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Pijush Kanti Ghosh Vs. Sm. Maya Rani Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 348 of 1967
Judge
Reported inAIR1971Cal229
ActsMotor Vehicles Act, 1939 - Section 110, 110A, 110A(3), 110B, 110C and 110D; ;Limitation Act - Section 5; ;Constitution of India - Article 245; ;Code of Civil Procedure (CPC)
AppellantPijush Kanti Ghosh
RespondentSm. Maya Rani Chatterjee and ors.
Appellant AdvocateMukul Prakash Banerjee, Adv.
Respondent AdvocateGanendra Narayan Roy and ;Narayan Chandra Dey, Advs.
DispositionAppeal dismissed
Cases ReferredIn Phillips v. London and South Western Rly. Co.
Excerpt:
- amaresh roy, j. 1. this appeal is directed against an award made in motor accident claim case no. 17 of 1964 by the motor accident claims tribunal at howrah which is also the tribunal for calcutta and 24-parganas. the claim was preferred by maya rani chatterjee and her four minor children namely, mamata chatteriee, shanti dulal chatterjee, monoj dulal chatterjee and brojo dulal chatteriee along with another child described as baby which minors were represented by their guardian mother maya rani chatteriee. it was filed on 6th february, 1964 claiming compensation for the death of maya rani's husband gopal chandra chatteriee as a result of an accident on the road north of raja subodh mullick square in calcutta on 23rd june, 1963 at about 10 p.m. when the said gopal chandra chatteriee was.....
Judgment:

Amaresh Roy, J.

1. This appeal is directed against an award made in Motor Accident Claim Case No. 17 of 1964 by the Motor Accident Claims Tribunal at Howrah which is also the Tribunal for Calcutta and 24-Parganas. The claim was preferred by Maya Rani Chatterjee and her four minor children namely, Mamata Chatteriee, Shanti Dulal Chatterjee, Monoj Dulal Chatterjee and Brojo Dulal Chatteriee along with another child described as baby which minors were represented by their guardian mother Maya Rani Chatteriee. It was filed on 6th February, 1964 claiming compensation for the death of Maya Rani's husband Gopal Chandra Chatteriee as a result of an accident on the road north of Raja Subodh Mullick Square in Calcutta on 23rd June, 1963 at about 10 p.m. when the said Gopal Chandra Chatteriee was alleged to have been violently knocked down and run over by a Taxi Cab No. WET-1422 driven by Chandra Sekhar Misra who was an employee of the owner of the said taxi Pijush Kanti Ghosh.

2. It was alleged that on 23rd June, 1963 at about 10 p.m. when Gopal Chandra was crossing that road from north to south the taxi car No. WET-1422 came from north to south along Nirmal Chandra Street and took a turn along Wellington Square north at a high speed without blowing any horn and proceeded towards east. The vehicle was driven rashly and negligently and thereby knocked down Gopal Chandra causing severe injuries in his head and on his person. The said taxi then stopped near the place of occurrence and some citizens who assembled there put Gopal Chandra on the back seat of the same taxi, called the traffic Constable on duty at the junction of Nirmal Chandra Street and Ganesh Chandra Avenue which is close to the place of occurrence, the Traffic Constable was asked to take the injured to the Medical College Hospital in the same taxi cab and he did so. Gopal Chandra died in the Medical College Hospital on 27th June, 1963.

3. At the time of Gopal Chandra's death he was employed as the Head Assistant of Home Defence Department, Government of West Bengal and was residing at Calcutta. His wife Maya Rani was at that time pregnant and she was living with her children at Searsole in the district of Burdwan. She did not know about Gopal Chandra's death, nor the manner in which Gopal Chandra met his death. In Julv. 1963 Maya Rani's brother Shyama Pada Ghatak, P.W. 9 learnt about the death of Gopal Chandra from Home Departmeent in the Writers' Building and he informed Maya Rani of Gopal Chandra's death in the night of 5th July, 1963. There was a Criminal Case over that incident of running over and Shyama Pada P.W. 9 deposed as a witness in that Criminal Case. In August, 1963 he came to know from the Police Officer of the Fatal Squad at Lalbazar that Gopal had died in the motor accident.

4. At first Maya Rani and the relatives of Gopal Chandra had thought that Gopal had been killed by gundas. At the time when Maya Rani learnt about Gopal Chandra's death she was in advanced stage of pregnancy and received severe mental shock on hearing the news of death of her husband. Due to that mental shock she even neglected her children and for that reason she had not known that Gopal had died in the motor accident even after that fact was learnt by her brother Shyama Pada Ghatak, P.W. 9 who also had informed another brother and uncle of Maya Rani that Gopal Chan-dra had died in the motor accident. After she had delivered the child in her womb she was ill for about six months. Only after she recovered from that illness and her mental condition improved, in February, 1964 Maya Rani's uncle, P.W. 8 Birendra Kumar Ghatak informed Maya Rani that Gopal had died in a motor accident. Two days thereafter on 6th February, 1964 the petition of claim for compensation was filed before the Tribunal.

5. That petition was accompanied by another petition supported by an affidavit praying for condonation of the delay in filing the application for compensation.

6. On receiving the application the Tribunal by an order dated 6th February, 1964 fixed 13-2-1964 for hearing an order regarding condonation of delay. On that date fixed and on several dates thereafter that matter was adjourned. It appears to have been taken up on 30th of March, 1964 on which date the Tribunal directed to produce medical certificate in support of her statements that she was pregnant and gave birth to a child and she was suffering from illness. The medical certificate was filed on the fixed date 22nd April. 1964 and upon consideration of those materials by an order dated 16th May, 1964 the Tribunal condoned the delay in filing the application and directed that the application for compensation be entertained.

7. Notice of the proceedings were served on the opposite parties named in the application, i.e., the owner of the vehicle, Pijush Kanti Ghosh and the Insurance Company, the United India Fire and General Insurance Company Limited. Thereafter, on 18th July, 1964 objections were filed on behalf of opposite party No. 1, Pijush Kanti Ghosh and opposite party No. 2. the United India Fire and General Insurance Company Limited. Objections were raised that (1) the application was not maintainable in law and in the form it was made. (2) The application is bad for non-joinder and misjoinder of parties and that the application was barred by special law of limitation under Section 110-A (3) of the Motor Vehicles Act.

