Oriental Insurance Co. Ltd. Vs. Smt. Manju and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - learned tribunal after permitting the parties to adduce evidence arrived at a conclusion that the claimant has failed to establish the monthly income to the tune of rs.devi prasad singh and satish chandra, jj.1. devi prasad singh and dr. satish chandra, jj.-heard mr. mukund dubey, learned counsel appearing on behalf of the appellant and mr. ram kumar singh, learned counsel appearing for the private respondents.2. present appeal has been preferred under section 173 of the motor vehicles act, in short, act, against the impugned award dated 1.5.2006, passed by the motor accidents claim tribunal/additional district judge (fast track), court no. 32, barabanki in motor accident claim no. 320 of 2005.3. controversy involved in the present appeal relates to an accident taken place on 23.12.2003 from motorcycle no. u.p.-41c-4645 at deva-barabanki road near village palta. the claimant smt. manju while approaching the tribunal advanced her claim with the allegation that the motorcycle was being driven rashly and negligently and on account of accident taken place, shri anoop singh (deceased) succumbed to the injuries on 4.1.2004. the factum of accident was informed to the police station concerned and later on, a claim petition was filed before the tribunal for payment of compensation to the tune of rs. 9,96,228 with interest at the rate of 18% per annum. the claimant advanced her case with the submission that the monthly income of the deceased anoop singh was rs. 5,000, having a betel shop and business of milk. learned tribunal after permitting the parties to adduce evidence arrived at a conclusion that the claimant has failed to establish the monthly income to the tune of rs. 5,000 per month and accordingly, in view of the statutory provisions contained in section 163a of the act inferred that the notional income of the deceased would be rs. 15,000 per year. the tribunal has applied the multiplier of 17 on the basis of the age of the deceased which was 25 years at the time of accident. the tribunal has further granted rs. 2,000 as cremation expenses and .rs. 2,500 for loss of estate. the tribunal has awarded total compensation to the tune of rs. 1,74,500.4. while assailing the impugned order, the solitary argument, advanced by the learned counsel for the appellant is that the tribunal has not applied multiplier correctly keeping in view the actual age of the deceased. it has been submitted that the multiplier should have been used by the tribunal keeping in view the age of the deceased or the claimant, whichever is higher. it has been further submitted that the age of the claimant was 48 years at the time of accident.5. learned counsel for the appellant has relied upon a case in u.p. state road transport corporation v. krishna bala and ors. : air2006sc2688 .6. on the other hand, learned counsel for the respondents submits that the tribunal has rightly used the multiplier of 17 treating the age of the deceased as 25 years. he also submits that multiplier provided under schedule ii of the act is simply a guideline and the tribunal has got power to award compensation keeping in view the facts and circumstances of a particular case. it has also been submitted that the application under section 170 of the act was rejected by the tribunal and the order of rejection was never impugned by the appellant, hence it attained finality. it has been further submitted by the learned counsel for the respondents that since the appeal is not maintainable in view of the law settled by the hon'ble supreme court, the appellant is not entitled for any relief. learned counsel for the respondents has relied upon a case in r. mannakatti and anr. v. m. subramanian and anr. 2006 (2) tac 515 : 2006 (3) accd 1472 (sc).7. we have heard learned counsel for the parties at length and perused the record.8. there is no dispute that the application moved under section 170 of the act was rejected by the tribunal. the order of rejection was never challenged by the appellant, hence it attained finality.9. in the case of r. mannakatti (supra), in similar circumstance, hon'ble supreme court relied upon the earlier judgment in national insurance co. limited v. nicolletta rohtagi : [2002]supp2scr456 . and held that in case permission has not been granted by the tribunal to the insurance company, then no appeal shall be maintainable. relevant portion from the supreme court's judgment in r. mannakatti (supra) is reproduced as under:5. in view of the aforesaid principles laid down by this court, in the instant case since the owner of the vehicle contested the claim of the appellants, the insurer could not prefer an appeal, even if the owner of the vehicle joined him as a party-appellant. counsel for the respondent insurance company submitted that in this case his grievance is to the application of the multiple of 17 which was apparently incorrect. since we have held that the appeal itself was not maintainable at the instance of the insurer, this cannot be examined by us.10. once the application moved by the appellant was rejected by the tribunal, then in case the appellant was having any grievance, it should have challenged the said order in accordance with the statutory provisions or by approaching this court under article 227 of the constitution of india which has not been done. hence, the natural consequence would be that the order of rejection attained finality.11. in view of the above settled proposition of law, present appeal is not maintainable. however, even if the ground raised by the appellant's counsel is considered, it does not seem to carry any weight to challenge the impugned order. it is settled proposition of law that the second schedule of the act is merely a guideline and is not mandatory. multiplier is used for ascertainment of loss of dependency and no hard and fast rule can be laid down while assessing the compensation. the choice of multiplier may be determined on the basis of the age of the deceased and shall also depend upon the facts and circumstances of each case. even in the case, relied upon by the appellants' counsel, hon'ble supreme court has loosely interpreted the provisions contained in the second schedule with regard to multiplier. their lordships of hon'ble supreme court categorically ruled that the multiplier is a guideline and cannot be said to be an invariable ready reckoner.12. in view of the above, the appeal lacks merit. it is accordingly dismissed with no order as to costs.13. the claimant shall be entitled for compensation in terms of the award. the amount deposited in this court or before the tribunal shall be released forthwith.