Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Alok Aradhe and Nataraj Rangaswamy, JJ., disposed of the appeal after modifying the compensation.

The facts of the case are such that the deceased Sanjeev M Patil was crossing the road as a pedestrian at 6:00 am in morning when a bus being driven in a rash and negligent manner by its driver dashed against the deceased as a result the deceased received grievous injuries and succumbed to the same. The claimants filed a petition seeking compensation which was thereby granted keeping in mind his young age and monthly income. Aggrieved by the same, the present appeal was filed.

Counsel for appellants submitted that the Tribunal has erred in its judgment and the accident took place 75 meters from the toll booth and that the deceased suddenly tried to cross the road without observing the vehicles approaching the toll counter. It was also submitted that there is a gross error in assessing the monthly income and compensation is excessive.

Counsel for the respondents submitted that as per an independent eye witness it is clear that the accident happened due to the rash and negligent driving of the bus by the driver and the monthly income calculated is correct as the deceased was a permanent employee and infact sums awarded under the heads “loss of consortium” and “loss of love and affection” are on the lower side and deserves to be enhanced suitably.

The Court relied on judgment Mangala Ram v. Oriental Insurance Co., (2018) 5 SCC 656 and observed that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and the claimant is not required to prove the accident beyond reasonable doubt.

The Court thus held that “he Tribunal on meticulous appreciation of the evidence on record as well as on the basis of preponderance of probabilities has rightly held that the accident occurred on account of the negligence of the driver of the KSRTC bus.”

On the question of amount of compensation the Court held that after perusing the salary slip and income tax return statements and keeping in mind the future aspects the compensation was modified.

In view of the above, appeal was disposed off.[Gowri S. Patil v. Divisional Controller, 2021 SCC OnLine Kar 447, decided on 04-02-2021]


Arunima Bose, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: Taking note of an important legal question raised by the High Court of Kerala while hearing a Motor Vehicle Accident claim case, the 3-judge bench of NV Ramana, Surya Kant and Aniruddha Bose, JJ has agreed to decide the following question:

“Whether in the matter of awarding costs, the procedure and rules framed under the Constitution, CPC and the Rules made thereunder, for `Courts’, could be resorted to by the Claims Tribunal which is apparently, not a `Court.”

The petitioner in the Special Leave petition, challenged the Kerala High Court’s judgment whereby the High Court upheld the compensation granted by the Motor Accident Claims Tribunal, Kottayam in favour of the injured respondent. It was argued that

“the Tribunal does not possess any authority to award any costs as incidental to its power over the parties or the subject matter of the litigation, and the Tribunal being constituted under a special enactment is to be governed solely by the provisions of the Motor Vehicles Act, 1988.”

The Court, hence, allowed the special leave petition to the limited extent of examining the legal issue raised by the petitioner.

Advocate N.Vijayaraghavan will be assisting the Court as  amicus curiae.

[ICICI Lombard General Insurance Company v. MD Davasia,  2021 SCC OnLine SC 79, order dated 11.02.2021]


Appearance before the Court by

For Petitioner:  Rana Mukherjee, Sr.Adv., Nagesh, Adv., Daisy Hannah, Adv. and Shekhar Kumar, AOR.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sujatha and Sachin Shankar Magadum JJ., allowed the appeal and set aside the impugned judgment.

The facts of the case are such that the deceased, Chandrashekhar along with Kumar and other inmates were proceeding in a Maruthi Van from Kanipakam to Thimmasanapalli during which the deceased who was driving the vehicle lost control over the vehicle and met with an accident due to which Chandrashekhar and the inmate both died on the spot. The claimants filed a claim petition contending that the deceased was 27 years old and drawing salary as a Supervisor of around Rs 2,00,000 per annum. The Tribunal restricted the income of the deceased at Rs 40,000 and dismissed the claim petition as Chandrashekhar was a tort-feasor and hence the claimants are not entitled to compensation. Being aggrieved by the same, the claimants have preferred the instant appeal.

Counsel for the appellants submitted that the Tribunal has erred in observing that the deceased was a tort feasor and the accident is due to his negligence and rash driving. It was further submitted that there is no limit that the income should not exceed more than Rs 40,000 per year and the schedule is only a guidance to arrive at a multiplier as per Section 163-A of Motor Vehicle Act. It was also submitted that the Tribunal has inherent power to grant compensation by applying current provision of law and also that under Section 163-A the claimants need not prove the rash and negligent act of the driver.

The Court relied on judgment Ningamma v. United India Insurance Company, (2009) 13 SCC 710 and observed that absence of any specific claim under Section 166 MV Act in pleadings would not be an impediment for the Tribunal to examine the claimant’s rights under Section 166 MV Act. The claimants could not be deprived of getting just compensation in the cases where the claimants can make out a case under Section 166 MV Act.

The Court thus held that the claimants in the instant case have filed a claim petition contending that the deceased gad an annual income of Rs 2,10,000 per annum. Since the income of the deceased per annum exceeds the prescribed slab under Section 163 A of MV Act hence the matter was directed to be remanded back to the Tribunal for fresh consideration.

In view of the above, appeal was allowed.[Narayamaswamy v. Venkatesh. B, 2021 SCC OnLine Kar 202, decided on 01-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: The Division Bench of C. T. Ravikumar and K. Haripal, JJ., partly allowed the instant petition filed under Section 37 of Arbitration and Conciliation Act, 1996.

The grievances of the appellant were that, 0.0336 hectares of land owned and possessed by him was acquired by the Nation Highway Authority (NHA) for the purpose of developing National Highway-47. The Special Land Acquisition Officer had fixed the compensation at the rate of Rs 2,14,000 per Are, thereby the appellant was awarded total compensation of Rs 7,19,040. Aggrieved by the same, the appellant filed an arbitration petition under Section 3(c) (5) of the National Highways Act seeking enhancement of compensation.

