Oriental Insurance Co. Limited and Another Vs. Jaipalsingh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1174474
CourtMumbai Aurangabad High Court
Decided OnDec-04-2014
Case NumberFirst Appeal No. 563 of 1994
JudgeSUNIL P. DESHMUKH
AppellantOriental Insurance Co. Limited and Another
RespondentJaipalsingh and Others
Excerpt:
motor vehicles act, 1988 - section 166 – cases referred: 1. smt. sarla varma vs. delhi transport corporation air 2009 sc 3104 (1) (para 11). 2. rajandrasingh vs. sheetaldas 1992 (2) t.a.c. 591 (para 6).oral judgment: 1. this first appeal has been preferred by original respondents no.5 and 1 respectively against the common judgment and award dated 07-05-1994 in motor accident claim petitions no.59 of 1990 and 60 of 1990 rendered by learned member, motor accident claims tribunal, parbhani, whereunder jaipalsingh-claimant in motor accident claim petition no.59 of 1990 who is respondent no.1 herein had been awarded compensation of rs.1,23,000/- applying multiplier of 32. 2. present appellant no.1 who was respondent no.5 in the claim petition has been held jointly and severally liable along with present appellant no.2-the original respondent no.1 and they have been directed to pay interest at 12 per cent per annum from the date of claim petition till realization. 3. brief reference to the facts would show the position that on 12-09-1990, respondent no.1 jaspalsingh had been driving motorcycle bearing no.mft-1737 which was owned by his brother rajpalsingh, from gangakhed to parli-vaijnath. vaijnath, who is claimant in claim petition no.60 of 1990, was the pillion rider of said vehicle. while motorcycle riders were returning from parli-vaijnath to gangakhed, at about 6.00 p.m. near mile stone no.4 between village noela pati and karam, truck bearing no.tn-28/2466 collided with motorcycle injuring its both the riders. in the process, it is not disputed, respondent no.1 had suffered forty percent disability as his right leg was permanently disabled. he was businessman and had also been supervising his agricultural land, is not disputed. his income from both the avocations is claimed to be rs.1500/- per month. 4. in claim petition no.59 of 1990, claimant jaspalsingh had contended that the truck at the relevant time had been travelling in excessive speed and was being driven rashly and negligently by respondent no.3 herein. claimant jaspalsingh, at the time of accident, was aged about 25 years. he was unmarried and would have otherwise a bright future and but for permanent disability, he would have continued to conduct his business and earn more than rs.5.00 lac per year. 5. appellant no.2 and respondent no.3 in their written statements in reply to the claim petition have pleaded that the accident had occurred since the motorcycle was being driven rashly and negligently and in excessive speed due to which riders of the two wheeler could not control it and avoid accident and the vehicle was on wrong side though the accident was tried to be avoided by the driver of the truck by taking the same on the extreme left side of the road. the spot panchanama shows the correct position for, it speaks that it was the motorcycle which was at fault. according to them, the truck driver by the time collision took place had attempted to avoid the accident, however, the motorcycle was being driven with gross negligence and rashness and had given dash to the truck. an attempt by respondent no.3-driver of the truck to lodge a complaint had been foiled by the police by avoiding registration of the crime. the truck was insured with appellant no.1. the income of the claimant had been denied by the appellants as well as respondent no.3. appellant no.1 in its written statement had submitted that the claimant himself was at fault while driving the motorcycle and that the claimant had not become disabled as alleged or for that matter there is loss of income as claimed by claimant. the appellants have contended that the claimant was driving the motorcycle rashly and negligently and has suffered injuries on account of his own wrong. 6. the tribunal had framed issues with regard to cause of injuries, negligence and about claims of claimants with reference to decision in the case of rajandrasingh vs. sheetaldas, reported in 1992 (2) t.a.c. 591. for non appearance of respondent no.3- truck driver as witness, the tribunal held that negligence by the truck driver has to be presumed. as far as injuries suffered by claimant-respondent no.1 herein are concerned, the same can hardly be disputed, for, requisite certificate has been placed on record which could not be disputed. 7. it has also come on record that rajpalsingh who is the owner of motorcycle and brother of claimant jaspalsingh had been running a saw mill business and that the claimant had been in the avocation of agriculture as well. his right leg could not regain normalcy in spite of medical treatment. 8. looking at aforesaid circumstances, the tribunal had considered that the loss of income suffered by the claimant was rs.10/- per day and has accordingly calculated his annual income to be rs.3600/- and looking at his age applied multiplier of 32. 9. the situation in the present appeal boils down to the point as to whether proper multiplier had been applied while granting compensation to the claimant. on this point, mr. joshi, learned counsel appearing on behalf of the appellants submits that looking under prevailing position of law, application of multiplier of 32 as appearing in the impugned judgment is improper. it is being submitted that supreme court had taken stock of the situation in respect of application of multiplier and has held that the multiplier to be applied should not be higher than 18. it is being thus submitted that though there are other circumstances on record which may reflect upon negligence of the motorcyclist, yet, even if it comes to granting multiplier and only for the reason that the driver of the truck had not been examined his negligence is to be presumed, in such a case multiplier of 32 cannot be allowed to be maintained. he further submits that in the present case the claimant has been allowed to withdraw rs. 75,000/- from the amount of the claim granted. he submits that taking into account all the relevant factors, it cannot be said that the appellants were liable to pay compensation because of negligence on the part of motorcycle. 