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Gauhati High Court · body

2009 DIGILAW 663 (GAU)

State of Tripura v. Bela Dey

2009-09-11

C.R.SARMA

body2009
JUDGMENT C.R. Sarma, J. 1. This appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as the 'M.V. Act') is directed against the Judgment and Award dated 24.2.1999 passed by the Motor Accident Claims Tribunal, West Tripura, Agartala in T.S. (MAC) 194 of 1994. 2. By the said judgment, a compensation amounting to Rs. 4,80,000 along with interest @ 12% per annum was awarded in favour of the claimants with effect from 26.8.1994. 3. On 24.12.1992 at about 10:45 hours, while Sukumar Das (herein after referred to as 'deceased') who was husband of the claimant No. 1 and son of the claimant No. 2, was traveling in vehicle No. TR.01-0815, sustained injury due to rash and negligent driving of the said vehicle and firing of the extremist. The deceased Sukurnar Das was brought to the G.B. Hospital for treatment and he succumbed to the injuries on 11.1.1993. Accordingly, the claimants i.e., the widow and the mother of the deceased aforesaid preferred a claim under Section 166 of the M.V. Act, claiming compensation for the death of the deceased due to rash and negligent driving of the said vehicle. It was claimed that the monthly income of the deceased, who was 42 years was Rs. 6,000 per month. The claim was made against the State of Tripura represented by the Chief Secretary and the Director of Fisheries, Government of Tripura, who were made party respondent Nos. 1 and 2 respectively. The said respondents contested the claim by filing written statement. Denying the allegation of rash and negligent driving of the vehicle, the contesting respondents denied their liability to pay the compensation as claimed for. The claimants examined three witnesses, whereas the respondent side examined one defence witness. The maintainability of the claim was also challenged on the ground that the claimant No. 1, i.e., the widow having undergone re-marriage was not entitled to get any compensation. 4. Having heard both sides and considering the evidence on record, the learned Member, Motor Accident Claims Tribunal came to the finding that the death of the deceased was caused due to rash and negligent driving on the part of the driver. The learned Member also held that due to the alleged re-marriage, the claimant No. 1 could be deprived from her right to get the compensation. 5. As the deceased was drawing salary @ Rs. The learned Member also held that due to the alleged re-marriage, the claimant No. 1 could be deprived from her right to get the compensation. 5. As the deceased was drawing salary @ Rs. 5,740 per month, the learned Member assessed the loss of income @ Rs. 3,000 per month and calculated the total amount at Rs. 4,68,000 by using the multiplier 12. An amount of Rs. 2,000 being the expenditure towards the medical treatment and another amount of Rs. 2,000 being the funeral charge were also awarded and the total amount was assessed at Rs. 4,82,000. The said amount was awarded as compensation with interest @ 12% with effect from 26.8.1994. 6. Being aggrieved by the said judgment and order, the appellants have come up with the present appeal. 7. I have heard Mr. P. Datta, Learned Counsel appearing for the appellants and Mr. Somik Deb, Learned Counsel appearing for the respondents. 8. Mr. P. Datta, Learned Counsel appearing for the appellants has attacked the impugned judgment and order mainly on two grounds. Firstly, according to Mr. Datta, the award of compensation was towards the higher side and the secondly, the respondent No. 2, having re-marriage after the death of the deceased, was not entitled to get the compensation Mr. Somik Deb, Learned Counsel appearing on behalf of the respondents, refuting the said argument, advanced by the Learned Counsel for the appellant, submitted that the deceased being a Government employee, drawing monthly salary at Rs. 5,740, the learned Trial Judge committed no illegality by taking Rs. 3,000 as the monthly loss due to death of the deceased and by using the multiplier of 13 Mr. Deb further submitted that immediately, after the death of her husband, the widow acquired a statutory right to get the compensation and this right cannot be the taken away on the ground that she had re-married. In support of his contention, the Learned Counsel appearing for the respondents has relied on the decisions held in case of (1) Vimla v. Dinesh Kumar Sharma and Ors. 2008 ACJ 816 , (2) Hariram and Ors. v. Commissioner for Workmen's Compensation 1994 ACJ 1094 , (3) Helen C. Rebello (Mrs.) and Ors. v. Maharashtra State Road Transport Corporation and Anr. (1999) 1 SCC 90 , (4)Maharashtra State Road Transport Corporation v. Darabkhan and Ors. 2006 ACJ 1410 , (5) Pramila and Ors. v. Sarvar Khan and Ors. 2008 ACJ 816 , (2) Hariram and Ors. v. Commissioner for Workmen's Compensation 1994 ACJ 1094 , (3) Helen C. Rebello (Mrs.) and Ors. v. Maharashtra State Road Transport Corporation and Anr. (1999) 1 SCC 90 , (4)Maharashtra State Road Transport Corporation v. Darabkhan and Ors. 2006 ACJ 1410 , (5) Pramila and Ors. v. Sarvar Khan and Ors. 2003 ACJ 542 , (6) Veerappan v. Muthamma 1995 ACJ 313, (7) Man Singh and Ors. v. Banne and Ors. 2004 ACJ 1467 and (8) Vimla Devi and Ors. v. Chaman and Ors. 1992 ACJ 1048. 