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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9194  OF 2016 (Arising out of SLP(C) No.1448 of 2014)

SANDHYA RANI DEBBARMA & ORS.            …APPELLANTS   Versus

THE NATIONAL INSURANCE  COMPANY LTD. & ANR.                    … RESPONDENTS   

J U D G M E N T  

V. GOPALA GOWDA, J.

  Leave granted.

 2. The present appeal has been filed after a delay of

2824 days against the impugned judgment and order dated

17.05.2006 passed by the learned single judge of the

High Court of Tripura  at Agartala in Writ Petition (C)

No.  113  of  2006.  The  Writ  Appeal  preferred  by  the

appellants against the same before the Division Bench

of  the  High  Court,  came  to  be  dismissed  as  not

maintainable vide judgment and order dated 22.08.2013.

The  appellants  herein  filed  an  SLP  challenging  the

same. Vide order dated 05.05.2014, this Court directed

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the appellants to amend the Special Leave Petition and

impugn the judgment and order of the learned single

judge as well. Having regard to the fact that the delay

was caused only on account of the appellants pursuing

the remedy of filing a Writ Appeal before the Division

Bench of the High Court, as well as the fact that claim

is made under Section 166 of the Motor Vehicles Act,

1988, which is a beneficial legislation, we deem it fit

and proper to condone the delay in filing the Special

Leave Petition. Hence, delay is condoned.

3.  The necessary relevant facts required to appreciate

the rival legal contentions advanced on behalf of the

parties are stated in brief hereunder:

   On 14.11.2003, the deceased, while travelling in a

vehicle  (Jeep)  bearing  No.  TR013476  met  with  an

accident  at  Assam-Agartala  Road  near  Banukumari,  at

Baramur  due  to  collision  with  a  Bus  bearing  No.

TR01-1212 coming from opposite direction. He was taken

to the nearby Government Hospital namely, GBP Hospital,

Agartala where he was declared ‘brought dead’. Jirama

P.S. Case No. 90 of 2003 was registered on the very

same day under Sections 270, 338 and 304A of the Indian

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Penal Code (hereinafter referred to as “IPC”).

 4.  The appellants herein (being the legal heirs of the

deceased)  filed   Title  Suit  (M.S.C.)  No.  1  of  2004

before  the  Motor  Accident  Claims  Tribunal,  West

Tripura,  Agartala  (hereinafter  referred  to  as  “the

Tribunal”) claiming a total compensation amounting to

Rs.33,45,000/-. It was submitted that the deceased was

survived by his parents, wife and two minor children.

On the day of the accident, his age was 31 years and 4

months.  He was working as Junior Engineer (Grade-I)

under  the  Government  of  Tripura  and  drawing  monthly

salary of Rs.13,504.50/-, without imposition of income

tax, as per the statutory exemption in the state of

Tripura  from  paying  income  tax  to  the  members  of

Scheduled  Tribes.  The  owner  of  the  jeep  and  its

insurer-National Insurance Company Ltd. as well as the

owner  of  the  Bus  and  the  insurer-Oriental  Insurance

Company Ltd. were made parties to the claim.

 5.  The Tribunal by way of judgment and award dated

14.12.2005 held that the age of the deceased being 31

years at the time of the accident, a multiplier of 17

would be applicable and awarded as under:

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Head  under  which awarded

Amount Loss of dependency 32,32,000/- Funeral expenses 2,000/- Loss of consortium 25,000/- Loss of estate 2,500/- Total 32,52,700/-

The Tribunal further ordered that the insurer of both

the vehicles involved in the accident, that is, the bus

and  the  jeep  were  equally  liable  to  pay  the

compensation.  Thus,  the  National  Insurance  Co.  Ltd

(insurer of the jeep) and the Oriental Insurance Co.

Ltd. (insurer of the bus) were ordered to pay a sum of

Rs.16,26,350/-  each, along with 6% interest per annum

from the date of filing of the claim petition to the

appellants. It was further ordered by the Tribunal that

the  payment  had  to  be  paid  within  a  period  of  two

months from the date of receipt of the award, failing

which the interest would be payable at the rate of 9%

per annum.

6.  Aggrieved by the said Award passed by the Tribunal,

the  National  Insurance  Company  Ltd.  challenged  the

Award by filing Writ Petition No. 113 of 2006 under

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Articles  226  and  227  of  the  Constitution  of  India

before the learned single Judge of Gauhati High Court.

The other insurer-Company did not prefer any appeal.

 7.  The learned single judge of the High Court, by way

of judgment and order dated 17.05.2006 allowed the writ

petition and modified the Award passed by the Tribunal

by  reducing  the  amount  from  Rs.32,52,700/-  to

Rs.20,40,000/- only. The learned single judge, held as

under:

“4. But the finer question of law is where none of the grounds permitted under Section 149(2) of the act has been taken as ground for the purpose of approaching this Court under  Article  227  for  setting  at  right alleged  perversity,  gross  infirmity  and infraction  of  settled  legal  principles which constitute parameter of the Tribunal, whether plenary powers of a writ court can be  kept  at  bay  in  the  name  of  the restrictions  and  limitations  imposed  by section 149(9) of the act.”

