HIGH COURT OF ORISSA: CUTTACK MACA No. 845 of 2008 From an award dated 19.09.2008 passed by Sri B.K.Biswal,1st Motor Accident Claims Tribunal, Mayurbhanj, in M.A.C.T Misc. Case No.214 of 2005. -------- Smt. Bhabani Mandal and others ….. Appellants -Versus- Ranjan Kumar Chandgotia & another ….. Respondents For Appellants : M/s B.N.Samantray, P.Jena & D.Pattnaik For Respondents : M/s. V.Narsingh, S.R.Senapati & S.Das ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment : 22.07.2011 B.N. MAHAPATRA, J This is an appeal under section 173 of the Motor Vehicles Act,1988 (hereinafter referred to as the ‘Act’) filed by the claimant-appellants challenging the award dated 19.09.2008 passed by the Ist. Motor Accident Claims Tribunal (hereinafter referred to as the ‘Tribunal’) Mayurbhanj, in M.A.C.T Misc.Case No.214 of 2005 2. Case of the appellants before the Tribunal is that on 18.11.2005 at about 9.30 A.M while the deceased was going to his office at Analaduba from his postal colony residence at Kucheibudi, Rairangpur with his Scooter bearing Registration No.BR-16-6347 on the left side of the road, near Le Sancy hotel on the main road of Rairangpur, the offending oil tanker bearing Registration No.ORM-9941 came from his behind being driven by its driver in a high speed and dashed against the deceased. As a result of such accident, the deceased was thrown out of his Scooter and sustained fracture and other injuries on his person. He was immediately shifted to S.D. Hospital, Rairangpur and as his condition was serious, he was referred to S.C.B. Medical College and Hospital, Cuttack, where he succumbed to his injuries. The Police registered a criminal case bearing P.S Case No.108 dated 18.11.2005 under Section 279/338, IPC and submitted charge sheet under Section 279/304-A, IPC against the driver of the offending oil tanker. The further case of the appellants is that the offending oil tanker belonged to one Ranjan Kumar Chandgotia, Respondent no.1, and it was duly insured with opposite party No.2-Divisional Manager, National Insurance Company, Cuttack. At the time of death, the deceased was 48 years old and working as a Postal Assistant in the Sub-Post Office, Analaduba Branch and was getting salary of Rs.10,310/- at the time of accident. Stating the above facts, the appellants filed the claim petition before the Tribunal claiming compensation of Rs.12,00,000/-. 3. Opposite Party No.1, the owner of the offending vehicle did not contest the proceeding and he was set ex parte. Opposite Party No.2, the Insurer of the offending oil tanker contested the proceeding and filed written statement stating inter alia that the case was not maintainable and denied all the averments made in the claim petition including the insurance policy and the driving licence of the driver of the offending vehicle and asked the petitioners to prove the same by adducing oral and documentary evidence. 2 Respondent No.2 also disputed the age and income of the deceased and prayed for dismissal of the claim petition. 4. On the basis of the rival pleadings of the parties, the Tribunal has framed the following four issues: (i) Whether Anil Kumar Mandal died in an accident near Lesancy Hotel, Rairangpur main road on 18.11.2005 at about 9.30 A.M. due to rash and negligent driving of the driver of the offending vehicle bearing registration No.ORM-9941? (ii) Whether the offending vehicle No.ORM-9941 oil tanker was covered under valid policy having driving licence of the driver at the material time of accident? (iii) Whether the claim petition is maintainable and the claimants are entitled to get any compensation and if so, to what extent and from whom? 5. In order to prove their case the claimants examined two witnesses of whom appellant No.1 has been examined as P.W-1. One Biswaranjan Pal, P.W.2, has been examined as an eyewitness to the accident. The petitioners produced as many as nine documents which were admitted in evidence and marked as Ext.1 to 9. Opposite party No.2 has not examined any witness but produced three documents which were admitted in evidence and exhibited as Ext. ‘A’, ‘B’ and ‘C’. Taking both oral and documentary evidence into consideration, the Tribunal came to the conclusion that the offending oil tanker being driven rashly and negligently 3 by its driver resulted the death of the deceased. On the basis of the salary certificate issued by the Postmaster, Rairangpur the monthly gross income of the deceased was taken as Rs.10,310/- and after deducting statutory deduction of Rs.100/- towards professional tax and Rs.12/- towards water tax, the Tribunal determined the net monthly income of the deceased at Rs.10,198/- for the purpose of computation of the compensation. Taking the age of the deceased as 50 years 9 months 19 days, the Tribunal applied 11 multiplier and deducting 1/3rd of the income towards personal expenses computed the compensation at Rs.8,97,468/-. Besides the above, the Tribunal further awarded Rs.1,000/- towards funeral expense, Rs.2,000/- towards loss of consortium and Rs.1,000/- towards loss of estate. Thus, the total compensation was determined at Rs.09,01,468/-.The Tribunal held that the offending vehicle was validly insured with opposite party No.2 and it’s driver had valid driving licence covering the date of accident. Therefore, learned Tribunal held that respondent No.2-Insurer is entirely responsible to pay the compensation to the petitioners and directed it to pay the above amount of compensation to the appellant-claimants at the rate of 6% interest per annum from 25.09.2007 till realization of the amount of compensation. The learned Tribunal also directed for keeping a portion of the amount of compensation in fixed deposit in the name of claimants with certain conditions. 6. Mr. B.N.Samantray, learned counsel appearing on behalf of the appellants submitted that the amount of compensation awarded by the Tribunal is extremely low. He vehemently argued that the learned Tribunal 4 is erred in assessing the age of the deceased within the age group of 50 to 55 years. The learned Tribunal should have assessed the age of the deceased at 50 years and should have applied suitable multiplier, i.e., 13 instead of multiplier 11 for the purpose of computation of the compensation. Award of compensation towards funeral expense, loss of consortium and loss of estate is at the lower side. The statute provide Rs.9,500/- under these heads. Mr.Samantaray further argued that award of interest at the rate of 6% is improper and the same should be enhanced to 9% per annum. It was further argued that the award of interest from 25.09.2007 on the ground that the proceeding lingered not due to any laches of the petitioner thereafter is not correct. The same should have been allowed from the date of filing of the claim application as provided under Section 171 of the Act. In support of his contention, Mr.Samantaray relied on the decision of Delhi High Court in Amit Bathla V. Sushil Kumar & Ors., 2009 (3) TAC 187 (Del.). Placing reliance upon the decision of the Jharkhand High Court in National Insurance Company Ltd. V. Shiv Shankar Singh & Ors., 2008(1) TAC 601(Jhr.), it was submitted that only for the period when the claimant himself was negligent in pursuing the claim petition, interest should not be awarded for that period and in the present case the petitioners are not negligent in prosecuting their case before the Tribunal. Mr. Samantray also relied upon the decision of the Jamu and Kashmir High Court in Saroti Devi & Ors., V. Oriental Insurance Co. Ltd., & Anr., 2009(1) TAC 446 (J & K). 7. Mr.V.Narsingh, learned counsel for respondent No.2 submitted that the award of interest as provided under Section 171 of the Act from a 5 particular date is the discretion of the Tribunal. It cannot be claimed as a matter of right and the Tribunal is under no obligation to award interest as described by the claimants. Mr. Narsingh relied on a decision of the Delhi High Court in Vidhya Kakkar & Ors. Vs. Delhi Transport Corporation & Anr., 1989 ACJ 1088 in support of his contention that the Tribunal should grant interest from the date of filing of the application unless it is found that the claimants are not responsible for protracting the case and causing the delay. 8. On the rival contentions the questions that fall for consideration by this Court are as follows: (i) Whether the Tribunal is justified in applying multiplier 11 in case of the deceased who was 50 years 9 months and 19 days old on the date of accident? (ii) Whether Tribunal is justified in awarding compensation of Rs.4,000/- towards funeral expenses, loss of consortium and loss of estate instead of Rs.9,500/- as provided in second Schedule attached to the Act? (iii) Whether the Tribunal is justified in holding that the claimants are entitled to get interest with effect from 25.09.2007 in stead of the date of filing of the claim petition? (iv) Whether the Tribunal is justified in awarding interest @ of 6% in stead of 9% per annum as claimed by the appellants? 9. So far as the first question is concerned, it is not in dispute that at the time of death of the deceased in the vehicular accident he was 50 years 9 month and 19 days old. According to the appellants the same 6 should be treated as 50 years completed and multiplier 13 should have been applied in the instant case, which is the appropriate multiplier and the Tribunal is not justified in applying multiplier 11. Though the appellants submitted that as per the statute, the appropriate multiplier is 13, they have not cited any specific provision of the Statute. As it appears, Mr.Samantaray refers to the multiplier referred to in the second Schedule of the Act, which provides different multipliers to different age groups. As per the said Schedule, 13 multiplier is applicable where the age of the victim is “above 45 years but not exceeding 50 years” and 11 multiplier is applicable where the age of the victim is “above 50 years but not exceeding 55 years”. Since in the present case, admittedly, the age of the victim exceeded 50 years by 9 months and 19 days, the appropriate multiplier is 11 and not 13. Therefore, this Court is of the view that learned Tribunal is justified in applying multiplier 11 in the instant case. 10. Question No.(ii) relates to the award of compensation towards funeral expenses, loss of consortium and loss of estate. While the Tribunal awarded the same at Rs.4,000/- the claim of the appellants is that the same should be Rs.9,500/-. As it appears, the learned Tribunal applied multiplier 11 as provided in the second Schedule attached to the Act. Therefore, the learned Tribunal is expected to follow the same Schedule while awarding compensation towards funeral expenses, loss of consortium and loss of estate. The second Schedule provides compensation of Rs.2,000/- for funeral expenses, Rs.5,000/- for loss of consortium if the beneficiary is the spouse and Rs.2,500/- towards loss of estate. In the 7 present case, appellant No.1-Bhabani Mandal is the wife of the deceased Anil Kumar Mandal. Thus, in all fairness, Rs.9,500/- should have been allowed under the above heads and not Rs.4,000/-, as awarded by the learned Tribunal, which this Court directs. 11. The third question relates to the dispute relating to the date from which the interest should be allowed in terms of Section 171 of the MV Act. For better appreciation, Section 171 of the MV Act is extracted hereunder:- “171. Award of interest where any claim is allowed—Where any Claims Tribunal allows a claim for compensation made under this Act such tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” The use of word ‘may’ in Section 171 makes it clear that the award of interest falls within the discretion of the Tribunal. Needless to say that duty is cast on the Tribunal to exercise such discretion judicially in accordance with the recognized principles. Payment of interest under the statute is provided for deprivation of the use of the money due to the claimants. Therefore, Section 171 extends the date till the date of filing of claim petition before the Tribunal from which interest can be allowed. This Court in New India Assurance Co. Ltd. V. Surjyamoni Padhi, 1980 TAC 98(Ori.) held that Section171 makes a provision for the Court to allow interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The Allahabad High Court in Ramesh Chandra-v- 8 Randhir Singh, AIR 1977 All. 330 held that Section 171 of the M.V. Act provides for interest to be paid for the period between making of the claim and the date of payment of compensation. It has a dual purpose, namely (i) to compensate the claimant for delayed payment of compensation and (ii) to coerce the person/persons who have to pay compensation, so that may not delay the payment. 12. It is true that if the claimants are responsible for protracting the case and causing delay they are not entitled to the interest for the period of delay caused by them in disposal of the case. If the Tribunal deprives any claimants from getting interest for any period on the ground that the claimant is responsible for delay and latches, the Tribunal must record the findings with relevant dates in order sheet to show how the claimants are responsible for delay. In absence of such positive finding, in regard to the responsibility of claimants, interest must be awarded from the date of application. 13. In the instant case, the learned Tribunal instead of allowing interest from the date of filing of the claim petition has directed the opposite party-Insurance Company to pay interest from 25.09.2007 on the ground that the proceeding did not linger due to laches of the petitioners from that date, but there is no positive finding with reference to the order sheet as to how the petitioners are responsible for causing delay in disposal of the case prior to 25.09.2007. In absence of such positive finding, the claimants are entitled to get the interest from the date of filing of the claim petition. 9 14. The next question is whether Tribunal is justified in awarding 6% interest per annum on the amount of compensation in stead of 9% per annum as claimed by the claimant-appellants. Though the appellant- claimants are claiming to get interest at the rate of 9% per annum, they have not adduced any evidence in support of their claim. The Tribunal has also not assigned any reason as to why it has awarded 6% interest per annum on the amount of compensation. Considering the fact that the accident in question took place in November, 2005, this Court feels that the interest at the rate of 7.5% per annum will be just and proper in the facts and circumstances of the case. 15. In view of the above, the opposite party No.2-Insurance Company is directed to deposit compensation of Rs.9,06,968/- (Rs.8,97,468/- + Rs.9,500/-) before the Tribunal along with 7.5% interest per annum from the date of filing of the claim petition till the date of its deposit within eight weeks from today. 16. On deposit of the amount of compensation along with interest as indicated above, the Tribunal shall disburse the same to the claimants in the manner it has directed in its order. 17. In the result, the MACA is allowed with the above observations/ directions. ……………………... B.N.Mahapatra, J. 10 Orissa High Court, Cuttack Dated 22nd July, 2011/ss/skj/ssd