Case: National Insurance Company Limited Vs. Mrs. Samira Fernandes &amp; Others

2. The learned MACT (Motor Accidents Claims Tribunal) has awarded compensation of Rs. 21,60,000/with interest at the rate of 6% per annum, on a sum of Rs. 3,48,896/(excluding future loss of dependency) from the date of the petition till the entire amount is paid.3. The accident took place on 6/12/2001 between a scooter driven by the deceased and truck no. KA 213/498 driven by respondent no.4, owned by respondent no.5 and insured with the appellant herein, who was respondent no.3, in the claim petition.4. The claim petition was filed by the claimants (respondent nos. 1 to 3) who are the widow and children of the deceased Savio Nigel Fernandes. Claimant no.1 was 32 years of age, claimant no.2 was 4 years of age, and claimant no.3 was 2 years of age.5. The deceased was 32 years of age. The deceased was working as a Junior Manager in the Production Department of the German Remedies Ltd. To prove the income of the deceased the claimants had examined the Senior Manager in the Department of Personnel Administration of the said Company and who had given the details of the salary drawn by the deceased. He had categorically stated that the total salary of the deceased was Rs. 2,37,627/per year and in addition, the deceased was getting medical reimbursement of Rs. 6,250/and that he was given average raise of 20.59% in the salary for the yearHe had also stated that the deceased was earning a basic pay of Rs. 9,950/and was getting HRA of Rs.educational allowance of Rs. 600/and conveyance allowance of Rs.thus a total amount of Rs. 13,640/per month besides Rs. 14,925/as LTA and Rs. 20,000/as bonus per year. He had produced the certificate issued by the Company at Exhibit 44.6. Nevertheless, the learned MACT came to the conclusion that the deceased was drawing a salary of Rs. 18,965/including conveyance allowance and further held that conveyance allowance could not be considered for the purpose of computing compensation. The learned MACT therefore considered monthly income of deceased as Rs. 15,792/and then deducted 1/3rd towards personal expenses and taking the multiplier of 17, worked out the loss of dependency at Rs.The learned MACT awarded a sum of Rs. 5,000/towards loss of consortium, Rs. 2,000/towards funeral expenses, Rs. 2,000/for transport and other miscellaneous expenses and Rs. 3,000/towards loss of an estate and thus awarded a compensation of Rs.

Reasoning:
In the absence of anyThe claimants had also claimed an amount of Rs. 25,000/on account of damage to the scooter of the deceased, and, had examined a chartered mechanical engineer to support their claim and who, upon inspection, had found that the vehicle was badly damaged, beyond repairs and he had assessed total loss at Rs.The learned MACT is totally silent on this aspect, and, in our view, the claimants would be entitled to recover the said sum oftaking overall view of the matter and considering that the claimants neither sought enhancement of the compensation before the tribunal as well as before this Court we are inclined to restrict the claim to the sum of Rs. 25,00,000/which in our view, will be just compensation payable to the claimants on account of the untimely death of the deceased in the accident considering the income and age of the deceased. Whatever has been paid to the claimants shall be deducted and the balance amount will carry interest at the rate of 8% till it is paid.18. Before concluding, we must note that this appeal could be filed by the insurer only because of lack of due diligence on the part of the learned MACT. It is now well settled that an insurer cannot file an appeal disputing the quantum of compensation unless the insurer obtains an order under Section 170 of the Act. Obtaining an order under the said section is no empty formality. Perusal of Section 170 shows that permission can be given only after recording of reasons in writing and when the tribunal is satisfied that (a) there is collusion between the person making the claim and the person against whom the claim is made, or (b) the person against whom the claim is made has failed to contest the claim.19. In this case, we find that after it was found that the driver and the owner of the vehicle had not contested the petition, an application was filed on 7/12/2004 purporting it to be an application under Section 170 of the Act and the learned MACT even without calling for a say or no objection from the claimants proceeded mechanically to grant the same without assigning any reasons. It has also come to our notice that in some cases the claimants too give no objection as a matter of course but it is the learned MACT who is expected to deal with the same irrespective of no objection given by the claimants. No objection to the application certainly would not give the tribunal jurisdiction to grant it without application of mind and giving reasons. The Apex Court in Shankarayyaanr. V/s. United India Insurance Co. Ltd.Anr. (1998 ACJ 513  ) has stated that; The provisions of Section 170 of the Act clearly show that the insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the condition precedent mentioned in the section are found to be satisfied and for that purpose the insurance company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence.In the absence of permission in that case it was held that the insurer was not entitled to file an appeal on the merits of the claim which was awarded by the tribunal.20. A Division Bench of Kerala High Court in National Insurance Co. Ltd. V/s. Mary JanetOrs. (1999 ACJ 736  ) has interpreted the expression or in between clauses (a)(b) of Section 170 of the Act as and. For the present we need only emphasize that no permission under Section 170 of the Act can be given mechanically without giving reasons in support thereof.