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CASE NO.: Appeal (civil)  3731-3732 of 2002

PETITIONER: Bijoy Kumar Dugar

RESPONDENT: Bidyadhar Dutta & Ors

DATE OF JUDGMENT: 01/03/2006

BENCH: B. N. Srikrishna & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       These two appeals involve identical questions of facts and  issues, and are, therefore, disposed of by this common  judgment.         Civil Appeal Nos. 3731-3732 of 2002 are filed by the  appellant impugning two judgments and orders dated 19th  July, 2001 passed by the Division Bench of the High Court of  Gauhati in M.A.C. Appeal No. 56 of 2000 and in Writ Petition  (C) No. 4418 of 2000.  Facts of Civil Appeal No. 3731/2002  shall cover the facts of the other Appeal No. 3732 of 2002.

C. A. No. 3731 of 2002         Facts in brief are that on 15.4.1988 at about 4.00 p.m.  an accident took place at Kharjan Pol of Sahab Pathar,  Tingrai, a place between Tinsukia and Digboi in the State of  Assam wherein two vehicles, namely, Maruti car bearing  registration No. UPI 237 and a bus bearing registration No.  ASQ 8446, were involved in a head-on collision.  Raj Kumar  Dugar, the owner of the Maruti car, died in the accident on the  spot.  Bidya Dhar Dutta, respondent No. 1, is the owner of the  bus and Ajay Baruah, respondent No. 2 herein, was driving  the offending bus, when it met with an accident.  The bus was  insured with the Oriental Insurance Company Limited- respondent No.3.  The car of the deceased was not insured as  he had purchased it hardly a day or two before the accident.   The appellant-Bijoy Kumar Dugar and his wife-Smt. Panna  Devi Dugar [now dead] were the original claimants before the  Motor Accident Claims Tribunal (hereinafter referred to as ’the  MACT’), Tinsukia.  They claimed a sum of Rs. 25,00,000/- as  compensation from the respondents.  The MACT, relying upon  the evidence and other material on record, came to the  conclusion that the deceased Raj Kumar Dugar and Ajay  Baruah, driver-respondent No. 2, both were driving their  respective vehicles in a rash and negligent manner and the  accident was as a result of their contributory negligence for  which the insurer respondent No. 3 was liable to pay half of  the amount of compensation, i.e. Rs. 1,76,800/-, to the  claimants.  It also directed that the amount of compensation  as awarded be paid with interest at the rate of 10% per annum  from the date of filing of the claim petition till payment.         Aggrieved by the inadequacy of the amount of  compensation, the claimants filed MAC Appeal No. 56/2000  before the High Court. The Oriental Insurance Company also  challenged the award in Writ Petition (C) No.4418/2000, on  the sole ground that the Company is not liable to pay interest

