JUDGMENT
Pratap Kumar Ray, J.
1. Leave is granted to the appellant to take the point that the brother and sister of the victim since are not the legal heir due to existence of mother of victim as sole legal heir, accordingly, insurance company had no liability to pay the compensation to them.
2. Heard the learned advocates appearing for the parties.
3. A short question involved in this appeal as to whether in the application under Section 163-A of the Motor Vehicles Act, the brother and sister of the victim guided as per Hindu Succession Act, 1956, could be entitled to be the claimants due to existence of sole legal heir mother of victim, in view of the statutory provision as stipulated under Section 163-A of the said Act that the claim application should be filed by the ‘legal heirs’ of the victim and further on the point as to whether the learned Tribunal below was wrong to identify the multiplier to quantify compensation amount on the basis of the age of the victim. The answer of the aforesaid two questions as raised by the learned advocate for the appellant could be given on mere interpretation of the statute namely, Section 163-A which reads to this effect:
163-A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
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(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.
4. On a bare reading of the statute it appears that this is a special provision as to payment of compensation on structured formula. Furthermore, this Section 163-A starts with a non obstante clause by casting a liability to the owner of the motor vehicle or the authorised insurer in a mandatory form by using the word ‘shall’ to pay the compensation by specifying and using the words “as indicated in the Second Schedule”. In view of the non obstante clause and having regard to the use of the word ‘shall’ in the middle portion of Sub-section (1) while putting the liability of payment, this Court is of the view that save and except as mentioned in the Second Schedule there is no scope before the court to add anything more to identify the compensation amount by considering any other multiplier on the basis of the age of the claimants upon giving a go-bye to the statutory mandate that age of the victim should be considered to identify the multiplier. It is a settled legal position that when the legislatures at their wisdom intend to provide a benefit to a class of persons it is their desire to frame and constitute the provision with a non obstante clause. Furthermore, impact of non obstante clause practically excludes the applicability of any other legal principles including the other Acts itself as well as the other instruments and agreements.
5. From the Second Schedule it appears that the age of the victim is the factor to identify the multiplier. The submission of the learned advocate for the appellant that the age of the mother claimant should be identified as a factor to identify the multiplier in the structured formula. Such argument of learned advocate for the appellant is contrary to the statutory provision of Section 163-A of the said Act.
6. As already discussed that section has been formulated by the legislature to provide special benefit by stipulating the mandatory word ‘shall’ that the compensation amount should be paid as indicated in the Second Schedule. In the Second Schedule the age of the victim has been considered to identify the multiplier. This Court accordingly cannot travel beyond the scope of Section 163-A to identify another multiplier on the basis of the age of the claimant mother, by applying the general principle of law relating to payment of compensation wherein the life expectancy of the claimant is considered as a factor. In doing so, on accepting the argument of the learned advocate for the appellant practically, we have to travel beyond the statutory provision and the same shall be nothing but rewriting of the statute by stepping into the shoes of the legislature which is not permissible under the law.
7. It is needless to say further that the court of law only can interpret a statutory provision to the extent and limitation of ironing out the creases in terms of the language of Lord Denning as observed in the case Sea Ford Court Estates Ltd. v. Asher (1949) 2 All ER 155, wherein Lord Denning held “a Judge must not alter the material of which the Act is woven but he can and should iron out the creases”. The view of Lord Denning has been followed by the Apex Court of India in the cases S. Gopal Reddy v. State of Andhra Pradesh and Ahmedabad Municipal Corporation v. Neloy Bhai R. Thakere AIR 1999 SCW 4075.
8. Having regard to such legal position it appears that there is no ambiguity in the language under Section 163-A as in the Schedule for compensation in terms of the Second Schedule it is categorically stipulated that the age of the victim should be the basis of identifying the multiplier. Accordingly, we are unable to accept the argument advanced by learned advocate for the appellant. The submission to that point fails.
9. So far as the other point is concerned as to whether the brothers and sisters who are the claimants being respondent Nos. 2 to 7, are legally entitled to be the claimants in an application under Section 163-A of Motor Vehicles Act, 1988. This question could be answered from the language used under Section 163-A wherein the words ‘legal heirs’ have been mentioned for the purpose of granting compensation under the said provision. In the Motor Vehicles Act there are three provisions to award compensation of different natures, namely, interlocutory and/or final. Section 140 of the Act speaks about interim measure of compensation where liability to pay compensation with limitation of Rs. 50,000 is cast upon the owner of the vehicle. Under Section 163-A the liability is cast upon the owner of the vehicle or the authorised insurer to pay compensation as per structured formula without proof of fault liability of offending driver by the claimants. Under Section 166 there is a provision for payment of compensation under proof of fault liability of driver of offending vehicle. The compensation application under Sections 140 and 163-A of the Motor Vehicles Act could be decided without going into the points as to whether the driver of the offending vehicle was responsible for the accident due to rash and negligent driving. But in an application under Section 166 of the said Act it is required to be proved that driver of the offending vehicle was responsible for accident to cast vicarious liability upon the owner of the vehicle. Furthermore, under Section 163-B it appears that the claimants may exercise their choice to file application either under Section 140 or under Section 163-A of the said Act. Under Section 140 of the said Act there is no mentioning about the status of the claimants whether they should be the legal heirs or dependants of the victim or legal representatives of the victim. But under Section 163-A the status of claimant has been identified with the words ‘legal heirs’ whereas under Section 166 such status of claimant has been identified by the words ‘legal representative’. The words ‘legal heirs’ as appearing in Section 163-A have not been defined in Motor Vehicles Act, 1988. Hence, the meaning of the said word should follow as per the law of succession under which the victim was controlled during his lifetime that is the personal law of succession.