8. In the objection filed by Pijush Kanti Ghosh it was denied that the Taxi Cab No. WBT-1422 was the vehicle that had knocked down and ran over Gopal Chandra Chatterjee but it was alleged that at about 10-15 p.m. in the night of 23-6-1963 the driver of that taxi picked up one passenger in front of the main gate of Medical College and started proceeding along with College Street and Nirmal Chandra Street towards the south. On reaching the junction of Nirmal Chandra Street and Ganesh Chandra Avenue the driver took turn to the left and entered Subodh Mullick Square north and started proceeding towards east. About 25/30 ft. from the said junction the taxi cab was stopped by some members of the public and at their request carried the injured person and the Traffic Police on duty to the Medical College Hospital. It was denied that the taxi No. WBT-1422 was involved in the accident that caused the death of Gopal Chandra.

9. On those pleadings, issues were framed in the following terms:--

'Issues.

1. Have the claimants any cause of action against the opposite parties?

2. Is the application maintainable for misjoinder and non-joinder of necessary parties?

3. Is the application barred by special law of limitation?

4. Did the accident occur due to any rashness, negligence or fault on the part of the driver of the vehicle involved in accident? Or was there any negligence or contributory negligence on the part of the victim of the accident?

5. Are the applicants entitled to get any compensation, if so, to what extent?' In the course of the hearing before the Tribunal, issues Nos. 2 and 3 were heard as preliminary issues on the prayer of the opposite parties made on 18th May, 1966. Arguments were heard regarding those two issues on 7th and 10th June, 1966 and by order dated 14th June, 1966 the Tribunal held that although at the date when the application for compensation was filed mother of Gopal Chandra was alive and she did not join as petitioner, the petition for compensation was maintainable. By the same order the Tribunal held that the delay in filing the application was rightly condoned and the claim was not barred by time.

10. On the merits the Tribunal on consideration of the evidence given in the case held against the contention of the opposite parties and held that the accident resulting in the death of Gopal Chandra was caused by taxi No. WBT-1422 and it was due to the negligence and rashness of the driver of the vehicle. Regarding the quantum of compensation the Tribunal calculated it on the basis of the monthly emoluments that Gopal Chandra was drawing at the time of his death for the period of 11 years that remained before Gopal Chandra would have retired on superannuation if he had not died which amounted to Rs. 46.200/-, to that Rs. 4.000/- was added as compensation for the deprivation of consortium of Gopal's wife and of paternal love, affection and care of his children. The total sum thus obtained came to Rs. 50,000/-and from that amount was deducted 20% or Rs. 10,000/- for the reason that if the amount is to be paid in lump the petitioners will be in a position to invest that amount in a profitable way and can earn some income therefrom. For which deduction and reason a decision reported in AIR 1964 Mys 113 was relied on. Another deduction was made of about Rs. 5,000/- for the reason of the benefit of life insurance and gratuity that were given to Gopal's heirs, by that process the Tribunal assessed the compensation at Rs. 35,000/- and directed that the liability of the Insurance Company, opposite party No. 2 will be limited to the amount for which the vehicle was insured i.e., Rs. 20,000/- and the balance Rs, 15,000/-will be paid by the opposite party No. 1 The Tribunal directed these amounts to be paid within 3 months from the date of his judgment, in default a certificate as provided under Section 110-E, Motor Vehicles Act will be directed to issue against opposite party No. 2.

11. Against that order awarding compensation opposite party No. 1, Pijush Kanti Ghosh alone has appealed to this Court. No appeal has been preferred by the Insurance Company, opposite party No. 2. The claimants also have not preferred any appeal against that award.

12. The learned Advocate for the appellant, Mr. Mukul Prokash Banerjee at the outset of his argument before us sought to challenge the validity of Section 110-B of the Motor Vehicles Act contending that it was ultra vires the Constitution of India being a legislation of the nature of excessive delegation. Mr. Banerjee sought to elaborate his contention by referring to the feature that the section provides that the Tribunal 'may make an award determining the amount of compensation which appears to be lust without making any provision regarding the standard for calculation of compensation'. He contends that arbitrary power has been given to the Tribunal which is not a Court and therefore that section i.e., Section 110-B should be struck down as ultra vires and an invalid piece of legislation. He seemed to draw an analogy from the provisions in the Fatal Accidents Act (Act XXIII of 1855) and also Workmen's Compensation Act (Act VIII of 1923) in which legislations, according to Mr. Banerjee, standard for calculation of compensation have been provided in the Act of the legislature itself.

13. This argument of Mr. Baneree has no force and in our view suffers from a wrong comprehension of the nature of the provision that has been introduced in the Motor Vehicles Act of 1939 (Act IV of 1939) by later amendments by Act 100 of 1956. We will briefly give our reasons for that view we take.

14. For proper appreciation of the true import and nature of the legislation, it need be remembered that in the Motor Vehicles Act of 1939, as originally enacted in Chapter VIII Insurance of Motor Vehicles against third party risks was provided by Sections 93 to 111. In that chapter Section 94 provided for insurance against third party risk. Section 95 provided the requirements of policies against any liability which may be incurred by the insured in respect of death of or bodily injury to any person caused by or arising out of use of the Vehicle in a public place in Sub-section (1) (b). Sub-section (2) of that section provided for limits of liability in respect of different classes of vehicles, Clause (a) for vehicles used for carriage of goods, Clause (b) for vehicles used for carriage of passengers for hire or reward, and Clause (c) for vehicles of any other class. Sub-section (3) of Section 95 then provided that.

'A Provincial Government may prescribe that a policy of insurance shall in order to comply with the requirements of this Chapter cover any liability arising under the provisions of the Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to any paid employee engaged in driving or otherwise in attendance on or being carried in a motor vehicle'.

By those provisions limits of liability under Clause (a) was Rs. 20,000/-; under Clause (b) for passengers carried for hire or reward limit was Rs. 4,000/- in respect of individual passenger if the vehicle is registered to carry not more than six passengers or two thousand rupees in respect of individual passenger; but in respect of persons other than passenger i.e., third parties, limit is for Rs. 20,000/-in all; Sub-section (3) provided limit to the liability under Workmen's Compensation Act if State Government so prescribes. Sections 96 to 102 provide for certain procedures for the proceedings and for enforcement of decree against the Insurer.

