HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri SunU Kumar Sinha. J. M.A.JITpJJlSO of 2005 The Union of India Versus Arvind Kumar and others JUDGMENT For consideration Sd7- Sunil Kumar Sinha Judge Hon'ble Shri Justice Rajeev Gupta ^_o^/r^- Sd/- Chief Justice •V/ ^"/ ~——" Post for J' /..—.. Sd/- "juage" 2-'2-/02/2008 •i " t-. i: 'lu ®.;t»..:i..i^ "tu.'i1^' ^,,-sS..UIMnifc <!>'.- HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Rajeev Gupta, C.J. fis Hon'ble.Shn SyaU Kumar Sinha, J. M.A.No. 1150 of 2005 APPELLANTS RESPONDENTS i g'jf']]; The Union of India, through The Divisional Railway Manager, S.E.C. Railway, Bilaspur. yersus 1. Arvind Rr. S/o. not known, aged about 40 years, truck driver, through, The Sr. D.E.E., T.R.D., S.E.C.Rly., Bilaspur. , .(Appellant's Driver) 2. Babulal Sharma S/o. Ram Kr. Sharma R/o. Near Gouri Shankar Mandir, Raigarh, (C.G.) (Owner of other truck) 3. Naresh Singh S/o. Chain Singh Rajput, aged about 32 yrs., truck-driver, R/o. Kotara Road, Raigarh, (C.G.) . .(Driver of other truck) 4. New India Assurance Co. Ltd., through Its Divisional Manager, D.0., Rajendra Nagar Chowk, Link Road, Bilaspur, (C.G.) .(Insurer ofother truck) 5. SmtD. Vinita, W/o. Late D. Ram Babu, aged about 30 yrs., 6. Ku. D. Niharika D/o. Late D. Ram Babu, aged about 14 yrs., 7. Ku. D. Aishwarya, aged about 10 yrs., D/o. Late D. Rara Babu, Respondents No. 6 and 7, both minors, through natural guardian/mother, Smt. D. Vinita (Respondent No.5), Respondents No. 5 to 7, all R/o. 152, Housing Board Colony, Devri Khurd, Bilaspur (C.G.) .(Claimants) M.A,NoJ15Q_of2005 (Appeal under Section 173 of the Motor Vehicles Act. 19881 Appearance: Smt. Hamida Siddiqui, learned counsel for the appellant. Shri N.K. Agrawal, Sr. Counsel with Shri Q. Aziz, leamed counsel for respondent No.4. Shri Mirza Kesar Baig, learned counsel for respondents No. 5 to 7. JUDGMBNT (^.02.2008) Following judgment of the Court was delivered by Sunil Kuniar Sinha, J, (1) Being aggrieved with the award dated 10.8.2005 passed by the Addl. Motor Accident Claims Tribunal, Bilaspur, in Claim Case No.193/2004, owner of the offending vehicle i.e., Union of India, has preferred this appeal u/s 173 of the Motor Vehicles Act 1988. By the impugned award, the Claims Tribunal has awarded a sum of Rs.4,14,010/- to the claimants along with interest @ Rs.6% per annum from the date of passing of the award till its realization, on account of death of deceased D. Rambabu, who was the husband ofclaimant No.l and father ofclaimants no.2 85 3. (2) The brief facts are that on the fateful day i.e., 17.10.1998 deceased Rambabu was in regular employment of the appellant as he was working as a Kalasi (helper) in P.S.I. Traction Foreman Unit, S.E. Railway, Bilaspur. On 17.10.1998 when he was on duty in Truck No.M.P.26-D/4021, driven by respondent no.l, the said truck met with an accident as it collided with another truck bearing No.M.P. 26D 1363 which was in stationary condition. Due to the said accident, the deceased died on the spot. ^:.; ,.S<!%. r€.^3\ ^^•'Ulss. 1 iv "9 Sl \^-y/ M.A. No.ll 50 of2005 *-7^ (3) The claimants filed claini petition pleading that the deceased was earning Rs.18,229/- per raonth as his salary and was also earning Rs.3000/- p.m. on account of giving foot-ball training. They claimed Rs.30,57,048/- on account of loss of eaming; Rs.1,00,000/- on account of expenses of last rituals, Rs.1,75,000/- on account of loss of consortium; and Rs.10,00,000/- on account ofloss ofincrease in future eaming. In this way, a total sum of Rs.43,32,048/- was claimed by them along with interest @ 28% per annum. (4) The appellant, while admitting the factum of accident and involvement of the offending vehicle, denied the quantum of damages assessed and claimed by the claimants. Apart from the above, it also contended that since the death of the deceased occurred due to accident arising out of and in course of his employment with the appellant as Kalasi in a Railway truck, an aniount of Rs.2,11,790/- was already deposited by them with the Commissioner under the Workmen's Compensation Act, 1923 on 06.10.1999 and the same was duly received by the claimants, therefore, this claim petition filed under the provisions of the Motor Vehicles Act, 1988 was not maintainable. (5) The other respondents also filed their formal replies. (6) On the above pleadings, leamed claims Tribunal framed various issues and after recording evidence of the parties, it recorded the fmdings that the accident occurred on account of rash and negligent driving of the offending truck; even after receiving the amount of compensation under the Workmens ',? ^:. ^^s ''^:;'lj .^••/ ^MA.No. 1150 of2005 fb Compensation Act, 1923, the claim petition under the Motor Vehicles Act 1988 was maintainable; and the annual incorae of the deceased was Rs.54,600/-. Further after deducting l/3rd from the above amount on account of personal expenses of the deceased, the Tribunal determined the annual dependency in sum of Rs.36,400/-. Appl^ng the multiplier of 17 to the said annual dependency, a sum ofRs.6,18.800/- was worked out on account of loss of earnings of the deceased. Apart from the above, Rs.7,000/- was also allowed under the other permissible heads and a total sum of Rs.6,25,800/- was determined as the amount of compensation payable to the claimants. Adjusting the amount of Rs.2,11,790/- in 'the aforesaid amount of Rs.6,25,800/-, fmal amount of Rs.4,14,010/- along with interest @ 6% per annum. from the date of award, that is from 10.8.2005, till its realizadon was awarded in favour of the claimants. (7) Leamed counsel for the appellant argued that the Claims Tribunal erred in law by holding that even after receiving the payment under the Workmen's Compensation Act 1923, the claim petition filed under the Motor Vehicles Act 1988 was maintainable. She referred to the provisions of Section 167 of the Motor Vehicles Act. She vehemently argued that once the claimants received the amount of compensation under the Act of 1923, they were not entitled to receive any amount under the Act of 1988 as they cannot avail both the provisions for claiming the compensation on account of death of the deceased. She secondly argued that the multiplier used by the Tribunal was not just and proper and looking to the decision rendered by the Apex Court in the matter of M.A.No.l 150 of2005 New India Assurance Co. Ltd., -Vs- Smt. Kalpana & others. 2007 AER SCW 1316, a proper multiplier would have been 13 in this case. (8) On the other hand, learned counsel for the claimants supported the award passed by the claims Tribunal. (9) We have heard learned counsel for the parties at length and have also perused the records of the Claims Tribunal. (10) So far as the first question regarding maintainability of the clain-i petition with reference to Section 167 of the Act 1988 is concemed, section 167 provides option regarding claims for compensation in certain cases. It provides that where the death of, or bodily injury to, any person gives rise to a claim for compensation under the Motor Vehicles Act 1988 and it also gives such right under the Worknien's Compensation Act 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts, but not under both. Admittedly, this secdon begins with a non-obstante clause like "notwithstanding anything contained in the Workmen's Compensation Act, 1923". Principally when a non-obstante clause is used at the beginning of the section that is with a view to give enacting part of the section, in case of conflict, an overriding effect over the provision or the Act mentioned in the non-obstante clause. Th^t is to say that inspite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the \ M.A.No. 1150 of2005 provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment. (11) It is always to be kept in inind that the phrase "notwithstanding an^hing in" is used in contradistinction to the phrase "subject to". Apart from the above, it is a principle of statutory Interpretation that non-obstante clause inust also be distinguished from the phrase "without prejudice". In the Motor Vehicles Act, 1988 vide section 167, the non-obstante clause regarding provisions of Workmen's Compensation Act, 1923 has been used with a phraseology of words "without prejudice . This cleariy means that this provision enacted "without prejudice" to another provision has not the effect of affecting the operation of the other provision and any acdon taken under it must not be inconsistent with such other provision and the person aggrieved has a right to claim such compensation under either of the two Acts and the only iinpediment is in the last part of the Section that he/she cannot claim such compensation under both the Acts. (12) In the matter of Harivadan SIaneklal Modi and another - vs- Chandreisinh Chhatarsinh Pamiar and others, AQ? 1988 Gu/rat Pg.69, a Division Bench of Gujrat High Court held that Under S.110-AA of the Motor Vehicles act the person entitled to compensation "may claim" such compensation under either the Workmen's Compensation Act or the Motor Vehicles Act but not both. The words "may claim" clearly indicate that the person endtled to compensation must take a conscious decision and opt for compensation under one or the other statutes. Deposit of M.A.No.l 150 of2005 !^ ^-.JJ '<'&. \>^wsf:f' ./'y compensation money by a third party in discharge of his obligation under the Workmen's Compensation Act can never tantamount to the option being exercised by the person entitled to corapensation. Hence receipt of compensation money deposited by the employer in discharge of his obligation under S.4 of the Workmen's Compensation Act without the appellants having made any claim for compensation under that statute cannot debar the appellants from claiming compensation under the Motor Vehicles Act by virtue of S.110-AA thereof. Such deposit of compensation money and receipt thereof by the dependents of the deceased will not amount to making a claim by the dependents of the deceased under the provisions of the Workmen's Compensation Act. (13) In the present case, the proceedings before the Commissioner for Workmen's Compensation would show that the clainiants have never filed any application claiming compensation under the provisions of the Workmen's Compensation Act, 1923. In fact, after fhe death of the deceased the Union of India (Railways), on their own, deposited a sum of Rs.2,11,790/- with the accounts of the Commissioner, Workmen's Compensation, under the provisions of section 4 of the Workmen's Compensation Act and after such deposit, the notices were issued to the dependents and ultimately without any claim being preferred by the dependents/claimants, the aforesaid amount was paid to them by the Commissioner for Workmen's Compensation. Therefore, it is clear that the amount of Rs.2,11,790/- was paid to the claimants through the Commissioner for Workmen's Compensation, without the claimants having made any claim for ^ffi^ 1 !< - M.A.NO. 1150 of 2005 compensation under the Workmen's Coinpensation Act, therefore, even after receiving the ainount of compensation so disbursed, it cannot be said that the aforesaid amount was disbursed to them on their claim being preferred before the Commissioner for Workmen's Compensation and in the facts and circumstances of this case, even after receiving the ainount in such manner, the claimants were entitled to file a claim petition before the Claims Tribunal and their such petition was maintainable u/s 166 of the Motor Vehicles Act, 1988. We do not find any force in the argunients advanced by leamed counsel for the appellant and the same cannot be accepted. (14) So far as the arguments regarding quantum of compensation and using of multiplier is concerned, in the matter of Smt. Kalpana (Supra) the Supreme Court held that "The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last." In the said case, the deceased was aged about 33 years and was driving a Taxi. The annual dependency was worked out in sum of Rs.36,000/- and applying the multiplier of 13 as the age of M.A.No.l 150 of2005 -•i, ';.,. ^-.^1 deceased was 33 years, the coinpensation was worked to the tune of Rs.4,68,000/- along with interest @ 6% per annum. Almost similar circumstances are here. Therefore, the multiplier of 17 used by the Claims Tribunal cannot be sustained. Applying the principles laid down by the Apex Court in the matter of Smt. Kalpana (supra), we are satisfied that a multiplier of 13 would have been used by the claims Tribunal in place of 17. (15) Therefore, we direct that in the amount of annual dependency of Rs.36,400/-, a multiplier of 13 shall be used, which would be worked out at Rs.4,73,200/-. Over and above, the claimants would be entitled to receive Rs.7,000/- under the other permissible heads which has been awarded by the Tribunal, therefore, they would be entitled to receive a total sum of Rs.4,73,200 plus Rs.7,000y- = Rs.4,80,200/-. In the above amount, the amount of Rs.2,11,790/- shall be deducted and the final amount now payable to the claimants would be Rs.2,68,410/-. On this amount, the claimants shall be entitled to receive interest @ Rs.6% per anniun from the date of award till the actual payment is made as directed by the Claims Tribunal. (16) In the result, the appeal is partly allowed. The quantum of damages awarded by the Claims Tribunal is modified to the extent indicated above. (17) There shall be no order as to the costs. Sd/- Sunil Kumar Sinha Judge Rsjo