Kumudini Das and ors. Vs. Rajat Kumar Baliar Singh and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the determination of the compensation payable and its apportionment as required by section 110-b of the act amongst the legal representatives for whose benefit an application may be filed under section 110-a of the act have to be done in accordance with well known principles of law. it is now well settled that when the multiplier system is adopted for assessing the compensation, no deduction for lump sum payment or uncertainty of life is permissible. but it is always open to the insurer to cover wider liability on payment of extra premium, a dispute regarding the extent of liability can best be decided in the light of the stipulations and conditions contained in the policy.1. in misc. case no. 536 of 1987, the second motor accident claims tribunal, cuttack, passed an award on 30-11-1992 in the sum of rs, 50,000/- in favour of the claimants and against the non-applicants. being dissatisfied with the quantum awarded, the claimants have filed this appeal for enhancement of compensation.2. the claimant nos. 1 and 2 are the parents and claimant nos. 3, 4 and 5 are sisters of deceased srutikanta das who was fatally injured in a vehicular accident on 4-6-1987. srutikanta das was aged about 22 years old and was working as an assistant in a private. firm namely, cuttack roadways and was drawing a monthly salary of rs. 1200/-.3. the case of the claimants is that while srutikanta das was walking down the cut-tack-paradeep road he was hit by an open door of a passenger bus bearing registration no. cxx 2707, as a result of which he was knocked down and fatally injured. according to the claimant the fatal, injuries were caused to srutikanta das due to rashness and negligence on the part of the bus drivet.4. on an appreciation of the material on record, the learned tribunal came to the conclusion that the fatal injuries were caused to srutikanta das on account of the rashness and negligence on the part of the driver. the fact that the door of the vehicle was opened and struck the pedestral was by itself was considered to be a negligent act. the learned tribunal held that at the time of his death the deceased was about 25 years old and was drawing a salary of rs. 1200/- per month. by assessing the dependency of the claimants at rs. 300/- per month, the tribunal by adopting a multiplier of '15' determined the quantum at rs. 54,000/-. however, out of this amount it deducted a sum of rs. 4,000/-for lump sum payment and passed an nwarii of rs. 50,000/-in favour of the claimants. it is under these circumstances, the appeal for enhancement has been filed.5. learned counsel for the appellants contends that the tribunal went wrong in assessing the dependency at rs. 300/- per month, it is contended that looking as the deceased was the only son and unmarried and his father was a retired government servant and there being three unmarried sisters in the family, the dependency ought to have been assessed at least at rs. 600/- per month. it is also contended that the tribunal committed an error in deducting a sum of rs. 4,000/- from the compensation assessed on account of lump sum payment. it is contended that since the multiplier system was adopted, no deduction was permissible. it is also contended that the tribunal committed an error in not awarding any compensation by way of sdlatium of the parents who had lost their only son.6. mr. sinha, learned counsel appearing for the insurer on the other hand supports the award and submits that no case for enhancement has been made out. it is contended that the claimants being aged parents and sisters of the deceased, the compensation awarded is proper. it is his further case that the brother and sisters of the deceased cannot be termed as legal representatives within the meaning of section 110-a of the act. as regards the claim of parents, it is contended that their claim cannot be judged on the same footing as that of a widow or children of the deceased. it is also submitted that assuming though not admitting, that the claim for enhancement has been made out, the liability of the insurer is limited to rs. 50,000/- in terms of section 95(2)(b) of 1939 act.7. before proceeding further, the question whether or not a brother and sister of thedeceased are 'legal representatives' within themeaning of section 110-a of the m. v. act,may be considered. the expression 'legalrepresentative' has not been defined in them. v. act and indeed, there are divergentviews of the high courts as to whether or notthe expression 'legal representative' includesbrothers and sisters of the deceased. whilesome high courts have held in the affirmative, others by making ,a reference to section 1a of the fatal accidents act, 1855which lays down that the suit for compensation may be filed by family of a person for theloss occasioned to it by his heath by actionable wrong for the benefit of the wife, husband, parents and children of a person whosedeath has been so caused, have held in thenegative. no doubt in the case of nationalinsurance co. ltd. v. bhramar rout, 1987acc cj 1020 (ori), it has been held that thebrothers and sisters, of tre deceased, are notcovered by the expression 'legal representative' in section 110-a of the