15. After the provisions in Sections 103 to 109 (which are not relevant for this case). Section 110 provided:

'A Provincial Government may, by notification in the Official Gazette, appoint a person or a body of persons to investigate and report on accidents involving the death of or bodily injury to any person arising out of the use of motor vehicles and the extent to which their claims to compensation have been satisfied and to advise and assist such persons or their representatives in presenting their claims for compensation:

Provided that nothing in this section shall confer on any such person or body of persons the right to adjudicate in any way on the liability of the insurer or on the amount of damages to be awarded except at the express desire of the insurer concerned.' Those provisions clearly show that

(a) Procedure for enforcement of liability was a Suit in Civil Court for damages in an action for tort, resulting in a decree under the general law, i.e., Section 9 of the Civil Procedure Code.

(b) Provincial Government by notification could set up Tribunal to investigate and report. But that Tribunal had no adjudicatory function to determine the quantum of damages or extent of liability of insurer except at the express desire of the insurer.

16. That state of law under Motor Vehicles Act, 1939 has undergone a substantial change by amendments introduced by Act 100 of 1956, by which Section 110 has been wholly recast and also a new group of Sections 110-A to 110-F and 111-A have been added in Chapter VIII, at the same tune carrying out certain amendments in the other existing sections in that chapter. Before discussing those amendments in the existing sections, it will be helpful to notice the nature of provisions made in the new sections added by the amending Act of 1956 and also Section 110 as it now stands. Section 110 now is in these terms:--

'110. Claims Tribunals-- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accident Claims Tribunals (hereafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles.

(2) A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-

(a) is, or has been, a Judge of a High Court, or

(b) is, or has been. District Judge, or

(c) is qualified for appointment as a Judge of the High Court.

(4) Where two or more Claims Tribunals are constitued for any area, the State Government may, by general or special order, regulate the distribution of business among them.'

By these provisions Tribunal wherever constituted under present law-

(a) Has judicial function for the purpose of adjudicating upon Claims for Compensation.

(b) Qualification for appointment is that of Superior Court, minimum being a District Judge. Then the new Section 110-A provides for application for Compensation and therein provisions have been made in details regarding-

(a) by whom can be made

(b) to which Tribunal can be made

(c) in what form it can be made

(d) what particulars the application should contain

(e) time within which it should ordinarily be made

(f) when can application filed beyond the period be entertained. Further, the new Section 110-B provides that-

(a) the parties will be given opportunity to be heard

(b) enquiry will be held into the claim

(c) Award determining the amount of compensation shall be made

(d) quantum of compensation shall be which appears to the Tribunal to be just

(e) person or persons to whom compensation shall be paid will be specified

(f) which amount shall be paid by Insurer shall be specified. Section 110-C provides that-

'(a) In holding any inquiry under Section 110-B, the Claims Tribunals may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit

(b) shall have powers of a Civil Court.' Section 110-D provides-

'appeal to the High Court within 90 days.'

Section 110-E provides-

'for recovery of money due under the award from the insurer as arrear of land revenue.' Section 110-F-

'Bars jurisdiction of Civil Court where Tribunal has been constituted.'

17. These provisions hi those sections either separately or collectively cannot be viewed either as delegated legislation or as giving arbitrary powers to the Tribunal, far less excessive delegation of legislative powers. Obvious purpose of the legislation is to provide niter alia-

(a) Compensation for death or injury caused by motor accident.

(b) Speedy remedy in summary procedure,

(c) Obviate elaboration in procedure and time and costs involved in Civil Suit.

(d) Easy recovery of compensation awarded.

18. Mr. Mukul Prokash Banerjee invited us to consider Section 110-B alone in isolation and argued that it is a piece of legislation suffering from the defect of excessive delegation in so far as it does not indicate any reasonable standard for assessing amount of compensation, nor prescribe any rule of evidence nor any procedure to govern the proceeding before the Tribunal which is not a Court. His contention is that that section has given arbitrary powers to the Tribunal without indicating any rational standard for doing justice in the matter. In our view this argument is incorrect. Section 110-B has to be considered in the background of the other sections in Chapter VIII in general and in conjunction with Section 110, 110-A and 110-C in particular. By those sections power of adjudication has been given to Tribunal to which only experienced judicial officers of the level of Judge of a High Court or District Judge may be appointed. It is also provided that enquiry need be held after giving the parties opportunity to be heard and subject to any rules that may be made ha this behalf such summary procedure as the Tribunal thinks it has to be followed for determining the amount of compensation which appears to the Tribunal to be just.

19. We may mention here that Mr. Banerjee made his submissions particularly emphasising his notion that no Rules have been framed by State Government for guidance of the Claims Tribunal in the matter of carriage of the proceedings commenced on application under Section 110-A. This notion of Mr. Banerjee is totally incorrect.

20. New Section 111-A inserted by Act 100 of 1956 is in these terms:

'Sec. 111-A. A State Government may make rules for the purpose of carrying . into effect the provisions of Sections 110 to 110-E and, in particular such rules may provide for all or any of the following matters, namely-

(a) the form of application for claim for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;

(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;

(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;

(d) the form and the manner in which an appeal may be preferred against an award of a Claims Tribunal; and

(e) any other matter which is to be, or may be, prescribed.'

21. In West Bengal that power has been exercised by inserting Rules 221 to 241 in Motor Vehicles Rules, 1940 by Notification No. 6367-WT/T3M-84/61 dated 5th September, 1961, published in Calcutta Gazette Part I dated September 28, 1961.

22. Those provide elaborate Rules to - cover every point of deficiencies imagined by Mr. Banerjee, and also they meet many of his other points to which we shall presently refer. It is astonishing that the learned Advocate for appellant was not aware of the existence of those Rules.

23. The discretion left to the Tribunal in matters we have underlined above are judicial discretions which Parliament is competent to incorporate in legislation. By no means can that be said to be arbitrary powers. Such judicial discretions have to be exercised by adherence to wellknown standards firmly set for experienced judicial officers who alone can be appointed to constitute the Tribunal. Even at that, every Award made by Tribunal is subject to right of appeal to High Court provided in Section 110-D. All these are the reasons for ousting the jurisdiction of Civil Court by Section 110-F.

24. All these features lead us to the conclusion that Section 110-B is neither a piece of delegated legislation nor does it suffer from excessive delegation of legislative function and is not ultra vires the powers of Parliament that introduced the section in the statute by amendment.

