REKHA JAIN & ANR.versusNATIONAL INSURANCE CO. LTD.

                       [2013) 10 S.C.R. 750


A                      REKHA JAIN & ANR.
                                 V.
                NATIONAL INSURANCE CO. LTD.
              (Civil Appeal Nos. 5373-5375 of 2013)
                         AUGUST 1, 2013
B
         [G.S. SINGHVI AND V. GOPALA GOWDA, JJ.]

        Motor Vehicles Act, 1988 - 149(2) and 170(b) - Fatal
  accident - Claim for compensation - Claims Tribunal awarded
C compensation of Rs.10,62,0001- after deducting 1/3rd of the
  income of the deceased towards her personal expenses and
  by applying multiplier of 11 - Appeal by the claimant as well
  as the insurer - High Court reduced the compensation to
  Rs. 8, 00, 0001- - Held: High Court wrongly interfered with the
D quantum of compensation awarded by the Tribunal -
  Moreover, the insurance company had no right to challenge
  the quantum of compensation in absence of permission from
  the Tribunal - Hence, judgment of Tribunal is restored.

       A renowned doctor lost her life in a motor accident.
E The appellants (her daughter and husband respectively)
  filed petition claiming compensation. Claims Tribunal
  granted compensation at Rs.10,62,0001- with interest @
  6% P.A. taking her income as Rs. 12,000/- p.m. by
  deducting 1/3rd out of the monthly salary towards her
F personal expenses and using multiplier of 11. The
  claimants went in appeal seeking enhancement of
  compensation amount, while insurer also filed appeal.
  High Court reduced the compensation amount to
  Rs.8,00,0001-. Hence the present appeal.
G
       Allowing the appeal, the Court

        HELD: 1. The Tribunal and the High Court have erred
    in not awarding just and reasonable compensation in
H                               750
   REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 751
                        LTD.
  favour of the appellants keeping in view the principles       A
  laid down by this Court in various judgments in the
  matters of motor accidents claims keeping in view the
  object of coropensation which will be the source of the
  maintenance for them particularly, in respect of the
  claimant, appellant no.1. The High Court instead of           B
  enhancing the compensation, though the case is made
  out in the appeal filed by the appellants for enhancement,
  has erroneously exercised its jurisdiction and has
  reduced the compensation from Rs.10,62,000/- to
  Rs.8,00,000/- without taking into consideration the facts     c
  of the case that the deceased was a renowned doctor
  serving in College of Homeopathy and Research, and
  she also had private practice and had earned good
  reputation in the area. [Para 11] [757-C-E]
       2. It should have been taken into consideration that     D
   the employment of the deceased was a public
 · employment. Therefore, it was a stable employment for
   a period of another seven years and there could have
   been revision of wages and promotional benefits accrued
   in her favour if she was alive. 30% should have been         E
_ added to the month!y salary of the deceased at Rs.
   12,000/-, as future prospects of income and that amount
   could have been taken as monthly income of the
   deceased for the purpose of determining the
   compensation towards the loss of dependency of the           F
   appellants. [Para 15] [758-E-G; 759-A]

      Sar/a Verma and Ors. vs. Delhi Transport Corp. and Anr.
  2009 (6)SCC 121: 2009 (5) SCR 1098 - relied on.
       3. The compensation awarded by the Tribunal has ·G
  been interfered with by the High Court in the Appeal filed
  by the Insurance Company, though it has no right to
  challenge the quantum of. compensation as it has got
  limited defence as provided under Section 149(2) of the H
    752      SUPREME COURT REPORTS            [2013] 10 S.C.R.


A   Motor Vehicles Act in the absence of permission from the
    Tribunal to avail the defence on behalf of the insurer as
    required under Section 170(b) of the Act. [Para 15) [759-
    G-H; 760-A]

8        National Insurance Co. Ltd. vs. Nico/Jetta Rohtagi and
    Ors. (2002) 7SCC 456: 2002 (2) Suppl. SCR 456 - relied on.