10. mr. munde, learned counsel for respondent no.1 however, vehemently submits that as far as negligence is concerned, for non examination of the truck driver as a witness, the question of negligence as determined by the tribunal is beyond examination by this court. he submits, there are several rulings which have been referred to and relied on while deciding the claim petition and this aspect does not deserve any relooking into. he further goes on to submit that as a matter of fact, income that was being earned by the claimant and that would have been earned by him has been grossly undervalued. he submits that looking at the extent of land held by the claimant and that his brother had been owning a saw mill, it cannot be said that the claimant would not have earned more than what has been considered by the tribunal. it must be taken into account that the claimant had been helping his brother in the business and as such, shall have to be deemed to be businessman and further that income from agricultural land has been affected because of the permanent disability sustained by him. he therefore submits that no interference is called for in the present matter. 11. mr. munde, however is at pains to support the application of multiplier in the face of decision in smt. sarla varma vs. delhi transport corporation reported in air 2009 sc 3104 (1), wherein the supreme court after taking into account all the factors observed thus; "20. tribunals/courts adopt and apply different operative multipliers. some follow the multiplier with reference to susamma thomas (set out in column 2 of the table above); some follow the multiplier with reference to trilok chandra, (set out in column 3 of the table above); some follow the multiplier with reference to charlie (set out in column (4) of the table above); many follow the multiplier given in second column of the table in the second schedule of mv act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the second schedule while calculating the quantum of compensation (set out in column 6 of the table above). for example if the deceased is aged 38 years, the multiplier would be 12 as per susamma thomas, 14 as per trilok chandra, 15 as per charlie, or 16 as per the multiplier given in column (2) of the second schedule to the mv act or 15 as per the multiplier actually adopted in the second schedule to mv act. some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. it is necessary to avoid this kind of inconsistency. we are concerned with cases falling under section 166 and not under section 163a of mv act. in cases falling under section 166 of the mv act, davies method is applicable." "21. we therefore hold that the multiplier to be used should be as mentioned in column (4) of the table above (prepared by applying susamma thomas, trilok chandra and charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is m-17 for 26 to 30 years, m-16 for 31 to 35 years, m-15 for 36 to 40 years, m-14 for 41 to 45 years, and m-13 for 46 to 50 years, then reduced by two units for every five years, that is, m-11 for 51 to 55 years, m-9 for 56 to 60 years, m-7 for 61 to 65 years and m-5 for 66 to 70 years." 12. as such, it appears that in the present case, the multiplier of 32 applied would be required to be modified in the light of afore-quoted paragraph 21 of case relied on since the age of the claimant in the present case is said to be 25 years. in the present case, suitable multiplier appears to be 18. as such, multiplier 32 is modified to 18. consequently, the amount of income as has been considered applying multiplier 32 would be required to be suitably calculated with reference to multiplier 18. according to learned counsel applying multiplier of 18, the total amount which claimant would be entitled to is rs. 79,800/- and he further submits that from the same an amount of rs. 75,000/- has already been withdrawn by the claimant and in such a case, the claimant would be entitled to balance of the amount as per the calculations as have been submitted with interest at the rate of 12% from the date of application on the whole of the claim amount. 13. learned counsel further submits that the interest on the said amount be calculated from the date of claim application till the date of deposit by appellant no.1 herein. the appellant has deposited rs. 75,000/- in two installments. while the appeal was filed only the statutory amount as required was deposited and subsequently rest of the amount pursuant to the order on stay application passed by this court. interest as such be calculated on total amount of rs. 79,800/- from the date of claim application till deposit of statutory amount. thereafter, rs. 25,000/- be deducted from the amount being considered to be granted and the interest as directed by the tribunal be calculated on the rest of the amount of granted claim to the date of deposit of rs. 50,000/-. thereafter, interest be calculated on the balance of the claim amount from the date of application till the date of realisation. the amount as referred to above in respect of the balance claim as well as interest amount be deposited by appellant no.1 as early as possible, preferably within a period of ten weeks from today in this court. on deposit of said amount, the claimant would be entitled to withdraw the same, and in case deposit is not made, interest would continue to accrue and accumulate at the rate of 12% per annum. 14. appeal as such, is partly allowed to aforesaid extent and disposed of.
Judgment:

Oral Judgment:

1. This first appeal has been preferred by original respondents No.5 and 1 respectively against the common judgment and award dated 07-05-1994 in Motor Accident Claim Petitions No.59 of 1990 and 60 of 1990 rendered by learned Member, Motor Accident Claims Tribunal, Parbhani, whereunder Jaipalsingh-claimant in motor accident claim petition no.59 of 1990 who is respondent No.1 herein had been awarded compensation of Rs.1,23,000/- applying multiplier of 32.

2. Present appellant No.1 who was respondent No.5 in the claim petition has been held jointly and severally liable along with present appellant No.2-the original respondent no.1 and they have been directed to pay interest at 12 per cent per annum from the date of claim petition till realization.

3. Brief reference to the facts would show the position that on 12-09-1990, respondent No.1 Jaspalsingh had been driving motorcycle bearing no.MFT-1737 which was owned by his brother Rajpalsingh, from Gangakhed to Parli-Vaijnath. Vaijnath, who is claimant in claim petition no.60 of 1990, was the pillion rider of said vehicle. While motorcycle riders were returning from Parli-Vaijnath to Gangakhed, at about 6.00 p.m. near mile stone No.4 between village Noela Pati and Karam, truck bearing No.TN-28/2466 collided with motorcycle injuring its both the riders. In the process, it is not disputed, respondent No.1 had suffered forty percent disability as his right leg was permanently disabled. He was businessman and had also been supervising his agricultural land, is not disputed. His income from both the avocations is claimed to be Rs.1500/- per month.

4. In claim petition No.59 of 1990, claimant Jaspalsingh had contended that the truck at the relevant time had been travelling in excessive speed and was being driven rashly and negligently by respondent No.3 herein. Claimant Jaspalsingh, at the time of accident, was aged about 25 years. He was unmarried and would have otherwise a bright future and but for permanent disability, he would have continued to conduct his business and earn more than Rs.5.00 lac per year.

5. Appellant No.2 and respondent No.3 in their written statements in reply to the claim petition have pleaded that the accident had occurred since the motorcycle was being driven rashly and negligently and in excessive speed due to which riders of the two wheeler could not control it and avoid accident and the vehicle was on wrong side though the accident was tried to be avoided by the driver of the truck by taking the same on the extreme left side of the road. The spot panchanama shows the correct position for, it speaks that it was the motorcycle which was at fault. According to them, the truck driver by the time collision took place had attempted to avoid the accident, however, the motorcycle was being driven with gross negligence and rashness and had given dash to the truck. An attempt by respondent no.3-driver of the truck to lodge a complaint had been foiled by the police by avoiding registration of the crime. The truck was insured with appellant No.1. The income of the claimant had been denied by the appellants as well as respondent No.3. Appellant No.1 in its written statement had submitted that the claimant himself was at fault while driving the motorcycle and that the claimant had not become disabled as alleged or for that matter there is loss of income as claimed by claimant. The appellants have contended that the claimant was driving the motorcycle rashly and negligently and has suffered injuries on account of his own wrong.

6. The tribunal had framed issues with regard to cause of injuries, negligence and about claims of claimants with reference to decision in the case of Rajandrasingh Vs. Sheetaldas, reported in 1992 (2) T.A.C. 591. For non appearance of respondent No.3- truck driver as witness, the tribunal held that negligence by the truck driver has to be presumed. As far as injuries suffered by claimant-respondent No.1 herein are concerned, the same can hardly be disputed, for, requisite certificate has been placed on record which could not be disputed.

