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Judgment
Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. Kohinoor N Bhattacharjee, learned counsel appearing for the appellant- Bajaj Allianz General Insurance Company Ltd. Despite due notice from this court none appears for the respondents.
This is an appeal under Section 173(1) of the Motor Vehicle Act, 1988 from the judgment and award dated 21.02.2015 in TS(MAC)432 of 2011 by the Motor Accident Claims Tribunal, No.1, West Tripura, Agartala. The appellant was the noticee in the proceeding as their attempt to be impleaded as the party in the proceeding was denied by the tribunal and when the said order of the tribunal was challenged, this court had rejected such plea by an elaborate judgment and order dated 12.09.2014 delivered in CRP 19 of 2014.
It is an admitted position that the said order was not challenged by the appellant in the superior court and as a result, the judgment and order dated 12.09.2014 has reached its finality. However, despite that position, the appellant while challenging the said judgment dated 21.02.2015 has raised certain grounds of objection, which are beyond the ambit of Section 149(2) of the Motor Vehicle Act which reads as follows :
"No sum shall be payable by an insurer under sub-Section (1) of Section 149 of the Motor Vehicle Act in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment and award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:"
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle"
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability to injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.‖
The appellant herein did not raise any objection in respect of mis-representation of fact in obtaining the insurance policy or in respect of breach of any other conditions save and except that the vehicle had a temporary permit which had expired before the day of accident. For purpose of reference, it may be noted that regarding the finding of facts except the finding on assessment of the income no challenge has been thrown in this appeal.
The relevant fact may briefly be noted without elaboration as there is no challenge in respect of the other findings. The victim namely Jayanta Paul on 18.05.2011 at about 18-30 hours was returning towards BOC gate, Bangaigaon, Assam after visiting one doctor namely Dr. M.L. Agarwal as the pillion rider of the motor vehicle bearing No. AS-19-D- 3681 (Bajaj Discover) which was being driven by its owner Sri Biswajit Barai keeping the left side of the road. As the motorcycle reached the BOC gate and they were getting down from the motorcycle by the side of the road, suddenly the offending vehicle bearing No.AS-26-C-0778 (Auto Rickshaw) came from the opposite direction being driven in extreme speed, rashly and negligently. The said vehicle dashed the motorcycle and as a result, Jayanta Paul fell down from the motorcycle and sustained grievous head injury. He was immediately shifted to S.M.Hospital, Bangaigaon and from there he was referred to Guwahati for his better treatment. He was admitted in the Rahaman Hospital Pvt. Ltd. Guwahati on 19.05.2011 where he succumbed to his injuries on the following day i.e. 20.05.2011 at about 19-20 p.m. The post-mortem examination was conducted over the dead body and the death has been attributed to his injuries he received from the said accident. The claimants are the mother and daughter of the victim. They have raised the claim of Rs.2,71,50,000/- based on the monthly salary of the victim at Rs.1,20,000/-. After having the notice from the tribunal, the owner of the vehicle (Auto Rickshaw) bearing registration No.AS-26-C-0778 and its insurer Bajaj Allianz General Insurance Company Ltd.(the appellant) filed their written objection against the claim. For purpose of reference, the written statement filed by the appellant as the Opposite Party No.2 may be revisited to find out the nature of dispute they had raised for denying the claim of the claimant-respondents. Without admitting the existence of the insurance policy in the written statement, the appellant prayed for production of the insurance policy by the owner of the said vehicle (Auto Rickshaw). That apart, they have taken a stand categorically that the driver of the said vehicle was not holding any valid and effective driving license at the time of the accident and the driver of the vehicle was under influence of alcohol at the time of accident and thereby the terms and conditions of the policy was violated. It has been further stated that under Section 158(6) of the M.V. Act, 1988 it is mandatory duty of the concerned police station to forward all the relevant documents to the concerned insurer within thirty days from the date of the information, but Bangaigaon police station failed to forward the documents and failed further to the statutory requirement. In para- 13, the appellant has stated as under :
"The Petitioners claimed Rs.2,71,50,000/- (Rupees Two Crores Seventy Lakh Fifty Thousand) only which is highly excessive and no interest can be paid as per Sec.3 of Interest Act, 1978 and the observations of the various Judgment of the Hon'ble Apex Court.‖
