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2006 DIGILAW 493 (CAL)

MIRA DEBI CHOWDHURY v. CHHATELAL CHOWDHURY

2006-08-08

ARUNABHA BASU, PRATAP KUMAR RAY

body2006
( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) ASSAILING the judgment and order dated 22nd July, 2002 which was an award of compensation granted by the learned Judge, Raiganj, Uttar dinajpur in Motor accident claim, being M. A. C. Casc No. 112 of 2000, this appeal has been preferred mainly on the following grievances: - (i) That though there was oral evidence-on-record that the deceased was a truck driver, driving licence of which was exhibited without any objection, and thereby used to earn Rs. 100/- per day as per the deposition of the wife of the deceased, P. W. 1 which have been remained undisputed in the cross-examination as made by the Insurance Company who was entitled to take all other defences in view of the leave granted under Section 170 of the Motor Vehicles act, the learned Tribunal failed to appreciate the evidence-on-record and thereby came to an erroneous finding that the income should be considered on the basis of notional income applicable in respect of non-earning persons in terms of Section 163a read with Second schedule of the Motor Vehicles Act. (ii) That, the payment of interest on compensation amount in terms of Section 171 of the said Act was not at all considered by the learned Tribunal below though statutorily there was an obligation on the part of the learned Tribunal to do so. (iii) The amount for funeral expenses and the loss of estate were not granted in terms of Clause 3 of the Second Schedule in section 163a of the said Act. ( 3 ) ON screening the evidence-on-record it appears that, so far as the grievance No. (i) as raised, that the P. W. 1, the widow, though categorically deposed that her husband being a truck driver used to earn rs. 100/- per day and the driving licence was also exhibited, but in the cross-examination there is no suggestion that the victim was not a truck driver and his avocation was not driving of vehicle. The only suggestion made that the income was not Rs. 100/-per day as deposed which was undisputed even in the cross-examination by the answer of the witness concerned. The only suggestion made that the income was not Rs. 100/-per day as deposed which was undisputed even in the cross-examination by the answer of the witness concerned. Hence it appears that the oral evidence-on-record remained unchallenged, undisturbed even by the cross-examination which has satisfied the consideration of evidentiary value about the income, So far as adjudication of the application praying compensation under the Motor vehicles Act, namely, social welfare legislation, it is trite to say that this act is a beneficial legislation and accordingly the rigours of criminal trial and of civil procedure are not applicable with reference to adjudication of the compensation application. Learned Tribunal accordingly commited gross mistake and that too a gross mistake by not considering the spirit of framing and Constitution of the Motor Vehicles Act vis-a-vis the relevant provisions of the grant of compensation in its proper perspective and angle and thereby wrong finding was reached. This Court is of the view that there are sufficient evidence-on-record for satisfaction of the income issue in disposing of the application praying compensation under Section 166 of the Motor Vehicles Act. In that view, the findings of the learned tribunal below being completely erroneous and the fixation of the notional income of the deceased at Rs. 1,250/- per month is set aside and quashed. This Court determining the income of the deceased to the extent of rs. 3,000/- per month on accepting the oral evidence of P. W. 1 and calculation of compensation would be dependent upon such figure. ( 4 ) SO far as the second grievance about non-payment of interest at all and non-consideration thereof in terms of Section 171 of the said Act, this Court is of the view that when under a statute, being the beneficial legislation, payment of interest has been incorporated under Section 171 of the said Act by using the language that the Court shall fix up the amount, the learned Tribunal ought to have considered the issue and thereby ought to have discussed the matter by discharging the statutory obligation under section 171 of the said Act. There is no whisper in the impugned judgment of the learned Tribunal below to that effect and accordingly we are of the view that the learned Tribunal failed to consider the Section 171 of the said Act in its appropriate effect and such non-consideration for non-granting of any interest has made the impugned judgment as illegal. This court on exercise of the power of the Appellate Court is accordingly of the view that Section 171 of the said Act has its full impact for consideration of the payment of interest on the claim amount as to be awarded. The accident happened on 25th November, 1999 and at the relevant time the bank interest in terms of the policy decision of the Reserve Bank of India