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Judgment
,
DIPANKAR DATTA, J",
MAC Case No. 112 of 2010, registered on an application under Section 166 of the Motor Vehicles Act (hereafter the 1988 Act), was decided by",
the Motor Accident Claims Tribunal, Alipore, South 24 Parganas (hereafter the MACT) by an award dated June 27, 2012. The claimants in such case",
have carried the said award in appeal before us under Section 173 of the 1988 Act.,
The husband of the appellant no. 1 and the father of the appellants 2 and 3 (hereafter the victim) in the evening of February 4, 2005, was walking",
down Deshapran Sasmal Road, Kolkata from south to north direction. He was knocked down by a Tata Sumo (hereafter the offending vehicle) from",
behind, which allegedly was being driven at a tremendous speed. The victim sustained severe injury on his person and was immediately taken to M. R.",
Bangur Hospital, whereafter he was shifted to National Medical College and ultimately admitted at Woodlands Nursing Home (hereafter Woodlands).",
The victim was discharged from Woodlands on April 20, 2005. As a result of the injury suffered on the head together with other injuries all over his",
body, the victim completely lost his vision and was rendered physically disabled. In the claim application filed before the MACT under Section 166 of",
the 1988 Act, the appellants claimed compensation in a sum of Rs.29,00,000/-.",
Despite service of notice, the owner of the offending vehicle did not contest the proceedings. However, the insurer of the offending vehicle opposed",
the claim application by filing written objection. During the pendency of such application, on September 28, 2010, the victim passed away at Durgapur",
Steel Plant Hospital, Durgapur at the age of 44 years. In the proceedings before the MACT, oral evidence was adduced by five witnesses in support",
of the claim case which, inter alia, included the appellant no. 1 (PW â€" 1). The MACT, upon consideration of the oral and documentary evidence that",
were adduced, returned a finding that rash and negligent driving of the offending vehicle caused the accident that initially resulted in the victim being",
rendered physically disabled and ultimately caused his death as a consequence thereof.,
The MACT, however, did not accept the version of the appellants that the victim had a yearly income of Rs.1,45,406/-; on the contrary, it proceeded",
to compute loss of dependency treating Rs.1,00,000/- as the yearly income of the victim. Upon deduction of one-third towards personal and living",
expenses of the victim and selecting the multiplier of 13, the MACT held that the appellants would be entitled to compensation of Rs.8,66,710/-. In",
addition, Rs.6,49,915/- was awarded towards expenses incurred by the appellants for treatment of the victim at Woodlands as well as other hospitals.",
It was also the finding of the MACT that the offending vehicle was covered by an insurance policy issued by the insurer and, therefore, it was liable to",
bear the compensation payable to the appellants. Accordingly, an award was made for an amount of Rs.15,16,625/- to be paid by the insurer within",
eight weeks, failing which the insurer would be liable to pay interest @ 8% p.a. from such failure till realisation.",
Appearing in support of the appeal, Mr. Banik, learned advocate urged several grounds to assail the amount of compensation worked out by the",
MACT.,
First, Mr. Banik contended that there was no reason for the MACT not to accept the version of the appellants that the victim was in receipt of",
Rs.1,45,406/- every year from his employer and hence, compensation should have been worked out upon acceptance of such amount as the yearly",
income of the victim. Secondly, it was contended that the victim being in permanent employment, the appellants were entitled to addition of 30% of the",
income towards his future prospects. Thirdly, it was contended that the tribunal grossly erred in not granting any amount on account of general",
damages. Finally, Mr. Banik urged that the MACT did not consider Section 171 of the 1988 Act and thereby caused miscarriage of justice by not",
awarding interest from the date of filing of the claim application.,
Opposing the appeal, Mr. Singh, learned advocate for the insurer contended that the claim application was not maintainable having regard to the",
provisions contained in Section 53 of the Employees’ State Insurance Act, 1948 (hereafter the 1948 Act). According to him, such provision bars",
the claim of the appellants for compensation because the victim was an insured employee. Reliance was placed by Mr. Singh on the decision of the,
Supreme Court reported in 2009 (3) T.A.C. 25 (S.C.) [National Insurance Co. Ltd. v. Hamida Khatoon and others] in support of his objection to the,
maintainability of the claim application before the MACT.,
While dealing with the contentions of Mr. Banik, it was submitted by Mr. Singh that the tribunal did not commit any error in treating Rs.1,00,000/- as",
the yearly income of the victim. It was further contended that the appellants had only cleared a part of the bill raised by Woodlands towards expenses,
incurred for medical treatment of the victim and not having cleared the entire bill, the appellants were not entitled to Rs.6,49,915/- towards",
reimbursement of medical expenses. He also contended that the victim having died more than 51/2 years after the accident, such death was not",
relatable to the accident that occurred on February 4, 2005. He, accordingly, prayed that the appellants are not entitled to any enhancement of",
compensation amount and that the appeal ought to be dismissed.,
We have heard the parties and perused the papers forming part of the paper-books. We have also have looked into the documents which were,
marked exhibits before the MACT.,
It is noted that the insurer has neither carried the award in appeal, nor has it filed any cross-objection. We could have glossed over Mr. Singh’s",
objections, but do feel inclined to deal with the same in the interests of justice.",
We shall first deal with the objection of Mr. Singh that the claim application was not maintainable in view of the provisions of the 1948 Act and also,
that the appellants have not entirely cleared the bills of Woodlands amounting to Rs.6,49,915/-; hence they were entitled only to Rs.3,89,000/- and not",
the balance of Rs.2,60,915/- which was unpaid.",
Section 53 of the 1948 Act reads as follows:,
“53. Bar against receiving or recovery of compensation or damages under any other law.â€"An insured person or his dependents shall not be,
entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the",
Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury",
sustained by the insured person as an employee under this Act.â€,
A bare reading of the aforesaid provision makes it clear that the bar is in respect of a claim for compensation arising out of an employment injury,
sustained by the insured employee or his dependants under the 1948 Act. No evidence was adduced by the insurer that the victim in the course of his,
employment sustained injury or that he had opted for compensation under the Workmen’s Compensation Act, 1923 (hereafter the 1923 Act).",
The decision in Hamida Khatoon (supra), has been perused. Although the point raised on behalf of the appellant there, that the true scope and",
ambit of Section 53 of the 1948 Act had not been considered by the relevant High Court, appears to have been accepted by the Supreme Court and it",
was directed that the entitlement shall be worked out by the relevant tribunal by taking note of Section 53 of 1948 Act, we do not find any law having",
been laid down therein having binding effect under Article 141 of the Constitution. The Supreme Court in Hamida Khatoon (supra) extracted certain,
passages from its earlier decisions wherein provisions of the 1948 Act were discussed, viz. those reported in 1993 Supp (4) SCC 100 [Regional",
Director, Employees’ State Insurance Corporation v. Francis De Costa], (1996) 4 SCC 255 [A Trehan v. M/s. Associated Electrical Agencies &",
anr.] and (2003) 2 SCC 138 [Bharagath Engg. V. R. Ranganayaki & anr.].,
In A Trehan (supra), it was held that an application under Section 22(2) of the 1923 Act for compensation in respect of an employment injury filed",
by an insured person attracted the bar under Section 53 of the 1948 Act and, hence, was not maintainable. Without referring to A Trehan (supra), the",
Supreme Court in Bharagath Engg. (supra) held to the similar effect that by operation of Section 53 of the 1948 Act, proceedings under the 1923 Act",
were excluded statutorily.,
None of the above decisions involved interpretation of the 1988 Act, and, therefore, are not decisions which would have a bearing on the issue that",
we are called upon to decide. In our opinion, the decision relevant for the purpose of deciding this appeal is the one in Francis De Costa (supra).",
There, it was a reverse case where the employee insured under the 1948 Act had laid a claim before the relevant court under Section 75 thereof,",
whereupon the Court held him to be entitled to the benefits under the 1948 Act. A point was raised before the Supreme Court that since the insured,
employee had suffered injury as a result of an accident caused by a motor vehicle, he should have moved the relevant tribunal under the 1988 Act.",
The relevant paragraphs from such decision read as follows:-,
“44. The next contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and,
that, therefore, the remedy under the Act cannot be availed of lacks force or substance. The general law of tort or special law in Motor Vehicles Act",
or Workmen’s Compensation Act may provide a remedy for damages. The coverage of insurance under the Act in an insured employment is in,
addition to but not in substitution of the above remedies and cannot on that account be denied to the employee. In K. Bharathi Devi v. G.I.C.I, AIR",
1988 A.P. 361, the contention that the deceased contracted life insurance and due to death in air accident the appellant received compensation and the",
same would be set off and no double advantage of damages under carriage by Air Act be given was negatived.,
It falls foul from the mouth of the appellant, a trustee de son tort who collected the premium from the employee and employer with a promise to",
expend it for disability, to attempt to wriggle out from the promise or to deprive the employee the medical benefit for employment injury covered by the",
insurance on the technicalities. It is estopped to deny medical benefit to the insured employee. We are conscious of the fact that the plea of estoppel,
was not raised by the respondent but it springs from the conduct of the appellant.â€,
It is clear from a reading of the aforesaid extract that the remedy under the 1948 Act is in addition to but not in substitution of the remedies,
available under the 1988 Act or the 1923 Act and on that account, benefits cannot be denied to an insured employee.",
