Gauhati High Court
Lakshi Das vs Gyanendra Dev Tripathi And Anr on 30 January, 2023
Page No.# 1/17
GAHC010215582022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Cont.Cas(C)/595/2022
LAKSHI DAS
W/O- LT. NANDA DAS, R/O- VILL- JALJALI, HOWLY TOWN NO.2, P.O. AND
P.S. HOWLY, DIST.- BARPETA, ASSAM, PIN- 781316
VERSUS
GYANENDRA DEV TRIPATHI AND ANR
I.A.S., COMM. AND SECY. TO THE GOVT. OF ASSAM, REVENUE (RELIEF
AND REHABILITATION BRANCH) AND DISASTER MANAGEMENT DEPTT.,
DISPUR, GHY-06
2:MASANDA MAGDALIN PERTIN
IAS
THE DY. COMMISSIONER OF BAKSA
ASSAM
P.O. AND P.S. BAKSA
PIN- 78136
Advocate for the Petitioner : MR. R Deka
Advocate for the Respondent :
Linked Case : WP(C)/2595/2021
LILIMA KALITA
W/O LATE ANANDA KALITA
RESIDENT OF VILLAGE KENDUKUCHI
PO BARKHANAJAN
Page No.# 2/17
PS NALBARI
ASSAM
781337
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPARTMENT (RELIEF AND
REHABILATION BRANCH) DISPUR GUWAHATI 781006
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM FINANCE DEPARTMENT
DISPUR GUWAHATI 781006
3:THE DEPUTY COMMISSIONER OF NALBARI
ASSAM
PO AND PS NALBARI
ASSAM
781335
4:THE CIRCLE OFFICER
NALBARI REVENUE CIRCLE OFFICE
PALLA ROAD
PO AND PS NALBARI
ASSAM 781335
5:THE OFFICER IN CHARGE
NALBARI POLICE STATION
NALBARI ASSAM 781335
------------
Advocate for : MR. R Deka
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : WP(C)/6937/2022
ANU MAHANTA
W/O. LT. JAYANTA KR. MAHANTA
R/O. VILL. DHULIA GAON
P.O. MORANGI
P.S. GOLAGHAT
DIST. GOLAGHAT
ASSAM
PIN-785621.
Page No.# 3/17
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPTT.
(RELIEF AND REHABILITATION BRANCH)
DISPUR
GUWAHATI-781006.
2:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI-781006.
3:THE DEPUTY COMMISSIONER OF GOLAGHAT
ASSAM
PIN-785621.
4:THE CIRCLE OFFICER
MORANGI REVENUE CIRCLE OFFICE
P.O. MORANGI
P.S. GOLAGHAT
DIST. GOLAGHAT
ASSAM
PIN-785621.
5:THE OFFICER IN CHARGE
GOLAGHAT POLICE STATION
DIST. GOLAGHAT
ASSAM
PIN-785621.
------------
Advocate for : MR. R Deka
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : Cont.Cas(C)/600/2022
ABDUR RAHMAN
S/O- LATE BADDU MIAH @ BADUR
R/O- VILL. AND P.O. CHOWPUR
P.S. KALGACHIA
DIST. BARPETA
Page No.# 4/17
ASSAM
PIN- 781319.
VERSUS
GYANENDRA DEV TRIPATHI AND ANR
COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
REVENUE (RELIEF AND REHABILITATION BRANCH) AND DISASTER
MANAGEMENT DEPARTMENT
DISPUR
GUWAHATI-06.
2:AYUSH GARG
DEPUTY COMMISSIONER OF BARPETA
ASSAM
P.O. AND P.S. BARPETA
PIN- 781314.
------------
Advocate for : MR. R Deka
Advocate for : appearing for GYANENDRA DEV TRIPATHI AND ANR
Linked Case : WP(C)/6923/2022
DHARMENDRA DAS AND 3 ORS
S/O- LATE BOGIRAM DAS
RESIDENT OF VILL- BRAHMAJAN DANI GAON
P.O.- BRAHMAJAN
P.S.- GOHPUR
DIST.- BISWANATH
ASSAM
PIN- 784172.
2: SMTI. SHEWALI DAS
W/O- DHARMENDRA DAS
RESIDENT OF VILL- BRAHMAJAN DANI GAON
P.O.- BRAHMAJAN
P.S.- GOHPUR
Page No.# 5/17
DIST.- BISWANATH
ASSAM
PIN- 784172.
