RASMITA BISWAL & ORS. versus DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD. AND ANR. on 8 December 2021

Conclusion

1. Leave granted.

2. This appeal is directed against the judgment and order dated07.03.2018 passed by the High Court of Orissa at Cuttack in MACA

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ANo.965 of 2016 whereby the High Court has reduced the compensationpayable to the appellants/claimants from Rs.22,60,000/- toRs.17,00,000/-.

3. The first appellant is the wife of one Manoj Kumar Biswal andthe second and third appellants are their minor sons. Manoj Kumar BiswalBdied in a motor vehicle accident which occurred on 09.05.2013. Theappellants filed claim petition bearing MAC No.46/2013 before theAdditional District Judge-cum-Motor Accident Claims Tribunal, TalcherDistrict (for short ‘the Tribunal’), seeking compensation on account ofthe death of Manoj Kumar Biswal. The first respondent, owner of theoffending truck, filed his written statement denying any negligence onCthe part of the driver of the offending truck. Respondent no.2 is theinsurer who also filed the written statement opposing the claim petition.

4. The Tribunal, on appreciation of the materials on record, heldthat the cause for the accident was the rash and negligent driving of theoffending truck by its driver. The Tribunal awarded a total compensationDof Rs.12,90,064/- along with interest at the rate of 6% per annum. Theclaimants as well as the insurer challenged the award of the Tribunalbefore the High Court vide MACA Nos.1134 and 1169 of 2014. TheHigh Court set aside the award and remitted the matter back to theTribunal for fresh disposal. The Tribunal once again considered the matterEand awarded a total compensation of Rs.22,60,000/-. The insurerchallenged the award of the Tribunal before the High Court by filing anappeal bearing MACA No.965 of 2016. In that appeal, the High Courthas modified the award of the Tribunal and awarded compensation ofRs.17,00,000/- with interest at the rate of 7.5% per year from the dateof claim petition till the date of realization.F

5. Learned counsel for the appellant would contend that the HighCourt was not justified in reducing the compensation without assigningany reason. It is contended that the appellant was earning Rs.15,000/-and was aged about 28 years at the time of his death. The Courts belowhave taken his age as 33 years and has applied multiplier ‘16’ instead ofG‘15’. It is further argued that the deceased had a permanent job. TheCourts below have not awarded any compensation towards loss of futureprospects. Even the compensation awarded under the conventional headsis not in accordance with the judgment of this Court in NationalInsurance Company Limited v. Pranay Sethi and Others[1].

H1 (2017) 16 SCC 680

6. On the other hand, learned advocate appearing for therespondent-insurer has supported the judgment of the High Court.

7. We have carefully considered the submissions made at the Barand perused the materials placed on record.

8. The finding of the Tribunal and that of the High Court withregard to the cause of the accident and the liability of the insurer to paycompensation is not disputed. Therefore, the only question forconsideration is whether compensation awarded by the High Court isadequate.

9. The deceased was working as supervisor under one KushaSamal (PW-3), proprietor of M/s. Divine Construction. Exhibit P-8 iscertificate issued by PW-3 shows that the deceased was a supervisor inthe organisation and his salary was Rs.15,000/- per month. In his evidence,PW-3 has also stated that the deceased was paid salary of Rs.15,000/-per month. The first appellant-wife of the deceased was examined asPW-1. She has stated that the income of the deceased at the time of hisdeath was Rs.15,000/- per month. Taking into account the evidence onrecord, the Tribunal has assessed his income at Rs.15,000/-. We do notfind any error with the assessment of the salary as such by the Tribunal.

10. Though the appellants claim that the deceased was aged 28years at the of his death, no documents have been produced in supportof the said contention. On the contrary, PAN card (Exhibit-7) of thedeceased shows that he was aged 33 years at the time of his death.Even the post-mortem report of the deceased suggests the same.Therefore, the Tribunal held that the deceased was aged 33 years andmultiplier ‘16’ was applied. After deducting ¼ of the income towardsthe personal expenses of the deceased, the Tribunal awarded a totalcompensation of Rs.21,60,000/- towards loss of dependency and a sumof Rs.1,00,000/- under other conventional heads. Thus, a total sum ofRs.22,60,000/- was awarded by the Tribunal.

11. However, the High Court, without assigning any reasonwhatsoever, has modified the award of the Tribunal and has awarded acompensation of Rs.17,00,000/- by holding as under:

“Considering the submissions made and keeping in view thequantum of compensation amount awarded and the basis on whichthe same has been arrived at, I feel, the interest of justice wouldbe best served, if the awarded compensation amount of A

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438SUPREME COURT REPORTS

ARs.22,60,000/- is modified and reduced to Rs.17,00,000/- (RupeesSeventeen Lakhs) only, which is payable to the claimants alongwith the awarded interest. The impugned award is modified tothe said extent.”

