Bijoy Mukherjee & Anr vs Aswani Tewari & Anr
2023 Latest Caselaw 4177 Cal

                                    1


              IN THE HIGH COURT AT CALCUTTA
                   Civil Appellate Jurisdiction
Present: -     Hon'ble Mr. Justice Subhendu Samanta.
                     F.M.A No. - 2189 of 2016
                             With
         IA No. CAN 1 of 2016 (Old No. CAN 7493 of 2016)


                       IN THE MATTER OF

                       Bijoy Mukherjee & Anr .
                               Vs.
                          Aswani Tewari & Anr.



Mr. Ali Imam Shah, Adv.,

                                             ............... For the appellants.

 Mr. Saswata Bhattacherjee, Adv.,

                   ............For the Respondent no. 2- Insurance Company



Judgment on                    :        13.07.2023



Subhendu Samanta, J.

The instant appeal is preferred by the claimants against

the judgment of Learned MAC Tribunal, Judge, 2nd Court Suri

on 30th July of 2015 in MAC Case No. 76 of 2013 u/s 166 of

Motor Vehicles Act. The claimants are the brother and sisters

of deceased namely, Bijay Mukherjee who died in a road traffic

accident on 2nd of February, 2013. On the fateful day, the

deceased was going towards Barosal, Fakirpara by riding a

Motor Cycle from Munsuba petrol pump by NH 60, when he

reached near Kendia Kata at the time the offending vehicle

(Tata Truck) bearing No. WB 37-B/0023 which was driving in a

rash and negligent manner with excessive high speed dashed

the said victim as a result he received serious bleeding injuries

and was shifted to the hospital where he was declared dead.

The Insurance Company contested the claim case by filing

written statement. The claimants have produced three

witnesses before the Learned Tribunal but Insurance Company

has not produced any witness. After hearing the parties and

after perusing the evidences on record both oral and

documentary the learned Tribunal has allowed the claim case

in favour of the claimants but directed the opposite party No. 1

i.e. the owner of the offending Truck to pay the compensation

amounting to Rs. 10, 00,000/- on the ground that at the time

of accident the offending vehicle had no valid permit.

The claimants/appellants are before this court with the

ground that the impugned order passed by the Learned

Tribunal is erroneous. Learned Tribunal should have ordered

the Insurance Company to pay the amount of compensation

and the Insurance Company may have the liberty to recover

the same from the owner. The appellants also taken the ground

in appeal that the Learned Tribunal has committed error in

calculating the income of the deceased. PW 3 has deposed

before this court to prove the Income Tax return submitted by

the deceased prior to the accident but the Learned Tribunal

has not considered the same and came to an erroneous

finding. It is the further ground of the appellant that the

'Future Prospect' according to the law laid down by Hon'ble

Supreme Court in Pranay Sethi, need be allowed in favour of

the appellant.

Learned Advocate for the Insurance Company though

has not filed for cross appeal but submitted that the

assessment of income by the Learned Tribunal is erroneous.

The average income of the 04 (four) assessment years required

to be calculated.

The Insurance Company argued that the claimants being

the brother and sisters are not dependant of the deceased and

they are not entitled to get any compensation. They cannot

enjoy forum out of misfortune.

He further argued that from the fact of the case it would

be revealed that there was a face to face accident between two

vehicles. Thus, the victim has contributed the accidents. The

part of contribution of the victim need be apportioned from the

entire amount of compensation. He further argued that the

case of the claimants is quite unnatural, there is delay in

preferring the FIR. The seizure list of the police case arising out

of the accident, mentioned the offending vehicle (Truck) was

plying in the road without any valid permit. The owner has

entire knowledge about the expiry of permit; thus at this

juncture the Insurance Company is not liable to pay the

compensation.

Learned Advocate for the Insurance Company submitted

that there is no illegality in the impugned order.

Learned Advocate for the appellant in reply submitted

that the claimants are the legal representatives of the deceased

as defined u/s 166 of the M.V Act thus they are entitled to get

the compensation.

Heard the Learned Advocates, peruse the papers and

materials on record.