The District Collector being the Arbitrator, enhanced the land value to Rs 5,88,000 per Are, i.e. at Rs 2,38,057 per cent. The Arbitrator, after considering the report of the District level Arbitral Committee appointed under Section 27(1)(a) of the Act, enhanced the compensation and fixed it at Rs 12,56,640.

The appellant again challenged the award before the District Court. The Court, while observing the constraints under Section 34 of the Act, stated that,

An award of the Arbitrator could be challenged only on the grounds enumerated in Section 34 of the Act and it could not be set aside merely on the ground that compensation awarded was insufficient.

The Bench though concurred with the findings of lower Court, observed that in arbitral award no amount was paid towards solatium or interest thereon. Reliance was placed by the Court on the judgment of Supreme Court in Union of India v. Tarsem Singh, (2019) 9 SCC 304, wherein, the Court had declared that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of proviso to Section 28 would apply to acquisitions made under the National Highways Act and had held Section 3J of the National Highways Act violative of Article 14 of the Constitution and declared it unconstitutional.

Thus, the Court while relying on Tarsem Singh case said that the verdict of Supreme Court in the said case had become the law of the land under Article 141 of the Constitution. Therefore, even in the absence of specific plea or proof, the appellant would be entitled to get solatium and interest on solatium as provided in Section 23(1A) and (2) and interest in terms of proviso to Section 28 of the Land Acquisition Act. [V.M. Mathew v. National Highway Authority of India,  2021 SCC OnLine Ker 387, decided on 25-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing a motor accidents claim application decided on the issue whether it would be fair to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age?

In the instant application, the appellants challenged the award of the Claims Tribunal and sought enhancement of the award amount.

The deceased was aged 23 years at the time of the accident and was survived by his parents who claimed compensation. Deceased was self-employed as a Contractor earning Rs 55,000 to Rs 60,000 per month.

Claims Tribunal held that since the deceased’s father was working with the Delhi Police as Sub-Inspector, hence was not dependent upon the deceased. Also, the deceased’s mother could not be said to be dependent upon the deceased as her husband was employed with the Delhi Police.

Therefore the Claim Tribunal had concluded that the deceased’s parents were not entitled to compensation for loss of dependency but only to compensation for loss of the estate in terms of the principles laid down in Keith Rowe v. Prashant Sagar, 2011 ACJ 1734.

Analysis, Decision and Law

  • Whether the mother of the deceased is entitled to compensation for the death of her son?

Court opined that the parents of the deceased were considered in law as dependent on their children, considering that the children are bound to support their parents in their old age, when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents.

Further, the Bench added that

Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years.

With regard to loss of dependency, the Court held that it would be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age.

Following are legislations that recognize the legal rights of parents to be maintained by their children:

♦ Section 125 of the Code of Criminal Procedure, 1973

♦ Section 20 of Hindu Adoption and Maintenance Act, 1956, and Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Bench referred to the following decisions:

Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278.

In Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 Supreme Court had reaffirmed the with respect to the rights of parents to compensation in case of accidental death of a child.

Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad, 2001 CriLJ 2111

In Sarla Verma v. D.T.C., (2009) 6 SCC 121, the Supreme Court held that the mother of the deceased bachelor is entitled to compensation by taking 50% of his income as loss of dependency on the premise that the deceased would not contribute more than 50% to his mother after marriage. The Supreme Court further observed that the mother would be considered as a dependent even if the father was employed and earning.

In light of the above decisions, the High Court held that the parents of the deceased child are considered as dependents for computation of compensation. Further, the Bench also highlighted that the principles relating to the loss to the estate shall apply only to claimants other than parents, children and spouse.

Hence, the deceased’s mother in the instant case is entitled to compensation for loss of dependency.

Compensation

Taking the income of the deceased as Rs 4,131 per month, adding 40% towards future prospects, deducting 50% towards personal expenses and applying the multiplier of 18, the loss of dependency is computed as Rs 6,24,607.20.

Court directed the appellant 1 to remain present in Court before the next date of hearing along with the passbook of her savings bank account near the place of her residence as well as PAN card and Aadhaar card.

Appellant 1 shall produce the original passbook of her individual savings bank account with the necessary endorsement on the next date of hearing. However, the bank concerned shall permit appellant 1 to withdraw money from her savings bank account by means of a withdrawal form.

While concluding in light of the above-stated, Court asked for the copy of this Judgment to be sent to Delhi Judicial Academy to sensitize the Claims Tribunals about the principles laid down by this Court in the present Judgment. [Indrawati v. Ranbir Singh, 2021 SCC OnLine Del 114, decided on 08-01-2021]


Advocates for the parties:

For the Appellants: Santosh Kumar Chauriha, Advocate

For the Respondents: Atul Nigam, Advocate along with Anubhav Tyagi and Randhir Kumar, Advocates for R-3

Case BriefsDistrict Court

State Consumer Dispute Redressal Commission, Odisha (SCDRC): Dr D.P. Choudhury (President) modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

The instant appeal was filed under Section 15 of the erstwhile Consumer Protection Act, 1986.

Factual Matrix

While the appellant was in his first year of law school, the OP had floated an offer for sale of a Laptop without Laptop Bag for Rs 190 against the price of Rs 23,499.

OP had confirmed for placing of the order and two hours after receiving the confirmation, the appellant received a phone call from the OP’s Customer Care Service Department stating that the subject order stood cancelled due to the price recession issue.

Since the complainant was in need of a laptop to prepare his project, he raised an objection for such cancellation.

On not receiving any response from the OP, complainant issued a legal notice.

Deficiency in Service

Appellant had to purchase another laptop but suffered from mental agony for such cancellation, hence filed a complaint alleging the deficiency in service and unfair trade practice.

Complainant claimed compensation of Rs 50,000 and Rs. 10,000 towards litigation cost.

