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2004 DIGILAW 489 (GAU)

New India Assurance Company Ltd. v. Bibhadey

2004-08-26

B.LAMARE

body2004
JUDGMENT B. Lamare, J. 1. Heard Mr. T.B. Jamir, learned Counsel for the Appellant and Mr. B.N. Sarma for the Respondent/claimants. 2. Briefly stated the case is that on 1.6.2001 one Nepal Dey sustained grievous injuries when the vehicle No. NL 01B/0119 (Bus) met with an accident. For the said vehicle accident Nepal Dey filed an MAC Case No. 91/01 before the Motor Accident Claims Tribunal, Dimapur. The said case was disposed of by the Tribunal by judgment and award dated 13.3.2002 awarding a compensation of Rs. 2,59,000/- in favour of the claimant Nepal Dey. The award was duly satisfied by the present Appellant and the amount was received by Nepal Dey, the claimant. After the said MAC Case No. 91/01 was disposed of and the award was satisfied the claimant Nepal Dey succumbed to his injuries and expired on 17.4.2002. On his death, the present Respondents the wife and son of deceased Nepal Dey filed a Misc. Case No. 2/02 before the Tribunal claiming for awarding an additional compensation to the Respondents/claimants on account of the death of deceased Nepal Dey. The Appellant resisted the said petition filed by the Respondents by filing a written reply. The learned Tribunal after recording the statement of the Respondent and also after hearing the parties passed the judgment and order dated 28.4.2003 awarding another additional amount of Rs. 81,000/- in favour of the present Respondents. The Appellant aggrieved by this judgment and order has approached this Court in this appeal. 3. With regard to the accident and injuries suffered by the deceased Nepal Dey and payment of compensation to him for the injuries is no more in dispute in the instant case as the award was already received by the deceased Nepal Dey. The only contention of the Appellant is that the award was made on 13.3.2002 and the deceased Nepal Dey expired on 17.4.2002 and that the deceased expired much after the award and judgment was passed by the Tribunal. It is also the contention of the Appellant that there were no infection to the injuries suffered by the deceased due to alleged accident and that the medical certificate issued by one Dr. D. Bharali, MBBS was not at all a Medical Certificate. 4. It is also the contention of the Appellant that there were no infection to the injuries suffered by the deceased due to alleged accident and that the medical certificate issued by one Dr. D. Bharali, MBBS was not at all a Medical Certificate. 4. The learned Counsel for the Appellant in support of the contention in their written in reply has submitted that after the award was made by the Tribunal, the Tribunal has no jurisdiction to re-open the case and that the Tribunal has become functus officio. The learned Counsel has relied on the case of Aswini Bala Das and Ors. Appellants v. New India Assurance Co. Ltd. and Ors. Respondents, reported in 1999 (2) GLT 231. In the said case, the Division Bench of this Court has dealt with the matter relating to the petition filed by the Insurance Company for reducing the interest of the awarded amount. The application was filed after the award was already satisfied and paid to the claimant. Therefore, the Division Bench of this Court has rejected the claim of the Insurance Company on the ground that the Tribunal has become functus officio after passing of the main award and it is only the Appellate Court which have the power to re-open the claim of the Insurance Company. 5. In the instant case, the Appellant in their written reply did not deny about the death of Nepal Dey on 17.4.2002 and that his death occur only about one month from the date of the award. On his death his legal heirs have approached the Tribunal for granting additional award for his death. The Respondents/claimants are the wife and son of the deceased. Therefore, they are very much the legal heirs of the deceased. 6. In order to arrive at as to whether the Tribunal can re-open the case after the death of the claimant late Nepal Dey and after satisfying the awarded amount let us logically cite an example that in case of the death of a person in an accident the legal heir is always the claimant and have legal right to claim for the compensation and that question is not disputed in law. 7. In the instant case, the deceased died about one month after the award and that the death was due to the very accident for which compensation was claimed. 7. In the instant case, the deceased died about one month after the award and that the death was due to the very accident for which compensation was claimed. In the judgment and order of the Tribunal it is seen that there is an evidence of P.W. 2 in MAC Case No. 91/01 which has opined that the deceased needs more attention and care for the rest of his life and if possible the patient should go for better treatment at any well equipped hospital. This shows that the deceased was still suffering even after the award was made by the Tribunal. Therefore, subsequently he died on 17.4.2002. In this case, an analogy can be made to claim for compensation on account of the death of the deceased i.e. the husband of the Respondent No. 1 and father of the Respondent No. 2 and that the claim made by the Respondents is tenable in law. Therefore, awarding of additional compensation of Rs. 81,000/- in favour of the Respondents is just and proper. Since this question is answered in favour of the Respondents/claimants, the right of the Appellant to challenge the quantum of compensation is therefore, curtailed by the provision of Section 170 of the Motor Vehicles Act. 8. For the aforesaid reasons, this Court finds no infirmity in the judgment and order dated 28.4.2003 passed by the Tribunal in Misc. Case No. 2/2002 arising out of MAC Case No. 91/2001 and there is no merit in the appeal. 9. Accordingly the appeal is dismissed. However, considering the facts and circumstances of the case there is no order as to costs.