Gauhati High Court
New India Assurance Co. Ltd. vs C. Keiliana And Anr. on 15 May, 2002
Equivalent citations: I(2004)ACC634, AIR 2003 (NOC) 38 (GAU), 2002 A I H C 2945, (2003) 1 TAC 177, (2004) 1 ACC 634, (2003) 3 ACJ 1475, (2003) 1 CIVLJ 380, (2002) 3 GAU LR 186
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. This petition by the New India Assurance Co. Ltd., Aizawal Branch, is presented on the strength of Articles 226/227 of the consortium of India challenging the legality of the order dated 30.5.2000 passed by Presiding Officer, Motor Accident Claims Tribunal (in short M.A.C.T.), in M.A.C.T. Case No. 88 of 1997. (The petition is, however, drafted very exhaustively like that of a petition of appeal). Insofar a question of maintainability of this petition under Article 226/227 of the Constitution of India is concerned, the law has been well settled by the Full Bench judgment of this Court in Milan Rani Saha v. New India Assurance Co. Ltd. . The Court, now, definitely is required to enter into the matter in order to see whether there was any case of miscarriage of justice due to any infirmity, illegality or arbitrariness in the impugned judgment passed by the M.A.C.T.
2. The quintessence of the submission made by the learned Counsel appearing for the petitioner is that on the basis of law given by Hon'ble Apex Court as reported in Oriental Insurance Co. Ltd. v. Hansrajbhai v. Kodak , the Tribunal was not justified in deciding the case by applying Section 163-A of the Motor Vehicles Act, 1988. Moreover, the further contention is that there was no case of dependency in this case as the deceased was niece of the claimant and was not an earning member on the basis of facts on record but the learned Tribunal failed to notice this fact and went from the wrong angle to treat the claim presented by person claiming to be the legal representative of the deceased died in vehicular accident. Lastly, it was contended that under no circumstances as per materials on record the amount of compensation of Rs. 4,52,000/- awarded by the Tribunal can be justified.
3. Learned Counsel appearing for the respondent-claimant C. Keiliana, however, replied by stating that the deceased in this case was a member of the family of the claimant, being the adopted daughter of the claimant. That the petitioner insurer did not pay the 50 per cent amount of award as ordered by this Court in time and due to this disobedience to the order of the Court alone the petition is liable to be dismissed (Record shows the 50 per cent award amounting to Rs. 2,12,500/- was deposited and paid to claimants on 13.9.2001).
4. I have given my attention to the submissions made by the rival parties, weighed the relevant laws and the materials on the case record of the Tribunal that was called for and forwarded.
5. In short, the claim application (proforma) states that the deceased was daughter of late Thangluaia, aged 33 years, died due to a vehicular accident taken place oil 13.11.1995 at about 7.30 p.m. near Lengpui under Bawngkawn Police Station due to alleged negligent driving of bus No. MZ 01-2040 belonging to Lalthangvunga and insured with New India Assurance Co. Ltd. at the relevant time. Claimant prayed for award of Rs. 7,00,000/- stating that deceased was earning Rs. 15,000/- per month from her business, etc.
6. As was usually done, in this case also the Insurance Company presented written objections raising various legal objections of want of cause of action, non-maintainability of the case in its present form, bar of limitation, effect of estoppel waiver, acquiescence, etc. The allegations were denied but it was submitted that as per report of verification by the Police S.I. Kiran Kumar of Aizwal Police Station, the offending vehicle No. MZ 01-2040 was driven at the relevant time by the driver under influence of liquor and, accordingly, as per the terms of the policy the Insurance Company was not required to pay compensation. That there were 53 (fifty-three) passengers in the bus which had limited capacity of 30 to 46 persons and as such there was violation of permit condition. Insurer also denied the fact that the bus was insured with the insurance company and contended that there were no materials to saddle the Insurance Company with the liabilities to pay compensation.
7. Tribunal framed the following issues:
(1) Is the claim petition maintainable on law and facts?
(2) Is the claim petition barred by limitation and by principles of estoppel waiver and acquiescence?