For the purposes of the present appeal, we may only note that none of the decisions as aforesaid have any application since it was not proved at",
the trial that the victim suffered injury in the course of his employment, which is the sine qua non for a claim to be laid under the 1923 Act or the 1948",
Act, as the case may be.",
We place on record that Mr. Banik relied on the decision of a learned Judge of the Kerala High Court dated February 18, 2009, in Kuriakose v.",
Santosh Kumar. The view that we have taken is in line with the view expressed in such decision. We, therefore, hold that the point raised by Mr.",
Singh that the claim application was not maintainable is absolutely without merit.,
Insofar as reimbursement of medical expenses is concerned, there is evidence on record that the appellants could not clear the entire billed amount",
of Rs.6,49,915/- raised by Woodlands and had paid only Rs.3,89,000/- at the time of discharge of the victim therefrom. It also appears from such",
evidence that certain post-dated cheques were issued by the appellant no.1 anticipating award of compensation at an early date, which ultimately did",
not materialize and the cheques were dishonoured. Mr. Banik has, however, claimed that upon receipt of compensation awarded by the MACT,",
impugned in this appeal, the dues of Woodlands have been taken care of in the entirety and, therefore, the appellants are entitled to reimbursement of",
the entire amount of Rs.6,49,915/-. We propose to make necessary directions in this behalf while concluding this judgment.",
The victim was employed as a sales officer in Shree Baidyanath Ayurved Bhawan (P) Ltd. (hereafter Baidyanath). Shri Dipankar Ghosh (PW,
â€" 4) was the General Manager (HR) of Baidyanath. He sought to prove a certificate issued by the company signed by its Manager (HR), Shri",
Swapan Chowdhury. PW-4 also proved the salary certificate of the victim. For reasons unknown, these two documents have not been marked as",
exhibits. From the certificate dated April 26, 2005, available at page 50 of the records, it appears that the salary and allowances of the victim for the",
period between April 1, 2004 and March 31, 2005 was Rs.1,45,406.60. To such amount was added a further amount of Rs.15,218/- on account of",
‘PF’, ‘ESI’ and ‘Bonus’.",
A coordinate Bench of this Court in its decision dated May 4, 2018 in FMA 857 of 2012 (Sri Krishna Kanta Singh v. Sri Parameswar Achutanan",
Nair & Ors.) has held the proceedings before the claims tribunal under Section 166 read with Section 168 of the 1988 Act to be inquisitorial in nature.,
Strict principles of the Evidence Act, 1872 do not apply in such proceedings. Merely because the certificate dated April 26, 2005 was not marked as",
an exhibit would not afford reasonable ground to discard its contents. The contention of Mr. Singh, therefore, stands overruled.",
We have also perused the evidence of PW-4. The MACT appears to have disbelieved the version of the appellants on the ground of non-,
production of the salary register by PW-4. It is true that the salary register had not been produced and had it been placed before the MACT for its,
consideration, it would have assisted it in correctly determining the amount of compensation payable to the appellants. However, sight cannot be lost of",
the fact that the certificate dated April 26, 2005 was proved by PW-4. From the cross-examination of PW-4, it does not appear that any effort was",
made on behalf of the insurer to dislodge his version with regard to the certificate and its contents. No point had also been taken that the certificate,
not having been marked as an exhibit, could not have been looked into by the MACT. We are, thus, of the considered view that the appellants having",
pleaded in the claim application that Rs.1,45,000/- was the yearly income of the victim, the MACT was not right in excluding the certificate from its",
consideration produced in support of the claim and in determining compensation as if Rs.1,00,000/- p.a. was the income of the victim.",
There is evidence on record to show that the victim had been rendered 100% physically disabled as a result of the accident. There are also,
medical papers to show that his death was the direct consequence of the accident which he had suffered on February 4, 2005. We are, thus, of the",
further considered view that compensation payable to the appellants has to be determined in accordance with the guidelines given by the Supreme,
Court in the decision reported in (2009) 6 SCC 121 [Sarla Verma v. DTC]. The decision in Sarla Verma (supra) has very recently been upheld by a,
Constitution Bench of the Supreme Court. In paragraph 61 of its decision reported in (2017) 16 SCC 680 [National Insurance Company Limited v.,
Pranay Sethi], the Supreme Court has recorded its conclusions. Sub-paragraphs (iii) & (viii) of paragraph 61, to the extent relevant, are quoted below :",
“(iii) While determining the income an addition of 50% of actual salary to the income of the deceased towards future prospects, where the",
Heads,Calculation
Yearly income,"Rs.1,45,000/-
Add future prospect,"[30% of Rs.1,45,000/-]
= Rs.43,500/-
Rs.1,45,000/- + Rs.43,500/-
= Rs.1,88,500/-
Less 1/3rd on account of
personal and living
expenses of the victim","Rs.1,88,500/-Â -Â Rs.62833/-Â =
Rs.1,25,667/-
Compensation after
multiplier of 13 is
applied","Rs.1,25,667/- x 13
= Rs. 16,33,671/-
General damages,"Rs.70,000/-
Total amount of
compensation","Rs.17,03,671/-