1. The Learned Motor Accidents Claims Tribunal, East Sikkim at Gangtok (for short ''Learned Claims Tribunal''), vide its Judgment in MACT Case No.03 of 2016, dated 23.12.2016, dismissed the Claim Petition of the Appellants/Claimants, seeking compensation from the Respondents for a sum of Rs.8,38,300/- (Rupees eight lakhs, thirty-eight thousand and three hundred) only, on account of the death of one Mustaque, husband of Appellant No.1 and father of Appellant No.2. Aggrieved by the impugned Judgment, this Appeal assails the finding therein.
2. The Respondent No.1 was the Opposite Party No.1 and the Respondent No.2, the Opposite Party No.2, before the learned Tribunal.
3. In Appeal, the main thrust of the argument of Learned Counsel for the Appellant is that the Learned Claims Tribunal while reaching a finding that the Appellants were not entitled to the compensation so claimed, relied on the Autopsy Report of the victim (Exhibit-7). As per the Learned Claims Tribunal as the victim''s body had been recovered from the Mahananda Canal at Phulbari, West Bengal on 22.7.2015 and the Doctor who conducted the Autopsy had opined vide Exhibit-7 that the cause of death was due to the effects of strangulation by ligature, ante mortem and homicidal in nature, it was established that the death of the deceased was not due to a motor accident, but homicidal strangulation. It was also urged that the Learned Claims Tribunal had pointed out that there was discrepancy with regard to Exhibit- 12, the Authorisation Letter issued to the driver. That, in fact the vehicle belonged to the Respondent No.2, however, the Authorisation Letter that was filed before the Learned Claims Tribunal pertained to another vehicle, but it is undisputed that the deceased was the employee of Respondent No.2. It was canvassed before this Court that the strict rules of evidence do not apply to a Claim Petition under the Motor Vehicles Act, 1988 (for short ''the Act''). To reinforce this submission, strength was drawn from the decision in Bimla Devi and Others vs. Himachal Road Transport Corporation and Others, (2009) 13 SCC 530 . That, it is indubitable that the driver was driving the vehicle Mahindra Bolero Pickup, bearing Registration No. SK-01-D-0274 which was duly insured with Respondent No.1 herein. Although the Police have concluded that the death of the deceased was due to strangulation, undeniably the proximate cause of the death was due to the fact that he was travelling in the vehicle. To buttress his submissions, reliance was placed on Rita Devi (Smt) and Others vs. New India Assurance Co. Ltd. and Another, (2000) 5 SCC 113 . On the ratiocination of Rita Devi, (2000) 5 SCC 113, the compensation ought to have been granted to the Claimants, hence, the Judgment of the Learned Claims Tribunal be set aside and compensation calculated at Rs.8,38,300/- (Rupees eight lakhs, thirty-eight thousand and three hundred) only, be granted to the Claimants/Appellants.
4. Per contra, it was argued by Learned Counsel for the Respondent No.1 that neither the body of the deceased nor the vehicle in the alleged accident were recovered from the alleged place of occurrence (for short ''P.O.''). The body was recovered in Phulbari, West Bengal, and the parts of the vehicle allegedly found at the P.O. were not seized vide a Seizure Memo. The next doubt raised was that no vegetables, allegedly a load of which was carried in the vehicle, were recovered at the P.O. leading to an inevitable conclusion that no accident had infact occurred and the death was purely homicidal. Thus, there was no error or perversity in the Judgment of the Learned Claims Tribunal which warranted no interference.
5. Learned Counsel for the Respondent No.2, submitted that the Authorisation Letter filed was indeed a wrong copy but the error is not material for the purposes of the case.The vehicle in accident was insured and the deceased a licensed driver was employed by him, therefore, the liability for compensation cannot be foisted on him.
6. I have heard the rival contentions of Learned Counsel at length. I have also carefully perused the pleadings, documents on record and the impugned Judgment.
7. In order to appreciate the matter, it would be essential to briefly visit the facts of the Appellants'' case.
8. On 21.7.2015, the deceased Late Mustaque, husband of the Appellant No.1 and father of Appellant No.2, driver of the Bolero Pick-Up vehicle, bearing No.SK-01-D-0274 was driving the aforesaid vehicle from Siliguri (West Bengal) to Singtam (East Sikkim) with miscellaneous goods and vegetables. The vehicle was insured with the Respondent No.1 and belonged to Respondent No.2. Enroute the vehicle went off the road at ''Bhotey Bhir'' under the jurisdiction of Rangpo Check-Post (West Bengal), pursuant to which the vehicle and the deceased went missing. The Respondent No.2 lodged a Missing Report at the said Check-Post on 21.07.2015, which was duly registered as G.D. Entry No.204/15. On the next day, the body of the deceased was recovered from the Mahananda Canal, Phulbari, West Bengal. Upon such recovery the Phansidewa Police Station, West Bengal registered U.D. (Unnatural Death) Case No. 48 of 2015 and forwarded the body to North Bengal Medical College. Information of recovery of the body and its location in the North Bengal Medical College was transmitted to the Kalimpong Police Station. On 25.7.2015, the father of the deceased identified the body as that of his son. Likewise the Appellant No.1 identified the body as that of her husband. Subsequently, on 4.8.2015, the Respondent No.2, lodged an FIR at Kalimpong Police Station, which was duly registered as Kalimpong Police Station Case dated 04/08/2015, FIR No.263/ 2015, U/s.279/304=A'' of the Indian Penal Code, 1860.
