Premlata Wd/O Laxminarayan and ors. Vs. Bhgwan Singh and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - that being so, the tribunal clearly fell into error in reducing amount of compensation by 35 per cent on account of lump sum payment and uncertainty of life.ordern.k. jain, j.1. this appeal filed under section 110d of the motor vehicles act, 1939 is directed against the award dated 3.11.1988 rendered by the ivth additional member, motor accident claims tribunal, indore, in claim case no. 71/86 awarding compensation rs. 78,000/- to the appellants in a fatal accident action.2. the respondent no. 3, new india assurance company ltd. has also filed cross-objection challenging the impugned award.3. appellant no. 1 is the widow and the appellants nos. 2 to 4 are the minor children of late laxmmarayan yadav who died in a motor accident that took place on 24.6.1986 at indore involving a matador bearing registration no. mbi 9073 driven by respondent no. 1, owned by respondent no. 2 and insured with respondent no. 3 the new india assurance company ltd., for 'third party risk'.4. the deceased at the time of his death was aged 36 years and earning salary rs. 750/- per month. the tribunal has assessed the dependency at rs. 500/- per month i.e., rs. 6,000/- per annum and after applying multiplier of 20 came to a gross figure of 1.20 lacs which was, however, reduced by 35 per cent on account of lump sum payment and uncertainties of life. thus a sum of rs. 78,000/- only was awarded as compensation.5. this appeal has been filed on the ground of inadequacy of the amount of compensation while the cross-objection has been taken seeking reduction of the amount.6. we have heard shri p.k. gupta, learned counsel for the appellants and shri v.v. dandwate, learned counsel for respondent no. 3 insurance company. none has, however, appeared for respondents nos. 1 and 2.7. the main grievance of the appellants is that no deduction could have been made in law on account of lump sum payment or uncertainties of life.as against it, the respondent insurance company seeks reduction in the amount of compensation on the ground that multiplier of 20 applied in assessing the compensation, is on higher side. it is contended that having regard to the age of the deceased as also of the claimants, at the most a multiplier of 15 could be applied.8. as regards the deduction on account of lump sum payment and uncertainties of life, the approach of the tribunal, we find, is not proper being not in tune with the recent trend of decisions of this court as also of other high courts. this court in the case of national insurance company ltd. vs. pushpa kunwar, 1983 acj 629 has held:'as the further prospect of the deceased has not been taken into account in determining the dependency, in our opinion, no deduction should be made on account of lump sum payment and uncertainty of life as contended by the learned counsel for the appellant.'9. in a later decision in lajwanti v. keshav prasad soni, 1984 acj 664 this court reiterating the aforesaid view further observed that no deduction on account of lump sum payment and uncertainty of life is allowed in view of the steep fall in the value of money. high courts of rajasthan, madras and delhi have also taken similar view (see : 1983 acj 489, 1983 acj 424 and 1981 acj 244).10. this court again in a recent decision passed on 10.12.1996 in misc. appeal no. 214/88, fakhruddin v. bant singh has reiterated the view that having regard to the rising inflation and devaluation of money value, no reduction on account of lump sum payment is called for.11. even the new motor vehicles act, 1988 as amended by amendment act 54 of 1994 now recognizes this principle that no deduction should be made on account of lump sum payment and uncertainty of life. by way of amendment act 54 of 1994 new sections 163a and 163b and iind schedule have been added for the purposes of calculating compensation by applying multiplier method. no provision is, however, made in these provisions for making any deduction as aforesaid.12. in the instant case, the future prospects of the deceased and general depreciation in purchasing power of money have not been taken into consideration. that being so, the tribunal clearly fell into error in reducing amount of compensation by 35 per cent on account of lump sum payment and uncertainty of life.13. coming to the question of multiplier, as already indicated, the age of the deceased at the time of accident was 36 years. in the case of susamma thomas, 1994 mplj 520 (sc), 1994(2) scc 176 hon'ble the supreme court has held that the maximum multiplier can be upto 16 only. however, in a later decision dated 7th may, 1996 rendered in civil appeal nos. 7760-61, u. p. state road transport corporation v. trilok chand, the apex court has held that in view of the newly added sections 163a and 163b and ilnd schedule to the motor vehicles act, 1988, the maximum multiplier can be upto 18. it is true that the accident in question had taken place prior to the coming into force of the motor vehicles act, 1988 and the amendment act 54 of 1994, nevertheless, guidelines can be taken from the provisions of this act of 1988 in the matter of ascertaining the dependency as also the multiplier. taking into consideration the aforesaid provisions, the age of the deceased as also of the claimants, the proper multiplier in the case would be 16.14. the tribunal on evaluation of evidence has held that income of the deceased was rs. 750/- per month. no serious challenge is made by any side to this finding of the tribunal and we also see no reason to take a different view of the matter. for the purpose of ascertaining dependency this amount has been reduced and rightly so by rs. 250/- in consideration of the expenses which the victim would have incurred towards maintaining himself. that being so, the dependency in the instant case comes to rs. 500 x 12 = rs. 6,000/- per annum and after applying multiplier of 16 the amount of compensation comes to rs. 96,000/-. to this a sum of rs. 4,000/- may be added on account of loss of consortium to the widow of the deceased. thus, the amount of compensation needs to be enhanced to rs. 1.00 lac.15. we thus allow the appeal and reject the cross-objection raising the amount of compensation from rs. 78,000/- to rs. 1.00 lac. out of this amount, rs. 40,000/- shall be paid to the widow of the deceased while each of his minor child will get rs. 20,000/-. the amount payable to the minors shall be deposited in fixed deposit account with some nationalised bank for the period till these minors attain majority. the direction made by the tribunal regarding payment of interest is upheld with the clarification that the enhanced amount of compensation shall also carry the same interest from the date of filing of petition till payment.16. the appeal as also the cross-objection thus stand disposed of as aforesaid but without any order as to costs.

