Arun Kumar Goel, J.
1. This petition under Article 227 of the Constitution of India at the instance of the insurance company is directed against the award dated 16.8.2003, passed by learned Motor Accidents Claims Tribunal-II, Solan, Camp at Nalagarh.
2. By means of impugned award in M.A.C. Petition No. 28-NL/2 of 2002, learned Tribunal below has assessed compensation in the sum of Rs. 2,35,000/- to be shared equally by respondent Nos. 1 and 2, who are parents of deceased Rajinder Kumar. He was on a scooter bearing registration No. HP 12-A 1382. He was on way from village Jattimajra to Kharauni. After having covered some distance, scooter skidded on pucca road as a result of which he received head injury. When he was brought to Rural Hospital, Nalagarh, he was examined by Dr. M.R. Verma but he succumbed to the injuries.
3. In the aforesaid background, a petition under Section 163-A of Motor Vehicles Act, 1988 was filed by the respondent Nos. 1 and 2 claiming compensation. The learned Tribunal below came to fix the dependence of respondent Nos. 1 and 2 at Rs. 1,000/- or say Rs. 12,000/- per annum. Thereafter he applied multiplier of 14 and worked out the amount of Rs. 1,68,000/-. So far dependence arrived at by the learned Tribunal below, was not questioned on behalf of respondent Nos. 1 and 2 in this petition.
4. Strangely enough the compensation under the heading 'loss of a living being of the family' has been allowed and a sum of Rs. 50,000/- has been awarded under this head. How this amount was justifiable, learned counsel for respondent Nos. 1 and 2 was not able to satisfy the court. He submitted that keeping in view the age of the deceased even compensation assessed is inadequate. Thus, he urged that this amount needs to be upheld.
5. The learned Tribunal also awarded a sum of Rs. 15,000/- on account of expenses on post-death ceremony of the deceased, besides Rs. 2,000/- towards costs.
6. Looking to the Second Schedule for compensation payable to third party in a fatal accident claim, the compensation is structured in this Schedule. Admittedly age of the deceased was 22 years. It was above 20 years but did not exceed 25 years. Therefore, multiplier prescribed in the Second Schedule is of 17. Accepting everything to be correct as observed by the learned Tribunal below, the total amount worked out is Rs. 2,04,000/- (Rs. 12,000/- x 17). However, as per note appended to the Second Schedule, 1/3rd amount is liable to be reduced. Thus, total compensation payable to respondent Nos. 1 and 2 comes to Rs. 1,36,000/-.
7. At the time of hearing of this petition it was not disputed and in my view rightly that the claim petition having been filed under Section 163-A of the Motor Vehicles Act, 1988 where only thing to be prima facie established was the factum of accident, age of the deceased/injured, as the case may be, and his income. These are the only relevant and material factors to be kept in view by learned Tribunal below. However, in passing the impugned award, the learned Tribunal below has travelled beyond the said Schedule when it failed to deduct 1/3rd in the case of fatal accident as in the present case. In fact irrelevant and extraneous matters have been taken into account by Tribunal. Thus it fell into grave error.
8. The learned counsel for respondent Nos. 1 and 2 prayed that this is a fit case where the impugned award calls for no interference. According to him young son of respondent the Nos. 1 and 2 had died in the fatal accident. This argument prima facie appears to be touching the emotional chord, therefore is quite attractive. However, when examined in the light of provisions of Section 163-A read with Second Schedule added to the Motor Vehicles Act, 1988, it has been raised simply to be rejected.
9. At this stage again, with a view to salvage the case of respondent Nos. 1 and 2, Mr. Chauhan submitted that this petition is not maintainable, as according to him, petitioner should not be allowed to assail the award on quantum in the face of its limited defences under Section 149 of the Motor Vehicles Act, as well as recent decision of the Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd., 2003 ACJ 505 (SC) and National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC). With a view to further support his submissions Mr. Chauhan has also placed reliance on a Full Bench decision of the Madhya Pradesh High Court in New India Assurance Co. Ltd. v. Rafeeka Sultan, 2001 ACJ 648 (MP).