The appellant has stated in their written objection that they are not aware of what the age of the victim was at the time of accident or whether the Auto Rickshaw was involved in the accident or it was being driven in rash and negligent manner. The appellant did not admit any allegation made against the said Auto Rickshaw as responsible for the accident. Even the death of Jayanta Paul was not admitted but had been urged that that is to be proved by the claimants. It is further admitted that the appellant did not adduce any evidence in the proceeding before the tribunal. The tribunal after recording the evidence of the claimant-respondents both oral and documentary, came to a finding that the negligence and rashness in driving caused the accident which is wholly attributable to the Autorickshaw bearing No.AS-26-C- 0778. Death of Jayanta Paul has been caused by the said road traffic accident. Even the tribunal has clearly held that the victim was a Divisional Sales Manager of Guwahati, FRONTIAGO, Lifesciences Pvt. Ltd., Agartala. Further, in the face of the admit card [Exbt.1 series] the age of the victim on the date of accident i.e. 18.05.2011 was determined at 45 years 7 months 4 days and the income was assessed at Rs.1,20,000/-. On determining the age, the multiplier 13 was applied for getting the total compensation. While determining the income and the age of the deceased, the tribunal has observed as under :
"As per Exbt.1 series, the Salary Certificate of deceased Jayanta Pal, his monthly earning was Rs.62,750/-. In the column annual earning, under the head, travelling allowance, Rs.15,000/- is shown and under the head annual security bonus, Rs.20,000/- is shown. As regards travelling allowance, it is to be stated that the allowance was paid as the deceased used to spend the amount for travelling in connection with his employment. So, the amount will not come for consideration. As regards the annual security bonus, it is to be stated that this was payable to the employee obviously considering his performance during the year. Since the employee is no longer alive, this amount cannot be taken into consideration for the purpose of granting compensation to the family members. So, from the monthly salary of Rs.62,750/- Rs.208/- shall be deducted being the professional tax. Doing so, we get Rs.62,542/-. In the light of Rajesh & Ors. (supra), considering the age of the deceased 30% of this amount shall be added as the future prospects. Adding this, we get Rs.81,305/- which shall be considered as monthly earning for the deceased. At this rate, annual income comes to Rs.9,75,660/-. As per Para-11 of the Sarala Verma (supra) reiterated in Shyamwati Sharma & Ors v. Karam Singh & Ors reported as 2010 AIR SCW 4391, before taking the amount into consideration, applicable income tax is to be deducted from the amount. Considering the Income Tax Slab applicable to the Financial Year 2011-2012, the amount of taxable income comes to Rs.8,75,660/- after allowing rebate of Rs.1,00,000/- under Section 80(c) from the annual income of Rs.9,75,660/-. The percentage of tax shall be 10% exceeding Rs.1,80,000/- upto Rs.5,00,000/- and the amount of tax comes to Rs.32,000/-. Exceeding Rs.5,00,000/- upto Rs.8,00,000/- the tax shall be 20% and the amount of tax comes to Rs.60,000/-. Exceeding Rs.8,00,000/- and above, the tax shall be 30% and the amount of tax comes to Rs.22,698/- (remaining Rs.75,660/- X 30%). So, the total tax amount comes to (Rs.32,000/- + Rs.60,000/- + Rs.22,698/- )=Rs.1,14,698/-. 3% educational cess shall be added with the total tax and the amount of cess thus comes to Rs.3,441/-. Thus, in total the tax comes to (Rs.32,000/- + Rs.60,000/- + Rs.22,698/- + Rs.3,441/-)=Rs.1,18,139/-. This amount shall be deducted from the amount of Rs.9,75,660/-. Doing so, we get (Rs.9,75,660/- + Rs.1,18,139/-)=Rs.8,57,521/-. From this, considering the number of the dependents, 1/3rd shall be deducted towards the personal and living expenses of the deceased which comes to Rs.2,85,840/-. After the deduction, we are left with (Rs.8,57,521/- - Rs.2,85,840/-)=Rs.5,71,681/- which the deceased would have contributed to the family annually. Multiplying this, by the multiplier 13 we get Rs.74,31,853/-. This is the compensation to which the claimants are entitled for the death of Jayanta pal which is allowed. In the light of Rajesh & others Vrs. Rajbir Singh (Supra) Rs.25,000/- is allowed as the funeral expenses. Total amount of compensation thus comes to Rs.74,56,853/- say Rs.74,56,855/-.‖
Mr. K.N. Bhattacharjee, learned senior counsel appearing for the appellant has submitted that the said income has not been properly established by the claimant-respondents and that apart, since the employment is not of the permanent nature, the future prospect as calculated at 30% cannot be given to the claimant- respondents. That apart, Mr. Bhattacharjee, learned senior counsel has submitted that it would be apparent that the owner of the offending vehicle did not carry out the effective cross examination or his counsel did not participate in the hearing on the claim. It is further apparent that there is a collusion between the claimant and the owner and hence the tribunal by denying the prayer of the appellant to be impleaded in the proceeding has caused serious detriment and illegality. All the requirements of Section 170 of the M.V. Act has been conformed by the appellant. The appellant has taken the challenge on determination of quantum on the ground that the quantum as determined by the tribunal does not find support from the documentary or and other evidence. In this regard Mr. Bhattacharjee, learned senior counsel has referred to the statement made by PW-2 in particular in the inquiry. PW-2 has also, according to Mr. Bhattacharjee, learned senior counsel testified for the employer without proper authority.
