ORISSA HIGH COURT: CUTTACK MACA No.145 of 2010 From a judgment dated 13.10.2009 passed by Shri K.L. Mohapatra, 2nd M.A.C.T., Cuttack in Misc. Case No.705 of 1992. ----------------- Divisional Manager, The New India Assurance Company Ltd., Cuttack … Appellant. -Versus- Batulan Bibi & Another … Respondents. For Appellant : M/s S.A. Ali & S.Kalyan For Opp. Parties : M/s B.N.Samantaray, P.Jena, Anuman Ara & D.Patnaik (for Respondent No.1) M/s. Antaryami Dash & J.Moharana (for Respondent No.2) ----------- P R E S E N T : THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard and disposed of on 08.12.2010 B.N.Mahapatra, J. This appeal has been filed by New India Assurance Company Ltd. challenging the correctness of the award dated 13.10.2009 passed by the learned Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No.705 of 1992. 2. This case has a chequerred career. The scenario of facts reveals that one Sk. Alaudin @ Sk. Alarakha died in a motor vehicular accident on 05.6.1992, who is a Muslim by religion and had two wives. Two wives filed two separate claim petitions before the Tribunal claiming compensation. The claim petition filed by Jaybunisa Bibi, one of the wives of the deceased, being Misc. Case No.491 of 1992 was dismissed by the learned Tribunal with the observation that she will be impleaded as party in the other claim petition being Misc. Case No.705 of 1992 filed by Batulan Bibi, the other wife of the deceased. In the claim petition the Tribunal awarded a sum of Rs.69,800/- with a direction that the same shall be distributed equally among the two wives. 3. Challenging the said order three appeals were filed before this Court. The Insurance Company filed an appeal challenging its liability and involvement of the particular vehicle whereas claimant- two wives filed two appeals for enhancement of the award amount. The matters were remanded by this Court to the Tribunal for fresh consideration in accordance with law. 4. On remand, the learned Tribunal after taking into consideration the oral and documentary evidence, came to the conclusion that the truck bearing registration No.WB-03-4002 was involved in the accident and awarded compensation of Rs.1,25,000/- with interest @ 7 % per annum from the date of filing of the claim petition till the date of payment. The Insurance Company was directed to pay the said amount of compensation within one month from the date of order. It was further directed that the said compensation amount shall be distributed equally among the two wives. 5. Challenging the said order this appeal has been filed by the Insurance Company on the following three grounds:- 2 i) The finding of the Tribunal that the truck bearing registration No.WB-03-4002 was involved in the accident is not correct. ii) The claimants have not proved the income of the deceased, but the Tribunal has taken it as Rs.15,000/- per annum. iii) The offending vehicle was not insured with the Insurance Company. 6. So far as the first question is concerned, learned counsel for the Insurance Company submits that in the F.I.R, the name of the owner of the offending vehicle was not disclosed. The police filed a final report with an observation that though the accident was true, there was no clue. It is further submitted that one of the eyewitnesses could not say the registration number of the offending vehicle. The Tribunal has erred in law in holding that the truck bearing registration No.WB-03-4002 was involved in the accident. Learned counsel for the claimants submits that all the eyewitnesses in their evidence stated that the vehicle bearing registration No.WB-03-4002 was involved in the accident. It is further submitted that in the F.I.R. itself the registration number of the offending vehicle has been mentioned. The Tribunal, which is a fact finding authority, after analyzing and taking into consideration the evidence on record has come to the conclusion that the Truck bearing registration No.WB-03- 4002 was involved in the accident. The learned counsel for the appellant-Insurance Company has not brought any material to the 3 notice of this Court in support of his contention that the vehicle in question was not involved in the accident. In view of the same, this Court is of the considered view that the aforesaid vehicle was involved in the accident. 7. The second contention of learned counsel for the Insurance Company is that in absence of any proof in support of income of the deceased, the Tribunal has committed wrong in taking the income of the deceased as Rs.15,000/- per annum. It is further submitted that while disposing of the earlier claim petition the Tribunal awarded Rs.69,800/- towards compensation and in absence of any new fresh material on record, the Tribunal has committed wrong in enhancing the compensation amount from Rs.69,800/- to Rs.1,25,000/-. Learned counsel for the claimants submits that Second Schedule to the Motor Vehicle Act provides that in case of death of a person who has no income, the notional income should be taken as Rs.15,000/- per annum. According to learned counsel for the Insurance Company, the notional income provided in schedule-2 was inserted in the year 1994; whereas the accident occurred in 1992. Therefore, the notional annual income of Rs.15,000/- should