12. Section 173 of the Motor Vehicles Act, 1988 provides forBfiling of an appeal against the award passed by the Claims Tribunal. It issettled law that an appeal is continuation of the proceedings of the originalCourt/Tribunal. An appeal is a valuable right of the appellant and at thestage of an appeal, all questions of fact and law decided by the Tribunalare open for the reconsideration. Therefore, the appellate court is requiredto address all the questions before it and decide the case by giving reasons.

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13. We have already held that the monthly income of the deceased,as assessed by the Tribunal at the rate of Rs.15,000/- per month, is justand proper. It is also established that the deceased was 33 years at thetime of his death. Therefore, application of multiplier of ‘16’ by the Tribunalis also proper. The annual salary of the deceased comes to Rs.1,80,000/D- which has to be multiplied by ‘16’ which becomes Rs.28,80,000/-.

14. In Pranay Sethi[1],the Constitution Bench of this Court hasheld that in case the deceased was self-employed or on a fixed salary,an addition of 40% of the established income should be awarded wherethe deceased was below the age of 40 years:E

“In case the deceased was self-employed or on a fixed salary, anaddition of 40% of the established income should be the warrantwhere the deceased was below the age of 40 years. An additionof 25% where the deceased was between the age of 40 to 50years and 10% where the deceased was between the age of 50Fto 60 years should be regarded as the necessary method ofcomputation. The established income means the income minusthe tax component.”

15. 40% of the income of the deceased, therefore, has to be addedtowards loss of future prospects which comes to Rs.11,52,000/-. Thus,Gthe total income of the deceased is Rs.40,32,000/-. One-fourth of theincome i.e. 10,08,000/- has to be deducted towards the personal expensesof the deceased, as he has left behind three dependants. Therefore, thetotal amount payable to the claimants towards loss of dependency comesto Rs.30,24,000/-.

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16. In Pranay Sethi[1],this Court has awarded a total sum ofRs.70,000/- under conventional heads, namely, loss of estate, loss ofconsortium and funeral expenses. The said Judgment of the ConstitutionBench was pronounced in the year 2017. Therefore, the claimants areentitled to 10% enhancement. Rs.16,500/- is awarded towards loss ofestate and conventional expenses and Rs.44,000/- is awarded towardsspousal consortium. Thus, the total compensation payable to the claimantsis as under:

17. As noticed above, the High Court has already awarded a sumof Rs.17,00,000/-. Thus, the balance sum payable to the appellants isRs.14,01,000/-. The second respondent-Insurer is directed to deposit asum of Rs.14,01,000/- before the Tribunal along with interest at the rateof 7.5% per annum from the date of claim petition till the date ofrealization, within eight weeks from today. On such deposit being made,the same shall be disbursed to the claimants/appellants in the sameproportion as directed by the Tribunal in Award dated 27.02.2016.

18. The appeal is accordingly disposed of. There shall be no orderas to costs.

19. Before parting with the judgment, we may notice that a largenumber of claim petitions, under the provisions of the Motor VehiclesAct, 1988 are being filed before the various Claims Tribunals establishedthereunder throughout the country. Against the awards of the Tribunals,appeals are filed under Section 173 of the Motor Vehicles Act, 1988before the relevant High Court, either by the claimants or by the insurersand owners of the offending vehicles. Large number of such appealsare pending before the various High Courts. Having regard to the above,we are of the view that in order to curtail the pendency before the HighCourts and for speedy disposal of the appeals concerning payment ofcompensation to the victims of road accident, it would be just and properto consider constituting ‘Motor Vehicle Appellate Tribunals’ byamending Section 173 of the Motor Vehicles Act so that the appeals A

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Achallenging the award of a Tribunal could be filed before the AppellateTribunal so constituted.

20. The various Benches of such an Appellate Tribunal couldconsist of two Senior District Judges. To ensure access to justice and toavoid pendency, it is also proper to consider setting up Benches of theBAppellate Tribunal in various regional cities, in addition to the capital cityof each State as may be indicated by the relevant High Court. For thispurpose, appropriate rules governing the procedure of the AppellateTribunal may also be framed. No further appeal against the order of theAppellate Tribunal need be provided. If any of the party is aggrieved bythe order of the Appellate Tribunal, he can always invoke the writCjurisdiction of the concerned High Court for appropriate reliefs.Department of Justice, Ministry of Law and Justice, is requested toexamine this matter.

21. The Registry is directed to send a copy of this Judgement tothe Secretary, Department of Justice, Ministry of Law and Justice,Dforthwith.

Devika Gujral

Appeal disposed of.

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