District Forum had allowed the complaint partly by directing the OP to pay compensation of Rs 10,000 for mental agony and to pay Rs 2,000 towards the cost of litigation.

Hence, the aforesaid impugned order was challenged by the complainant/appellant stating that the District Forum committed error in law by not deciding to direct to pay Rs 50,000 as compensation.

Analysis, Decision and Law

Bench observed that “When there is an advertisement made for offer placed by the OP and made the offer as per the material available on record and complainant placed the order and same got confirmed, the agreement is complete.”

Another aspect to be noted was that, when the OP had allowed Rockery Marketing at his platform as per written version, the responsibility of the OP could not be lost sight of.

Since there was a breach of contract by OP, OP is held to be liable to pay the damages.

Commission agreed with District Forum’s observation that OP not only negligent in providing service but was also involved in unfair trade practice.

Taking all the factors discussed above for consideration, Bench concluded that compensation awarded should be of Rs 30,000 for unfair trade practice and punitive damages of Rs 10,000. Further, with regard to the cost of litigation Rs 5000 needs to be awarded.

On failing to make the above payments to the complainant within 30 days, the said amounts will carry interest at the rate of 12% per annum.

In view of the above, the appeal was disposed of. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., First Appeal No. 492 of 2018, decided on 11-01-2021]


Read More:

District Consumer Forum directs ‘Amazon’ to pay compensation for “deficiency in services”

Case BriefsHigh Courts

Karnataka High Court: Ashok S. Kinagi J., allowed the appeal and applied the pay and recover principle fastening the liability on the owner to pay the compensation.

The facts of the case are such that the claimant was sitting in the backside of the auto-rickshaw, the driver was driving rashly and negligently without following traffic rules and regulations and dashed the same to a motorcycle which was going in front of auto-rickshaw because of which the auto turned turtle and the claimant sustained grievous injuries in the said accident. Thus, a claim petition was filed before the Tribunal for compensation which was thereby granted by holding that the respondents are jointly and severally liable to pay it. Being aggrieved by the same, the present appeal was filed.

Counsel for the appellants submitted that the tribunal has committed an error in fastening the liability on the insurer as the vehicle was plying outside the permitted limit and hence the insurance is not liable to pay compensation.

Counsel for the respondents supported the impugned judgment and award.

The Court relied on judgment Shamanna and Divisional Manager, Oriental Insurance Co. Ltd., 2018 ACJ 2163 and observed that when there is a breach of policy conditions and the policy is in force as on the date of the accident, it is for the insurance company to pay the compensation amount and recover the same from the owner.

The Court thus held that the permit disclosed that offending vehicle was permitted to ply within 16 km from Savdatti but in fact, the accident has occurred outside the limit of Savadatti i.e., outside of 16 km from the permit limit. It was further observed that on the date of the accident the insurance policy was in force but at the time of the accident, the vehicle did not have permit at the accident spot. Thus there is a clear violation of policy conditions.

In view of the above, the appeal was allowed in part directing the insurer to pay the compensation amount and recover the same from the owner.[Divisional Manager v. Riyaz Ahmed, M.F.A. No. 100275/2015 (MV), decided on 06-02-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: The Division Bench of C.T. Ravikumar and K. Haripal, JJ., partially allowed the instant appeal challenging the correctness of the orders of the District Judge whereby the District Judge had declined to interfere with the arbitral award.

Properties of the appellants were acquired by the National Highway Authority for the purpose of widening the Valayar-Vadakkanchery sector of NH 47 under a common notification and compensation was awarded by the Special Land Acquisition Officer. Special Land Acquisition Officer had granted a total compensation of Rs 2,65,252 to appellant 1 on the basis of comparable sales method while compensation of Rs 3,37,337 was awarded to the appellant 2. Being dissatisfied with quantum of compensation, the appellants invoked the arbitration clause. The arbitrator granted an additional compensation of Rs 1,04,449 as an enhancement, besides 9% interest on the enhanced amount from the date of dispossession to appellant 1 and an enhancement of Rs 1,67,215 and 9% interest on the additional compensation was granted to appellant 2. On being aggrieved by the order of the arbitrator, the appellants moved the District Court under Section 34 of the Arbitration Act. Later on, the instant appeal was filed against the order of District Judge.

The appellants contended that, the claims made were not properly considered by the Special Land Acquisition Officer and the Arbitrator, therefore, in order to prove the prevailing market value of the land and for quantifying the other damage suffered by them, they might be afforded one more opportunity and the matters might be remanded, enabling them to adduce further evidence.  The appellants argued that they had not been granted solatium and interest on solatium, which they were entitled to as per the decision in Paul Mani v. Special Deputy Collector and Competent Authority, 2019 SCC OnLine Ker 2700.

The Court observed, the argument of appellants that the claims were not considered by the authorities properly was factually incorrect as it was obvious from the orders passed by the Arbitrator, that even in the absence of the appellants producing supporting documents or proof, the Arbitrator had taken into consideration post-notification developments while granting enhancement in land value as well as the value of structures. As mentioned earlier, the Arbitrator had granted enhancement in compensation under all possible heads, making good the loss sustained by the appellants. The Court said, “It is the settled proposition of law that matters cannot be remanded back to the authority below in order to decide any question of fact which was not properly pleaded and no evidence was let in by the parties in support of the claim.” While reiterating settled proposition of law the Court said, having regard to the scope and ambit of Section 34 of the Arbitration Act that Court’s power is merely supervisory in nature and the Court cannot act as though exercising the appellate jurisdiction. The Court also expressed that, no power had been invested by the Parliament in the Court to remand the matter to the arbitral tribunal. Therefore, the demand for remitting the case back to the arbitrator was denied. On the contention of non-payment of solatium, the court relied on Union of India and Another v. Tarsem Singh, (2019) 9 SCC 304, wherein the Supreme Court had held, the provisions of the Land Acquisition Act 1894, relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of the proviso to Section 28 will apply to acquisitions made under the National Highways Act.

