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2006 DIGILAW 510 (CAL)

Jenali v. National Insurance Co. Ltd.

2006-08-14

Arunabha Basu, Pratap Kumar Ray

body2006
JUDGMENT: 1. HEARD the learned advocates appearing for the parties. 2. THIS appeal has been filed by the claimants of the application under section 166 of the Motor Vehicles Act, 1988, assailing the judgment and order dated 3. 4. 2001 passed in M. A. C. Case No. 355 of 1997 of the learned Judge of the Motor accidents Claims Tribunal, who is also holding the post of learned Additional district Judge, Fourth Court, Alipore. It is the case of the appellants before this court that despite the evidence on record so far as the age is concerned as it appears from the voter identity card as issued under rule 28 of the Registration of electors Rules, 1960, the learned Tribunal below came to an erroneous finding that there was no proof of age of the victim at the time of the accident and accordingly did not apply any multiplier system in terms of the structured formula to quantify the amount of compensation. It is also the grievance about the fixation of the income by the learned Tribunal below by contending, inter alia, that in the claim application though the claimants mentioned the income of the deceased who was engaged to sell vegetables in the market was Rs. 60 per day in average and in the deposition which remain even unshaken in cross the pw 1 deposed the income range as Rs. 60 to Rs. 70 per day, learned Tribunal came to a finding that there was no proof of income and accordingly without applying the structured formula granted a lump sum of Rs. 75,000 as compensation by adjudicating the application under section 166 of the Motor Vehicles Act, 1988. 3. THIS appeal has been opposed by the respondent insurance company who, however, from the record as it appears did not take any leave under section 170 of the motor Vehicles Act, 1988, to contest the claim application filed by the appellants before the learned Tribunal below and, as such, the insurance company is debarred to contest this appeal. Reliance may be placed to the judgments passed in the cases of shankarayya v. United India Insurance co. Ltd., 1998 ACJ 513 (SC); H. S. Ahammed Hussain v. Irfan Ahammed, 2002 ACJ 1559 (SC) and National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC); a judgment of three-Judge Bench. Reliance may be placed to the judgments passed in the cases of shankarayya v. United India Insurance co. Ltd., 1998 ACJ 513 (SC); H. S. Ahammed Hussain v. Irfan Ahammed, 2002 ACJ 1559 (SC) and National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC); a judgment of three-Judge Bench. On scanning the records it appears that the claimants to prove the age of the victim submitted the identity card issued by the concerned officer, namely, the Election commission in exercise of power under rule 28 of Registration of Electors Rules, 1960. The rule 28 of the said Rules reads to this effect: "28. Identity cards for electors in notified constituencies.- (1) The Election commission may, with a view to preventing impersonation of electors and facilitating their identification at the time of poll, by notification in the Official Gazette of the State, direct that the provision of this rule shall apply to any such constituency or part thereof as may be specified in the notification. (2) The registration officer for such notified constituency shall, as soon as may be, after the issue of the notification under sub-rule (1), arrange for the issue to every elector of an identity card prepared in accordance with the provisions of his rule. (3) The identity card shall- (a) be prepared in duplicate; (b) contain the name, age, residence and such other particulars of the elector as may be specified by the Election commission; (c) have affixed to it a photograph of the elector which shall be taken at the expense of the government; and (d) bear the facsimile signature of the registration officer. " 4. PROVIDED that if the elector refuses or evades to have his photograph taken, or cannot be found at his residence by the official photographer in spite of repeated attempts, no such identity card shall be prepared for the elector and a note of such refusal or evasion or that the elector could not be found at his residence in spite of repeated attempts shall be made in the copy of the roll maintained by the registration officer. " (4) One copy of the identity card prepared under sub-rule (3) shall be retained by the registration officer and the other copy shall be delivered to the elector to be kept by him for production at the time of poll. " (4) One copy of the identity card prepared under sub-rule (3) shall be retained by the registration officer and the other copy shall be delivered to the elector to be kept by him for production at the time of poll. " Clause (3) of the rule 28 as quoted above provides that identity card shall be prepared which should contain the name, age, residence and such other particulars of the elector as may be specified by the Election commission. Photograph of the elector is also required to be affixed in this card and the card will also bear the facsimile signature of the registration officer. Hence, on a bare reading of the said rule 28 it appears that in due discharge of the official duty, the registration officer in terms of the said rule following the direction as issued by the Election Commission prepared the identity card. Hence this identity card is admissible in evidence as relevant fact in terms of section 35 of the Evidence Act which reads to this effect: "35. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. " 5. ON a combined reading of section 35 of Evidence Act and rule 28 of the Registration of Electors Rules, 1960, this court is of the view that the identity card issued by the registration officer in terms of the direction of the Election Commission is a public document which does not require to be proved by producing the officer concerned who prepared that identity card. The insurance company has not challenged the same and also no leave was taken by the insurance company under section 170 of the said Act to contest the matter. 6. The insurance company has not challenged the same and also no leave was taken by the insurance company under section 170 of the said Act to contest the matter. 