Samir Kumar Mookherjee and Satyabrata Mitra, JJ.
1. This appeal is directed against Order No. 62 dated 30.9.1974 passed by the learned Member, Motor Accidents Claims Tribunal, in M.A.C. No. 233 of 1969. By the said order the learned Member held that the death of the deceased Bhramar Barrick was caused by the rash and negligent driving of the offending vehicle and the applicant Rambha Barrick was the real widow of the deceased Bhramar Barrick and awarded her compensation to the tune of Rs. 22,400/- against the opposite parties. The learned Member further directed that the said sum of Rs. 22,400/- be realised from the opposite party No. 2 i.e., the insurance company. The insurance company being the opposite party No. 2, has preferred this appeal before this .court.
2. The case of the applicant was that on 2nd August, 1969 at 7,30 a.m. her husband Bhramar Barrick was knocked down by a private car No. WBG 5354 at the junction of Durga Road and C.I.T. Road under the Police Station Beniapukur and consequently he died on 5.9.1969 at the Chittaranjan Hospital.
3. Both the owner of the offending car and the insurer thereof filed written statements denying the allegations of the claimant.
4. In the written statement filed by the opposite party No. 2 i.e., the insurer, there was specific denial in paragraph 4 thereof, that the applicant was the married wife and legal representative of the deceased. It was further denied that her two minor sons were the sons and legal representatives of the deceased and that the applicant was their mother. In answer to columns 18,19and 20 of the claim petition which contained the particulars of Rambha Barrick, a case was made out in paragraph 16 of the written statement of the opposite party No. 2, that one Bakul Barrick was the actual legally married wife of the deceased and that she had been living with the deceased for the last 15 years or more at No. 6-F, South Sealdah Road, Calcutta - 700 010 and accordingly, the allegations made in column Nos. 18,19 and 20 of the claim petition were not admitted
by the opposite party No. 2. The opposite party No. 1 in his written statement did not make out any specific case of the nature as made out by the opposite party No. 2 except alleging, in general terms, that the application was not maintainable in law.
5. After issues were raised and settled, four witnesses were examined on behalf of the applicant/respondent including herself, viz., applicant herself, one Dilip Das of M/s. Roy and Bagchi, Chartered Accountants, 5/2, Hastings Street, Calcutta, who were employers of the deceased and two local men, viz., Amar Mukherjee and Saibal Gupta who were alleged to be eye-witnesses to the accident. On behalf of the opposite party No. 1 the driver Dilli Bahadur was only examined.
6. On the appraisal of the evidence tendered, learned Member came to the finding that the applicant was married wife of the deceased as it was not suggested by the opposite parties to the applicant, while she was in the box, that she was not the married wife of the deceased. The learned Member further found that her relationship with the deceased was not at all challenged by the opposite parties. The learned Member further recorded that the opposite party No. 2 took time to produce one Bakul Barrick, who was alleged to be the real wife of the deceased, but none of that name was produced and examined by the opposite parties. From the evidence adduced the learned Member came to the conclusion that as the identity of the claimant was not challenged, while she was in the box, it must have to be held that the said point that she was an impostor was not pursued by the opposite parties and was abandoned. The learned Member concluded that 'had there been an iota of truth in that point, the opposite party No. 2 would have left no stone unturned and no cutlet uncooked in establishing the same.' Thus it appears that while coming to his conclusions the learned Member found no reason to disbelieve the evidence of the applicant, the said Dilip Das of M/s. Roy & Bagchi and the two local witnesses. But he disbelieved the driver, the only witness produced on the side of the opposite party No. 1.
7. At the hearing of the appeal, the learned advocate of the appellant, Mr. Majumdar, at the outset, took a very fair stand that he was not disputing the quantum of the award but he challenged, on very strong grounds, the manner in which the learned Member had appraised the evidence in the teeth of a definite case made put by the insurer in its written statement. Mr. Majumdar had pressed hard the following points and submitted that the learned Member while coming to his finding failed to take into consideration the facts and the materials on record:
(1) The applicant was not widow and the legal representative of the deceased;
(2) The identity of the deceased was not established;
(3) Post-mortem report was not produced from the hospital;
(4) There was discrepancy as to the age of the deceased as will appear from the statement of the applicant and the death certificate;
(5) The address of the deceased was different from what was stated by the applicant;
(6) No letter or any postal acknowledgment or any postal envelope was produced by the applicant to show that she received the moneys sent to her by her deceased husband;
(7) Ramchandra Barrick was informed the applicant of the death of the deceased by letter was not produced and that the letter was alleged to have been misplaced.
(8) Prahlad Barrick and Gobardhan Shaw who were alleged to have carried money to the applicant were not produced as witnesses.
8. Mr. Majumdar challenged that there was hardly any material before the Tribunal for its satisfaction in coming to its conclusion that the applicant was the real wife/widow of the deceased.
