National Insurance Co. Ltd. Vs Saro Devi and Others

Guru Sharan Sharma, J.@mdashHeard the parties and with their consent this appeal is disposed of at the stage of hearing under Order XLI, Rule 11 of the Code of Civil Procedure.

2. In a motor accident on 25.9.1984, one Tisu Mahto alias Basudeo Mahto, driver of truck bearing registration No. BHV 7125 lost his life. His dependants, namely, the widow, mother and five minor sons filed claim application under the provisions of the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act''). It was registered as Compensation Case No. 133 of 1987. The Tribunal found that the claimants did not claim or receive any compensation under the provisions of the Workmen''s Compensation Act, 1923 from the employer of the deceased and the claim case was not barred by limitation. Tisu Mahto alias Basudeo Mahto died in an accident while driving the truck (BHV 7125) and his dependants were entitled to compensation of Rs. 1,70,000 with interest at the rate of 12 per cent per annum from the date of claim application till payment. The owner of the truck and the insurer both were jointly and severally liable to pay the compensation amount and the insurance company was liable to indemnify the owner''s liability.

3. u/s 110-AA of the Act the person entitled to compensation may claim either under the Workmen''s Compensation Act or Motor Vehicles Act. In my view, in order to negate the claim made under the Act it must be shown that the person entitled to compensation had made a claim for compensation under the Workmen''s Compensation Act. The key words are ''may claim such compensation'' under either of the statutes. These words clearly indicate that the person entitled to compensation must take a conscious decision and opt for compensation under one or the other statute. The option is on the dependants to choose their remedy under either of the statutes. In the present case it was established that the dependants of the deceased did not claim or receive any compensation under the Workmen''s Compensation Act. I, therefore, find that they opted for and were entitled to compensation under the Act.

4. It is true that the accident took place on 25.9.1984 and the claim application war, filed on 30.8.1987, i.e., long after expiry of the statutory six months'' period of limitation under the Act. In Vinod Gurudas Raikar Vs. National Insurance Co. Ltd. and others, , it was held that the right or privilege to claim benefit of a provision for condonation of delay can be governed only by the law in force at the time of delay. Having actually initiated the proceeding when the old Act covered the field a claimant could say that his right which had accrued on filing of the petition could not be taken away.

5. The position was different under the Act in which Section 110-A (3) prescribed a period of six months for filing an application for compensation from the date of accident, but vested power in the Tribunal to entertain such application even after the expiry of the said period of six months, if it was satisfied that the claimant was prevented by sufficient cause from making the application in time. The Act was replaced by the Motor Vehicles Act, 1988, which came into force w.e.f. 1.7.89. Proviso to Section 166(3) of the said 1988 Act also provided the period of limitation within six months, but a proviso was added therein to the effect that the Tribunal may entertain the application after the expiry of the said period of six months but not later than twelve months, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. Further w.e.f. 14.11.1994, Section 166(3) of the 1988 Act was omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994. The effect of amending Act is that w.e.f. 14.11.1994 there is no limitation for filing claims before the Tribunal in respect of any accident.

6. In Dhannalal Vs. D.P. Vijayvargiya and Others, , dealing with the effect of omission of Sub-section (3) of Section 166 of the 1988 Act it was held that when Sub-section (3) of Section 166 was omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petition cannot be thrown out on the ground that such claim petitions were barred by time when Sub-section (3) was in force. It need not be impressed that Parliament from time to time has introduced amendments in the old Act as well as the new Act in order to protect the interest of the victims of the accidents and their heirs if the victims die. If the victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, High Court or the Supreme Court. In view of the amending Act the claimant became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this Court cannot be thrown out on the ground of limitation. The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant does not challenge the same and allows the said order to become final. The aforesaid amending Act shall be of no help to such claimant. It was held by the Apex Court that in pending claim cases either before the Tribunal or the High Court or the Supreme Court the benefit of amendment of Sub-section (3) of Section 166 of the new 1988 Act should be extended.

7. It is settled law that for making the right or remedy claimed by the parties just and meaningful in accordance with the current realities, the court can, and in many cases must, take cognizance of the events and developments subsequent to the institution of the proceeding provided that the rules of fairness to both sides are scrupulously obeyed. After the 1994 amendment in the new Act since there is no period of limitation now the claimant can file a fresh claim application, hence the same principle has to be applied to pending claim matters.

8. In the present case, the claimants have been pursuing their claim from the Tribunal to this Court. Their right to get the compensation in connection with the accident in question is being resisted by the other side, appellant herein, on the ground of delay in filing the same. If they had not filed any petition for claim till 14.11.1994 in respect of the accident which took place on 25.9.1984, in view of the amending Act they became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this Court cannot be thrown out on the ground of limitation. The Tribunal, therefore, has rightly decided that the claim case was not barred by time.

9. So far the next point raised by the counsel for the appellant that the Tribunal erred in granting an award in excess of the amount claimed in the original claim application, was concerned, it is well settled that there are no fetters on the power of the Tribunal to award compensation in excess of the amount which is claimed in the application. in this regard reference may be made to a decision of the Apex Court in Sheikhupura Transport Co. Ltd. Vs. Northern India Transport Insurance Co., , wherein it was held that the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture, and if this is so, then it will be unreasonable to expect the party to state precisely the amount of damages or compensation that it would be entitled to. Consequently, it would be for the Tribunal equipped with the expertise in deciding such cases to estimate properly the compensation that a claimant would be entitled to in appropriate case.

10. In the present case, the appellant insurance company contested the case by filing written statement, but did not adduce any evidence to controvert the evidence of the claimants and the admission of the owner of the vehicle that the deceased was 35 years old and was getting salary of Rs. 1,000 per month during the relevant time of accident, from which ''/3rd was deducted towards his personal expenses and so the annual dependency was fixed at Rs. 8,000. The Tribunal applied multiplier of 25 therein. In my opinion, the application of multiplier of 25 was not justified in view of the recent decision of the Apex Court in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , the appropriate multiplier should not have exceeded 16. In such circumstances, the annual dependency multiplied by 16, i.e., (Rs. 8,000 x 16) comes to Rs. 1,28,000.

11. In my opinion, a sum of Rs. 30,000 should not have been deducted from the total compensation amount on account of uncertainty of life as the compensation was being paid in one lump sum.

12. In this regard reference may be made to a decision of the Apex Court in Hardeo Kaur and others Vs. Rajasthan State Transport Corporation and another, , wherein it was held that with the value of rupee dwindling due to high rate of inflation, there was no justification for making deduction due to lump sum payment for 10-15 years delay in final disposal of accident claim cases,

13. Having the discussion made above and under the circumstances the dependants of the deceased driver Tisu Mahto alias Basudeo Mahto are entitled to compensation of Rs. 1,28,000 with interest at the rate of 12 per cent per annum from the date of claim application till payment. The owner and insurer are jointly and severally liable to pay the same. Since the truck No. BHV 7125 was insured with the National insurance Co. Ltd., the appellant herein, the entire liability of the owner has to be indemnified by the said insurer. The amount of interim compensation already paid to the claimants has to be deducted from the award amount.

14. This appeal is accordingly disposed of with the aforesaid modification in the impugned judgment and award dated 20.12.1996" passed by Additional Judicial Commissioner-cum-Motor Accidents Claims Tribunal, Lohardaga in Claim Case No. 133 of 1987.