On the issue of calculation of the compensation amount,

the learned single judge observed:

“8.  In  the  case  on  hand,  the  average monthly  gross  income  after  double advancement  was  assessed  at  Rs.  16,750/- from  which  only  Rs.  1,000/-  was  deducted for taxes, self-maintenance and pleasure of the deceased which in my view is a gross perversity  because  of  its  fanciful subjectivity,  irrationality  in  total

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disregard  of  the  ratio  noticed  above.  It amounts to stepping out of its parameters by the Tribunal.”

The learned single judge further went on to hold:

“13.  It  is  thus  clear  that  where  on  the face of it, an award is a perversity due to gross non-observation of the settled legal principle in determining the just amount of compensation,  it  can  be  said  that  the Tribunal  has  not  acted  within  its parameters calling for interference by the High  Court  in  exercise  of  its  plenary supervisory powers”

8.  Aggrieved, the appellants filed Writ Appeal No. 38

of 2006 before the High Court of Tripura, Agartala. The

Division Bench of the High Court dismissed the Writ

Appeal  as  not  maintainable  vide  judgment  and  order

dated 22.08.2013 holding that the order passed by the

learned  single  Judge  was  under  Article  227  and  not

under Article 226 of the Constitution of India, and

thus, the same was not amenable to being challenged by

way of a Writ Appeal. The Division Bench held as under:

“An appeal is the creation of a statute and if the Single Judge has clearly mentioned that he is exercising powers under article 227 against which no appeal lies, then the mere  fact  that  the  petitioner  had  also invoked the provisions of Article 226 would not  be  sufficient  to  hold  that  an  appeal would lie against such an order. The law is well  settled  that  what  cannot  be  done

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directly, cannot be permitted to be done in an indirect manner………”

Hence, the present appeal.

9.  Mr. Bijan Kumar Ghosh, learned counsel appearing on

behalf  of  the  appellants  submits  that  the  learned

single  judge  of  the  High  Court  grossly  erred  in

entertaining the writ petition filed by the insurance

company against the award passed by the Tribunal. The

learned counsel places reliance on the decision of a

Three Judge Bench of this Court in the case of Sadhana

Lodh  v. National Insurance Co. Ltd.1, wherein it has

been held that a writ petition under Article 227 of the

Constitution of India, challenging the award of the

Tribunal in a motor accident case is not maintainable.

It is further contended that it was not open to the

High Court to enlarge the grounds of appeal which have

been provided for in the statute to the insurer in

cases of motor accidents. Thus, the learned counsel

prays that the award passed by the Tribunal be restored

and that the compensation be awarded to the appellants

at the interest rate of 9% per annum.

10. On  the  other  hand,  Mr.  S.L.  Gupta,  learned 1  (2003) 3 SCC 524

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counsel appearing on behalf of the respondent-Insurance

Company submits that the impugned judgment and orders

suffer from no infirmity in law. It is submitted that

the  award  was  passed  by  the  Tribunal  in  complete

ignorance of the decisions of this Court in the cases

of G.M., Kerala SRTC v. Susamma Thomas2, Sarla Verma &

Ors. v. Delhi Transport Corporation & Anr.3  as well as

T.N. State Transport Corpn. Ltd. v. S. Rajapriya4  The

learned counsel submits that the monthly income of the

deceased was Rs.10,020/- at the time of the accident,

which was wrongly taken as Rs.13,500/-. The Tribunal

further  arbitrarily  arrived  at  the  figure  of

Rs.16,750/-  per  month  as  the  monthly  salary  of  the

deceased.  Thus,  the  award  of  compensation  of

Rs.32,52,700/-  arrived  at  by  the  Tribunal  was

definitely  on  the  higher  side.  Thus,  the  learned

counsel  contends  that  the  learned  single  Judge  has

rightly  interfered  with  the  quantum  of  compensation

awarded by the tribunal.

11.  We have heard the learned counsel appearing on

behalf of the parties and have perused the evidence and

2   (1994) 2 SCC 176 3   (2009) 6 SCC 121 4   (2005) 6 SCC 236

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materials placed on record, as well as the impugned

judgments and orders passed by both the learned single

judge and the Division Bench of the High Court.

12. At  the  outset,  we  make  it  clear  that  we  are

dealing with the matter on merits, without going into

the question of maintainability of the writ petition

filed by the insurance company before the single judge

of the High Court, questioning the correctness of the

quantum of compensation awarded by the Tribunal.

13. The date of birth of the deceased as shown on the

admit card of the Tripura Board of Secondary Education

was 03.07.1972. The accident occurred on 14.11.2003.