m. v. act, 1939.but this decision which was delivered on 12-2-1987, is not binding in view of the subsequentdecision of the supreme court in the case ofgujarat state road transport corporation,ahmedabad v. ramanbhai prabhatbhai,1987 acc cj 561 ; (air 1987 sc 1690). theapex court in this case considered thescheme and object of section 110-a of the m.v. act, 1939, sections 1a and 2 of the fatalaccidents act, 1855 and also the report of thelaw commission of india and concluded thatthe parliament intended that the expression'legal representative' in section 110-a of them. v. act should be given a wider meaningand that it should not be confined to thespouse, parents and children of the deceased.in paragraph 12 of the judgment, the apexcourt observed :'12..... every legal representative who suffers an account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by sections 110-a to 110-b of the act. these provisions are in consonance with the principles of law of torts that every injury must have a remedy. it is for the motor accidents claims tribunal to determine the compensation which appears to it to be just as provided in section 110-b of the act and to specify the person or persons to whom compensation shall be paid. the determination of the compensation payable and its apportionment as required by section 110-b of the act amongst the legal representatives for whose benefit an application may be filed under section 110-a of the act have to be done in accordance with well known principles of law. we should remember that in an indian family brothers, sisters and brothes children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the breadwinner is killed on account of a mdtor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the fatal accidents act, 1855 which as we have already herd has been substantially modified by the provisions contained in the act in relation to cases arising out of motor vehicle accidents. we express our approval of the decision in megjibhai khimji vira v. chaturbhai taljibhai, 1977 acc cj 253 : (air 1977 guj 195) and held that the brother of a person who died in a motor vehicle accident is entitled to maintain a petition under section 110-a of the act if he is legal representative of the deceased.'in view of the above, the contention raised by the learned counsel for the insurer that the brothers and sisters of the deceased are not legal representatives within the meaning of section 110-a of the m. v. act, 1939, is to be overruled.8. this brings us to the next question, namely, whether the tribunal was justified in deducting a sum of rs. 4,000/- on account of lump sum payment; the answer has to be in the negative. it is now well settled that when the multiplier system is adopted for assessing the compensation, no deduction for lump sum payment or uncertainty of life is permissible. it has accordingly to be held that the tribunal was not justified in deducting a sum of rs. 4,000/-, from the amount determined by it at compensation payable to the claimants.9. the submission of the learned counsel for the appellant that some amount to have been awarded by way of solatium to the parents for the loss of their only son may now be considered. the basis of the action for compensation is the pecuniary loss suffered by the dependants in consequence of the death of the person involved in an accident. sentimental considerations are out of place, nor are the needs of the dependants the criteria for assessment of the damages. sentimental damages cannot he awarded. the basis is not what is called solatium that is to say damages given for injured feelings or on the ground of sentiment but damages based on compensation for a pecuniary loss. nothing is to be, paid by solatium and the fundamental basis of a claim is pecuniary loss suffered by the dependants as a result of the death of the deceased. in the off quoted words of lord right in the case of davies v. powell duffrya associated collieries ltd., (1942) ac 601 (nl):'there is no question here of what may be called sentimental damages, bereavement or pain and suffering. it is a hard matter of pounds, shillings and pense, subject to the element of reasonable future probabilities'.it is therefore a settled position that nothing is to be paid by way of solatium. the contention that some amount by way of solatium ought to have been awarded has therefore to be overruled.10. the question which now requires consideration is whether or not a case for enhancement of compensation has been made out. it cannot be denied that the deceased was aged about 25 years and was the only son of the claimants. the other three claimants are his sisters. claimant no. 1 has retired from service and drawing a pension of rs. 600/- per month. p.w. 2 ranjita das, the sister of the deceased has stated that out of his salary, the deceased only kept rs. 150/- for his personal expenses. all the three sisters of the deceased are unmarried. so the deceased must have been contributing substantially for the maintenance of the family. it can reasonably be presumed that he would have also contributed something towards the marriage expenses of his sisters. in view of the circum-stances, the compensation of rs. 50,000/-appears to be on the lower side and needs to be suitably enhanced.11. it cannot be denied that in due course of time, the deceased would have married and would have a family of his own to support. but, it should not be forgotten that in our society, the only sqn even after having a family of his own,' normally continues to contribute something towards the expenses of his old parents and dependent brothers and unmarried sisters. so it is in this context that compensation ought to be assessed. in this case, the tribunal has found as a fact that the deceased was 25 years old and had an income of rs. 1200/- per month. assuming that he would have remained single up to the age of 30, his contribution for these five years to the claimant would naturally be higher. taking it to be 50%, of his monthly income it would come to rs. 600/- per month, pay rs. 7,200/-per year. the contribution for five years would therefore be 600. x 12 x 5 or rs. 36,000/-. assuming that he would marry at the age of 30, his contribution to his parents thereafter would naturally reduce. the contribution for another five years may be taken at 25% of his salary i.e. rs. 300/- per month. taking another slab of five years, the compensation for these period would be 300 x 12x5, i.e. rs. 18,000/-. by this time his children would have grown up hence his contribution to the parents would have definitely reduced as his expenses on his wife and children would increase. taking the contribution for the next- slab of 5 years, at rs. 125/- per month his contribution for the period would be rs. 150 x 12 x 5, or rs. 7,500/-. as the tribunal adopted a multiplier of 15, it can be assumed that it has fixed the dependency of the parents/claimants for 15 years. the determination therefore has been made for 15 years in three slab of 5 years each. the compensation worked out on the above basis comes, to rs. 61,500/ -. this in the opinion of the court, would be just compensation to which the claimants are entitled.12. as the claimants are parents and dependent sisters, the compensation cannot rightly be worked out on the basis of a fixed dependency and by adopting the multiplier method. this is because the dependency of aged parents and dependent brothers and/or sisters would decrease as the expenses of the deceased would gradually increase after his marriage as he would have to maintain a family of his own. it is for this reason that the court has adpoted the above method for working out what, in its opinion appears to be just compensation to which the claimants are entitled.13. the court is conscious of the difficulty faced in assessing/ determining the compensation. unlike the workmen's compensation act, 1923, the motor vehicles act does not provide a criterion for determining the compensation. all that it provides is that the claims tribunal may make an award determining an award of compensation which appears to it to be just. the word 'just' has not been defined but it signifies what is reasonable. therefore, just compensation is reasonable compensation and has to be determined keeping in mind the fact that the compensation payable is not to be assessed on the estimated gross income of the deceased but on the amount lost by the claimants which again depends on the fact whether the claimants are the widow and children or parents of the dependants of the deceased. so in the absence of any criterion for determining compenstion, the court has to adopt some method/standard of determination and this naturally involves some guess work, hypothetical considerations, speculations and conjectures by the court without in any way being unduly swayed by considerations of sympathy and solatium, always bearing in mind that the calculations are to be reasonable and not far fetched. it is keeping in mind those factors that the compensation has been determined by me in this case.14. the submission of the learned counsel for the insurer that in view of the statutory limit then prevailing its liability cannot exceed rs. 50,000/ - remains to be considered. it cannot be disputed that in the absence of any stipulation to the contrary contained in the policy, the liability of the insurer cannot be in excess of the limits provided in the statute. but it is always open to the insurer to cover wider liability on payment of extra premium, a dispute regarding the extent of liability can best be decided in the light of the stipulations and conditions contained in the policy. in the case at hand, the insurence policy was filed and on being admitted by the parties was marked as ext. a. on perusal of the policy, it is seen that an additional premium of rs. 75/-was charged and accepted by the insurer for increased third party limits. the schedule of premium shows that by charging an additional premium, the insurer had accepted unlimited third party risk. in other words, in consideration of an additional premium of rs. 75/-, the insurer agreed to bear the entire liability. hence the contention of the insurer that its liability cannot exceed rs. 50,000/-has to be overruled. the entire liability was lightly saddled on the ensurer.15. in view of the discussions aforesaid, the appeal in partly allowed with proportionate cost. the compensation is enhanced to rs. 61,500/-. the enhanced amount of rs. 11,500/- will carry interest at the rate of 10% from the date of claim to date of payment.