this connection was
\nmade to a decision of this Court in the case of Chinnama George and others v.
\nN.K.Raju and<\/a> another  (2000) 4 SCC 130 wherein against the quantum of
\ncompensation, joint appeal was preferred before the High Court by the insurer as
\nwell as the insured and the same was allowed in part and compensation awarded
\nby the Tribunal was reduced.  When the matter was brought to this Court in
\nappeal on a special leave, the same was allowed and order of the High Court
\nwas set aside on the ground that the joint appeal by the insurer as well as the
\ninsured was not maintainable in view of the provisions of Section 149(2) of the
\nAct.  On the other hand, learned counsel appearing on behalf of the respondents
\nheavily relied upon two decisions of this Court in the cases of Narendra Kumar
\nand another v. Yarenissa and others (1998) 9 SCC 202 and United India
\nInsurance Co. Ltd. v. Bhushan Sachdeva and others<\/a>  (2002) 2 SCC 265.  In
\nNarendra Kumar (supra), which was a case under the Motor Vehicles Act,
\n1939(hereinafter referred to as ‘1939 Act’), against the award of the Tribunal,\t a
\njoint appeal was preferred by the insurer as well as the insured challenging the
\nquantum of compensation.  A Single Judge of the Rajasthan High Court
\ndismissed the same on the ground that such appeal was not maintainable in view
\nof the fact that under Section 96(2) of the 1939 Act which is similar to Section
\n149(2) of the Act, only certain grounds were available to the insurer and quantum
\nof compensation is not a ground enumerated under Section 96(2) of the 1939
\nAct.  The decision of the Single Judge was affirmed by Division Bench of the
\nHigh Court.  Thereafter, when the matter was brought to this Court, reference
\nwas made to the provisions of Section 110-C(2-A) of 1939 Act which provides
\nthat where in the course of inquiry, the claims Tribunal is satisfied that there is
\ncollusion between the person making the claim and the person against whom it is
\nmade, or the person against whom the claim is made has failed to contest the
\nclaim, it may, for reasons to be recorded by it in writing, direct that the insurer,
\nwho may be liable in respect of such claim, be impleaded as a party to the
\nproceeding and the insurer so impleaded shall thereupon have the right to
\ncontest the claim on all or any of the grounds available to the person against
\nwhom the claim was made.  Ultimately, the court found that even in the case of a
\njoint appeal by insurer and the insured if an award has been made against the
\ntortfeasors as well as the insurer even though an appeal filed by the insurer is not
\ncompetent, it may not be dismissed as such.  The tortfeasor can proceed with the
\nappeal after the cause title is suitably amended by deleting the name of the
\ninsurer. Even though, this Court held that the appeal of the insured could
\nproceed on merit and could not have been dismissed merely because the insurer
\njoined therein, as it did not find any ground to interfere with the quantum of
\ncompensation on merit, order of the High Court was not upset.\tIn United India
\nInsurance Co. Ltd.(supra), which was a case under the Act against the order
\nawarding compensation, no appeal was preferred by the insured but only the
\ninsurer filed petition under Article 227 of the Constitution of India before the High
\nCourt.\tDuring the pendency of the said petition, a motion was made for the stay
\nof execution of the award but the High Court had only chosen to issue notice to
\nshow cause why the revision petition be not entertained.  Against the said order,
\nwhen the matter was brought to this Court, it was directed that the petition under
\nArticle 227 of the Constitution filed by the insurer should be treated to be an
\nappeal under Section 173 of the Act.  The Court relied upon the provisions of
\nSection 170 of the Act which lays down that where in the course of inquiry, the
\nClaims Tribunal is satisfied that there is collusion between the person making the
\nclaim and the person against whom the claim is made, or the person against
\nwhom the claim is made has failed to contest the claim, it may, for reasons to be
\nrecorded in writing, direct that the insurer who may be liable in respect of such
\nclaim, shall be impleaded as a party to the proceeding and the insurer so
\nimpleaded shall thereupon have, without prejudice to the provisions contained in
\nsub-section (2) of Section 149, the right to contest the claim on all or any of the
\ngrounds that are available to the person against whom the claim has been made.
\nThis Court laid down that if the insured failed to prefer any appeal against the
\naward of the Tribunal, that would also amount to failure to contest the claim
\nwithin the meaning of Section 170 of the Act.  Therefore, the decisions of this
\nCourt in the cases of Narendra Kumar (supra) and Chinnama George (supra)
\nwere distinguished on facts.  That apart the case of Chinnama George (supra) is
\notherwise also distinguishable as in that case, on behalf of the insured, no
\nargument was addressed whereas the appeal was argued only on behalf of the
\ninsurer.  That apart the provisions of Section 170 of the Act which have been
\ntaken notice of in the case of United India Insurance Co. Ltd. (supra) were not
\nconsidered therein.    In the present case, appeal was whole hog pressed on
\nbehalf of the insured challenging the quantum of compensation awarded by the
\nTribunal.  Thus, the decision of this Court in the case of Chinnama George and
\nothers(supra) can be of no avail to the appellant and we do not find any merit in
\nthe submission that joint appeal by the insurer as well as the insured was not
\nmaintainable.  In such an eventuality, the course which a Court should adopt is
\nas noticed in the case of Narendra Kumar (supra) to delete name of the insurer
\nfrom the cause title and proceed with appeal of the insured and decide the same
\non merit.\n<\/p>\n
Learned counsel next submitted that the High Court was not justified in
\ninterfering with finding recorded by the Tribunal to the effect that income of the
\ntwo victims was Rs. 3,000\/- per month and holding that their income was
\nRs. 1500\/- per month.  It appears that after taking into consideration the evidence
\nadduced by the parties, as the High Court did not find evidence adduced on
\nbehalf of the claimants reliable and satisfactory, it  fixed their income at Rs.