25. It was also argued by Mr. Banerjee that the Tribunal is not a Court, though for certain limited purposes it has been given powers of and shall be deemed to be a Civil Court. This point does not directly arise in this case and it is not necessary to decide it for the purpose of disposal of this appeal. However we may mention that the Claims Tribunal constituted under the Motor Vehicles Act has all the trappings of a Court. It is a Tribunal constituted under a statute. It has power to adjudicate upon the rights and liabilities of parties. Its award is final subject to appeal. It must hold enquiry by taking evidence on oath and giving the parties opportunity to be heard. Rules framed by State Government by exercise of powers under Section 111-A indicate the essentials for carriage of the proceedings nature of which clearly appears from Rule 238 which makes some provisions of C. P. Code applicable and leaves out some from applicability. Appeal lies to High Court from the judgment of the Tribunal. All these give a look that the Tribunal has all the trappings of a Court. But it is not necessary to decide the point finally in the present appeal and we leave it open.

26. Next point urged by Mr. Banerjee is the point of limitation. On that issue the Claims Tribunal made an order on 16th May, 1964 for entertaining the application for compensation by condoning the delay. That order was made upon hearing arguments on that point but before notice had been issued to the opposite parties. Obviously it was an order made ex parte.

27. After notices had been issued, and objections were filed in the proceeding, the same point was subject of an issue framed which is Issue No. 3 in these terms:

3. Is the application barred by special law of limitation?

28. That issue was heard as Preliminary Issue (along another issue about maintainability of the application) and by a judgment recorded in the order-sheet as Order No. 31 dated 14-6-66 the Tribunal then dealing with the case, held:

'So from the facts and circumstances, it appears that this is eminently a fit case where the discretionary power of condoning the delay in filing the claim case should have been applied. Hence my learned predecessor in office has rightly condoned the delay and I see no reason to set aside his order.

I, therefore, hold that the delay in filing the claim case has been rightly condoned by my learned predecessor. This Claim Case is not barred by time-Issue No. 3 is answered in the negative'. In earlier part of that Order the Tribunal said: 'It transpires that by Order No. 8 dated 16-5-64 my learned predecessor condoned the delay in filing this claim case. Ordinarily, I would not have allowed the opposite parties to reagitate this question of limitation as that may look like myself sitting in judgment over the decision of my learned predecessor. But in this case I have allowed ops to canvass this point over again on the ground that the petitioners have no objection to it.'

28-A. It is an Appeal from Original Order and is valued above Rs. 20,000/-. Rule 64 in Ch. IX. Part II of A.S. Kules governs it. Relevant portions of the Order-Sheet needed to be included in Part I of the paperbook. There cannot be any doubt that an order made by Tribunal for entertaining the application for compensation under Section 110-B is very relevant order. Yet that has not been included in the paperbook. Rule 64 attracts Rule 30 of that Chapter. The order dated 16-5-64 not having been included in the paperbook, the appellant would be precluded from referring to that order for challenging its correctness, except by special leave of the Court.

28-B. An appellant who intentionally omits from paperbook an order which is not only relevant but is also very important for just decision of the case, cannot pray for special leave of the Court or get it as a matter of course. Appellant's Advocate in whose office the paperbook was prepared under orders of Court should have taken care to avoid the omission.

28-C. In this Court in the paper-book prepared in the office of the learned Advocate for the appellant the order dated 14-6-66 has been included but not the earlier order dated 16-5-64. By that omission under the Rules of the Appellate Side the appellant has entailed the situation that he is precluded from attacking the order dated 16-5-64 in the Appeal. However as the question of law is important, we allowed Mr. Banerjee to argue the point before us and we shall deal with it.

29. Relevant provision is in subsection (3) of Section 110-A of the Motor Vehicles Act, 1939. It is in these terms:

'No application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident:

Provided that the Claims Tribunals may entertain the application after the expiry of the said period of days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.'

30. This provision has been treated both in the order dated 14-6-66 and in the argument of Mr. Banerjee before us as one similar to Section 5 of Limitation Act. That is not correct.

31. Provision in Sub-section (3) of Section 110-A is not a provision of limi-tation creating or extinguishing rights of parties. It is only a limit to the powers of Tribunal to entertain application for compensation. As such the principles and decisions that govern matters under Section 5, Limitation Act do not directly apply, though the Tribunal in exercise of discretion given by the Proviso may and should keep in mind those principles particularly in considering the question whether the applicant was prevented by sufficient cause from making the application in time. It is necessary to remember that occurrence of the accident is not exactly the cause of action from which period of limitation will begin to run, because death may result from the accident more than 60 days after the day of accident have elapsed and where death has so resulted, by the provisions in Section 110-A, Sub-section (2), Clause (b) the legal representatives of the deceased have been given right to make application for compensation arising out of the accident. If 60 days from the day of occurrence of the accident is regarded as period of limitation, commencing to run from that day, of occurrence of the accident, then right given to legal representatives of deceased by that Clause (b) would be rendered nugatory and chimerical, depending only on the discretion of the Tribunal under Proviso to Sub-section (3). Parliament that enacted Section 110-A in its present form could not have contemplated to create such a chimerical right.

32. In this connection it is a noticeable feature that Rule 238 does not make applicable Order I of C. P. Code or Order XXII, C. P. Code. That indicates that whoever may initiate the proceedings by application under Section 110-A the Tribunal is not limited to make awards in favour of that person alone, nor would the proceeding suffer from any defect by not impleading any person as a party nor would it abate by reason of death of the persons who are made parties in the application.

33. Mr. Banerjee's next contention is that the application for compensation should be dismissed for the reason that the application has not been made by all the heirs of the deceased. He points out that the application was made on behalf of the wife and five minor children; but the mother of the deceased has not joined in the petition for compensation although she was alive not only at the date when the incident took place and at the date when death of the victim occurred, but also on the date on which the petition for compensation was filed. It is in evidence that the said mother died during the pendency of the proceeding before the Claims Tribunal. By such omission to join the mother who is an heir in respect of the estate of the deceased, according to Mr. Banerjee's contention, it has suffered from the defect of party, and therefore should be dismissed. This point of law before the Tribunal was one of the issues which was decided as the preliminary issue by an Order No. 11 dated 14-6-66. Referring to the definition of the term 'legal representative' the Tribunal was of the view that the term is wide enough to include the heirs who represent the estate of the deceased person and therefore mother also should have been made a party. But for that reason the proceeding should not fail because by applying the principle of Order 1, Rule 9, C. P. Code the Tribunal 'dealt with the matter in controversy as to the right to give compensation and the amount thereof so far as regards the parties actually before it'. Before the Tribunal on behalf of the opposite party it was argued by referring to Section 2 of the Fatal Accidents Act, 1855, that all the legal representatives of the deceased must join either as petitioner or be impleaded as opposite parties. The Tribunal overruled that contention relying on the decision reported in 51 Cal WN 490. The Tribunal held that non-joinder of the mother of the deceased is not vital to the claim case and that claim of the mother became barred by time before her death; therefore the petitioners will get their own share of the compensation if otherwise maintainable. In our view the contention raised as to the maintainability of the petition for compensation for the reason of non-joinder of the mother and also the whole approach to the question both in the arguments raised for the parties on this issue and also the approach of the Tribunal to the question are erroneous. No doubt Fatal Accidents Act was enacted to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong and created right of action by suit against the wrongdoer making him answerable for the damages for the injury caused by him when his wrongful act, neglect or default may have caused the death of the victim. Section 1(a) of that Act provides that notwithstanding the death of the person injured, the wrong-doer shall be liable to an action or suit for damages when the wrongful act, neglect or default is such as would (if death have not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof. That section also provides that.

'Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased.' In such action under Fatal Accidents Act the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought.

34. Under the Motor Vehicles Act in Chapter VIII the compulsory insurance must be

'against any liability which may be incurred by the insured in respect of death or bodily injury to any person caused by or arising out of the use of the vehicles in a public place' as is mentioned in Section 95, Sub-section (1) (b). Section 110 provides for constitution of Claims Tribunal

'for the purpose of adjudicating upon claims of compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles'.

Section 110-A gives right to make application for compensation in the event of death of the victim not only to the legal representative of the deceased but also to any agent duly authorised by such legal representative.

35. From these provisions it follows that what is common to the two statutes, i.e., Fatal Accidents Act, 1855 and the provisions now made in Chapter VIII of the Motor Vehcles Act is that both are exceptions to the old maxim actio personalis moritur cum persona, yet the nature of liability under the two Acts are entirely different. Under the Fatal Accidents Act it is damages for the wrongful act and is for the benefit of the specified persons. Under the Motor Vehicles Act it is compensation arising out of an accident, although this Act provides that the application for compensation may be made by persons specified in Section 110-A. The Act does not say for whose benefit the compensation is to be awarded. As we have pointed out already to whom the compensation shall be payable has been left by the statute in express words to the discretion of the Claims Tribunal. Not only so. the nature of the liability and the considerations that will enter in fixing the quantum of damages under Fatal Accidents Act and compensation under the Motor Vehicles Act, though have common factors, do not exactly coalesce and are not exactly same,

36. By making the exception to the maxim 'actio personalis moritur cum persona' jurisprudential speculations had to be brought into use in England both in the Court of Appeal and also in the House of -Lords whether the damages awardable for shortened expectation of life should enter calculation also (see Flint v. Lovell, 1935 KB 354 and Chant v. Read, (1939) 2 KB 346). The dicta in 1935 KB 354 was affirmed in the House of Lord the case of Rose v. Ford, 1937 AC 826. Even so, it has to be kept in mind that the compensation is not given to the injured at all and in its nature is a solatium as Lord Goddard pointed out in the case of Benham v. Gambling, 1941 AC 157. In reality our law has set up Claims Tribunals for awarding solatium to the relatives and consequently question would arise, what would be the standard.

37. That characteristic of the nature of the claim for compensation need be remembered for determining the true character of the Claims Tribunal set up under present Section 110 and also the nature of the proceeding before such Tribunal instituted by an application for compensation under Section 110-A of the Motor Vehicles Act, that again has important bearing on the question regarding the person or persons by whom such application for compensation may be made under Section 110-A, determination of the amount of compensation awarded by Claims Tribunal under Section 110-B, powers and procedures of the Claims Tribunal under Section 110-C and also the person or persons to whom compensation shall be paid under that section.

38. It is true that Section 110-F bars jurisdiction of Civil Courts and the language employed in that section indicates that Claims Tribunal is not a Civil Court. At the same time judged by two dicta of the Supreme Court in Bharat Bank's case, : (1950)NULLLLJ921SC taken with provisions in the several sections of the Motor Vehicles Act we have already mentioned and the rules framed by the State Government of West Bengal in exercise of the powers under Section 111-A of the Act the Claims Tribunal undoubtedly has all the trappings of a Court and in its true nature is a quasi-judicial Tribunal whose decision involves not only a judicial approach and also appears to pronounce a definitive judgment which is authoritative and not merely fact finding, and which enjoys finality as has been laid down by the Supreme Court in Braja Nandan Sinha's case, : 1956CriLJ156 .

39. The nature of the proceeding before the Claims Tribunal is not a suit and is not governed by the provisions of the Civil Procedure Code regarding pleadings and parties, although Sub-section (2) of Section 110-C provides that the Claims Tribunal shall have all the powers of the Civil Court for the purpose of taking evidence on oath and enforcing of the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purpose as may be prescribed and the rules have made applicable some of the provisions of the Civil Procedure Code. Indeed Sub-section (1) of Section 110-C expressly provides that in holding any enquiry under Section 110-B the Claims Tribunal may subject to any rules that may be made in this behalf follow such summary procedure as it thinks fit and Sub-section (2) of that section also expressly provides that the Claims Tribunal shall be taken to be a Civil Court for all the purposes of Section 195, Chapter XXXV of the Criminal Procedure Code.

40. Those are the reasons which have led us to conclude that the argument advanced by Mr. Banerjee based on defect of parties must be rejected. We are also of the view that the decisions based on the provisions of the Fatal Accidents Act relied on by Mr. Banerjee in support of this contention are not applicable to this proceeding under the Motor Vehicles Act.

41. Mr. Banerjee has cited : [1962]1SCR929 (Gobald Motor Service Ltd. v. R.M.K. Veluswami) as the authority for the basis on which the amount of compensation should be calculated. Though that case arose out of a death caused by motor accident it has to be noticed that the case arose out of a claim for compensation before 1956 and in a suit under Fatal Accidents Act. It was not a case decided under the amended provisions of Motor Vehicles Act which has brought into existence Claims Tribunals and has barred Civil Suit. Their Lordships of the Supreme Court decided the law under Sections 1 and 2 of Fatal Accidents Act, laying down as follows:--

'The rights of action under Sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa.'

42. In the passage immediately following their Lordships repressed to inclusion of the figure representing the damages for mental agony suffering and loss of expectation of life and held that there was no duplication of damages under both the heads.