9. On account of the said death, the Appellant No.1, for herself and on behalf of the minor Appellant No.2, filed a Petition for compensation under Section 163A of Act, seeking compensation of an amount of Rs.8,38,300/- (Rupees eight lakhs, thirty-eight thousand and three hundred) only, with interest. The Respondents in their averments before the Learned Claims Tribunal had put forth the same submissions as made in this Court.
10. On the basis of the pleadings of the parties, the Learned Claims Tribunal settled a single Issue for adjudication, i.e.,
"1. Whether the Claimants are entitled to the
compensation claimed? If so who is liable to
compensate them?"
11. The Appellant No.1 examined herself as witness for
herself and Appellant No.2. The Respondent No.1/Insurance
Company did not examine any witness, while the Respondent
No.2/Sheikh Nassim/Owner of the vehicle examined himself as his
sole witness. On consideration of the evidence on record, the
Learned Claims Tribunal pronounced the impugned Judgment,
inter alia, declining the compensation, on the ground, that the
Appellants had failed to establish that the deceased had died due
to a motor accident as Exhibit-7 proved that the death was due to
homicidal strangulation.
12. Now, the question that would arise for determination before this Court is, Whether the cause of the victim''s death having been opined as homicidal would disentitle the Appellants from being granted compensation under Section 163A of the Act?
13. Firstly, we may walk through the relevant provision of Law, Sub-Sections (1) and (2) of Section 163A of the Act provides as follows;
"163A. Special provisions as to payment of
compensation on structured formula basis.-(1)
Notwithstanding anything contained in this Act or in any
other law for the time being in force or instrument having
the force of laws, the owner of the motor vehicle or the
authorized insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising
out of the use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be.
(2) In any claim for compensation under sub-section
(1), the claimant shall not be required to plead or
establish that the death of permanent disablement in
respect of which the claim has been made was due to any
wrongful act or neglect or default of the owner of the
vehicle or vehicles concerned or of any other person.
(3) ..........................................................................."
14. Sub-Sections (1) and (2) of Section 163A of the Act
extracted hereinabove indicate that a victim or his heirs are
entitled to Claim either from the owner or the Insurance Company,
compensation for death or permanent disablement suffered due to
accident, arising out of the use of the motor vehicle. The Law
does not envisage proof of a wrongful act or negligence or default
of any one. It merely requires use of a motor vehicle, leading to
the death of the victim. On this count, it would be beneficial to
refer to the decision of Rita Devi2. In the said case, D was the
driver of an autorickshaw, owned by another person. The
autorickshaw was registered as a public carrier vehicle for hire by
the passengers. It was insured with the respondent. On
22.3.1995, some unknown persons hired the autorickshaw, but
subsequently stole it and killed the driver. The legal
representatives of the deceased driver filed Claim Petition under
Section 163A of the Act claiming damages for the death of
deceased caused during the course of his employment from the
owner of the said autorickshaw as the death was caused in an
accident arising out of the use of the motor vehicle. The Learned
Claims Tribunal allowed the Claim against the owner of the
autorickshaw and also fastened legal and statutory liability on the
insurer. The Insurer, Respondent, preferred an Appeal before the
High Court which allowed the Appeal on the ground that the case
was one of murder and not that of accident. The legal
representatives of the deceased, in Appeal, contended that the
murder of deceased squarely fell within the words "death due to
accident arising out of the use of motor vehicle" found in Section
163A(1) of the Act. That, in the absence of a definition of the word
Caccident'' in motor vehicles Act which is beneficial legislation a
liberal interpretation should be given so as to achieve the object of
the act. It was further contended that the Appeal filed by the
insurer was not maintainable, no leave having been obtained from
the Tribunal as required under Section 170 of the Act. Per contra,
the Respondent Insurer contended that the meaning ascribed to
the word accident in the Workmen''s Compensation Act by judicial
pronouncements could not be applied to the word accident in the
Motor Vehicles Act because the objects of the two Acts were
different. That, the death of the driver of the autorickshaw was
caused by felonious acts of certain unknown persons and not by an
accident arising out of the use of the vehicle and that the Insurer''s
Appeal to the High Court was maintainable. Rejecting the
Respondent''s contentions and allowing the Appeal the hon''ble
Supreme Court held, inter alia, as follows;
"14. Applying the principles laid down in the above
cases to the facts of the case in hand, we find that the
deceased, a driver of the autorickshaw, was dutybound to
have accepted the demand of fare-paying passengers to
transport them to the place of their destination. During
the course of this duty, if the passengers had decided to
commit an act of felony of stealing the autorickshaw and
in the course of achieving the said object of stealing the
autorickshaw, they had to eliminate the driver of the
autorickshaw then it cannot but be said that the death so
caused to the driver of the autorickshaw was an
accidental murder. The stealing of the autorickshaw was
the object of the felony and the murder that was caused
in the process of stealing the autorickshaw is only
incidental to the act of stealing of the autorickshaw.