(3) Was the accident caused due to rash and negligent driving by the driver/opposite party of the accident vehicle?
(4) Is the claimant entitled to compensation as claimed for? If so, to what extent?
(5) Are the opposite parties liable to pay sua. compensation? If not, who else?
(6) To what other relief, if any, is the claimant entitled?
8. Claimant examined himself on oath and was cross-examined by the Insurance Company. Other witnesses were Dr. Vanlalsiama and Lalthangfala, Sub-Inspector of Police. Claimant also relied upon documentary evidence, namely, the inquest report, insurance policy, birth certificate, heirship certificate, income certificate, post-mortem report, F.I.R. in the connected police case, etc. (all these documents were marked as Exhs. 1 to 11). Both parties submitted their written arguments also, it seems.
9. A bare reading of the impugned judgment will show that it was not written in a logical sequence of argumentation in order to arrive at a rational conclusion after marshalling the evidence that has been adduced. The impugned judgment has not recorded appropriate points for determination and the reasons thereon. It has only reproduced the arguments placed before it and thereafter made a short discussion under a 'Heading of findings', discussed all the issues together with an excuse that it was done for the sake of brevity and convenience. This is something unheard of in the legal parlance. If issues are framed they are to be dwelt with separately, appropriately and distinctly on the basis of evidence on record and findings to be recorded as per the guidelines of law given under Order 14 of Civil Procedure Code. It is the established principles that Claims Tribunals will follow the Civil Procedure Code in the inquiry contemplated under Section 169 of Motor Vehicles Act subject to existence of any rules or procedure that may be framed by Government or adopted by the concerned Tribunal. There was absolutely no sifting of evidence recorded/given in the inquiry. The conclusions were recorded by the Claims Tribunal without discussion of the evidence, the Tribunal also failed to record the fact on evidence that there was no dispute insofar accident, involving of the particular vehicle and the resultant deaths of passengers. Rather than the Tribunal held that since documents were admitted into evidence without objections the contentions of the claimant have been established along with oral testimony adduced. The judgment has neither reproduced nor discussed the impact of evidence adduced.
10. But then, this being not an appeal the factual proposition may be overlooked in this context as the writ petitioner has restrained its submissions oil the quantum of compensation and the method of assessment of the same on the basis of Section 163-A of the Motor Vehicles Act, Hon'ble Apex Court while dealing with civil appeal in Oriental Insurance Co. Ltd. v. Hamrajbhai V. Kodala (supra), has clearly taken this view that amount calculated under the provision of structured formula contained in Section 163-A is payable as an alternative not in addition, to compensation payable under Section 168 of the Act on principles of fault based liability. It was clarified that this scheme under Section 163-A is to determine the compensation in all cases of income up to Rs. 40,000/- per annum. The relevant portion of the judgment is quoted below for the sake of clarification:
However, this benefit can be availed of by the claimant only by restricting his claim on the basis of income at a slab of Rs. 40,000/- which is the highest slab in the Second Schedule which indicates that the Legislature wanted to give benefit of no fault liability to a certain limit. This would clearly indicate that the scheme is in alternative to the determination of compensation on fault basis under the Act. The object underlining the said amendment is to pay compensation without there being any long-drawn litigation on a predetermined formula, which is known as structured formula basis which itself is based on relevant criteria for determining compensation and the procedure of paying compensation after determining the fault is done away. Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever increasing motor vehicle accidents in a fast moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles.
In order to highlight the illegality and impropriety of the assessment of the quantum of compensation in the instant case, I would like to reproduce relevant part of the impugned judgment and it goes as hereunder:
On the question of the income of the deceased Ngaizuali it may be best safe to accept Rs. 3,500/- as per the statement of claimant as no contrary is proved by the opposite party by adducing evidence. As the deceased attained the age of 33 years 11 months 22 days at the time of her death, multiplier of 17 is the admissible figure for calculating amount of compensation as per the Second Schedule for compensation for third party fatal accident/injury cases claims and it may be assessed as follows-as the Second Schedule can be used as a guide as per Hon'ble Supreme Court ruling in the case of U.P. State Road Trans. Corporation v. Trilok Chandra .