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on the compensation amount from 1988 as directed by the  MACT.  The High Court dismissed the appeal of the claimants  for enhancement of the compensation, but allowed the writ  petition of the insurer holding the claimants entitled to  interest on the award amount only for a period of two years,  i.e. from 10.1.1989 to October, 1990 when the Insurance  Company appeared and filed its written statement before the  MACT.  The Award to that extent, accordingly, was modified.   Now, the claimants are before this Court in these two appeals  assailing the correctness and validity of the judgments and  orders dated 19th July, 2001 passed by the High Court.   During the pendency of these appeals, claimant Smt. Panna  Devi Dugar had died and her legal representatives are  proforma respondents herein.         We have heard the learned counsel appearing for both  sides at length.  Three submissions were advanced by Shri Jos  Chiramel, learned counsel for the appellant, to assail the order  of the High Court dismissing the claimants’ appeal for  enhancement of the amount of compensation.  First, that the  High Court has failed to consider the future prospects of the  deceased who was a Science Graduate, prosecuting law  studies and at the same time he was earning Rs. 4,000/- per  month as an attorney-holder of a petrol pump.  According to  the learned counsel, Raj Kumar would have earned minimum  Rs. 8,000/- to 10,000/- per month, if not more, if he had not  died in the accident.  In support of this submission, reliance is  placed on G.M., Kerala S.R.T.C. Vs. Susamma Thomas  (Mrs.) & Ors,, reported in [1994] 2 SCC 176 = [1994] ACJ 1,  and Sarla Dixit (Smt.) & Anr. Vs. Balwant Yadav & Ors.  [1996] 3 SCC 179.         It was next contended that the High Court has erred in  accepting the finding of the MACT in apportioning the liability  of the deceased and the driver of bus in the ratio of 50:50.  It  was then contended that the interest at the rate of 10% per  annum awarded by the MACT is on the lower side and ought  to have been enhanced by the High Court to 18% per annum  as claimed by the claimants.         The learned counsel appearing for the contesting  respondent on the other hand, has sought to support the  orders of the High Court.  He submitted that this Court, in  exercise of power under Article 136 of the Constitution of  India, would ordinarily not interfere with the concurrent  findings of facts recorded by the MACT and affirmed by the  High Court.         To appreciate the respective contentions of the learned  counsel for the parties, we have gone through the relevant  material on record.  It is by now well-settled that the  compensation should be the pecuniary loss to the dependants  by the death of a person concerned.  While calculating the  compensation, annual dependency of the dependants should  be determined in terms of the annual loss, according to them,  due to the abrupt termination of life. To determine the  quantum of compensation, the earnings of the deceased at the  time of the accident and the amount, which the deceased was  spending for the dependants, are the basic determinative  factors.  The resultant figure should then be multiplied by a  ‘multiplier’.  The multiplier is applied not for the entire span of  life of a person, but it is applied taking into consideration the  imponderables in life, immediate availability of the amount to  the dependants, the expectancy of the period of dependency of  the claimants and so many other factors.  Contribution  towards the expenses of the family, naturally is in proportion  to one’s earning capacity.  In the present case, the earning of  the deceased and consequently the amount which he was  spending over the members of his family, i.e. dependency is to

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be worked out on the basis of the earnings of the deceased at  the time of the accident.  The mere assertion of the claimants  that the deceased would have earned more than Rs. 8,000/- to  Rs.10,000/- per month in the span of his lifetime cannot be  accepted as legitimate income unless all the relevant facts are  proved by leading cogent and reliable evidence before the  MACT.  The claimants have to prove that the deceased was in  a trade where he would have earned more from time to time or  that he had special merits or qualifications or opportunities  which would have led to an improvement in his income.  There  is no evidence produced on record by the claimants regarding  future prospects of increase of income in the course of  employment or business or profession, as the case may be.  It  is stated that the deceased was about 24 years at the time of  the accident.  The MACT has accepted Rs. 4,000/- per month,  as the earning of the deceased and after deducting Rs. 400/-  per month for his pocket expenses, the remaining sum of Rs.  3600/- has been divided into three equal shares, out of which  two shares, i.e. Rs. 2400/- per month or Rs. 28,800/-  (wrongly mentioned as Rs. 28,000/- in the award), were  assessed as loss to both the claimants, who were the parents   of the deceased.  The ages of the claimants are stated to be  between 45 and 50 years and accordingly multiplier of 12 was  applied.  Thus, a sum of Rs. 28,800/- X 12 = Rs. 3,45,600/-  was awarded as compensation.  In addition thereto, a sum of  Rs. 2,000/- has been given for funeral expenses and a further  amount of Rs. 6,000/- under the head "Loss of Estate".  The  total sum awardable is Rs. 3,53,600/- but since the deceased  was held liable for contributory negligence, the liability of the  insurer with whom the bus in question was insured is fixed at  50%, i.e. to the extent of Rs. 1,76,800/- with interest at the  rate of 10% per annum from the date of the filing of the claim  application till the date of payment.   The deceased, a young  boy of 24 years old, was unmarried and the claimants were his  father and mother, the dependency has to be calculated on the  basis that within two or three years the deceased would have  married and raised family and the monthly allowance he was  giving to his parents would have been cut down.  Thus, in our  view, the MACT has awarded just and reasonable  compensation to the claimants.         We have gone through the ratio of the above decisions  relied upon by the claimants in support of the submission for  the enhancement of the amount of compensation.  In G.M.,  Kerala SRTC’s case (supra), the claimants have satisfactorily  proved on record that the deceased person in that case had a  more or less stable job in the newspaper establishment of  Malayala Manorama on a monthly salary of Rs. 1032/-.  On  the basis of the evidence found on record in regard to the  prospects of the advancement in the future career of the  deceased, this Court has made higher estimate of monthly  income at RS. 2,000/- per month as the gross income and  granted relief to the claimants.          In Sarla Dixit’s case, the widow and minor daughter of  Captain Ramakant Dixit who died in the accident filed claim  petition before the Motor Accident Claims Tribunal claiming a  sum of Rs. 6,12,524/- on various heads.  The Claims Tribunal  found deceased Ramakant guilty of contributory negligence to  the extent of 75% and the truck driver was negligent only to  the extent of 25% and awarded in all Rs. 42,569/- to the  claimants.  On appeal, the High Court held that the claimants  were entitled to get total compensation of Rs. 54,000/- and  observed that deceased Ramakant was not guilty of any  contributory negligence and the entire negligence rested on the  shoulder of driver of truck and consequently the owner of the  truck was held liable to meet the claim of compensation