3: BIRAJ DAS
S/O- DHARMENDRA DAS
RESIDENT OF VILL- BRAHMAJAN DANI GAON
P.O.- BRAHMAJAN
P.S.- GOHPUR
DIST.- BISWANATH
ASSAM
PIN- 784172.
(AS PETITIONER NO. 3 IS MINOR
THEREFORE IS REPRESENTED BY THE PETITIONER NO. 1 AS NATURAL
GUARDIAN).
4: KIREP DAS
S/O- DHARMENDRA DAS
RESIDENT OF VILL- BRAHMAJAN DANI GAON
P.O.- BRAHMAJAN
P.S.- GOHPUR
DIST.- BISWANATH
ASSAM
PIN- 784172.
(AS PETITIONER NO. 4 IS MINOR
THEREFORE IS REPRESENTED BY THE PETITIONER NO. 1 AS NATURAL
GUARDIAN).
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
REVENUE AND DISASTER MANAGEMENT DEPARTMENT
(RELIEF AND REHABILITATION BRANCH)
Page No.# 6/17
DISPUR
GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE DEPUTY COMMISSIONER
BISWANATH
ASSAM
PIN- 784176.
4:THE CIRCLE OFFICER
HALEM REVENUE CIRCLE OFFICE
P.O.- HALEM
P.S.- GOHPUR
DIST.- BISWANATH
ASSAM
PIN- 784176.
5:THE OFFICER-IN-CHARGE
GOHPUR POLICE STATION
DIST.- BISWANATH
ASSAM
PIN- 784176.
------------
Advocate for : MR. R Deka
Advocate for : SC
REVENUE appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : Cont.Cas(C)/592/2022
ANITA DAS
W/O LATE DIGANTA DAS
R/O VILL- ARABARI BORKHAT GAON
P.O. AND P.S.-SONAPUR
DIST- KAMRUP (M)
ASSAM
PIN-782402
VERSUS
GYANENDRA DEV TRIPATHI
I.A.S. AND ANR
COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM
Page No.# 7/17
REVENUE (RELIEF AND REHABILITATION BRANCH) AND DISASTER
MANAGEMENT DEPARTMENT
DISPUR
GUWAHATI-06
2:PALLAV GOPAL JHA
I.A.S.
DEPUTY COMMISSIONER OF KAMRUP (METRO) AT GUWAHATI
LICHUBAGAN
HENGRABARI
PIN-781036
------------
Advocate for : MR. R Deka
Advocate for : appearing for GYANENDRA DEV TRIPATHI
I.A.S. AND ANR
Linked Case : WP(C)/6920/2022
CHAMPA BAISHYA AND 2 ORS
W/O. LT. NANDESWAR BAISHYA
2: ARNABJAN BAISHYA
S/O. LT. NANDESWAR BAISHYA
3: NIKHIL BAISHYA
S/O. LT. NANDESWAR BAISHYA
ALL ARE R/O. HOUSE NO. 13 B
BIDYA NAGAR PATH
BAGHARBARI
P.O. PANJABARI
P.S. SATGAON
GUWAHATI
DIST. KAMRUP (M)
ASSAM
PIN-781037.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
REVENUE (RELIEF AND REHABILITATION) AND DISASTER MANAGEMENT
DEPTT.
DISPUR
GUWAHATI-781006.
2:THE COMMISSIONER AND SECY.
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
Page No.# 8/17
DISPUR
GUWAHATI-06.
3:THE DEPUTY COMMISSIONER OF KAMRUP (M) AT GUWAHATI
LICHUBAGAN
HENGRABARI
PIN-781036.
4:THE CIRCLE OFFICER
DISPUR REVENUE CIRCLE
P.O. BELTOLA
P.S. BASISTHA
DIST. KAMRUP (M)
ASSAM
PIN-781028.
5:THE OFFICER IN CHARGE
DISPUR POLICE STATION
P.O. DISPUR
DIST. KAMRUP (M)
ASSAM
PIN-781006.
------------
Advocate for : MR. R Deka
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 30-01-2023
JUDGMENT & ORDER (ORAL)
Heard Mr. SI Akand, learned counsel for the petitioners, Mr. D Nath, learned
Senior Government Advocate for the respondents in the various departments of
the State of Assam and Mr. R Borpujari, learned counsel for the respondents in
the Revenue and Disaster Management Department of the Government of
Assam as well as the Finance Department of the Government of Assam.
2. Cont.Cas(C) No. 595/2022 has been instituted alleging wilful and
deliberate violation of the order of the Court dated 25.08.2021 in WP(C) No.
