Oriental Insurance Co. Ltd. Vs. Viveka Nand Singh and ors. - Court Judgment

Excerpt:
- - paspati prasad 1998 (2) pljr 617, in case of death of a child compensation is to be awarded on a lump sum basis considering the status, financial condition of the family, future expectancy and loss of love and affection-child being a non-earning member. 50,000, as is contended by the learned counsel for the appellant, keeping in view the status, financial condition of the family, future expectancy and loss of love and affection, especially when the entire family was involved in the accident. 363 dated 20.12.1999. 9. under such circumstances, this court directs that the respondents-claimants shall be entitled to withdraw the amount which has been deposited in this court and after adjusting the said amount as well as the amount of interim compensation, the appellant shall pay the..... radha mohan prasad, j.1. the present appeal is directed against the judgment and award dated 6.8.99 passed by the first additional district judge-cum-motor vehicle claims tribunal, munger in claim case no. 10 of 1993, whereby and whereunder the learned tribunal by applying the principle of multiplier inserted in second schedule under section 163a as envisaged under motor vehicles (amendment) act, 1994 (act 54 of 1994) has awarded compensation to the tune of rs. 1,52,000 for the death of rupa kumari, who, along with the claimants was going to jarnui from their village home in tata maxi bearing no. br 21-m-7657, which met with an accident at badri vishal nagar.2. the appellant company has assailed the validity of the impugned judgment on the sole ground that the learned tribunal has.....

Judgment:

Radha Mohan Prasad, J.

1. The present appeal is directed against the judgment and award dated 6.8.99 passed by the First Additional District Judge-cum-Motor Vehicle Claims Tribunal, Munger in Claim Case No. 10 of 1993, whereby and whereunder the learned Tribunal by applying the principle of multiplier inserted in Second Schedule under Section 163A as envisaged under Motor Vehicles (Amendment) Act, 1994 (Act 54 of 1994) has awarded compensation to the tune of Rs. 1,52,000 for the death of Rupa Kumari, who, along with the claimants was going to Jarnui from their village home in Tata Maxi bearing No. BR 21-M-7657, which met with an accident at Badri Vishal Nagar.

2. The appellant company has assailed the validity of the impugned judgment on the sole ground that the learned Tribunal has adopted wrong principle of multiplier in awarding exorbitant amount to the claimants as compensation. In fact, the present case is not. governed by the principle of multiplier, which was inserted on 14.11.1994 by Act 54 of 1994 and the accident took place on 10.11.1992, i.e., before the said provision was inserted. According to the learned Counsel, in the present case, a girl aged about 13 years has died and according to the principle laid down by this Court in the case of National Insurance Co. Ltd. v. Phoolbharan Devi 1998 (2) PLJR 616 and in the case of Oriental Insurance Co. Ltd. v. Paspati Prasad 1998 (2) PLJR 617, in case of death of a child compensation is to be awarded on a lump sum basis considering the status, financial condition of the family, future expectancy and loss of love and affection-child being a non-earning member. It is submitted that usually this Court in such cases has awarded a lump sum of Rs. 50,000.

3. Mr. Jha, the learned senior counsel appearing for the respondents, on the other hand, has submitted that, in fact, the appeal itself is not maintainable in the absence of leave taken by the appellant from the Tribunal under Section 170 of the Motor Vehicles Act (hereinafter referred to as 'the Act'). In support of this he has referred to the decision of the Apex Court in the case of Shankarayya v. United India Insurance Co. Ltd. 1998 ACJ 513 (SC). It is further submitted that in any view of the matter, if this Court considers that compensation should be awarded on lump sum basis, the compensation already awarded by the Tribunal in no case can be Rs. 50,000, as is contended by the learned Counsel for the appellant, keeping in view the status, financial condition of the family, future expectancy and loss of love and affection, especially when the entire family was involved in the accident.

4. This court does not find substance in the first submission of Mr. Jha. Learned counsel for the appellant has rightly referred to the decision of this Court in the case of Oriental Insurance Co. Ltd. v, Chandra Kala Devi 2001 (1) PLJR 430, wherein this Court in similar circumstances has found force in the submission advanced on behalf of the insurance company that the appeal before this Court is maintainable and the insurer can definitely urge that the Tribunal adopting wrong principle of multiplier has awarded an exorbitant amount. to the claimants as compensation.

5. In the case of Shankarayya v. United India Insurance Co. Ltd. (supra) the Apex,. Court, while interpreting the provision of Section 170 of the Act and approving the contention advanced on behalf of the appellant that as the respondent No. 1 insurance company did not move under Section 170 of the Act, it was not entitled to challenge the compensation on merits, has held that statutory defence was available to the insurance company. In the case of Oriental Insurance Co. Ltd. v. Chandra Kala Devi 2001 (1) PLJR 430, this Court also held that though the insurance company cannot challenge the quantum of compensation on merits if it fails to seek permission by filing an application before the Tribunal as required under Section 170 of the Act, but the insurer cannot be debarred from filing an appeal, if in fixing the quantum the Tribunal has committed error on the very principles itself.

6. In the instant case, the death occurred before insertion of the Second Schedule. Thus, in my opinion, learned Counsel for the appellant is right in his contention that the Tribunal has committed error in following the principle of multiplier as per the Second Schedule for determining the quantum of compensation which came into force much after the death.

7. However, considering the principle decided in the case of National Insurance Co. Ltd. v. Phoolbharan Devi (supra) and in the case of Oriental Insurance Co. Ltd. v. Paspati Prasad (supra) for awarding compensation on lump sum basis in the case of death of a child and the fact that the deceased was a non-earning member, in my opinion, a sum of Rs. 80,000 (rupees eighty thousand) would be proper to assess the compensation on lump sum basis to be paid to the claimants keeping in view the age of the girl and the family background as also the fact that the entire family was involved in the accident, but were not paid any compensation as alleged.

8. It is stated by the learned Counsel for the appellant that a sum of Rs. 25,000 has already been paid by way of interim compensation to the claimants and a sum of Rs. 25,000 has been deposited in this Court, vide challan No. 363 dated 20.12.1999.

9. Under such circumstances, this Court directs that the respondents-claimants shall be entitled to withdraw the amount which has been deposited in this Court and after adjusting the said amount as well as the amount of interim compensation, the appellant shall pay the remaining amount within four weeks with interest as awarded by the Tribunal.

10. The appeal is, accordingly, allowed.