Kamala Naik vs Jagabandhu Samal

Dr. B.R. Sarangi, J.—The claimants, who are the legal heirs of deceased Kandarp Naik, as the appellants, have filed this appeal assailing the award dated 31.03.2005 passed by the learned Addl. District Judge-cum-3rd Motor Accident Claims Tribunal, Angul in M.A.C.T. Case No. 74 of 2002 seeking for enhancement of compensation from Rs. 1,71,740/- to Rs. 4,00,000/- along with interest @ 9% from the date of application and for direction to the insurance company-respondent no. 2 to pay the amount.

The short fact of the case in hand is that Kandarpa Naik, the deceased, was traveling in a goods vehicle after purchasing 22 nos. of goats from Riamal weekly market. After loading the same in a mini truck bearing registration No. OSD-1097, while returning to home the vehicle met with an accident on 27.3.2002, as a result of which he died at the spot. It is stated in the claim petition that due to the rash and negligent driving of the driver, the said vehicle dashed against a tree. At the time of accident, the deceased, Kandarpa Naik was 45 years of old and was earning Rs. 8000/- per month from the goat business. The vehicle in question was insured with respondent no. 2, which covers the date of accident and the driver was driving the vehicle having valid driving licence. Therefore, the claimants filed the application claiming compensation of Rs. 4,00,000/- (Rupees four lakhs) on account of the death of Kandarpa Naik.

Pursuant to the notice issued by the learned Tribunal, owner of the vehicle, respondent no. 1 did not appear and was set exparte whereas the Insurance Company-respondent no. 2 appeared and filed its written statement denying their knowledge regarding the accident and also specifically stated that the vehicle was not authorized to carry passengers, thereby, the insurance company is not liable to pay any compensation.

To the above contention, the claimants examined two witnesses and filed documents which have been marked as Exts. 1 to 4 whereas the insurance company though appeared and filed its written statement and contested the application, did not adduce any oral or documentary evidence in support of its contention. That apart, the insurance company-respondent had taken a specific plea that the deceased was travelling as a gratuitous passenger in the said vehicle and therefore, he is not entitled to get any compensation.

On consideration of the same, learned Tribunal framed as many as three issues to the following effect:

"i) Whether the road accident took place on 27.3.2002 at about 2.45 P.M. near village Khalipasi resulting in the death of deceased Kandarpa Naik on account of rash and negligent driving of the Mini truck bearing registration No. OSD-1097 (Tata-407) by its driver?

ii) Whether the petitioners are entitled to get any compensation? If so, from whom and to what extent?

iii) To what relief(s) the parties are entitled?"

The Tribunal held that that due to the rash and negligent driving of the driver of the offending vehicle bearing registration No. OSD-1097 the accident had occurred resulting in the death of deceased Kandarpa Naik and accordingly answered issue no. 1. So far as issue nos. 2 and 3 are concerned, it is stated that the insurer cannot be saddled with the liability to pay compensation to the petitioners for the death of the deceased, rather the owner of the offending vehicle is to pay the compensation to the petitioners for the death of the deceased. So far as quantum of compensation is concerned, taking into account the age of the deceased as 46 year and applying multiplier 13 (thirteen) to the annual contribution to the petitioners, it was decided that the claimants are entitled to get Rs. 1,71,740/- from the owner of the vehicle.

Mr. A.S. Nandy, learned counsel for the claimants-appellants while assailing the award of the learned Addl. District Judge-cum-3rd M.A.C.T., Angul strenuously urged that the finding arrived at by the learned tribunal is absolutely based on no materials inasmuch as while determining the amount of compensation, the Tribunal has lost sight of the provisions contained u/s 147(1)(b)(i) of the M.V. Act. More so, computation of the amount has not been done in consonance with the provisions contained in the schedule appended to the M.V. Act. Therefore, they claim for higher compensation by assailing the award passed by the learned Tribunal in the present appeal. In order to substantiate his contention, he relies upon the judgments in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , National Insurance Co. Ltd. Vs. Baby Tabbassum and Others and Wazda Khatoon and Another, , United India Insurance Co. Ltd. Vs. Suresh K.K. and Another, , National Insurance Co. Ltd. V. Babli @ Banty and other, 2009(2) TAC 715 (Allahabad), Santoshi Devi v. National Insurance Co. Ltd. and others, 2012(3) TAC 1 (SC) and Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, .

Mr. Surath Roy, learned counsel for respondent no. 2-Insurance Company while refuting the contention raised by the learned counsel for the appellants, specifically urged as to the maintainability of the appeal at the instance of the present claimants-appellants. He refers to the provisions contained u/s 173 of the M.V. Act and states that the claimants-appellants being not the person aggrieved, at their instance the appeal so filed cannot be maintainable. He further stated that it is a camouflage approach made by the owner of the vehicle to get rid of the compensation to the claimants. In that view of the matter, the appeal not being preferred by the persons aggrieved, the same should be dismissed and to fortify his stand Mr. S. Roy, learned counsel relied upon the judgments in Nahar Singh and Another Vs. Manohar Kumar and Others, and The New India Assurance Company Ltd. and Another Vs. Saraswati Samanta Singhar and Others,

On consideration of the contention raised by the parties and perusing the records and going through the impugned award, it is to be considered as to:

whether the appeal at the instance of the claimants-appellants is maintainable or not, and If so, whether the determination of compensation by the learned Tribunal is justified or not?

Section 173 of the M.V. Act, 1988 states ''Appeals'', as follows:

"173. Appeals-(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees of fifty percent of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees."

On perusal of sub-section (1) of Section 173 of M.V. Act, it appears that "any person aggrieved" by an award of a claims Tribunal may within 90 days from the date of award prefer an appeal before the High Court.

According to Black''s Law Dictionary, "aggrieved party" refers to "a party whose personal, pecuniary or property rights have been adversely affected by another person''s actions or by a court''s decree or judgment. The words "any aggrieved person" are found in several statutes. However, the meaning of the expression "aggrieved" may vary according to the context of the enactment in which it appears and all the circumstances.

In Shobha Suresh Jumani Vs. Appellate Tribunal, Forfeited Property and Another, while dealing with the words "person aggrieved" the apex Court in paragraph-9 has held as follows:

"any person aggrieved" by an order of the competent authority would mean a person whose property is held to be illegally acquired under the Act and which is to be forfeited or whose legal rights qua the said property are adversely affected. A relative or associate who has no interest or right in such property cannot be held to be a person aggrieved. It is true that the wife may be aggrieved because her husband''s properties are forfeited. But that would not confer a right to file an appeal against such order. There is no infringement of her legal right. For the purposes of the Act husband and wife are different entities. If the properties standing in the name of a relative or associate are forfeited on the ground that smugglers or foreign exchange manipulators were holding the said properties in their names or that such properties are legally acquired, then to that extent, for challenging the said finding, the relative or associate can be held to be person aggrieved by the order of the competent authority. But, a relative or associate cannot be considered to be aggrieved if the properties belonging to the smuggler or foreign exchange manipulator are forfeited under Act. "

But the words "person aggrieved" do not really mean a man who is deprived of a benefit which he might have received if some other order had been made. A ''person aggrieved'' must be a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.

In Thammanna Vs. K. Veera Reddy and Others, it was held that although the meaning of the expression ''person aggrieved'' may vary according to the context of the statute and the facts of the case, nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him something or wrongfully refused him something or wrongfully affected his title to something.

In Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, the apex Court held that the expression "aggrieved person" denotes an elastic, and to an extent, an elusive concept. The Court observed in paragraph-13 of the said judgment, which reads as follows:

"...... It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner''s interest, and the nature and extent of the prejudice or injury suffered by him."

In Nahar Singh and Another Vs. Manohar Kumar and Others, it is held that a "person aggrieved" when interpreted in the context of Motor Vehicles Act means the person who has a genuine grievance and not a camouflaged or proxy one, against the award. He must feel aggrieved immediately and directly and not consequently or nominally. It is further held that the award must prejudice his interests adversely and deprive him of something which he was otherwise entitled to get. Its effect on his right or interest must be substantial in contrast of being speculative or nominal. In paragraph-3, the Court has also taken into consideration various judgments of the High Courts including the Apex Court. In paragraph-5, the apex Court has come to a definite conclusion, which reads as follows:

(a) A ''person aggrieved'', when interpreted in the context of Motor Vehicles Act, means the person who has a genuine grievance and not a camouflaged or proxy one, against the award. He must feel aggrieved immediately and directly and not consequently or nominally.

(b) The award must prejudice his interests adversely and deprive him of something which he was otherwise entitled to get. Its effect on his right or interest must be substantial in contrast to being speculative or nominal.

(c) A mere finding that a person was negligent and responsible for accident is not enough. The award must make him liable to pay some part or the other of compensation. He must suffer some material deprivation.