43. The decision , State of Punjab v. Smt. Phool Kumari, referred to the decision of Supreme Court above mentioned, for holding that nothing is to be paid by way of solatium and the fundamental basis of claim is pecuniary loss suffered by the defendants as a result of death of the deceased. In so holding the learned Judge of Punjab High Court appears to have omitted to notice the distinction between Sections 1 and 2 of Fatal Accidents Act emphasised by Supreme Court.

44. Neither omission to implead all the heirs to the estate of the deceased person in the proceeding will affect the maintainability of the application for compensation made in this case as has been contended by Mr. Banerjee, nor the powers of the Tribunal is limited to award compensation only in favour of the persons who have actually made the claim or to the extent of their shares by inheritance to the estate of the deceased as has been held by the Tribunal. Section 110-B is clear in its terms that the Claims Tribunal may make an award determining the amount of compensation which appears to it to be just and need also specify the person or persons to whom compensation shall be paid. We may, however, point out that in this case the Tribunal took notice of the fact that the heir of the deceased who was left out in the application for compensation that is the mother of the deceased herself died during the pendency of the proceeding before the Tribunal and her share to the estate of the deceased descended by inheritance on her death to the persons on whose behalf the application for compensation was made. But the Tribunal was of the view that the claim of the mother became barred by time before her death and therefore decided that the persons who actually joined in the application for compensation would get only their own share of compensation if otherwise maintainable. We hold that the view of the Tiibunal is not correct in that respect. But the claimants have not preferred any appeal or cross-objection in respect of the share of compensation that has been disallowed by the Tribunal. In the present appeal preferred by person against whom the award of compensation has been made, that part of the claim of compensation need not be considered.

45. On the merits the Tribunal has proceeded to fix the quantum of compensation adhering to the principles applying to Fatal Accidents Act as if the compensation would be limited to only damages as would (if death have not ensued) have entitled the party injured to maintain an action. Mr. Banerjee for the appellant has not contended that the approach was wrong; on the contrary he has argued on the footing that principles applicable to cases under Fatal Accidents Act would wholly apply, though we hold that the error has really been in favour of the appellant and against the respondents who have not appealed.

46-50. [After considering the evidence and repelling the contentions of the appellant that (1) the identity of the person who was injured by the motor vehicle with deceased Gopal had not been established and (2) the vehicle of which the appellant was the owner was not the vehicle involved in the accident that caused the death of Gopal, his Lordship proceeded.]

51. In assessing the amount of compensation, the Tribunal has calculated on the basis of prospect of his future service at the rate of monthly emoluments of Rs. 505/- which he was drawing at the time the accident occurred and deducting therefrom the personal expenses of the earner arrived at the amount of Rs. 46,200/- which petitioners could be entitled to get on account of the victim's death. To that amount the Tribunal has added Rs. 4,000/- on account of deprivation of consortium of the wife and paternal love, affection and care of the children and fixed the amount of total loss suffered by the petitioner on account of Copal's death at Rs. 50,000/-. This total amount has been reduced by 20% as income that may be earned by investment of the amount in a profitable way and has also deducted about Rs. 5,000/- representing the gratuity granted to deceased Gopal and amount received from Gopal's life insurance. By that process of caldilation the Tribunal has assessed the compensation at Rs. 35,000/- and has made the award that the Life Insurance Company's liability will be limited to Rs. 20,000/- and the balance Rs. 15,000/- will be paid by the owner of the vehicle. Mr. Banerjee has pleaded for reduction of the amount of Rs. 15,000/- that has been fixed as liability of the appellant who is the owner of the vehicle. The insurance company has appeared to support the appellant but the learned Advocate for the insurance company has very reasonably conceived that the correct position in law is that if the amount of compensation is fixed at any figure above Rs. 20,000/- the liability of the insurance company shall be the amount for which the vehicle was insured as 3rd party insurance under Section 95 (2) (a) of the Motor Vehicles Act.

52. As we have indicated above the basis on which the calculation has been made by the Tribunal is in our view not correct. But at the same time it is also clear that whatever error the Tribunal has committed in assessing the total amount of compensation has been in favour of the appellant and because the respondents have not appealed for raising the amount of compensation, there is no scope for enhancing the amount of compensation awarded in this appeal. This position in law has been conceded by the learned Advocate for the respondents Mr. Ganendra Narayan Roy. We are definitely of the view that there is no scope for reduction of the amount of compensation as was contended before us by Mr. Banerjee for the appellant. The appeal, therefore, must fail and is dismissed with costs.

53. Let the records be sent down as early as possible.

Bagchi, J.

54. I fully agree with my Lord that the appeal should be dismissed. I, however, add a few words of my own on some of the factual and legal aspects of the case.

55. The Claims Tribunal found that it was the taxi WET-1422 which caused the death of Gopal Chandra Chatterjee. The appellant disputed the identity of the injured with the deceased Gopal Chandra Chatterjee. The appellant's driver was convicted and sentenced by Criminal Court for causing death of one Gopal Chatterjee by rash and negligent driving of WBT-1422. He carried one injured person to Medical College Hospital. The photo of the injured person was proved as being that of Gopal Chatterjee. P.W. 6, the widow of the deceased Gopal Chandra Chatterjee, identified the photo. The driver of the taxi O. P. W. 2 nowhere said in his deposition that the injured person whom he had carried to Medical College Hospital and who subsequently died, was not Gopal Chandra Chatterjee. The Claims Tribunal, therefore, held that the death of Gopal Chandra Chatterjee had been occasioned by the accident that was caused by the appellant's driver who drove the taxi WBT-1422 rashly and negligently. The finding of the Claims Tribunal that rashness and negligence of the appellant's driver in driving the taxi had caused the death of Gopal Chandra Chatterjee brings in the doctrine of 'Res ipsa loquitur' -- The thing speaks for itself. The principle of res ipsa loquitur only shifts the onus of proof, in that a prima facie case is assumed to be made out throwing on the defendant the task of proving that he was not negligent; this does not mean that he must prove how and why the accident happened; it is sufficient if he satisfies the court that he personally was not negligent (Woods v. Duncan and Cammel Laird & Co. Ltd., 1046 AC 401). Lord Justice Asquith in Barkway v. South Wales Transport Co. Ltd., (1948) 2 All ER 460 at p. 471 expressed himself as follows: 'The position as to onus of proof in this case seems to me to be fairly summarised in the following short propositions, (i) If the defendants' omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption .....'

