Gauhati High Court
Union Of India (Uoi) And Anr. vs Nanda Rani Debnath (Bhowmik) And Ors. on 15 January, 1998
Equivalent citations: 1999ACJ567
Author: A.K. Patnaik
Bench: A.K. Patnaik
JUDGMENT N.G. Das, J.
1. These two appeals, viz., M.A. (F) No. 73 of 1990 under Section 173 of Motor Vehicles Act, 1988 Thereinafter referred to as 'the Act') and the cross-appeal, viz., No. 212 of 1997 under Order 41, Rule 22 of Civil Procedure Code filed by the Union of India and another and Nanda Rani Debnath and others respectively are directed against the judgment and award dated 24.8.1990 passed by the learned Member, Motor Accidents Claims Tribunal, West Tripura, Agartala in Title Suit (MACT) No. 39 of 1988.
2. We have heard Mr. K.N. Bhattacharjee, learned Senior Central Government Standing Counsel appearing on behalf of the appellant Union of India and Mr. S. Deb, the learned senior counsel appearing on behalf of Nanda Rani Debnath (Bhowmik) and others, cross-objectors.
3. To appreciate the contentions canvassed at the bar by learned Counsel for the parties, the facts relevant for the purpose may be stated as under: On 2.4.1988 in a motor accident which took place at about 9.55 a.m. on Agartala-Airport Road near a place called Gurkha Basti one Shyamapada Bhowmik, who was a Sub-Divisional Agricultural Officer under the Directorate of Agriculture, Government of Tripura, suffered grievous injuries on his person as he was knocked down by a vehicle bearing No. 84C 37434. H. Bhowmik was at once removed to G.B. Hospital, but he succumbed to the injuries on 6.4.1988. After his death his legal representatives, namely, the present cross-objectors presented an application before the Claims Tribunal claiming compensation to the tune of Rs. 2,88,500. It was alleged that the vehicle was driven rashly and negligently and due to such rash and negligent driving the accident occurred and as a consequence thereof the deceased suffered injuries on his person and ultimately died.
4. After receiving the application the learned Claims Tribunal issued necessary notices to the parties, namely, the present appellants. Both the parties adduced evidence in support of their respective claims. Learned Member, Motor Accidents Claims Tribunal after appreciation of the evidence on record arrived at the conclusion that the monthly income of the deceased was Rs. 3,500 and that he could at least contribute a sum of Rs. 3,000 to the dependants who were five in number. Learned Member, Motor Accidents Claims Tribunal thereafter proceeded to determine the compensation to be awarded and taking the age of the deceased to be 471/2 years came to the conclusion that the deceased could render service at least for a period of 9 years and 6 months. He, thus, came to the conclusion that the dependants, i.e., cross-objectors were deprived of a sum of Rs. 3,42,000 (Rs. 3,000 x 12 x 9 years and 6 months) plus loss of pensionary benefits which he grossly calculated at Rs. 50,000. As such the Claims Tribunal arrived at the conclusion that the dependants were deprived of a sum of Rs. 3,92,000. But the learned Claims Tribunal deducted '/3rd of this amount as the statutory deduction and allowed a sum of Rs. 50,000 towards suffering of mental agony, etc. Thus calculating, the Tribunal held that the dependants would be entitled to get a sum of Rs. 2,17,950.
5. Aggrieved by this award the appellant, namely, the Union of India and another preferred the present appeal and soon after receipt of the notice of this appeal the cross-objectors also filed a cross-objection under the provisions of Order 41, Rule 22 of Civil Procedure Code in which they challenged the correctness of the findings of the Tribunal in calculating the amount of compensation to be awarded to the dependants of the deceased.
6. Before proceeding to deal with the merits of the appeal, it is pertinent to mention here that at the very outset a question arose as to the maintainability of the cross-objection which the cross-objectors filed under the provision of Order 41, Rule 22 of the Code of Civil Procedure. The court desired to know if such a cross-objection can be filed under the provisions of Order 41, Rule 22 of Civil Procedure Code. Mr. S. Deb, the learned senior counsel appearing on behalf of the cross-objectors, has submitted that in absence of any specific provision in the Rules that were framed by the High Court the general procedure, i.e., the Code of Civil Procedure will come into play for disposal of the appeal. It is not in dispute that there is no provision in the Motor Vehicles Act, 1939 or the Motor Vehicles Act, 1988 in relation to the manner of disposal of the appeal. Therefore, Mr. Deb has referred to a number of decisions in support of his contention that in absence of any rules or procedure the general procedure, i.e., Order 41, Civil Procedure Code will come into play in respect of the manner of disposal of the appeal and Order 41, Rule 22, Civil Procedure Code providing for cross-objection will also be applicable.
7. In support of his contention Mr. S. Deb has at first referred to a decision of the Supreme Court rendered in the case of Collector, Varanasi v. Gauri Shanker Misra AIR 1968 SC 384. In this case the learned Counsel for the respondents raised a preliminary objection as to the maintainability of the appeal on the ground that no special leave could have been granted by the court under Article 136 of the Constitution as the judgment appealed was neither of a court nor of Tribunal. The matter related to arbitration under the Defence of India Act. Section 19 (1) (f) of the Defence of India Act provided for an appeal against the order of arbitrator. But the Act and the Rules were silent about the manner in which the appeal was to be disposed of. While dealing with this question their Lordships made the observation under para 4 of the judgment, the relevant portion of which reads:
...We were informed that neither the Act nor the Rules framed thereunder, prescribe any special procedure for the disposal of appeals under Section 19 (1) (f). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal had reached the High Court, it had to be determined according to the Rules of Practice and Procedure of that court. The rule is well settled that when a statute directs that an appeal shall lie to court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was stated by Viscount Haldane, L.C. in National Telephone Co. Ltd. v. Postmaster General 1913 AC 546, thus:
When a question is stated to be referred to an established court without more, it in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches'.
8. Relying on this decision the High Court of Punjab and Haryana in its judgment in the case of Major Triloki Nath Bhargava v. Jaswant Kaur 1975 ACT 259 (P&H), also held that the cross-objections are maintainable at the hands of the respondents in an appeal under Section 110-D of the Act. The same view was also taken by a Division Bench of the Rajasthan High Court in the case of Automobile Transport (Rajasthan) Private Ltd. v. Dewalal 1977 ACJ 150 (Rajasthan). In this case their Lordships held as under:
In respect of the cross-objection it was urged that it was not maintainable as there is no provision for filing cross-objections in the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'). Section 110-D thereof only provides for an appeal by any person who is aggrieved by an award of a Claims Tribunal. This provision, it is said, entitled the respondents to file an appeal if they felt aggrieved by the award of the Tribunal in question. Some decisions were also cited in support of this contention but they do not appear to us to be good law. We agree respectfully with the opinion expressed in K. Chandrashekara Naik v. Narayana 1974 ACJ 522 (Karnataka), that in an appeal under Section 110-D of the Act, the respondents can file cross-objections by invoking the provisions of Order 41, Rule 22, Civil Procedure Code because where a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court, vide Collector, Varanasi v. Gauri Shanker Misra AIR 1968 SC 384. We accordingly overrule the contention that it is not permissible to the claimants to invoke the provisions of Order 41, Rule 22, Civil Procedure Code in order to file their cross-objection.
9. Keeping the above decision in view, it may be stated that neither 1939 Act nor 1988 Act prescribes any procedure for disposal of the appeal filed before the High Court under the said Act. The High Court has also not framed any Rules to deal with such appeals. We are, therefore, of the view that provisions of Order 41, Rule 22 of Civil Procedure Code will very much apply and accordingly we hold that this cross-objection is maintainable as it has been filed within the prescribed period of limitation.
10. Now we will proceed first to take up the appeal filed by the Union of India. The only point of criticism which has been urged by Mr. Bhattacharjee, the learned Senior Central Government Standing Counsel appearing on behalf of the appellant Union of India is that the learned Tribunal did not consider the aspect of contributory negligence on the part of the victim. It was stated by Mr. Bhattacharjee that the victim was also riding the bicycle at the time of occurrence and that it was because of his negligence the accident occurred. But on going through the evidence on record as well as the pleadings we find that this plea was neither taken nor any evidence was adduced in support of this contention. We are, therefore, of the view that this point is not acceptable. Mr. Bhattacharjee did not raise any other point.
11. Now as regards the cross-objection, Mr. Deb, learned senior counsel appearing for the cross-objectors has argued that in view of the decision rendered by the Supreme Court in the case of U.P. State Road Trans. Corporation v. Trilok Chandra 1996 ACJ 831 (SC), the award passed by the learned Tribunal must be considered to be erroneous as learned Tribunal made the finding without applying the multiplier method and that the learned Tribunal also made a deduction without any justification. On going through the evidence on record we find that the deceased left behind 5 dependants including two minors. There is, however, no dispute that the monthly income of the deceased was Rs. 3,500 as was computed by the learned Tribunal. It was also not in dispute that the deceased died at the age of 47 years and 6 months. Therefore, keeping these undisputed facts in view, we proceed to ascertain the loss suffered by the dependants.
12. In the aforesaid case the Supreme Court under para 15 of its judgment made the observation that annual dependency has to be assessed by application of appropriate multiplier and that the members of the family, i.e., the dependants are to be broken into units, taking two units for an adult and one for minor. In the present case, the deceased left behind five dependants including his wife. Therefore, deceased and his wife will make 2 + 2 = 4 units and 2 other adults will again make 2 + 2 = 4 units and for 2 minors one unit will be for each. Thus totalling 10 units. The share per unit worked out to Rs. 3,500/10 = Rs. 350. It can thus be assumed that Rs. 700 p.m. was spent on the deceased. Since he was a working member some provision for his transport and out of his pocket expenses has to be estimated. In the present case, the estimate is at Rs. 300. Thus the amount spent on the deceased works out to Rs. 1,000 per month. Leaving a balance of Rs. 3,500 - Rs. 1,000 = Rs. 2,500. The annual dependency thus comes to Rs. 2,500 x 12 = Rs. 30,000. This annual dependency has to be multiplied by an appropriate multiplier to assess the compensation under the head of loss to the dependants. It has already been stated that deceased died at the age of 47 years and 6 months. We are of the view that 10 will be appropriate multiplier in this case. Therefore, on application of this multiplier 10, the compensation comes to Rs. 30,000 x 10 = Rs. 3,00,000.
13. In view of our above findings, we hold that cross-objectors will be entitled to a sum of Rs. 3,00,000 as compensation in equal shares. The judgment and award passed by the Tribunal is maintained but modified to the extent indicated above. We have already been told that a sum of Rs. 1,25,000 has already been received by the cross-objectors. But it is clear from the records that two cross-objectors were minors. Therefore, the share of the minors will be deposited in a nationalised bank under the fixed deposit scheme and that amount can be withdrawn during the majority of the minors after taking necessary permission from the District Judge, West Tripura District. The interest as awarded by the Tribunal is maintained.
14. The result of the aforesaid discussions is that the appeal filed by the Union of India and another is dismissed and the cross-objection is allowed to the extent indicated above. No order as to costs. Appeal dismissed.