Jammu & Kashmir High Court - Srinagar Bench
Block Medical Officer Kreeri Baramulla ... vs Naseema Akhter & Ors. on 18 September, 2017
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
Serial No. 01
3rd Supply. List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CIMA No. 201/2014
MP No. 01/2017
Date of Order: 18th September, 2017.
Block Medical Officer Kreeri Baramulla & Anr.
Vs.
Naseema Akhter & Ors.
Coram:
Hon'ble Mr Justice Ramalingam Sudhakar, Judge.
Appearance:
For the Appellant (s): Mr M. I. Dar, AAG.
For the Respondent(s): Mr Muzaffar Iqbal, Advocate for R-1 to 4.
None for R-5.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. The instant appeal is of the year 2014.
02. The State of Jammu and Kashmir has filed the instant appeal through Block Medical Officer, Kreeri, Baramulla, challenging the award dated 6th February, 2014 passed by the Motor Accident Claims Tribunal, Srinagar.
03. It is a case of fatal accident. The accident, in this case, happened on 20th November, 2011. The deceased, namely Manzoor Ahmad Wani, aged 53 years, Works Supervisor in R&B Department (Division-II), was working on the road when the ambulance van belonging to the appellants' Department, appears to CIMA No. 201/2014 Page 1 of 10 have hit the deceased, as a result of which he suffered serious injuries. He was taken to SKIMS Soura and treated from 20th November, 2012 to 22nd December, 2012 and, thereafter, shifted to SMHS Hospital and within two days' of shifting to SMHS Hospital, he died on 24th December, 2012. He was in hospital for thirty-four days.
04. On the death of the deceased, alleging negligence on part of the driver of the ambulance van, the claim for compensation was laid before the Tribunal by the widow, aged 45 years and her three daughters, two minor and one major.
05. In support of the claim, Mr. Firdous Ahmad, Mr. Nassar Hussain Zargar (DDO, R&B Department), Mr. Feroz Ahmad Khan, eye witness and Ms. Naseema, the petitioner in the claim petition, were examined as witnesses. To speak on the salary of the deceased, Mr. Nassar Hussain Zargar, DDO of the R&B Department, was examined. He had given a statement on the first occasion and, thereafter, he was recalled and he gave full particulars and based on record, stated that the salary of the deceased was Rs. 30,698/-. The salary certificate is also a part of the record of the Tribunal. It also states the details of the deductions and tax payable. Income tax in this case was Rs.500/- per month.
06. Before the Tribunal, the appellants resisted the claim petition contending as follows:
a. That the deceased was also responsible for the accident as he attempted to cross the road and, as such, he contributed to the cause of the accident and death.
b. That after the accident and injury, the deceased was in hospital for nearly thirty-four days. He was discharged from SKIMS, Soura and he died in SMHS Hospital and in the death certificate, the cause of his death has been recorded as 'Cardiac Arrest' and, therefore, the injury due to the accident is not the cause of the death of the deceased.CIMA No. 201/2014 Page 2 of 10
c. That excess compensation has been granted in this case on various heads and the multiplier of 11 adopted by the Tribunal is also higher.
d. The default interest of 9% is bad.
e. On legal side, it is pleaded that Section 80 notice has not been issued and the claim should have been made against the Secretary to Government.
07. The Tribunal, in this case, after making deduction of 1/4th towards personal expenses and taking note of the four claimants, fixed the loss of income to the dependents as Rs. 22,647/-. It adopted the multiplier of 11 in terms of Paragraph No.42 of the judgment rendered by the Hon'ble Supreme Court in case titled 'Sarla Verma V. Delhi Transport Corporation', reported in 'AIR (2009) 6 SCC 121' and granted the following compensation alongwith interest @ 7 % per annum and default interest of 9 % per annum:
S. No. Head under which compensation granted Amount
01. Loss of income: Rs. 29, 89, 404/-
(i.e. Rs. 22, 647/- x 12 x 11)
02. Loss of Consortium & Estate Rs. 1,00,000/-
03. Loss of Love and Affection Rs. 4,00,000/-
04. Medical Expenses Rs. 40,000/-
05. Funeral Expenses Rs. 25,000/-
Total Rs. 35,54,404/-
08. The first contention regarding negligence on part of the deceased is not supported by any material evidence on part of the appellants because they did not let in any evidence nor did they contradict the evidence of the eye-witness.
Appellants remained ex-parte. Appellants are not in a position to show that there was an element of contributory negligence on the part of the deceased.
CIMA No. 201/2014 Page 3 of 10Therefore, the finding of negligence on part of the driver of the ambulance van is confirmed.
09. The next issue raised by the appellants is that the death was due to the 'Cardiac Arrest' and not due to the accident. The fact that the accident happened on 20th November, 2012 and the deceased was hit by the ambulance van is not disputed. It is the cause for the deceased to be admitted to hospital and treated from 20th November, 2012 to 22nd December, 2012 in SKIMS Soura. Thereafter, on being shifted to SMSH Hospital on 23rd December, 2012 he died in SMHS Hospital on 24th December, 2012. This is also not disputed. The cause for his death, as recorded in the death certificate, may be 'Cardiac Arrest', but before concluding the cause of death, it has also been recorded in the death certificate that it is a case of 'Road Traffic Accident' resulting in multi organ failure. Ultimately, due to various complications, the death resulted due to 'Cardiac Arrest'. The injury was the first cause for hospitalization as a result of the 'Road Traffic Accident'. The death is due to multi organ failure and finally 'Cardiac Arrest', despite treatment of thirty-four days. Therefore, on a reading of the death certificate, it is a clear case of injury and death due to the accident and not death simplicitor due to 'Cardiac Arrest'. This contention is, therefore, rejected.
10. On the issue of quantum, while deciding the income of the deceased, the learned Tribunal relied on the evidence of the witness DDO of the concerned Department, coupled with the certificate issued by the Department showing the basic pay, grade pay etc. together with tax deduction. This is not disputed by the appellants. Therefore, the income fixed by the Tribunal is not erroneous. Thereafter, the deduction of 1/4th towards personal expenses has been made in terms of the decision of the Supreme Court in case titled 'Sarla Verma V. Delhi Transport Corporation', reported in 'AIR (2009) 6 SCC 121', and it is in order CIMA No. 201/2014 Page 4 of 10 because there were four dependents at that point of time. Therefore, the loss of income to the dependents determined by the learned Tribunal is correct. The multiplier of 11 is also in terms of Paragraph No.42 of 'Sarla Verma' judgment of the Hon'ble Supreme Court, therefore, the compensation granted for pecuniary loss due to the death of the bread winner by adopting the multiplier of 11 is also correct.
11. The learned Tribunal, however, erred in granting the widow a sum of Rs. 1 lakh each on the head 'loss of consortium' and also towards loss of love and affection. Once the widow has been granted compensation for consortium, she is not entitled to compensation for loss of love and affection. Hence, the sum of one lakh granted towards loss of love and affection to the widow is reduced.
12. The three children were granted one lakh each for loss of love and affection on the death of their father and is confirmed.
13. The medical expenses in a sum of Rs.40,000/-, is justified taking note of the fact that for thirty-four days the deceased was hospitalized. The funeral expenses of Rs.25,000/- is also not excessive and same is confirmed. The interest of 7% per annum granted by the Tribunal shall stand confirmed.