9. Mr. N.R. Majumdar submitted that the materials on record would go to show that neither the identity of the deceased was established nor was the relationship of the deceased with the applicant proved. Mr. Majumdar further submitted that the learned Member of the Tribunal, while relying on the evidence so far adduced on behalf of the applicant, should have satisfied himself whether the right person was claiming the compensation for the death of the deceased. It was not merely the fact of non-production of evidence on behalf of the opposite parties but what mattered was the optimum satisfaction of the learned Tribunal, in coming to a finding that the right person applied for receiving the compensation, and the grounds and the reasoning for coming to such conclusion were based on facts proved beyond doubt. In support of his aforesaid submissions, Mr. Majumdar referred to different portions of the records of the Tribunal, wherefrom it appears that the Vakalatnqma given by the claimant as also the claim petition bore her thumb impressions without proper identification of the same to be thumb impression of the claimant; it further appears that one Nirode Baran Saha delivered the same to Mr. Dipak Kumar Mukherjee, Advocate, as the authorized agent of the claimant. It was also pointed out by Mr. Majumdar that there was no independent evidence on record establishing the identity of the claimant as the widow of the deceased Bhramar Barrick,
10. The learned advocate for the claimant, Mr. Das, submitted that there was no reason for the Tribunal to disbelieve the evidence of the applicant and that of Dilip Das, when nothing was shown either to substantiate the defence of the insurer or to controvert the evidence on the prosecution side. Mr. Das further submitted that it was not open to the insurer to take up the defence of the nature it had taken. The ambit of defence by the insurer has been circumscribed by Section 96(2) of the Motor Vehicles Act and not beyond that. Moreover, insurance company is not the aggrieved party. Aggrieved party is the owner, the opposite party No. 1, who has not preferred any appeal. It was further submitted that the nature of defence spoken of in Section 110-C (2-A) is a special type of defence available to the insurer only when there is apprehension of collusion between the claimant and the owner or when the owner does not contest. When the owner contested in this case, the insurer cannot take up any defence other than those provided under Section 96(2) of the Act. Simply because the form of application and certain rules of the Motor Vehicles Rules direct notice to be given to the insurance company, insurance company will not be entitled to take any defence it likes. He submitted that insurer cannot be allowed to take up all the defences available to it. The nature of the defence available in Section 110-C (2-A) of the Act which applies to the special type of case cannot be available to the insurer in the instant case when the owner had contested. Mr. Das relied on several authorities an this point, viz., Ramesh Chandra v. Rcmdhir Singh 1978 ACJ252 Allahabad paras 13 to 15; Oriental Fire & Genl. Ins. Co. Ltd, v. Hanumakka 1982 ACJ 372 Karnataka United India Fire & Genl Ins. Co. Ltd. v. Kalyani 1983 ACJ 29 Kerala; and Oriental Fire & Genl. Ins. Co. Ltd. v. Baldev Singh 1984 ACT 369 (P &H;).
11. Mr. N.R. Majumdar on behalf of the appellant submitted that insurer's right to defend arises independently of Section 96(2) of the Act. Under Section 110-B read with rules 224 and 225 of the Motor Accidents Claims Tribunal Rules (West Bengal), the insurer has the statutory right of defence of a general nature unlimited by any deters of the nature as was provided for under Section 96(2) of the Act. The scope of the right of defence available to the insurer under Section 110-B read with the said rules is of widest amplitude.
12. Upon consideration of the respective submissions, we are of the view that the points now sought to be raised on behalf of the appellant by Mr. N.R. Majumdar cannot be entertained in view of the specific statutory restrictions on the scope of an appeal at the instance of the insurer imposed by Section 96 (2) of the Motor Vehicles Act. Due to non-fulfilment of the criteria of Section 110-C (2-A) of the said Act in the instant case such scope of appeal has not become enlarged also. The findings of the Tribunal and the award based thereon must, therefore, remain untouched and the appeal must, accordingly, fail. We dismiss the appeal with costs.
13. Before parting with the appeal finally, for the materials we have come across in the present case, we deem it necessary to emphasise certain principles governing the duty of the Tribunal to pay just compensation to the genuine and deserving claimant. As already noted by us earlier, the Tribunal, in the instant case, accepted the claimant's entitlement as the widow of the victim on the basis of the failure of the insurer and the insured to effectively challenge such identity but the duty of the Tribunal does not end there. The scope of the proceedings before the Tribunal is much wider than that .of appeal at the instance of the insurer. It cannot be gainsaid also that very seldom an owner takes up an appeal. Before directing payment of compensation to a claimant, the Tribunal must satisfy itself on its own about the identity of the claimant and his/her eligibility. If necessary, the Tribunal should invoke the powers conferred on it by Rules 222,225 and 230 of the Bengal Motor Vehicles Rules. Its anxiety to serve the cause of distressed humanity must not be allowed to outweigh its duty to ensure that the money awarded reaches genuine and deserving claimant. To achieve this, procedural formalities, such as, proper identification of the thumb impression of a claimant, extent of authority of the claimant's agents and validity of the authorization in favour of the latter, proof of the fact that the victim named is the actual or real victim of the alleged accident, though apparently of technical nature, must be scrupulously observed.