{"id":22068,"date":"2006-03-01T00:00:00","date_gmt":"2006-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bijoy-kumar-dugar-vs-bidyadhar-dutta-ors-on-1-march-2006"},"modified":"2015-04-15T21:09:47","modified_gmt":"2015-04-15T15:39:47","slug":"bijoy-kumar-dugar-vs-bidyadhar-dutta-ors-on-1-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bijoy-kumar-dugar-vs-bidyadhar-dutta-ors-on-1-march-2006","title":{"rendered":"Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors on 1 March, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors on 1 March, 2006<\/div>\n
Author: L S Panta<\/div>\n
Bench: B. N. Srikrishna, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  3731-3732 of 2002\n\nPETITIONER:\nBijoy Kumar Dugar\n\nRESPONDENT:\nBidyadhar Dutta & Ors\n\nDATE OF JUDGMENT: 01\/03\/2006\n\nBENCH:\nB. N. Srikrishna & Lokeshwar Singh Panta\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Lokeshwar Singh Panta, J.\n<\/p>\n
\tThese two appeals involve identical questions of facts and
\nissues, and are, therefore, disposed of by this common
\njudgment.\n<\/p>\n
\tCivil Appeal Nos. 3731-3732 of 2002 are filed by the
\nappellant impugning two judgments and orders dated 19th
\nJuly, 2001 passed by the Division Bench of the High Court of
\nGauhati in M.A.C. Appeal No. 56 of 2000 and in Writ Petition
\n(C) No. 4418 of 2000.  Facts of Civil Appeal No. 3731\/2002
\nshall cover the facts of the other Appeal No. 3732 of 2002.\n<\/p>\n
C. A. No. 3731 of 2002
\n\tFacts in brief are that on 15.4.1988 at about 4.00 p.m.
\nan accident took place at Kharjan Pol of Sahab Pathar,
\nTingrai, a place between Tinsukia and Digboi in the State of
\nAssam wherein two vehicles, namely, Maruti car bearing
\nregistration No. UPI 237 and a bus bearing registration No.
\nASQ 8446, were involved in a head-on collision.  Raj Kumar
\nDugar, the owner of the Maruti car, died in the accident on the
\nspot.  Bidya Dhar Dutta, respondent No. 1, is the owner of the
\nbus and Ajay Baruah, respondent No. 2 herein, was driving
\nthe offending bus, when it met with an accident.  The bus was
\ninsured with the Oriental Insurance Company Limited-
\nrespondent No.3.  The car of the deceased was not insured as
\nhe had purchased it hardly a day or two before the accident.
\nThe appellant-Bijoy Kumar Dugar and his wife-Smt. Panna
\nDevi Dugar [now dead] were the original claimants before the
\nMotor Accident Claims Tribunal (hereinafter referred to as ‘the
\nMACT’), Tinsukia.  They claimed a sum of Rs. 25,00,000\/- as
\ncompensation from the respondents.  The MACT, relying upon
\nthe evidence and other material on record, came to the
\nconclusion that the deceased Raj Kumar Dugar and Ajay
\nBaruah, driver-respondent No. 2, both were driving their
\nrespective vehicles in a rash and negligent manner and the
\naccident was as a result of their contributory negligence for
\nwhich the insurer respondent No. 3 was liable to pay half of
\nthe amount of compensation, i.e. Rs. 1,76,800\/-, to the
\nclaimants.  It also directed that the amount of compensation
\nas awarded be paid with interest at the rate of 10% per annum
\nfrom the date of filing of the claim petition till payment.
\n\tAggrieved by the inadequacy of the amount of
\ncompensation, the claimants filed MAC Appeal No. 56\/2000
\nbefore the High Court. The Oriental Insurance Company also
\nchallenged the award in Writ Petition (C) No.4418\/2000, on
\nthe sole ground that the Company is not liable to pay interest
\non the compensation amount from 1988 as directed by the
\nMACT.  The High Court dismissed the appeal of the claimants
\nfor enhancement of the compensation, but allowed the writ
\npetition of the insurer holding the claimants entitled to
\ninterest on the award amount only for a period of two years,
\ni.e. from 10.1.1989 to October, 1990 when the Insurance
\nCompany appeared and filed its written statement before the
\nMACT.  The Award to that extent, accordingly, was modified.
