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2018 DIGILAW 896 (GAU)

NEW INDIA ASSURANCE CO. LTD v. ANIL SARKAR

2018-06-04

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. This appeal is directed against the judgment and award dated 17/10/12 passed by MACT, Guwahati in MAC Case No. 2298/2006. 2. One Satyendra Biswas died in a motor vehicle accident involving the vehicle bearing registration No. AS-12/B-8665, owned by the respondent No. 3 and insured with the appellant. The claimants Anil Sarkar and Smt. Prabha Sarkar filed a claim petition seeking compensation for the death of one Satyendra Biswas and the learned tribunal by the impugned judgment, awarded a compensation of Rs. 2,08,000/- in favour of the claimants. 3. Aggrieved by the award, the Insurance Co. preferred the instant appeal. 4. Learned counsel Mr. Jagadish Sarma for the appellant and Mr. S.K. Barkakati for the respondents were heard. 5. The contention of the appellant Insurance Co. is that the claimants were not legal representatives of the deceased and as such, they were not entitled to any compensation under the MV Act, for the death of the deceased. In the written statement filed by the Insurance Co. the plea was specifically taken, that the claimants not being legal representatives of the deceased, were not entitled to seek compensation under the MV Act. The learned tribunal rejected the plea on the ground that no evidence was adduced by the Insurance Co. in support of their plea. 6. Section 166 (1) (c) & (d) of the MV Act lays down that where death has resulted from the accident, application for compensation may be filed by all or any of the legal representatives of the deceased or by any agent duly authorised by the person injured or any of the legal representative of the deceased as the case may be. Section 166 (1) (c) & (d) reads as under :- "(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" 7. Section 166 (1) (c) & (d) reads as under :- "(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" 7. Section 2 (11) of the CPC defines legal representative as under :- ""legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;" 8. The Apex Court in Gujarat SRPC-VS- Ramabhai Prabhatbhai 1987 3 SCC 234 , while dealing with the expression "legal representatives" in connection with the claim under the MV Act, observed that legal representative in a given case need not necessarily be a wife, husband, parents and child. The Apex Court further observed that however, the legal representative, who suffers on account of death of a person due to motor vehicle accident would have a remedy for realisation of compensation. Therefore, though the term legal representative shall be governed by the definition of Section 2 (11) CPC, it is not necessary that entitlement of the legal heir to seek compensation should be "governed by the preferential order of inheritance of property. Any legal representative, who suffers on account of the death of a person can maintain a claim petition. 9. Learned counsel for the claimants submits that the deceased was adopted son of the claimants and as such, claimants being adopted father and mother stood in the same footing of a biological parents and as such, claimants were certainly legal representatives and entitled to claim compensation for death of their adopted son. 10. Learned counsel for the appellant referring to the documents filed by the claimants themselves contended that the claimants were not the parents of the deceased. The accident information report Ex. 1 shows that the deceased was the son of the Lt. Harendra Biswas and address of the deceased was mentioned as C/o Sri Anil Sarkar, claimant No. 1. 10. Learned counsel for the appellant referring to the documents filed by the claimants themselves contended that the claimants were not the parents of the deceased. The accident information report Ex. 1 shows that the deceased was the son of the Lt. Harendra Biswas and address of the deceased was mentioned as C/o Sri Anil Sarkar, claimant No. 1. In the 1st paragraph of the claim petition, the claimant stated as under :- "We (1) Sri Anil Sarkar, son of late Roop Sarkar and (2) Smt. Prova Sarkar, wife of Anil Sarkar being the guardian of late Satyendra Biswas are the claimants of the above case, do hereby applied for grant of compensation .." 11. However, in column 19 of the claim petition as to the relationship of the deceased with the claimant No. 1, it was stated as adopted father. In order to establish that deceased was adopted son of the claimants, claimants proved two certificates issued by one Gaonburah (village head), namely, Rajen Medhi. Initially the said Gaonburah as a village head issued a certificate on 22/06/2006 stating that Anil Sarkar was the guardian of the deceased Lt. Satyendra Biswas. The same person issued another certificate after one year, i.e., on 15/06/2007 stating that Anil Sarkar kept the deceased Satyendra Biswas as adopted son. 12. Admittedly the claimants were not natural parents of the deceased. The claimants nowhere stated that they were dependent on the earning of the deceased. It is no doubt that in the context of a claim under the MV Act, the expression "legal representative should receive a liberal construction to include all legal representatives, who suffers on account of death of a person due to motor vehicle accident. Evidently the averment with regard to the status of the claimant in claim petition itself was self contradictory. At one place of the claim petition, it was mentioned that the claimants were the guardian of the deceased and in another place it was mentioned that the claimants were the adopted parents. 13. Admittedly the claimants were not biological parents of the deceased and the Ex. 1, the accident information report proved by the claimants demonstrated that father of the deceased was one late Harendra Biswas and not the claimant no. 1. 