10. A Full Bench of this court in National Insurance Co. Ltd. v. Soma Devi, 2003 ACJ 1919 (HP), dealing with this aspect of the matter, after taking note of these three decisions held as under amongst others:
'(13) In such like cases, where the award on the face of it being perverse, and scope, purview and operation of Section 173 of the Motor Vehicles Act being what it is (totally restrictive), the only remedy available to an insurer naturally would be to challenge the award by approaching this court by invoking this court's extraordinary jurisdiction under Articles 226/227 of the Constitution because the power of judicial review vesting in this court in such like cases cannot be abdicated and should not be considered obliterated and hence it would become the duty of this court to exercise this power.
(14) Taking another fact situation by way of citing another reference, when it is brought to the notice of this court by invoking its extraordinary jurisdiction under Articles 226/227 of the Constitution that a fraudulent act was committed in obtaining the award against the insurer or that otherwise a fraud was committed upon the insurer and either, under the provisions of the Motor Vehicles Act, 1988 or otherwise, insurer has no remedy of either approaching the Tribunal for reviewing or recalling of the award because of the absence of any statutory provision to that effect, or that the scope of the appeal under Section 173 of the Act is so limited as to exclude the consideration of any such contingency or situation, this court cannot and should not hesitate in entertaining the petition and granting or moulding the relief appropriately. In this connection, reference may be invited to a judgment of the Apex Court in the case of United India Insurance Co. Ltd, v. Rajendra Singh, 2000 ACJ 1032 (SC), wherein their Lordships, while dealing with a similar situation where the insurance company undoubtedly had no other alternative (because the Tribunal had refused to open its doors to the insurer on the ground of the absence of any power to review or recall the award as originally passed), had the following observations to make and we quote:
'For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Claims Tribunal or at least the High Court had considered the pleas and found them unsustainable on merits, if they are meritless. But when the courts pre-emptied the insurance company by slamming the doors against it, this court has to step in and salvage the situation.'It was further observed:
Thus, the Tribunal refused to open the door to the appellant company and the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly be imposed. If a party complaining of fraud having been practised on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby become a conduit to enrich the imposter unjustly? The learned single Judge who indicated some other alternative remedy did not unfortunately spell out what is the other remedy which the appellant insurance company could pursue with.'Finally, it was held as under:
'It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by claimants. If the insurance company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.'(15) It, therefore, becomes abundantly clear that in all such like cases where the award on the face of it is a perversity, or is based on fraud, and the insurance company has no remedy under the Motor Vehicles Act of either challenging the award in appeal or being either to have it recalled or reviewed by the Tribunal itself, the power of judicial review by this court in the exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution can always be invoked and exercised by this court in dispensing justice to the parties.'
11. In addition to aforesaid sum of Rs. 1,36,000/-, respondent Nos. 1 and 2 are also held being entitled for Rs. 2,000/- On account of funeral expenses and Rs. 2,500/-towards loss to estate. Thus, respondent Nos. 1 and 2 are held entitled to a total sum of Rs. 1,40,500 + 9/- per cent interest per annum from the date of the claim petition, i.e., 15.11.2002 till its deposit/payment, whichever is earlier. Entitlement of these two respondents towards funeral expenses and loss to the estate was fairly conceded on behalf of the petitioner company in the face of entry at serial No. 3 to Second Schedule of the Motor Vehicles Act, 1988.
The total awarded amount will be shared equally by both the respondents.
12. No other point is urged.
13. At this stage, learned counsel for the petitioner stated that due to inadvertent and bona fide mistake this court's order dated 24.11.2003 could not be complied with. He, however, stated that the amount in terms of this judgment will now be deposited on or before 28.2.2004 in the learned Tribunal below. On such deposit being made the learned Tribunal below is directed to remit the total amount of compensation along with interest to the bank account(s) of the respondent Nos. 1 and 2, which Mr. Chauhan submitted will be furnished within four weeks. Costs on the parties.