Future General India Insurance … vs Soumita Roy & Anr on 5 January, 2018

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

PRESENT : Hon’ble Justice Dipankar Datta
and
Hon’ble Justice Debi Prosad Dey

CAN 4022 of 2017
in
FMAT 419 of 2017

Future General India Insurance Co. Ltd.
v.
Soumita Roy anr.

For the applicant/appellant : Mr. Rajesh Singh, Advocate.

For the opposite : Mr. Ashique Mondal, Advocate.
party no.1/respondent no.1

Amicus Curiae : Mr. Sakti Nath Mukherjee, Sr. Advocate.

Hearing concluded on : August 8, 2017
Judgment on : January 5, 2018

DIPANKAR DATTA, J.:-

1. FMAT 419 of 2017 is an appeal under section 173 of the Motor Vehicles Act,

1988 (hereafter the 1988 Act) at the instance of the insurer/opposite party no.2

(hereafter the appellant) in M.A.C. Case No.51 of 2016 on the file of the Motor

Accident Claims Tribunal, Fast Track 8th Court, Alipore (hereafter the tribunal). It

is directed against the award dated January 27, 2017 passed by the tribunal,

whereby a sum of Rs.1,22,62,015/- was awarded to the claimant (hereafter the

first respondent) as monetary compensation on account of death of her only
brother in a motor vehicular accident, together with interest @ 9% per annum

from the date of filing of the claim application till date of actual payment. The

compensation was directed to be paid within 2 months from date.

2. CAN 4022 of 2017 is an application for stay of operation of the award filed in the

said appeal.

3. At the first hearing of CAN 4022 of 2017 on July 13, 2017, Mr. Mondal, learned

advocate for the first respondent submitted that a pure question of law is

involved in the appeal and accordingly, he urged us to decide the appeal finally

dispensing with all formalities. Mr. Singh, learned advocate for the appellant did

not object. Having satisfied ourselves that the appellant had put in Rs.25,000/-

being the statutory deposit, we proceeded to hear the parties on the merits of the

appeal.

4. In course of hearing Mr. Singh and Mr. Mondal, we perceived the involvement of

a question of law of substantial importance in the appeal. After they had

concluded their arguments, we requested Mr. Sakti Nath Mukherjee, learned

senior advocate to assist us as amicus curiae. As is usual, we have benefitted

from his erudite arguments and at the outset record our sincere appreciation for

the invaluable service rendered by him at our request.

5. The undisputed facts giving rise to the appeal in a nutshell are these. The first

respondent’s elder brother (hereafter the deceased) passed away on April 23,

2011, upon sustaining multiple injuries on his head and abdomen in a road

accident involving the use of a motor cycle. An application under section 166 of

the 1988 Act was presented before the tribunal by the deceased’s father
(hereafter the original claimant) on December 6, 2013. It was pleaded in the

claim application that the deceased was a qualified cinematographer and that his

net income for the financial year 2011-12 was Rs.10,89,069/-. He died a

bachelor at the age of 39 years 5 months leaving his parents, who were totally

dependent on him. However, the mother of the deceased could not bear the

mental shock after hearing her son’s death and passed away a few days

thereafter.

6. Unfortunately, during the pendency of the application, the original claimant

passed away on August 7, 2016. On his death, the first respondent applied for

substitution and such application was allowed by the tribunal. The first

respondent thus stepped in as the only surviving heir of the original claimant as

well as the deceased. The tribunal heard the claim against the owner of the

offending vehicle and its insurer. It framed 8 (eight) issues upon recasting the

issues originally framed. Bearing in mind substitution as referred to above, the

issue as to whether the first respondent could claim compensation upon

maintaining the claim application was considered in the light of section 166 of

the Act. Relying upon the decisions reported in 1991 ACJ 767 (Narinder Kaur v.

State of Himachal Pradesh) and 2010 ACJ 401 (Sarama Das v. Bhutnath Ghorai)

as well as section 2(11) of the Code of Civil Procedure (hereafter the CPC), the

tribunal proceeded to hold that the first respondent as the sole surviving heir

and legal representative of the deceased could maintain the application under

section 166 of the 1988 Act and claim compensation. Insofar as the other issues

are concerned, the tribunal upon discussion of the evidence that was led
returned finding to the effect that the deceased was indeed a victim of the road

accident in question and that the offending vehicle which was driven rashly and

negligently had dashed the deceased from behind as a result whereof he fell

down and sustained injuries. Since the offending vehicle had been insured by a

policy issued by the appellant, the compensation payable to the first respondent

was directed to be borne by the appellant.

7. The only point raised by Mr. Singh is that the first respondent being the married

sister of the deceased and not being dependent on his income at the time of his

death and there being no evidence of her future dependence on him, she did not

suffer any pecuniary loss and/or loss of dependency and as such no amount

could have been awarded under such head and the awarded amount is a

‘windfall’ for her; if at all, the first respondent could be compensated for the loss

of estate of the deceased. Referring to various decisions of the Supreme Court, it

was contended by him that the object of compensation in terms of the scheme

envisaged in Chapter XII of the 1988 Act is to put the claimants in the same

position so far as money can, had the victim not suffered the casualty. It is,

therefore, just compensation that the first respondent is entitled to and not a

bonanza, arising out of death of her elder brother on whom she was not

economically dependent. Referring to section 21 of the Hindu Adoptions and

Maintenance Act 1956, it was contended that the definition of dependants does

not include ‘married sister’ and, therefore, this aspect ought to be borne in mind

while deciding the appeal.

8. Reliance was placed by Mr. Singh on the following decisions:
1. AIR 1985 AP 83 [
The Chairman, A.P.S.R.T.C. Hyderabad v. Smt. Shafiya
Khatoon ors.];

2. 1995 (1) T.A.C. 557 (SC) [R.D. Hattangadi v. Pest Control (India) Pvt.
Ltd.];

3. 2002 (1) T.A.C. 138 (SC) [Lata Wadhwa ors. v. State of Bihar ors.];

4. 2003 (3) T.A.C. 284 (SC) [Divisional Controller, KSRTC v. Mahadeva
Shetty];

5. 2003 (3) T.A.C. 569 (SC) [State of Haryana anr. v. Jasbir Kaur anr.];

6. 2007 (2) T.A.C. 71 (MP) [Smt. Bhagwati Bai anr. v. Bablu alias
Mukund ors.];

7. 2009 (2) T.A.C. 677 (SC) [Smt. Sarla Verma ors. v. Delhi Transport
Corporation anr.];

8. 2009 (3) T.A.C. 1 (SC) [R.K. Malik anr. v. Kiran Pal ors.];

9. 2011 ACJ 2161 (SC) [Suba Singh anr. v. Davinder Kaur anr.];

10. 2011 (4) KLT 952 [Omana P.K. and others v. Francis Edwin and others]

11. Civil Appeal No(s) 8964 of 2012 [Francis Edwin v. Omana P.K. and
others].

9. Finally, Mr. Singh contended that rules 342 and 343 of the West Bengal Motor

Vehicles Rules, 1989 (hereafter the 1989 Rules) do not include section 146 and

Order XXII of the Code of Civil Procedure 1908 (hereafter the CPC) in relation to

claims arising for decision by claims tribunals; therefore, even though the first

respondent was substituted in place of her deceased father, who was the original

claimant, she would not be entitled to the amount of compensation that her

deceased father would have received under various heads including pecuniary

loss, ~ but only the amount for loss of estate.

10. Per contra, Mr. Mondal contended that the first respondent being the only

surviving heir and legal representative, was entitled to step into the shoes of the
original claimant and she is entitled to claim compensation under all possible

heads the original claimant was entitled. In support of the submission that the

first respondent as a legal heir of the deceased could maintain the claim

application and that the tortfeasor is not entitled to be free from its liability or

pay lesser compensation due to economic non-dependency of the legal

representative, reliance was placed by him on the decisions reported in 1987 ACJ

(Gujarat State Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai

and anr.), 2007 ACJ 1279 (Manjuri Bera v. Oriental Insurance Co. Ltd. anr.),

AIR 2007 SC 2086 (Mrs. Hafizun Begum v. Md. Ikram Heque ors.), 2008 ACJ

2014 (Debanshu Guha Roy v. National Insurance Co. Ltd.), and 2016 Supreme

(Madras) 640 (Branch Manager, ICICI Lombard General Insurance Company Ltd.

v. Kaliayamoorthy anr.) apart from the decision in Sarama Das (supra). He,

thus, prayed for dismissal of the appeal.

11. Mr. Mukherjee first referred to the common law maxim actio personalis moritur

cum persona (a personal right of action dies with the person) and submitted that

at common law, if an injury were done either to the person or the property of

another for which damages only could be recovered in satisfaction, the action

died with the person to whom or by whom the wrong was done. However,

referring to the decision reported in (1973) 1 SCC 602 [Official Liquidator of

Supreme Bank Ltd. v. P.A. Tendolkar], it was submitted that the Supreme Court

has neither particularly liked nor approved of this maxim.
12. Mr. Mukherjee then took pains to take us through the provisions of the
Legal

Representatives Suits Act, 1855 being Act XII of 1855 (hereafter Act XII), the

Indian Fatal Accidents Act, 1855 being Act XIII of 1855 (hereafter Act XIII), the

Motor Vehicles Act, 1939 (hereafter the 1939 Act), Chapter XII of the 1988 Act

and the Indian Succession Act, 1925.

13. Submission of Mr. Mukherjee on Act XII is this. The preamble which says,

“Whereas it is expedient to enable executors, administrators or representatives in

certain cases to sue and be sued in respect of certain wrongs which, according to

the present law, do not survive to or against executors, administrators or

representatives”, tends to cut down the rigours of the maxim actio personalis

moritur cum persona. Act XII, according to him, proceeds to provide for actions by

the representative of a deceased person, and action against the representative of

a deceased person. Under Act XII, an action may be maintained by the executors,

administrators or representatives of a deceased person for any wrong committed

in the lifetime of the deceased which has occasioned pecuniary loss to the estate

of such person (and for no other wrong), committed within one year before his

death.

14. Thereafter, Section 306 of the Indian Succession Act, 1925 was placed, which

effectively provides as follows: –

“All demands whatsoever and all rights to prosecute or defend any action
or special proceeding existing in favour of or against a person at the time of
his decease survive to and against his executors or administrators; except
causes of action for defamation, assault, as defined in
the Indian Penal
Code, or other personal injuries not causing the death of the party.”
15. It was then submitted that there were conflicting decisions on the effect of these

statutory provisions and changes in India. The controversy was finally settled by

the Apex Court by its decision reported in AIR 1988 SC 506 [M. Veerappa v.

Evelyn Sequeira], holding that the expression ‘personal injuries’ in the said

provision does not mean injuries to the body alone but all injuries to a person

other than those which cause death and the expression is to be read ejusdem

generis with the words ‘defamation’ and ‘assault’ and not with ‘assault’ alone. It

was also held in that case that the maxim has no application when the claim is

decreed and the plaintiff dies pending an appeal against the decree since the

claim becomes merged in the decree and the decretal debt forms part of the

plaintiff’s estate devolving on his death on his heirs, executors and

administrators.

16. Continuing his submissions, Mr. Mukherjee brought it to our notice that Indian

courts have even gone so far as to hold that where personal injuries cause the

death of the party injured then the cause of death does not abate, as held in the

decision reported in AIR 1977 Delhi 201 (Klaus Mittelbachert v. The East India

Hotels Ltd.), though there it was also held alternatively that the suit was based

on contract with the hotel management and hence the maxim of actio personalis

moritur cum persona did not apply.

17. Having submitted on the aforesaid aspects of the matter, reference was made to

Act XIII. Section 1A thereof ordained that the claim should be confined only for

the benefit of wife, husband, parent and child, if any, of the person whose death

has been caused by the accident.
18. However, this was replaced by the provisions of the 1939 Act, a beneficial statute

and in the light of this statute, the Supreme Court was pleased to give a wider

interpretation to those who were entitled to claim compensation. In Gujarat State

Road Transport Corporation (supra), a case covered by the 1939 Act, the

claimant was a brother of a deceased killed in a motor vehicle accident. The

Court rejected the contention of the appellant that since the term ‘legal

representative’ is not defined in the 1939 Act, the right of filing the claim should

be controlled by the provisions of Act XIII. It was specifically held that the 1939

Act creates new and enlarged right for filing an application for compensation and

such right cannot be hedged in by the limitations on an action under Act XIII.

Paragraph 11 of the report reflects the philosophy which should guide the Courts

interpreting legal provisions of beneficial legislations providing for compensation

to those who had suffered loss. The Supreme Court even held that “legal

representative is one who suffers on account of death of a person due to a motor

vehicle accident and need not necessarily be a wife, husband, parent and child”.

19. The difference in approach becomes stark when one considers the next statutory

replacement, being the 1988 Act and the provisions made therein, particularly

Section 155 of the Act of 1988, which provides in clear terms that:

“Notwithstanding anything contained in section 306 of the Indian
Succession Act, 1925 (39 of 1925), the death of a person in whose favour a
certificate of insurance had been issued, if it occurs after the happening of
an event which has given rise to a claim under the provisions of this
Chapter, shall not be a bar to the survival of any cause of action arising
out of the said event against his estate or against the insurer”.
20. It was, thus, submitted that the provisions of section 1A of Act XIII and the 1988

Act are clearly at variance and having regard to clause (c), sub-section (1) of

section 166 of the 1988 Act, any legal representative of a deceased victim could

file an application under section 166 thereof before the tribunal and if successful

in proving such status as legal representative as well as the accident, would be

entitled to claim just compensation from the owner of the offending vehicle

and/or its insurer as the tribunal deems fit and proper.

21. Our attention was further drawn by Mr. Mukherjee to Section 163-A of the 1988

Act whereunder, compensation on ‘no fault liability’ principle could be claimed by

the ‘legal heir’ and not the ‘legal representative’ of the victim if he were no more.

This distinction, according to him, is sufficient to suggest the intention of the

legislature that the benefit of compensation payable under Section 166 of the

1988 Act was not intended to be restricted to a ‘legal heir’ of a motor vehicular

accident victim.

22. Mr. Mukherjee also contended that the decision in Sarama Das (supra) proceeded

to award compensation to the married sisters of the victim, as if the decision in

Manjuri Bera (supra) were an authority for the issue that it decided. Reference

was made by him to the penultimate paragraph of the concurring opinion of

Hon’ble S.H. Kapadia, J. (as His Lordship then was), wherein it was observed

that the opinion was confined to “no fault liability” under section 140 of the 1988

Act. According to him, the decision in Manjuri Bera (supra) may not be applicable

proprio vigore to an application under section 166 of the 1988 Act by an
economically non-dependent sister of a victim of a road accident and this

particular aspect was not noticed in Sarama Das (supra).

23. While summing up, Mr. Mukherjee contended that a survey of the decisions cited

by the parties would lead one to the unmistakable conclusion that a legal

representative of a motor vehicular accident victim most certainly has the right to

apply for compensation under Section 166 of the 1988 Act, unlike Act XIII which

restricts lodging of claim only by the wife, husband, parent and child of the

victim. A dependent legal representative of such victim, according to him,

obviously has the right to apply for compensation for both ‘pecuniary’ and ‘non-

pecuniary’ loss, but while being entitled to compensation for ‘non-pecuniary’ loss

almost as of right if rash and negligent driving and other facts are proved, to

succeed in his claim for compensation even for ‘pecuniary’ loss the applicant is

under legal obligation to prove that he was dependent on the victim at the time

the accident occurred leading to death; and, if the applicant were a non-

dependent legal representative, he would only be entitled to compensation for

‘non-pecuniary’ loss, if rash and negligent driving and other facts are proved.

24. However, before concluding, Mr. Mukherjee raised a very important point. He

reminded us that the mere fact of the first respondent in the present case not

being a dependent on the income of the deceased would not warrant a conclusion

that she is not entitled to any amount except on account of loss of estate.

According to him, the first respondent lost her only brother in the unfortunate

accident. There has been no reported decision on the aspect of loss of love,

affection, care and company that is suffered by a sister owing to untimely death
of her brother in a road accident. At times of need, it is the brother’s shoulder

that a sister looks for to rest. The loss created by the vacuum, according to him,

needs to be quantified by the tribunal/appellate court while assessing just

compensation payable under section 168 of the 1988 Act.

25. These being the arguments advanced at the bar by Mr. Singh and Mr. Mondal as

well as Mr. Mukherjee’s submissions, we now proceed to consider the issue that

has emerged for decision here. The issue is, to what extent, if at all, a non-

dependent sister of a victim of a motor vehicular accident entitled to claim

compensation from the tortfeasor upon her substitution on the death of the

original claimant (being a Class II heir of the deceased).

26. We prefer to preface our decision by taking note of certain decisions relevant for

the present purpose.

27. The Supreme Court in the decision reported in AIR 1967 SC 1124 (Girja

Nandini Devi v. Bijendra Narain Choudhury) observed as under:

“The maxim ‘actio personalis moritur cum persona’ — a personal action dies
with the person — has a limited application. It operates in a limited class of
actions ex delicto such as actions for damages for defamation, assault or
other personal injuries not causing the death of the party, and in other
actions where after the death of the party the relief granted could not be
enjoyed or granting it would be nugatory. An action for account is not an
action for damages ex delicto, and does not fall within the enumerated
classes. Nor is it such that the relief claimed being personal could not be
enjoyed after death, or granting it would be nugatory.”

28. In its decision reported in (1994) 1 SCC 292 (Rameshwar Manjhi v. Sangramgarh

Colliery), it was observed that though part of English Common Law, the maxim
has been subjected to criticism even in England. It has been dubbed as an

unjust maxim, obscure in its origin, inaccurate in its expression and uncertain

in its application, It has often caused grave injustice.

29. The said maxim, therefore, may not be of any aid, more particularly having

regard to Chapter XII of the 1988 Act.

30. Next, we take note of the decisions in Sarama Das (supra) and Debangsu Guha

Roy (supra) which were delivered by coordinate Benches of this Court comprising

of a common set of member judges.

31. In Sarama Das (supra), the claim application under section 166 of the 1988 Act

at the instance of three married sisters of the victim, not dependent upon him,

was dismissed as not maintainable. Considering the decision of the Supreme

Court in Manjuri Bera (supra) the Bench was of the view that the tribunal

committed a blatant mistake in dismissing the application on the ground

indicated in the award. It was thereafter held as follows:

“It is now settled law, as pointed out in the aforesaid decision of the Hon’ble
Supreme Court that the heirs and legal representatives of the victim can
maintain an application under
section 166 of the Act irrespective of the fact
that whether they are financially dependent upon the victim.”

Thereafter the Bench proceeded to hold that since the victim was a Hindu,

according to the Hindu Succession Act his elder married sisters would be the sole

heirs and legal representatives, in the absence of the parents of the victim who

predeceased him; and all the three married sisters having filed the claim
application under
section 166 of the 1988 Act they are entitled to compensation

reckoning Rs.15000/- p.a. as notional income with 8% interest.

32. The decision in Debanshu Guha Roy (supra), delivered a few months prior to the

decision in Sarama Das (supra), dealt with a case where an application under

section 166 of the 1988 Act was filed by the brother and the nephew of the

victim, who died a bachelor in a motor vehicle accident. The tribunal dismissed

the application on the ground that none of the claimants was dependent upon

the victim and they had also failed to prove that they were deriving some sort of

financial benefit from the victim, and in the absence of any dependency the

application was not maintainable. The decisions in Hafizun Begum (supra) and

Manjuri Bera (supra) were read to lay down the law that in terms of section

166(1)(c) of the 1988 Act, any of the legal representatives of the victim can

maintain an application and if all the legal representatives do not join, the other

legal representatives should be made parties to the proceedings and it would the

duty of the tribunal to decide the amount of compensation and specify the

person or persons to whom the compensation should be payable. In the light of

the above the Bench proceeded to determine the amount of compensation that

was payable to the claimants by the insurer.

33. At this stage it may not be inapt to notice what was held by a coordinate Bench

of this Court in the decision reported in 2005 ACJ 1622 (Manjuri Bera v. Oriental

Insurance Company Ltd.), which was reversed by the Supreme Court in the

decision referred to above. There, the question arising for decision was “whether
the expression ‘legal representative’ appearing in
Section 166 of the Motor

Vehicles Act, 1988 (MV Act) includes married daughters in order to enable her to

get compensation on account of death of her father irrespective of the question

whether the daughter was dependent on the victim or not simply because of her

being a legal representative”. The question was answered in the negative since

from the evidence it appeared that the victim was not living with the daughter

but with her maternal uncle. The evidence on record also indicated that the

claimant was not dependent on the victim and, therefore, could not also claim

compensation for loss of association. Before dismissing the appeal, the Bench

made the following observation.

“12. So far as Section 140 of the MV Act is concerned, the rigour of proof
of liability may be exempted but it is not free from the question of
determining the entitlement and dependency. The principle on which
compensation under
Section 140 of the MV Act 1988 is to be granted is
one and the same for the purpose of determining the entitlement”.

34. Reading the decision in Manjuri Bera (supra) in between the lines, it appears that

the Supreme Court approved the distinction drawn in the impugned decision of

this Court correctly between “right to apply for compensation” and “entitlement

to compensation”. It was also held that if a legal representative who is not a

dependent of the victim files an application for compensation, the quantum

cannot be less than the liability referable to section 140 of the 1988 Act. The

Division Bench of this Court was also held to be right in holding that even a

married daughter is a legal representative and she is certainly entitled to claim

the compensation [per Hon’ble Dr. Arijit Pasayat, J. (as His Lordship then was)].
35. In Mrs. Hafizun Begum (supra), acceptability of claim for grant of compensation

when the relatives are legal heirs but not dependants of the deceased was the

question that arose for decision before the Supreme Court. For the reasons

assigned in the decision, the Supreme Court remitted the basic issue to be dealt

with by the high court in the light of the decision in Manjuri Bera (supra).

However it was held that the tribunal has a duty to make an award, determine

the amount of compensation which is just and proper and specify the person or

persons to whom such compensation would be paid. Considering the provisions

of section 2(11) of the CPC as well as the decision in Gujarat State Road

Transport Corporation (supra) it was held that the right to file a claim application

has to be considered in the background of right to entitlement.

36. Mr. Singh seems to be right in his contention that a sister who is not dependent

on her deceased brother’s income, is not entitled as claimant to any amount

under general damages. But the matter does not end here.

37. Section 168 of the Act does speak about just compensation but throws no light

on how just compensation ought to be worked out. The Second Schedule to the

Act, which is applicable in respect of claim applications under section 163-A of

the Act, inter alia, sheds light on how compensation is to be worked out for a

non-earning person as well as provides the amount to be awarded on account of

loss of consortium, loss of estate and funeral expenses. In various cases, such

figures have been taken as a guide despite the Supreme Court in a number of
decisions having declared that the Second Schedule, by passage of time, has

become unworkable.

38. While the judgment on the appeal was reserved, we came across the decision of

the Constitution Bench of the Supreme Court dated October 31, 2017 in Special

Leave Petition (Civil) No. 25590 of 2014 (National Insurance Company Ltd. v.

Pranay Sethi). In paragraph 61 it has, inter alia, been held as follows:

“61. In view of the aforesaid analysis, we proceed to record our
conclusions:-
***

(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.

*****

(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.”

The departure from the Second Schedule is, thus, clear as crystal. Insofar as

applications under Section 166 of the 1988 Act are concerned, there is no

indication regarding quantum that could be awarded under the heads of “loss of

estate”, “loss of consortium” and “funeral expenses”. At this level, we may only
observe that the archaic Second Schedule being applicable only to applications

filed under Section 163-A of the 1988 Act rightly did not influence the decision

making process of the Court and sub-paragraphs (iii), (iv) and (viii) of paragraph

61 (supra) would henceforth guide all tribunals/courts while dealing with

applications under Section 166 of the 1988 Act.

39. If indeed the first respondent is held entitled only to compensation for loss of

estate, she would receive a paltry sum of Rs.15,000/- + 10% (for lapse of more

than 3 years since the application was presented) in terms of the decision in

Pranay Sethi (supra) and interest, and not the handsome figure of

Rs.1,22,62,015/- that the tribunal awarded in her favour. Even if the original

claimant had applied under Section 140 of the 1988 Act and passed away during

its pendency, the first respondent could have laid claim on Rs.50,000/- but not

more. This is so, because the decision in Manjuri Bera (supra) says that the

quantum of compensation payable to an applicant for compensation, who is a

legal representative of the victim but not his dependent, cannot be less than the

liability referable to section 140 of the Act.

40. The decision of the coordinate Bench in Sarama Das (supra) in a not too identical

matter, placed before us by Mr. Mondal, seemingly answers the issue. The easy

route would have been to draw support from such decision and decide the appeal

in favour of the first respondent. However, for reasons that follow, we have not

been able to persuade ourselves to be ad idem with such decision. Since the

status of the respective claimants before the relevant tribunals were different, we
also do not consider it necessary to refer the issue for a decision by a larger

Bench.

41. We are in complete agreement with Mr. Mukherjee that the decision in Sarama

Das (supra) proceeded on the premise that the decision in Manjuri Bera (supra),

rendered in proceedings originating from an application under Section 140 of the

1988 Act, was also equally applicable to proceedings under Section 166 thereof.

With utmost respect for the members of the coordinate Bench that decided

Sarama Das (supra), we have no option but to disagree and express that the view

taken therein may not be the correct view.

42. Bearing in mind the other limb of Mr. Mukherjee’s submissions, we intend to put

a quietus to the matter at our end and proceed accordingly.

43. The unfortunate accident leading to premature death of the deceased occurred in

April 2011. Till date a little less than seven years have passed by. The facts of the

present case reveal that it was an heir of the deceased lodging the claim for

compensation under Section 166 of the 1988 Act and not a mere legal

representative. The very fact that the heir of the deceased presenting the

application under Section 166 of the 1988 Act passed away during pendency of

the proceedings before the tribunal, and it was not a case where a non-

dependent heir/representative had moved the tribunal made us think twice. The

point raised by Mr. Mukherjee that the first respondent was entitled to

compensation even under general damages having lost her only brother, in our

opinion, could not totally be lost sight of.

44. It is at such stage that we considered it necessary to look into the orders passed

by the tribunal from time to time. Having perused the order sheets provided to

us, at our request, by the office of the tribunal containing the orders passed by

the tribunal on the claim application, we propose to view the issue from an

entirely different perspective.

45. We narrate below briefly the relevant dates and the events transpiring in course

of the proceedings before the tribunal, as evident therefrom. Order no.1 dated

December 6, 2013 of the District Judge, 24 Parganas (South) directed

registration of the claim application and transfer of the case record to an

Additional District Judge mentioned therein. On February 1, 2014, the appellant

entered appearance and sought for time to file written statement. The tribunal

fixed March 5, 2014 for such purpose, accepting the prayer of the appellant. The

appellant prayed for further time on March 5, 2014 to file written statement. The

prayer was considered and allowed and April 16, 2014 was fixed for such

purpose. On that date, the tribunal found that written statement had not been

filed by the appellant and, accordingly, extended time till May 5, 2014 as last

chance. On May 5, 2014, the appellant took no step and written statement was

not filed by it. Perceiving that the appellant was not interested to contest the

claim application, June 20, 2014 was fixed for ex parte hearing. Examination-in-

chief on affidavit of the PWs 1 and 2 were received by the tribunal on June 20,

2014 and upon examination they were discharged. Documents were marked

exhibits. The tribunal fixed August 14, 2014 as the next date for further

evidence. Then, on August 14, 2014, the appellant filed a show cause petition
along with a written statement praying for vacating the claim petition from ex

parte board on the grounds stated therein. Learned advocate for the original

claimant did not oppose the prayer of the appellant and, accordingly, the order

for ex parte hearing was vacated, the written statement of the appellant was

accepted and November 12, 2014 was fixed for framing of issues. On November

12, 2014, although the original claimant was represented by his learned

advocate, none appeared for the appellant and December 12, 2014 was fixed for

framing of issues. Ultimately, on December 12, 2014, issues were framed in the

presence of the learned advocates for the parties and January 5, 2015 was fixed

for peremptory hearing. On January 5, 2015, the original claimant, as PW-1, was

further examined in-chief. The other witness, PW-2 was also cross-examined and

discharged. An application under section 170 of the Act having been filed by the

appellant, the same was allowed noting that the owner of the offending vehicle

had filed the written statement on March 5, 2014 but subsequently did not

contest the application. The claim application was fixed for further consideration

on February 25, 2015. It, however, requires to be noted that the order dated

March 5, 2014 does not record that the owner of the offending vehicle had filed

his written statement. On February 25, 2015 and May 25, 2015, due to cease

work call given by the local bar association, proceedings could not be conducted.

Prayers were made by the original claimant for issue of summons to witnesses,

which stood allowed by orders dated July 9, 2015 and August 20, 2015. Again on

September 2, 2015, due to resolution of the local bar association not to pass any

adverse order, hearing was adjourned till December 9, 2015 for the ends of
justice. On December 9 and 14, 2015, PW-3 and PW-4, respectively, were

examined and cross-examined in full and discharged. Upon a prayer of the

original claimant for issue of summons upon witnesses being allowed by an order

dated February 18, 2016, PW-5 was examined in part and March 9, 2016 was

fixed for his further examination. On that date, PW-5 was examined in full and

cross-examined in part and April 7, 2016 was fixed for his further cross-

examination. Cross-examination of PW-5 concluded on April 7, 2016 and PW-6

was examined and cross-examined in full and discharged on the following date.

On April 15, 2016, prayer made by the original claimant for issue of summons

upon witnesses was allowed. On May 17, 2016, PW-7 was examined and cross-

examined in full and discharged and June 24, 2016 was fixed for further

evidence of the prosecution witnesses. On June 24, 2016, PW-8 was examined

and cross-examined in full and discharged and August 10 and 11, 2016 were

fixed for evidence of the opposite parties in the claim application. The presiding

officer of the tribunal was absent on August 10, 2016 and the original claimant

also did not take any step. The appellant was, however, represented by his

learned advocate. For the ends of justice, hearing of the claim application was

adjourned till August 11, 2016 for evidence of the opposite parties. On that date

too, no step was taken on behalf of the original claimant. In the presence of the

learned advocate for the appellant, November 8, 2016 was fixed for evidence of

the opposite parties. The reason behind the original claimant not taking any step

was obviously because he had passed away on August 7, 2016. The presiding

officer having been transferred, the claim application was placed before the
presiding officer in-charge. An application under Order XXII Rule 3 read with

Order VI Rule 17 of the CPC was filed by the first respondent together with fresh

vakalatnama in favour of her learned advocate. On the prayer of the first

respondent, hearing of the application filed by her was adjourned till December

7, 2016. On that date, the application under Order XXII Rule 3 CPC read with

Order VI Rule 17 thereof filed by the first respondent was considered. Learned

advocate for the appellant did not raise any objection. Upon hearing the parties

and looking into the death certificate of the original claimant and the other

materials on record, the tribunal was of the view that the application had been

filed within time and the same was allowed on consent. Since the case was

running for ‘the evidence of O.P.W.’, January 5, 2017 was fixed for evidence. On

that date, the first respondent filed a petition and prayed that she should be

allowed opportunity to adduce evidence on her behalf. In view of such petition,

the case was shifted back for evidence of the first respondent. She was examined

and cross-examined in full and discharged. After close of evidence of the first

respondent, the tribunal granted opportunity to the appellant to adduce

evidence. It was submitted that the appellant does not wish to adduce any

evidence. Evidence of the appellant was closed in view of such submission and

January 17, 2017 was fixed for argument. Arguments were heard on January 17,

2017 and the judgment and award passed on January 27, 2017.

46. Prior to the original claimant passing away on August 7, 2016, 8 (eight)

witnesses had tendered evidence in support of the claim for compensation and by

the order dated June 24, 2016, the tribunal had fixed August 10 and 11, 2016
for evidence of the opposite parties in the claim application. Ultimately, it turned

out that the original claimant passed away but the appellant did not adduce any

evidence and the award was made by the tribunal considering the evidence

adduced by the original claimant, both oral and documentary.

47. It would appear from the sequence of events captured in paragraph 45 that the

original claimant had approached the tribunal nearly 2 (two) years after his son’s

death [there being no period of limitation in the 1988 Act, but within 3 (three)

years being the period of limitation for instituting a money suit] and, thereafter,

the proceedings before the tribunal were procrastinated for more reason than

one. Apart from the slightly belated approach, which might have been caused

because of the shock and trauma arising out of the death of his only son followed

by the death of the original claimant’s spouse, none of the reasons for such

procrastination is apparently attributable to the original claimant. He had done

what was required of him after the claim application was filed. It was the tribunal

that granted the appellant three opportunities to file written statement, which it

did not avail of. The claim application was put on ex parte board, whereafter on

the prayer of the appellant the order for ex parte hearing was vacated and that

too, because the original claimant did not object. It is, therefore, clear that the

original claimant did not wish to end up having a virtual walkover. After the

written statement was filed, on a few occasions, the claim application could not

be heard either due to cease work call given by the local bar association or

because of the presiding officer not being available. By the time the original
claimant passed away, the evidence of all his witnesses were over. We do

consider these circumstances to be of vital importance for deciding the appeal.

48. The award of Rs.1,22,62,015/- has not been questioned by Mr. Singh on the

ground that the calculation is erroneous; on the other hand, it has been asserted

by him that the first respondent not being a dependent of the deceased the

amount of compensation assessed by the tribunal is a bonanza for her and would

bring about windfall gains for her. This contention gives rise to a clear

impression that had the original claimant been alive at least till arguments were

over and thereafter the tribunal had awarded the sum of Rs.1,22,62,015/-, the

appellant would have no cause for grievance. If he had been alive, the original

claimant would have been entitled to whatever he could legitimately claim as on

date the claim application was presented. We repeat, this was not a case where a

non-dependant legal representative had approached the tribunal; on the other

hand, it was a dependent septuagenarian father as heir of the deceased who was

the claimant. If he had passed away immediately after arguments were closed,

the first respondent would have been entitled to the awarded amount of

compensation as the sole surviving heir of the original claimant. Possibly, the

appellant may not have valid reason to dispute her claim even if such situation

had occurred. It is only because of death preceding closure of arguments that the

first respondent’s claim to compensation is being contested. In our view, while it

is true that compensation awarded under section 168 of the 1988 Act cannot be

a bonanza for dependents of victims of motor accidents, we wonder whether the

death of a claimant could be used by an insurer as a lover to secure a windfall
gain for it or, in other words, the death of the claimant could come as a bonanza

for it. We do not consider the law to be so. The law must be applicable alike to all

the parties, in a situation of the present nature. If we permit an insurer to evade

its contractual liability first by taking clear advantage of its own acts of

omission/commission during the proceedings before the tribunal and secondly

for other reasons for which the tribunal could not decide the claim application

expeditiously, the inevitable casualty in such a case would be justice. We are

inclined to the view that no party to a judicial proceeding ought to be allowed to

reap the benefit of delay caused by it in conclusion of proceeding against his

adversary. If substantial justice were to be dispensed between the parties, for

which the courts of law exist, the approach suggested by Mr. Singh must

obviously take a back seat.

49. Although Mr. Singh has argued by reference to Rules 342 and 343 of the 1989

Rules to contend that substitution is not permissible, we are not impressed by

his argument. Clause (c) of rule 343, in our view defeats the argument of Mr.

Singh. For facility of appreciation, rule 343 is quoted below:

“343 Procedure to be followed by Claims Tribunal in holding enquiries.

The following provisions of the Code of Civil Procedure, 1908 (….of 1908) as
subsequently amended, shall, so far as may be, apply to the proceedings
before every Claims Tribunal, namely:-

(a) sections 28, 79 and 82;

(b) in the First Schedule order V rules 9 to 13 (both inclusive) and 15 to 30
(both inclusive); order VI, rule 4, 5,7,10,11,16,17 and 18 and order VII,
rule 10; order VIII, rules 2 to 5 (both inclusive), 9 and 10; order IX;
order XI, rules 12 to 15 (both inclusive) 17 to 21 (both inclusive) and 23;
order XII rules 1, 2, 3A, 4, 7 9;order XIII rules 3 to 10 (both inclusive);
order XIV, rules 2 and 5; order XVI; order XVII; order XVIII rules 1 to 3
(both inclusive); 10 to 12 (both inclusive) and 15 to 18 (both inclusive);
order XX, rules 1 to 3 (both inclusive), 8,11, and 20; order XXIII rules 1
to 3 (both inclusive) order XXIV; order XXVI, rules 1 to 8 (both inclusive)
and 15 to 18 (both inclusive); order XXVIII; order XXIX; order XXX,
rules 1 to 3 (both inclusive) order XXXII, rules 1 to 15 (both inclusive)
order XXXVII, rules 1 to 7 (both inclusive) ;

(c) in so far as the Act and these rules make no provisions, those of the
Code of Civil Procedure, 1908 (5 of 1908) as subsequently amended,
shall, so far as may be, apply to the proceedings before the Claims
Tribunal.”

50. The first respondent having been substituted in the claim application as the

claimant, in terms of the provisions of the CPC, there is no reason as to why she

should be disentitled to the relief which the original claimant could have asked

for and be satisfied with only compensation for loss of estate, as contended by

Mr. Singh.

51. It is true that compensation for loss of love, affection and guidance that could

have been showered by an elder (who dies in a motor vehicular accident) on the

members of his family is not expressly provided for in the 1988 Act; however, at

the same time, it must be remembered that Section 168 of the 1988 speaks of

just compensation on facts and in the circumstances of a given case and not a

specified amount under different heads, as one would find in the Second

Schedule of the Act. Although compensation for loss of estate, loss of consortium

and funeral expenses have been standardized in Pranay Sethi (supra), just

compensation must be “just” in the facts of the case before the tribunal/court

and not any arbitrary or fanciful amount without having any nexus to the extent

of loss suffered by the members of the deceased’s family. To a sister, loss of her
only brother is immeasurable. It is the brother who would always be there when

the sister needs him, the brother would be the person who would pick her up if

she were to trip and fall, it would be the brother’s shoulder on which she could

assuredly rest on faced with turmoil in her life and so on so forth. Since the 1988

Act does not specifically provide how compensation in such a case is to be

assessed, is it for the tribunals/court to fold hands and decline relief? We think

not. Chapter XII of the 1988 Act is a beneficent legislation and Section 168

thereof has left the matter of assessment of compensation to the discretion of the

tribunal/courts. Of course, care and caution have to be exercised while assessing

compensation; but it would tantamount to frustrating the purpose of

compensation if no amount were awarded under any particular head on the

specious ground that the 1988 Act does not provide for it. If indeed such logic

were to be accepted, no amount could also be awarded for future prospects, or

under ‘non-pecuniary’ heads since the same is traceable only in the Second

Schedule which is not applicable for applications under Section 166 of the 1988

Act. We, thus, hold that the issue has to be answered in the light of the peculiar

facts noticed above.

52. Having given our anxious consideration to the facts of the case, we are inclined

to the view that in modification of the award of Rs.1,22,62,015/-, an award of

Rs.50,00,000/- would serve the ends of justice. We order accordingly. In addition

thereto, the said amount shall carry simple interest @ 6% per annum from the

date of filing of the claim application before the tribunal.

53. The appellant-insurer shall deposit Rs.50,00,000/- + interest as aforesaid in the

office of the tribunal as early as possible but not beyond 60 (sixty) days from date

of receipt of a certified copy of this judgment and order, failing which the first

respondent shall be at liberty to initiate proceedings for execution before the

tribunal for realization of the sum awarded as compensation by it.

54. The appeal and the connected application, thus, stands disposed of without

costs.

55. The appellant shall, however, be entitled to be refunded of Rs.25000/- deposited

in terms of section 173 (1) of the 1988 Act.

Urgent photostat certified copy of this judgment and order, if applied, may be

furnished to the applicant at an early date.

(DIPANKAR DATTA, J.)

DEBI PROSAD DEY, J.

I agree.

(DEBI PROSAD DEY, J.)

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