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2012 Supreme(Cal) 681
IN THE HIGH COURT OF CALCUTTA
Tapan Kumar Dutt and Mrinal Kanti Chaudhuri, JJ.
Phulmaya Tamang - Appellants
Vs.
Oriental Insurance Company Ltd. - Respondent
F.M.A. No. 923 of 2005
Decided On: 27.07.2012
For Appellant/Petitioner/Plaintiff: Subir Banerjee, Jayanta Banerjee and Ruxmini Basu Roy
For Respondents/Defendant:K.K. Das for Respondent No. 1
The appropriate basis for fixing the multiplier for compensation under Section 166 of the Motor Vehicles Act, 1988, particularly in cases where the victim/deceased was over 50 years old, requires further examination by a Larger Bench.
Headnote:
MOTOR VEHICLES ACT, 1988 - SECTION 166 - MULTIPLIER - FIXATION - REMAINING SERVICE PERIOD - CONSIDERATION - LARGER BENCH REFERENCE
Fact of the Case:
In a motor accident claim, the deceased was 58 years old at the time of the accident. The Tribunal applied a multiplier of 8 based on the 2nd Schedule of the Motor Vehicles Act, 1988. The Insurance Company appealed, arguing that the multiplier should have been 2 based on the remaining service period of the deceased.
Finding of the Court:
The court noted that there was a difference of opinion on whether to consider the remaining service period while fixing the multiplier for deceased persons over 50 years old. The court referred the following questions to a Larger Bench:
Issues: 1. Basis for fixing the multiplier for compensation under Section 166 of the Motor Vehicles Act, 1988. 2. Whether to fix the multiplier based on the remaining service period of the victim/deceased who died after 50 years of age.
Ratio Decidendi: The court observed that there were conflicting judgments on the issue of considering the remaining service period while fixing the multiplier. Some judgments supported applying the multiplier based on the remaining service period, while others did not. The court found it necessary to refer the issue to a Larger Bench for a comprehensive determination.
Final Decision: The court referred the following questions to a Larger Bench for consideration: 1. What would be the basis of fixing the multiplier for the purpose of deciding the amount of compensation in a proceeding under section 166 of the Motor Vehicles Act, 1988? 2. Whether or not it would be proper to fix such multiplier on the basis of the remaining period of service of the victim and/or the deceased in a case where the victim and/or the deceased had died after fifty years of age?
1. This Court has heard the learned Advocates for the respective parties. After hearing the learned Advocates for the parties, this Court is of the view that certain important questions of law have arisen in the instant case.
2. The facts of the case, briefly, are as follows:
One Maila Tamang suffered an accident on 20.12.2001 and he died. A claim petition was filed by the widow and the daughter of the said Maila Tamang, since deceased. The learned Tribunal concerned disposed of the said claim petition by judgement/award dated 1.4.2003 whereby the said learned Tribunal found that the gross income of Maila Tamang was Rs. 10,500/- per month and the deductions were Rs. 3,684. The said figure Rs. 3,6847- comprised of C.P.F. Rs. 1,074/-, C.P.F.(L) Rs. 2,500/- and P.T. Rs. 110/-. The learned Tribunal found that the said Maila Tamang died at the age of 58 years and applied the multiplier of 8 and came to the conclusion that the claimants were entitled to a compensation of Rs. 3,84,000/-. The learned Tribunal directed the Insurance Company concerned to make the payment within one month failing which the amount shall carry an interest at the rate of 9% per annum till the date of realisation.
3. Apart from the other questions of law involved in the present appeal, the learned Advocate appearing on behalf of the respondent-Insurance Company submitted that the learned Tribunal below erred in applying the multiplier of 8 in terms of the 2nd schedule of the Motor Vehicles Act, 1988 since it has already been decided in a number of cases that in cases where the deceased had crossed 50 years of age, it is fit and proper that the years remaining in service should be taken into consideration for the purpose of fixing the multiplier. According to the learned Advocate for the respondent-Insurance Company, since the victim was 58 years of age when the accident took place and the victim died, the multiplier of 2 should be applied.
4. In support of his contention the said learned Advocate cited a decision reported at 2010 (3) T.A.C. 21 (Cal.) (Smt. Rita Ghosh & Ors. vs. United India Insurance Company Ltd. & Anr.). In the said case the victim was an employee of the West Bengal State Electricity Board at the relevant point of time and was aged 51 years and it was found that he could have completed further nine years of service. An Hon'ble Division Bench of this Court was pleased to observe that the multiplier of 9 should be applied as 9 years of service was still left.
5. The said learned Advocate cited another decision reported at 2012 (3) T.A.C. 77 (Cal.) (Smt. Nanita Mishra alias Misra & Ors. vs. New India Assurance Co. Ltd. & Anr.), wherefrom it appears that the deceased was aged about 51 years and was a Central Government employee. An Hon'ble Division Bench of this Court was pleased to apply the multiplier of 9 as the unexpired period of service was 9 years.
6. The said learned Advocate cited another decision reported at 2010 (2) T.A.C. 840 (Cal.) (New India Assurance Co. Ltd. vs. Sajeda Begum & Ors.), wherefrom it appears that the deceased was a Government employee and had just seven years of service left. An Hon'ble Division Bench of this Court was pleased to observe that the learned Tribunal should have applied the multiplier of 7 instead of 11 as the victim had just seven years of service left.
7. The said learned Advocate cited another decision reported at 2009 (4) T.A.C. 446 (Cal.) (Smt. Sankari Banik & ors. vs. National Insurance Co. Ltd. & Anr.), wherefrom it appears that the deceased was aged about 54 years and was an employee of the State. It has been observed in the said reports that the deceased was due to retire at the age of 60 years and there is no illegality in applying the multiplier of 6.
8. The said learned Advocate cited another decision reported at 2009 ACJ 1336 (Bangalore Metropolitan Transport Corporation vs. Padma & Ors.), wherefrom it appears that deceased was aged about 53 years and was an employee under the State Governm