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4147/2021. The petitioner Smti Lakshi Das had instituted WP(C) No. 4147/2021
claiming for ex-gratia payment on the death caused to her husband in a motor
accident on 30.11.2018. The petitioner claimed that as per the Government
Notification No. RR.33/2014/66 dated 15.11.2014 of the Revenue and Disaster
Management Department of the Government of Assam, there is an entitlement
to an ex-gratia payment.
3. Clause-3 of the said notification inter-alia provides for an ex-gratia
payment of Rs. 2, 00, 000/- to the next of kin of persons killed due to accident
in public places or in public carriers (other than those killed by extremist/
terrorist/miscreants and due to the firing of security forces).
4. An issue came up in WP(C) No. 2100/2019 on the question as to whether
a person killed in a motor accident simpliciter would also be entitled to the ex-
gratia payment of Rs. 2, 00, 000/- as provided in the notification dated
15.11.2014. By the judgment dated 04.05.2019, it was inter-alia held that a
motor accident simpliciter would also be an accident in a public place and
accordingly by giving the said interpretation, it was held that the amount of Rs.
2, 00, 000/- provided in the notification dated 15.11.2014 would also be
applicable and payable by the State authorities in the Revenue and Disaster
Management Department to the next of kin of a person, who may have been
killed in a motor accident.
5. In the said judgment dated 04.05.2019, it was also provided that the
provisions of the notification dated 15.11.2014 is a beneficial provision and
therefore, it is required to be given a liberal and wide interpretation. In the
judgment dated 04.05.2019 in WP(C) No. 2100/2019, it was further provided
that a relief of ex-gratia payment provided in the notification dated 15.11.2014
is a relief in addition to the compensation which the next of kin of a person
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killed due to a motor accident would be entitled under the law of Tort as
recognized by various statutes including the Motor Vehicles Act, 1988 (in short
Act of 1988).
6. In the circumstance, by the order dated 25.08.2021 in WP(C) No.
4147/2021, a direction was issued to the respondent No. 2 therein namely the
Deputy Commissioner, Baksa to examine the claim of the petitioner Smti Lakshi
Das for ex-gratia payment of Rs. 2, 00, 000/- pursuant to the notification dated
15.11.2014. On an alleged wilful and deliberate violation of the said direction in
the order dated 25.08.2021, contempt petition No. 595/2022 is instituted.
7. Similarly, Cont.Cas(C) No. 592/2022 is instituted on an alleged wilful and
deliberate violation of the order dated 16.06.2022 in WP(C) No. 4905/2021 and
Cont.Cas(C) No. 600/2022 is instituted alleging wilful and deliberate violation of
the order dated 06.09.2021 in WP(C) No. 3603/2020. Both the orders dated
06.09.2021 and 16.06.2022 also pertain to a direction to the respondents
therein for payment of the ex-gratia payment of Rs. 2, 00, 000/- on account of
death of the next of kin of the persons claiming the ex-gratia payment due to a
motor accident.
8. WP(C) No. 2595/2021, WP(C) No. 6920/2022, WP(C) No. 6923/2022 and
WP(C) No. 6937/2022 are also individual writ petitions filed by the next of kin of
a person who was killed in the respective motor accidents for the payment of
ex-gratia amount of Rs. 2, 00, 000/- respectively.
9. The provisions of the notification dated 15.11.2014 read with the
judgment of this Court dated 04.05.2019 in WP(C) No. 2100/2019 makes it
discernible that the next of kin of a person who was killed in a motor accident
would be entitled to the payment of an ex-gratia amount of Rs. 2, 00, 000/- and
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such payment of ex-gratia would be over and above that such person may be
entitled as a compensation under any other law including the provisions of the
Act of 1988.
10. The only consideration that the respondent authorities are required to
undertake upon such claim for ex-gratia payment being made on account of
death caused to a person in a motor accident is-
(i) Whether the accident as per the records had actually taken place;
(ii) Whether the person for whose death the ex-gratia is claimed was
actually involved in such motor accident and due to such accident death
was caused to the person concerned;
(iii) Whether the person claiming ex-gratia is in fact the next of kin of the
person who had died in the motor accident and the person concerned is
otherwise entitled to the payment to the exclusion of all others, who also
may have similar claim, in other words, there has to be a determination
on the class of legal heirs of the deceased who may have made the
claim; and
(iv) Whether the payment of ex-gratia in respect of the death caused to
the person concerned in a motor accident had not been earlier claimed
and paid to any other person.