6. IN that view of the matter, an admissible evidence was not considered by the learned Tribunal below wrongly and erroneously which goes to the root of the matter as the learned Tribunal below came to a finding that as the age was not proved, the structured formula in terms of section 163-A was not possible to be applied due to problem of identifying any multiplier which is determinable from the age as was not proved. This court is of the view that there was an erroneous finding by the Tribunal on age issue as even if age was not recorded in the post-mortem report, but by producing the voter identity card aforesaid as prepared by the Election Commission an admissible evidence on age was asserted by claimants. This court is accordingly accepting the age as recorded in the said identity card. This identity card was exhibited and marked as 'exh. 8'. From the exh. 8 it appears that the said voter identity card was issued by the Electoral Registration officer of 123, Mathurapur Assembly constituency on 22. 6. 1995 identifying the age of the victim Arijan Bibi as 36 years as on 1. 1. 1995. The accident occurred on 21. 1. 1997 and the accidental death of Arijan Bibi w as the accepted finding by the learned Tribunal below. Hence, as on the date of accident, i. e., on 21. 1. 1997 the age of the victim on the basis of said identity card was 38 years 20 days. This court is accepting the said age to identify the age of the victim on the basis of Exh. 8, a public document prepared in due discharge of official duty by a public officer following the statutory rule, namely, the rule 28 aforesaid which has a presumptive value since un-rebutted in terms of section 35 of the Evidence Act. 7. NOW, the next question is about the income. 8, a public document prepared in due discharge of official duty by a public officer following the statutory rule, namely, the rule 28 aforesaid which has a presumptive value since un-rebutted in terms of section 35 of the Evidence Act. 7. NOW, the next question is about the income. In this field the learned Tribunal below committed a gross mistake by not identifying the income on the basis of the evidence on record and thereby came to a wrong finding to fix the notional income though under the structured formula in terms of section 163-A, fixation of notional income is admissible only in respect of an unemployed person. It is not the case of the claimants that victim lady was unemployed. It was the positive case that she was engaged in selling vegetables in the market and thereby used to earn Rs. 60 to Rs. 70 per day. In the claim application there was a positive averment about the income to the extent of Rs. 60 per day. Though the insurance company was debarred to cross-examine due to lack of taking any leave under section 170 of the said Act, but still the learned Tribunal allowed the cross-examination by the insurance company. On scanning such evidence it appears that there was no cross-examination on the point that the deposition on income was not right and proper save and except cross-examination that no documentary evidence of such income by PW 1 was filed. This court is surprised from the trends of cross-examination that a vegetable seller and/or vendor should have documentary evidence of her income. 8. BE that as it may, this court is of the view that there was sufficient evidence to identify the income at least to adjudicate the application under section 166 of the motor Vehicles Act as the adjudication of such type of application does not require any strict proof in terms of Evidence Act, but it requires a lenient approach in terms of social welfare legislation and beneficial legislation for the family of the victim who has suffered the accidental death of the nearest and dearest one. Having regard to such a state of affairs, this court has no other alternative but to accept the evidence on record about the income and accordingly the income is assessed by this court in terms of evidence on record as Rs. 60 per day. Having regard to such a state of affairs, this court has no other alternative but to accept the evidence on record about the income and accordingly the income is assessed by this court in terms of evidence on record as Rs. 60 per day. The finding of learned Tribunal below that the claimants failed to prove any income was erroneous and same stand quashed. 9. HAVING regard to such income of rs. 60 per day, the monthly income of the victim comes to the figure of Rs. 1,800. It is a settled law now that even in the application under section 166 of Motor Vehicles act, the structured formula in terms of section 163-A could be applied as it is safer to apply such formula. Reliance may be placed to the judgment passed in the case of Arati Bezbaruah v. Dy. Director General, geological Survey of India, 2003 ACJ 680 (SC ). Hence, applying the structured formula under section 163-A to identify the annual income,1/3rd income of the victim should be deducted on hypothetical consideration of personal expenditure of the victim, had she been alive. From total income of Rs. 1,800 per month, if 1/3rd is deducted, the monthly income comes to the figure of Rs. 1,200. On multiplying the same by 12 the annual income comes to the figure of Rs. 14,400. The age has already been identified and in terms of structured formula as the age of the victim has been identified as 38 years 20 days on the date of accident, the appropriate multiplier is 16 which to be multiplied with the figure of annual income. Hence, the compensation amount would reach to the figure of rs. 14,400 x 16 = Rs. 2,30,400. 10. THE learned Tribunal below did not consider the general damages in case of death as it appears from the Second Schedule to section 163-A of the said Act. Under the general damages the claimants were entitled to get Rs. 2,000 towards funeral expenses and Rs. 2,500 for loss to estate. The husband-claimant was entitled to get rs. 5,000 as loss of consortium. In that view of the matter, the total compensation amount as to be distributed amongst the claimants equally would be Rs. 2,34,900. The husband-claimant in addition to his proportionate compensation as to be fixed will get additional Rs. 5,000 as already discussed. 