ORISSA HIGH COURT: CUTTACK. M.A. NO.50 OF 1999 From an award dated 26.9.1998 passed by the 1st Addl. District Judge- cum-1st Motor Accident Claims Tribunal, Cuttack, in Misc. Case No. 453 of 1996. ----- Smt.Gurei Dei … … Appellants & another -Versus- Divisional Manager, … … Respondents M/s.National Insurance Co.Ltd. & another. For Appellants : Dr.Tahali Charan Mohanty M/s.S.C.Swain,S.Mohanty, A.K.Rout,S.K.Pattanaik & Mrs.Babita Mohanty For Respondents : Mr.N.Ch.Mishra (R-1) ---------- P R E S E N T: THE HONOURABLE MR. JUSTICE B.N.MAHAPATRA Heard and disposed of on 19.9.2011 ______________________________________________________________________________ B.N.MAHAPATRA, J. On the prayer of Dr.Mohanty, learned Senior Advocate appearing on behalf of the claimant-appellants, service of notice on Respondent no.2-owner of the vehicle is dispensed with at his risk. Though the matter was listed for admission, on being requested by Dr.Mohanty, it is taken up for final disposal with the consent of Mr.N.Ch.Mishra, learned counsel appearing for respondent No.1- Divisional Manager, M/s National Insurance Company Limited. 2. 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 26.9.1998 passed by the 1st Addl. District Judge-cum-1st Motor Accident Claims Tribunal,(hereinafter referred to as the ‘Tribunal’) Cuttack, in Misc. Case No.453 of 1996 on the ground that the amount of compensation awarded by the Tribunal is on the lower side. 3. The facts of the case are that on 2.5.1996 at about 3.30.P.M. on N.H.42 while the deceased was going from his residence to Choudwar in his Spark Motor Cycle, at Dhumabati Chhak the offending vehicle bearing Registration No.ORY-1925 dashed against him. As a result of said accident, the deceased sustained injuries and succumbed to the injuries at the spot. The further case of the claimants is that the deceased was earning Rs.4,500/- per month as a mechanic. The claimants, who are the parents of the deceased, claiming a sum of Rs.2,00,000/- towards compensation filed a claim petition before the Tribunal. 4. Before the Tribunal, the owner of the vehicle was set ex parte. The Insurance Company filed its written statements denying all the averments made in the claim application and pleaded that the amount of compensation claimed by the claimants is high, exorbitant and without any basis. 5. On the pleadings of the parties, the Tribunal framed the following issues:- (i) Whether due to rash and negligent driving of the driver of the vehicle ORY-1925 Bus, the accident 2 took place and on that accident, one Basanta Pani succumbed to the injuries? (ii) Whether the petitioners are entitled to get compensation, if so, what would be the extent? (iii) Whether all the opposite parties or any of the opposite party is/are liable to pay compensation? (iv) To what relief, if any, petitioners are entitled? 6. In order to prove their case, the claimant-appellants examined two witnesses, of whom Appellant no.1, the father of the deceased has been examined as P.W.1. A co-villager of the deceased has been examined as P.W.2. The claimants produced three documents which were admitted in to evidence and marked as Exts.1 to 3. The Insurance Company neither examined any witness nor produced any documents on its behalf. 7. After taking into consideration both oral and documentary evidence, the learned Tribunal came to the conclusion that the accident took place due to the rash and negligent driving of driver of the offending vehicle, as a result of which the deceased died at the spot. Taking monthly income of the deceased at Rs.750/- and deducting 1/3rd of the income towards personal expenses, the learned Tribunal determined his yearly dependency at Rs.6,000/-. Since the deceased was aged 26 years at the 3 time of accident, the learned Tribunal applied 16 multiplier and computed the amount of compensation at Rs.96,000/-. Besides the above, the learned Tribunal further awarded a sum of Rs.10,000/-under the head consortium, pains and sufferings as the deceased was a young man. In total, the learned Tribunal awarded a sum of Rs.1,06,000/-. 8. Dr. Mohanty, learned Senior Advocate appearing on behalf of the claimant-appellants submits that he has no dispute over the multiplier adopted by the Tribunal. His only dispute is regarding determination of the annual income of the deceased. According to him, notional income of Rs.15,000/- per annum has been prescribed in the Second Schedule of the Act in the case of non-earning person. He further submits that in view of the decision of the Hon’ble Supreme Court in the case of Laxmi Devi & Ors. -v-Mohammad Tabbar & Anr., 2008 (2) T.A.C. 394 (S.C.), the annual income of the deceased should have been taken as Rs.36,000/- for the purpose of determination of just compensation. 9. Per contra, Mr.N.Ch.Mishra, learned counsel appearing on behalf of the Insurance Company submits that the claimant-appellants have miserably failed to establish the annual income of the deceased. The learned Tribunal has also categorically held that the claimants did not adduce any evidence in support of their contention that the deceased was running a two wheeler garage engaging two assistants. Therefore, the learned tribunal is justified in taking into consideration the monthly income of the deceased at Rs.750/-. Mr.Mishra further submits that since 4 the parents in this case are the claimants and the deceased was a bachelor, the multiplier should be applied taking the age of the claimants into consideration. Mr. Mishra further submits that since at the time of death of the deceased age of the mother was 50 years and that of the father was 57 years, the appropriate multiplier is 11. In support of his contention, Mr. Mishra placed reliance on the judgment of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Shyam Singh and others reported in 2011(3) T.A.C. 625 (S.C.) and judgment of this Court in the case of Divisional Manager, Oriental Insurance Co. Ltd., Bhubaneswar Vs. Sri Kalandi Charan Jena & Ors., [2007 (1) T.A.C. 252 (Ori.)] 10. In reply Dr. Mohanty, learned counsel submits that in view of the judgment of the Hon’ble Supreme Court in P.S. Somnathan & others v. District Insurance Officer and another, reported in 2011 AIR SCW 1313, the age of the deceased should be taken into consideration for the purpose of applying the multiplier. 