Admittedly the present petitioners are the brother and

sister of the deceased. The brother may have his separate

income and the married sister is not actually dependant upon

the income of the deceased. Let me consider the provisions of

Section 166 of M.V Act.

166. Application for compensation--- (1) An

application for compensation arising out of an accident of the

nature specified in sub- section (1) of section 165 be made --

(a)..............

(b)..............

(c) Where death has resulted from the accident, by all or

any of the legal representatives of the deceased; or

So an application for compensation is maintainable by

the legal representatives of the deceased. The term "legal

representative" is defined u/s 2 (11) of the Code of Civil

Procedure.

2. (11) "legal representative" means a person who in law

represents the estate of a deceased person, and includes any

person who intermeddles with the estate of the deceased and

where a party sues or is sued in a representative character the

person on whom the estate devolves on the death of the party

so suing or sued;

The deceased person is a Hindu, according to Hindu

Succession Act in absence of heirs mentioned in Class- I of the

schedule; the heirs mentioned in Class- II of the schedule shall

inherit the property of the Male Hindu. Section 11 of the Hindu

Succession Act provided the distribution of assessed between

the heirs mentioned in Classes of the Schedule. There are two

Entries in the Class- II wherein in the First Entry the father is

the only legal heir. In Second Entry sons daughter's son, son of

daughter's daughter, brother and sister is mentioned. These

heirs specified in Entry II of the Class-II of the schedule share

the property simultaneously and equally (Section 11).

According to Hindu Succession Act the brother and sister come

under the Entry II Class- II of the schedule to Hindu

Succession Act.

Admittedly in this case there no legal heirs of the

deceased mentioned in Class I of the schedule. The father of

the deceased is also not alive thus the brother and sister

simultaneously and jointly shall the property of the deceased.

Thus according to the provisions of law the present

appellants/petitioners are the legal heirs of the deceased.

Learned Advocate for the claimants has cited several

decisions regarding the view of the Hon'ble Apex Court as well

as the Hon'ble High Court regarding the legal heirs of a

claimant of a compensation case arising out of Section 166 of

Motor Vehicles Act. In Gujrat State Road Transport

Corporation Vs. Ramanbhai Prabhatbhai & Anr. The

Hon'ble Supreme court has held that the brother of a deceased

is entitled for compensation. In National Insurance Company

Limited Vs. Birender & Ors. Hon'ble Supreme court has also

observed that a major son having independent income is

entitled to get compensation due to the fateful accident of his

father. In N. Jayasree Vs. Cholamandalam M/S General

Insurance Company Limited. The Hon'ble Supreme Court has

held that the mother-in-law of a deceased is also a legal

representative in terms of a claim case initiated u/s 166 of

Motor Vehicles Act.

On perusing the observation of the Hon'ble Supreme

Court in the above mentioned cases, I am of a view that the

present petitioner being the brother and sister of the deceased

are legal heirs of the deceased and are entitled to get

compensation under the provisions of 166 of Motor Vehicles

Act.

To prove the income of the deceased Income Tax Return

of the deceased for the assessment year 2009-10, 2010-11, and

2011-12 was produced, there are exhibited by virtue of

deposition of PW 3. PW 3 is an Income Tax Officer who deposed

before this court that the income mentioned in the I.T return is

self assessment of assesse. Learned Tribunal has considered

the deposition of the PW 3 and on the basis of which Learned

Tribunal has rounded off the income of the deceased on the

basis of average and for the purpose of calculation the income

of the deceased assessed as Rs. 1,44,000/- per annum. I find

that the procedure adopted by the Learned Tribunal suffers no

illegality; the income of the deceases was his self assessed

income. Thus in absence of any particular prove the income of

the deceased, Learned Tribunal was correctly assessed it as Rs.

1,44,000/- per year.

Learned Advocate for the Insurance Company has raised

a plea that there are contributory negligence on the part of the

deceases as the accident was happened due to face to face

collision by two vehicles. The Insurance Company has not

produced any oral or documentary evidence to substantiate the

plea of contributory negligence. On the other hand the police

papers suggest the driver of the offending vehicle (Tata Truck)

was solely responsible for the accident. In absence of any proof

the plea of Insurance Company regarding contributory

negligence appears to me not justified.

