National Insurance Co. Ltd vs Shyam Singh & Ors

National Insurance Co. Ltd. .... Appellant

Versus

Shyam Singh and Ors. .... Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated

15.03.2010 passed by the High Court of Madhya Pradesh at

Jabalpur in Miscellaneous Appeal No. 4867 of 2009, whereby

the High Court had partially allowed the appeal filed by the

Respondent No. 3 and 4 herein, against the award dated

28.08.2009 passed by the Second Additional Motor Accident

Claims Tribunal, Satna, Madhya Pradesh and enhanced the

compensation awarded by the Tribunal.

3. The factual matrix of the case is that Respondent No. 3 and 4

are parents of one Yogendra Kumar Pathak, who was 19

years of age and on 01.11.2007 while on his way to his

village Kor Gaon, he alongwith his sister were travelling in

jeep No. MP 19-A 930. The said jeep wasbeing driven by

Respondent No. 1 and met with an accident near Dhal

Factory General Road due to rash and negligent driving by

the Respondent No. 1which resulted in his death on the spot.

FIR was lodged at Police Station, Civil Lines, Satna against

the driver under Sections 229 and 304-A of the Indian Penal

Code. His dead body was taken to his village from the

hospital on payment of Rs. 800/- and amount of Rs.

25000/- was spent on cremation.

4. It was stated in the claim petition that before his death, the

deceased was a young man of robust health and was working

as mechanical fitter in Priya Engineering Prism Cement

Factory on the salary of Rs. 4500/- per month and in total

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was getting Rs. 6000/- a month inclusive of salary and over

time allowance and was supporting his parents financially.

After his death, Respondents No. 3 and 4 have been rendered

without any financial support and have been deprived of the

association and pleasure of having a family and grand

children in future.

5. The M.A.C.T., Satna, came to a finding that the deceased was

earning Rs. 3000/- per month and deducted 50 % therefrom

towards personal expenses, as he was a bachelor.

Considering the age of the parents which was 56 and 55

years, applied the Multiplier of 9, and awarded a total

compensation of Rs. 1,72,000/- (Rs. 1,62,000/- towards the

loss of dependency + Rs. 10,000/- towards conventional

heads) along with 6 % interest per annum from the date of

claim petition. Being aggrieved, the Respondent No. 3 and 4

preferred miscellaneous appeal No. 4867 of 2009 before the

High Court for enhancement of amount of compensation

stating that the income of the deceased was Rs. 4500/- and

not Rs. 3000/- as determined by the Tribunal, and a

multiplier of 16 instead of 9 was supposed to be applied. The

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High Court relying on the judgment of this Court in the case

of Sarla Verma (Smt.) and Others v. Delhi Transport

Corporation and Another (2009) 6 SCC 121, enhanced the

multiplier to 18 instead of 9 and granted expenses to the

tune of Rs. 15000/- under conventional heads. Accordingly,

the High Court enhanced the amount of compensation from

Rs. 1,72,000/- to Rs. 3,39,000/-

6. The learned counsel appearing for the appellant submitted

that the High Court had failed to correctly apply the ratio

laid in the case of Sarla Verma case (supra.). It was further

contended that this Court has repeatedly held that in case

where an unmarried young man dies, the average age of the

parents will be taken for determining the multiplier and not

the age of the deceased. In the aforesaid case, it has been

clearly stated that for the age group of 56-60 years the

multiplier should be 8, as has been correctly applied by the

Tribunal by taking the average age of the Respondents 3 and

4 who are 55 and 56 years of age. It was further submitted

that assuming, though not admitting, even if the age of the

deceased is to be considered for determining the multiplier,

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the correct multiplier should have been 16 instead of 18,

which is applicable to the age group between 15 to 20 years.

7. On the other hand, the learned counsel appearing for the

Respondents No. 3 and 4 supported the impugned judgment

and submitted that the High Court correctly enhanced the

multiplier keeping in view the age of the deceased which was

19 years.

8. The assessment of damages and compensation takes into

account a number of imponderables. This has been held by

this court in the case of General Manager, Kerala State

Road Transport Corporation, Trivandrum v. Mrs.

Susamma Thomas and Ors. (AIR 1994 SC 1631) as: -

"The assessment of damages to compensate the

dependents is beset with difficulties because

from the nature of things, it has to take into

account many imponderables, e.g. the life

expectancy of the deceased and the dependents,

the amount that the deceased would have

earned during the remainder of his life, the

amount that he would have contributed to the

dependents during that period, the chances that

the deceased may not have lived or the

dependents may not live up to the estimated

remaining period of their life expectancy, the

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chances that the deceased might have got better

employment or income or might have lost his

employment or income together etc."

9. This Court in the case of Vijay Shankar Shinde and Ors.

v. State of Maharashtra (2008) 2 SCC 670, after referring

to the earlier judgments of this Court, in detail, dealt with

the law with regard to determination of the multiplier in a

similar situation as in the present case. The said findings of

this Court are 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 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.

7. The learned Counsel relying on the 2nd

Schedule of the Act contended that the deceased

being about 16 or 17 years of age, a multiplier of

16 or 17 should have been granted. It is

undoubtedly true that Section 163A was brought

on the Statute book to shorten the period of

litigation. The burden to prove the negligence or

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fault on the part of driver and other allied

burdens u/s 140 or 166 were really cumbersome

and time consuming. Therefore as a part of social

justice, a system was introduced via Section 163A

wherein such burden was avoided and thereby a

speedy remedy was provided. The relief u/s

163-A has been held not to be additional but

alternate. The Schedule provided has been

threadbare discussed in various pronouncements

including Deepal Girishbhai Soni v. United India

Insurance Co. Ltd. AIR 2004 SC 2107. 2nd

Schedule is to be used not only referring to age of

victim but also other factors relevant therefore.

Complicated questions of facts and law arising in

accident cases cannot be answered all times by

relying on mathematical equations. In fact in U.P.

State Road Transport Corporation v. Trilok

Chandra (1996) 4 SCC 362, Ahmedi, J. (As the

Chief Justice then was) has pointed out the

shortcomings in the said Schedule and has held

that the Schedule can only be used as a guide. It

was also held that the selection of multiplier

cannot in all cases be solely dependent on the

age of the deceased. If a young man is killed in

the accident leaving behind aged parents who

may not survive long enough to match with a

high multiplier provided by the 2nd Schedule,

then the Court has to offset such high multiplier

and balance the same with the short life

expectancy of the claimants. That precisely has

happened in this case. Age of the parents was

held as a relevant factor in case of minor's death

in recent decision in Oriental Insurance Co. Ltd.

v. Syed Ibrahim and Ors. AIR 2008 SC 103. In our

considered opinion, the Courts below rightly

struck the said balance."

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10. In our view, the dictum laid down in Vijay Shankar Shinde

(supra) is applicable to the present case on all fours.

Accordingly, we hold that the Tribunal had rightfully applied

the multiplier of 8 by taking the average of the parents of the

deceased who were 55 and 56 years.

11. Thus, the present appeal is allowed to the aforesaid extent

and the award passed by the Tribunal is restored. No costs.

............................................J

[ Dr. Mukundakam Sharma ]

............................................J

[ Anil R. Dave ]

New Delhi,

July 4, 2011.

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