Calcutta High Court (Appellete Side)
The National Insurance Company Limited vs Kulsoma Begum & Ors on 11 February, 2014
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta Civil Appellate Jurisdiction Appellate Side Present : The Hon'ble Mr Justice Jayanta Kumar Biswas and The Hon'ble Mr Justice Sahidullah Munshi F.M.A.No.373 of 2007 The National Insurance Company Limited
-vs-
Kulsoma Begum & Ors.
Mr. Sudip Palchowdhury ...for the appellant
Mr. Jayanta Kumar Mondal ...for the claimants
Heard on : February 11, 2014
Judgment on : February 11, 2014
The Court : The insurance company is the appellant in this appeal. It is aggrieved by an award of the Motor Accidents Claims Tribunal, Burdwan dated February 28, 2006.
The claimants were the wife, a minor son and the parents of one Md. Hafijul of Kamalpur in Burdwan. They filed the application for compensation on March 28, 2005. They claimed `4 lakh compensation under s.163A of the Motor Vehicles Act, 1988.
The facts stated in the application for compensation are these. Hafizul was working as khalasi in truck No.WB-41-9260. Owners of the truck engaged him as such. He was killed in an accident arising out of the use of the vehicle on October 15, 2004. At that date he was 26. His monthly income was `3,000. There was in force an insurance policy issued by the insurance company in relation to the use of the vehicle.
The insurance company contested the claim by filing a written statement. It denied and disputed the correctness of all material facts and contended that no premium was paid for covering a liability for a person engaged as khalasi of the vehicle. The two joint owners of the vehicle, also the victim's joint employers, parties to the application for compensation, however, chose not to contest the claim.
The victim's wife testified as PW1. Her testimony is that at the time the accident, arising out of the use of the vehicle, happened, the victim, her husband, was working therein as a khalasi; that the victim was 26 and used to earn `3,000 per month as khalasi of the truck. She filed copies of the FIR, charge-sheet, insurance policy, etc. The insurance company did not give any evidence.
In cross-examination PW1 said, inter alia, as follows:-
"Fact that it is recited in the written complaint that my husband was a khalasi in respect of vehicle No. WB-41/9260 and that my husband went to defecate after keeping the vehicle in stationary condition on N.H.-2 and when at the time of crossing the road by my husband, he was dashed by a six wheel trailor No. AS-01 L/4975. Thereafter my husband being injured was shifted to Asansol hospital wherein he died."
The insurance company did not seek adjudication of the plea that it had not received premium for covering liability for a khalasi working in the vehicle. The claims tribunal accepted the case of the claimants that the victim was working in the motor vehicle as a khalasi; that at the date of accident he was 26 and earning `3,000 per month. It granted `4,32,000 compensation.
Mr Palchowdhury appearing for the insurance company has argued only two issues:- (i) the vehicle in which the victim was working as a khalasi was not involved in any accident causing the victim's death; (ii) liability for a khalasi working in the vehicle was not covered by the policy issued by the insurance company. He has relied on a Division Bench decision of this court dated April 19, 2012 in FMA No.759 of 2008 (Parul Singha & Ors. v. National Insurance Company & Anr).
Mr Mondal appearing for the claimants has relied on the decision of the Supreme Court in Rita Devi & Ors. v. New India Assurance Co. Ltd. & Anr., 2000 WBLR (SC) 330 and has submitted that since the victim was killed in an accident at a time when he was doing his duty as a khalasi of the vehicle engaged as such by the owners thereof, and the vehicle was covered by a valid policy issued by the insurance company, the claims tribunal rightly granted the claimants compensation and ordered the insurance company to pay.
The first question is whether the victim was killed in an accident arising out of the use of the vehicle in which he was working as a khalasi engaged as such by the owners thereof.
The FIR was registered on the basis of a written information dated October 17, 2004 given by one Omar Faruque. Omar stated that on the night of October 15, 2004 at around 12 the victim was walking eastward taking the southern pavement of NH2 with a view to defecating; that at that time a trailer No.AS-01L-4975 driven rashly and negligently knocked him down; and that on the night of October 16, 2004 the victim died in hospital.
Testimony of PW1 is that when the vehicle in the course of its use according to the terms and conditions of the permit was kept stationary on NH2 and the victim getting down for defecating was returning to the vehicle crossing the road, a six-wheel trailer No.AS-01L-4975 dashed and injured him; and that he died in hospital where he was taken. In cross-examination PW1 said that Omar was only known to her; and that steps for FIR were taken by her brother- in-law (Jamaibabu) Rabiul.
PW1's testimony of the cause of the accident was in line with the one stated by the de facto complainant in his information dated October 17, 2004. But the officer investigating the case submitted a charge-sheet dated November 30, 2004 under ss.279/304A IPC against the drivers of both the motor vehicles saying that his investigation revealed that both the motor vehicles trying to overtake each other had collided; and that, as a result, the victim fell down on the road and received serious injury.
The claims tribunal did not accept the cause of the accident sated by the investigating officer in his charge-sheet and preferred to believe PW1's testimony. The discrepancy is of no consequence; for if it is accepted that the cause mentioned in the charge-sheet was the real cause, that will lead to the conclusion that the victim was killed in the accident arising out of the use of the motor vehicle in which he was working as a khalasi.
The case of the insurance company before us rather is that since the motor vehicle was kept stationary and the victim earlier getting down and going for defecating was knocked down by the trailor when he was crossing the road for reaching the vehicle and getting into it for working as its khalasi, it cannot be said that he was killed in an accident arising out of the use of the vehicle in which he was working.