(1) Monthly income of the deceased Rs. 3,500/-
(2) Annual income of the deceased (3,500 x 12) Rs. 42,000/-
(3) According to the Schedule annual income of
Rs. 40,000/- is to get Rs. 6,40,000/-
Therefore, 42,000/40,000 x 6,40,000 Rs. 6,72,000/-
Therefore, 42000/40000 x 6,40,000 Rs. 6,72,000/-
(4) Deducting 1/3 expenses if she is still alive as per
note under the Schedule it comes to Rs. 4,48,000/-
(5) Funeral expenses Rs. 2,000/-
(6) Loss to estate Rs. 2,500/-
________________
Total compensation due to the claim is Rs. 4,52,500/-
________________
So, opposite party New India Assurance Co. Ltd. is liable to pay Rs. 4,52,500/- (Rupees four lakhs fifty-two thousand five hundred) for compensation to the claimant while the claimant is claiming Rs. 7,00,000/-(Rupees seven lakhs).
Undoubtedly in Trilok Chandra's case , Hon'ble Apex Court opined that Second Schedule attached to the Motor Vehicles Act of 1988 and the structured formula for the assessment of compensation therein can be adhered to as a guideline for quantification of compensation. But, it has been rightly pointed out by the learned lawyer for the petitioner that in doing so, the Tribunal is not supposed to forget the legal implications therein as contemplated by the scheme under Section 163-A of Motor Vehicles Act. Particularly in view of law given by Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala (supra), there is no scope for any confusion.
11. From the excerpts of the judgment of the Tribunal as reproduced herein before, we have seen that although there was no legal evidence with respect to income of the deceased the Tribunal accepted the same most illegally to be Rs. 3,500/- leading to miscarriage of justice. In holding inquiry under Motor Vehicles Act, it is the established principle that strict adherence to the provisions of the Evidence Act is not to be maintained but then fact remains that the application of the Evidence Act has not been dispensed with. Moreover, we cannot decide things arbitrarily as opposed to arriving 'at conclusion on the basis of reliable and acceptable evidence'. The fact of income is a question of fact to be decided by acceptable evidence on record. Here excepting the isolated statement of the complainant there is no other evidence and his statement has been challenged during his cross-examination by the opponent side for which corroborative evidence must come. But there was none adduced. Hence RW. 1 cannot be relied upon to ascertain this fact of income of the deceased. In this context we may remind ourselves of the definition of 'proved' given in the Evidence Act (Section 3). The document on which the learned Tribunal relied upon to ascertain income of deceased, is a certificate given by Superintendent of Taxes. It goes as below:
ORIGINAL Book No : 6 SERIAL No : 43 OFFICE OF THE SUPERINTENDENT OF TAXES CIRCLE II, AIZAWAL Certify that annual income of Ngaizuali, Keiliana of Thenzawl from all sources during the year according to her own declaration is Rs. 42,000/-(Rupees forty-two thousand) only.
Seal Sd/-
Date 5.2.1997 Superintendent of Taxes Aizawal Circle-II, Aizawal.
Here only making of a document as exhibit neither proves it nor dispensed with its proof. It is required to be proved by provision in Evidence Act. None appeared to prove contents of this document. Moreover, this document, Exh. 5, looks to be a photocopy. So, I am constrained to find and hold that the decision on income was taken by the Claims Tribunal on basis of inadmissible and unacceptable evidence and, accordingly, there was gross illegality committed requiring interference of higher Court. It is also another established point of law that in order to assess compensation multiplier digits are selected on the basis of age of the claimant/legal representatives who were directly dependent on the income of the deceased and not on the basis of the age of the deceased. Here also an error of law was committed by the Tribunal. Thus, petitioner has rightly approached this Court to invoke its extraordinary jurisdiction to eradicate the evil and grant remedial measures.