56. The doctrine of res ipsa loquitur is a rule of evidence affecting onus. Facts bearing on the causation of the event of the accident and the care exercised by the defendant's driver were not known to the plaintiff, nor could be known at the outset and are to be in the special knowledge of the defendant's driver. So, it is a rule of evidence on the principle that an event which, in ordinary course of things, is more likely than not to have been caused by negligence, is by itself evidence of negligence. To disprove negligence in such a situation the burden rests upon him who pleads exception to negligence in case of an accident like the one now under consideration, in which, the doctrine of res ipsa loquitur is clearly applicable. The defendant-appellant is the owner of the taxi covered by the third party Insurance risk. The driver of the taxi is not a party to the proceeding. O. P. W. 2. the driver of the taxi, though not a party to the proceeding, did not say a word in disproof of his rashness and negligence. The appellant (O. P. W. 1) was not present at the scene of the accident. He and his driver completely denied involvement of the taxi in the accident. The Claims Tribunal, upon considering the entire evidence, found that the driver (O. P. W. 2) had driven the taxi rashly and negligently causing death of Gopal Chandra Chatterjee. So, evidence in disproof of the driver's negligence could have been led by O. P. W. 1, the appellant, under the provisions of Section 106 of the Indian Evidence Act through his driver. The liability of the O. P. No. 1, appellant, to compensate stood established on the evidence adduced by the claimants in proof of rashness and negligence of the driver O. P. W. 2 in driving the offending taxi. So, the evidence adduced by the claimant, and the character of the accident bringing the doctrine of res ipsa loquitur have been reassured by the rule of evidence in Section 106 of the Indian Evidence Act.

57. Section 110-B of the Motor Vehicles Act, 1939 reads as follows:--

'Award of the Claims Tribunal:--On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer,'

58. On receipt of an application for compensation the Claims Tribunal shall (a) hold an inquiry into the claim, for compensation; (b) give parties an opportunity of being heard; and (c) may make an award determining the amount of compensation which appears to it to be just.

59. Mr. Banerjee, the learned counsel for the appellant, attacked the provisions of Section 110-B appearing in the expression 'which appears to it to be just' as portending the evil of excessive delegation of power by the Legislature to a Claims Tribunal without laying down any principle upon which the power of determining the compensation is to be exercised, and that such excessive delegation of power to the Claims Tribunal smacked of arbitrariness in the process of determination of the compensation. The expression 'just compensation' means reasonable compensation as can be determined upon the evidence adduced by the parties in the particular inquiry proceedings. In law relating to compensation in motor accident cases, where rashness and negligence of the driver is of primary concern for adjudication by Claims Tribunal in awarding 'just compensation', the incumbents of the Claims Tribunal, being seasoned Judges, must be presumed to be reasonable men. In Hall v. Broklands Auto Racing Club, (1933) 1 KB 205, Greer, L. J. at p. 224 illustrated 'reasonable member of the public' and observed:--

'I think it must be the same, and it must be judged by what any reasonable member of the public must have intended should be the term of the contract. The person concerned (reasonable member of the public) is sometimes described as 'the man in the street,' or 'the man in the Clapham omnibus', or as I recently read in an American author, 'the man who takes the magazines at home, and in the evening pushes the lawnmower in his shirt sleeves.'

60. I think a Claims Tribunal constituted under Section 110 of the Motor Vehicles Act, 1939 presided over either by a District Judge or by a Judge of a High Court or by a person qualified for appointment as a Judge of a High Court must be presumed to have been manned by a reasonable member of the public, Such a Claims Tribunal, following the procedure laid down in Sections 110-B and 110-C of the Motor Vehicles Act, 1939 in exercise of its best discretion may make an award. In determining the amount of compensation to be awarded the Claims Tribunal shall have to sift the evidence as adduced by the parties in the particular compensation proceedings and shall determine upon the evidence the amount of compensation which would appear to the Claims Tribunal to be just, or, in other words, reasonable, but not arbitrary, Either of the parties to the Claims compensation proceedings, dissatisfied with the award of the Claims Tribunal, may come up in appeal before the High Court (Section 110-D, Motor Vehicles Act, 1939). The High Court in appeal is to decide whether on the proved circumstances of the case, the Claims Tribunal, in exercise of its discretion made the award and determined the quantum of compensation which could be said to be just, i.e., reasonable.

61. In Phillips v. London and South Western Rly. Co., (1879) 49 LJQB 233 at p. 237, Lord Justice Brott, in laying down the principle of determining compensation where a person was severely injured by a railway accident, observed;--

'You cannot give evidence of them, and a Judge can only leave it at large to the jury, telling them that all these circumstances and possible chances must be taken into account, and that they must give what twelve men of ordinary sense consider fair and reasonable compensation, without attempting to make it an absolute and accurate mathematical compensation.'

62. So, what the reasonable men consider fair and reasonable compensation would be 'just compensation'. Lord Justice Cotton at page 238 of the report added by observing as follows:--

'..... and having taken into consideration all the circumstances affecting it, say what is a reasonable sum to be awarded as compensation.'

63. So, reasonable compensation is 'just compensation' depending upon consideration of all the proved circumstances of a particular Claims Compensation Case,

64. In 1937 AC 826 (H.L.) which was a case of death resulting from a motor accident one of the questions was what was the proper measure of damages. Lord Wright at page 849 of the report observed:--

'The jury should be directed that they are entitled to take it into consideration, along with other relevant elements of damages, using their common sense to give what is fair and moderate, in view of all the uncertainties and contingencies of human life.'

65. Fair and moderate damage i.e., compensation is also 'just compensation' depending upon the proved circumstances of a case. Lord Justice Roche at pages 861 and 862 of the report 1937 AC (ibid) observed:

'I would add that I confess to some apprehension lest this element of damage may now assume a frequency and a prominence in litigation far greater than is warranted in fact, and becoming common form may result in the inflation of damages in undeserving cases, or, more probably perhaps, may become stale and ridiculous to the detriment of real and deserving cases such as the present. But the abatement of these possible evils may be left to the good sense of judges and juries, and I may be permitted to express the hope that the assistance of a jury--in my judgment a most admirable tribunal for such a purpose--may be not seldom availed of in the future.'