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awarded to the claimants.  Interest at the rate of 6% from the  date of filing of the claim petition was awarded.  Being  aggrieved, the claimants filed Special Leave Petition before this  Court against the inadequacy of the compensation granted by  the High Court.  This Court, after taking into consideration the  material facts on record, found that the deceased was the only  breadwinner in the family of the claimants.  His life was cut  short in the prime period at the age of 27 by way of an  accident.  He had put in seven years’ of military service by that  time.  He was earlier a Lieutenant in the Army.  Then he was  promoted to the rank of the Captain and was fully qualified for  promotion to the rank of a Major at the time of his death.  The  claimants filed a certificate of Deputy Commandant and OC  Tps. to show that the deceased had obtained Sena Seva  Service Medal, Sangram Medal, Poorvi Star and 25th Indept.  Anniversary Medal during Military active service in various  operation areas.  The deceased at the time of his death had  passed his M.A. examination and he was in the time-scale of  Rs. 1000-50-1550.  He had a large number of years of military  service ahead of him which would have certainly taken him to  higher echelons in his military career.  The evidence proved  that the deceased was a teetotaller and he did not smoke or  drink.  On the basis of the entire evidence, the claimants were  held entitled for the enhancement of the amount of  compensation.         In the present case, as noticed, there is no evidence  brought on record by the claimants to show the future  prospects of the deceased.  This contention, in our view, is not  tenable to sustain it.           Adverting to the next contention of the claimants, no  doubt the High Court has not dealt with the point in issue.   However, we have noticed the reasoning and finding of the  MACT recorded under Issue No.2.   It is the evidence of Rajesh  Kumar Gupta-P.W.2 who was travelling in the Maruti car  along with the deceased Raj Kumar Dugar on the day of the  accident that he also suffered some injuries in the said  accident.  He stated that while coming from Digboi, the Maruti  car being driven by the deceased met with an accident at a  place near Kharjan Pol.  Before the accident, Raj Kumar Dugar  noticed a passenger bus coming from the opposite direction  and the movement of the bus was not normal as it was coming  in a zigzag manner.  The Maruti car being driven by the  deceased Raj Kumar Dugar and the offending bus had a head-  on collision.  The MACT has not accepted the evidence of P.W.  2 to prove that the driver of the offending bus was driving the  vehicle in abnormal speed.  If the bus was being driven by the  driver abnormally in a zigzag manner, as P.W. 2 wanted to  believe the Court, it was, but natural, as a prudent man for  the deceased to have taken due care and precaution to avoid  head-on collision when he had already seen the bus from a  long distance coming from the opposite direction.  It was head- on collision in which both the vehicles were damaged and  unfortunately, Raj Kumar Dugar died on the spot.  The MACT,  in our view, has rightly observed that had it been the knocking  on one side of the car, the negligence or rashness could have  been wholly fastened or attributable to the driver of the bus,  but when the vehicles had a head-on collision, the drivers of  both the vehicles should be held responsible to have  contributed equally to the accident.  The finding on this issue  is a finding of fact and we do not find any cogent and  convincing reason to disagree with the well-reasoned order of  the MACT on this point. The MACT has awarded interest at  the rate of 10% per annum on the amount of compensation  from the date of filing of the claim application till the date of  payment.  It is a discretionary relief granted by the MACT and,

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in our view, the discretion exercised by the MACT cannot be  said to be inadequate and inappropriate.           For the above said reasons, we find that the amount of  compensation awarded by the MACT to the claimants is just  and equitable and warrants no further enhancement.  We find  the pleas raised by the claimants wholly untenable as there is  no material on record to sustain them.  Hence, the appeal filed  by the claimants for enhancement of compensation stands  dismissed.

