-i^ IN THE HIGH COURT OF JUDICATE OF CHHATTISGARH, BU.ASPUR M.A.(C.) No^M^ SPONDENTS ^ .^ ^•^' ^> ^6"^^?' •^ ..-••^' ^&!.""n ^^"^\^ ,i. .-.J ^" APPELLANT : ^Sub Area Manager OWNER OF THE South Eastem Coal Fields Limited, OFFENDING VEHICLE -Regional Office Rajnagar Colliery, NON APPLICANT N0.2 District Anuppur (M.P.) BEFORE THE TRIBUNAL VERSUS Suhel Ahmed S/o Hamid Khan aged about 45 years, R/o Shanti Nagar, Qr. No. 239, Rajnagar, P..S. Rajnagar, Tehsil Kotma, District Anuppur (M.P.) Driver ofthe offending vehicle. ,,2. The' New India Insurance Company Limited, Branch Office Budhar Road, Sahdol, District Sahdol (M.P.) Insurer ofthe Offending vehicle. 3. Nashir Khan @ Nasir Ali ^ Y aged about 52 years, S/o Late Munir Khan, R/o Ward No. 2, North Jhagrakhand, Tehsil Manendragarh, District Korea (C.G.) 4., Smt. Hamida IChan W/o Nashir Khan, aged about 47 years, R/o Ward No. 2, North Jhagraldiand, Tehsil Manendragarh, District Korea (C.G.) ^v-^^^ ^. 113 :ss :%s iiii® y^ ^^ 9 M sa ^i^£». ^ (^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUbbUSI & HON'BLE MR. PRASHANT KUMAR MISHRA. JJ. M.A.Fcl N0.660 OF 2010 APPELLANT RESPONDENTS Versus Sub Area Manager, South Eastern Coalfields Ltd. Suhel Ahmed <& others ^- Present : Shn O.P, Agarwal, counsel for the appellant. Shri M.T. Hyder, counsel for the respondent No.l. v Shri Deepak Gupta, counsel for the respondent No.2. Shri N.K. Vyas, counsel for the respondent Nos.3 <& 4. "!a.' ORAL ORbER (17th January, 2011) Per I.M. Quddusi. J 1. The appellant- South Eastern Coalfields Ltd. has preferred this appeal against the award dated 23.03.2010 passed in Claim Case No.07/09 by the learned Additional Motor Accident Claims Tribunal, Manendragarh, District Koriya (CG) (for short 'the Tribunal') allowing the claim application of the claimants and fastening liability on the appellant herein on the ground that the offending bus was not having permit. 2. Facts of the case, in brief, are that the claimants, who are parents, of deceased Zaheer Khan, have filed aclaim petition before the Tribunal under Sectt'on 166 of the Motor Vehicles Act, 1988 (for short 'the Act') stating therein that their son namely Zaheer Khan was working as Security Guard- cum-Watchman in the National Colliery Mazdoor Congress, Central Office, Bilaspur. On 06.11.2008 at about 3.30 p.m. when said Zaheer Khan was ascending the bus bearing registration number MP27-B-1853 to go to Manendragarh from North Jhagrakhan, Dafai No.l, at that moment the driver of tfte said bus had accelerated the speed as a result said Zaheer Khan fell down and came under the rear wheel of the said bus, due to which he sustained various injurious on his body and died in the hospital while undergoing treatment. The claimants have claimed compensation of •l'-—-L.__- Rs.35,60,000/- for his death on the ground that they were dependent on the income of the deceased and due to his untimely death they have suffered loss of income. 3. The learned Tribunal, after considen'ng the issues framed by it, allowed the claim application and awarded a compensation of Rs.3,08,000/- to the claimants along with interest ©9% per annum from the date of the application. The Tribunal has held the present appellant liable to pay the amount of compensation to the claimants and exonerated the insurance company with a finding that though for the relevant period the offending vehicle was insured with the respondent No.2-Insurance Company, but ot thetime of accident the offending vehicle was not having valid permit and thus itwas plied in breach of the terms and conditions of the insurance policy. )'• " • • . '"' I 4. We have heard learned counsel for the parties. We have also perused the records of the case. 5. Mr. Agarwal, leapned counsel for the appellant has raised two fold contentions, firstly, that there was no necessity of having permit for plying the school bus apd secondly, the amount awarded by the Tribunal is too excessive. r 6. So far as the first limb of the argument of the learned counsel for the appellant that there was no need of having permit for school bus, is concerned, it is true that earlier there was a provision in the Act, 1998 i.e. Section 66 (3) (h), which envisages that there was no necessity of permit for the school bus, but the said provision has been omitted w.e.f. 11.8.2000 i.e. about eight years before the date of accident i.e. 6.11.2008 and after omission of that clause, which was an exemption clause, the necessity of permit for school bus has also arisenand therefore if the offending vehicle was not having a permit on the date of accident, it cannot be said that there was no breach of the condition of insurance policy. More so, when in the insurance policy under the heading 'Limitation to Use' itself it was specifically mentibned that the policy covers use only under apermit. Thus, \ !l i;l-. ^^^"^. 