12. Since the matter is of urgent nature, remanding the case of 1995 for a fresh inquiry and order may cause unnecessary delay. Accordingly, this Court will assess the just compensation while disposing of this petition. And I go as hereunder. While going to do so I bear in mind that in such case 'an endeavour should be made to fix just compensation which should represent the pecuniary loss to the legal representatives. Determination cannot be exact or accurate. It must necessarily be an estimate or even partly conjecture. There is scope for some arbitrariness to creep in. But endeavour should be made to reach the figure by balancing on one hand the loss to the claimants of the future pecuniary benefits and on the other any pecuniary advantage which comes to the claimant by reason of death Refer Moulin Ronge (P) Ltd. v. Commercial Tax Officer (1998) 1 SCC 72.
13. It is permissible to take help of the principle in scheme enacted by Second Schedule attached to the Motor Vehicles Act of 1988 (Refer Section 163-A). I quote from the judgment of Hon'ble Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd. 1 (2001) ACC 151 (SC) : 2001 ACT 428 (SC).
(20) Now, we have to decide as to the quantum of compensation payable to the appellants. We first thought that the matter can be remitted to the Tribunal for fixation of the quantum of compensation but we are mindful of the fact that this is a case in which the accident happened more than 13 years ago. Hence we are inclined to fix the quantum of compensation here itself.
XXX XXX XXX XXX XXX XXX (22) The age of the deceased at the time of accident was said to be 35 years plus. But when that is taken along with the annual income of Rs. 18,000/-, the figure indicated in the structured formula is Rs. 2,70,000/-. When 1/3rd therefrom is deducted the balance would come to Rs. 1,80,000/-. We, therefore, deem it just and proper to fix the said amount as total compensation payable to the appellants as on the date of their claim.
In the above cited case the Court also ruled that rate of interests on the basis of change in economy and policy of the R.B.I. the usual rate of 12 per cent is to be - reduced to 9 per cent per annum simple interest as contemplated by Section 171 of Motor Vehicles Act.
14. Claim of compensation is an equitable relief and product of welfare legislation. 'One who seeks equity must come with clean hands'. But if we pay attention to the facts of the case we would notice that the claim petition was filed up callously, if not purposely, out of greed for money, The income has been mentioned there as Rs, 18,000/- per month. The deceased has been stated to be related to the claimant as 'son' although name inserted therein and subsequent evidence adduced tells that she is woman and niece of the claimant. Surprisingly, the learned member of the Tribunal (judgments noted him as Presiding Officer although Section 165 of the Motor Vehicles Act, 1988 conceive of members and Chairman of such Tribunals) advanced a sno motu explanation with intents to overrule these defects and infirmities. In this context it may not be out of place to comment here that now-a-days there is a growing tendency unfortunately to gain fortune out of the unfortunate death/injuries to vehicular accidents by resorting to dubious means and stark falsehood. The tendencies are to be discouraged.
15. Be that as it may, let me find out just compensation in this case on the basis of materials on record. Due to the discrepancies in the evidence of income the same is to be rejected and it is to be treated as a case of no income. The alternative is to go for notional income conceived by the Second Schedule to Motor Vehicles Act at the rate of Rs. 15,000/- per annum or to fix a lumpsum on surmise clubbing income of Rs. 3,000/- per annum and Rs. 12,000/- per annum from Second Schedule it would be Rs. 2,42,000/- less 1/3rd which is equal to Rs. 1,61,000/- and odd, taking hints from facts of Kaushnuma Begum v. New India Assurance Co. Ltd. (supra), inclusive of the no fault claim. Although there was an order to that effect, it was not brought to my notice by the concerned parties whether 'no fault' of Rs. 50,000/- was paid or not. At any rate claimant is not entitled to anything above Rs. 2,00,000/-. But by interim order, this Court already allowed Rs. 2,12,500/- and that has been paid by the petitioner Insurance Company. This may be taken to be inclusive of all claims including interests pendente lite and no fault, etc.
16. The petition is partly allowed. The award granted by the learned Tribunal is reduced to Rs. 2,12,500/-. The same has been paid already and, therefore, the M.A.C.T. Case No. 88 of 1997 will stand finally closed.
17. Send down the L.C.R. forthwith.