14. The penal interest of 9% is contrary to the provisions of the Motor Vehicles Act and hence set aside. There is no provision in the Motor Vehicles Act for imposing penal interest. Therefore, the compensation granted by the learned Tribunal is modified as follows:
S. No. Head under which compensation granted Amount 01 Loss of pecuniary benefits:
(Rs. 22, 647/- x 12 x 11) Rs. 29, 89, 404/-
02 Loss of Consortium & loss of Estate Rs. 1,00,000/-
CIMA No. 201/2014 Page 5 of 10
03 Loss of Love and Affection
(1 Lakh each of the three children) Rs. 3,00,000/-
04 Medical Expenses Rs. 40,000/-
05 Funeral Expenses Rs. 25,000/-
Total Rs. 34,54,404/-
15. The other issue that arises for consideration is whether in the absence of notice under Section 80 of the CPC, the claim petition is maintainable. This issue has been answered by the full bench of the Madhya Pradesh High Court (Indore Bench) in case titled 'Mangilal Ganpat V. The Union of India', reported in 'AIR 1974 Madhya Pradesh 159'. Paragraph Nos. 9 and 11 of the said decision are reproduced as under:
"9. On the footing that the Claims Tribunal is a Civil Court it must be further, seen whether Section 80 of the Code of Civil Procedure is attracted when a claim is preferred before the Tribunal against the State or a public servant. In 1972 MPLJ 485 = (AIR 1972 Madh Pra 125) (supra) it has already been pointed out that when special Courts are established by a sovereign State, the provisions of the Code of Civil Procedure become applicable to the proceedings of those Courts unless specifically excluded. Under Section 110-A of the Motor Vehicles Act an application for compensation is required to be presented before the Claims Tribunal within the specified period. Section 110-C provides that the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit, and it further provides that the Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure. This provision clearly shows that the procedure to be followed is entirely left to the discretion of the Claims Tribunal and it would exercise the powers of the Civil Court conferred on it under the Code of Civil Procedure for taking evidence on oath, enforcing the attendance of witnesses and discovery and production of CIMA No. 201/2014 Page 6 of 10 documents etc. The rules framed under the Motor Vehicles Act do not also make the Code of Civil Procedure as such applicable to the procedure to be followed by the Claims Tribunal. In State of Seraikella v. Union of India, AIR 1951 SC 253 it was held by Mahajan, J. (as his Lordship then was):
"By Section 204 of the Government of India Act exclusive original Jurisdiction was conferred on the Federal Court in respect of suits between States and States which were outside the ken of the Code of Civil Procedure. By Section 214 of the Government of India Act, the Federal Court was authorized to make its own rules of procedure. The Code in Section 4 has enacted that it does not affect any special jurisdiction or special forms of procedure. Rule 5 of the Federal Court Rules framed under Section 214 of the Government of India Act lays down in clear and unambiguous language that none of the provisions of the Code of Civil Procedure shall apply to any proceedings in the Federal Court unless specifically incorporated in these rules. The provisions of Section 80 have not been incorporated in the rules and that being so, Section 80 cannot affect suits instituted in the Federal Court under Section 204 of the Government of India Act, 1935." [P. 266] The contention of the Attorney General that the condition precedent for instituting a suit laid down in Section 80 was not a matter of procedure falling within the ambit of Section 214 of the Government of India Act and that the Federal Court could not make rules eliminating the condition precedent laid down in Section 80 before a suit could be instituted against the Government was repelled. It was held by his Lordship:
".........this contention is not sound. Section 214 lays down that the Federal Court may from time to time with the approval of the Governor General make rules of court for regulating generally the practice and procedure of the Court. 'Practice' in its larger sense like procedure, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law that gives and defines the right. 'Procedure' as denned in Wharton means the mode in which successive steps in litigation are taken. It seems to me that what is enacted in Section 80 is the first step in litigation between the parties when the cause of action is complete. Section 80 in effect provides that an advance copy of the plaint should be served on the defendant and no suit should be instituted in Court until the expiry of two months after such service. Section 80 does not define the rights of parties or confer any rights on the parties. It only provides a mode of procedure for getting the relief in respect of a cause of CIMA No. 201/2014 Page 7 of 10 action. It is a part of the machinery for obtaining legal rights, i.e., machinery as distinguished from its products." (P. 266). The situation in the present case is not, in any way different. What procedure is to be followed by the Claims Tribunal is left to its discretion subject to rules framed by the State in that behalf. We have already pointed out that no rules have been made so as to apply Section 80 of the Code of Civil Procedure to the proceedings before the Claims Tribunal. The provisions of the Code of Civil Procedure have been made applicable only to the extent of taking evidence on oath, enforcing the attendance of witnesses and compelling of discovery and production of documents etc. It cannot, therefore, be said that Section 80 of the Code becomes automatically applicable to the proceedings before the Claims Tribunal. In this connection, reference may be made to a decision of the Division Bench of the Bombay High Court in the Employees' State Insurance Corporation, Bombay v. Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd., AIR 1967 Bom 472. Section 96 of the Employees' State Insurance Act, 1948, empowers the State Government to make rules for certain matters including the procedure to be followed in proceedings before the Employees' Insurance Courts and for execution of orders made by such Courts. In exercise of the above said powers the State Government had framed Rule 17 which provided that every application to the Court shall be brought within 12 months from the date on which the cause of action arose or, as the case may be, the claim became due. This Rule was challenged on the ground that it was in excess of the powers conferred on the State Government inasmuch as Section 96 only authorised framing of rules for the procedure to be followed in proceedings before such Courts, that is to say, after the proceedings were initiated and not for any antecedent activity. This contention was upheld by the Bombay High Court and the Rule was struck down. While discussing this matter, it was observed by the Bench:
"There can be no dispute that the law of limitation is a procedural or adjectival Law and is not a part of substantive law. It is procedural or adjectival, because it regulates the manner in which substantive rights can be enforced by judicial action. In that sense the impugned Rule 17 is clearly a procedural rule. That does not, however, mean that the rule is a part of the procedure to be followed in proceedings', on which topic the State Governments have been empowered by Section 96(1)(b) to make rules. In deciding a case a Court has to apply procedural law as well as substantive law. But it is clear that the whole of the procedural law is not on that account a part of the procedure 'followed' by a Court. An illustration may help in making this distinction clear. In this very Act there is Section 80 which lays down that an Employees' Insurance Court shall not direct the payment of CIMA No. 201/2014 Page 8 of 10 any benefit to a person unless he has made a claim for such benefit in accordance with the regulations made in that behalf, within twelve months after the claim became due. Mr. Nariman referred in this connection to the regulation making powers of the Corporation under Section 97(2)(viii) and argued, quite rightly, that Section 80 requires an employee to make a claim within twelve months to the Corporation for any benefit which is receivable by him under the Act, and that the making of such a claim to the Corporation is a condition of the maintainability of his application in an Employees' Insurance Court. Now, Section 80 is clearly a procedural section, for it regulates the manner in which a person should proceed to secure the payment of any benefit to which he may be entitled under the Act. It cannot, however, be claimed that because Section 80 is procedural in character it is a part of the procedure to be followed in proceedings before an Employees' Insurance Court. Another instance is of Section 80 of the Code of Civil Procedure which requires a notice to be given to the Government or a public officer before filing a suit against them. That section is also procedural, but it cannot be held to be a part of the procedure to be followed in a proceeding before a Court." (P. 477).
From the decision of the Bombay High Court it is clear, that a distinction is made between the procedure that a party may be required to follow as a condition precedent for instituting the proceedings, and the procedure that a Court is required to follow after the proceedings are instituted. Now, under the. Motor Vehicles Act no provision is made regarding any procedure to be followed before presentation of the claim before the Claims Tribunal. The only antecedent procedure prescribed is that the application should be filed within a specified period. As to the procedure that is to be followed by the Claims Tribunal, the same is entirely left to its discretion subject to rules made by the State Government and the indications given in Subsection (2) of Section 110- C of the Motor Vehicles Act. In this view of the matter, we are inclined to hold that the provisions of Section 80 of the Code of Civil Procedure are not attracted in the matter of filing a claim petition before the Claims Tribunal constituted under the Motor Vehicles Act. We may observe that in M. P. State Road Transport Corporation v. Munnabai (supra) the question whether Section 80 of the Code of Civil Procedure was attracted in the claim proceedings was not directly before that Court. The Division Bench proceeded on the assumption that the provisions of Section 80 were attracted and on that basis the claim of the respondents was confined to the amount mentioned in the notice. As there is no discussion of the point involved, it is not necessary to say anything further on that matter.CIMA No. 201/2014 Page 9 of 10
10. In the view we have taken it is not further necessary to decide as to whether the claims petition can be equated with a 'plaint' and in that sense whether it can be said that the proceedings before the Claims Tribunal are by way of a suit or not.
11. Our answer to the question referred to us is:
"Notice under Section 80, C.P.C. is not necessary for an application for compensation when filed under Section 110-A of the Motor Vehicles Act, before a Claims Tribunal constituted under the Act."
16. The plea taken by the appellant that State has not been added as a party also has to fail because the registered owner of the ambulance van in question is the Block Medical Officer, and he has been made as a respondent in the claim petition and he is one of the appellants herein. Therefore, the plea of non- joinder of the State as a party has no legal basis. Accordingly, same is rejected.
17. The appeal is party allowed on quantum and default interest. The appellant as requested by Mr. Dar, the learned AAG, is granted six weeks' time to deposit the balance award amount as per order of this Court and the claimants will be entitled to withdraw the amount as per the order of this Court on the same proportion as has been ordered by the Tribunal after proper verification.
18. Registry to return the record of the Court below with utmost dispatch.
(Ramalingam Sudhakar) Judge SRINAGAR September 18th, 2017 "TAHIR"
CIMA No. 201/2014 Page 10 of 10