Judgment:
ORDER

N.K. Jain, J.

1. This appeal filed Under Section 110D of the Motor Vehicles Act, 1939 is directed against the award dated 3.11.1988 rendered by the IVth Additional Member, Motor Accident Claims Tribunal, Indore, in claim case No. 71/86 awarding compensation Rs. 78,000/- to the appellants in a fatal accident action.

2. The respondent No. 3, New India Assurance Company Ltd. has also filed cross-objection challenging the impugned award.

3. Appellant No. 1 is the widow and the appellants Nos. 2 to 4 are the minor children of late Laxmmarayan Yadav who died in a motor accident that took place on 24.6.1986 at Indore involving a Matador bearing Registration No. MBI 9073 driven by respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3 The New India Assurance Company Ltd., for 'third party risk'.

4. The deceased at the time of his death was aged 36 years and earning salary Rs. 750/- per month. The Tribunal has assessed the dependency at Rs. 500/- per month i.e., Rs. 6,000/- per annum and after applying multiplier of 20 came to a gross figure of 1.20 lacs which was, however, reduced by 35 per cent on account of lump sum payment and uncertainties of life. Thus a sum of Rs. 78,000/- only was awarded as compensation.

5. This appeal has been filed on the ground of inadequacy of the amount of compensation while the cross-objection has been taken seeking reduction of the amount.

6. We have heard Shri P.K. Gupta, learned counsel for the appellants and Shri V.V. Dandwate, learned counsel for respondent No. 3 Insurance Company. None has, however, appeared for respondents Nos. 1 and 2.

7. The main grievance of the appellants is that no deduction could have been made in law on account of lump sum payment or uncertainties of life.

As against it, the respondent Insurance Company seeks reduction in the amount of compensation on the ground that multiplier of 20 applied in assessing the compensation, is on higher side. It is contended that having regard to the age of the deceased as also of the claimants, at the most a multiplier of 15 could be applied.