       4. The Tribunal in exercise of its original jurisdiction
  has taken Rs.12,0001- as monthly income of the deceased
  and has deducted 113rd out of the monthl_y salary towards
C her personal expenses and computed the compensation·
  both on the loss of dependency as well as the
  conventional heads and has awarded Rs.10,62,0001-. The
  same should not have been interfered with by the High
  Court in exercise of its appellate jurisdiction. Thus, in
D view of the facts, circumstances and the finding recorded
  by the Tribunal, its judgment is restored. [Paras 16 and
  17] [761-A-B, E]

      United India Insurance Co. Ltd. and Ors. vs. Patricia
E Jean Mahajanand Ors. 2002 (6) SCC 281: 2002 (3) SCR
  1176 - referred to.
                        Case Law Reference:
          2002 (3) SCR 1176           referred to    Para 10
F         2009 (5) SCR 1098           relied on      Para 15
          2002 (2) Suppl. SCR 456     relied on      Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 5373-5375 of 2013.

      From the Judgment & Order dated 24.02.2011 of the High
  Court of Orissa.• Cuttack in M.A.C.A. No. 579 of 2007 and
  Order dated 10.3.2011 in Misc. Case No. 385 of 2011 in
  M.A.C.A. No. 579 of 2007 and final judgment and order dated
H 24.02.2011 in M.A.C.A. No. 844 of 2007.
 REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 753
                      LTD.
     Sukumar Pattjoshi, S.K. Dubey, Sibo Sankar Mishra for            A
the Appellants.

    S.L. Gupta, Ram Ashray, Shyam Gupta for the
Respondent.
                                                                      B
     The Judgment of the Court was delivered by

     V. GOPALA GOWDA, J. 1. Leave granted by this Court
vide order dated 02.07.2013 after condoning the delay in filing
the special leave petitions.
                                                                      c
     2. These appeals are filed by the claimants namely Rekha
Jain and T.A. Sebastian. They have questioned the correctness
of the judgment and award and order dated 24.2.2011 passed
by the High Court of Orissa, Cuttack in MACA No. 579 of 2007
and order dated 10/03/2011 in MC No. 385 of 2011 in MACA              o
No. 579 of 2007 in the aforesaid appeal and final order dated
24.11.2011 in M.A.C.A. No.844 of 2007 urging rival facts and
legal contentions.

      3. The daughter and the husband of the deceased have
filed these appeals seeking just and reasonable compensation          E
on account of the death of the deceased in a motor vehicle
accident, which took place on 17.08.2001. The deceased was
traveling alongwith her daughter, the first appellant in her Maruti
Car bearing Regn. No. OR 15 D-9005. The accident took place
on account of rash and negligent driving of the offending truck       F
bearing Regn. No. MP 23 D-0096. The deceased Dr. Grace
Jain died on the spot, as she had sustained grievous injuries
on account of the said accident. It is stated by the appellants
that the deceased was a renowned doctor serving as a lecturer
in Odisha College of Homeopathy and Research, Sambalpur               G
and had private practice as well.

     4. It is stated in the claim petition and in the evidence that
the salary of the deceased was Rs.12,000/- per month. The
appellants herein filed claim petition i.e. Misc.(A) Case No.118      H
    754      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A   of 2002 claiming compensation of Rs.27,00,000/- before the
    Second Motor Accidents Claims Tribunal, Northern Division,
    Sambalpur (hereinafter referred to as 'the Tribunal').

          5. The owner of the truck (since deleted from the array of
8   parties) appeared and filed identical written statement in the
    claim petition as that of the written statement filed in Rekha
    Jain's claim petition. According to him, the driver of the truck
    had valid driving licence and the same was insured with
    Respondent - National Insurance Company Limited (hereinafter
c   referred to as the 'Insurance Company'). The owner of the
    offending vehicle has further stated that his driver was not
    negligent. A motor cyclist suddenly came in front of the truck
    overtaking him from its left side and hence the driver had to
    move to the right side in order to avoid accident with the motor
    cyclist. In that process the truck hit the Maruti car causing death
0
    of the deceased.

