Gauhati High Court
National Insurance Co. Ltd vs Abbas Ahmed And 2 Ors on 17 March, 2020
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/6
GAHC010184112014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp. 21/2014
1:NATIONAL INSURANCE CO. LTD.
A COMPANY REGISTERED AND INCORPATED UNDER THE COMPANIES
ACT, 1956 HAVING ITS REGISTERED OFFICE AT 3, MIDDLETON STREET,
KALKATA 700071 AND ONE OF ITS REGIONAL OFFICE AT G.S. ROAD,
BHANGAGARH, GUWAHATI-5, REPRESENTED BY ITS CHIEF REGIONAL
MANAGER.
VERSUS
1:ABBAS AHMED and 2 ORS.
S/O MR. ISMAIL AHMED, HILL VIEW, MARGHERITA, P.O. and P.S.
MARGHERITA, DIST. TINSUKIA, ASSAM.
2:PABITRA GOGOI
S/O SRI DEBEN CH. GOGOI
R/O BORKULA VILL. NWHOLIA NO. 2
P.O. NAHOLIA
P.S. DULIAJAN
DIST. DIBRUGARH
ASSAM OWNER OF 709 TATA BUS NO. AXK-5477
3:SURESH GIRI
S/O LATE MOHENDRA GIRI
R/O SEGUNBARI BLOCK TINALI
P.O. and P.S. MARGHERITA
DIST. TINSUKIA
ASSAM
DRIVER OF 709 TATA BUS NO. AXK-547
Advocate for the Petitioner : MS.S ROY
Advocate for the Respondent : Mr. S. Banik
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT
Date : 05-03-2020 The present appeal has been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 challenging a judgment and award dated 03.09.2013 passed by the learned MACT, Tinsukia in MAC Case No. 28 of 2019. By the said judgment, an amount of Rs.7,77,200/- has been awarded to the claimants.
2. Before dealing with the grounds of appeal, it would be convenient to state the facts of the case in brief.
3. On 01.12.2010, when Smti Priya Rai Ahmed, the wife of the claimant was proceeding on foot alongwith her elder sister, they were hit by a 709 TATA Bus bearing No. AX-K-5477 as a result of which the deceased succumbed to her injuries on the spot itself and her sister had sustained injuries. It is the case of claimant husband that the deceased was the school teacher earning Rs.15000/- per month and the offending vehicle was duly covered by a policy of the OP No. 3-Insurance Company. The said claim was duly contested by the OP Nos. 1 and 3 by filing written statement.
4. The learned Tribunal after examining the respective cases of the parties had framed the following issues:-
"(i) Whether the deceased Priya Rai Ahmed died in a motor accident caused by vehicle bearing Registration No. AX-K-5477 (Tata bus) on 01.12.2010.
(ii) Whether the claimant is entitled to get compensation? If so, to what extent and from whom?"
5. The claimants had adduced two numbers of witnesses however no witnesses were produced on behalf of the defendant.
6. Shri Abbas Ahmed, the claimant in the present case had deposed as CW 1. He stated that the deceased Priya Rai Ahmed was his wife and she was serving as an Assistant Teacher at Margherita on a contract basis for a salary of Rs. 8,000/- per month and has also earning an Page No.# 3/6 amount of Rs. 7,000/- per month from Tuitions. CW 2, Dr. Seema Rai Kurmi, deposed that the deceased was working as an Assistant Teacher in the Gandhi Vidya Mandir HE School Margherita and was earning a monthly salary of Rs.8,000/- apart from Rs.7,000/- from tuitions per month. The Head Master of the said school was examined as CW 3 and his deposition was consistent with regard to the monthly salary of the deceased.
7. The learned Tribunal held that in absence of any document regarding the income, the projected income could not be accepted and it was assumed that the deceased was earning Rs.4,000/- per month. By taking a multiplier of 17 and also the other aspects into consideration, the aforesaid award of Rs.7,77,200/- alongwith the interest @ 6% has been arrived at. It is further provided that in case of delay, the interest would be at an enhanced rate of 12%. It is the legality and validity of the award which is the subject matter of challenge in the present appeal.
8. I have heard Ms. S. Roy, learned counsel for the appellant/Insurance Company. I have also heard Shri S. Banik, learned counsel for the contesting respondent/claimant. The records of the case which were called for have also been carefully examined.
9. Ms. Roy, the learned counsel for the appellant has contended that the claimant who is the husband of the deceased was not a dependant and therefore he is not entitled to the compensation upon the death of his wife. Secondly, it is submitted that the driver of the offending vehicle did not have a proper license which consequently leads to violation of the policy conditions and therefore no liability can be saddled with the Insurance Company. Drawing the attention of this Court to the cross-examination of the husband/claimant (CW1) the learned counsel has submitted that the claimant has admitted that he was running a Fair Price and Grocery Shop and the learned Tribunal committed serious error in not framing an issue on this aspect of dependency.
10. On the other hand, Shri Banik, the learned counsel for the claimant has argued that though no appeal has been preferred by the claimants praying for enhancement of the Award, Page No.# 4/6 the findings arrived at so far as monthly salary of the deceased is concerned is wholly perverse and the materials before the Tribunal have been wholly ignored. Referring to the records, specially Ext. 13, which is an agreement on contractual engagement of Teacher, Clause 3 of the same categorically mentions that the monthly salary was Rs.8,000/- and in the said agreement, the claimant who is the husband of the deceased was a witness and his signature was also proved as Ext 13(ii). It is further submitted that the vehicle in question was duly covered and the policy was exhibited as Ext. D. Dealing with the aspect of improper driving license, it is submitted that a bare look at the driving license does not give an impression that the same is not proper and rather its authenticity cannot be doubted. It is submitted that apart from dismissing the present appeal, it is a fit case for enhancing the Award.
11. In support of his submission, the learned counsel for the respondent/claimant has placed reliance upon a decision of the Hon'ble Supreme Court dated 13.01.2020 passed in Civil Appeal Nos. 242-243 of 2020 (National Insurance Company Ltd. Vs Birender & Ors).
12. In the aforesaid case of Birender (supra) The Hon'ble Supreme Court has discussed Section 166 of the Motor Vehicles Act regarding application for compensation which can be filed by, amongst others all or any of the legal representatives. It has further been held that a major who was not fully dependent on the deceased would be still covered by the expression legal representatives. The case of Manjuri Bera Vs Oriental Insurance Co. Ltd. reported in (2007) 10 SCC 643 have also been relied upon. The relevant part of the judgment is quoted herein below:
"14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166 (1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
9. In terms of Clause (c) of Sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the Page No.# 5/6 deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act.
10. The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1)(g).
12. 10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989]2SCR810 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr. [1987]3SCR404 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S. H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning."
13. The rival contentions made by the learned counsel have been duly considered and the records have been carefully examined.
14. Loss of dependency is a legal issue. To deal with the said issue, this Court by following the law laid down by the Hon'ble Supreme Court in the aforesaid cases of Birender (supra) and Manjuri Bera (supra) is persuaded to hold that Section 166 of the Act allows legal representatives to file a claim. Though the claimant in the instant case may not be fully Page No.# 6/6 dependent on the income of the deceased, by following the law laid down by the Hon'ble Apex Court in the aforesaid cases, this Court is of the view that the same aspect would not come into the way for grant of compensation under the Motor Vehicles Act.
15. This Court has also noticed that in spite of there being documentary evidence of the monthly income of the deceased being Rs.8000/-, the same has been held to Rs.4,000/- only per month, which does not appear to be reasonable, that too without recording any proper justification. However, in absence of an independent challenge by the claimant for enhancement of the Award, the same cannot be accepted.
16. In view of the aforesaid facts and circumstances, this Court is of the opinion that no case for interference of the judgment and award dated 03.09.2013 is made out and accordingly the appeal is dismissed. It has been submitted that 50% of the Award was already deposited in this Court on 26.02.2014. It is needless to observe that the same shall be adjusted at the time of making the final payments.
17. No costs.
JUDGE Comparing Assistant