8. As regards the deduction on account of lump sum payment and uncertainties of life, the approach of the Tribunal, we find, is not proper being not in tune with the recent trend of decisions of this Court as also of other High Courts. This Court in the case of National Insurance Company Ltd. vs. Pushpa Kunwar, 1983 ACJ 629 has held:

'As the further prospect of the deceased has not been taken into account in determining the dependency, in our opinion, no deduction should be made on account of lump sum payment and uncertainty of life as contended by the learned counsel for the appellant.'

9. In a later decision in Lajwanti v. Keshav Prasad Soni, 1984 ACJ 664 this Court reiterating the aforesaid view further observed that no deduction on account of lump sum payment and uncertainty of life is allowed in view of the steep fall in the value of money. High Courts of Rajasthan, Madras and Delhi have also taken similar view (see : 1983 ACJ 489, 1983 ACJ 424 and 1981 ACJ 244).

10. This Court again in a recent decision passed on 10.12.1996 in Misc. Appeal No. 214/88, Fakhruddin v. Bant Singh has reiterated the view that having regard to the rising inflation and devaluation of money value, no reduction on account of lump sum payment is called for.

11. Even the new Motor Vehicles Act, 1988 as amended by Amendment Act 54 of 1994 now recognizes this principle that no deduction should be made on account of lump sum payment and uncertainty of life. By way of Amendment Act 54 of 1994 new Sections 163A and 163B and IInd Schedule have been added for the purposes of calculating compensation by applying multiplier method. No provision is, however, made in these provisions for making any deduction as aforesaid.

12. In the instant case, the future prospects of the deceased and general depreciation in purchasing power of money have not been taken into consideration. That being so, the Tribunal clearly fell into error in reducing amount of compensation by 35 per cent on account of lump sum payment and uncertainty of life.

13. Coming to the question of multiplier, as already indicated, the age of the deceased at the time of accident was 36 years. In the case of Susamma Thomas, 1994 MPLJ 520 (SC), 1994(2) SCC 176 Hon'ble the Supreme Court has held that the maximum multiplier can be upto 16 only. However, in a later decision dated 7th May, 1996 rendered in Civil Appeal Nos. 7760-61, U. P. State Road Transport Corporation v. Trilok Chand, the Apex Court has held that in view of the newly added Sections 163A and 163B and Ilnd Schedule to the Motor Vehicles Act, 1988, the maximum multiplier can be upto 18. It is true that the accident in question had taken place prior to the coming into force of the Motor Vehicles Act, 1988 and the Amendment Act 54 of 1994, nevertheless, guidelines can be taken from the provisions of this Act of 1988 in the matter of ascertaining the dependency as also the multiplier. Taking into consideration the aforesaid provisions, the age of the deceased as also of the claimants, the proper multiplier in the case would be 16.

14. The Tribunal on evaluation of evidence has held that income of the deceased was Rs. 750/- per month. No serious challenge is made by any side to this finding of the Tribunal and we also see no reason to take a different view of the matter. For the purpose of ascertaining dependency this amount has been reduced and rightly so by Rs. 250/- in consideration of the expenses which the victim would have incurred towards maintaining himself. That being so, the dependency in the instant case comes to Rs. 500 x 12 = Rs. 6,000/- per annum and after applying multiplier of 16 the amount of compensation comes to Rs. 96,000/-. To this a sum of Rs. 4,000/- may be added on account of loss of consortium to the widow of the deceased. Thus, the amount of compensation needs to be enhanced to Rs. 1.00 lac.

15. We thus allow the appeal and reject the cross-objection raising the amount of compensation from Rs. 78,000/- to Rs. 1.00 lac. Out of this amount, Rs. 40,000/- shall be paid to the widow of the deceased while each of his minor child will get Rs. 20,000/-. The amount payable to the minors shall be deposited in Fixed Deposit account with some Nationalised Bank for the period till these minors attain majority. The direction made by the Tribunal regarding payment of interest is upheld with the clarification that the enhanced amount of compensation shall also carry the same interest from the date of filing of petition till payment.

16. The appeal as also the cross-objection thus stand disposed of as aforesaid but without any order as to costs.