C. A. No. 3732 of 2002         This appeal arises out of the order of the High Court  allowing C.W.P. No. 4418/2000 filed by the Oriental Insurance  Company Limited against the award of the MACT to the extent  of payment of interest.  The ground of challenge was that the  claim petition was filed by the claimants on 3rd October, 1988  in which the Insurance Company was arrayed as respondent  No. 3.  The claimants failed to take steps for the service of the  respondents when the claim petition was taken by MACT on  6th December, 1988 and further time was given to take the  steps.  It was on 10th January, 1989 when prayer was made by  the insurer to allow it to file the written statement.  Ultimately,  the written statement was filed in the month of October, 1990.  The defence of the Insurance Company was that it was liable  to pay interest on the amount of compensation from the period  starting from 10th January, 1989 to October, 1990 and not  prior to that date as the insurer had put in appearance before  the MACT only on 10th January, 1989.  The High Court  accepted the writ petition of the Insurance Company and  quashed the Award of the MACT to the extent that the  claimants shall be entitled to interest only for a period of two  years, i.e. from the date of the appearance of the Insurance  Company on 10th January, 1989 to October, 1990 when it filed  the written statement.           Being aggrieved against the said order of the High Court,  the claimants have filed this appeal contending that the writ  petition of the Insurance Company against the award of  interest on the amount of compensation by the MACT was not  maintainable when it had not obtained the right to contest the  proceedings on merit under Section 170 of the Motor Vehicles  Act, 1988 (hereinafter referred to as "the Act").         As noticed in the earlier part of this judgment, the High  Court modified the Award of the MACT to the extent that the  Insurance Company is only liable to pay interest at the rate of  10% per annum on the amount of compensation from 10th  January, 1989 to October 1990, when it filed written  statement to the claim petition and prior to those dates the  insurer was not at fault.            It is not in dispute that the right of appeal is a statutory  right to the parties and where the law provides a remedy by  filing an appeal on limited grounds, the grounds of challenge  cannot be enlarged by filing a petition under Articles 226/227  of the Constitution on the premise that the insurer has limited  grounds available for challenging the Award given by the  MACT.  Under Section 173 of the Act, an insurer has a right to  file an appeal before the High Court on limited grounds  available under Section 149(2).  The appeal being a product of  the statute it is not open to an insurer to take any plea other  than those provided under Section 149(2) of the Act.  However,  in a situation where there is collusion between the claimant  and the insurer or the insured does not contest the claim and  further, if the MACT does not implead the Insurance Company  to contest the claim, in such a situation it is open to the  insurer to seek permission of the MACT to contest the claim  on the ground available to the insured or to a person against

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whom the claim has been made.  If permission is granted and  the insurer is allowed to contest the claim on merit, in that  case it is open to the insurer to file an appeal against the  Award of the MACT on merits.  Thus, in such a situation, the  insurer can question the quantum of compensation awarded  by the MACT.  As noticed earlier in the present case, the  insurer made a challenge to the Award of the MACT before the  High Court in the writ petition on the ground of its liability to  pay the interest on the amount of compensation for a specified  period without obtaining the permission of the MACT as  contemplated under the statute.  Thus, in the light of the  decision of this Court in Sadhana Lodh v. National  Insurance Co. Ltd. & Another [2003] 3 SCC 524, dealing  with the provisions of Ss. 173 and 149(2) of the Act and the  provisions of Articles 226 and 227 of the Constitution and also  Section 115 of the Code of Civil Procedure, 1908, this Court  held that since the insurer has a remedy by filing an appeal  before the High Court on the available defences envisaged  under the statute, writ petition under Article 226/227 of the  Constitution by an insurer challenging the Award of the MACT  is not maintainable.         In our view, the above judgment clinches the issue that  the writ petition filed by the Insurance Company was not  maintainable against the order of the MACT awarding interest  at the rate of 10% per annum on the amount of compensation  from the date of the institution of the claim petition till the  date of payment.  The impugned order, accordingly, is set  aside.  This appeal is allowed.  Consequently, the writ petition  is dismissed.  The award of the MACT granting compensation  to the claimants along with interest is fully justified and it is  accordingly maintained.  The parties are left to bear their own  costs.