11. On the rival contentions of the parties, the following questions fall for consideration by this Court:- (i) Whether the monthly income determined by the Tribunal at Rs.750/- is just and proper? (ii) Whether in case of death of a bachelor in vehicular accident the age of the deceased or the age of the parents of the deceased should be taken into consideration for the purpose of determining the appropriate multiplier? 5 12. So far as the first question is concerned, it is not in dispute that the deceased was aged 26 years at the time of his death. Admittedly, except the deposition of the father, P.W.1, there was no other corroborative evidence in support of his contention of the claimants that the deceased was running a two wheeler garage engaging two assistants under him. Before this Court, Dr.Mohanty also could not adduce any evidence in support of the contention that the deceased was running a two wheeler garage. The Second Schedule of the M.V. Act prescribes Rs.15,000/-as annual income in case of a non-earning person. This Second Schedule was prescribed in the year 1994. In the present case, the accident occurred in the year 1996. Therefore, the annual income of the deceased is taken at Rs.15,000/- as prescribed in Second Schedule of the M.V. Act for the purpose of determining the amount of compensation. The ratio of the judgment of the Hon’ble Supreme Court in the case of Laxmi Devi (supra) is not adopted for the reason that in that case the accident took place in the year 2004, but in the present case the accident took place in the year 1996. 13. The second question that arises for consideration is regarding the application of correct multiplier. Admittedly, in the present case, the deceased was a bachelor and he was 26 years old at the time of death. The Hon’ble Supreme Court in the case of P.S. Somnathan (supra) held that in case of death of a bachelor his age at the time of death should be taken into account for the purpose of applying multiplier. The Hon’ble Supreme Court recently in the case of Shyam Singh (supra) held that in case of death of a 6 bachelor in vehicular accident the multiplier has to be determined by taking into account the age of the deceased or claimants whichever is higher. In that case the Hon’ble Supreme Court held that the Tribunal had rightly applied the multiplier of 8 by taking the average age of the parents of the deceased who were 55 and 56 years. Though the judgment of the Hon’ble Supreme Court in P.S. Somnathan (supra) delivered on 14.02.2011 is cited to contend that the age of the deceased is to be taken for fixing the multiplier, in a subsequent judgment of Coordinate Strength of the Hon’ble Supreme Court in the case of Shyam Singh (supra) delivered on 4th July, 2011 it has been decided that the multiplier is to be determined by taking into account the age of the deceased or claimants whichever is higher. This being a judgment delivered on a later date, I respectfully follow the ratio of the judgment in Shyam Singh’s case (supra). Therefore, the average age of the parents will be taken into account for the purpose of fixing the appropriate multiplier. It is not in dispute that at the time of death of the deceased, age of the mother was 50 years and age of the father was 57 years. If an average is taken, the appropriate multiplier comes to 11. 14. Taking the annual income of the deceased at Rs.15,000/- and applying multiplier 11 and deducting 1/3rd therefrom. towards personal expenses, the amount of compensation comes to Rs.1,10,000/-. The Tribunal has awarded Rs.10,000/- under the head of consortium, pain and sufferings. Thus, the total compensation comes to Rs.1,20,000/-. 7 15. In view of the above, this Court directs respondent No.1 Insurance Company to pay a compensation of Rs.1,20,000/- to the claimants, since undisputedly at the relevant time the offending vehicle was covered by a valid Insurance policy. Therefore, respondent No.1-the Insurance Company is directed to deposit the above amount of compensation along with interest @ 9% per annum from the date of accident till the date of payment, after deducting therefrom the amount already paid. 16. The respondent No.1-Insurance Company is directed to deposit the amount of compensation along with interest, as directed above, before the Tribunal within a period of four weeks from today. It is stated by Dr.Mohanty, learned counsel for the appellants that in the meantime the father of the deceased has expired. Therefore, the amount of compensation as stated above shall be disbursed by the Tribunal to the mother of the deceased on proper identification. 17. With the above observations and directions the appeal is disposed of. ..……………………. B.N.Mahapatra,J. Orissa High Court, Cuttack The 19th September, 2011/Bose. 8