Amiyo Roy v. The Director And Another

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA FMAT/3/2021 IA No. CAN/1/2021 AMIYO ROY ... APPELLANT VS.

THE DIRECTOR AND ANOTHER ... RESPONDENTS For the Appellant : Mrs. Anjili Nag For the respondent No.1 : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal For the respondent No.2 : Mr. Lokesh Chezian Hearing on : July 28, 2022 Judgment on : July 29, 2022 SABYASACHI BHATTACHARYYA, J.

1.

The appellant is the widow of late Shyamal Roy and the respondent No.2 is mother of the said deceased. The said Shyamal Roy having died due to a motor accident, the appellant filed a claim for compensation bearing MACT/14/2014 under the Motor Vehicles Act. In the said proceeding, the parents of the deceased filed an application

under Order I Rule 10 of the Code of Civil Procedure for being impleaded as parties. They also filed by an independent compensation case bearing MACT/29/2014. The two cases were clubbed together and Purnalaxmi Roy, the present respondent no.2 was also clubbed as a claimant in the appellant's compensation claim. 2.

On the date when the claim petition was filed by the appellant, she was still unmarried after the demise of her ex-husband Shyamal Roy. However, when the Tribunal passed an award in the two compensation cases, the appellant had remarried in the meantime. 3.

The Tribunal, by the impugned award dated August 31, 2021, disposed of the two claim cases under Section 166 of the Motor Vehicles Act granting full compensation on account of demise of Late Shyamal Roy to the present respondent no.2, Purnalaxmi Roy, to the tune of Rs.52,75,752/- along with simple interest at the rate of nine percent from the date of filing of the MACT case, that is, April 9, 2014 till realization of the awarded amount.

4.

The appellant's claim petition was dismissed on contest on the ground that the appellant had remarried in the meantime. 5.

Learned counsel for the appellant, while supporting her challenge to the said award, submits that the relevant date in the present context is the date of filing of the claim petition. Since the appellant had not yet remarried on the date of filing of her

compensation claim, she was entitled to compensation on account of death of her deceased husband.

6.

It is argued that dependency on the deceased is not a relevant consideration in granting compensation, since the relevant provisions of the Motor Vehicle Act, 1988 (for short, MV Act, 1988) provide that the compensation has to be paid to the "legal representative" of the deceased and not the "dependent".

7.

It is further argued that the amount of entitlement to compensation has to be calculated as per the devolution under the relevant Succession Act, in the present case, the Hindu Succession Act, 1956.

8.

Learned counsel for the appellant further contends that the Hindu Widows' Remarriage Act, 1856 was repealed and the Hindu Succession Act, 1956 governs the field, which confers right to estate on a widow.

9.

Since widow remarriage has been encouraged under the law, an interpretation leading to deprivation of the widow, merely on the ground of subsequent remarriage, would be contrary to the intention of the legislature.

10.

Learned counsel places reliance on the judgment of Manjuri Bera vs Oriental Insurance Company Ltd and others reported at (2007)

10 SCC 643 wherein it was held that a married daughter is entitled to claim compensation under Section 166 of the Motor Vehicles Act, 1988.

11.

Learned counsel next cites Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation and another reported at (2009) 6 SCC 121 in support of her argument that an objective approach in assessing compensation is "just compensation" and the basic requirement for arriving at the assessment is to maintain uniformity and consistency in determining compensation among the decisions of the Tribunals and Courts. Justice and justness, it was held, emanate from equality in treatment, consistency and thoroughness in adjudication and fairness and uniformity in the decision making process and the decisions.

12.

Learned counsel next cites a judgment of Bombay High Court (Nagpur Bench) in Bajaj Allianz General Insurance Company Limited vs. Smt Pushpa Narayan Khurde reported at (2021) 2 ACC 174, wherein it was held, inter alia, that loss of dependency consequent to death of husband does not cease merely on account of remarriage. 13.

Learned counsel next cites National Insurance Company Limited vs. Birender and others reported at AIR 2020 SC 434 where the Supreme Court held that even major married earning sons of the

deceased, being legal representatives, have a right to apply for compensation in case of accidental death.

14.

Learned counsel for appellant next cites a judgment of a learned Single Judge of the Delhi High rendered in Dincy Devassy vs. United India Insurance Co. and others wherein it was held, inter alia, that the calculation of loss of dependency was on the basis of the widow's dependency on her deceased husband and is equal to the loss of dependency suffered by her parents in-law. It was further held that the decision to remarry was entirely her personal choice over which nobody can have any say. Her right to claim compensation crystallizes upon her husband's life being tragically snatched away in the motor accident. Therefore, it was observed, simply because she has now remarried, her claim does not abate or lessen. 15.

It is submitted that the said judgment was challenged before the Supreme Court, but the same was dismissed at the stage of admission of S.L.P.

16.