1 ^SIP^" ^' ^s^^y the argument of learned counsel for the appellant that there was no necessity of permit for offending vehicle has no force. 7. Now coming to the second limb of the argument of learned counsel for the appellant that the amount awarded by the Tribunal is too excessive as the multiplier applied and standard deductions made were not proper. 8. In the matter of U.P. State Road Transport Corporation & others Vs. Trilok Chandra <& others reported in (1996) 4 SCC 363 the three Judge Bench of the Hon'ble Supreme Court, comprising of Hon'ble the Chief Justice of India, Hon'ble Shri N.P. Singh <& Shri M.K. Mukherjee, JJ (as they then were) held in Para-18 as under:- "We must at once point out that the calculation of compensation and the amount worked out in the schedule suffer from several defects. For example, in item No.l for a victim aged 15 years, the multiplier is shown to be 15 years' and the multiplicand is shown to be Rs.3000/-. The total shouldbe 3000x15 =45,000 but the same is worked out at R<s.60,000/-. Simitarly, in the second item the multiplier is 16 and the annual income is Rs.9000; the total should have been Rs.1,44,000 but is shown to be Rs.1,71,000/-. To put it briefly, ,the table abounds in such mistdkes. Neither the Tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier. But these mistakes are timited to actual calculations only and not in respect of other items. What were propose to emphasis is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state that correct legal position as Courts and Tribunals are using higher multiplier ds in the present case where the Tribunalused the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of-the background of the multiplier system in bavies' case." . 9. The above principle has been followed by the Hon'ble Supreme Court in its subsequent judgment delivered in the matter of Sarla Verma (Smt.) and others -vs- Oelhf Transport Corporation and another reported in (2009) 6 SCC 121 rand it has been held that multiplier to be used should as .:,..;^^ ^ 1^"^ Y 3 ft. ' ....-^i^. |iWsta|| m mentioned in Column (4) of the table above (prepared by applying Susaamma Thomas's case, Trilok Chandra's case and Charlie's case). Thus, considering the age of the parents of the deceased i.e. 52 <& 47 respectively, the average age of which comes to 49.5 years, the proper multiplier applicable in the present case is 13, as given in the table provided in Saral Verma's case (supra), and not 12 as applied by the Tribunal. lO.The Hon'ble Apex Court in its latest decision dated 9.11.2010 delivered in the matter of Shakti Devi Vs. New India Insurance Co. Ltd. <& another (Civil Appeal No.3660/2006) has held in Para-12 as under:- ,M12, So far as the present case is concerned, at the time of accident/ the deceased was 22-year old and not married. He was running a general store from his house and earning about Rs.1000/- per month from the business. In Sarla Verma3, this Court stated that where the deceased was self-employed, the court shall usually take only the dctual income at the time of death; a departure from there should be made only m rare and exceptional cases involving special circumstances. boes the present case involve special circumstances? In our view, it does. The evidence has come that the deceased was to get employment in the forest department after the retirement of his father. Obviously the evidence is based on the government policy. The deceased, thus, had a reasonable expectation of the government employment in near future. In the circumstances, the actual income at the time of deceased's death needs to be revised and taking into consideration the special circumstances of the case, in our view, the monthly income of the deceased deserves to be fixed at Rs. 2000/-. As regards the personal expenses, since the deceased was not married, we are satisfied that the principle