In view of the above, it was held that even in the absence of specific plea or proof, the appellants were entitled to claim solatium and interest on solatium under Section 23(1A) and (2) and interest in terms of the proviso to Section 28 of the Land Acquisition Act and the respondents were directed to quantify the amounts of solatium accordingly. [Eliyamma v. Deputy Collector, 2021 SCC OnLine Ker 80, decided on 07-01-2021]

Case BriefsSupreme Court

Supreme Court: In a case where the 3-judge bench of NV Ramana*, SA Nazeer and Surya Kant*, JJ increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs after a motor vehicle accident claimed the lives of a man and his pregnant wife, leaving behind his parents and 2 children aged merely 3 and 4, Justice NV Ramana took the liberty to write a concurring opinion with respect to the issue of calculation of notional income for homemakers and the grant of future prospect with respect to them, for the purposes of grant of compensation.

Below are certain facts and figures highlighted by Justice Ramana in his judgment:

 In India, according to the 2011 Census, nearly 159.85 million women stated that “household work” was their main occupation, as compared to only 5.79 million men.

As per the Report of the National Statistical Office of the Ministry of Statistics & Programme Implementation, Government of India called “Time Use in India 2019”, reflects that, on an average, women spend nearly 299 minutes a day on unpaid domestic services for household members versus 97 minutes spent by men on average.

In a day, women on average spend 134 minutes on unpaid caregiving services for household members as compared to the 76 minutes spent by men on average.

The total time spent on these activities per day makes the picture in India even more clear-

“ women on average spent 16.9 and 2.6 percent of their day on unpaid domestic services and unpaid caregiving services for household members respectively, while men spent 1.7 and 0.8 percent.”

Need for fixing notional income for a homemaker

Ramana, J noticed that the sheer amount of time and effort that is dedicated to household work by individuals, who are more likely to be women than men, is not surprising when one considers the plethora of activities a housemaker undertakes. However, the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.

Therefore, the issue of fixing notional income for a homemaker, therefore, serves extremely important functions.

“It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as a result of social/cultural norms. It signals to society at large that the law and the Courts of the land believe in the value of the labour, services and sacrifices of homemakers. It is an acceptance of the idea that these activities contribute in a very real way to the economic condition of the family, and the economy of the nation, regardless of the fact that it may have been traditionally excluded from economic analyses. It is a reflection of changing attitudes and mindsets and of our international law obligations. And, most importantly, it is a step towards the constitutional vision of social equality and ensuring dignity of life to all individuals.”

Rationale behind the awarding of future prospects

It was noticed by Ramana, J that the rationale behind the awarding of future prospects is no longer merely about the type of profession, whether permanent or otherwise, although the percentage awarded is still dependent on the same. The awarding of future prospects is now a part of the duty of the Court to grant just compensation, taking into account the realities of life, particularly of inflation, the quest of individuals to better their circumstances and those of their loved ones, rising wage rates and the impact of experience on the quality of work.

Notional income for earning victims i.e. where the victim is proved to be employed but claimants are unable to prove the income before the Court

Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income. No rational distinction can be drawn with respect to the granting of future prospects merely on the basis that their income was not proved, particularly when the Court has determined their notional income.

Notional income for non-earning victims

The principle of awarding of future prospects must apply with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply.

“No one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household.”

Summary of observations

  1. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law.
  2. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation’s international law obligations and our constitutional vision of social equality and ensuring dignity to all.
  3. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.
  4. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.
  5. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation.

[Kirti v. Oriental Insurance Company Ltd., 2021 SCC OnLine SC 3, decided on 05.01.2020]


** Justice Surya Kant has penned the judgment

*Justice NV Ramana has penned a concurrent opinion.

Know Thy Judge| Justice N.V. Ramana

ALSO READ

Can subsequent death of a dependent be a reason for reduction of motor accident compensation? Supreme Court answers

Case BriefsSupreme Court

Supreme Court: In a case dealing with motor vehicle accident that claimed the lives of a man and his pregnant wife, leaving behind his parents and 2 children aged merely 3 and 4, the 3-judge bench of NV Ramana*, SA Nazeer and Surya Kant*, JJ has increased the total motor accident compensation of Rs 22 lakhs awarded by the Delhi High Court to Rs 33.20 lakhs.

The Court took note of the following facts for arriving to said conclusion:

At the time of death, there in fact were four dependents of the deceased and not three. The subsequent death of the deceased’s dependent mother ought not to be a reason for reduction of motor accident compensation.

“Claims and legal liabilities crystallise at the time of the accident itself, and changes post thereto ought not to ordinarily affect pending proceedings.”

The claimants have been unable to produce any document evidencing the deceased’s income, nor have they established his employment as a teacher; but that doesn’t justify adoption of the lowest-tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence-on-record and circumstances of the accident, it is apparent that he was comparatively more educationally qualified and skilled and maintained a reasonable standard of living for his   family.

“Preserving the existing standard of living of a deceased’s family is a fundamental endeavour of motor accident compensation law.”

Given how both deceased were below 40 years and how they have not been established to be permanent employees, future prospects to the tune of 40% must be paid.

Justice NV Ramana took the liberty to write a concurring opinion with respect to the issue of calculation of notional income for homemakers and the grant of future prospect with respect to them, for the purposes of grant of compensation. He said,

“… the conception that housemakers do not “work” or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.”

Conception that housemakers do not add economic value to the household is “a problematic idea”; Future prospect must be granted in case of motor accident of a non-earning victim: SC

[Kirti v. Oriental Insurance Company Ltd., 2021 SCC OnLine SC 3, decided on 05.01.2020]


** Justice Surya Kant has penned the judgment

*Justice NV Ramana has penned a concurring opinion. Read his opinion here

Know Thy Judge| Justice N.V. Ramana

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J., observed that,

Right to appeal against conviction is an invaluable statutory right vested upon a convict by Criminal Procedure Code which cannot be allowed to be defeated by imposing any condition for availing such right.