\nNow, the claimants are before this Court in these two appeals
\nassailing the correctness and validity of the judgments and
\norders dated 19th July, 2001 passed by the High Court.
\nDuring the pendency of these appeals, claimant Smt. Panna
\nDevi Dugar had died and her legal representatives are
\nproforma respondents herein.\n<\/p>\n
\tWe have heard the learned counsel appearing for both
\nsides at length.  Three submissions were advanced by Shri Jos
\nChiramel, learned counsel for the appellant, to assail the order
\nof the High Court dismissing the claimants’ appeal for
\nenhancement of the amount of compensation.  First, that the
\nHigh Court has failed to consider the future prospects of the
\ndeceased who was a Science Graduate, prosecuting law
\nstudies and at the same time he was earning Rs. 4,000\/- per
\nmonth as an attorney-holder of a petrol pump.  According to
\nthe learned counsel, Raj Kumar would have earned minimum
\nRs. 8,000\/- to 10,000\/- per month, if not more, if he had not
\ndied in the accident.  In support of this submission, reliance is
\nplaced on G.M., Kerala S.R.T.C. Vs. Susamma Thomas
\n(Mrs.) & Ors,, reported in [1994] 2 SCC 176 = [1994] ACJ 1,
\nand Sarla Dixit (Smt.) & Anr. Vs. Balwant Yadav & Ors.
\n[1996] 3 SCC 179.\n<\/p>\n
\tIt was next contended that the High Court has erred in
\naccepting the finding of the MACT in apportioning the liability
\nof the deceased and the driver of bus in the ratio of 50:50.  It
\nwas then contended that the interest at the rate of 10% per
\nannum awarded by the MACT is on the lower side and ought
\nto have been enhanced by the High Court to 18% per annum
\nas claimed by the claimants.\n<\/p>\n
\tThe learned counsel appearing for the contesting
\nrespondent on the other hand, has sought to support the
\norders of the High Court.  He submitted that this Court, in
\nexercise of power under Article 136 of the Constitution of
\nIndia, would ordinarily not interfere with the concurrent
\nfindings of facts recorded by the MACT and affirmed by the
\nHigh Court.\n<\/p>\n
\tTo appreciate the respective contentions of the learned
\ncounsel for the parties, we have gone through the relevant
\nmaterial on record.  It is by now well-settled that the
\ncompensation should be the pecuniary loss to the dependants
\nby the death of a person concerned.  While calculating the
\ncompensation, annual dependency of the dependants should
\nbe determined in terms of the annual loss, according to them,
\ndue to the abrupt termination of life. To determine the
\nquantum of compensation, the earnings of the deceased at the
\ntime of the accident and the amount, which the deceased was
\nspending for the dependants, are the basic determinative
\nfactors.  The resultant figure should then be multiplied by a
\n`multiplier’.  The multiplier is applied not for the entire span of
\nlife of a person, but it is applied taking into consideration the
\nimponderables in life, immediate availability of the amount to
\nthe dependants, the expectancy of the period of dependency of
\nthe claimants and so many other factors.  Contribution
\ntowards the expenses of the family, naturally is in proportion
\nto one’s earning capacity.  In the present case, the earning of
\nthe deceased and consequently the amount which he was
\nspending over the members of his family, i.e. dependency is to
\nbe worked out on the basis of the earnings of the deceased at
\nthe time of the accident.  The mere assertion of the claimants
\nthat the deceased would have earned more than Rs. 8,000\/- to
\nRs.10,000\/- per month in the span of his lifetime cannot be
\naccepted as legitimate income unless all the relevant facts are
\nproved by leading cogent and reliable evidence before the
\nMACT.  The claimants have to prove that the deceased was in
\na trade where he would have earned more from time to time or
\nthat he had special merits or qualifications or opportunities
\nwhich would have led to an improvement in his income.  There
\nis no evidence produced on record by the claimants regarding
\nfuture prospects of increase of income in the course of
\nemployment or business or profession, as the case may be.  It
\nis stated that the deceased was about 24 years at the time of
\nthe accident.  The MACT has accepted Rs. 4,000\/- per month,
\nas the earning of the deceased and after deducting Rs. 400\/-
\nper month for his pocket expenses, the remaining sum of Rs.