9. There is no dispute that the deceased was a Government employee working in the Fishery Department. The appellant has also not disputed that the monthly salary of the complainant of the deceased was Rs. 5,740, out of which amount he used to contribute some money towards his G.P. Fund, Professional Tax etc. Considering the said monthly salary, the learned Trial Judge held that the monthly loss due to death of the deceased stood at Rs. 3,000 per month. There is nothing on record to find that the said finding of the learned Trial Judge was wrong. As the age of the deceased was in between 45 to 46 years, the learned Member rightly applied the multiplier 13 and thus, estimated the total loss at Rs. 4,68,000. 10. Considering expenditure towards the medical treatment and funeral charge, the learned Judge further added another amount of Rs. 10,000 and Rs. 2,000 and thus, calculated the total amount at Rs. 4,80,000. In view of the above, it appears that the learned Judge, while calculating the compensation duly applied his mind and committed no gross illegality requiring interference by this Court. 11. The second point raised by the appellant side is that due to her remarriage, after the death of deceased, the claimant No. 1 i.e., the widow of the deceased was not entitled to get the compensation. As provided by Section 166 of the Motor Vehicles Act, 1988 (for short M.V. Act) legal representatives of the deceased; or by any agent duly authorized by all or any of the legal representatives of the deceased, as the case may be can seek compensation in respect of death due to vehicular accident. In the present case the claim being made in respect of the deceased, his legal representatives were entitled to claim compensation. In the present case the claim being made in respect of the deceased, his legal representatives were entitled to claim compensation. As provided in the schedule attached to the Hindu Succession Act, 1956, the widow and the mother are also the first class heirs. Therefore, in the present case, the claim being made by the mother and the widow of the deceased the same was rightly preferred by the legal representatives of the deceased. The occurrence i.e., the death of the deceased, took place on 24.12.1992. Therefore, the right to seek compensation under the M.V. Act arose in favour of the claimants on the said date itself. Admittedly, the claimant/respondent No. 2 became the widow on 24.12.1992 and in that capacity, she became a legal representative in respect of the deceased husband. 12. Now the question is whether the said widow, who re-married during the pendency of the claim petition, was entitled to get compensation for the death of her deceased husband. Fact remains that she re-married after the death of her deceased husband and that too, after filing of the claim petition i.e., during the pendency of the claim case. The question of entitlement, as raised above, came before various courts for consideration and the question has been answered in favour of the widow. 13. In the case of Vimala Devi and Ors. v. Chaman and Ors. 1992 ACJ 1048, the question as to whether due to re-marriage of the claimant (widow), the compensation should be reduced or not came up before the Rajasthan High Court. In deciding the said case in favour of the widow it was observed as follows: Widow has a right to remarry and it is in the interest of the society that re-marriage of the young lady should be encouraged and the court should not be an impediment because of the old traditional approach, where the power vested in the man and the females were considered as the second class members. For this purpose, Section 14 of the Hindu Succession Act, 1956 also provides the right of absolute ownership to a woman and I am of the view that to say that on account of the re-marriage or possibility of re-marriage deduction of compensation will be against the spirit of the Constitution and will put a check on the re-marriage system provided under various Legislations enacted by the Parliament and the State Assembly. In the case of Mansingh and Ors. v. Banne and Ors. 2004 ACJ 1467 , it was contended that since the claimant-widow had re-married after the accident, she was not entitled to compensation. A Division Bench of the Madhya Pradesh High Court in deciding the said case in favour of the widow held - Shardabai re-married after the accident. This happened because her husband died otherwise she could not have married again. The accident took place while she was wife of the deceased. Her entitlement to compensation is to be seen on the date of accident on this date, she had not re-married. Entitlement, of widow, remarrying after the death of husband in accident has been examined by this Court exhaustively in Pramila v. Sarvar Khan 2003 ACJ 542 (MP). It has been held that simply because widow remarries after the accident, she cannot be denied compensation on the death of her husband. Therefore, Shardabai is also held entitled to compensation. In the case of Veerappan v. Muthamma 1995 ACJ 313, a Division Bench of the Kerala High Court held that the claimant-widow, who remarried, cannot be disentitled of the compensation as a dependent of her deceased husband. In deciding the said case, it was observed as follows: As a widow, she is entitled to the compensation being the legal heir of the deceased husband. There is no provision under the Workmen's Compensation Act that after re-marriage widow is not entitled to compensation. At the time of accident first respondent's status as the wife of the deceased was not denied and so on his death she became one of his legal heirs. In the case of Pramila and Ors. v. Sarvar Khan and Ors. 2003 ACJ 542 while deciding that