Allowed

National Insurance Co. Ltd., v. Smti Biju Das and 4 Ors.

Gauhati HC16 Mar 2018MACApp./199/2010

Case brief

AI extract

What is this about?

The Guahati High Court modified the compensation award for DV accident victims. It capped insurer liability under Workmen's Compensation Act limits but directed insurer to pay first and recover excess from the owner. Compensation was reassessed deducting personal expenses and adopting new conventional heads, while rejecting enhancement for future prospects.

What did the court decide?

Appellate court capped insurer liability at Workmen's Compensation Act limits (Rs. 3,19,040), reassessed total award at Rs. 4,79,728, and directed insurer to recover excess from vehicle owner.

National Insurance Co. Ltd., Vs Smti Biju… — Contract and Commercial Disputes | Gauhati HC (2018)

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GAHC010199322010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 199/2010

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1:NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS REGIONAL MANAGER, BHANGAGARH, GUWAHATI-5

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VERSUS

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1:SMTI BIJU DAS and 4 ORS,

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2:MRINAL DAS

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3:MISS HIMAKSHI DAS

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4:BHABIT DAS CLAIMANT NO. 1 IS THE WIFE

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2 AND 3 IS THE CHILDREN AND 4 IS THE FATHER OF LATE JATIN DAS ALL ARE RESIDENTS OF VILL. NIZ BANGSHAR BARGAYAPAM P.O. BANGSHAR P.S. SUALKUCHI DIST.KAMRUP ASSAM.

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5:MRS. AMBALIKA KALITA W/O MR. HARMOHAN KALITA R/O KHARGHLI UDAIGIRI P.S. LATASIL GUWAHATI-4 OWNER OF MARUTI VAN NO. AS-01/Y360

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Advocates for the Petitioners : Mr. R. Sarma, Mr. S. Saikia,

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: Mr. D. Mazumdar, Mr. S. Dutta. Advocates for the Respondents: Mr. K. Bhattacharjee, A.K. Bora, : Ms. M. Bhattacharjee, Mr. D.K. Das.

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BEFORE

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HON BLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 16-03-2018

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Heard Mr. R. Sarma, the learned counsel for the appellant as well as Mr. K. Bhattacharjee, the learned counsel appearing for the respondents No. 1 to 4/claimants. None appears on call for the respondent No. 5 although as per order dated 18.03.2013, notice has been duly served on her on 13.12.2012, as such, the appeal has proceeded ex-parte against the respondent No.5.

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”) is preferred against the judgment and award dated 20.02.2010, passed by the learned Additional District Judge (Fast Track Court) No. 3, Kamrup (M), Guwahati in MAC Case No. 884/2008, by which compensation of Rs.6,32,000/- was awarded in favour of the present respondents No. 1 to 4.

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In brief, the case of the respondents No. 1 to 4, in the claim petition is that they are respectively the wife, children and the father of the deceased Jatin Das, who was the paid driver of the a Maruti Van bearing registration No. AS-01-Y-3601, owned by the respondent No. 5. While driving the said vehicle on 03.02.2008 from Sualkuchi towards Niz Bangshor at about 9.00 am, while trying to save a cow, the said vehicle dashed against the wall of a road side shop. As a result of the accident, he suffered grievous injury. He was shifted to MG 30 beded Hospital, Sualkuchi, but on the following date he succumbed to his injuries. Sualkuchi P.S. GDE No. 46 dated 03.02.2008 was registered and subsequently, UD Case No. 4/08 was registered. The respondents No. 1 to 4 by stating that the deceased was

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earning Rs.3,200/- per month, a claim for Rs.6,00,000/- was made. The appellant contested the case by filing written statement. By taking usual pleas, they denied their liability and the respondents No. 1 to 4 were put to strict proof of their claim.

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On the basis of the pleadings, the learned trial court framed the following issues for adjudication:

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(i) Whether the late Jatin Das had a valid driving license at the time of accident?