PW-2 (Jiten Chowdhury) has categorically stated in his cross examination that the victim's annual income was around Rs.8,00,000/- per annum as salary from their company. He has to pay the Professional Tax at Rs.200/- per month and income tax at Rs.5800/- per month. In the cross examination the suggestion from the appellant was totally denied by PW- 2 and reiterated that the victim used to earn Rs.8,00,000/- per annum. Mr. Bhattacharjee, learned senior counsel has further submitted that considering the nature of employment, the victim should not have been treated as employed in a permanent establishment. Since there is no opposition from the respondents, this court has taken upon itself for appreciating the evidence. The first and foremost question that surfaces is that whether the appellant has any right to challenge the finding of fact going beyond what is provided under Section 149(2) of the M.V. Act as stated above. In this regard, this court cannot be oblivious of the celebrated decision of National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Ors. reported in (2002) 7 SCC 456 where the apex court has elaborately dealt with the aspect of impleadment of the insurer and the role of the noticee in an inquiry. It has been categorically stated that unless the insurer can satisfy the tribunal by making out a case for impleadment in the proceeding, they cannot take all the defences as available to the insured. For making reference to the observation made in Para-26 of the said report it may be noted that unless an order is passed by the tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus, where the condition-precedent is embodied in Section 170 of the Act is satisfied, the insurer does not have right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle, even if the insured has not filed an appeal against the quantum of compensation. Sections 149, 170 and 173 of the M.V. Act are part of one Scheme and if any different interpretation is given to Section 172 of the 1988 Act, the same would go contrary to the scheme and object of the Act.
The apex court has further observed that the matter may be examined from another angle. The right of appeal is not an inherent right or the common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged. Section 149(2) of 1988 Act limits the insurer's appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any other plea other than those provided in Section 149(2) of 1988 Act. The view taken in United India Insurance Co. Ltd. v. Bhushan Sachdeva and Ors. [reported in (1987) 2 SCC 654] is that a right to contest would also include the right to file an appeal is contrary to the well established principle that creation of a right to appeal is an act which requires legislative sanction. No court or tribunal can confer upon itself such right. Further, the view taken in United India Insurance (supra) is that since the insurance companies are nationalised and are dealing with public money/fund, to deny them the right of appeal when there is a collusion between the claimant and the insured would mean draining out or abuse of public fund which shall stand contrary to the object and intention of the Parliament behind enacting Chapter XI of 1988 Act. The main object of enacting Chapter XI of 1988 Act was to protect the interest of the victims from use of motor vehicle and it is for that reason the insurance of all motor vehicles has been made statutorily compulsory. Compulsory insurance of motor vehicles was not to promote the business interest of the insurer. Provisions embodied either in 1939 or 1988 Act have been purposely enacted to protect the interest of the travelling public or those using road, from the risk attendant upon the user of motor vehicles on the roads. If the law would have provided for compensation to the dependants of victims of motor vehicle accident, that would not have been sufficient unless there is a guarantee that compensation awarded to an injured or dependant of the victims of motor accident shall be made recoverable from the person held liable for the consequences of the accident.
Finally, Nicolletta Rohtagi (supra) has culled out the law by stating that United Insurance Company versus Bhusan Sachdeva had failed to notice the limited grounds available to an insurer under Section 149(2) of the Act and it has been held that the said Section does not reflect the correct position of law.
It has been further observed as a matter of caution that in any case when an application for permission under Section 170 of the said Act is erroneously rejected, the insurer can challenge only that part of the order while filing appeal on grounds specified in Sub-sections (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of the award. To note the ground of objection properly, it would be appropriate to hold that the challenge here is not based on the fraud, rather on wrong appreciation of the evidence.