Therefore, it has to be said that on the facts and
circumstances of this case, the death of the deceased
(Dashrath Singh) was caused accidently in the process of
committing theft of the autorickshaw.
....................................................................................
18. In the instant case, as we have noticed that
facts, we have no situation in coming to the conclusion
that the murder of the deceased (Dasarath Singh) was
due to an accident arising out of the use of motor vehicle.
Therefore, the trial court rightly came to the conclusion
that the court was wrong in coming to the conclusion that
the death of Dasarath Singh was not caused by an
accident involving the use of motor vehicle."
15. The facts of the case at hand appear to be identical to
the facts in Rita Devi2. Admittedly, the deceased had a valid
Driving Licence and was the driver of the vehicle in accident, which
was duly insured with the Respondent No.1 and owned by
Respondent No.2. He was driving from Siliguri towards Sikkim
when the vehicle went off the road. No evidence was furnished to
the contrary by either of the Respondents. Thus, being the driver
of the vehicle, although the vehicle was not recovered, there is a
preponderance of probability that he was driving the vehicle at the
relevant time. His body, however, was recovered in Mahananda
Canal in Phulbari with a ligature mark on his neck. It is not
necessary to delve into the details as to what caused the ligature.
Suffice it to say that assuming his death was homicidal it cannot
be disputed that the proximate cause of his death was the use of a
motor vehicle. As observed in Rita Devi2, in the case at hand also
the murder was incidental to the predominant object of stealing
arising out of the use of the vehicle by the driver. The evidence of
Respondent No.2 supports this assumption as he has deposed that
he came to learn from the Investigating Officer of the Kalimpong
Police Station that the victim was murdered by one Subba of
Kakarvitta in order to rob the vehicle.
16. Hence, in the facts and circumstances as evident from the aforesaid discussions and in keeping with the decision in Rita Devi2, I am of the considered opinion that the Learned Claims Tribunal arrived at an erroneous finding by declining to grant the compensation and the Claimants are entitled to compensation as calculated hereinbelow which is found to be just.
17. With regard to the Exhibit-12, the Authorisation Letter, bearing vehicle No.SK-01-D1602 instead of SK-01-D-0274, no serious arguments were forwarded by the Respondent No.1 and it is admitted by Respondent No.2 that when the vehicle met with an accident, the relevant documents were also swept away in the vehicle. At the time of filing of documents before the Learned Claims Tribunal, Exhibit-12 was erroneously inserted, but was admitted in evidence. It may be stated here that a plethora of judicial pronouncements have settled the position that when a document is admitted in evidence at the stage of trial and not objected therein, no objection can be raised at the Appellate stage. This lends a quietus to the said issue. The other documents of the vehicle are found to be in order and are not disputed.
18. Hence, in conclusion, it is found that according to Exhibit-10, the date of birth of the deceased is 1.1.1989, making him 26 years old at the time of his accident. As per the evidence of the owner, Respondent No.2, it is admitted that the deceased was engaged by him for a monthly salary of Rs.3,325/- (Rupees three thousand, three hundred and twenty-five) only. Hence, the compensation is calculated as follows;
| Monthly income of the deceased | Rs. 3,325.00 |
| Annual Income of the deceased (Rs.3,325/- x 12 months) | Rs. 39,900.00 |
| Multiplier of ''18'' has been adopted in terms of the Second Schedule to the Motor Vehicles Act, 1988. | Rs.7,18,200.00 |
| Less 1/3rd of Rs.7,18,200/- [deducted from the said amount in consideration of the instances which the victim would have incurred towards maintenance, had he been alive] | Rs.2,39,400.00 |
| Net yearly income | Rs.4,78,800.00 |
| Add Funeral Expenses | Rs. 2,000.00 |
| Add Loss of consortium | Rs. 5,000.00 |
| Add Loss of estate | Rs. 2,500.00 |
| Total | Rs.4,88,300.00 |
(Rupees four lakhs, eighty-eight thousand and three hundred) only.
19. The Respondent No.1 is directed to pay the awarded
amount to the Appellants No.1 and 2 within one month from today
with interest @ 10% per annum, failing which he shall pay simple
interest @ 12% per annum from the date of filing of the Claim
Petition till realisation.
20. The awarded amount of compensation shall be divided amongst the Appellants No.1 and 2, as follows;
(i) 50% of the total award to the Appellant No.1.
(ii) 50% of the total award to the Appellant No.2. Of the
said 50%, one-half shall be kept in a Fixed Deposit in a
Nationalised Bank until she attains the age of majority.
The remaining one-half shall be expended towards her
education and upkeep.
21. Appeal allowed.
22. Judgment of the Learned Claims Tribunal is set aside.
23. Copy of this Judgment be sent to the Learned Claims Tribunal for information.
24. Records of the Learned Claims Tribunal be transmitted forthwith.
