*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.475 of
2005
%
Dated 05.11.2013
Between:
# The Oriental Insurance Company
Divisional Office,
Ongole ...Appellant
and
$ smt. Aluru Rama Devi,
and others ….Respondents
! Counsel
for the Appellant : Sri Manne Haribabu
^ Counsel
for respondents :
Sri B.Sudhakar Reddy
< GIST:
>HEAD NOTE:
? Cases
referred:
1) 2001(1) ALT 495 DB
2) 1992(2)ALT 155
3) 1965(1) All.E.R-563
4) 1963(2) All.E.R.432
5) 1969(1) All.E.R.555
6) 1995 ACJ 366(SC)
7) 2009 ACJ 1298
8) 2013(4) ALT 35(SC)
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.475 OF 2005
JUDGMENT:
The Oriental Insurance Company Limited (2nd
respondent in the claim petition) filed this appeal, having been aggrieved by
the Order/Award of the learned Chairman of the Motor Accidents Claims
Tribunal–cum-I Additional District Judge, Cuddaph,(for short, ’Tribunal’)
in M.V.O.P.No.930 of 2001 dated 09.07.2004, awarding compensation of Rs.7,75,000/-(Rupees
seven lakh seventy five thousand only) with 9%p.a. interest as against the
claim of the respondent Nos.1 to 5 (claimants in the claim petition i.e. wife,
three daughters and mother of deceased) of Rs.10,00,000/-(Rupees ten lakh
only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for
short, ‘the Act’).
2. Heard Sri Manne Haribabu, learned standing
counsel for the appellant, Sri B.Sudhakar Reddy, learned counsel for the respondent
Nos. 1 to 4, who are also representing the interest of 5th
respondent-claimant even not served from the deemed service as per order of the
Court dated 04.01.2012; so far as respondents 6 to 8 concerned, it was mentioned in the cause title that respondent
Nos.6 to 8 (Owner of crime lorry, owner of jeep and Insurer of jeep), are not
necessary parties to the appeal. In this regard, in M.Chakra Rao v.
Y.Baburao[1],
the Division Bench of this Court at para-12 held for deciding the that
statutory liability of the insurance company, in the absence of the owner of
the crime vehicle, appeal filed by the claimants or Insurer can is maintainable
as held in New India Assurance Company Limited v. Harijana Babakka[2].
3. The contentions in the grounds of appeal in nutshell are that
the award of the Tribunal is contrary to law, weight of evidence and
probabilities of the case, that the Tribunal was erred in arriving wrong conclusion on the huge quantum of compensation
awarded by not going through the facts properly with regard to the contributory
negligence on the part of the driver of the jeep in which the deceased was
proceeding, not properly going through the oral and documentary evidence on
record, failed to consider that the O.P.No.902 of 2001 on the file of Tribunal,
Proddutur arose out of same accident, failed to deduct 1/3rd salary
of the deceased and apply correct multiplier, hence to set aside the award by
allowing the appeal whereas it is the contention of the claimants (appeal
respondents 1 to 5) that the award of the Tribunal no way requires interference
but for no cross-objections to enhance compensation prayed for and sought for
dismissal of the appeal. The parties are being referred as arrayed before the
Tribunal for sake of convenience.
4.
Now the points
that arise for consideration in the appeal are:
1.
Whether
the compensation awarded by the Tribunal is highly abnormal and requires
interference by this Court while sitting in appeal against the award and if so
what amount to arrive a just compensation and with what rate of interest?
2.
To what result?
POINT-1:
5.
The facts of the case before the Tribunal are that, on 28.04.2001 at 6.15 p.m. the
lorry bearing No.AP 27-U-2689 belongs to
( appeal 6th respondent) the 1st respondent in the claim petition insured with the (appellant) 2nd respondent in the claim petition and the opposite coming jeep AP 21 C 4499 colluded in which the deceased by name Mandem Lakshmi Narasimha Sastry, s/o M.Narasaiah, aged 45 years, (as per Ex.A.8 medical certificate) working as Postman along with some others was proceeding; as a result the deceased was succumbed to injuries while undergoing treatment, which occurrence is covered by Ex.A.1 First Information Report in Cr.No.28 of 2000 under Section 337 and 338 IPC and Ex.A.3 charge sheet against the lorry driver. The learned Tribunal basing on the oral and documentary evidence on record, awarded in all compensation of Rs.7,75,000/-(Rupees seven lakh seventy five thousand only) out of Rs.10,00,000/- against the lorry owner and Insurer-the 1st and 2nd respondents in the claim petition jointly and severally. The same is in dispute mainly for not fixing composite negligence against driver of both vehicles and on quantum of compensation as excessive and unjust.
