Ex-Gratia Payment To Motor Accident Victim Under State Policy Not To Be Returned To Insurer Upon Determination Of Compensation Under MV Act: Gauhati HC

Justice Achintya Malla Bujor Barua observed:

“The provisions of the government notification No. RR.33/2014/66 dated 15.11.2014 read with the judgment of this Court dated 04.05.2019 in WP(C) No. 2100/2019 makes it discernible that the next of kin of a person who was killed in a motor accident would be entitled to the payment of an ex-gratia amount of Rs. 2, 00, 000/- and such payment of ex-gratia would be over and above that such person may be entitled as a compensation under any other law including the provisions of the Act of 1988.”

The notification issued by the Revenue and Disaster Management Department of the Government of Assam provides for an ex-gratia payment of Rs. 2, 00, 000/- to the next of kin of persons killed due to accident in public places or in public carriers.

The court stated that the entire concept of claiming compensation either under the Act of 1988 or any other law or otherwise is to pay for the damages or injuries that one person may have caused to another person by means of a motor accident. However, ex-gratia payment under the law is a payment made as a favour in a circumstance where there is no legal necessity to make any such payment. Thus, both are distinct concepts.

“A payment by one person causing damage or injury to another person by means of a compensation is a payment which is not made as a favour, but it is a payment which is a legal necessity under the law whereas an ex-gratia payment is a payment which is made as a favour and without any legal necessity.”

Hence, the court stated that payment that may be made as an ex-gratia simpliciter cannot be included to be within the concept of being a payment as compensation.

The court further stated that the only consideration that the respondent authorities are required to undertake upon such claim for ex-gratia payment being made on account of death caused to a person in a motor accident is the fulfilment of the following four conditions:

(i) Whether the accident as per the records had actually taken place;

(ii) Whether the person for whose death the ex-gratia is claimed was actually involved in such motor accident and due to such accident death was caused to the person concerned;

(iii) Whether the person claiming ex-gratia is in fact the next of kin of the person who had died in the motor accident and the person concerned is otherwise entitled to the payment to the exclusion of all others, who also may have similar claim, in other words, there has to be a determination on the class of legal heirs of the deceased who may have made the claim; and

(iv) Whether the payment of ex-gratia in respect of the death caused to the person concerned in a motor accident had not been earlier claimed and paid to any other person.

In this background the court directed the respondents to examine the various claims of the respective petitioners and the examination to be done by the respective Deputy Commissioners involved as to whether the aforesaid four conditions indicated above are satisfied in favour of claimants.

The court further ordered:

“appropriate orders for payment of compensation may be made and such orders may be honoured by the Revenue and Disaster Management Department as well as the Finance Department for ensuring that the actual payment is received by the person concerned and in the event any such person do not satisfy either of the four conditions or any other applicable condition, appropriate orders may be passed and the person concerned may be informed accordingly.”

“The Deputy Commissioners shall within a period of two months of the respective applications being received, consider and pass individual reasoned orders as indicated above. Also, Revenue and Disaster Management Department, shall within a period of another one month therefrom make the actual payment to the respective beneficiaries”, it held.

The court also held that payment to others can be given its consideration only upon a satisfaction that the deceased did not have his wife or children, or in case of an unmarried person, his parents.

The writ petitions were allowed accordingly.

Case Title: Lakshi Das v. Gyanendra Dev Tripathi and Anr. and Other related matters

Citation: 2023 LiveLaw (Gau) 14

Coram: Justice Achintya Malla Bujor Barua

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