66. Lord Roche left the measure of damage to the good sense of judges and juries i.e. to their reasonableness. The Claims Tribunal functions both as a judge and a jury. The Legislature by enacting Section 110-B of the Motor Vehicles Act, 1939 and using therein the expression 'just compensation' left the determination of quantum of just compensation to the good sense of the judge or judges, constituting the Claims Tribunal, The judges of the Claims Tribunal as reasonable men, learned in law, shall have to sift the evidence in a particular Claims case and shall, in exercise of their good sense, determine upon the proved circumstances of the case what would be fair, moderate and reasonable compensation and would therefore be 'just compensation'. All Claims Compensation Cases do not involve consideration of same or similar circumstances and every Claims Compensation Case would necessarily involve consideration of variable circumstances by the Tribunal. So, no arithmetical standard can be laid down by the Legislature for determining what compensation would in the proved circumstances of a particular case be 'just compensation' within Section 110-B of the Motor Vehicles Act. So 'just compensation' in Section 110-B of the Motor Vehicles Act, 1939 is what is fair, moderate and rea-sonable compensation, awardable in the proved circumstances of a particular case at hand. The provisions of Sections 110-B, 110-C and 110-D of the Motor Vehicles Act, 1939 leave no room for a Claims Tribunal to determine compensation arbitrarily since the parties have been given right to adduce evidence and to be heard, and, if dissatisfied, with the award determining the quantum of compensation, may come up in appeal to a High Court under Section 110-D of the Motor Vehicles Act, 1939. The legislature has. therefore, laid down the standard for determination of quantum of compensation in Section 110-B of the Motor Vehicles Act by using the two words 'just compensation', meaning thereby, such fair, moderate and reasonable compensation as the evidence in the particular case at hand would justify the Claims Tribunal to award in the best exercise of its judicial discretion. The Legislature by Section 110-D of the Motor Vehicles Act has provided for an appeal to the High Court against the Claims Tribunal's award lest the Tribunal should indulge in arbitrariness in making the award, determining the quantum of compensation, and apportioning the same amongst the parties to the proceeding. Justness or in other words, fairness and reasonableness of compensation cannot be an unalterable concept and depends upon variable circumstances of each case as would be established in the inquiry before the Claims Tribunal upon the evidence to be adduced by the parties thereto. It would be profitable now to refer to Chapter IV-A, Sections 68-A to G8-H of the Motor Vehicles Act, 1939 particularly Section G8-G. Section 68-G lays down the principles and method of determining compensation by laying down a set of formula under Section 68-G of the Act since the quantum of compensation to be determined depends only upon happening of one or other of the contingencies, as specified in Sub-section (2) of Section 68-F of the Motor Vehicles Act. So, only under those specific circumstances, as enumerated in Sub-section (2) of Section 68-F of the Act, but in no other circumstances, the permit holder is entitled to compensation. Accordingly, by Section 68-G of the Act, principles and method of determining compensation based upon certain formula have been provided for. But compensation payable under Section 110-B, Motor Vehicles Act depends only upon the proved circumstances of a particular case before the Claims Tribunal, and as such, the Legislature cannot lay down any hard and last principle and set formula for determining 'just compensation' in a Claims Compensation Case. But it has laid down the principles and method of determining compensation under Section 68-G of the Act since the quantum of compensation depends only upon happening of either of the contingencies as specified in Sub-section (2) of Section 68-F of the Motor Vehicles Act, 1939. Accordingly, in determining the quantum of compensation in a Claims Compensation Case by the Claims Tribunal, the Legislature has left the discretion to the Tribunal as to what, in the proved circumstances of a case, would be fair, moderate and reasonable compensation, i.e., 'just compensation' as occurring in Section 110-B of the Motor Vehicles Act. Accordingly, Mr. Banerjee's contention that the expression 'just compensation' in Section 110-B of the Motor Vehicles Act portended excessive delegation and smacked of arbitrariness, does not appear to me to be sound in law.

67. Mr. Banerjee's last contention was that the claims compensation application had not been filed by all the legal representatives of the deceased Gopal, and that as such the application, filed by some of the legal representatives of deceased Gopal, but not all, should not have been entertained by the Claims Tribunal. Section 110-A of the Motor Vehicles Act in Sub-section (1) says:

'An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made--Clause (b) where death has resulted from the accident, by the legal representatives of the deceased; or .....'

The expression 'may be made' is an enabling provision. Any or all legal representatives of the deceased may make an application. The Legislature has not used the words 'shall be made'. If there are more legal representatives than one, one of such legal representatives making the application for compensation is entitled to get the compensation as claimed. Such a legal representative, if there are more legal representatives than one, would be a trustee for the other legal representatives and shall hold the money obtained under the award not only on his own account but also on account of the other legal representatives of the deceased if any, entitled to a share in the compensation money. The other legal representatives of the deceased who did not file the application for compensation may, for getting their shares in the compensation money awarded by the Claims Tribunal have their remedies according to law against the legal representative who made the application for compensation and got the award, since such legal representative would hold the share of the other legal representatives in the compensation money awarded, as a trustee for the other legal representatives of the deceased, For speedy settlement of claims for compensation by the Tribunal, the Legislature has enabled any one of the legal representatives or all the legal representatives to file an application for compensation. The procedure for inquiry under Section 110-C of the Act and the rules framed thereunder envisage a summary procedure to be followed by the Tribunal and for following such summary procedure, as Sub-section (2) of Section 110-C of the Act prescribes, the Claims Tribunal being not a Civil Court, has been invested with the limited powers of a Civil Court for certain specific purposes only, such as, of taking evidence on oath enforcing the attendance of witnesses and compelling the discovery and production of documents and material objects. Therefore, the provision in the Code of Civil Procedure relating to joinder of parties is not applicable in a claims compensation proceeding before the Tribunal Mr. Banerjee contended that the expression 'by the legal representatives of the deceased' pointedly indicated that all the legal representatives of the deceased must make an application for compensation under Section 110-A of the Act. Mr. Banerjee's contention, for reasons I have already recorded, does not mpress me. There is no bar to all the legal representatives' making separate applications claiming compensation before the Tribunal. All the legal representatives may also join in one application. If each of the several legal representatives files his own claims compensation application before the Tribunal, the Tribunal in a joint inquiry over those applications may make an award, determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid. If one of the several legal representatives files an application for claims compensation and gets an award he shall hold the money awarded not only on his own account for his share but also on account of the shares of the other legal representatives, if any, in trust for them. Such legal representatives, as I have already observed, may get their shares of the compensation money awarded by proceeding according to law against the legal representative upon whose application the compensation was awarded by the Tribunal. Accordingly an application for compensation may be made by one of the many legal representatives of the deceased or by all the legal representatives of the deceased joining themselves in such application.

68. So, all the relevant contentions raised by Mr. Banerjee do not appear to me to be sound in law.


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