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Supreme Court of India
Rasmita Biswal vs Divisional Manager, National … on 8 December, 2021Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer, Krishna Murari
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7549 of 2021
(Arising out of S.L.P.(C)No.23177 of 2018)
RASMITA BISWAL & ORS. …APPELLANT(S)
VERSUS
DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY
LTD. AND ANR. …RESPONDENT(S)
JUDGMENT
S. ABDUL NAZEER, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated 07.03.2018
passed by the High Court of Orissa at Cuttack in MACA No.965 of 2016
whereby the High Court has reduced the compensation payable to the
appellants/claimants from Rs.22,60,000/- to Rs.17,00,000/-.
Signature Not Verified
3.
Digitally signed by
Anita Malhotra
Date: 2021.12.08
The first appellant is the wife of one Manoj Kumar Biswal and the second
15:09:16 IST
Reason:
and third appellants are their minor sons. Manoj Kumar Biswal died in a motor
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vehicle accident which occurred on 09.05.2013. The appellants filed claim
petition bearing MAC No.46/2013 before the Additional District Judge-cum-
Motor Accident Claims Tribunal, Talcher District (for short ‘the Tribunal’),
seeking compensation on account of the death of Manoj Kumar Biswal. The
first respondent, owner of the offending truck, filed his written statement
denying any negligence on the part of the driver of the offending truck.
Respondent no.2 is the insurer who also filed the written statement opposing the
claim petition.
4. The Tribunal, on appreciation of the materials on record, held that the
cause for the accident was the rash and negligent driving of the offending truck
by its driver. The Tribunal awarded a total compensation of Rs.12,90,064/-
along with interest at the rate of 6% per annum. The claimants as well as the
insurer challenged the award of the Tribunal before the High Court vide MACA
Nos.1134 and 1169 of 2014. The High Court set aside the award and remitted
the matter back to the Tribunal for fresh disposal. The Tribunal once again
considered the matter and awarded a total compensation of Rs.22,60,000/-. The
insurer challenged the award of the Tribunal before the High Court by filing an
appeal bearing MACA No.965 of 2016. In that appeal, the High Court has
modified the award of the Tribunal and awarded compensation of
Rs.17,00,000/- with interest at the rate of 7.5% per year from the date of claim
petition till the date of realization.
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5. Learned counsel for the appellant would contend that the High Court was
not justified in reducing the compensation without assigning any 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 below have taken his age as 33 years
and has applied multiplier ‘16’ instead of ‘15’. It is further argued that the
deceased had a permanent job. The Courts below have not awarded any
compensation towards loss of future prospects. Even the compensation
awarded under the conventional heads is not in accordance with the judgment of
this Court in National Insurance Company Limited v. Pranay Sethi and
Others1.
6. On the other hand, learned advocate appearing for the respondent-insurer
has supported the judgment of the High Court.
7. We have carefully considered the submissions made at the Bar and
perused the materials placed on record.
8. The finding of the Tribunal and that of the High Court with regard to the
cause of the accident and the liability of the insurer to pay compensation is not
disputed. Therefore, the only question for consideration is whether
compensation awarded by the High Court is adequate.
9. The deceased was working as supervisor under one Kusha Samal (PW-3),
proprietor of M/s. Divine Construction. Exhibit P-8 is certificate issued by PW-
3 shows that the deceased was a supervisor in the organisation and his salary
1 (2017) 16 SCC 680
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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 as PW-1. She has stated that the income of the
deceased at the time of his death was Rs.15,000/- per month. Taking into
account the evidence on record, the Tribunal has assessed his income at
Rs.15,000/-. We do not find any error with the assessment of the salary as such
by the Tribunal.
10. Though the appellants claim that the deceased was aged 28 years at the of
his death, no documents have been produced in support of the said contention.
On the contrary, PAN card (Exhibit-7) of the deceased 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 and multiplier ‘16’ was applied. After deducting ¼ of the income towards
the personal expenses of the deceased, the Tribunal awarded a total
compensation of Rs.21,60,000/- towards loss of dependency and a sum of
Rs.1,00,000/- under other conventional heads. Thus, a total sum of
Rs.22,60,000/- was awarded by the Tribunal.
11. However, the High Court, without assigning any reason whatsoever, has
modified the award of the Tribunal and has awarded a compensation of
Rs.17,00,000/- by holding as under:
“Considering the submissions made and keeping in view the
quantum of compensation amount awarded and the basis on
which the same has been arrived at, I feel, the interest of justice
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would be best served, if the awarded compensation amount of
Rs.22,60,000/- is modified and reduced to Rs.17,00,000/-
(Rupees Seventeen Lakhs) only, which is payable to the
claimants along with the awarded interest. The impugned
award is modified to the said extent.”