( appeal 6th respondent) the 1st respondent in the claim petition insured with the (appellant) 2nd respondent in the claim petition and the opposite coming jeep AP 21 C 4499 colluded in which the deceased by name Mandem Lakshmi Narasimha Sastry, s/o M.Narasaiah, aged 45 years, (as per Ex.A.8 medical certificate) working as Postman along with some others was proceeding; as a result the deceased was succumbed to injuries while undergoing treatment, which occurrence is covered by Ex.A.1 First Information Report in Cr.No.28 of 2000 under Section 337 and 338 IPC and Ex.A.3 charge sheet against the lorry driver. The learned Tribunal basing on the oral and documentary evidence on record, awarded in all compensation of Rs.7,75,000/-(Rupees seven lakh seventy five thousand only) out of Rs.10,00,000/- against the lorry owner and Insurer-the 1st and 2nd respondents in the claim petition jointly and severally. The same is in dispute mainly for not fixing composite negligence against driver of both vehicles and on quantum of compensation as excessive and unjust.
6. The fact that the jeep and lorry
were colluded while proceeding in opposite direction to each other not in
dispute. As per claim petition the jeep was while overtaking RTC bus, the
accident occurred. P.W.2 so called eye witness also deposed the same, but for
saying the lorry driver’s rash and negligent driving contributed the accident
by dashing the jeep. Ex.A.1 FIR registered was on the report of one of injured
persons among occupants of the jeep. The P.Ws.1,3 and 4 are not the eye witnesses to the accident. R.W.1 employee of Insurer of the jeep did not
speak anything but for saying the Ex.A.1 FIR and Ex.A.3 chargesheet are against
the lorry driver and not the jeep driver. Even the FIR speaks what P.W.2 deposed.
None of R.W.1 and P.w.1 filed any MV report or rough sketch of scene of
offence. A perusal of above evidence on its face speaks there is a composite
negligence of drivers of both vehicles as jeep driver also at fault in
overtaking bus without observing opposite coming lorry and even to say bus
driver gave signal to overtake, the bus driver also at fault and it is not
possible to believe of despite lorry coming in opposite direction bus driver
gave signal to jeep driver to overtake and even finder of last opportunity and
duty lies on jeep driver as well as lorry driver. No doubt the contributory
negligence of two vehicles involved to decide at what proportion depends upon
several factors like size of vehicles, width of road and its condition, manner
of accident i.e. when it was overtaking of bus by jeep from behind, dashed by
opposite coming lorry to say at least 25% of contributory negligence on part of
jeep driver to say remaining 75% on lorry driver and thus the finding of the
Tribunal in fixing total negligence on lorry driver is unsustainable and
baseless as FIR and chargesheet by themselves not evident and will not outweigh
P.W.2’s evidence referred supra the eye witness. From the above, the next
aspect to decide is what is the just compensation the claimants are entitled
against the lorry owner and Insurer on one part and against jeep owner and
Insurer on the other part.
7. Before coming to decide, what is
just compensation in the factual matrix of the case, it is apt to state that
perfect compensation is hardly possible and money cannot renew a physique or
frame that has been battered and shattered, nor relieve from a pain suffered as
stated by Lord Morris. In Ward v. James[3],
it was observed by Lord Denning that award of damages in personal injury cases
is basically a conventional figure derived from experience and from awards in
comparable cases. Thus, in a case involving loss of limb or its permanent
inability or impairment, it is difficult to say with precise certainty as to
what composition would be adequate to sufferer. The reason is that the loss of
a human limb or its permanent impairment cannot be measured or converted in
terms of money. The object is to
mitigate hardship that has been caused to the victim or his or her legal
representatives due to sudden demise. Compensation awarded should not be
inadequate and neither be unreasonable, excessive nor deficient. There can be
no exact uniform rule in measuring the value of human life or limb or
sufferance and the measure of damage cannot be arrived at, by precise mathematical
calculation, but amount recoverable depends on facts and circumstances of each
case. Upjohn LJ in Charle red House Credit v. Tolly[4]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[5]
observed that to compensate in money for pain and for physical consequences is
invariably difficult without some guess work but no other process can be
devised than that of making a monitory assessment though it is impossible to equate the money
with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest
Control (India) Private Limited[6]
at paragraph No.12 held that in its very nature whatever a Tribunal or a
Court is to fix the amount of compensation in cases of accident, it involves
some guess work, some hypothetical consideration, some amount of sympathy
linked with the nature of the disability caused. But all the aforesaid elements have to be
viewed with objective standard. Thus, in most of the cases involving Motor
Accidents, by looking at the totality of the circumstances, an inference may
have to be drawn and a guess work has to be made even regarding compensation in
case of death, for loss of dependent and estate to all claimants; care,
guidance, love and affection especially of the minor children, consortium to
the spouse, expenditure incurred in transport and funerals etc., and in case of
injured from the nature of injuries, pain and sufferance, loss of earnings
particularly for any disability and also probable expenditure that has to be
incurred from nature of injuries sustained and nature of treatment required.