\n1500\/- per month and this being a question of fact, it is not possible to interfere
\nwith the same especially when it could not be pointed out that there was any
\nerror therein.\n<\/p>\n
 Learned counsel then submitted that under Second Schedule to the Act
\nproviding compensation based on a formula, the multiplier which was applicable
\nwas 15 and not 13 as age of mother of victim Vazeer was 45 years in which case
\nthe correct multiplier should have been 15 and not 13 whereas in the case of
\nvictim Rafeeq, as age of his mother being 40 years, the correct multiplier should
\nhave been 16 and not 14.  On the other hand, learned counsel appearing on
\nbehalf of the respondents submitted that compensation has been awarded in
\naccordance with the Second Schedule.  It is well settled that life expectancy of
\nthe deceased or the beneficiaries whichever is shorter is an important factor.
\nReference in this connection may be made to the decision of this Court in the
\ncase of C.K.Subramonia Iyer and others v. T.Kunhikuttan Nair and others
\nAIR<\/a> 1970 SC 376.  In the case of National Insurance Co. Ltd. v. M\/s
\nSwaranlata Das and others<\/a> 1993 Suppl. (2) SCC 743, it was observed that “the
\nappropriate method of assessment of compensation is the method of
\ncapitalisation of net income choosing a multiplier appropriate to the age of the
\ndeceased or the age of the dependants whichever multiplier is lower.”  According
\nto the Second Schedule, if the age is above 40 years but not exceeding 45 years,
\nthe multiplier applicable is 15 and if the age is above 35 years but not exceeding
\n40 years, the multiplier would be 16 but the High Court has taken the multiplier
\nas 13 and14 instead of 15 and 16 respectively.\tIn the case of compensation to
\nthe parents of Vazeer, the multiplier 15 should have been adopted instead of 13
\nand the compensation should not have been reduced from Rs. 3,13,000\/- to
\nRs. 1,71,000\/- but the same should have been reduced to Rs. 1,95,000\/-.\t In the
\ncase of compensation to the parents of Rafeeq, the correct multiplier should have
\nbeen 16 and not 14 and the High Court was not justified in reducing the
\ncompensation from Rs. 3,49,000\/- to Rs. 1,83,000\/- which should have been
\nreduced to Rs. 2,07,000\/-.  Thus, we hold that the parents of Vazeer are entitled
\nto total compensation to the tune of Rs. 1,95,000\/- and that of Rafeeq to the tune
\nof Rs. 2,07,000\/-.\n<\/p>\n
Learned counsel thereafter submitted that the High Court was not justified
\nin upholding award of interest at the rate of 6% per annum and the same should
\nhave been awarded at the rate of 9% per annum.\tReliance in this connection
\nwas placed upon a decision of this Court in the case of\t Kaushnuma Begum
\n(Smt.) and others v. New India Assurance Co. Ltd. and others<\/a>(2001) 2 SCC 9
\nwherein this Court noticed that “earlier, 12% was found to be the reasonable rate
\nof simple interest.  With a change in the economy and the policy of Reserve Bank
\nof India the interest rate has been lowered.  The nationalised banks are now
\ngranting interest at the rate of 9% per annum from the date of the claim.”
\nTherefore, it was directed in that case that the claimant was entitled to interest at
\nthe rate of 9% per annum.  In our view, the submission is well founded and must
\nbe accepted.  Accordingly, we hold that the claimants shall be entitled to interest
\non the aforesaid amount at the rate of 9% per annum from the date of filing of the
\npetitions till realisation.\n<\/p>\n
Learned counsel for the appellant lastly submitted that the amount of
\ncompensation payable to mothers of the victims should not have been directed to
\nbe kept in fixed deposit in a nationalised bank.  In the facts and circumstances of
\nthe present case, we are of the view that the amount of compensation awarded
\nin favour of the mothers should not be kept in fixed deposit in a nationalised
\nbank.\tIn case the amounts have not been already invested, the same shall be
\npaid to the mothers, but if, however, invested by depositing the same in fixed
\ndeposit in a nationalised bank, there may be its premature withdrawal in case the
\nparties so intend.\n<\/p>\n
In the result, the appeals are allowed in part and the judgments of the
\nHigh Court are modified to the extent as indicated above.  In the circumstances
\nof the case, parties shall bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India H.S.Ahammed Hussain & Anr vs Irfan Ahammed & Anr on 9 July, 2002 Author: B.N.Agrawal Bench: R.C.Lahoti, B.N.Agrawal. CASE NO.: Appeal (civil) 3670 of 2002 Appeal (civil) 3671 of 2002 PETITIONER: H.S.AHAMMED HUSSAIN & ANR. Vs. RESPONDENT: IRFAN AHAMMED & ANR. DATE OF JUDGMENT: 09\/07\/2002 BENCH: R.C.LAHOTI, B.N.AGRAWAL. JUDGMENT: Maqbool Pasha […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-137228","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nH.S.Ahammed Hussain & Anr vs Irfan Ahammed & Anr on 9 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/h-s-ahammed-hussain-anr-vs-irfan-ahammed-anr-on-9-july-2002-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"H.S.Ahammed Hussain & Anr vs Irfan Ahammed & Anr on 9 July, 2002 - 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