12. Section 173 of the Motor Vehicles Act, 1988 provides for filing of an
appeal against the award passed by the Claims Tribunal. It is settled law that an
appeal is continuation of the proceedings of the original Court/Tribunal. An
appeal is a valuable right of the appellant and at the stage of an appeal, all
questions of fact and law decided by the Tribunal are open for the
reconsideration. Therefore, the appellate court is required to address all the
questions before it and decide the case by giving reasons.
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 just and proper.
It is also established that the deceased was 33 years at the time of his death.
Therefore, application of multiplier of ‘16’ by the Tribunal is also proper. The
annual salary of the deceased comes to Rs.1,80,000/- which has to be multiplied
by ‘16’ which becomes Rs.28,80,000/-.
14. In Pranay Sethi 1, the Constitution Bench of this Court has held that in
case the deceased was self-employed or on a fixed salary, an addition of 40% of
the established income should be awarded where the deceased was below the
age of 40 years:
“In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income
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should be the warrant where the deceased was below the
age of 40 years. An addition of 25% where the deceased
was between the age of 40 to 50 years and 10% where
the deceased was between the age of 50 to 60 years
should be regarded as the necessary method of
computation. The established income means the income
minus the tax component.”
15. 40% of the income of the deceased, therefore, has to be added towards
loss of future prospects which comes to Rs.11,52,000/-. Thus, the total income
of the deceased is Rs.40,32,000/-. One-fourth of the income i.e. 10,08,000/- has
to be deducted towards the personal expenses of the deceased, as he has left
behind three dependants. Therefore, the total amount payable to the claimants
towards loss of dependency comes to Rs.30,24,000/-.
16. In Pranay Sethi 1, this Court has awarded a total sum of Rs.70,000/-
under conventional heads, namely, loss of estate, loss of consortium and funeral
expenses. The said Judgment of the Constitution Bench was pronounced in the
year 2017. Therefore, the claimants are entitled to 10% enhancement.
Rs.16,500/- is awarded towards loss of estate and conventional expenses and
Rs.44,000/- is awarded towards spousal consortium. Thus, the total
compensation payable to the claimants is as under:
(1) Towards loss of dependency Rs.30,24,000/-
(2) Towards loss of estate Rs.16,500/-
(3) Funeral expenses Rs.16,500/-
(4) Spousal consortium Rs.44,000/-
TOTAL Rs.31,01,000/-
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17. As noticed above, the High Court has already awarded a sum of
Rs.17,00,000/-. Thus, the balance sum payable to the appellants is
Rs.14,01,000/-. The second respondent-Insurer is directed to deposit a sum of
Rs.14,01,000/- before the Tribunal along with interest at the rate of 7.5% per
annum from the date of claim petition till the date of realization, within eight
weeks from today. On such deposit being made, the same shall be disbursed to
the claimants/appellants in the same proportion as directed by the Tribunal in
Award dated 27.02.2016.
18. The appeal is accordingly disposed of. There shall be no order as to costs.
19. Before parting with the judgment, we may notice that a large number of
claim petitions, under the provisions of the Motor Vehicles Act, 1988 are being
filed before the various Claims Tribunals established thereunder throughout the
country. Against the awards of the Tribunals, appeals are filed under Section
173 of the Motor Vehicles Act, 1988 before the relevant High Court, either by
the claimants or by the insurers and owners of the offending vehicles. Large
number of such appeals are 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 High Courts and for speedy disposal of the appeals concerning
payment of compensation to the victims of road accident, it would be just and
proper to consider constituting ‘Motor Vehicle Appellate Tribunals’ by
amending Section 173 of the Motor Vehicles Act so that the appeals challenging
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the award of a Tribunal could be filed before the Appellate Tribunal so
constituted.
20. The various Benches of such an Appellate Tribunal could consist of two
Senior District Judges. To ensure access to justice and to avoid pendency, it is
also proper to consider setting up Benches of the Appellate Tribunal in various
regional cities, in addition to the capital city of each State as may be indicated
by the relevant High Court. For this purpose, appropriate rules governing the
procedure of the Appellate Tribunal may also be framed. No further appeal
against the order of the Appellate Tribunal need be provided. If any of the party
is aggrieved by the order of the Appellate Tribunal, he can always invoke the
writ jurisdiction of the concerned High Court for appropriate reliefs.
Department of Justice, Ministry of Law and Justice, is requested to examine this
matter.
21. The Registry is directed to send a copy of this Judgement to the Secretary,
Department of Justice, Ministry of Law and Justice, forthwith.
…….……………………………J.
(S. ABDUL NAZEER)
…….……………………………J.
(KRISHNA MURARI)
New Delhi;
December 08, 2021
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