a widow cannot be denied compensation for the death of her husband on the ground of contracting a second marriage, the Division Bench of the High Court of Madhya Pradesh observed as follows: Legal representative' ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an individual. Legal representative in a given case need not necessarily be a wife, husband, parents and child. However, it cannot be said that wife is not a legal representative of her deceased husband. Legal representative in a given case need not necessarily be a wife, husband, parents and child. However, it cannot be said that wife is not a legal representative of her deceased husband. She is qualified to represent his estate on his death, therefore, qualified to file application for compensation for the loss of her husband. Succession to the estate opens on the occurrence of death of husband. Estate would include all kinds of properties, movable and immovable, left by the deceased husband. It would include claim for compensation, which arises on the death of husband. Her entitlement to the estate/compensation is settled on the taking place of the accident resulting in the death of the husband. She cannot be divested of this right, being absolute and inalienable, even if she remarries. This conclusion flows by operation of Article 15(3) of the Constitution of India and Section 14(1) of the Hindu Succession Act, 1956. Provisions of Hindu Adoptions and Maintenance Act, 1956 have no application since their application is confined to limited field. The term 'dependency' is not a principle of absolute application It is a guide for arriving at a figure which is called compensation. Compensation is payable for loss caused to the victim in accident by the tortfeasor(s) and it is climbable even by a person who is well placed in life earning handsomely and is not actually dependent on the deceased, object being to penalise, by award of compensation, the tortfeasor(s) against loss sustained by the victim or his legal representatives, otherwise they would not suffer in any way by committing breach of positive duty to operate vehicles on highway/public place in a careful manner. A Division Bench of the Andhra Pradesh High Court in the case of Vimla v. Dinesh Kumar Sharma and Ors. 2008 ACJ 816 , while deciding the question regarding entitlement of a widow to get compensation for the death of her husband after her entering into a second marriage, held that her claim for compensation cannot be defeated by such re-marriage. The same view was taken in the case of Hariram and Ors. v. Commissioner for Workmen's Compensation 1994 ACJ 1094 . In the deciding the case aforesaid, it was observed that the inheritance is not kept in abeyance and that it took place immediately after the death. 14. The same view was taken in the case of Hariram and Ors. v. Commissioner for Workmen's Compensation 1994 ACJ 1094 . In the deciding the case aforesaid, it was observed that the inheritance is not kept in abeyance and that it took place immediately after the death. 14. In view of the above decisions and the principles of law laid down by the various courts of the country, it appears that a widow, even after her re-marriage, is entitled to get compensation for the death of her deceased husband. 15. However, a contrary view was taken in the case of United India Insurance Company Ltd. v. Eda Anjanamma and Ors. (2004) 1 ACC 617 (AP). In this case, one of the claimants i.e., the widow of the deceased re-married during the pendency of the claim petition. The Tribunal considering the evidence on record granted compensation in favour of the claimants. The said award was challenged by the Insurance Company on the ground amongst others, that the widow having remarried during the pendency of the claim petition, was not entitled to any amount under the head, 'loss of dependency'. In deciding the said case, it was held that a widow of the deceased who died in a motor accident was entitled for compensation for loss of dependency, loss of consortium and other items of the compensation till she ceased to be the legal representative of her late husband on her re-marriage. Therefore, her compensation was reduced on the basis of the period during which she remained as widow of the deceased. 16. Compensation on account of vehicular accident can be claimed and awarded under the provisions of the M.V. Act, Section 166(1) of the M.V. Act provides that an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165 may be made: (a) by the person who has sustained the injury ; or (b) by the owner of the property ; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased ; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Section 165 of the M.V. Act provides that claim Tribunals are to be established by the State Government for the purpose of adjudicating upon the claims for compensation in respect of the accidents involving the death, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of the third party so arising, or both. 17. Neither in Section 165 nor in Section 166, there is any restriction/bar prohibiting or disqualifying a widow, who remarries during the pendency of a claim petition, from getting compensation for the death of her husband. In view of the provisions laid down in Section 166, as the widow of the deceased becomes the legal representative of the deceased, immediately on the death of her husband in a vehicular accident, her right to seek compensation under the M.V. Act accrues in her favour. There is no principle of limited heir and there is nothing in the Motor Vehicles Act that in order to get compensation the widow is required to remain unmarried. As the right to claim compensation accrues immediately on the death of the husband, in the absence of any contrary provision, she cannot be divested from her statutory right to get such compensation as provided by the statute only on the ground of subsequent re-marriage, to which she is lawfully entitled. There can be no dispute in understanding that after the death of a husband, in our society, the life of the widow cripples abnormally and she is subjected to all kinds of indignities, compelling her to take shelter in her parents' house and if her parents are not alive and even if they are alive, sometimes due to their poor economic condition they can hardly look after such widow. It will not be appropriate to expect a widow, more particularly, a young lady, who loses her husband at the early part of her life to continue to live the rest of her life without the company of a male member. That apart, in the absence of a sufficient financial support and social security, such young widow may get exposed to any kind of exploitation. The only way to save herself from such indignity, miseries, and hardship etc. That apart, in the absence of a sufficient financial support and social security, such young widow may get exposed to any kind of exploitation. The only way to save herself from such indignity, miseries, and hardship etc. is to take the company of a male by entering into a second marriage and thereby paving the way to lead a comfortable and respectable life in the society. The option for re-marriage being legally permissible, the widow should be encouraged for remarriage. Therefore, she should not be punished by depriving her from the compensation for the death of her husband. Refusal to give compensation only on the ground of re-marriage would amount to discouraging the widow re-marriage system, which system is good for the health of civilized society. A widow, if she can find a suitable husband, even during the pendency of her claim petition, cannot be expected to wait to enter into re-marriage till the disposal of her claim petition. The pendency of the claim petition and delay in such disposal cannot be her fault. From the perspective of a welfare and civilised society, the remarriage of the widow cannot be discouraged in any manner. Therefore, there cannot be any impediment or restriction compelling a widow not to remarry till the disposal of her claim petition. Admittedly, for the welfare and betterment of the society, the re-marriage of the widow is beneficial. Therefore, there should be incentive for such re-marriage towards betterment of the society. Moreover, her right to get the compensation accrued to her much prior to her re-marriage. In fact, she wanted to realise the compensation, which she earned prior to such re-marriage. What she earned under the statute at a particular point of time can't be denied on the ground that there was delay in disposal of legal proceeding. The M.V. Act does not provide any provision, by which such right can be taken away due to the subsequent re-marriage, that too after filing the claim petition. The loss both mental and financial caused to her due to death of her husband cannot be suitably compensated by the subsequent marriage. Even after her re-marriage, a widow generally does not enjoy the same status and benefit of decent life as she used to get during the life-time of her deceased husband. The loss both mental and financial caused to her due to death of her husband cannot be suitably compensated by the subsequent marriage. Even after her re-marriage, a widow generally does not enjoy the same status and benefit of decent life as she used to get during the life-time of her deceased husband. In the present case in hand, there is nothing on record to find that, after her re-marriage, the claimant widow used to get the same amount of financial benefit which was available to her during the life-time of her deceased husband. There is no evidence regarding the financial condition of her second husband. A widow may enter into the second marriage due to various reasons and such re-marriage may not be a suitable substitute for all purposes including financial support. She may not get the pecuniary support, which she used to get from her deceased husband. Therefore, it cannot be held that the pecuniary loss caused due to death of her deceased husband was compensated by the subsequent marriage and as such she can't get the compensation as claimed for. 18. In the light of the above discussion, the statutory right to seek compensation for the death of the deceased husband of the widow having arisen in her favour, immediately on the death of her deceased husband, she was entitled to get compensation and this right vested in her cannot be denied merely on the ground that she re-married during the pendency of the claim petition. Therefore, I respectfully disagree with the view taken in the case of United India Insurance Company Ltd. (supra). 19. In the light of the above discussion, I am inclined to hold that the respondent No. 1 (widow) was entitled to get compensation even after her re-marriage. Therefore, in my considered opinion, the learned trial Judge committed no illegality by awarding the compensation aforesaid. 20. In view of the above, I find no merit requiring interference with the impugned judgment and order. 21. Accordingly, the appeal is dismissed. Appeal dismissed.