        6. The respondent-Insurance Company had also filed
  similar written statement in both the claim petitions denying its
  liability on the ground that the driver of the offendi.ng truck was
E not negligent and that the accident occurred due to the
  negligence of the driver of the Maruti Car. On behalf of Rekha
  Jain, the first appellant herself was examined as a witness PW
  3 and two other eye witnesses were examined as PW 1 and
  PW 2 to prove the occurrence of the accident. On the basis of
F documentary and oral evidence particularly eye witnesses'
  evidence, the finding of fact was recorded on issue Nos. 2 and
  3 that the accident took place on account of rash and negligent
  driving of the offending truck driver and it was also answered
  that the claim petition filed by the appellants is maintainable.
G The Tribunal held that the appellant's mother died and the first
  appellant was grievously injured due to the accident involving
  offending vehicle. The Tribunal also recorded the finding of fact
  holding that the accident took place on account of rash and
  negligent driving by the driver of the offending vehicle.
H Consequently, issue No.4 was answered by awarding
 REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 755
          LTD. [V. GOPALA GOWDA, J.]
compensation at Rs.10,62,000/- with 6% interest per annum by       A
accepting the pleading of the appellants that the deceased was
a renowned doctor practicing in Government Hospital.

     7. The claim petition Misc.(A) Case No. 118/2002 was
allowed with interest @ 6% per annum from the date on which        8
the claim petition was filed and the respondents were directed
by the Tribunal to deposit Rs.5,00,000/- each for both the
appellants .for a period of five years with quarterly interest
payable to them. The Tribunal also directed the payment of
balance amount and interest on the compensation in equal           c
proportion to both the appellants in cash.

      8. Aggrieved by the above said judgment and award both
the Insurance Company as well as the appellants filed appeals
before the High Court of Orissa, which were numbered as
M.A.C.A. No. 579 of 2007 and M.A.C.A. No.844 of 2007. as           D
the Insurance Company is aggrieved by fastening of liability and
quantum of compensation and the appellants have prayed for
just and reasonable compensation. The High Court after
examining the appeal of the Insurance Company, found fault
with the compensation awarded by the Tribunal at                   E
Rs.10,62,000/- in favour of the appellants taking monthly
earnings of the deceased at Rs. 12,000/-, in the absence of
material evidence produced on record regarding the proof of
her monthly salary. The Tribunal calculated the compensation
by deducting 1/3rd out of the monthly salary towards her           F
personal expenses and her contribution to the appellants'
family. The same is taken as Rs.8,000/- per month. Hence, her
annual income was assessed at Rs.96,000/-. The age of the
deceased is recorded at about 51 years. Hence, a multiplier
of 11 was used for calculating the loss of dependency of the       G
appellants and Rs.10,62,000/- was awarded by the Tribunal,
which included Rs.6,000/- towards general damages. The High
Court however, arrived at the conclusion and recorded the
finding of fact stating that a compensation of Rs.10,62,000/- is
on the higher side and hence, the same was reduced by the          H
     756       SUPREME COURT REPORTS             [2013f10 S.C.R.


A   High Court to Rs.8,00,000/-.

       9. Aggrieved by the same, the appeal was filed by the
  appellants for modification of the impugned judgment for grant
  of just and reasonable compensation to them. It is urged that
8 the appeal of the appellants was dismissed by the High Court
  without examining the case independently and appreciating the
  pleadings, legal evidence on record and law on the question
  and without following the criteria for awarding just and
  reasonable compensation. The correctness of the judgment,
C awards and order passed on 10.3.2011 in Misc. Case No.385
  of 2011 modifying the order dated 24.2.2011 is challenged
  wherein the modification was only to the extent of the direction
  given by the High Court that out of the awarded amount, an
  amount equivalent to 60% shall be kept in fixed deposit in the
  name of appellants in any nationalized bank for a period of five
0
  years and the balance amount should be disbursed to the
  appellants.

       10. However, the High Court has taken Rs.12,000/- per
  month as the monthly income of the deceased for the purpose
E of determining the compensation in favour of the appellants. It
  is urged that this approach of the High Court in reducing the
  compensation awarded by the Tribunal is erroneous in law.
  Further, the multiplier applied by both the Tribunal as well as
  the High Court is contrary to the multiplier mentioned in the
F schedule which is applicable for special reasons having regard
  to the facts and circumstances of the case placing reliance
  upon the judgment of this Court in the case of United India
  Insurance Co. Ltd. & Ors. v. Patricia Jean Mahajan & Ors. 1
  The relevant paragraph of the judgment reads as under:
G
       "13. We may refer to the decision in G.M., Kera/a SRTC
       v. Susamma Thomas. In this case while considering the
       law on the subject, it was observed in para 13 of the Report
       as follows: (SCC p. 183)
H   1.   2002 (6) sec 2a1.
REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 757
         LTD. [V. GOPALA GOWDA, J.]
     "The choice of the multiplier is determined by the age of       A
     the deceased (or that of the claimants whichever is higher)
     and by the calculation as to what capital sum, if invested
     at a rate of interest appropriate to a stable economy, would
     yield the multiplicand by way of annual interest. In
     ascertaining this, regard should also be had to the fact that   B
     ultimately the capital sum should also be consumed up over
     the period for which the dependency is expected to last."