“..depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law.”

Petitioners were arrayed as accused in the complaint filed by the respondent under Section 138 of Negotiable Instruments Act, 1881.

It was alleged that the cheques drawn by the accused upon their presentation in the bank by the complainant for their encashment were dishonoured.

In light of the above background, accused were tried by the Judicial Magistrate and directed to pay compensation.

Accused, on being aggrieved by the above decision preferred appeals before the Sessions Court, wherein at the time of admission of appeals, impugned orders dated 28-2-2020 were passed, wherein following was stated:

“Criminal Appeal received by entrustment. As there are fairly arguable points involved in the adjudication of the present appeal, hence, the present appeal is admitted for hearing, subject to just exceptions and to deposit of 20% of the compensation amount in view of latest amendment in Section 148 of Negotiable Instruments Act (applicable w.e.f. 01.09.2018), within one month from today. It is registered as Criminal Appeal. Now notice of this appeal be issued to the respondent through ordinary process as well as speed post on furnishing of speed post charges and copies of grounds of appeal within a week for 02-07-2020. Trial Court Record be also called for that date.”

Counsel representing the complainant argued that the lower Appellate Court having passed the orders in question in exercise of jurisdiction under statutory provisions of Section 148 of the Act, the same cannot be called to question.

Analysis, Law and Decision

The language of Section 148 of the NI Act would show that the amended provisions vest the Appellate Court with a discretion to direct deposit of an amount not less than 20% of the compensation amount as awarded by the trial Court. Although the word ‘may’ has been used in the Section but the Supreme Court in Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 has interpreted the said provisions to mean that issuance of such a direction is more in the nature of a mandate.

In view of the above-stated Supreme Court decision, power of Appellate Court, though discretionary is supposed to be a ‘rule’ and said discretion should be exercised in all the cases unless there are some exceptional circumstances

In the instant case, there were no exceptional circumstances before the lower Appellate Court so as to justify non-deposit of an amount as provided under Section 148 of the Act.

Section 148(2) of the Act would show that it is provided in unambiguous terms that the amount is required to be deposited within a period of 60 days which may further be extended by another 30 days.

In the instant case, lower Appellate Court having granted only 1 month’s period for depositing the amount, the same is contrary to the above-stated provisions.

Right of Appeal

Section 374 CrPC does not prescribe any condition for admission of an appeal.

Provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions.

Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of the first appeal.

Further, the Bench expressed that Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal.

Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated.

Supreme Court in Babu Rajirao Shinde v. State of Maharashtra, (1971) 3 SCC 337, observed that a convicted person must be held to be at least entitled to one appeal as a substantial right.

High Court also made another significant observation:

Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions.

While parting with the decision, Court held that:

(i) The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today.

(ii)  In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.

(iii)  In case bail of any of the petitioner has been cancelled on account of non-deposit of the amount or has already been taken into custody, he shall be released forthwith on bail subject to any such conditions as may be imposed by the lower Appellate Court. He shall, however, deposit the amount of 20% within 60 days from today.

(iv) In case of failure to deposit the amount in question within a period of 60 days from today, it shall be open to the lower Appellate Court to cancel bail and to hear the appeal on merits, provided, however, subject to any such general directions issued by the High Court in the matter of hearing of cases, having regard to the present circumstances of spread of pandemic COVID-19.[Sudarshan Kumar v. Manish Manchanda, 2020 SCC OnLine P&H 2321, decided on 15-12-2020]


Advocates who appeared before the matter:

Vaibhav Sehgal, Advocate, counsel for the petitioner(s).

Nitin Thatai, Advocate for the respondent (s)

Case BriefsHigh Courts

Kerala High Court: T.V. Anilkumar, J., allowed the instant appeal against the impugned order of Commissioner for Workmen’s Compensation, Thiruvananthapuram.

The brief facts of the case are; an application for compensation was filed by mother of the deceased, who was working as a lorry driver. The lorry had a national permit, was driven by the deceased from Thiruvananthapuram to Baroda. The contention of the applicant before the Commissioner was that when the lorry reached Surat on 23-02-1999, the deceased felt severe stomach pain and he was rushed to the hospital for treatment, where he died on the same day. The claim for compensation was made after seven years and a separate delay petition was also filed along with claim petition. The cause pleaded in the delay petition was that the applicant and her husband being illiterate and poor had to depend on intermediaries, who did not give proper advice. Further, her husband was on bed rest due to rheumatic fever and she was with him as bystander looking after his affairs.

The Commissioner, while condoning the delay held that the applicant had a legal claim for compensation and accordingly, impugned order for compensation of Rs 4,11,900 was passed with interest against the appellant, Kerala State Insurance Department.

The appellant-insurer and the employer filed objections to the delay petition as well as claim. It was submitted that according to Section 10 of the Employee’s Compensation Act, 1923(“the Act”) the claim for compensation ought to be filed within two years of the cause of action. The contention of the appellant was that there was no evidence on record establishing the sufficient cause pleaded and the order condoning delay was passed without evidence, thus, such a decision could not be legally sustainable.

The Court observed that, delay petition was not independently considered before entertaining the claim for compensation. In the absence of evidence in support of alleged sufficient cause, the Commissioner was not justified in condoning of delay, that too, without assigning reasons. Further, on the question of cause of death, the court noticed that in the post-mortem report, the final cause of death was shown as poisoning. Hence, considering the evidence on record, it was held that the death was on account of food poisoning and it could not be said to be causally connected with the work in which the deceased was engaged. The Court stated that, unless stomach pain had causal connection or association with the work in which the deceased was employed, it cannot be reckoned to be an accident to fasten liability on the employer for payment of compensation.

It was held that, a grave error was committed by the Commissioner in upholding the claim of the applicant for compensation. The impugned order passed was not legally sustainable, hence, it was ordered to be set aside. [Kerala State Insurance Department v. Radha,  2020 SCC OnLine Ker 7729, decided on 22-12-2020]

Case BriefsHigh Courts

Kerala High Court: Anil K, Narendran, J., allowed this Motor Accident Claim Appeal filed against the order of Motor Accidents Claims Tribunal.

In the instant appeal, a claim petition filed under Section 166 of the Motor Vehicles Act 1988 was challenged for being inadequate. The appellant sustained injuries in a motor accident, which occurred on 27-04-2014, while he was riding a motorcycle. At the place of accident, the motorcycle was hit by a car. The counsel for the motorcyclist K.A. Hassan alleged that the accident occurred due to the rash and negligent driving of the car by the respondent 1. A claim petition was filed before the Tribunal claiming a total compensation of 4,50,000 rupees.

The car driver, while admitting the occurrence of accident contended through his counsel, A.A. Ziyad Rahman that the accident happened due to the rash and negligent riding of the motorcycle by the motorcyclist. It was contended by the Insurance Company that the compensation claimed is highly excessive.

The Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by its driver. The Tribunal awarded a total compensation of 99,500 rupees together with interest at the rate of 9% per annum from the date of petition till realisation.

The Court relied on National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680, wherein a Constitution Bench of the Supreme Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of ‘just compensation’ and the same has to be determined on the foundation of fairness, reasonableness and equitability on an acceptable legal standard. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case.

 In the view of the above considerations, the Court granted an additional compensation of 15,750 rupees with interest at the rate of 8% per annum from the date of petition till realisation. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify additional compensation granted in this appeal, together with interest to the insured within a period of two months. [Asharaf K.A v. Easow T.T., 2020 SCC OnLine Ker 7968, decided on 20-01-2020]

Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., dealt with some significant issues in a claim petition wherein a widow is earning and has prospects of remarriage.

The present matter dealt with a very interesting issue involving an appeal about the entitlement of widow to the compensation who got remarried during the pendency of petition before Motor Accident Claims Tribunal.

What is the effect of a marriage of widow on her right to claim compensation on account of the death of her husband in a vehicular accident?

Whether due to marriage, her right vanishes?

Further, the issue is whether an earning wife can be said to be dependent of her husband?

MACT did not reject the widow’s claim but allotted less share to her. Insurance company on being aggrieved with the same, came in appeal, wherein the submissions were as follows:

  • the widow was working since the beginning and she was earning separately and as such, she is not depending on the income of her deceased husband and
  • she lost her right to compensation on account of remarriage during the pendency of the petition.

Decision, Law and Analysis

Bench laid down the focus on the following issues:

a] Whether separate earnings of the widow has got any bearing on her right to claim compensation?

b] Whether remarriage of widow dis-entitles her from claiming compensation?

ISSUE OF DEPENDENCY & REMARRIAGE

Bench observed that though the tribunal had outrightly rejected the ground of remarriage, but it apportioned the amount of compensation lesser in comparison to the 2 children and mother.

While analyzing the issue, it was also stated that

The widow is certainly one of the heirs on which property of a Hindu devolves as per intestate succession. Now, it is interesting to see how the word ‘dependent’ has evolved. It has been judicially recognized that –

a] age of the deceased,

b] income of the deceased and

c] number of dependents

are 3 factors to be considered while fixing the quantum of compensation. From his earning the deceased will spend on himself and on his near relatives/dependents. So when a person dies in a vehicular accident, dependents/near relatives losses the amount contributed by the deceased towards them.

Supreme Court has laid down guidelines on how to calculate contribution to personal expenses and contribution towards dependents. It depends upon the status of the deceased (married/unmarried) and on the number of dependents.

More the number of dependents, lesser will be the contribution towards personal expenses.

Bench in view of the above discussion noted the fact that the eligibility of dependency does not come first, it comes later while arriving at the quantum of compensation. Issue of ‘legal representative’ will come first while entertaining the claim petitions.

Supreme Court in the decision of Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643, held that even married daughter residing with husband (though not dependent on the income of the father) being legal representative is entitled to claim compensation under Section 140 (no faulty liability) of the Motor Vehicle Act.

Punjab and Haryana High Court in Kartar Kaur. v. Manoj Kumar, 2014 SCC OnLine P&H 25130 held that

“Dis-entitling a woman on account of remarriage would go against the proposal of remarriage of widow after the death of the husband. Taking such drastic view would discourage the remarriage after the death of the husband.”

Similarly in National Insurance Company Ltd. v. Nidhi Goel, 2018 SCC OnLine P&H 6920, it is observed that –

“accepting the proposition of Insurance Company would militate against the right of widow to remarry and it would not be in public interest or in the interest of the Society at large.”

In view of the above decisions it can be found that a consistent view has been taken by all the Courts, that remarriage does not disqualify the widow from claiming compensation.

Continuing with the above analysis, Bench added that

the tribunal should consider the situation prevailing when the cause of action arises. At the time when the accident took place, the widow is the legal representative of the deceased, certainly, she is entitled to claim compensation. What we do is to determine the amount of compensation and its apportionment amongst the eligible persons. So when a widow approaches the Tribunal, she wants to exercise her right which has become part of her estate.

Hence, the Court agreed with the consistent view taken by the Courts.

APPLICATION OF MEASURES

In accordance with Supreme Court guidelines to have uniformity in arriving at the income, it can be stated that if the deceased is having 2-3 dependents, it is presumed that he spends 1/3rd on his personal expenses. If the deceased is having 4-6 dependents, it is presumed that he spends 1⁄4th of his income on his personal expenses.

CRUCIAL ISSUE

When she is having a separate income, whether the widow can be said to be depending on the income of the deceased?

There are two aspects with respect to the above issue:

One is deciding the percentage for personal expenses and towards the contribution of dependents.