2,500 for loss to estate. The husband-claimant was entitled to get rs. 5,000 as loss of consortium. In that view of the matter, the total compensation amount as to be distributed amongst the claimants equally would be Rs. 2,34,900. The husband-claimant in addition to his proportionate compensation as to be fixed will get additional Rs. 5,000 as already discussed. Learned advocate for the appellants further urged that learned Tribunal below did not at all consider the applicability of section 171 of Motor Vehicles Act, 1988. A statutory provision imposes a liability upon the court to consider the payment of interest on compensation amount. Section 171 mandates the court to identify the interest amount from the date of filing of the application. This point is also not resintegra in view of the settled law in this field that interest is payable from the date of filing of the claim petition. Reliance may be placed to the judgments passed in the cases of National Insurance Co. Ltd. v. Keshav Bahadur, 2004 ACJ 648 (SC)and Fakeerappa v. Karnataka Cement Pipe factory, 2004 ACJ 699 (SC ). 11. HAVING regard to such, this court is of the view that the claimants are entitled to get interest on the compensation amount in terms of section 171 of the said Act as a statutory provision incorporated in the statute requires due consideration by the court of law. 12. AS already discussed, the accident took place on 21. 1. 1997. The rate of interest on fixed deposit is the rider to identify the interest as to be allowed. In the year 1997 it was in the range of 10 to 12 per cent per annum on fixed deposit. Having regard to such, this court is identifying the rate of interest as payable to the extent of 10 per cent per annum w. e. f. the date of filing of the application, namely, w. e. f. 2. 12. 1997 as it appears from the lower court records. The insurance company is directed to deposit the said amount, namely, the total compensation amount along with interest thereon as accrued as per decision of this court within four weeks from this date. It appears from the claim petition that out of five claimants except the husband, all are minor children. 1997 as it appears from the lower court records. The insurance company is directed to deposit the said amount, namely, the total compensation amount along with interest thereon as accrued as per decision of this court within four weeks from this date. It appears from the claim petition that out of five claimants except the husband, all are minor children. Following the judgment of Apex Court accordingly this court is bound to protect interest of the minors as well as the compensation amount of the husband who is illiterate as it appears from the vakalatnama which has been executed on putting left thumb impression. The Supreme Court settled the law that the court must keep in mind to protect the interest of the claimants so that the amount of compensation is available to them. It has been further settled by the Supreme Court that under the long-term fixed deposit scheme the amount should be deposited by learned tribunal itself and the claimant would be entitled to enjoy the interest as to be accrued thereon per month to maintain his livelihood, educational expenditure, etc. Different contingencies have been prescribed by the Apex Court in the case of nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC ). This is a judgment of three-Judge bench wherein para 29 the Apex Court quoted para 17 of the judgment passed in the case of General Manager, Kerala State road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC), which reads to this effect for ready reference: " (17) In a case of compensation for death it is appropriate that Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 , in the matter of appropriate investments to safeguard the feed from being frittered away by beneficiaries owing to ignorance, illiteracy and susceptible (sic susceptibility)to exploitation. In that case approving the judgment of Gujarat high Court in Muljibhai Ajarambhai harijan v. United India Insurance Co. Ltd., 1983 ACJ 57 (Gujarat), this court offered the following guidelines: '(i) 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 the minor attaining majority. Ltd., 1983 ACJ 57 (Gujarat), this court offered the following guidelines: '(i) 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 the 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 rogue (sic 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 any 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 strata 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 so 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 guardian, as the case may be; (viii) In all cases the 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, Claims tribunal may invest it in more than one fixed deposit so that if need be one such f. D. R. can be liquidated'. " 13. LEARNED Tribunal below is directed to follow the same by depositing the proportionate amount to the respective claimants under long-term fixed deposit scheme either in a post office or in a nationalised bank nearer to the residence of the claimants with a direction that interest should be payable directly to the claimants from the concerned bank and/or from the post office month by month. Learned Tribunal below will also supply the xerox copy of the documents relating to such deposit to the claimants. 14. ANOTHER point which is required to be considered is that though claimants have limited claim to the tune of Rs. 1,60,000 but as this court considering the structured formula is of the view that the claimants are entitled to get compensation more than that which accordingly is fixed as a 'just compensation' by exercising the power of such fixation in terms of section 168 of the motor Vehicles Act, 1988, following the dictum of Apex Court passed in the case of nagappa v. Gurudayal Singh, 2003 ACJ 12 (SC ). The appeal is accordingly allowed by setting aside the impugned judgment and order under appeal and the findings thereof. The amount of compensation as per direction of this court to be paid and it is needless to say that the amounts which have already been paid in compliance with the order passed under section 140 of the said Act and in terms of the judgment under appeal, should be deducted from the amount as already fixed by the court. 15. REGISTRY is directed to send back the lower court records along with the copy of the judgment by special messenger at the cost of the appellants, the cost of which to be deposited within a week from this date by the appellants. 16. LET xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously. Arunabha Basu, J.-I agree. Appeal allowed.