\n3600\/- has been divided into three equal shares, out of which
\ntwo shares, i.e. Rs. 2400\/- per month or Rs. 28,800\/-
\n(wrongly mentioned as Rs. 28,000\/- in the award), were
\nassessed as loss to both the claimants, who were the parents
\nof the deceased.  The ages of the claimants are stated to be
\nbetween 45 and 50 years and accordingly multiplier of 12 was
\napplied.  Thus, a sum of Rs. 28,800\/- X 12 = Rs. 3,45,600\/-
\nwas awarded as compensation.  In addition thereto, a sum of
\nRs. 2,000\/- has been given for funeral expenses and a further
\namount of Rs. 6,000\/- under the head “Loss of Estate”.  The
\ntotal sum awardable is Rs. 3,53,600\/- but since the deceased
\nwas held liable for contributory negligence, the liability of the
\ninsurer with whom the bus in question was insured is fixed at
\n50%, i.e. to the extent of Rs. 1,76,800\/- with interest at the
\nrate of 10% per annum from the date of the filing of the claim
\napplication till the date of payment. \tThe deceased, a young
\nboy of 24 years old, was unmarried and the claimants were his
\nfather and mother, the dependency has to be calculated on the
\nbasis that within two or three years the deceased would have
\nmarried and raised family and the monthly allowance he was
\ngiving to his parents would have been cut down.  Thus, in our
\nview, the MACT has awarded just and reasonable
\ncompensation to the claimants.\n<\/p>\n
\tWe have gone through the ratio of the above decisions
\nrelied upon by the claimants in support of the submission for
\nthe enhancement of the amount of compensation.  In G.M.,
\nKerala SRTC’s case (supra), the claimants have satisfactorily
\nproved on record that the deceased person in that case had a
\nmore or less stable job in the newspaper establishment of
\nMalayala Manorama on a monthly salary of Rs. 1032\/-.  On
\nthe basis of the evidence found on record in regard to the
\nprospects of the advancement in the future career of the
\ndeceased, this Court has made higher estimate of monthly
\nincome at RS. 2,000\/- per month as the gross income and
\ngranted relief to the claimants.\n<\/p>\n
\tIn Sarla Dixit’s case, the widow and minor daughter of
\nCaptain Ramakant Dixit who died in the accident filed claim
\npetition before the Motor Accident Claims Tribunal claiming a
\nsum of Rs. 6,12,524\/- on various heads.  The Claims Tribunal
\nfound deceased Ramakant guilty of contributory negligence to
\nthe extent of 75% and the truck driver was negligent only to
\nthe extent of 25% and awarded in all Rs. 42,569\/- to the
\nclaimants.  On appeal, the High Court held that the claimants
\nwere entitled to get total compensation of Rs. 54,000\/- and
\nobserved that deceased Ramakant was not guilty of any
\ncontributory negligence and the entire negligence rested on the
\nshoulder of driver of truck and consequently the owner of the
\ntruck was held liable to meet the claim of compensation
\nawarded to the claimants.  Interest at the rate of 6% from the
\ndate of filing of the claim petition was awarded.  Being
\naggrieved, the claimants filed Special Leave Petition before this
\nCourt against the inadequacy of the compensation granted by
\nthe High Court.  This Court, after taking into consideration the
\nmaterial facts on record, found that the deceased was the only
\nbreadwinner in the family of the claimants.  His life was cut
\nshort in the prime period at the age of 27 by way of an
\naccident.  He had put in seven years’ of military service by that
\ntime.  He was earlier a Lieutenant in the Army.  Then he was
\npromoted to the rank of the Captain and was fully qualified for
\npromotion to the rank of a Major at the time of his death.  The
\nclaimants filed a certificate of Deputy Commandant and OC
\nTps. to show that the deceased had obtained Sena Seva
\nService Medal, Sangram Medal, Poorvi Star and 25th Indept.