In The New India Assurance Company Ltd. and Another Vs. Saraswati Samanta Singhar and Others, it has been decided in a different context inasmuch as the Court has considered that the insurance company is also a ''person aggrieved'' and at its instance the appeal can also be maintainable. It is held that the insurer may be ultimately made liable to satisfy the award though arbitrary, unreasonable and unjust because of the insurance coverage. But in that case the insurer is also a ''person aggrieved'' and can file appeal and challenge the award in its vital respects.

In paragraph-5 of the aforesaid judgment Section 173 of the M.V. Act has been considered and while noticing the various judgments of the apex Court as well as various High Courts, the apex Court has to come a conclusion that the Court has a duty to unveil the overt designs and not to be a mute spectator to the perpetration of injustice. The legislature cannot be said to be unaware of the fact that an insurer may be ultimately made liable to satisfy an award though arbitrary, unreasonable and unjust because of the insurance coverage. In such a situation the insurer has to come forward to file an appeal and challenge the award in its vital respects. The context in which New India Assurance Co. Ltd. (supra) has been decided is distinguishable in view of the fact that in the present case the claimants are the appellants, whose claim is to be adjudicated following due procedure of law. In Nahar Singh and another (supra), it appears that instead of supporting the contention of Insurance Company, it fortifies the stand of the claimants who are "persons aggrieved" to prefer this appeal.

In Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, the apex Court held that the legal representatives of deceased are entitled to get compensation under various heads. Though certain claims are not preferred by claimants but legally and legitimately they are entitled to get the same. The apex Court has awarded compensation more than what was claimed by the claimants. Therefore, it is held that it is statutory duty of the Tribunal and High Court to award just and reasonable compensation to legal heirs of deceased to mitigate their hardship and agony.

Considering the concept of "person aggrieved" as held by apex Court discussed above and taking into consideration the provisions contained u/s 173(1) of the M.V. Act, the claimants being the real "persons aggrieved", who have suffered legal grievance against whom a decision has been pronounced which has wrongfully deprived them of something, or wrongfully refused them something or wrongfully affected their title something, they have a right to approach this Court by preferring appeal. Therefore, the contention raised by Mr. Roy, learned counsel for the Insurance Company is hereby negatived. In view of this proposition of law, it can be safely said that the legal representatives of the deceased are the "person aggrieved" and at their instance appeal can lie. The claimants being the real "person aggrieved" have locus standi to prefer an appeal u/s 173 of the M.V. Act.

Repelling the contention raised by Mr. S. Roy, learned counsel for the Insurance Company that the deceased being a gratuitous passenger is not entitled to get any compensation, Mr. A.S. Nandy, learned counsel for the appellants relying on the provisions contained u/s 147(1)(b)(i) of the M.V. Act states that the owner of the goods carried in the vehicle is entitled to get compensation and in the present case the deceased Kandarpa Naik, who was travelling in a mini truck along with his goods, namely, goats, on which he was earning his livelihood, is entitled to get compensation from the Insurance Company. He relies upon a judgment of the apex Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, The said judgment has been referred to in National Insurance Co. Ltd. Vs. Baby Tabbassum and Others and Wazda Khatoon and Another, and in United Insurance Co. Ltd. V. Suresh K.K. and others, 2008(3) T.A.C. 385 (SC) whereas Mr. Surath Roy, learned counsel for the Insurance Company relies upon the judgments in Deddula Padmavathi, Deddula Subba Rao, Deddula Sankaraiah and Deddula Rama Tulesamma Vs. Maddala Srinivasa Rao and National Insurance Company Limited, , National Insurance Co. Ltd. Vs. Smt. Sudha Verma and Others, , Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., wherein it is held that the provisions of M.V. Act, 1988 do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carrier and the insurer would have no liability therefor. From the judgment cited by Mr. Roy, learned counsel for the Insurance Company in National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, , it appears that there is a positive case that the person who moved as a gratuitous passenger in a goods vehicle, is not entitled to avail the benefits of getting compensation. There is no dispute with regard to the proposition of law laid down by the apex Court in the judgments cited by Mr. Roy, learned counsel for the Insurance Company, but in the present context, the deceased was moving as owner of the goats carried in the vehicle. Therefore, the deceased cannot be compared with a gratuitous passenger to whom the judgments mentioned (supra) cited by Mr. S. Roy, learned counsel are applicable. On the other hand, the deceased being owner of the goods is entitled to get the benefits of compensation as per the provision contained u/s 147(1)(b)(i) of the M.V. Act. This question has been duly considered in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, where the provisions contained u/s 147 of M.V. Act came before the apex Court in New India Assurance Company Vs. Shri Satpal Singh and Others, in which it was held by the apex Court that the vehicle being a goods vehicle, it would not have to incur any liability with regard to passengers in the vehicle which has been subsequently reversed by a three Judge Bench of the Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, which has been subsequently followed in the case of Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., . In New India Assurance Co. Ltd. Vs. Asha Rani and Others, it was held that the previous decision in Satpal Singh (supra) was incorrectly rendered and that the words "any person" as used in Section 147 of the Motor Vehicles Act, 1988, would not include passengers in the goods vehicle, but would rather be confined to the legislative intent to provide for third-party risk. The question in the subsequent judgment in Oriental Insurance Co. Ltd. V. Devireddy Konda Reddy (supra) involved, as in the present case, the liability of the insurance company in the event of death caused to a gratuitous passenger travelling as owner of goods in a goods vehicle. The Court held that the Tribunal and the High Court were not justified in placing reliance upon Satpal Singh case in view of its reversal by the judgment in Asha Rani (supra) and that, accordingly, the insurer would not be liable to pay compensation to the family of the victim who was travelling in a goods vehicle. But both the decisions in Asha Rani case and Konda Reddy case were delivered with respect to the position prevailing prior to the amendment of Section 147 by the Motor Vehicle (Amendment) Act, 1994. As such, the effect of the legislative amendment was not in question in the above cases and therefore, the law laid down by these decisions would not be considered as binding law in view of coming into force of the said amendment. The effect of the 1994 amendment in Section 147 is unambiguous. Where earlier the words "any person" could be held not to include the owner of the goods or his authorized representative travelling in the goods vehicle, Parliament has now made it clear that such a construction is no longer possible. The scope of this rationale does not, however, extend to cover the class of cases where gratuitous passengers for whom no insurance policy was envisaged, and for whom no insurance premium was paid, employed the goods vehicle as a medium of conveyance.