on Fixed Deposit Scheme was 10% to 12%. Having regard to such State of affairs, this Court is accordingly of the view that 10% interest from the date of the application should be allowed in favour of the claimant-appellant which be calculated on the compensation amount as to be finalised by this Court. The effect of such interest with effect from the date of filing the application is not at all res Integra in view of the settled judgment of the apex Court in the field, one of which is referred National Insurance company Limited v. Keshav Bahadur and Ors. , reported in 2004 (2) TAC. 1 (SC ). ( 5 ) THE third grievance is raised about non-consideration of funeral expenses and the loss of Estate, being a total of Rs. 4,500/- in terms of section 163a of the said Act which very well has the applicability while adjudicating any application under Section 166 of the said Act as the structured formula is the safer formula for identifying the total compensation amount when the claimant would be successful to satisfy the fault liability of the vehicle concerned in terms of Section 166 of the said Act. In that view, this non-consideration and non-allowing the same by the learned tribunal was absolutely a wrong decision. This Court accordingly is allowing the funeral expenses for Rs. 2,000/- and loss of estate for rs. 2,500/ -. Now having regard to the aforesaid findings and observation, the actual amount of compensation now to be determined by this Court by modifying the impugned judgment under appeal. This Court accordingly is allowing the funeral expenses for Rs. 2,000/- and loss of estate for rs. 2,500/ -. Now having regard to the aforesaid findings and observation, the actual amount of compensation now to be determined by this Court by modifying the impugned judgment under appeal. ( 6 ) AS already discussed that the income of the deceased as per finding of this Court was Rs. 36,000/- per annum prior to the accidental death, having regard to such and on considering the deduction issue of 1/3rd for personal expenditure and hypothetically considering the expenditure of the deceased had he been alive, the figure comes to rs. 24,000/- which shall be multiplied by the appropriate multiplier on the basis of the age of the victim which not being disputed by the learned tribunal below by its finding by identifying the age of the victim as 30 years. From the structured formula under the Second Schedule of Section 163a of the said Act, multiplier 18 is the appropriate multiplier which could be applied in identifying the compensation money. Hence, the compensation amount reaches to the figure of Rs. 24,000/- which multiplied by 18 comes to Rs. 4,32,000/- and interest at the rate of 10% with effect from the date of the application, that is, 12th July, 2000 also be added till the date of payment. In addition to that, an amount of Rs. 4,500/-, as already discussed, being the funeral expenses and also for the loss of estate, also be added. The respondent Insurance Company is directed to deposit the aforesaid amount as fixed by this Court on calculating the interest by their own method before the learned Tribunal below, within four weeks from this date. ( 7 ) HOWEVER, it is needless to say that the amount of compensation as already paid in terms of the impugned award under appeal, being rs. 1,80,000/-, should be deducted from the total amount as to be calculated. Rs. 5,000/-, as already awarded by the learned Tribunal as loss of Consortium to the claimant-wife, would be available to the claimant-wife as per impugned judgment under appeal. We are not disturbing that finding. 1,80,000/-, should be deducted from the total amount as to be calculated. Rs. 5,000/-, as already awarded by the learned Tribunal as loss of Consortium to the claimant-wife, would be available to the claimant-wife as per impugned judgment under appeal. We are not disturbing that finding. ( 8 ) AFTER deposit of the said amount by the respondent Insurance company following the judgment of Union Carbide case reported in AIR 1992 SC 248 , which the Apex Court applied in the case of Nagappa v. Gurudayal Singh and Ors. , reported in 2003 (1) WBLR (SC) 774, this Court is feeling the anxiety to protect the interest of the claimant that the actual amount is paid to them directly. It appears from the claim application on record that there are minors. In that view of the matter, the learned Tribunal below is directed to deposit 80% of the amount as to be deposited by insurance Company on long term basis in a Fixed Deposit Scheme to a post Office or Nationalised Bank which is nearer to the residence of the claimants in respect of the individual claimant concerned separately upon supplying xerox copy of the documents of such namely, Deposit slip etc. 20% amount should be released by Account Payee cheque to the respective claimants for their necessary expenditure. ( 9 ) THE learned Tribunal below is directed to follow the exact procedure for deposit of the compensation amount in terms of the procedure as laid down in Paragraph-28 in the judgment of the Apex Court in the