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(ii) Whether the victim Lt. Jatin Das died on 03.02.2008, due to injuries sustained in a vehicular accident on 03.02.2008, at Barortol, Bangshor under Sualkuchi PS while driving Maruti Van bearing registration No. AS-01Y-3601?

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(iii) Whether the victim Lt. Jatin Das was the employee of the Opp. Party NO. 2, Mrs. Ambalika Kalita as driver of her vehicle being registered No. AS-01Y3601(Maruti Van)?

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(iv) Whether the claimants are entitled to get any compensation? If so, to what extent and from whom?

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In order to prove their claim, the respondents No. 1 to 4 had examined two witnesses including the appellant No. 1 (PW.1) and one Mintu Baishya, an eye witness (PW.2). The following documents were exhibited, viz., Accident Information Report (Ext.1), Post Mortem Report (Ext.2) and Driving Licence (Ext.3). No defence witness was examined.

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On considering the evidence on record, all the issues were taken up together. The learned trial court held that the deceased was 33 years old at the time of his death and by relying on the Schedule given in the MV Act, the applicable multiplier was taken to be 17. Relying on the case of New India Assurance Co. Ltd. Vs. Kalpana & Ors., (2007) 3 SCC 538 , the learned trial court had held that the monthly contribution of the deceased towards his family was Rs.3,000/- per month. Accordingly, on applying the multiplier of 17, the loss of dependency was computed at Rs.6,12,000/-. A sum of Rs.10,000/- each was granted as compensation for funeral expenses and loss of consortium. Accordingly, an award of Rs.6,32,000/- was passed, directing the appellant to pay interest @ 8% from the date of the application i.e. 28.03.2008 till recovery.

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Challenging the said award, the learned counsel for the appellant had made his submission on four points. Firstly, relying on the ratio laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Prembai Patel & Ors., (2005) 6 SCC 172, it is submitted the deceased was himself for driving of the offending vehicle and that he had died after his car hit the road side wall and that as the accident had occurred in course of his employment. However, as the vehicle was insured only under the “Act Liability” policy, the maximum liability of the appellant would be limited to computation made under the provisions of Workmen’s Compensation Act, 1923. In this connection, it is submitted that any amount which falls excess of the compensation allowable under the Workmen’s Compensation Act must be borne by the owner of the vehicle, who had not made any insurance under the “Package Policy” covering all risks. Secondly, it is submitted that in the present case, the respondents No. 1 to 4 in their claim petition, had stated that the deceased was earning Rs.3,200/- per month. Under such circumstances, the learned trial court ought to have made deduction of 1/3^rd of such income on account of personal expenses and therefore, on taking into account such deduction, the monthly loss of dependency would come to Rs.2,134/- per month i.e. Rs.25,608/- per annum. Thirdly, by referring to the applicable multiplier as formulated in the case of Sarla Verma Vs. DTC, (2009) 6 SCC 121, it is submitted that the applicable multiplier ought to have been taken at 16 and that the learned trial court had erroneously calculated compensation by using the wrong multiplier of 17. Fourthly, it is submitted that in the absence of any documentary evidence of the income of Rs.3,200/- only the notional income of Rs.15,000/- should have been taken as the annual loss of dependency.

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Per-contra, the learned counsel for the respondents No. 1 to 4, by referring to various judicial pronouncement including the case of Prembai Patel (supra) has submitted that the provisions of Section 167 of the MV Act gives the claimant a discretion to approach either a Motor Accident Claims Tribunal or before the learned Commissioner, Workmen’s Compensation for adjudication of such claim and the only restriction is that the claim must be made before one authority only. It is submitted that as the claim under the MV Act was allowed to be proceeded, if the appellant succeed to make out any case before this Court, in

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such circumstances, the respondents No. 1 to 4 would be entitled to the balance compensation from the owner of the vehicle. It is further submitted that as it would be impossible for them to recover any money directly from the owner, it would be in the interest of justice to direct the appellant to make payment of the entire compensation by granting them liberty to recover any amount in excess of the liability arising under the Workmen’s Compensation Act from the owner of the vehicle as per the recovery procedure which is being followed for recovery of compensation awarded under the MV Act in the same proceeding. On the other issues raised by the learned counsel for the appellant, the learned counsel for the respondents No. 1 to 4 submits that in this regard, this Court, being the Appellate Court would adjudicate those issues raised in accordance with law, so that the respondents No. 1 to 4 are not deprived from getting just and fair compensation to which the said respondents are entitled to.

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1. Having considered the submissions made by the learned counsels for both sides, the following points of determination has arisen for a decision in this appeal:

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1. Whether the liability of the appellant can be limited to the extent of the liability computable under the Workmen’s Compensation Act?

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1. Whether insofar as the balance liability is concerned, the liability in excess of the compensation payable by the appellant under the Workmen’s Compensation Act can be directed to be either paid by the respondent No. 5, the owner of the vehicle or the appellant be directed to make such payment and recovered the balance amount from the respondent No. 5, the owner of the vehicle?

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1. Whether the assessment of compensation made by the learned trial court is sustainable on facts and in law?

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In respect of point of determination Nos. 1 and 2, a perusal of the judgment of the Hon’ble Apex Court in the case of Prembai Patel (supra), it is seen in that case, the truck driver while on duty was driving the truck. The arm bolt of the truck broke down and on account of heavy load and the truck overturned and the driver was killed instantaneously. In

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that context, the Hon’ble Apex Court by referring to the various provisions of the MV Act including Section 167 thereof, inter-alia, held that as the insurance policy was a policy for “Act Liability”, under the nature of policy, the liability of the insurer would be restricted to that arising under the Workmen’s Compensation Act and directed that the insurer would satisfy the award and its liability would be restricted to that arising under the Workmen’s Compensation Act and that the owners of the vehicle would be liable to satisfy the remaining portion of the award. The relevant paragraphs No. 16, 17 and 18 are quoted below:

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“16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of compensation to the claimants. As shown above, the I nsurance policy taken by the owner contained a clause that it was a policy for "Act Liability" only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the High Court, therefore, needs to be modified accordingly.

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The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid to the claimants (respondent Nos. 3 to 6 herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award.

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The record shows that no stay order was passed in favour of the appellant. In case the appellant insurance company has deposited the entire amount awarded by the High Court with the Motor Accident Claims Tribunal or has paid the said amount to the claimants, it will be open to it to recover the amount, which exceeds its liability under the Workmen's Act, from the owner of the vehicle in accordance with law.”

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The ratio of the decision is found to be applicable in the facts and circumstances of the present case. Accordingly, bound by the said ratio, it is held that in the present case the liability of the appellant would be restricted to the extent of compensation payable under the Workmen’s Compensation Act. However, the quantum of award which is passed in excess of such liability, is required to be borne by the respondent No. 5, being the

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owner of the vehicle and she is required to satisfy the remaining portion of the award. The issue of the onus of the insurer to pay out the compensation and then to recover the excess amount from the owner of the vehicle was decided in various cases including the case of Manager, National Insurance Co. Ltd. Vs. Saju P. Paul and another, (2013) 2 SCC 41. Even prior to the case of Saju P. Paul (supra) there are various judgments on record whereby the Hon’ble Apex Court had allowed the insurer to make payment to the claimants and granted them the liability to recover the excess money from the owner of the vehicle. The said issue was referred for a decision by a larger Bench in the case of National Insurance Co. Ltd. Vs. Parvathneni & Ors., (2009) 8 SCC 785. The result of the reference to the larger Bench is not known to this Court. However, the Hon’ble Apex Court in the case of Manuara Khatun Vs. Rajesh Kr. Singh, (2017) 4 SCC 796 had observed that merely because the issue [i.e. the case of Parvathneni (supra)] was pending before the larger Bench, it would not prevent a direction to the insurer to make payment of the compensation and recover the excess amount from the owners of the offending vehicle. In view of the ratio laid down in the said case, this Court is inclined to direct the appellant in the present case to pay the amount as is being assessed by this Court to the respondents No. 1 to 4 and the amount is in excess of its liability under the Workmen’s Compensation Act, 1923 may be recovered from the respondent No. 5 i.e. the owner of the offending vehicle in the same proceedings of MAC Case No. 884/2008, as if it was enforcing the award.

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In respect of point of determination No. 3, relating to the quantum of compensation, it is the case of the respondents No. 1 to 4 that the deceased was having an earning of Rs.3,200/- per month. The learned trial court did not disbelieve the said statement and accepted the same to be the monthly income of the deceased. Under such circumstances, the learned trial court was required to deduct 1/3^rd of the income on account of personal expenses. In terms of the ratio laid down by the Hon’ble Apex Court in the case of Sarla Verma (supra), as the deceased had left behind three dependents, 1/3^rd of such income was required to be deducted to decide the monthly loss of dependency. Therefore, on such deduction, the monthly loss of dependency would come to Rs.2,134/-. Hence, the loss of dependency is computed as follows- Rs.2,134/- X 12 X 16 = Rs.4,09,728/-.

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In terms of the decision rendered by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., MANU/SC/1366/2017: (2017) 8 Supreme 107, the compensation on conventional heads like, funeral expenses, loss of consortium and loss of estate has been settled at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Therefore, the respondent No. 1 shall also be entitled to said compensation on the conventional heads. The re-assessed compensation would be as follows:

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Loss of dependency	- Rs.2,134/-X 12 X 16 = Rs.4,09,728/-/-
Loss of consortium	- Rs.40,000/-
Loss of estate	- Rs.15,000/-
Funeral expenses	- Rs.15,000/-
Total	- Rs.4,79,728/-

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(Rupees four lakh seventy nine thousand seven hundred and twenty eight only)

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In accordance with the provision of the Employees’ Compensation Act, 1923 (earlier called as Workmen’s Compensation Act, 1923), the liability of the appellant would be restricted to compensation as follows- Rs.3,200/- X 15% X Rs.199.40 = Rs.3,19,040/-. Accordingly, the appellant’s liability under the Employees’ Compensation Act, 1923, would be restricted to an amount of Rs.3,19,040/-. In terms of the decision on point of determination No. 1 and 2, the appellant shall be liable to pay the entire compensation amount of Rs.4,79,728/- with interest @ 8% as awarded by the learned trial court and on such payment, they would become entitled to recover the excess amount of Rs.1,60,688/- plus applicable interest thereon @ 8% from the respondent No. 5 i.e. the owner of the offending vehicle. It is held that the respondents No. 5 does not stand indemnified for the said award of Rs.1,60,668/- plus interest applicable thereon.

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The re-assessed compensation amount along with the interest shall be deposited by the appellant before the Registry of this Court within a period of 6(six) weeks from today. While computing such amount, the appellant shall be entitled to adjustment against the payment, if any, made under (i) no fault liability, (ii) statutory deposit, as well as

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(iii) any deposit of part of award, made pursuant to the orders passed while admitting this appeal, as it is submitted that a sum of Rs.3,20,000/- had already been deposited by the appellant before the Registry of this Court.

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At this state, the learned counsel for the respondents No. 1 to 5/claimants has made a prayer to enhance the award by taking into account the future prospects, which, as per the ratio laid down in Pranay Sethi (supra), would entail 40% enhancement of salary. It is submitted that the provisions for providing compensation under the MV Act as well as under the EC Act are beneficial legislation and, as such, by invoking the provisions of Order XLI Rule 33 CPC read with the provisions of Order XLI Rule 22 CPC, this Court may enhance the quantum of loss of dependency by considering the future prospects. In this regard, it would be relevant to quote paragraph 17 and 18 of the case of National Insurance Co. Ltd. Vs. Utpala Saikia, (2017) 2 GLR 406:(2017) 0 Supreme (Gau) 91:-

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“17. Per contra, the learned counsel for the appellant, by referring to the case of Ranjana Prakash & others V. Divisional Manager & ors, reported in (2001) 14 SCC 639, refers to paragraph 6 to 8 thereof and submits that there is no cross appeal by the respondents No.2 to 5 and, as such, the oral prayer for enhancement of the award should not be entertained at this first appellate stage. For the sake of convenience, paragraphs 6,7 & 8 of the said judgment is quoted below:

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“6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs 23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future

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prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or crossobjections.

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This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

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Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.”

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In light of the herein before quoted paragraphs from the above

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mentioned two cases, this Court is, therefore, confronted with the question as to which citation would constitute a binding precedent. It is seen that while the case of Rajbir Singh (supra) has been decided by a Full Court of 3 Judges Bench. The other two cases have been decided by a Division Bench having strength of 2 Hon'ble Judges. It appears that in the case of Rajbir Singh (supra), the issue which the Hon'ble Apex Court was deciding is reflect in the opening words of paragraph 10, which is “Whether the Tribunal is competent to award compensation in excess of what is claimed…” and, as such, this court is not persuaded to accept the argument that the said judgment can be said to be a binding precedent on the power of the appellate court to enhance the award without a cross appeal. The answer directly on the point is found in the judgment in the case of Ranjana Prakash (supra), because in para 6 thereof, it has been held as follows - “… The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/ insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objection.” In para 8 thereof, the Hon'ble Supreme Court of India has further directly clarified and held on the very point by stating as follows - “…. The High Court cannot obviously increase the compensation in an appeal by the owner/ insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” On the well accepted legal principle that “a judgment is an authority on what it decides” and that “a judgment is not to be read as a statute, it has to be read in the context of the facts discussed in it.” On reading paragraph 10 of the case of Rajbir Singh (supra), it is apparent that the question formulated by the Hon'ble Apex Court was “Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case.” Therefore, the Apex Court in Rajbir SIngh's case (supra) was referring to the power of the Tribunal while exercising original jurisdiction, while in the case of Ranjana Prakash (supra), the Hon'ble Apex Court was explaining the limitations of the appellate jurisdiction. Therefore, in view of the above discussions, the prayer for enhancement of the compensation as made by the learned counsel for the respondents No. 2 to 5 is rejected. There is one more reason for refusing 30% increase of future prospect, for which the answer lies in reading paragraph 9 of the case of Ranjana Prakash (supra), which reads as follows:-

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“9. In Sarla Verma, this Court held that where the deceased had a permanent job with regular salary with provisions for periodic increases, 30% of the current income could be added towards future prospects if the deceased was aged between 40 to

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50 years. In Sarla Verma, this Court also stated that income tax paid should be deducted from the annual income to arrive at the “income” which will form the basis for calculating the compensation. The Tribunal did neither of these two things. If both are done, the result would be that there would be no change in the income arrived at by the Tribunal for calculating the compensation. The 30% increase on account of future prospects and the 30% deduction on account of income tax would cancel each other, resulting in “income” remaining unchanged. As a result, the compensation awarded by the Tribunal also would remain unaltered.”

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In this regard, the learned trial court had not considered the scope of “future prospects”, and the respondents No. 1 to 4 had accepted the same by not filing any appeal or a cross-objection. Therefore, an issue which has attained finality cannot be upsetted and unsettled by invoking the provisions of Order XLI Rule 33 CPC read with the provisions of Order XLI Rule 22 CPC. Hence, the oral prayer made by the learned counsel for the respondents No. 1 to 4 is refused.

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The appeal stands allowed to the extent as indicated above. Accordingly, the award passed by the learned Additional District Judge (Fast Track Court) No. 3, Kamrup (M), Guwahati in MAC Case No. 884/2008 stands modified. There shall be no order for awarding cost of this appeal.

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Let the LCR be returned forthwith.

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JUDGE

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Comparing Assistant

National Insurance Co. Ltd., v. Smti Biju Das and 4 Ors.

Case brief

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National Insurance Co. Ltd., v. Smti Biju Das and 4 Ors.

Case brief

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