7. It has also come on record that Rajpalsingh who is the owner of motorcycle and brother of claimant Jaspalsingh had been running a saw mill business and that the claimant had been in the avocation of agriculture as well. His right leg could not regain normalcy in spite of medical treatment.

8. Looking at aforesaid circumstances, the tribunal had considered that the loss of income suffered by the claimant was Rs.10/- per day and has accordingly calculated his annual income to be Rs.3600/- and looking at his age applied multiplier of 32.

9. The situation in the present appeal boils down to the point as to whether proper multiplier had been applied while granting compensation to the claimant. On this point, Mr. Joshi, learned counsel appearing on behalf of the appellants submits that looking under prevailing position of law, application of multiplier of 32 as appearing in the impugned judgment is improper. It is being submitted that supreme court had taken stock of the situation in respect of application of multiplier and has held that the multiplier to be applied should not be higher than 18. It is being thus submitted that though there are other circumstances on record which may reflect upon negligence of the motorcyclist, yet, even if it comes to granting multiplier and only for the reason that the driver of the truck had not been examined his negligence is to be presumed, in such a case multiplier of 32 cannot be allowed to be maintained. He further submits that in the present case the claimant has been allowed to withdraw Rs. 75,000/- from the amount of the claim granted. He submits that taking into account all the relevant factors, it cannot be said that the appellants were liable to pay compensation because of negligence on the part of motorcycle.

10. Mr. Munde, learned counsel for respondent No.1 however, vehemently submits that as far as negligence is concerned, for non examination of the truck driver as a witness, the question of negligence as determined by the tribunal is beyond examination by this court. He submits, there are several rulings which have been referred to and relied on while deciding the claim petition and this aspect does not deserve any relooking into. He further goes on to submit that as a matter of fact, income that was being earned by the claimant and that would have been earned by him has been grossly undervalued. He submits that looking at the extent of land held by the claimant and that his brother had been owning a saw mill, it cannot be said that the claimant would not have earned more than what has been considered by the tribunal. It must be taken into account that the claimant had been helping his brother in the business and as such, shall have to be deemed to be businessman and further that income from agricultural land has been affected because of the permanent disability sustained by him. He therefore submits that no interference is called for in the present matter.

11. Mr. Munde, however is at pains to support the application of multiplier in the face of decision in Smt. Sarla Varma Vs. Delhi Transport Corporation reported in AIR 2009 SC 3104 (1), wherein the supreme court after taking into account all the factors observed thus;

"20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable."

"21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

12. As such, it appears that in the present case, the multiplier of 32 applied would be required to be modified in the light of afore-quoted paragraph 21 of case relied on since the age of the claimant in the present case is said to be 25 years. In the present case, suitable multiplier appears to be 18. As such, multiplier 32 is modified to 18. Consequently, the amount of income as has been considered applying multiplier 32 would be required to be suitably calculated with reference to multiplier 18. According to learned counsel applying multiplier of 18, the total amount which claimant would be entitled to is Rs. 79,800/- and he further submits that from the same an amount of Rs. 75,000/- has already been withdrawn by the claimant and in such a case, the claimant would be entitled to balance of the amount as per the calculations as have been submitted with interest at the rate of 12% from the date of application on the whole of the claim amount.

13. Learned counsel further submits that the interest on the said amount be calculated from the date of claim application till the date of deposit by appellant No.1 herein. The appellant has deposited Rs. 75,000/- in two installments. While the appeal was filed only the statutory amount as required was deposited and subsequently rest of the amount pursuant to the order on stay application passed by this court. Interest as such be calculated on total amount of Rs. 79,800/- from the date of claim application till deposit of statutory amount. Thereafter, Rs. 25,000/- be deducted from the amount being considered to be granted and the interest as directed by the tribunal be calculated on the rest of the amount of granted claim to the date of deposit of Rs. 50,000/-. Thereafter, interest be calculated on the balance of the claim amount from the date of application till the date of realisation. The amount as referred to above in respect of the balance claim as well as interest amount be deposited by appellant No.1 as early as possible, preferably within a period of ten weeks from today in this court. On deposit of said amount, the claimant would be entitled to withdraw the same, and in case deposit is not made, interest would continue to accrue and accumulate at the rate of 12% per annum.

14. Appeal as such, is partly allowed to aforesaid extent and disposed of.