Second is the apportionment of compensation which comes later.

As per the guidelines of the Supreme Court given in various judgments, if wife is considered as one of the dependents, then there is a tendency to spend more on an individual and percentage of spending on dependents will be less. If number of dependents is more, there is tendency to spend less on an individual and spend more on dependents.

In the instant case, Court observes that both the spouses are earning. Monthly salary available of the deceased is Rs 23, 431. Where salary of widow Pushpa (for the month of January 2014) had come to Rs 40,044.

Bench expressed that, Separate earning of the widow does not relieve the deceased husband from contributing towards the expenses.

To the above observation Court added that if the evidence on the point of spending by every individual spouse could have been available, this Court might have deleted the widow from the list of dependents.

Hence the Court affirmed the percentage of distribution arrived by the tribunal.

Therefore, High Court opined that case for deleting the widow from list of dependents is not made out by the Insurance Company and remarriage will divest the widow from her right to claim compensation.

APPORTIONMENT

Mother of the deceased was also having two earning sons. It is also their responsibility, so why she shall be given 30%? In fact, more attention towards the two children of the deceased should have been paid.

High Court felt that the widow does not deserve to get Rs 4,00,000 as she was already earning and prospects of re-marriage were there. She also had received service benefits of deceased and amount of L.I.C partially.

Amount was apportioned in the following manner:

Widow Rs 2,00,000  

50% of remaining amount of Rs 40,13,000 after deducting Rs 7,00,000

Son Rs 16, 56, 500
Daughter Rs 16,56,500
Mother Rs 5,00,000

[Bajaj Allianz General Insurance Company Ltd. v. Pushpa Narayan Khurde, First Appeal No. 1379 of 2018, decided on 18-12-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Surya Kant and Aniruddha Bose, JJ has held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claims cases.

“The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true.”

The Court was hearing the case relating to an accident resulting into the death of a 34-year-old man named Sandeep who was survived by his wife widow, two minor children and a mother; all of whom were dependent on him. His dependents had claimed Rs 60,94,000 as compensation alleging, inter alia, that Sandeep died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash and negligent driving of one Sanjeev Kapoor, the owner­cum-driverof the car in which Sandeep was travelling.

Sanjeev disowned responsibility for the accident by asserting that it was the truck which was coming from the opposite side at a very fast speed, and was being driven in a rash and negligent manner.

According to an eyewitness, however, Sanjeev was driving the car at a very fast speed when it overtook a vehicle and collided head­on against the oncoming truck. The Credibility of the eyewitness was questioned.

Noticing that the eyewitness had, acting as a good samaritan and a responsible citizen, taken the injured persons to the hospital, the Court said that it is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital.

“Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.”

Further, it is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. Hence, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police especially when the police had themselves reached the hospital upon having received information about the accident.

Not impressed with the way the High Court had approached the matter, the Court said,

“Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant-claimants’ hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State.”

[Anita Sharma v. New India Assurance Co. Ltd., 2020 SCC OnLine SC 1002, decided on 08.12.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Principal Bench, New Delhi: The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member) and Dr Nagin Nanda (Expert Member)declined any relief to the applicant seeking an injunction against the demolition of Dhobi Ghat.

The instant application sought an injunction against the demolition of Dhobi Ghat, Okhla Delhi.

Applicant on an earlier occasion had approached the Delhi High Court by way of WP (C) 8963 of 2020, Muslim Kassar Vikas Sangthan (Reg.) v. Delhi Development Authority, the said petition was disposed of on 12-11-2020, wherein the Court had asked the petitioners to approach the NGT. 

Tribunal found the grievance to be out of the ambit of Sections 14 and 15 of the National Green Tribunal Act, 2010.

Bench added that jurisdiction of NGT under Sections 14 and 15 can be invoked by a victim of pollution for the restoration of environment or for compensation to the victim, and the said issue is not shown in the instant matter.

Hence, in view of the above application was disposed of. [Muslim Kassar Vikas Sangthan (Regd.) v. Delhi Development Authority, 2020 SCC OnLine NGT 867, decided on 11-12-2020]


Also Read:

Section 14 of the NGT Act:

Tribunal to settle disputes.—(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

Section 15 of the NGT Act:

Reliefcompensation and restitution.—(1) The Tribunal may, by an order, provide,—

(arelief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas,

as the Tribunal may think fit.

(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (band (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu JJ., allowed the appeal and modified the impugned award.

The facts of the case are such that on 18-05-2011, Karan along with other labourers was travelling on a Dumper i.e. ‘offending vehicle’ to village Badeli when they met with an accident due to rash and negligent driving of offending vehicle by non-applicant 4 and Karan came under the offending vehicle and died. A claim application under Section 166 of the Motor Vehicle Act was filed before the learned Claims Tribunal and liability to pay the compensation was fastened on the insurance company.

Counsel for the appellants submitted that deceased was travelling as ‘gratuitous passenger’ in a ‘goods carriage vehicle’; the driver of offending vehicle was not possessing valid and effective driving licence, claimants are not entitled to any amount of compensation as it is a breach of conditions of the insurance policy.

Counsel for respondents submitted that it was a burden upon the Insurance Company to prove that on the date of accident, driver of the offending vehicle was not possessing a valid and effective driving licence, in which, it failed and no evidence has been brought on record by Insurance Company in support of their ground to prove that non-applicant No.4 was not possessing valid and effective driving licence.

Issue 1: The Court observed that in view of undisputed facts and evidence available on record it was clear that deceased was travelling in a goods carriage vehicle, he was not an employee of the owner of offending vehicle; the policy issued was only ‘Liability Only Policy’, no premium paid for any gratuitous passenger travelling in the vehicle, Insurance Company cannot be held liable to satisfy the amount of compensation against the death of Karan alias Phekan whose status was of ‘gratuitous passenger’.