\nAnniversary Medal during Military active service in various
\noperation areas.  The deceased at the time of his death had
\npassed his M.A. examination and he was in the time-scale of
\nRs. 1000-50-1550.  He had a large number of years of military
\nservice ahead of him which would have certainly taken him to
\nhigher echelons in his military career.  The evidence proved
\nthat the deceased was a teetotaller and he did not smoke or
\ndrink.  On the basis of the entire evidence, the claimants were
\nheld entitled for the enhancement of the amount of
\ncompensation.\n<\/p>\n
\tIn the present case, as noticed, there is no evidence
\nbrought on record by the claimants to show the future
\nprospects of the deceased.  This contention, in our view, is not
\ntenable to sustain it.\n<\/p>\n
\tAdverting to the next contention of the claimants, no
\ndoubt the High Court has not dealt with the point in issue.
\nHowever, we have noticed the reasoning and finding of the
\nMACT recorded under Issue No.2.   It is the evidence of Rajesh
\nKumar Gupta-P.W.2 who was travelling in the Maruti car
\nalong with the deceased Raj Kumar Dugar on the day of the
\naccident that he also suffered some injuries in the said
\naccident.  He stated that while coming from Digboi, the Maruti
\ncar being driven by the deceased met with an accident at a
\nplace near Kharjan Pol.  Before the accident, Raj Kumar Dugar
\nnoticed a passenger bus coming from the opposite direction
\nand the movement of the bus was not normal as it was coming
\nin a zigzag manner.  The Maruti car being driven by the
\ndeceased Raj Kumar Dugar and the offending bus had a head-
\non collision.  The MACT has not accepted the evidence of P.W.
\n2 to prove that the driver of the offending bus was driving the
\nvehicle in abnormal speed.  If the bus was being driven by the
\ndriver abnormally in a zigzag manner, as P.W. 2 wanted to
\nbelieve the Court, it was, but natural, as a prudent man for
\nthe deceased to have taken due care and precaution to avoid
\nhead-on collision when he had already seen the bus from a
\nlong distance coming from the opposite direction.  It was head-
\non collision in which both the vehicles were damaged and
\nunfortunately, Raj Kumar Dugar died on the spot.  The MACT,
\nin our view, has rightly observed that had it been the knocking
\non one side of the car, the negligence or rashness could have
\nbeen wholly fastened or attributable to the driver of the bus,
\nbut when the vehicles had a head-on collision, the drivers of
\nboth the vehicles should be held responsible to have
\ncontributed equally to the accident.  The finding on this issue
\nis a finding of fact and we do not find any cogent and
\nconvincing reason to disagree with the well-reasoned order of
\nthe MACT on this point. The MACT has awarded interest at
\nthe rate of 10% per annum on the amount of compensation
\nfrom the date of filing of the claim application till the date of
\npayment.  It is a discretionary relief granted by the MACT and,
\nin our view, the discretion exercised by the MACT cannot be
\nsaid to be inadequate and inappropriate.\n<\/p>\n
\tFor the above said reasons, we find that the amount of
\ncompensation awarded by the MACT to the claimants is just
\nand equitable and warrants no further enhancement.  We find
\nthe pleas raised by the claimants wholly untenable as there is
\nno material on record to sustain them.  Hence, the appeal filed
\nby the claimants for enhancement of compensation stands
\ndismissed.\n<\/p>\n
C. A. No. 3732 of 2002
\n\tThis appeal arises out of the order of the High Court
\nallowing C.W.P. No. 4418\/2000 filed by the Oriental Insurance
\nCompany Limited against the award of the MACT to the extent
\nof payment of interest.  The ground of challenge was that the
\nclaim petition was filed by the claimants on 3rd October, 1988
\nin which the Insurance Company was arrayed as respondent
\nNo. 3.  The claimants failed to take steps for the service of the
\nrespondents when the claim petition was taken by MACT on
\n6th December, 1988 and further time was given to take the
\nsteps.  It was on 10th January, 1989 when prayer was made by
\nthe insurer to allow it to file the written statement.  Ultimately,
\nthe written statement was filed in the month of October, 1990.