stated in Sarla Verma that 50% should be treated as the personal and living expenses of the bachelor may be applied. Seen thus, the annual loss of dependency would come to Rs. 12,000/-. Insofar as multiplier is concerned, the Tribunal applied the multiplier of 8. Learned counsel for the appellant argued that the multiplier of 18 should have been applied keeping in view the age of the deceased. iThe argument is devoid of any substance. In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is sobecause the choice of multiplier is determined by the age of t'he deceased or that of the claimant, whichever is higher. The exact age of the claimant has not come on record. As per the evidence of AW1 (Pankaj Kumar Sinha), on the date of his deposition, the claimant's age was about 63 years. The date of deposition of AW-1 is not available.''-The accident occurred in 1991 and the date of decision ^- 1.^ ^' •^ c^ ;£?\ .^%€. of the Tribunal is June 6, 2000. Ordinarily, the Tribunat would not have taken much time after the evidence was complete. We may assume that the statement of AW-1 was recorded somewhere in 1998 or 1999. If that be so, the age of the claimant on the date of the accident would be about 54-55 years. As per the table prepared in Sarla Verma3, the multiplier of 11 would, therefore, be applicable. By multiplying the annual loss of dependency (Rs.12000/-) with the multiplier of 11, the claimant becomes entitled to the compensation in the sum of Rs. 1,32,000/-. The compensation determined by the Tribunal at Rs. 60,000/- and confirmed by the High Court in the appeal is manifestly erroneous and is enhanced to Rs. 1,32,000/-." 11. It is true that in a case where the deceased was a bachelor, 50% should have been deducted towards personal living expenses as it is assumed that a } bachelor would tend to spend more on him as setf-maintenance, but in the present case the Tribunal has disbelieved the income certificate (Ex.A-11) on the ground that the same was issued on 18.7.2007 i.e. prior to the date of accident, ond therefore it became doubtful, and also on the ground that no document has been produced to prove ,that there is any institution in the nameof Ndti6nal~Colliery Mazdoor Congress, Central Officer, Bilaspur. 12.According to the certificate (Ex.A-11) issued by the General Secretary, National Colliery Mazdoor Congress, Central Office, Bilaspur the deceased was the Security Guard-cum-Watchman and was getting monthly salary of Rs.6000/-, It is to be noticed that the appellant i.e. South Eastern Coalfields Ltd., has itself recognized the said organization i.e. National Cotliery Mazdoor Congress bearing registration No.22/1948 and therefore disbelieving the income certificate on the ground that whether there is any institution in the said name or not, is improper. IS.Therefore, considering monthly income of the deceased as Rs.6,000/- and i after deducting 507o from it towards personal living expenditure of the */\. . • • deceased; totat annual loss of income would come to Rs.36000/- (6000/2x12) and if we apply multiplier of 10, for the sake of argument of learned counsel for the appellant only, then also the total loss of ^'' • • .,' dependency would come to Rs.3,60,000/-. However, the Tribunal has awarded only Rs.2,88,000/- towards loss of dependency, which is much less than the actual loss of dependency. ^ ^. ^. iw^r— 14. Further, in view of the above settled principle, it is clear that whileapplying multiplier in a case where the deceased was a bachelor, the average age of the parents was liable to be considered and as such, the Tribunal has rightly applied the principle of taking average age of the parents of the deceased, but has not followed the principles laid down in Sarla Verma's case (supra) and only applied multiplier of 12 instead of 13. Therefore, if we calculate the loss of dependency on the basis of above discussions, the compensation payable comes to on a very higher side, but since there is no cross-objection by the claimants, we are not inclined to consider the same and we are of the opinion that it cannot be said that the compensation awarded by the Tribunal to the claimants is excessive. :. 15. For the reasons stated above, the appeal fails and is hereby dismissed but (-,•''... . " '. withput any order as to costs; Roshan/- Sd/- LM.Quddusi Judge Sd//- Prashant Kumar Mishra Judge