HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1171 and 1208 OF 2007
COMMON
JUDGMENT:
The
claim petition-4th respondent i.e. Insurer of the crime lorry
bearing No.AP21 U 2039 of claim petition-3rd respondent-owner being
driven by the claim petition 2nd respondent-driver(in both the claim
petitions) preferred these two appeals, having been aggrieved by the Orders/Awards
in O.P.No.129 of 2003(MACMA No.1171 of
2007) and 134 of 2003(MACMA No.134 of 2003) dated 07.11.2006 on the file of the learned Chairman of the Motor
Accidents Claims Tribunal–cum-I Additional District Judge, Anantapur (for
short, ‘Tribunal’) under Section 166 of the Motor Vehicle Act, 1988 (for
short, ‘the Act’).
2.
Heard Sri Katta Laxmi Prasad, learned standing counsel for the appellant, Sri
K.Srinivas, learned counsel for the respondents 1 to 3 in MACMA No.1171 of 2007
and Sri K.Maheswara Rao, learned counsel for respondents 1 to 3 in (MACMA
No.1208 of 2007), and the respective owners of the Tata Sumo and lorry did not
put forth their appearance in both the appeals and the 2nd
respondent-driver of crime lorry remained ex parte before the Tribunal
did not even choose to appear in these appeals also, hence taken as heard for
their absence to decide on merits and perused the record. The parties
hereinafter are referred to as arrayed before the Tribunal for the sake of
convenience in the appeal.
3. The contentions of the appellant-Insurer in the grounds of both
the appeals and in submissions during course of hearing in nutshell are that
the award of the Tribunal is contrary to law, weight of evidence and
probabilities of the case, that the quantum of compensation awarded by the
Tribunal in the two claim petition is excessive and also the findings of the
Tribunal in non-apportionment the liabilities of the specific contributory negligence having so
found, since the driver of the Tata Sumo not averted the accident, that the earnings
of the respective deceased taken exorbitantly and excessively without any basis
and in ignorance of the evidence on record by ill-appreciation and the
multiplier adopted is wrong and awarded
of the 9%p.a. interest is exorbitant but for 6%p.a. as per Sarla Verma v. Delhi Transport Corporation[1]
allow both the appeals by reducing quantum of compensation and apportionment of
50% each vehicle driver to indemnify the owner and Insurer respectively and
also brought to the notice of the Court a decision of a brother Judge of the
Court arising out of the same accident against the award in O.P.No.132 of 2003
covered by appeal No.MACMA No.1243 of 2007 decided on 23.02.2010. The counsel
for the Insurer reiterated the said findings with reference to this expression
also besides facts in detail.
4.
The contentions of the appellants-claimants in both the appeals respectively that
the award of the Tribunal is just and reasonable and for this Court while
sitting in appeal there is nothing to interfere either with the quantum arrived
or the earnings estimated or the rate of interest awarded within the discretion
but for if at all to enhance the quantum arrived is just compensation and to
apportion the contributory negligence to a minimum as evidence on record shows main negligence is
on the part of the lorry driver. Hence,
to dismiss the appeals.
5. Now the points that arise for
consideration in the appeal are:
1.
What is the percentage of contributory negligence on the part
of both the vehicles arrived and whether the quantum of compensation awarded
respectively by the Tribunal is unjust and excessive and also rate of interest
if so what is just compensation and with what rate of interest?
2.
To what result?
POINT-1:
6.
The facts of the case in both the appeals are that, on 15.11.2002 the deceased
G.Narayanaswamy (O.P.No.129 of 2003) and D.Mahaboob Peera (O.P.No.134 of 2003) along
with their friends proceeded in a Tata Sumo vehicle bearing No.TN01 K 4223
belongs to the 1st respondent insured with the 4th respondent-appellant
covered by Ex.B.1 policy to attend a
wedding at Hyderabad and when they reached near Rangapur, the crime lorry bearing No.AP 21 U 3039
belongs to the 3rd respondent insured with the 4th
respondent covered under Ex.B.1 comprehensive
policy driven by the 1st respondent, in rash and negligent manner at
high speed, collided with the jeep, due to which the jeep extensively damaged
and the both the deceased, driver of the jeep and few others died on the spot,
which occurrence is covered by Ex.A.1 FIR and Ex.A.5 charge sheet. The learned
Tribunal basing on the oral and documentary evidence on record, awarded in all
compensation of Rs.7,92,280/-(in O.P.No.129 of 2003) and Rs.8,78,740/-(in
O.P.No.134 of 2003) with interest at 9%pa. against all the respondents in the
claim petition jointly and severally.
7.
The fact that the accident was the result of involvement of both the vehicles
while proceeding in opposite direction on 15.11.2002 not in dispute so also the
fact of lorry belongs to the 3rd respondent of the claim petitions
driven by the 2nd respondent of the claim petitions-insured with the
claim petition-4th respondent covered by policy to cover risk of the
3rd parties.
8.Now
coming to the contributory negligence, the Tribunal from the evidence on record
found the accident was the result of negligent driving of both the vehicles but
for that it could not and did not specify percentage or proportionate liability
of the contributory negligence. The
decision placed reliance on by the appellant-Insurer of the same accident in
another case covered by MACMA No.1243 of 2007 decided on 23.02.2010 E.Yellappa
deceased therein that as the Tribunal
categorically found that the drivers of both the vehicles are responsible for
the accident and in the absence of stipulation of degree of responsibility, it
is reasonable to construe the award of the Tribunal as fixing equal responsibility on the drivers
of both the vehicles for causing the accident and the Tribunal has no
justification in not apportioning the liability in equal proportions with 50%
compensation liable by the respective vehicle owners and Insurer if any of both
the vehicles. Here the thing to be seen
in the present facts of the two appeals lis as to any evidence in ascertaining
the proportion of contributory negligence concerned, the Tribunal also did not
specify the percentage herein arisen out of the same accident. It is for the reason that in the expression,
the finding arrived is not by discussing the factual matrix in detail but by
saying in the absence of specific saying that the accident was the result of
contribution of both the vehicles to apportion 50% each. Having regard to the above coming to the
factual matrix the chargesheet filed shows against the lorry driver after
investigation by police that is not in dispute.
