Oriental Insurance Co. Ltd. vs Lakshmi Routh & Anr.

C.A.N. 1413 of 2017 is an application for withdrawal at the instance of the claimant/respondent no.1 in the appeal (hereafter the ‘claimant’).

While hearing the application, we have examined the merits of the appeal treating it as on day’s list with the consent of the parties. We propose to dispose of the appeal as well as all the connected applications here and now.

The claimant had approached the tribunal with an application under section 163A of the Motor Vehicles Act, 1988 (hereafter the ‘Act’) after her son, a 20 year old young man, died in a motor accident. Although it was claimed in the claim application by the claimant that the victim was in service and was earning Rs. 3,300/- per month, the answer of the claimant to serial number-5 of the form prescribed for filing claim applications would reveal that she had withheld the name and address of the victim’s employer and intended to disclose the same at the time of trial. In course of trial, the claimant had been duly cross-examined by the insurance company.

She reiterated that the victim was employed as a sweeper in a particular place but did not disclose the name and address of the victim’s employer.

Despite such non-disclosure, the tribunal proceeded to determine compensation reckoning Rs. 3,000/- as the monthly income of the victim prior to his untimely death. Although, according to the tribunal, the claimant was entitled to Rs. 5,80,500/- but had asked for compensation in a sum of Rs. 4,00,000/- only, she was awarded Rs. 4,00,000/- together with simple interest @ 8% per annum from the date of filing of the claim application till realisation. The said award (dated January 28, 2015) is the subject matter of challenge in this appeal at the instance of the appellant-insurer. Mr. Das, learned advocate appearing for the appellant has raised two points :

1) Referring to ground no. 7 of the memorandum of appeal, it is submittedthat no document having been placed by the claimant to support the victim’s earning, the tribunal ought to have recorded that the victim was a non-earning person and determined compensation reckoning Rs. 15,000/- per annum given in the second schedule to the Act as his annual income; and

2) A specific point had been raised by the appellant before the tribunal tothe effect that the offending vehicle was being driven at the material point of time by an individual, who did not have a valid driving licence. In that view of the matter, liability, if at all, ought to have been fixed on the owner of the offending vehicle and not on the insurer.

Mr. Roy, learned advocate representing the claimant contended that the tribunal did not commit any error in determining compensation. According to him, Rs. 3,000/- could have been earned even by an unskilled worker having regard to the minimum wages that were prescribed for the material period and on the authority of the decision in Laxmi Devi & Ors. vs. Mohammad Tabbar & Anr. reported in 2008 SAR (Civil) 445, he urged that we ought to, in exercise of our appellate jurisdiction, uphold the award of the tribunal.

It is next submitted by Mr. Roy that having regard to the decision reported in 2014 (1) TAC 321 (SC) : National Insurance Company Limited vs. Swaran Singh & Ors., the principle of ‘pay and recover’ would apply, if at all it is held by us that the offending vehicle on the relevant date was being driven by an individual without having an effective driving licence; and, this was no ground at all to deprive the claimant of due compensation.

Mr. Roy has also brought to our notice that a cross objection has been filed by the claimant, being C.O.T. 24 of 2017. He has urged that notwithstanding the prayer in the claim application for awarding Rs. 4,00,000/- as compensation, the tribunal keeping in mind the decision reported in

2003 ACJ 12 : Nagappa vs. Gurudayal Singh & Ors. ought to have awarded Rs. 5,80,500/- , which was determined by it to be appropriate amount of compensation. Having heard learned advocates for the parties, we are of the clear opinion that the appeal ought to succeed in part whereas the cross objection does not merit any interference at all.

Rule 329 of the West Bengal Motor Vehicles Rules, 1989 (hereafter the ‘Rules’) requires an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 of the Act to be filed by a person, specified in sub-section (1) of section 166 thereof, before the Claims Tribunal having jurisdiction in Form COMP-A. Section 163A of the Act was introduced with effect from November 14, 1994. After such introduction, the Rules have not been suitably amended. However, sight cannot be lost of the fact that even applications under section 163A of the Act are being filed in the Claims Tribunals in West Bengal in Form COMP-A. Serial number 5 of Form COMP-A is in the following terms:

“Name and address of the employer of the deceased, if any”. The claimant answered it by saying “Produce at the time of hearing”.

We shall assume for the moment that the claimant may not have known the name and address of the victim’s employer and was thus disabled from disclosing it in the claim application; however, it cannot be ignored that while asserting that the victim was in service as a sweeper, it was obligatory for her to disclose the name and address of the employer of the victim. More so, because her claim that the victim was employed as a sweeper and in receipt of Rs. 3,300/- per month had been seriously disputed by the appellant.

In the absence of requisite particulars, we are of the considered view that the claimant’s version is not wholly believable and the tribunal committed gross error in placing entire reliance on it while determining compensation payable to her. In the absence of either any document proving the income of the victim or any documentary evidence regarding his appointment as a sweeper, and even in the absence of the particulars of the victim’s employer, the tribunal ought to have regarded the victim as a ‘non-earning person’ and computed compensation reckoning Rs. 15,000/- per annum as his income. We shall bear this in mind while we proceed to determine compensation payable to the claimant.

Insofar as the second point urged by Mr. Das is concerned, we find from the award that the tribunal did not give any specific finding as to whether the individual driving the offending vehicle had an effective driving licence or not on the date of the accident. In the absence of such finding, we have no doubt in our mind that the appellant has been denied justice. Having regard to the decision in Swaran Singh (supra), the appellant, in all fairness, ought to be given the opportunity to recover whatever amount is determined by us to be payable by it to the claimant, from the owner of the offending vehicle.

Regarding the cross objection, we hasten to observe that the claimant may have been justified in assailing the award on the ground that it does not take into consideration the decision in Nagappa (supra) wherein it has been laid down that a Claims Tribunal may award an amount of compensation more than what has been prayed for by the claimants in their application for claim; however, we would have to first determine whether the claimant is at all entitled to Rs. 4,00,000/- that was ultimately awarded by the tribunal keeping in mind the structured formula found in the second schedule to the

Act. We, accordingly, proceed to re-determine compensation as follows: