Judgment:
Satya Brata Sinha, J.
1. This appeal is directed against a judgment and award Member, Motor Accidents Claims Tribunal and Additional District Judge, 2nd Court, Hooghly, whereby and whereunder a sum of Rs. 1,85,000/- was awarded in favour of the respondents for the death occurred to the husband of respondent No. 1 and father of other respondents.
2. Mr. Das, learned Counsel appearing on behalf of the appellant has raised a short question in support of this appeal. Learned counsel submits that keeping in view the decision of the Supreme Court of India, the learned Tribunal erred in applying multiplying factor by 29 instead of 18. It is not in dispute that the total income had been arrived at by the learned Tribunal at Rs. 600/- per month, that is Rs. 7,200/- per year. Out of the said amount, Tribunal had deducted a sum of Rs. 35,000/- as a consolidated sum was being paid at a time. He further directed grant of Rs. 8,000/- for loss of consortium and Rs. 4,000/-for loss of love and affection.
3. The learned Tribunal in support of the aforementioned, contention, has relied upon the decisions in Sulochana v. Rajasthan State Road Trans. Corporation 1989 ACJ 638 (Rajasthan); Sushila v. Succha Singh 1989 ACJ 226 (Rajasthan); Nisar Fatima v. Madhya Pradesh State Road Trans. Corporation ; and Rajasthan State Road Trans. Corporation v. Devilal .
4. Mr. De appearing on behalf of the respondent, on the other hand, has placed strong reliance on a recent decision of the Supreme Court of India in U.P. State Road Transport Corporation v. Trilok Chandra : (1996)4SCC362 and has submitted that in the aforementioned decision although the selection of multiplier system wherever used, cannot be said to be a foolproof one and the same should be taken to be a guideline. Learned counsel pointed out that in the aforementioned decision, the Apex Court has refused to interfere with the award keeping in view the fact that a very low multiplication was used as the loss of dependency. Learned counsel has further submitted that the respondents would be entitled to interest.
5. Although an insurance company cannot prefer an appeal in view of the defences available to it in terms of Sub-section (2) of Section 149 of the Motor Vehicles Act, we are of the opinion that this appeal should be entertained, as the learned trial Judge while passing the award failed to take into consideration the statutory provisions contained in Section 163-A of the Motor Vehicles Act read with the Second Schedule appended thereto. Section 163-A of the Act provides for a special provision. The said provisions contain a non obstante clause and in terms thereof the owner of the motor vehicle or the authorised insurer shall be liable to pay in case of death or permanent disablement due to accident arising out of use of motor vehicle, compensation as indicated in the Second Schedule, to the legal heirs or the victim as the case may be. The Second Schedule, therefore, in view of Section 163-A of the Act, has a statutory force. Court's jurisdiction, therefore, is limited in such matters and it cannot grant a compensation exceeding the amount of compensation mentioned therein.
6. In General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas : AIR1994SC1631 , the Supreme Court upon taking into consideration the age of the deceased which was 39 years and income of Rs. 1,032/-, applied the multiplier of 12 which was appropriate to the age of the deceased. In the instant case, the age of the deceased was 29 years, and in that view of the matter, keeping in view the Second Schedule appended to the said Act, multiplier of 18 should have been applied. This aspect of the matter has again been considered in U.P. State Road Trans. Corporation v. Trilok Chandra : (1996)4SCC362 , wherein it was held:
The situation has now undergone a change with the enactment of the Motor Vehicles Act, 1988, as amended by the Amendment Act, 54 of 1994. The most important change introduced by the amendment in so far as it relates to determination of compensation is the insertion of Sections 163-A and 163-B in Chapter XI entitled 'Insurance of Motor Vehicles Against Third Party Risks'. Section 163-A begins with a non-obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or the injured, as the case may be. Now if we turn to the Second Schedule, we find a Table fixing the mode of calculation of compensation for third party fatal accident injury claims arising out of accidents.
7. It is true that therein it was held that the Table mentioned in Second Schedule can be used as a guide but the said observations were made in the context of a case where the deceased a bachelor died at the age of 48 and the dependants were his parents. Age of the parents was held to be a relevant factor in the choice of multiplier. The Apex Court categorically stated that those mistakes are limited to actual calculations only and not in respect of other items. It was categorically held: 'What we propose to emphasise is that the multiplier cannot exceed 18 years' purchase factor.' It is true, as was submitted by Mr. De that in that case the Supreme Court refused to interfere, but it could do so in exercise of its jurisdiction under Article 136 read with Article 142 of the Constitution of India. This court sitting in appeal over the judgment and award passed by the learned Tribunal cannot take a different view. The appeal is continuation of the claim, and thus, this Court is bound to apply the Table set out in the Second Schedule made in terms of Section 163-A of the Motor Vehicles Act. It is pertinent to note that in Lilaben Udesing Gohel v. Oriental Insurance Co. Ltd. : [1996]3SCR450 , the Apex Court held:
Before we part we must observe that even though the guidelines laid down in Muljibhai's case 1983 ACJ 57 (Gujarat), have been approved and applied by this Court in the aforementioned two cases, many Motor Accidents Claims Tribunals and even some of the High Courts in other parts of the country do not follow them. We are also told that in claims that are settled in or outside the court or the Tribunal, including the Lok Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the fixed deposit receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be up to 80 per cent of the amount invested and thereby defeating the very purpose of the order. We do hope that the courts/ Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim.
8. In view of the aforementioned observations of the Apex Court, we are of the opinion that the learned Tribunal committed an error in applying the multiplier factor by 29. Furthermore, in terms of the said Table the respondents are not entitled to loss of love of affection. The loss of consortium must be reduced to Rs. 2,000 from Rs. 10,000/- and funeral expenses and pains and suffering etc., should be reduced to Rs. 5,000/- from Rs. 10,000/-in terms of the aforementioned Schedule, and thus the respondents, instead and in place of Rs. 1,16,400/- would be entitled to Rs. 93,400/-. There cannot, however, be any doubt that they would be entitled to interest at the rate of 12 per cent per annum from the date of application till the date of actual payment subject to adjustment of the actual amount deposited by the appellant before this Court.
9. This appeal is allowed in part and to the extent aforementioned, but in the facts and circumstances, there will be no order as to costs. The appellant, however, is directed to pay the balance amount, if any, at an early date and not later than 2 months from date. It is, however, made clear that a sum of Rs. 50,000/- unconditionally and to that extent no interest would be payable from the date of withdrawal. Furthermore, a sum of Rs. 25,000/- has been invested in a long term deposit. Necessary document therefor should be handed over to the learned Counsel for the respondents, if not already handed over. No interest should be paid on that amount from the date of investment. If any further sum is lying in deposit, the same should be paid to the the respondents were allowed to withdraw respondents forthwith.
Bhaskar Bhattacharya, J.
10. I agree.