New India Assurance Company Limited vs Buchi Bibi & Ors

Though the respondents have filed a cross-objection under Order XLI Rule 22 of the Code of Civil Procedure, being COT 69 of 2018, but Mr. Banik, the learned Advocate on record of the claimants, submits, on instruction, that his clients are not interested in pressing the said cross-objection. He further submits that yesterday he had an interaction with his clients, who in unequivocal terms told to him that they are not interested in proceeding with the cross-objection and the prayer in this regard may be made before the Court.

In view of the above, though the COT is not appearing in day's list, but we treat it as on day's list and dismiss the same as not pressed.

By the impugned award the Tribunal awarded the compensation to the tune of Rs.6,18,900/- with interest at the rate of 8% per annum from the date of filing of the said application till the actual payment.

It is undisputed that the victim as free lancer worked as porter (khalasi) and met with an accident on 8th July, 2011 at about 1-00 p.m. outside the premises of Jagannath Modern Rice Mill at Mithapukur. The offending vehicle was engaged to transport paddy and the said victim as porter loaded the same on the said offending vehicle. Since the weather was cloudy and there was an possibility of rain, the tarpaulin was put on the gunny bags of the paddy and the victim was allowed to sit thereupon so that the goods loaded in the said truck are not affected from rain. Suddenly he came in contact with an overhead high voltage electric wire and received burn injuries and ultimately died in the hospital on 12th July, 2011.

The Tribunal while awarding the compensation took the notional income at Rs.3,000/-, as the claimants could not prove the actual income and applied multiplier 14, as the deceased was between the age group of 40 to 50 at the time of his death.

Since the said claim was made under Section 163A of the Motor Vehicle Act, it was not available to the Insurance Company to take a plea of no fault liabilities. Precisely for such reason the challenge to the award is restricted solely on the ground that the Tribunal cannot award a sum of Rs.25,000/- for funeral expenses, Rs.1,00,000/- for loss of consortium and Rs.2,500/- for loss of estate.

Section 163A of the Act postulates that the owner of the motor vehicle or the authorized insurer shall be liable to pay, in case of death or permanent disabilities due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim. The Second Schedule contains exhaustive provisions of calculating the compensation based upon the age and the income of the deceased. It further provides consolidated sum of Rs.9,500/- on account of loss of consortium, loss of estate and funeral expenses.

If the statute provides that the compensation would be calculated or determined on fixed parameters, the Tribunal cannot exceed its juridiction in determining the compensation de hors such statutory provision. The Tribunal cannot travel beyond the periphery of the statutory provisions and have to act within the precincts thereof. Any departure or an attempt to cross the peripheral limit of the statutory provisions cannot be supported or appreciated by the Appellate Court. If the fixed amount under the conventional head is incorporated in the Second Schedule appended to Section 163A of the said Act, it is an imperative on the Tribunal to keep strict adherence thereto and cannot award compensation arbitrarily, whimsically and beyond the legal sphere.

We thus find that the compensation on account of such conventional heads as awarded by the Tribunal cannot be supported at all.

Another plea has been taken by the Insurance Company that the driver of the offending vehicle did not possess valid driving licence.

The aforesaid point has been set at rest by the Apex Court in case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. reported in (2004) 3 SCC 297 in the following terms:

"110. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insured under Section 149(2) of the Act."

In view of the exposition of law as quoted above, it is primary responsibility and liability of the insurer to pay the compensation to the claimants and thereafter recover the same from the owner or the driver, as the case may be, upon the proof of conditions as mentioned therein.

We, therefore, do not find any difficulty in directing the insurer to pay just compensation to the claimants and simultaneously permit the insurer to recover the said amount from the owner or the driver, as the case may be, as permissible in law.

The impugned award is modified to the extent:

the portion of the order by which the Tribunal awarded a sum of Rs.1,27,500/-under conventional heads, i.e. loss of consortium, loss of estate and funeral expenses is hereby set aside; Instead the claimants shall get Rs.9,500/- as per schedule II of the Act.

so far as the future prospect is concerned, the Tribunal overlooked the fact that the application was made under Section 163A of the said Act and, therefore, no compensation can be paid thereupon. Thus the portion of the order, by which the Tribunal awarded the amount on future prospect is hereby set aside.

The appeal is accordingly disposed of.

We have been informed now that a sum of Rs.25,000/- had been deposited by the Insurance Company as condition precedent to maintain the appeal before this Court.

Liberty is granted to the Insurance Company to withdraw the said amount.

The Insurance Company is directed to disburse the amount calculated on the basis of the modified award as above within a month from the date of furnishing the details of the bank account.

Needless to mention that the claimants shall furnish the details of bank account sufficient enough to transfer the amount of compensation to the respective bank accounts electronically within a week from date.

To avoid any confusion, we hereby make it clear that apart from modification of the award as indicated hereinabove, the other portion of the impugned award is uninterfered with. The time limit indicated hereinabove for disbursement of compensation is peremptory and mandatory.

In view of disposal of the appeal the connected application has become infructuous and the same is disposed of accordingly.