By reason of the 1994 amendment what was added is "including owner of the goods or his authorized representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorized representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words "any person" occurring in Section 147 would cover all persons who were traveling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of the Parliament to carry out an amendment inasmuch as the expression "any person" contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorized representative besides the passengers who are gratuitous or otherwise. Therefore, by virtue of amendment of Section 147 of the M.V. Act, "the owner of the goods" or "his authorized representative" would now be covered under policy of insurance in respect of goods vehicle.

The aforesaid being the position of law governing the field, now the determination of quantum of compensation by the learned court below is to be taken into consideration. In paragraph-12 of the impugned judgment, it is stated that no materials have been produced before the court below that the income of the deceased was Rs. 8000/- to Rs. 10000/-, which has been duly admitted by P.W. 1 in his evidence. Apart from the same, P.W. 2 has also stated that there is no document to show that the monthly income of the deceased was Rs. 8000/- from the goat business. Therefore, considering the daily income of the deceased at Rs. 60/- at the relevant point of time, the learned Tribunal has determined the compensation in favour of the claimants. The apex Court in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Limited, considered the monthly income of a daily worker at Rs. 4500/- instead of Rs. 3000/-. However, the Tribunal has committed error by deducting four Sundays from the monthly income of the worker. In New India Assurance Co. Ltd. Vs. Babli alias Banty and Others, it is held that in case of down to earth people who may give employment regularly to earn bread and butter instead of making the Sundays off is not permissible. The Tribunal has committed error by not deducting the personal expenses to the extent of 1/10th to the dependent seven in number excluding the deceased himself. In Santoshi Devi v. National Insurance Company Ltd. and others, 2012(3) T.A.C. 1 (S.C.) it is held that the family consisted of five persons, such a person would at best spend 1/10th of his income for self but in the instant case the deceased has seven dependants, therefore the learned Tribunal has committed a mistake by deducting 1/3rd from the income towards personal expenses.

In view of the aforesaid facts and circumstances of the case and considering the law governing the field, this Court while sets aside the award dated 31.03.2005 passed by the learned Addl. District Judge-cum-3rd M.A.C.T., Angul in M.A.C.T. No. 74 of 2002 and remits the matter back to the learned Tribunal for fresh adjudication on the basis of materials available on record and re-determination the compensation in conformity with the provisions of law by affording opportunity to the parties. Since it is a case of the year 2002, the learned Tribunal is directed to conclude the proceeding by end of October, 2014. Parties are directed to cooperate with the proceeding for early disposal of the case.

With above observation and direction, the MACA is disposed of.