It further appears that the alleged accident happened on

2nd of February 2013 and FIR of this case was registered on 8th

February 2013; there are 5/6 days of delay in preferring the

FIR. The cause of the delay was mentioned on the FIR as- the

delay is caused due to the 'Sradh' ceremony of the deceased. I

find no discrepancies or unreasonableness in such

explanation. In police papers the No. of the offending vehicle

was mentioned not correctly in same places. It was pointed out

that, in the seizure list the No. of the offending vehicle was

mentioned as WB 57 A 0023 but in the same seizure list the

RC Book was seized as Truck No. WB 37 B 0023. The

discrepancies in some portion of police papers regarding the

different No. of the offending vehicle is appears to me mere

typographical errors and such minor discrepancies is not fatal

for the claimant's case.

It is true that the permit of the offending vehicle was

seized by the police; wherefrom it appears on the day of

accident the offending vehicle had no valid permit to ply the

vehicle. Learned Tribunal observing this fact has directed

owner of the vehicle to pay the compensation. It is true that the

owner and the insurer had agreed on some terms and contract

for validity of the Insurance policy. The third party is not the

signatory of the contact hence the terms are not binding upon

him. The terms and contracts between the owners of the

insurer has no avenue to settle the claim of the third party

under the provisions of Motor Vehicles Act. The legislature has

enacted the provisions of Chapter- XI of the Motor Vehicles Act

for awarding compensation to the heirs of the third party

deceased. The claimant's i.e the heirs of the deceased shall not

put under harassment for getting compensation. This is welfare

legislation; this Act serves for the society. The manner of

awarding compensation to the claimants in the Motor Vehicles

Act has been discussed several time by the Hon'ble Apex Court.

In absence of permit the Insurance Company/Insurer may be

directed to pay the compensation to the claimants and the

Insurance Company at the same time has the opportunity to

recover it from the owner of the vehicle. In Baljit Kaur Vs.

State of Punjab (2003 ACJ 1800) and finally National

Insurance Company Limited Vs. Swaran Sing and Ors (AIR

2004 SC 1531). The Hon'ble Apex Court has held that the

"chapter xi of the Motor Vehicles Act, 1988 provide compulsory

Insurance of vehicles against third party risks is a social

welfare legislation regarding by compensation to victims of

accidents caused by used of Motor Vehicles. The provisions of

compulsory Insurance coverage of all vehicles are with this

paramount object and the provisions of the Act have to be so

interpreted to actuate the said object". Accordingly, the Hon'ble

Supreme Court has formulated that the Insurance Company is

liable to pay the compensation to victims of the accidents and

the Insurance Company may recover the amount of

compensation from the owner of the vehicle if there is a breach

of policy agreement. Considering the view of the Hon'ble Apex

Court it appears to me that the impugned award passed by the

Learned Tribunal need be modified.

The appeal is allowed.

In computing the compensation of this court the yearly income

of the deceased is taken to be Rs. 1,44,000/-. ½ of which is

deducted towards the personal expenses of the deceased thus

the yearly income comes to Rs. 72,000/- the deceased was self

employed and he is within the age group of 40 to 50 years.

Thus 25% of his established income should be added towards

the future prospects according to the law discussed by the

Hon'ble Supreme Court in Pranay Sethi. So after adding the

"future prospects" with the yearly dependency comes to Rs.

90,000/- applicable multiplier of this case is 13. Thus after

multiplying the multiplier, the award comes to Rs. 11,70,000/-

The appellants are also entitled to get the general damages of

Rs.- 70,000/- according to the direction of Hon'ble Supreme

Court passed in Pranay Sethi. Thus the award comes to Rs. -

(11,70,000 + 70,000) = Rs. 12,40,000

Insurance Company is directed to pay the compensation

along with 06% interest per annum from the date of filing of

the claim application.

The insurance Company is further directed to pay

compensation through the Learned Registrar General, High

Court, Calcutta within 08 weeks from this date.

The Insurance Company is at liberty to recover the

amount from the owner of the vehicle according to the law.

FMA is disposed.

All connected CRAN applications are also disposed.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept.

on usual terms and conditions.

(Subhendu Samanta, J.)