case of Nagappa v. Gurudayal Singh on quoting the report passed in the case of G. M. Kerala, SRTC v. Susamma Thomas, reported in 1994 (2)SCC 176 which is quoted below for ready reference of the learned Tribunal below: - " 28. In this view of the matter in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, the Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be required to have some sort of operation and also change the artificial leg. However, for such medical treatment, the Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, the appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18,000/- and the high Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lakh is awarded as an additional compensation, the appellant would be in a position to meet the said expenses from the interest of the said amount. Equally, it is true that the said amount is required to be properly invested on a long-term basis so that recurring medical expenses could be met. This principle is established in G. M. Kerala, SRTC v. Susamma Thomas, 1994 (2) SCC 176 and this Court held (in para 23) thus: "23, In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. v. Union of India in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to Ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High court in Muljibhai Ajarambhai Harijan v. United Insurance Co. Ltd. , 1982 (1) Guj LR 756 this Court offered the following guidelines: - (i) The claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long-term fixed deposits at least till the date of minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn; (ii) In the case of illiterate claimants also the claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money. (iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strain of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order; (v) In the case of widows the claims Tribunal should invariably follow the procedure set out in (i) above; (vi) In personal injury cases if further treatment is necessary the claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long-term fixed deposits is made it should be on condition that the bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardians the case may be; (viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency To meet with such a contingency, if the amount awarded is substantial, the claims tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated. " ( 10 ) NOW another question is that in claim application though originally rs. 4,92,000/- was claimed, but it was reduced by the claimants themselves to Rs. 4,00,000/- only. " ( 10 ) NOW another question is that in claim application though originally rs. 4,92,000/- was claimed, but it was reduced by the claimants themselves to Rs. 4,00,000/- only. But as per adjudication it appears that the compensation amount exceeds the limit of Rs. 1,00,000/ -. Such excess amount is being considered by this Court as just compensation by of applying the meaning word "just" as appearing in Section 168 of the said act, following the judgment passed by the Apex Court in the case of nagappa (supra), as already referred to payment of compensation is a social welfare legislation and technicalities for amendment will not be an embargo to allow such before the Court of appeal. The Court of appeal has the power to identify the just compensation in terms of Section 168 of the said Act and in fact we have done so by enhancing the compensation amount and fixing the amount as already discussed. ( 11 ) CONSIDERING all the aspects of the matter, the appeal is allowed. ( 12 ) THE judgment under appeal stands modified to that extent by quashing and setting aside the findings about income of the deceased by the learned Tribunal. ( 13 ) LOWER Court records be sent back forthwith to the learned tribunal below at the cost of the appellants by Special Messenger and such cost be deposited within a week from this date. ( 14 ) IT is made clear that the learned Tribunal would be entitled to verify the amount as to be deposited by the Insurance Company in terms of the order of this Court and in the event any amount remain to be deposited, the learned Tribunal will be at liberty to direct deposit of that the same within a shorter period in terms of the direction of the learned tribunal below. ( 15 ) IT is further made clear that Paragraph-23 of the judgment of the Apex Court passed in the case of Susamma Thomas (supra) shall be a guiding procedure to dispose of any application under any contingency by the learned Tribunal below in the event such contingency arises. ( 15 ) IT is further made clear that Paragraph-23 of the judgment of the Apex Court passed in the case of Susamma Thomas (supra) shall be a guiding procedure to dispose of any application under any contingency by the learned Tribunal below in the event such contingency arises. ( 16 ) IT is further made clear that the interest as to be available only could be enjoyable by the claimants from the Fixed Deposit Scheme and that to be renewed by the learned Tribunal below from time to time if such occasion arises.