What the claim petition averments in O.P.No.134 of 2003 para-2 if not
also in O.P.No.129 of 2003 covered by the lis or despite the effort to avert
the accident, the Sumo driver –cum-owner-1st respondent could not. It
does not mean that there is no any contribution on the part of the lorry driver
thereby that plea no way advantage to the Insurer to take a shelter therefrom
in any way. No doubt, from the factual matrix the sumo was claimed particularly
on the frontage badly damaged. It is a
sheer case of head on collusion of both the vehicles. However, to ascertain contributory
negligence, it is not only from that fact but also from the size of the
vehicle, condition and size of the road as criteria and the scene observation
report as well as MVI report regarding damage of both the vehicles respectively
and on what side and in what proportion but that reports are not before the Court
filed by either side. Having regard to
the above and from the claimant let in evidence and the charge sheet which also
against the lorry driver and the Tata Sumo is small in size when compared with
the lorry, it is just to apportion 40% contributory negligence on the Sumo
driver-1st respondent and the remaining 60% on the lorry driver-2nd
respondent belongs to the 3rd respondent insured with the 4th
respondent of the respective claim petitions. It is further to be noted that the
expression of this Court earlier in some other matter no way a precedent to say
50% has to be taken in the present case
in view of what is discussed supra.
9.
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[2],
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[3]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[4]
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[5]
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.
10.
From the above legal propositions in the factual matrix, so far as MACMA
No.1208 of 2007 is concerned, the deceased D.Mahaboob Peera was working as Mandal
Parishad Health Extension Officer and Ex.A.6 is the salary certificate that is
proved through P.W.3 doctor Lakshmiprasad who was not cross examined by the Insurer
admittedly and the salary certificate speaks gross salary is Rs.13,173/- and
the deductions are more than Rs.4,500/- and net salary specified nearly
Rs.9,000/-. In fact on its perusal, the
contribution to the General Provident Fund, Professional Tax and other savings
alone is deductable and not the loan recovery in the absence of showing the
loan is a long term or short term loan, thus Rs.10,473/- is the net amount
arrived after deduction of said amounts of savings and Professional Tax of
Rs.2,700/- rounded to Rs.10,500/- p.m. as net salary and the claimants are 3 in
number i.e., wife and two major sons, no doubt the sons are not dependents
being major sons on the father and his earnings but for the wife. Thus, it is 1/3rd to deduct from
the persons 3 in number being legal representatives entitled to the
contribution of the deceased as class-I heirs, then it comes to Rs.7,000/- p.m.
X 12 X born on 1.7.1948 of the accident dated 15-11-2002 more than 54 years and the multiplier as per Sarla
Verma (supra) for a person up to 55 is 11 to adopt, it comes to Rs.9,24,000/-
besides that the first claimant wife aged though shown as 40 years, from the
age of husband about 54 years to say only 50 years as having to major sons the
eldest is more than 27 years as their own saying as on the date of claim
petition immediately after the accident and thus to award Rs.50,000/- towards
loss of consortium as in Rajesh (supra) Rs.1,00,000/- awarded therein from the
age, Rs.25,000/- towards funeral expenses and Rs.5,000/- towards loss of estate
the minimum as per Sarla Verma and Rajesh (supra), Rs.10,04,000/- the claimants
in fact entitled as just but what the tribunal Awarded of Rs.8,78,740/- is no way excessive. As per Ranjana Prakash Vs. Divisional
Manager[6],
the appellate Court cannot enhance the claim in appeal filed by the insurer or
owner or driver with no cross-objections but for to substantiate the claim by
allowing the claims of respondents on one ground or the other.
11.In
MACMA NO.1171 of 2007(O.P.No.129 of 2003) the deceased G.Narayanaswamy a
political worker in a political party apart from running kirana provisional
shop and doing crackers business and other sundry business and the income tax
returns covered by Exs.A.12 filed to show he was an income tax assessee he was
1973 to 1989. In fact thereafter he did
not file any income tax returns more particularly on the relevant date of
accident 15-11-2002. However, Ex.A.15 the
registered certificate under the Sales Tax Act shows the RC was not cancelled
but therefrom that he is doing some or other business and particularly from the
returns supra he was a businessman by profession, however, regarding income
there is no material before the Court and the Tribunal taken at Rs.12,000/- p.m.,
for which in para 15 of award of the Tribunal there was no just reasons to say
arrived but for his age taken as 52 years.
Thus it has to do some guess work with reference to the earlier returns
showing the income and in proof regarding income 12 years prior to the date of
accident as the business income is an average at Rs.7,000/-p.m., as on the date
of accident. The claimants are doing business and getting agricultural income
to say any loss of supervision as the evidence shows the son is running a
business and supervising lands. The claimants are 3 in number i.e., wife, major
son and aged father dependents but for major son not dependant, if 1/3rd
is deducted towards personal expenses, it comes to Rs.4,666/-p.m.X 12 X 11
(multiplier for a person aged 55 years)= