Calcutta High Court (Appellete Side)
Shrimati Dipali Pal @ Dipurani Pal @ Dipu ... vs United India Insurance Co. Ltd. And Ors on 27 November, 2013
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Presents :
The Hon'ble Justice Tapan Kumar Dutt
And
The Hon'ble Justice R.K. Bag
F.M.A. 1244 of 2009
With
F.M.A. 1245 of 2009
With
C.A.N. 11429 of 2013
Shrimati Dipali Pal @ Dipurani Pal @ Dipu Pal and Ors.
... Appellants.
Vs.
United India Insurance Co. Ltd. and Ors. ... Respondents.
For the Appellants : Mr. Nanda Lal Nayak,
Mr. Asit Kumar Santra
For the Respondent
No. 1 : Mr. Rajesh Singh
For the Respondent
Nos. 4 & 5 : Mr. Rabindra Nath Mahato
Heard on: 20.11.13, 21.11.13 and 25.11.13
Judgment on : 27.11.2013.
Tapan Kumar Dutt, J.
The learned Advocate for the appellants submits that he has filed an application being C.A.N. 11429 of 2013 in view of the fact that the appellant no. 2 has since attained majority. The said learned Advocate also submits that along with such application he has filed a duly executed Vakalatnama on behalf of the appellant no. 2.
Let it be recorded that the appellant no. 2 has attained majority and the said appellant should now be shown as major.
The department shall make the necessary correction in the cause title of the Memorandum of Appeal immediately.
This Court has heard the learned Advocates for the respective parties and has also considered the relevant materials on record.
One Ashok Kumar Pal at the age of 37 years met with an accident and died on 25.06.2001. It appears that the said Ashok Kumar Pal was an employee of a certain company and it was claimed by the original claimants, that is, the appellants in both the appeals that the salary of the said Ashok Kumar Pal was Rs. 8,400/-. The appellants in both the appeals filed an application under Section140 of the Motor Vehicles Act, l988 and in the said application the respondent nos. 4 and 5 filed a counter claim. It may be recorded here that the appellant no. 1, Smt. Dipali Pal claimed to be the wife of the said Ashok Kumar Pal and the appellant nos. 2 and 3, namely, Krishna Kumar Pal and Chinmay Kumar Pal claimed to be the minor sons of the said Ashok Kumar Pal through the second marriage of Ashok Kumar Pal with Smt. Dipali Pal. The respondent nos. 4 and 5 are the wife and the son of the said Ashok Kumar Pal and the stand taken by the respondent nos. 4 and 5 is that the respondent no. 4 is the legally married wife of the said Ashok Kumar Pal and the respondent no. 5 is the son of the said Ashok Kumar Pal and Smt. Sumita Rani Pal. According to the respondent nos. 4 and 5, the said Ashok Kumar Pal at the time of his death had only one legally married wife, that is, the respondent no. 4 and the appellant no. 1 is not the legally married wife of the said Ashok Kumar Pal. The learned court below considered the said application under Section 140 of the said Act and also the counter claim made by the said respondent nos. 4 and 5 and ordered that the application under Section 140 by the appellants herein be dismissed and the counter claim made by the said respondent nos. 4 and 5 be allowed. Thus, Rs. 50,000/- was awarded in favour of the respondent nos. 4 and 5 under Section 140 proceedings.
The present appellants filed another application under Section 166 of the said Act of l988 claiming compensation of Rs. 6,00,000/-. It appears that during the pendency of the said proceedings the respondent nos. 4 and 5 intervened in the matter and claimed the entire compensation, as according to the respondent nos. 4 and 5, since the alleged marriage between Ashok Kumar Pal and Smt. Dipali Pal was void, the children born through such marriage also cannot make any claim in respect of the compensation amount. According to the said respondent nos. 4 and 5, the entire compensation amount should be awarded in favour of the said respondent nos. 4 and 5. It appears that the learned court below considered the claims of the respective parties and also the stand taken by the respondent-Insurance Company and came to the conclusion that no valid marriage was held between Ashoke Kumar Pal and Smt. Dipali Pal and, therefore, none of the appellants are entitled to any part of the compensation amount. The learned court below held that the respondent nos. 4 is the only legally married wife of the said Ashok Kumar Pal and the son born through such marriage between Ashok Kumar Pal and Smt. Sumita Rani Pal is also entitled to a share of the compensation amount. Thus, the learned court below fixed the compensation amount at Rs. 3,65,000/- which should be reduced by Rs. 50,000/- in case the said amount had been paid to the persons in faovur of whom the award was passed. It appears from the impugned judgment that the learned court below had fixed Rs. 3,65,000/- as compensation amount without disclosing any reason as to how such figure was arrived at. The appellants have preferred both the appeals against the two proceedings, as aforesaid, under Section 140 of the said Act and also under Section 166 of the said Act.
The learned Advocate appearing on behalf of the appellants submits that it is true that it could not be proved that there was a valid marriage between the said Ashok Kumar Pal and the appellant no. 1 but that does not disentitle the appellant nos. 2 and 3 from having a claim in the compensation amount. The said learned Advocate submitted by referring to a reported decision, that is, AIR l992 S.C. 756 (S.P.S. Balasubramanyam vs. Suruttayan alias Andali Padayachi and ors. ) that if two persons, that is, man and woman continuously lived under the same roof for a long time and cohabited for a long number of years then a presumption arises that such persons live as husband and wife. According to the said learned Advocate, the said Ashok Kumar Pal and Smt. Dipali Pal had been living together and out of such living together two children were born, that is, the appellant nos. 2 and 3 and, therefore, according to the said learned Advocate, it should be presumed that there was a marriage between the said Ashok Kumar Pal and the appellant no. 1. The said learned Advocate submitted that compensation amount should be divided into two parts - one part should go to the respondent nos. 4 and 5 and the other part should go to the appellants. The said learned Advocate, thus, submitted that the appellants are entitled to 50% of the compensation amount awarded under Section 140 of the said Act and also 50% of the compensation amount awarded under Section 166 of the said Act. The said learned Advocate also submitted that the compensation amount of Rs. 3,65,000/- as awarded by the learned court below should be enhanced considering the pay certificate relating to the said Ashok Kumar Pal which is on record.
The learned Advocate appearing on behalf of the respondent-Insurance Company submitted that so far as the respondent-Insurance Company is concerned the said respondent is not really affected by the claims made by the appellants and the respondent nos. 4 and 5 in between one and other. The said learned Advocate submitted that it is for the appellants and the respondent nos. 4 and 5 to settle amongst themselves as to who should get what share in the compensation amount if at all the appellants are entitled to any share in the compensation amount under the law. The said learned Advocate for the respondent-Insurance Company, however, submitted that it is true that the learned court below has not disclosed the basis on which the compensation amount was arrived at but considering the pay certificate, according to the said learned Advocate, Rs. 6,000/- may be considered as monthly income of the deceased during his life-time for the purpose of calculating the compensation amount.
The learned Advocate for the appellants and the learned Advocate for the respondent nos. 4 and 5 submitted that certain deductions which have been taken into consideration by the learned court below ought not to have been taken into consideration for the purpose of calculating the compensation amount and thus the compensation amount should be enhanced. On perusal of the impugned judgment, it does not appear that any particular deduction was considered by the learned court below while calculating the compensation amount.
Having heard the learned Advocates for the respective parties and having considered the materials on record, we are of the view that we can safely consider Rs. 6,000/- as the monthly income of the deceased during his lifetime. Thus, the yearly income of the said Ashok Kumar Pal can be considered as Rs. 72,000/-. If 1/3rd of the said amount is deducted on account of personal expenses of the deceased then in that event the loss of dependency comes to Rs. 48,000/-. In the instant case if the multiplier16 is applied then in that event the amount comes to Rs. 7,68,000/-. To such amount general damage of Rs. 9,500/- should be added and thus the total compensation amount comes to Rs.7, 77,500/- which is inclusive of Rs. 50,000/- under Section 140 of the Motor Vehicles Act.
The lawful claimants to the compensation amount would also be entitled to interest at the rate of 7% per annum in respect of the period commencing from the date of filing of the claim application till the date of the respective deposits. Now coming to the claim made by the appellants on the one hand and the respondent nos. 4 and 5 on the other hand, this Court has considered the respective submissions made by the learned Advocates for the respective parties. The learned Advocate for the appellants, as noted above, has already submitted that though the alleged second marriage could not be proved in accordance with law, the children born out of such marriage are entitled to a share in the compensation amount. He has referred to the provisions of Section 16 of the Hindu Marriage Act, l955.
The said Section 16 is quoted below :
"16. Legitimacy of children of void and voidable marriages.--
(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, l976 (68 of l976), and whether or not a decree of nullity is granted in respect of that marriage under this Act ad whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
The said learned Advocate cited a decision reported at (2003) 1 S.C.C. 730. In paragraph 4 of the said reports the Hon'ble Supreme Court was pleased to observe " if the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of Parliament in enacting the Hindu Marriage Act , l955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only."
It is also noted in paragraph 5 of the said reports which is quoted below : "5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, "any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents". In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further right than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal."
The said learned Advocate thus submitted that in any event the appellant nos. 2 and 3 cannot be denied their respective claims to the compensation amount.
The learned Advocate appearing on behalf of the respondent nos. 4 and 5 strenuously argued that reading of Section 16 of the said Act indicates that one has to presume that there must have been a marriage between the parents of the children that is to say that there should have been some ostentatious performance of certain ceremony before one can take advantage under Section 16 of the said Act. The said learned Advocate cited a decision reported at AIR l994 S.C. 135 (Surjit Kaur v. Garja Singh and Ors.) and referred to paragraph 13 of the said reports in support of his contention that mere living as husband and wife does not, at any rate, confer the status of husband and wife.
