ORIENTAL INSURANCE CO LTD Vs. SHAJU JOSEPH

JUDGEMENT

(1.) This appeal is filed by the Insurance Company against the award of the Motor Accident Claims Tribunal in a claim petition filed under Section 163A of the Motor Vehicles Act (in short 'the Act'). The son of the first and second claimants (respondents 5 and 6 in this appeal) sustained fatal injuries in a motor accident on 9th February, 2004. According to the claimants, while the deceased was proceeding in a motor cycle bearing Reg. No. KL. 7U/8423 from Thodupuzha to Vazhakulam for official purpose, a bus bearing Reg. No. KL. 6/8647 stopped ahead of the motor cycle all of a sudden and thereby it hit on the left back side of the bus and he sustained fatal injuries and succumbed to the injuries. According to the claimants, the bus driver was negligent. The driver, owner and insurer of the bus were arrayed as respondents 1 to 3. The fourth respondent was the owner of the motor cycle and the fifth respondent was the insurer of the motor cycle in which the deceased was travelling. The Tribunal calculated compensation as per the structured formula. An award was passed directing payment of the sum of Rs. 2,76,500 with interest thereon at 8% per annum from the date of application as compensation. The insurer of the bus as well as insurer of the motor cycle were directed to pay the compensation in equal moieties. The insurer of the motor cycle did not file any appeal, but, the insurer of the bus has filed this appeal, challenging the said award.

(2.) The main contention of the Insurance Company is that the Tribunal erred in taking 17 as the multiplier considering the age of the motor accident victim, when the first claimant, father of the deceased, was aged 55 years and the second claimant, mother of the deceased, was aged 50 years. The sister and brothers of the deceased were aged between 25 and 28 years. According to the Insurance Company, even if the average age of father and mother is taken, only 11 can be taken as the multiplier and not 17. The deceased was aged 22 years at the time of accident. The age of the victim is not disputed. The Tribunal assessed Rs. 2,000 as the monthly income. The accident occurred when he was going for official purpose. Apart from the oral evidence of the claimants, no other evidence was adduced to prove that the deceased had an income of Rs. 3,000 per month as claimed by the claimants and the Tribunal has fixed only Rs. 2,000 as the monthly income considering the fact that the deceased was a young man aged 22 years and was employed. We are of the opinion that the monthly income fixed by the Tribunal needs no interference. As already stated, the major dispute is regarding the multiplier taken.

(3.) It is well settled law that if a claim is filed under Section 166 of the Act, the multiplier fixed under Section 163A need be considered only for guidance and if the deceased is unmarried, normally, the age of the parents is to be looked into. It was held in various cases that even in claims filed under Section 166, the Second Schedule framed for fixing compensation under Section 163A can be taken for guidance and in exceptional circumstances changes can be made (see three-Member Bench decision of the Apex Court in Smt. Supe Dei and Others v. M/s. National Insurance Company Ltd. & Anr., 2005 1 ACC 63, Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr., 2003 1 ACC 352, and A.P.S.R.T.C. v. M. Pentaiah Chary, 2007 4 ACC 1 It was also held that if the motor accident victim is unmarried, for fixing the multiplier, the age of the claimants as well as motor accident victim can be looked into and the lowest multiplier can be adopted. [See Maqbool Pasha and Another v. Irfan Ahammed & Anr., 2002 5 JT 118. The Supreme Court has also held that if a very high multiplicand is taken, a lower multiplier can be taken. The Supreme Court in United India Insurance Company Ltd. v. Patricia Jean Mahajan and Others, 2002 2 ACC 460, held that except in very rare cases, the multiplier shown in Second Schedule should not be deviated from. The other methods, which were in vogue prior to the introduction of the multiplier system, were held to be no more good. It was also held that though the Second Schedule is a safe guide for the purpose of calculation of the amount of compensation, in special circumstances, it can be changed and if the multiplicand is very high, a lower multiplier can be taken. In that case, the deceased was employed abroad. The income earned by him, considering the exchange value, was very high. Therefore, the Supreme Court adopted a slightly lower multiplier than that fixed under the Second Schedule. The question of taking the Second Schedule for guidance was considered in all these decisions where claims were filed under Section 166. In case of Section 163A, compensation amount is fixed in fatal case and the Court is bound to take the age of the victim, the monthly income and award the fixed amount mentioned in the Second Schedule as compensation. It has no option.