Upon determination by the authorities, if the aforesaid four conditions are
held to be in favour of the claimant, we see no reason why under the law, the
ex-gratia payment of Rs. 2, 00, 000/- would not be paid to the person claiming
such ex-gratia. If for any reason the authorities are of the view that the person
claiming for the ex-gratia payment would not be entitled to such payment
because of not satisfying any of the four conditions, or any other conditions as
may be applicable, it is for the authorities to pass a reasoned order on the same
indicating the result of such examination.
11. The authorities in the Revenue and Disaster Management Department of
Page No.# 12/17
the Government of Assam as well as the Finance Department have raised an
issue as to whether the amount of ex-gratia, which has been already held to be
a payment in addition to or over and above the payment of compensation in
case of a death or injury in motor accident, would be payable in view of the
provisions of section 163 of the Act of 1988, which inter-alia provides that the
payment of compensation in respect of death or of grievous hurt to any person
under section 161 of the Act of 1988 i.e. for payment of Rs. 2, 00, 000/- as a
statutory amount in respect of any hit and run case, would have to be refunded
back to the insurer, if any such compensation had already been paid either
under the provisions of the Act of 1988 or any other law or otherwise. In other
words, according to the Revenue and Disaster Management Department of the
Government of Assam, the provisions of Section 163 of the Act of 1988 makes
the provision in the judgment dated 04.05.2019 in WP(C) No. 2100/2019 that
the amount of ex-gratia payment is paid over and above any other
compensation under the law, to be redundant inasmuch as, the said amount has
to be returned back by the beneficiary to the insurer upon a determination of
any compensation either under section 161 of the Motor Vehicles Act, 1988 or
under any other provisions as stated therein. Section 163(1) of the Act of 1988
is extracted as below:-
"(1) The payment of compensation in respect of the death of, or grievous
hurt to, any person under section 161 shall be subject to the condition
that if any compensation (hereafter in this sub-section referred to as the
other compensation) or other amount in lieu of or by way of satisfaction
of a claim for compensation is awarded or paid in respect of such death
or grievous hurt under any other provisions of this Act or any other law
for the time being in force or otherwise, so much of the other
compensation or such other amount aforesaid is equal to the
compensation paid under section 161, shall be refunded to the insurer."
12. The provision of section 163(1) of the Act of 1988 provides that whenever
Page No.# 13/17
payment of compensation is awarded or paid in respect of such death or
grievous injury in respect of a motor accident under any other provision of the
Act of 1988 or any other law for the time being in force or otherwise, so much
of the other compensation or other amount as is equal to the compensation
paid under section 161 of the Act of 1988 shall be refunded to the insurer.
13. A reading of Section 163(1) makes it discernible that if any ex-gratia had
been paid in respect of a motor accident death or grievous injury either under
any other provision of the Act of 1988 or any other law for the time being in
force or otherwise, such amount has to be refunded back to the insurer by the
beneficiary upon a determination of the compensation under the Act of 1988. In
view of the provision of Section 163(1) of the Act of 1988, which provides that
any other compensation that may have been paid under the said Act itself or
under any other law or otherwise has to be refunded back to the insurer, we are
now required to examine as to whether the amount of ex-gratia paid by the
Revenue and Disaster Management Department of the Government of Assam
under the notification dated 15.11.2014 in respect of a death caused in a motor
accident is an amount paid by the authorities as a compensation.
14. In Black's Law Dictionary, the word ' compensation' is defined as
extracted:-
"Payment of damages, or any other act that a court orders to be done by
a person who has caused injury to another."
15. On the other hand, the expressions 'ex-gratia' and 'ex-gratia payment' are
defined as extracted:-
"Ex-gratia- As a favour, not legally necessary.
Ex-gratia payment- A payment not legally required; esp., an insurance
payment not required to be made under an insurance policy."
Page No.# 14/17
16. A reading of the meaning of the expression ' compensation' makes the
meaning explicit that compensation is a payment of damages or any other act
that a court orders to be done by a person who has caused injury to another. In
other words, it is a payment to compensate the damages or injury that a person
may cause to another meaning thereby that it is a payment under the necessity
of law.