We do not see any reason as to how the decision rendered in the said reports can be of any assistance in the instant case as it appears from the facts of the instant case that valid marriage was subsisting even when the said Ashok Kumar Pal had allegedly started living with the appellant no. 1. Moreover, the learned Advocate for the appellants have not tried to establish that there was a valid marriage between Ashok Kumar Pal and the appellant no. 1. The said learned Advocate's contention was that even though the alleged second marriage could not be proved, the children born to such marriage could not be deprived.
This Court is unable to accept the submissions made by the learned Advocate for the respondent nos. 4 and 5. The said learned Advocate submitted that there should be some ostentatious display of the marriage ceremony at the time of second marriage if one has to take advantage of Section 16 of the said Act of l955. Reading the said Section as it is, this Court is of the view that the purpose for which the said Section was provided was that the children born through an invalid marriage and/or void marriage should not be deprived to the rights of the parents' property. It would appear from the reading of Section 11 of the said Act of l955 that the expression "marriage solemnized" has been used and yet the said Section says that a marriage solemnized can be declared as null and void. So, therefore, it does not necessarily mean that certain ceremonies have to be performed at the time of the purported second marriage for the Court to hold that Section 16 may be applied in such a case. If a marriage is declared null and void, it means it is void ab initio, i.e. from the very beginning. Therefore, the performance or non- performance of any ceremony relating to the purported marriage is inconsequential.
We, thus, cannot accept the submissions made by the learned Advocate for the respondent nos. 4 and 5 in this regard. On the other hand, we find, as laid down by the Hon'ble Supreme Court in the Jinia Keotin's case (supra) that the appellant nos. 2 and 3 are entitled to a share in the compensation amount. We are also of the view that the appellant nos. 2 and 3 are entitled to 50% of the compensation amount and the respondent nos. 4 and 5 are entitled to the other 50% of the compensation amount.
We have already found that the compensation amount in the instant case should be Rs. 7,77,500/-. Out of the said amount, the respondent-Insurance Company has already deposited Rs. 3,65,000/-, and out of the said Rs. 3,65,000/- the respondent Nos. 4 and 5 have already withdrawn Rs. 1,82,500/-, that is, Rs. 91,250/- each. The balance amount, i.e., a sum of Rs.1,82,500/- + interest which might have accrued on such amount should now be withdrawn by the appellant nos. 2 and 3 as the said appellant nos. 2 and 3 have 50% share in the said amount of Rs. 3,65,000/-.
The appellant nos. 2 and 3 are at liberty to make an appropriate application before the learned Registrar General of this Court for release of the said amount of Rs. 1,82,500/- + interest, if any accrued on the said amount, as aforesaid, and, if such application is made, the learned Registrar General of this Court shall see that the said balance amount is released in favour of the appellant nos. 2 and 3 in accordance with law and upon proper identification.
Since this Court is of the view that the compensation amount should have been Rs. 7,77,500/-, the respondent-Insurance Company shall now deposit the balance amount of Rs. 4,12,500/- along with interest on the total compensation amount of Rs. 7,77,500/- in respect of the period commencing from the date of filing of the claim application till the date of the respective deposits and add such interest amount to the aforesaid compensation amount. After calculation of interest the respondent-Insurance Company shall issue four account payee cheques of equal amount in favour of the appellant nos. 2 and 3 and also in favour of the respondent nos. 4 and 5 and such account payee cheques should be deposited by the respondent-Insurance Company before the learned Tribunal below within six weeks from this date and after such account payee cheques are submitted before the learned Tribunal below, the said account payee cheques shall be handed over to the appellant nos. 2 and 3 and also to the respondent nos. 4 and 5 in accordance with law and upon proper identification.
Since the appellant no. 3 is a minor, the minor's cheque shall be handed over to the appellant no. 1, who is the mother of the appellant no. 3, and the appellant no. 1 shall make deposit of such cheque in a fixed deposit account with any Nationalised Bank and see to it that the said account is renewed from time to time till the minor attains majority.
With the above observations and directions, both the appeals stand disposed of and the impunged judgments/awards passed by the learned court below stand modified to the extent indicated above.
The application being C.A.N. 2040 of 2013 also stands disposed of in view of the judgment delivered above.
With consent of the learned Advocates of the respective parties, the said application has been treated as on day's list.
Let the lower court records be sent back to the learned court concerned immediately. It is, however, made clear that no disbursement of any part of the compensation amount should be made in favour of the appellant nos. 2 and 3 and the respondent nos. 4 and 5 until and unless the said parties, that is, the appellant nos. 2 and 3 and the respondent nos. 4 and 5 deposit the balance court fees before the learned court below in proportion to their respective shares.
Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of necessary formalities.
(Tapan Kumar Dutt, J.) I agree.
(R. K. Bag, J. )