not be applied in the case at hand. 8. Now the question that falls for consideration is whether the Tribunal is justified to adopt the notional income of Rs.15,000/- per annum as provided in the Second Schedule attached to the M.V. 4 Act which came into force in the year 1994 while making an order of payment of compensation in the year 2009 in respect of the accident occurred in the year 1992. At this juncture, it would be profitable to refer the decision of the apex Court in Rathi Menon Vs. Union of India; AIR 2001 SC 1333, wherein it is held that the statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. Hence, the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant. Though the word ‘compensation’ is not defined in the Act or in the Rules, it is the giving of an equivalent or substitute of equivalent value. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims in a speedier measure. If a person files a suit the amount of compensation will depend upon what the Court considers just and reasonable on the date of determination. Hence, when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination. 9. Needless to say that the M.V. Act is a social benevolent statute. Section 163A provides that notwithstanding anything contained in the M.V. Act or in any other law for the time being in 5 force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of use of the motor vehicle, compensation, as indicated in the Second Schedule to the legal heirs or the victim, as the case may be. Pursuant to such provision, the second Schedule to the M.V. Act was inserted with effect from 14.11.1994 which provides that for the purpose of computing compensation, the annual income of a non-earning person shall be taken as Rs.15,000/- per annum. In the present case, the amount of compensation was determined by the Tribunal on 13.10.2009 when the second Schedule to M.V. Act providing notional annual income of Rs.15,000/- per annum in case of non-earning person was in force. Therefore, the Tribunal has committed no error by taking into consideration of notional income as provided in the second Schedule while determining the just compensation. 10. Learned counsel for the insurance Company submits that the learned Tribunal has erred in holding that the offending vehicle was covered by valid insurance policy and it’s driver had valid driving licence at the time of accident on the basis of letter of the owner of the offending vehicle and Xerox copy of the Insurance Company. Learned counsel appearing for the claimant-respondents submits that though the two documents, relying upon which the learned Tribunal held that the offending vehicle was covered by valid insurance policy and it’s driver had valid driving licence at the time of accident were within the knowledge of the Insurance Company, no 6 step was taken by the Insurance Company to dispute such documents. It is further submitted that the Insurance Company has not led any evidence in support of its contention that the offending vehicle was not insured with the Insurance Company and the driver of the said vehicle did not have valid driving licence at the time of accident. The finding of the Tribunal with regard to the insurance Company and the driving licence of the offending vehicle is reproduced hereunder. “In the present case, the claimant/petitioner has proved vide Ext.3 that the offending truck was insured under O.P.2 company and the insurance was valid by the date of accident. The said fact also gets support from the Xerox copy of the policy filed by the owner of the offending truck (O.P.1). No evidence has been led from the side of O.P.No.2 regarding the breach of any policy condition. O.P.W.1 stated that no notice was received regarding the Insurance policy and the D.L. of the driver for which the records of the office of the company could not be verified regarding the aforesaid documents. Since the accident took place during the period of validity of the Insurance Policy issued by O.P.No.2 company and no evidence has been led regarding the breach of policy condition, the Insurance Company, O.P. No.2 cannot exonerate its liability to pay compensation to the petitioner.” In view of the above categorical finding of the learned Tribunal and in absence of any evidence adduced by the Appellant- Insurance Company in support of its contention, this Court is not inclined to interfere with the finding of the learned Tribunal. 11. In view of the above, the Insurance Company is directed to deposit the total amount of compensation of Rs.1.25 lakhs along 7 with interest @ 7% per annum from the date of filing of claim petition dated 11.08.1992 till the date of actual payment within eight weeks from today before the Tribunal. On deposit of the said amount, the Tribunal shall disburse the same to the claimants in the manner it has directed in its order. 12. On production of evidence in support of payment of the awarded amount along with interest before the Registrar (Judicial) of this Court, the statutory deposit of Rs.25,000/- along with interest shall be refunded to the Insurance Company. In the result, the appeal is dismissed with the above observation. ..…………………….. B.N.Mahapatra, J Orissa High Court, Cuttack Dated 8th day of December, 2010/bp/ss/skj/ssd 8