\nThe defence of the Insurance Company was that it was liable
\nto pay interest on the amount of compensation from the period
\nstarting from 10th January, 1989 to October, 1990 and not
\nprior to that date as the insurer had put in appearance before
\nthe MACT only on 10th January, 1989.  The High Court
\naccepted the writ petition of the Insurance Company and
\nquashed the Award of the MACT to the extent that the
\nclaimants shall be entitled to interest only for a period of two
\nyears, i.e. from the date of the appearance of the Insurance
\nCompany on 10th January, 1989 to October, 1990 when it filed
\nthe written statement.\n<\/p>\n
\tBeing aggrieved against the said order of the High Court,
\nthe claimants have filed this appeal contending that the writ
\npetition of the Insurance Company against the award of
\ninterest on the amount of compensation by the MACT was not
\nmaintainable when it had not obtained the right to contest the
\nproceedings on merit under Section 170 of the Motor Vehicles
\nAct, 1988 (hereinafter referred to as “the Act”).
\n\tAs noticed in the earlier part of this judgment, the High
\nCourt modified the Award of the MACT to the extent that the
\nInsurance Company is only liable to pay interest at the rate of
\n10% per annum on the amount of compensation from 10th
\nJanuary, 1989 to October 1990, when it filed written
\nstatement to the claim petition and prior to those dates the
\ninsurer was not at fault.\n<\/p>\n
\tIt is not in dispute that the right of appeal is a statutory
\nright to the parties and where the law provides a remedy by
\nfiling an appeal on limited grounds, the grounds of challenge
\ncannot be enlarged by filing a petition under Articles 226\/227
\nof the Constitution on the premise that the insurer has limited
\ngrounds available for challenging the Award given by the
\nMACT.  Under Section 173 of the Act, an insurer has a right to
\nfile an appeal before the High Court on limited grounds
\navailable under Section 149(2).  The appeal being a product of
\nthe statute it is not open to an insurer to take any plea other
\nthan those provided under Section 149(2) of the Act.  However,
\nin a situation where there is collusion between the claimant
\nand the insurer or the insured does not contest the claim and
\nfurther, if the MACT does not implead the Insurance Company
\nto contest the claim, in such a situation it is open to the
\ninsurer to seek permission of the MACT to contest the claim
\non the ground available to the insured or to a person against
\nwhom the claim has been made.  If permission is granted and
\nthe insurer is allowed to contest the claim on merit, in that
\ncase it is open to the insurer to file an appeal against the
\nAward of the MACT on merits.  Thus, in such a situation, the
\ninsurer can question the quantum of compensation awarded
\nby the MACT.  As noticed earlier in the present case, the
\ninsurer made a challenge to the Award of the MACT before the
\nHigh Court in the writ petition on the ground of its liability to
\npay the interest on the amount of compensation for a specified
\nperiod without obtaining the permission of the MACT as
\ncontemplated under the statute.  Thus, in the light of the
\ndecision of this Court in Sadhana Lodh v. National
\nInsurance Co. Ltd. & Another<\/a> [2003] 3 SCC 524, dealing
\nwith the provisions of Ss. 173 and 149(2) of the Act and the
\nprovisions of Articles 226 and 227 of the Constitution and also
\nSection 115 of the Code of Civil Procedure, 1908, this Court
\nheld that since the insurer has a remedy by filing an appeal
\nbefore the High Court on the available defences envisaged
\nunder the statute, writ petition under Article 226\/227 of the
\nConstitution by an insurer challenging the Award of the MACT
\nis not maintainable.\n<\/p>\n
\tIn our view, the above judgment clinches the issue that
\nthe writ petition filed by the Insurance Company was not
\nmaintainable against the order of the MACT awarding interest
\nat the rate of 10% per annum on the amount of compensation
\nfrom the date of the institution of the claim petition till the
\ndate of payment.  The impugned order, accordingly, is set
\naside.  This appeal is allowed.  Consequently, the writ petition
\nis dismissed.  The award of the MACT granting compensation
\nto the claimants along with interest is fully justified and it is
\naccordingly maintained.  The parties are left to bear their own
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors on 1 March, 2006 Author: L S Panta Bench: B. N. Srikrishna, Lokeshwar Singh Panta 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-22068","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBijoy Kumar Dugar vs Bidyadhar Dutta & Ors on 1 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bijoy-kumar-dugar-vs-bidyadhar-dutta-ors-on-1-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors on 1 March, 2006 - 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