On the other hand, learned counsel appearing for the respondent no.2 (mother of the deceased) submits that the present appellant is a government servant having sufficient source of income as is the admitted position in her deposition. That apart, it is argued that, after remarriage, the appellant does not remain a dependent of

the deceased ex-husband within the contemplation of the Hindu Adoption and Maintenance Act, 1956.

17.

It is argued, by placing reliance on the judgment of Anju Mukhi and another vs. Satish K. Bhatia and others reported at (2010) 15 SCC 630, that the main purpose of the Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act") is to award compensation for loss of income on the death of a person. On remarriage, it was observed, there is no longer a loss of income. Now the dependency has shifted on to the new husband. Therefore, the Supreme Court agreed with the High Court in the said case that after remarriage, a widow would not be entitled to any compensation.

18.

Learned counsel for the respondent no.2 then cites a Division Bench judgment of the Orissa High Court in State vs. Archana Nayak reported at AIR 1987 (Ori) 82 in support of the proposition that, after remarriage the widow of the deceased having substantial income cannot be granted compensation, since compensation is granted for loss of dependency.

19.

It was specifically stated in the said judgment that, to maintain an application for compensation, the claimant must not only be the legal representative at the time of death of the husband and at the time of presentation of the application but should also continue to be a legal representative until the final decision.

20.

Learned counsel for the respondent no.2 next cites a judgment of a learned Single Judge of the Andhra Pradesh High Court reported at 2005 ACJ 1921 (United India Insurance Company Limited vs. Eda Anjanamma), for reiterating the same proposition. 21.

Learned counsel for the appellant, in reply, reiterated her arguments and submits that the estate from which the appellant seeks compensation is not the property of her in-laws but her deceased husband's property, to which she became entitled at the time of death and remained so at the time of filing the claim petition. 22.

The right to claim compensation does not go away after remarriage, simply due to such remarriage, it is argued. 23.

The moot question which falls for consideration in the present case is whether the widow of the deceased, subsequently remarried, is still entitled to get compensation on such accidental death under Section 166 of the MV Act. Section 166 stipulates, in case of death resulting from the accident, that an application for compensation can be made by all or any of the 'legal representatives' of the deceased or his duly authorized agent. Interestingly, the expression 'legal representative' has not been defined in the MV Act, 1988. The Supreme Court, in majority of the judgments operating in the field, has interpreted the term in consonance with the definition of the same in Section 2 (11) of the Code of Civil Procedure, which defines 'legal

representative' as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

24.

The definition of the term in Section 2(1)(g) of the Arbitration and Conciliation Act, 1996 is in similar tune. 25.

In Manjuri Bera (supra), cited by the petitioner, the Supreme Court held, while discussing the scope of Sections 140 and 166 of the MV Act, that the liability under Section 140 of the Act does not cease because there was absence of dependency. The right to file a claim application has to be considered in the background of the right to entitlement. The Supreme Court distinguished Section 166 of the MV Act to be in the nature of recovery proceedings. The Supreme Court went on to discuss the quantum of compensation payable where a legal representative who is not dependent files an application for compensation, which was held to be not less than the liability referable to Section 140 of the MV Act.

26.

It was mooted by a learned Single Judge of the Bombay High Court (Nagpur Bench), in the context of Section 166 that Section 2(11) of the Code of Civil Procedure provides the definition of 'legal representative' and, in deciding proceedings under Section 166 of the

MV Act, such interpretation can be borrowed. The Bombay High Court relied on Manjuri Bera (supra) and other judgments in such context. 27.

It was further elaborated by the Bombay High Court that widow is certainly one of the heirs on whom property of a Hindu devolves as per intestate succession. The evaluation of the word 'dependent' was also discussed. It was further held that for such purpose, the Tribunal has to consider the situation prevailing when the cause of action arises, that is, when the accident took place. At that time, when the widow is legal representative of the deceased, certainly she is entitled to claim compensation and the right already vested in her, it was observed, and cannot be divested subsequently. 28.

The Delhi High Court in Dincy Devassy (supra) reiterated in no uncertain terms that the calculation of loss of dependency was on the basis of the dependency of the widow on her deceased husband; her loss is equal to the loss of dependency suffered by the parents-in-law. Her decision to remarry was entirely her personal choice over which nobody can have any say. It was further held that her right to claim compensation crystallizes upon her husband's life being tragically snatched away in the motor accident. Therefore, simply because she has now remarried, her claim does not abate or lessen. 29.

From the said judgment, a Special Leave Petition was preferred, which was, however, dismissed at the outset.

30.

Although such dismissal at the SLP stage does not attract the doctrine of merger, the ratio of the Delhi High Court remained unaltered all the same.

31.