Thus,  the  age  of  the  deceased  at  the  time  of  the

accident  was  31  years  and  4  months.  Thus,  the

appropriate multiplier in the instant case is 17. On

the issue of the salary of the deceased at the time of

the accident, the learned single judge proceeds on the

assumption that it was Rs.10,020/- on the ground that

the  same  was  the  amount  mentioned  in  the  claim

petition.  Thus,  we  proceed  on  the  basis  that  the

monthly  income  of  the  deceased  at  the  time  of  the

accident was Rs.10,020/-. Further, in accordance with

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the principle of law laid down by this Court in the

case  of  Santosh  Devi  v. National  Insurance

Corporation5, an addition of 50% must be made to the

actual salary income of the deceased towards future

prospects  in  those  cases  where  the  deceased  had  a

permanent job and was below 40 years of age at the time

of the accident. Thus, in the instant case, 50% of

Rs.10,020/- comes to Rs.5,010/-, which if added gives

the  income  as  Rs.15,030/-.  In  accordance  with  the

principle of law laid down by this Court in the case of

Sarla Verma & Ors.  v. Delhi Transport Corporation &

Anr6(supra),  where  the  number  of  dependents  of  the

deceased are between 4 and 6, 1/4th of the income of the

deceased  is  to  be  deducted  towards  the  living  and

personal expenses. Since in the present case, there are

5 dependents, (wife, two minor children, mother and

father), 1/4th of the monthly income, that is, Rs.3750/-

(rounded  off)  is  to  be  deducted  towards  living  and

personal expenses.

14. Deducting  Rs.3750/-  on  account  of  personal  and

living  expenses,  the  monthly  income  comes  to

5  (2012) 6 SCC 421 6 (2009) 6 SCC 121

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Rs.11,280/-. Since the age of the deceased at the time

of the accident was 31 years and 4 months, multiplier

of 17 is applicable. Thus, the total loss of dependency

comes to:

      Rs.11,280/- X 12 X 17 = Rs.23,01,120/-

The  High  Court  arrived  at  the  amount  of

Rs.20,40,000/- in complete and utter forgetfulness of

the principles of computing compensation laid down by

this Court in  catena of cases, which shall be referred

to in a later part of this judgment.

    What is more shocking is the logic applied by the

High  Court  in  modifying  the  award  to

Rs.20,40,000/-,  which  is  only  the  annual  loss  of

dependency,  thereby,  completely  missing  the  next

crucial step in determining the award of compensation

due to the dependents of the deceased under the other

different  heads  such  as  loss  of  estate,  funeral

expenses,  loss  of  consortium  etc.  It  is  worth

reproducing the reasoning of the learned single judge

in not awarding any amount under the other heads:

“19.  For  the  reasons  and  discussions aforementioned, this writ petition has merit and the same is allowed modifying the award to Rs. 20,40,000/- only. As this amount would

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fetch perpetually more than Rs. 10,000/- per month  by  way  of  interest  @  6%  per  annum without  consuming  the  principal  sum  during the period of dependency, no further award on any other count is called for……”

It is difficult for this Court to understand what is

the legal principle on which the learned single judge

has  relied  on  to  arrive  at  the  conclusion  that  no

further award under any other head is called for, when

the same has been the well settled position of law by

this Court.

15. In light of the three judge bench decision of

this Court in the case of  Rajesh & Ors.  v. Rajbir &

Ors.7 as well as the decision of this Court in the case

of  Kalpanaraj  &  Ors.  v. Tamil  Nadu  State  Transport

Corporation8,  the appellants are further entitled to

compensation under the following heads:

Head Amount Funeral expenses Rs.  25,000/- Loss of consortium Rs.1,00,000/- Loss of guidance to minor children

Rs.1,00,000/-

Loss  of  love  and affection  to  aged parents

Rs.1,00,000/-

Loss of estate Rs.1,00,000/- 7  (2013) 9 SCC 54 8  (2014) 5 SCALE 479

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Litigation costs Rs.  25,000/- Total Rs.4,50,000/-

The  appellants  are  thus,  entitled  to  a  total

compensation  of  Rs.23,01,120/-  +  Rs.4,50,000/-  =

Rs.27,51,120/-. This  amount  is  payable  by  the  respondents  to  the

appellants, not at rate of 6% interest per annum as the

learned single judge has held, but at the rate of 9%

per annum, according to the principle laid down by this

Court in the case of  Municipal Corporation of Delhi,

Delhi v. Uphaar Tragedy Victims Association & Ors9.

16. The appeal is accordingly allowed. The judgments

and orders passed by the Division Bench and the learned

Single Judge of the High Court are set aside. Both the

insurance companies shall be liable to pay half a share

each of the compensation amount of Rs.27,51,120/-, at

an  interest  rate  of  9%  per  annum  from  the  date  of

filing the claim petition till the date of realization.

The respondent-Insurance companies are directed to pay

the amount as awarded in this judgment to the claimants

within four weeks from the date of receipt of the copy

of  this  judgment  and  order  in  terms  of  the 9  (2011) 14 SCC 481

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apportionment of the compensation made by the Tribunal.

No costs.

 ………………………………………………………J. (V. GOPALA GOWDA)

                             ………………………………………………………J. (ADARSH KUMAR GOEL)

NEW DELHI, SEPTEMBER 16, 2016