     11. The Tribunal and the High Court have erred in not
awarding just and reasonable compensation in favour of the           c
appellants keeping in view the principles laid down by this Court
in various judgments in the matters of motor accidents claims
keeping in view the object of compensation which will be the
source of the maintenance for them particularly, in respect of
the claimant, appellant no.1. The High Court instead of              D
enhancing the compensation though the case is made out in
the appeal filed by the appellants for enhancement, has
erroneously exercised its jurisdiction and has reduced the
compensation from Rs.10,62,000/- to Rs.8,00,000/- without
taking into consideration the facts of the case that the             E
deceased was a renowned doctor serving in Odisha College
of Homeopathy and Research, Sambalpur, and she also had
private practice and had earned good reputation in the area.

     12. The above said important aspect of the matter had ·
been ignored both by the Tribunal as well as the High Court in F
not awarding just and reasonable compensation in favour of the
appellants. Therefore, Mr. Sukumar Pattjoshi, the learned
Senior Counsel for the appellants has sought for enhancement
of compensation as claimed in the claim petition by the
appellants.                                                    G

      13. On the other hand, Mr. S.L. Gupta, the learned counsel
for the Insurance Company sought to justify the impugned
judgment passed by the High Court in its appeal and the appeal
filed by the appellants contending that the High Court has rightly   H
    758        SUPREME COURT REPORTS               [2013) 10 S.C.R.


A considered the facts and legal evidence on record and has
  modified the impugned judgment of the Tribunal and awarded
  compensation of Rs.8,00,000/- with 6% interest per annum and
  giving direction as contained in the impugned judgment passed
  in the appeal of the Insurance Company and modifying the
B same vide order dated 10.3.2011 in the instant appeal
  regarding 60% of deposit of the awarded amount including the
  interests. Therefore, he has prayed for dismissal of the appeals
  as there is no merit.

c        14. In view of the aforesaid rival factual and legal
    contentions, the following points would fall for our consideration:
          1.    Whether the High Court is justified in reducing the
                compensation from Rs.10,62,000/- to Rs.8,00,000/
                - with 6% interest per annum?
D
          2.    Whether the appellants are entitled for enhanced
                compensation?
          3.    What award?

E      15. We have perused the impugned judgment and
  evidence on record particularly the evidence of PW 3, the first
  appellant who is the daughter of deceased. It should have been
  taken into consideration that the employment of the deceased
  was a public employment. Therefore, it was a stable
F employment for a period of another seven years and there could
  have been revision of wages and promotional benefits accrued
  in her favour if she was alive. Therefore, for determining the
  annual income of the deceased, the principles laid down in
  Sarfa Verma & Ors. v. Delhi Transporl Corp. & Anr should
G have been applied to the case of the appellants by taking into
  consideration the monthly salary of the deceased at Rs.
  12,000/- to which 30% should have been added as future
  prospects of income as mentioned above and that much
  amount could have been taken as monthly income of the
H 2. 2009 (6) sec 121.
REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 759
         LTD. [V. GOPALA GOWDA, J.]
deceased for the purpose of determining the compensation           A
towards the loss of dependency of the appellants. The relevant
paragraph of the case reads as under:

    "24. In Susamma Thomas this Court increased the
    income by nearly 100%, in Sar/a Dixit the income was           B
    increased only by 50% and in Abati Bezbaruah the income
    was increased by a mere 7%. In view of the imponderables
    and uncertainties, we are in favour of adopting as a rule
    of thumb, an addition of 50% of actual salary to the actual
    salary income of the deceased towards future prospects,        C
    where the deceased had a permanent job and was below
    40 years. (Where the annual income is in the taxable
    range, the words "actual salary" should be read as "actual
    salary less tax"). The addition should be only 30% if the
    age of the deceased was 40 to 50 years. There should
    be no addition, where the age of the deceased is more          D
    than 50 years. though the evidence may indicate a
    different percentage of increase, it is necessary to
    standardise the addition to avoid different yardsticks being
    applied or different methods of calculation being adopted.
    Where the deceased was self-employed or was on a fixed         E
    salary (without provision for annual increments, etc.). the
    courts will usually take only the actual income at the time
    of death. A departure therefrom should be made only in
    rare and exceptional cases involving special
    circumstances.··                                               F