The latest judgment of the Supreme Court on the field, among those which have been cited in the present case, is Birender's case, where the Supreme Court went so far as to observe that even major married and earning sons of the deceased, being legal representatives, have the right to apply for compensation in case of accidental death. Under Clause (c) of Section 166 (1) of the MV Act, the expression 'legal representative' was referred in the context of Manjuri Bera (supra), as discussed above.

32.

The judgment in Sarla Verma (Smt.) & Ors (supra), however, is on the general principles governing the determination of quantum of compensation and do not have any direct bearing on the question at hand. Hence, the same need not be discussed in detail for the present purpose.

33.

Although the ratio laid down in the judgments referred to by the respondent are also based on sound logic, those are contrary to the well settled principle of law, as discussed above. The learned Single Judge of the Andhra Pradesh High Court and the Division Bench of the Orissa High Court proceeded on the premise that compensation is grant of loss of dependency and that to maintain the application for

compensation, the claimant must not only be a legal representative at the time of the death of husband and the time of presentation the application, but should also continue to be a legal representative until the final decision. Section 22 of the Hindu Adoption and Maintenance Act, 1956 was also taken into consideration by the Orissa High Court. The Andhra Pradesh High Court is in similar tune. 34.

The Supreme Court held in Anju Mukhi and another (supra), in the year 2003, that the main purpose of the MV Act is to award compensation for loss of income on the death of a person and on remarriage there is no longer a loss of income and the dependency shifts on to the new husband and therefore after remarriage a widow would not be entitled to any compensation. However, there was no discussion in detail on the reasoning and ratio for coming to such conclusion in as many words. Unlike Birender's case and Manjuri Bera (supra), the issue, the thesis leading to the conclusion, the antithesis and the final synthesis do not find place in the said judgment. Hence, vis-à-vis the cases of the Supreme Court cited by the petitioner, the said judgment of the Supreme Court cannot be said to have laid down a specific ratio. In any event, the subsequent Supreme Court judgment of 2020 was rendered by taking into consideration most of the previous judgments in the field and, as such, is apt in the facts and circumstances of the present case.

35.

Since the expression 'legal representative' has been used in Section 166 of the MV Act and the same term has been defined in similar manner in both the Code of Civil Procedure and the Arbitration and Conciliation Act, 1996, instead of entering into the dispute as to whether the principle of Hindu Succession Act, 1956 or the Hindu Adoptions and Maintenance Act, 1956 is applicable, it would be appropriate to adhere to the language used by the statute itself. 36.

There may be solid arguments on both sides of the proposition that the right to get compensation does not survive after remarriage, the specific language used in Section 166 fixes the time of making the claim as the relevant time to be considered. Section 166 opens with the phrase: "an application for compensation ... may be made..." which indicates that the juncture of making the application, and not its disposal, is relevant for the present purpose. If the intention of the Legislature was otherwise, the language of the Section would perhaps be somewhat like "Compensation can be granted..." instead of an application being made.

37.

In the present case, the petitioner had remarried only subsequent to filing of the claim petition. As such, at the time when the application for compensation was made, it was very much maintainable at her instance, whichever logic is followed.

38.

On the other hand, the right of the widow to compensation accrues not merely from filing the application for compensation, but on the very date of demise of the victim. As soon as the deceased meets his unfortunate demise, the legal right of the petitioner is crystallized.

39.

Once such right devolves on the petitioner in the capacity of widow of deceased, she cannot be divested of such vested right by her subsequent remarriage.

40.

As Indian society has become progressive, widow remarriage has been increasingly encouraged and such purpose might also stand frustrated, in a sense, if a contrary view is taken. In my humble opinion, the social consideration as reflected in the Delhi High Court Judgment of Dincy Devassy (supra) is worth borrowing in this context - "The decision of the widow to remarry is entirely her personal choice, over which nobody can have a say".

41.

The loss of consortium and consequential right to get compensation, within the contemplation of Section 166 of the MV Act, accrued to the petitioner at the very moment of her husband's demise. 42.

The argument of the respondent, although attractive at first blush, is not acceptable in ultimate analysis. Hence, in the light of the above observations, both the petitioner and the respondent No. 2 in the present writ petition are equally entitled to claim compensation

under the MV Act for the death of the husband of the petitioner, namely, Late Shyamal Roy.

43.

Thus, FMAT/3/2021 is allowed, thereby setting aside the judgment and award of the Motor Accident Claims Tribunal, Andaman and Nicobar Islands in MACT Case No. 14 of 2014, heard analogously with MACT Case No. 29 of 2014, and directing that compensation on the demise of Late Shyamal Roy by motor accident, at the rate as calculated by the Tribunal, including interest in terms of the impugned award, shall be disbursed in equal share to the petitioner and the respondent No. 2.

44.

CAN/1/2021 is also disposed of accordingly.

45.

No order as to costs.

46.

Urgent photostat certified copy of this order be supplied to the respective parties upon compliance of usual formalities. (SABYASACHI BHATTACHARYYA, J.)