Issue 2: The Court further observed that as far as the ground relating to no licence is Concerned the licence itself was not placed on record, then it cannot be said that Insurance Company has not discharged its burden to prove that non-applicant No.4 was not possessing valid and effective driving licence, in fact, it is a case of no licence. The Court thus held that nonapplicant No.4 was possessing valid and effective driving licence is perverse and it is hereby set aside.

Issue 3: The Court observed that as far as the ground that claimants are not entitled to any amount of compensation as they are not legal representatives and dependant upon the deceased is concerned, it was stated that In view of aforementioned evidence available on record when the claimants have not filed any document to show their relationship with deceased nor examined any independent witness of the village where the deceased was residing to prove that deceased was residing with claimants on the date of the accident.

The Court respect to maintaining an application by a person not dependant on the deceased observed that “the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’.”

 The Court thus held that the claimants failed to prove that they were dependant upon deceased, the relationship being respondent 1 to be real sister of deceased not proved. Non-applicant 2 is earning and nothing is mentioned about the husband of applicant 1 and father of applicants 2 to 7.

In view of the above, the appeal was allowed and Insurance Company was exonerated from its liability to satisfy the amount of compensation and instead it was cast upon non-applicant 3/registered owner of the offending vehicle.[United India Insurance Company v. Kimani Devi,  2020 SCC OnLine Chh 881, decided on 09-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Karnataka High Court: Sachin Shankar Magadum J., disposed off the petition granting compensation to the petitioners as the defaulting land fell under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996.

The facts of the case are such that the respondents issued a preliminary notification under Section 4(1) of the Land Acquisition Act and thereby acquired the lands of the petitioner for the purposes of submergence in the backwater of Upper Krishna Project without compensating for the ‘phot- kharab’ area as it was not notified.  Aggrieved by the same, instant petition was filed seeking writ of mandamus against the respondents to pass a supplementary award along with statutory benefits in respect of ‘phot- kharab’ area being part of land.

Counsel for the petitioners submitted that after relying on the Aakar Bandh, it was evident that survey was carried out in the year 1965-66 and the ‘phot kharab’ area is classified as ‘A’ kharab and hence would squarely fall under the provisions of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996. It was also submitted that other landowners has also been compensated for the same ‘phot kharab’ area and hence the petitioners are also liable to be compensated for the same.

Counsel for the respondents submitted that the petitioners have waived off their right to claim on the ‘phot- kharab’ area as it was not the subject matter of the consent award and herein the same consent award is being challenged and hence issue of compensation cannot be re-agitated and compensation thereby cannot be granted.

The Court relied on the judgment Sadashivaiah v. State of Karnataka, 2003 SCC OnLine Kar 539 wherein it was held that

“31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under:—

“during the process of classification, land included as unarable shall be treated as “Pot Kharab”. Pot Kharab land may be classified as follows.

(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;

 (b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries.”

  1. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land. However, when the petitioners claim that the said land falls within 21(2)(a) and therefore they are entitled to the compensation LAO proceeds on the assumption that it falls within Section 22(1)(b) and therefore they are not entitled to compensation as it belongs to the government and accordingly he has declined to pass any award. It is not in dispute that before arriving at such a conclusion the LAO has not given an opportunity to the petitioners in the enquiry under Section 11 of the Act to substantiate their contention. Without any such enquiry, without affording an opportunity to the petitioners he proceeds on the assumption that the said Kharab land falls within 22(1)(b) and therefore petitioners have no claim, as such he has declined to pass the award. On that ground also, the impugned orders passed by the LAO cannot be sustained and is liable to be set aside.”

The Court thus observed that if the land falls within the category of Rule 21(2) (a) of the Karnataka Land Revenue Rules, 1996, the said ‘phot kharab’ area is not a government ladn and the same would confirm the ownership on the land owners to which this ‘phot kharab’ area is attached and the same would be classified as phot kharab ‘A’ land.

In view of the above, writ petition was disposed off.[Sadappa v. General Manager, WP No. 201108 of 2018, decided on 22-01-2020]


Arunima Bose, Editorial Assistant ahs put this story together

Case BriefsHigh Courts

Karnataka High Court: Ashok G. Nijagannavar, J., allowed the appeal and enhanced the compensation in light of the “pay and recover” principle.

The facts of the case are such that the deceased was travelling as a Cleaner in the lorry when the driver of the said lorry drove in a rash and negligent manner and dashed against another vehicle consequent to which the deceased sustained grievous injuries and later succumbed to it. The dependents filed a petition for compensation before the Motor Accidents Claims Tribunal i.e. MACT as the deceased was the main earning member of the family and due to his untimely death, the claimants lost financial support. The MACT thereby directed to pay the compensation of Rs 5,71,000 along with interest at the rate of 6% p.a. from the date of petition till its realization. Being aggrieved by the same, the petitioner’s claimants preferred the instant appeal under Section 173(1) Motor Vehicle Act i.e. MV Act for enhancement of compensation.

Counsel for the appellants submitted that on the date of the accident the insurance policy was in force. It was further submitted that as the driver of the offending vehicle had no valid and effective DL, the insurance company is liable to pay the compensation and recover it from the owner of the offending vehicle as per “pay and recover” principle.

Counsel for the respondents submitted that as the driver had no valid and effective DL, hence the insurance company has no liability to pay the compensation.

The Court relied on judgment titled Parminder Singh v. New India Assurance Company Ltd., (2019) 7 SCC 217 and observed that as per pay and recover principle the insurance company is liable to pay compensation to the victim and later recover it from the owner of the offending vehicle.

The Court thus held that the compensation granted vide impugned order is too meagre and disproportionate and in view of the ratio laid in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, compensation was enhanced.

In view of the above, petition was allowed and disposed off.[Geetha Bhai v. Amanullah, 2020 SCC OnLine Kar 1878, decided by 21-01-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D