     This aspect of the matter is not taken into consideration
by the Tribunal while awarding compensation. Nonetheless, it
has accepted the claim made by the appellants that the salary
of the deceased was Rs.12,000/- per month and the multiplier       G
11 was applied and awarded compensation of Rs.
10,62,000/-. The same has been interfered with by the High
Court in the Appeal filed by the Insurance Company though it
has no right to challenge the quantum of compensation as it
has got limited defence as provided under Section 149(2) of        H
    760       SUPREME COURT REPORTS                (2013] 10 S.C.R.


A the Motor Vehicles Act in the absence of permission from the
  Tribunal to avail the defence on behalf of the insurer as required
  under Section 170(b) of the Act. This principle has been laid
  down by three judge Bench decision of this Court in National
  Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors. 3 The relevant
B paragraphs of the judgment read as under:

          "15. It is relevant to note that Parliament, while enacting
          sub-section (2) of Section 149 only specified some of the
          defences which are based on conditions of the policy and,
          therefore, any other breach of conditions of the policy by
c         the insured which does not find place in sub-section (2) of
          Section 149 cannot be taken as a defence by the insurer.
          If Parliament had intended to include the breach of other
          conditions of the policy as a defence, it could have easily
          provided any breach of conditions of insurance policy in
D         sub-section (2) of Section 149. If we permit the insurer to
          take any other defence other than those specified in sub-
          section (2) of Section 149, it would mean we are adding
          more defences to the insurer in the statute which is neither
          found in the Act nor was intended to be included.
E
          16. For the aforesaid reasons, we are of the view that the
          statutory defences which are available to the insurer to
          contest a claim are confined to what are provided in sub-
          section (2) of Section 149 of the 1988 Act and not more
F         and for that reason if an insurer is to file an appeal, the
          challenge in the appeal would confine to only those
          grounds."

       16. In our considered view the Tribunal and the High Court
G have erred in not following the principles laid down in Sar/a
  Verma' case (supra) in fixing the monthly income at Rs.
  12,000/- in the absence of documentary evidence having regard
  to the fact that the deceased was employed as Lecturer in
  Odisha College of Homeopathy and Research, Sambalpur and

H   3.   c2002) 1 sec 456.
 REKHA JAIN & ANR. v. NATIONAL INSURANCE CO. 761
          LTD. [V. GOPALA GOWDA, J.]
she also had private practice. The Tribunal in exercise of its      A
original jurisdiction has taken Rs.12, 000/- as her monthly
income and has deducted 1/3rd out of the monthly salary
towards her personal expenses and computed the
compensation both on the loss of dependency as well as the
conventional heads and has awarded Rs.10,62,000/-. The              B
same should not have been interfered with by the High Court
in exercise of its appellate jurisdiction. Hence, the impugned
judgment, award and order passed in the Misc. Case no. 385/
2011 in M.A.C.A No. 579/2007 is required to be interfered with.
So also the order dated 10.3.2011 in Misc. Case No.385 of           C
2011 modifying the earlier direction issued by the High Court
to deposit 60% of the awarded amount in any of the
Nationalized Bank, is required to be interfered with.
Accordingly, both the impugned judgment, award and orders
dated 24.2.2011 ·and 10.03.2011 are hereby set aside by             D
allowing the civil appeals.

      17. Having regard to the facts, circumstances and the
finding recorded by the Tribunal in its judgment, we restore the
same in awarding compensation in favour of the appellants at        E
Rs.10,62,000/- with interest at the rate of 6% per annum. The
appeal of the appellants for enhancement is disposed of in the
above terms. We further keep the order of the Tribunal dated
20.3.2007 in so far as the directions issued by it for deposit of
awarded amount in M.A.C. No. 118 of 2002 are concerned.
                                                                    F
    18. The appeals are disposed of accordingly. There will
be no order as to costs.

K.K.T.                                        Appeals allowed.