Bombay High Court: The Bench of Sunil K. Kotwal, J. dismissed an appeal while modifying the award passed by the Motor Accident Claims Tribunal, Latur (MACT).
The present appeal was filed by the New India Assurance Company Ltd. – respondent 2 against the judgment and award passed by Motor Accident Claims Tribunal, Latur. Tribunal had awarded total compensation of Rs 5,96,000 inclusive of “no-fault liability” compensation; with interest thereon @7.5% p.a.
Facts of the case are that the deceased while proceeding on his motorcyclye along with his friend was dashed by the offending tractor from the opposite direction which resulted in his death. It has been stated that the accident occurred due to rash and negligent driving, due to which the claim petition for compensation under Section 166 Motor Vehicles Act was filed.
Mr S.G. Chapalgaonkar, counsel for the appellant submitted that the present challenge for the award is preferred on two grounds that the accident occurred due to contributory negligence of the deceased and exorbitant compensation has been awarded by the Tribunal. Further, it has been stated by the counsel for the appellant that, Tribunal without any evidence assessed the notional income of the deceased to be Rs 4,500 per month and awarded exorbitant compensation. As no cross-objection or cross-appeal was filed, the Court cannot enhance the compensation and only determine fair and reasonable compensation. He cited the decision of the Supreme Court in Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar; (2015) 4 SCC 237, and stated that, Supreme Court exercise jurisdiction under Article 142 of the Constitution of India while enhancing compensation in absence of cross-objection and cross-appeal by the claimant.
Further counsel for the claimants Mr N.D. Kendre, Advocate submitted that the Tribunal erroneously applied the multiplier of “16” when the deceased was only 30 years old and as per the decision in Sarla Verma v. DTC, (2009) 6 SCC 121, multiplier of “17” is applicable.
Thus the High Court examined all the contentions place before it and further analysed and noted that, the insurance company did not examine any eye witness of the accident which leaves them to examine the police papers in order to determine if the plea for contributory negligence by the insurance company can be accepted or not. Court through the FIR copy found out that the accident occurred due to rash and negligent driving by the driver of the offending tractor.
“While deciding quantum of compensation, the age of the deceased plays an important role.”
It was clear by placing reliance on the above-stated decision of the Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121, that multiplier of “17” would be applicable in the present set of circumstances.
Further, while keeping in consideration the age and personal skill of the deceased, notional income as determined by the tribunal was just and reasonable. Taking up the decision from the case National Insurance Co. Ltd. v. Pranay Sethi; (2017) 16 SCC 680, 40% income is to be added in the annual income of the deceased towards loss of future prospect.
As the appeal was filed by the Insurance Company, fruits of awards passed by the Tribunal won’t be received by the claimant, which leads them to an entitlement of compensation only at 9% p.a. interest.
Therefore, the conclusion that comes out from the present case is that the High Court cannot exercise jurisdiction under Article 142 of the Constitution of India as done by the Apex Court stated above, the only jurisdiction that can be exercised by the High Court is under Order 41 Rule 33 CPC, which would enhance the rate of interest to the extent of 9% p.a and the same to be modified by the tribunal in the present case.[New India Assurance Co. Ltd. v. Sunita, 2019 SCC OnLine Bom 2, decided on 04-1-2019]