13. Admittedly the claimants were not biological parents of the deceased and the Ex. 1, the accident information report proved by the claimants demonstrated that father of the deceased was one late Harendra Biswas and not the claimant no. 1. When admittedly the claimants were not biological parents or legal representatives of the deceased, the accident information report also shows that claimants were not legal representatives and even the claim petition contained self contradictory averment as to the status of the claimants, the claimants were certainly under obligation to adduce at least some evidence in order to establish their status as legal representatives, for claiming compensation for the death of Satyendra Biswas. 14. In order to establish their status as adoptive parents the claimants proved two certificates purportedly issued by one Gaonburah (village head) which were proved as Ex. IV (a) & Ex. IV (b) . Interestingly both the certificates issued by the same person were contradictory, inasmuch as, in one certificate issued in the year 2006, the author mentioned that the claimants were guardian of the deceased. In another certificate issued after one year, the same author stated that the deceased was the adopted son of the claimants. The learned tribunal without applying mind to the pleadings and evidence adduced by the claimants rejected the plea of the Insurance Co. stating that no evidence was adduced by the Insurance Co. in support of their plea that claimants were not legal representatives of the deceased. One cannot be burdened with the responsibility to prove a negative thing. Since the claimants approached the tribunal praying for compensation claiming themselves to be adoptive parents or legal representatives, it was their burden to adduce at least some evidence to prove their status at least in the touchstone of preponderance of probability, that they were the adoptive parents and legal representatives of the deceased. Apparently the claimants themselves were not sure about their status, as would appear from the claim petition itself. The Ex- 1 proved by the claimants themselves shows that deceased was the son of one late Harendra Biswas, meaning thereby, that the claimants were not the legal representatives of the deceased. Admittedly the deceased was 44 years of age at the time of death and the claimants were about 50 and 60 years respectively and therefore, apparently difference of age of the deceased with claimant no. Admittedly the deceased was 44 years of age at the time of death and the claimants were about 50 and 60 years respectively and therefore, apparently difference of age of the deceased with claimant no. 1 & 2 was 16 years and 6 years respectively. It needs no mention that a guardian cannot claim compensation for death of a person unless he is a legal representative. In the facts and circumstances of the case when the claimants were not biological parents and sought compensation claiming themselves to be adoptive parents, the claim that the claimants ought to have adduced at least some evidence to substantiate their claim. The only evidence adduced by the claimants were the Ex. IV (a) Ex. IV (b) being the certificate issued by a village head as indicated above were totally unreliable for being self contradictory, and no credibility can be attached to the said Ex. IV (a) Ex. IV (b) . If those two documentary evidence, i.e., Ex. IV (a) & Ex. IV (b) are discarded, claimants would be left with absolutely no evidence to show that they were adoptive parents of the deceased. 15. It is to be borne in mind that a proceeding before the Motor Accident Claims Tribunal is not an adversarial proceeding and it is the responsibility of the tribunal to hold an enquiry in order to determine just compensation for the legal representatives of the victim who died in a motor vehicle accident. No doubt, the provision of the M.V. Act to provide compensation is a social welfare legislation and the tribunal should take a holistic view, while appreciating evidence in a proceeding for compensation under the M.V. Act, so that real victim or legal representative of the victim of vehicular accident are not deprived of just and fair compensation. But that does not mean that anyone who is not even entitled to compensation shall be given the compensation under the garb of social welfare object. In the instant case, the claimants themselves were not sure about their status whether they were guardian or adoptive parents. Two documentary evidence proved by the claimants itself demonstrated that those two documents were hardly worthy of placing reliance. In absence of any evidence or even a convincing pleading to substantiate that the claimants were legal representatives of the deceased, the tribunal cannot invoke the jurisdiction to award compensation under the M.V. Act. 16. Two documentary evidence proved by the claimants itself demonstrated that those two documents were hardly worthy of placing reliance. In absence of any evidence or even a convincing pleading to substantiate that the claimants were legal representatives of the deceased, the tribunal cannot invoke the jurisdiction to award compensation under the M.V. Act. 16. On the facts and circumstances of the case, I am of the considered view that the learned tribunal without applying judicial mind mechanically granted compensation, though, the claimants failed to show even prima facie that they were indeed legal representatives of the deceased, Satyendra Biswas, who was admittedly son of late Harendra Biswas. Since the claimants have not been able to show even in the touchstone of preponderance of probability that they were the adoptive parents or legal representatives of the deceased, the impugned award granted by the tribunal deserves to be set aside. 17. In view of the above finding that the claimants were not entitled to any compensation, the cross objection filed by the claimants for enhancement of compensation requires no further consideration and deserves to be dismissed. Accordingly, the cross objection stands dismissed. 18. In the teeth of the discussion made here-in-before, the judgment and award is set aside and the appeal stands allowed.