The case of the insurance company is fully supported by the Division Bench decision of this court dated April 19, 2012 in FMA No.759 of 2008 (Parul Singha & Ors. v. National Insurance Company & Anr.). But we express our inability to accept the case of the insurance company; for Parul Singha was decided by the Division Bench concerned in ignorance of the principle stated by the Supreme Court in Shivaji Dayanu Patil & Anr. v. Vatschala Uttam More, (1991)3 SCC 530.
Parul Singha was decided after considering Rita Devi in which the Supreme Court was examining the purport of the expression "death due to an accident arising out of the use of motor vehicle" in the context of sub-s.(1) of s.163A of the Motor Vehicles Act, 1988; and in the process the Supreme Court extensively referred to the principle stated in Shivaji Dayanu that was given after considering the provisions of ss.92A, 95 and 96 of the Motor Vehicles Act, 1939.
In Shivaji Dayanu the Supreme Court held as follows:-
The use of the expression "arising out of" in s.92A indicates that for the purpose of granting compensation the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement need not be direct and proximate, but can be less immediate as well. This implies that the accident should be connected with the use of the motor vehicle, but not that the connection should necessarily be direct and immediate. The expression "arising out of the use of a motor vehicle" enlarged the field of protection made available to the victims of an accident and was in consonance with the beneficial object underlying the enactment.
In view of the principle stated in Shivaji Dayanu, there can be no doubt that in this case the victim was killed in an accident arising out of the use of the vehicle in which, having been engaged by the joint owners thereof qua joint employers, the victim was working as a khalasi. He got down from the vehicle for defecating when he was on duty; and while he was returning to the vehicle he was knocked down by the other vehicle and suffered injury that ultimately caused his death. Hence there is no merit in the first issue.
The second issue argued by advocate for the insurance company is that since no premium for a khalasi in the vehicle was received, the claimants, even if could seek compensation from the victim's joint employers under the provisions of the Workmen's Compensation Act, 1923, were not entitled to approach the Motor Accidents Claims Tribunal seeking compensation under s.163A of the Motor Vehicles Act, 1988.
The insurance company taking the plea in its written statement did not, however, raise it before the claims tribunal at the time of hearing of the claim case. It even did not produce before the claims tribunal a complete copy of the insurance policy concerned. Only the first page of the policy was produced. A complete copy of the policy, though substantially unreadable and hence indecipherable, has been produced before us and it reveals that the insurance company was paid premium for two employees working in the vehicle.
When this was pointed out to advocate for the insurance company, he found little to justify the issue. There is, therefore, no doubt that the liability for the accidental death of the victim working in the motor vehicle as an employee of the joint owners thereof was covered by the policy issued by the insurance company. Hence we do not find any merit in the second issue as well.
The claims tribunal finding that the claimants were entitled to `4,32,000 compensation, however, ordered the insurance company to pay them only `4 lakh. It did not give any reason for reducing the amount. The reason perhaps is that in their application the claimants claimed `4 lakh compensation. When this was pointed out to advocate for the insurance company, he found little to say in justification of the reduction.
A claim under s.163A is a claim for payment of compensation on structured formula basis; and sub-s.(1) of s.163A mandates that a claimant entitled to compensation shall be paid compensation according to the provisions of the Second Schedule.
This means that if, according to the Second Schedule provisions, on calculation, it is found that a claimant is entitled to an amount higher than the one he has claimed, then the claims tribunal granting compensation is under a statutory obligation to grant such higher compensation and vice versa. Determination of the amount according to the Second Schedule provisions is the statutory obligation of the claims tribunal.
Simply because in his application a claimant does not mention the exact amount, he cannot be denied a higher amount, even if found payable, especially when he will be paid only a lower amount, when it is found that the amount claimed by him is higher than the amount to which he is entitled in law. We are, therefore, of the view that the claims tribunal committed an error by reducing the amount of compensation.
The claims tribunal did not give the calculation showing how it determined the amount at `4,32,000. We are of the opinion that it was under an obligation to give the calculation. We think it will be appropriate for us to calculate the amount of compensation. At the date of accident the victim was 26. The claimants were his wife, minor son and parents. Hence his age was relevant for choosing the multiplier. Multiplier 18 was applicable to the case.
In view of the foregoing discussion the claimants are entitled to the following compensation:- `3000 (victim's monthly income) - `1000 (one-third of `3000 for victim's personal expenses)= `2000 (claimants' monthly loss) x12 (months) = `24000 (claimants' annual loss) x 18 (multiplier) = `4,32,000 (claimants' total loss) + `9500 (general damages) = `4,41,500.
The claims tribunal once again committed an error. It ordered that the insurance company would pay 10% p.a. interest from the date of the award till payment, only if it failed to pay the amount of compensation. This is not permissible. The law has been repeatedly stated by the Supreme Court that interest under s.171 of the Motor Vehicles Act, 1988 is to be paid to a successful claimant from the date the application for compensation is filed till the date of payment. Here the application was filed on March 28, 2005.
As to the rate of interest, this court has closely examined the issue in FMA No.1346 of 2013 (Niva Devi v. New India Assurance Co. Ltd. & Anr.) decided on January 29, 2014. In view of the decision the claimants are entitled to 8% p.a. interest on `4,41,500 from March 28, 2005 till the date of payment.
For these reasons, we dismiss the appeal, but modify the award of the claims tribunal substituting `4,41,500 for `4,32,000. The insurance company shall pay `4,41,500 with 8% p.a. interest from March 28, 2005 till the date of payment. The Registrar General shall pay the claimants from the deposit. Balance, if any, he shall refund to the insurance company with accrued interest. If any amount remains payable, the claimants will be free to execute the award to that extent. No costs. Certified xerox.
(Jayanta Kumar Biswas, J)
sb (Sahidullah Munshi, J)