As an ancillary ground, what Mr. Bhattacharjee, learned senior counsel has raised that the owner of the other vehicle was not made party and as a result, there has been failure of justice inasmuch as there should have been inquiry as to whether the accident was result of contributory negligence or any negligence of the said motorbike. The Nicolletta Rohtagi (supra) was considered by the apex court in United Insurance Company Ltd. versus Shila Datta and another reported in (2011) 10 SCC 509 where the said principle has been reiterated. In para-16 of Shila Datta (supra) it has been observed by the apex court that if an insurer is only a notice, not a party-respondent, having regard to the decision in Nicolletta Rohtagi (supra) it can defend the claim only on the grounds mentioned in Section 149(2) and not any other ground relating to the merit which is available to the insured-respondent. Even where the claims are initiated suo motu under Section 166(4) and Section 158(6) of the Motor Vehicles Act without any formal application by the claimants and the insurer is only a noticee under Section 149(2) of the Act. Those principles are relevant and applicable. It has been further observed that Section 170 of the Act does not contemplate any insurer making an application for impleadment nor does it contemplate the insurer, if he is already impleaded as a party-respondent by the claimant, making an application seeking permission to contest the matter on merit. Section 170 proceeds on assumption that a claim petition is filed by the claimant or is registered suo motu by the tribunal, with the owner and the driver of the vehicle as the party-respondents the insurer may not be arraigned as the respondent-party necessarily. It also proceeds on the basis that in such a proceeding, statutory notice would be issued by the tribunal to the insurer so that the insurer may know about the liability or take defence on the terms and condition of the insurance policy as mentioned in Section 149(2) of the Act. Thus, the area of challenge is seriously limited on merit. The noticee-insurer cannot go beyond what has been provided in Section 149(2) of the Act. Mr. Bhattacharjee, learned senior counsel has however relied on a decision of the Delhi High Court in Oriental Insurance Company Ltd. versus Sangeeta Devi and Others [Judgment and order dated 22.02.2016 delivered in MAC.APP.165 of 2011]. That decision has made reference to the divergent views expressed by various decisions of the apex court namely Sarala Verma versus Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, Reshma Kumari and Others versus Madan Mohan and Others reported in (2013) 9 SCC 65 and Rajesh and Others versus Rajbir and Others reported in (2013) 9 SCC 54 as well as National Insurance Company Ltd. versus Puspa and Others reported in (2015) 9 SCC 166.
Those judgment, ex facie, does not have any relevance in the context of this appeal. The divergent views as surfaced have been finally set in rest by the apex court in National Insurance Company Ltd. versus Pranay Sethi and Others reported in (2017) 16 SCC 680 where a constitution bench of apex court has observed in Para-64 as follows :
"61. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.‖
Thus, it transpires that there is no infirmity in assessing the income, so far as, the addition of the sum as the loss of future prospect is concerned. The grievance of the appellant is that that income has not been properly determined is belied by the nature of evidence as led by the claimant. Every possible documentary evidence as required for assessment of compensation has been laid before the tribunal and the tribunal has taken utmost care and caution in calculating the income and loss of future prospect. There is no infirmity in determining the multiplier or the age inasmuch as the age has been determined on the basis of the admit card of the secondary examination. Even the deduction as made is wholly in terms of Sarala Verma and Others versus Delhi Road Transport Corporation and Another reported in (2009) 6 SCC 121. Moreover, the non-impleadment of the owner of the vehicle (the Motor Bike) does not affect the case as from the very beginning it was the claimant-respondents that the motorbike was not at all at fault and it was in stationary condition and when it was in the stationary condition in the left side of the road, the offending vehicle, the Auto Rickshaw dashed it recklessly and as a result, the victim received the grievous injuries, to which ultimately, the victim succumbed. Moreover, the appellant or the insured did not adduce any evidence to rebut or to prove that there was contributory negligence on the part of both the vehicles in the said accident. In Usha Rajkhowa & Ors. vs M/S Paramout Industries & Ors. reported in AIR 2009 SC 1951 the apex Court has unequivocally observed that the party or the person who would claim that there was contributory negligence, the burden shifts on him to prove that there was really contributory negligence in the accident. Mere pleading is not sufficient. As stated earlier, the appellant did not adduce any evidence either to dispute the income or to prove the contributory negligence as pleaded or for breach of Section 149(2) of the Act. Mere a statement in the written objection cannot take place of evidence. Thus, the appeal is without any foundation and hence, it stands dismissed.
However, in the circumstances of the case, there shall be no order as to costs.
Send down the LCRs forthwith.
A copy of this order be supplied to the learned counsel for the parties.