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1994 DIGILAW 120 (GAU)

National Insurance Company Ltd. v. Kakali Bhowmik

1994-06-20

N.G.DAS, S.BARMAN ROY

body1994
N. G. Das, J-This appeal by the insurer raises some important questions of law. Before elaboration thereof, it is necessary to state the facts in brief. 2. On 2.10.1990 the deceased Sibabrata Bhowmik was travelling in a bus bearing No. TRS 34 to go to Madhupur Bazar. But unfortunately when the bus reached near Lembutali bridge at about 7.00 PM it had met an accident causing severe injuries on the person of the deceased and due to the injuries sustained the deceased Sibabrata Bhowmik died. It was alleged that the accident occurred because of the bus was driven rashly and negligently. 3. The deceased left behind his widow, mother, two dependant brothers and a posthumous child Smti Bijali who filed a claim petition for compensation under the Motor Vehicles Act, 1988 asking for compensation to the tune of Rs. 14,67,2007- by pleading that the deceased had a monthly income of Rs.1,855/- and that he was aged 25 years and he would have lived upto the age of 68 years at which age his father died. 4. The petitioners made the owner and the National Insurance Company, namely, the present appellant parties. The appellant as well as the owner resisted the claim petition by filing separate written objections. While the owner stated that the bus having a valid insurance policy it was the Insurance Company, namely, the appellant was found to pay the compensation, the National Insurance Co. resisted the claim petition by stating that deceased died on account of contributory negligence and denied that he was rifleman under the Tripura State Rifles earning a sum of Rs.1,855/- as pay and allowances per month. 5. In view of the pleadings learned Second Member, Motor Accident Claims Tribunal (Mr.BK Goswami) framed the following issues for determination of the claim petition. (1) Is the suit barred by law of limitation, estoppel, waiver and acquiesce ? (2) Whether the vehicle was driven by authorised driver at the time of - accident ? (3) Is the claim speculative and wagering ? (4) Whether there was contributory negligence on the part of the deceased? On the basis of the evidence placed before the Tribunal, it found that the victim was 25 years of age at the time of death, his contribution to the family was Rs.1,4557- per month and life expectancy was 65 years. (3) Is the claim speculative and wagering ? (4) Whether there was contributory negligence on the part of the deceased? On the basis of the evidence placed before the Tribunal, it found that the victim was 25 years of age at the time of death, his contribution to the family was Rs.1,4557- per month and life expectancy was 65 years. So, learned Tribunal applied multiplier 33 and awarded compensation to the tune of Rs.5,30,4007-with interest at the rate of 12% per annum from the date of presentation of the claim petition till realisation of the amount. 6. Before entering into the rival contentions caavassed at the bar by learned counsel for the parties it is pertinent to mention here before the appeal is taken up for hearing Mr. Biswas, the learned counsel appearing on behalf of the appellant moved an application under Order 41 Rule 27 (1) (aa) of the Code of Civil Procedure of accepting a certificate issued by the Registrar Hindu Marriage Act as additional evidence to show that the claimant respondent Smti Kakali Bhowmik suppressed the fact of her re-marriage with one Apu Bhowmik. This certificate was accepted as additional evidence and it has been marked as Annexure 2 as learned counsel Mr. S. Deb, appearing on behalf of the claimant-respondents did not raise any objection against the acceptance of this documents as additional evidence. 7. Mr. Biswas has therefore at the very outset submitted that in view of this document Annexure 2 Smti Kakali Bhowmik is not entitled to get any compensation after the date of her re-marriage. In support if his contention Mr. Biswas has referred to a decision in the case of Mead vs. Clarke Chapman & Co. Ltd, (1956) 1 All England Law Reports 44. But in this case the question which actually came before their Lordship for decisions was whether an infant daughter of the deceased was entitled to get compensation after the remarriage of her mother. It is, however, found that the claim of the wife under the Fatal Accidents Acts was accepted by the trial Court for the period between the death of her first husband and her remarriage to Mr. Mead and this findings was neither challenged nor reversed. Mr. S. Deb, the learnned senior counsel has however, submitted that the claimant-respondent Kakali Bhowmik's share may be deducted to the extent of 1 /8th on account of her remarriage. Mead and this findings was neither challenged nor reversed. Mr. S. Deb, the learnned senior counsel has however, submitted that the claimant-respondent Kakali Bhowmik's share may be deducted to the extent of 1 /8th on account of her remarriage. Mr. Biswas has no dispute about the claim of the wife for the period upto her remarriage and we also think that he has rightly conceded. 8. But the next contention which has been urged by Mr.Biswas is that the learned Tribunal applied absurd multiplier namely, 33 for assesssing that amount of compensation to be paid to the claimant-respondent. It is urged by Mr.Biswas that till now there has been no decision to show that multiplier more than 25 has been applied to any case. We find much substance in the submission of Mr. Biswas as the reasons given by the learned Member of the Claims Tribunal do not appear to be sound for application of the multiplier 33. According to Mr. Biswas at best multiplier 18 may be applied in this case. In support of his contention Mr. Biswas has placed reliance on a decision rendered in the case of Bhagwandas vs. Mohd.Arif, reported in AIR 1988 AP 99 . Mr.Deb, the learned counsel for the respondents has also submitted that this decision was subsequently accepted by a Division Bench and as such he will not have any objection in case reliance is placed on this decision so far as application of the multiplier is concerned. In the aforesaid case it is found that learned Judge took much pains to find out the actual multiplier for cutting present values of future earnings - based not only on a non-inflationary real rate of interest but also based on the future mortality rates. Learned Judge took Actuary's Multiplier based on the Diplock Method as the basis and the simpliest method for computing future loss of earnings and on the basis of that method he made the following multiplier table : “The Multiplier Table (4% interest) Urban - Male Age Multiplier Age Multiplier 15 20.16 40 12.79 20 19.14 45 10.45 25 17.95 50 7.68 30 16.51 55 4.27 35 14.81 60 0.97 (Age : is age at trial (injury cases) or age at death (fatal cases)” 9. In the present case the deceased died at the age of 25 and as such according to the table above the multiplier 17.95 can be applied for assessing the compensation to be paid to the dependants of the deceased. But on going through the judgment of the trial Court we find that learned trial Court applied multiplier 33 as according to him the deceased could have served at least for a period of 33 years. We are however, unable to accept this theory as even though it might be that the decease would have served for a period of 33 years if he were alive then the multiplier 33 cannot be applied. Apart from this while going through the records we are confronted with some difficulties for disposing of this appeal as we find that the documents on the basis of which learned Member of the Claims Tribunal made his findings were not signed while putting the exhibit marks. Learned Member ought to have put his signature while marking those documents as exhibit. Such an error apparent cannot therefore be overlooked. 10. In this context, it may be mentioned that the power of superintendence conferred on the High Court by Article 227 of the Constitution of India involves a duties to keep all the Courts and Tribunal within bounds of their authority and to see that they do what the duty requires and further they do it in a legal manner. The power can be exercised suo motu in proper cases. Therefore, we are of the view that High Court can interfere if there is an error apparent in the face of the record. The certificate on the basis of which learned Member of the Accident Claims Tribunal assessed income of the deceased is actually not a legal evidence as it does not appear to have been properly accepted and marked as exhibit with the signature of the learned Member of the Claims Tribunal. 11. For the reasons stated above, we remand the case to the Court of learned Member, Motor Accident Claims Tribunal (District Judge), West Tripura, Agartala for fresh trial in accordance with law and after proper marking of the documents with signature. 11. For the reasons stated above, we remand the case to the Court of learned Member, Motor Accident Claims Tribunal (District Judge), West Tripura, Agartala for fresh trial in accordance with law and after proper marking of the documents with signature. The learned Member, Motor Accident Claims Tribunal is directed to readmit the suit in its original number in the register of the civil suit and proceed to determine the suit and the evidence recorded during the original trial shall, subject to all exceptions, be evidenced during the trial after remand. Both the parties are directed to appear before the learned Member, Motor Accident Claims Tribunal, West Tripura on 4.7.1994 and they are allowed to adduce further evidence, if any. The case should, however be disposed of within two months. 12. The appeal is disposed of with the above order and direction. Records be sent immediately. A copy of the judgment be sent to the learned Member Mr. BK Goswami where ever he be for his guidance.