10. In the instant case, since this is an application under Section 163-A culminating to an award, the status of the claimants must be ‘legal heirs’. Parties are Hindus by religion and as such, the Hindu Succession Act, 1956, should be considered to identify the meaning of the words ‘legal heir’ and also to identify the respective share of compensation of the claimants. In the instant case, the victim was a male and he was unmarried. He left behind the mother and sisters and brothers. As per Section 8 of said Hindu Succession Act, the mother is the sole legal heir being the Class I heir under the Schedule, in this case.
11. Hence, this Court is of the view that claimant mother is the only legally entitled person to claim compensation under Section 163-A of the said Act. The brothers and sisters of victim are not eligible to be the claimants.
12. Having regard to the aforesaid observations and findings, accordingly we are of the view that using of the multiplier by the learned Tribunal below was done rightly and properly and we are not interfering with the quantum of compensation.
13. Before parting with the matter the prayer as made by the learned advocate for the respondents praying enhancement of the compensation amount in terms of the quantum as mentioned in the compensation application is now to be considered. Parties have been given an opportunity to place their respective arguments on that point. It appears from the records that initially the application under Section 163-A of the said Act was filed quantifying the amount of compensation to the extent of Rs. 4,00,000. But learned Tribunal below came to a positive finding on the basis of the income of the victim that amount of compensation by following the Second Schedule to Section 163-A should be Rs. 4,00,000 (sic) only. The interpretation of ‘just’ compensation issue in terms of Section 168 of the said Act is now the subject-matter of considering the point as urged by the learned advocate for the respondents praying ‘just’ compensation. It is now a settled law that the claim application is not in identical status with the plaint of a suit. It is also further settled legal position that the quantification of compensation with reference to any motor accident claim case and/or any other claim cases is depending upon the different imponderable factors which cannot be finalised till the evidence is taken and the matter is finally decided. The variable factor on which the quantum of compensation is fixed depends upon the adjudication of income vis-a-vis the age of the victim and other relevant factors. Hence, it appears that in a claim application it is not possible to identify the exact amount of compensation. Furthermore, as the proceeding in the compensation case is not conducted following the Civil Procedure Code strictly, the concept of making necessary prayer and limitation of adjudication on the basis of such prayer is totally absent. The Apex Court also considered the issue on legal impact of Section 168 aforesaid vis-a-vis the responsibility of the court to pass ‘just’ compensation. The word ‘just’ as appearing in the statute was judicially defined by holding that on the basis of the evidence on record whatever amount would be just and proper, the court of law should award the compensation to that effect irrespective of the fact whether in a claim application such amount was prayed for or not. It has been further held that a claim application and its proceeding thereof could be initiated by the concerned Tribunal even on the basis of the police report as to be submitted in terms of Sub-section (6) of Section 158 wherein there is no question of quantifying any compensation, hence there is no limitation and/or embargo to award the compensation by only considering the prayer as made in the compensation application. The Hon’ble Apex Court has accordingly clarified the legal position by settling the law in the judgment of the case Nagappa v. Gurudayal Singh , a judgment of three-Judge Bench wherein in para 16 the Apex Court settled the legal position in the following terms:
(16) From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the court may permit such amendment and allow to raise additional issue and give an opportunity to the patties to produce relevant evidence.
14. From the aforesaid legal proposition as finally settled that there is no embargo before learned Tribunal and/or the court of law to pass award on the basis of the evidence on record, the point now to be considered. From the evidence on record it appears that PW 1 deposed categorically about the income of victim as Rs. 40,000 per annum which was unshaken even in the cross-examination. The learned Tribunal below also came to a positive finding to that effect and finally quantified compensation amount to the tune of Rs. 4,80,000. But such was not granted only because in the claim application only Rs. 4,00,000 was prayed for. This Court is of the view applying the judgment passed by the Apex Court in Nagappa, 2003 ACJ 12 (SC) and having regard to the provision of Section 168 that the learned Tribunal below ought not to have reduced the quantified amount which was reached by judicial finding only for the reason that the claimants did not pray for such amount.