8.
From the above legal position and coming to the factual matrix, the deceased
was aged 45 years, as per P.W.1 and 3 evidence and as per Ex.A.2 medical
certificate working as Postman with earnings of Rs.4,664/- p.m as per Ex.A.13
pay particulars. Besides that the earnings of deceased as purohit even taken an
average at Rs.1000/- p.m. from seasonal and only additional avocation to main
job as postman, it comes to Rs.5,664/- and since the claimants legal
representatives as per Ex.A.4 certificate are wife(P.W.1), three minor children
and mother of deceased being dependants on the deceased earnings, after
deducting 1/4th towards personal expenses out of Rs.5,664/-; it
comes to Rs.4248/- p.m. and 30% increase taken therefrom from the age of the
deceased towards future prospective earnings, it comes to Rs.5522.40ps per
month and rounded to Rs.5522/- p.m. x 12= Rs.66,264/- x 14(multiplier) that to
be taken as per Sarla Varma v. Delhi Transport Corporation[7]
followed in Rajesh v. Ranabir Singh[8],
then it comes to Rs.9,27,696/-, for loss of consortium of Rs.1,00,000/- to 1st
claimant, for funeral expenses minimum
of Rs.25,000/-, for care, guidance, love and affection to the three minor
children of each Rs.1,00,000/-, in all comes to Rs.10,92,700/- out of which the
75% contributory negligence against the lorry owner and Insurer comes to only
Rs.8,19,525/- and that the jeep owner and Insurer Rs.2,73,175/-. Thus, the
compensation awarded by the Tribunal of Rs.7,75,000/- is no way unjust and
unreasonable and for this Court while sitting in appeal there is nothing to interfere
but for to say the remaining 25% contributory negligence amount to be recovered
by separate appeal by claimants against the respondents 3 and 4 of claim
petition.
9.
Coming to the rate of interest, though the interest at 9% per annum awarded by
the Tribunal even not in dispute, from the settled proposition of law in TN
Transport Corporation v. Raja Priya[9]
and Sarla Varma (supra) and from the latest expression of the Apex
Court in Rajesh (Supra), interest
is awarded at 7½% per annum by modifying and reducing from 9% per annum awarded
by the Tribunal. Accordingly, Point-1
for consideration is answered.
POINT -2:
10.
In the result, the appeal is partly allowed, while holding that there is
contributory negligence of 25% on the jeep driver for its owner and Insurer to
make liable for Rs.2,73,775/-. The appellant-Insurer of lorry is liable to indemnify the lorry
owner for the 75% negligence of the lorry owner for the 75% negligence of the
lorry driver as the 75% liability comes to Rs.8,19,525/- to the claimants by
confining out of the claim against the respondents 1 to 4 for Rs.10,00,000/-,
to the awarded sum of Rs.7,75,000/-
against the appellant-Insurer and Insured of the lorry (claim petition R.1 and
R.2) the appeal is dismissed confirming the quantum of compensation of
Rs.7,75,000/- however, by reducing the rate of interest thereon from 9% p.a. to
7½% p.a. from the date of petition (MVOP) till realization/deposit with notice.
Rest of the terms of the award of the Tribunal holds good. There is no order as to costs in the appeal.
_______________________
Dr. B. SIVA SANKARA
RAO, J
Date:
05-11-2013
VVR
Note: L.R. copy to be marked. Yes/No