17. When we refer to the expression 'compensation' appearing in the Motor
Vehicles Act, 1988, it has to be understood that due to a motor accident, some
damage or injury has been caused by one person to another and the law
requires the person causing the damage or injury to compensate the other,
which again under the law is undertaken by an insurance company to make the
payment on behalf of the person who caused the damage or injury, where it is
further provided that in the event of a hit and run case, where the person
causing the damage or injury would be unidentifiable, it is the State who
undertakes to make such payment on behalf of the person causing the damage
or injury. In other words, the entire concept of claiming the compensation either
under the Act of 1988 or any other law or otherwise is to pay for the damages
or injuries that one person may have caused to another person by means of a
motor accident.
18. But when we look into the notification dated 15.11.2014, it is discernible
that the notification itself is for providing an ex-gratia payment to the next of kin
of a person killed in an accident in the public place, which has also been
interpreted in the judgment dated 04.05.2019 in WP(C) No. 2100/2019 to also
include the death caused in a motor accident.
19. Ex-gratia payment under the law is a payment made as a favour in a
circumstance where there is no legal necessity to make any such payment. A
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payment by one person causing damage or injury to another person by means
of a compensation is a payment which is not made as a favour, but it is a
payment which is a legal necessity under the law whereas an ex-gratia payment
is a payment which is made as a favour and without any legal necessity.
20. On the basis of the contrasting legal meaning of the two different modes
of payment i.e. a payment as compensation and the payment as an ex-gratia,
we have to understand that a payment that may be made as an ex-gratia
simpliciter cannot be included to be within the concept of being a payment as
compensation.
21. In view of the above conclusion, we are of the view that the question that
has been raised as to whether the payment of ex-gratia to be made under the
notification dated 15.11.2014 has to be returned back to the insurer upon an
actual compensation being made under either the Act of 1988 or any other law
or otherwise, would have to be answered that the payment of ex-gratia which
admittedly is made as a favour and without any legal necessity would not have
to be returned either by the beneficiary or by the State authorities to the insurer
under section 163 (1) of the Act of 1988 upon an actual payment of
compensation being made to the victim of a motor accident in either under the
provisions of the Act of 1988 or under any other law or otherwise.
22. With the above clarification, a common direction is issued to the
respondents in all the matters under consideration in the present judgment i.e.
Cont.Cas(C) 595/2022, Cont.Cas(C) 592/2022, Cont.Cas(C) 600/2022, WP(C)
No. 2595/2021, WP(C) No. 6920/2022, WP(C) No. 6923/2022 and WP(C) No.
6937/2022 to examine the various claims of the respective petitioners and the
examination to be done by the respective Deputy Commissioners involved as to
whether the aforesaid four conditions indicated hereinabove, or any other
Page No.# 16/17
applicable condition, are satisfied in favour of the claimants and in the event the
conditions are satisfied, appropriate orders for payment of compensation may
be made and such orders may be honoured by the Revenue and Disaster
Management Department as well as the Finance Department for ensuring that
the actual payment is received by the person concerned and in the event any
such person do not satisfy either of the four conditions or any other applicable
condition, appropriate orders may be passed and the person concerned may be
informed accordingly.
23. For expediting the matter, we require the petitioners to make fresh
individual applications before the respective Deputy Commissioners. The Deputy
Commissioners shall within a period of two months of the respective
applications being received, consider and pass individual reasoned orders as
indicated above. If the order is against payment of ex-gratia, the person
concerned be duly informed and if it is in favour of such payment, the same be
transmitted to the Revenue and Disaster Management Department, who shall
within a period of another one month therefrom make the actual payment to
the respective beneficiaries.
24. The requirement of the Deputy Commissioners or any other authority
determining the eligibility of a claimant to be paid the ex-gratia amount to
strictly examine the satisfaction of the four conditions provided herein, more
particularly, the condition to examine whether the claimant is the most suitable
of the next of kin to the exclusion of others, i.e. whether the deceased had his
own family of wife and children, and if yes, why the compensation should be
paid to others without any no objection from them, be circulated amongst all
the Deputy Commissioners and other authorities who may determine the
eligibility of the ex-gratia amount, so that the appropriate determination is made
Page No.# 17/17
before disbursing any payment of ex-gratia. For the purpose, a copy of this
order be made available to Mr. D Nath, learned Senior Government Advocate for
adequate circulation to the above requirements to be made by the Deputy
Commissioner or the authority who may make the determination. Payment to
others can be given its consideration only upon a satisfaction that the deceased
did not have his wife or children, or in case of an unmarried person, his parents.
The requirement of such determination be strictly complied with by the Deputy
Commissioners and other authorities.
The contempt petitions as well as the writ petitions are allowed to the
extent as indicated above.
JUDGE
Comparing Assistant