15. In that view, this Court accordingly is modifying the said award by holding that in terms of Section 168 of said Act the claimant mother is entitled to Rs. 4,80,000 which is a ‘just’ compensation. The judgment under appeal of the learned Tribunal below is also modified by holding that only the mother claimant is entitled to get the entire amount of Rs. 4,80,000 and the other claimants are not entitled as they cannot claim the legal heirship in view of existence of Class-I legal heir/mother following the Hindu Succession Act, 1956. The finding and the award of the learned Tribunal below is modified to that extent.
16. It appears from the impugned judgment under appeal that the mother claimant is aged 60 years. Considering her age and family status, this Court is of the view that following the judgment passed in Union Carbide Corporation v. Union of India , which has been followed and applied in the compensation case under the Motor Vehicles Act in Nagappa , on approving the views passed in the case General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas , that 80 per cent of the total amount of compensation and interest as accrued should be kept in a long term fixed deposit so that claimant mother is entitled to get interest month by month to maintain her livelihood. The Supreme Court in Nagappa’s case (supra) in para 29 quoted para 17 of Susamma Thomas (supra) in details which reads to this effect:
(17) In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corporation v. Union of India , in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of Gujarat High Court in Muljibhai Ajarambhai Harijan v. United India Insurance Co. Ltd. 1983 ACJ 57 (Gujarat), this Court offered the following guidelines:
(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;
(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding any existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;
(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to so order;
(v) In the case of widows, the Claims Tribunal should invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is necessary, the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;
(vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;
(viii) In all cases the Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such F.D.R. can be liquidated.
17. Following the said judgment we are of the view that 80 per cent of the compensation amount along with interest as to be considered hereafter should be kept in a long term fixed deposit with a positive direction that the claimant mother would be entitled to get interest therefrom month by month. Such fixed deposit should be opened by the learned Tribunal below in a nationalised bank and/or a post office nearer to the residence of mother/claimant, respondent No. 1.
18. It appears from the judgment the applicability of Section 171 of the Motor Vehicles Act, 1988, was not considered by learned Tribunal below at all though under the statute the learned Tribunal below was cast with the responsibility to decide the issue. Section 171 of the Motor Vehicles Act, 1988 reads to this effect:
171. Award of interest where any claim is allowed.-Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.
19. The Supreme Court considered the impact of Section 171 of the said Act and held that the interest is payable from the date of filing the claim application in the case National Insurance Co. Ltd. v. Keshav Bahadur . Hence, following the aforesaid judgment this Court now will consider what would the rate of interest that could be passed. It appears from the record that the claim application was filed on 19.12.2001 and at the relevant time the bank interest on fixed deposit in terms of the circular of Reserve Bank of India was, within the range of 8 to 9 per cent. Having regard to the statutory provision of Section 171, we are of the view that in addition to the amount of compensation the claimant mother is entitled to get a simple interest at the rate of 8 per cent per annum with effect from the date of filing the claim application as already referred to. It appears from the High Court record that appellant has already deposited the entire compensation amount before the Registrar General, High Court, Calcutta and that the amount of Rs. 2,10,000 has already been withdrawn by claimants. The insurance company, appellant now would be entitled to withdraw the amount along with interest as are lying in the account of High Court Registry and thereafter will deposit the awarded amount of Rs. 4,80,000 along with interest as fixed by this Court with effect from the date as mentioned on making necessary calculation by themselves before the learned Tribunal on deducting Rs. 2,10,000 which has already been withdrawn by the claimant within four weeks from this date positively and a compliance report is to be filed before the High Court Registry after deposit of the same by the insurance company.
20. Learned Tribunal below is directed to check up the calculation and in the event it appears before the learned Tribunal below that actual amount has not been deposited by the insurance company in terms of our judgment, the learned Tribunal below would be at liberty to direct the insurance company to deposit the amount as to be adjudged by the learned Tribunal below on the basis of the calculation.
21. Learned Tribunal below is directed further to invest the entire amount as to be deposited by the insurance company to a long term fixed deposit with a direction that the respondent No. 1, the claimant mother would be entitled to get interest thereon month by month. Copy of long term deposit paper should be supplied to mother claimant.
22. To avoid any complicity, it is made clear that the insurance company would be liable to pay 8 per cent interest on awarded amount of Rs. 4,80,000 from the date of filing the claim application up to the date of deposit of the awarded amount before the High Court Registry and thereafter on Rs. 2,70,000 till the deposit to the Tribunal as per judgment of this Court.
23. The appeal accordingly stands disposed of by modifying the judgment under appeal.
24. Let lower court records be sent back forthwith by special messenger at the cost of the respondent No. 1, the cost of which be deposited within two weeks from this date.
25. Registry is directed to take steps accordingly.
26. Liberty is given to the learned advocates appearing for the parties to take note of the gist of the order.
27. Let xerox certified copy of this order, if applied for, be given to the learned advocates appearing for the parties expeditiously.
Arunabha Basu, J.
28. I agree.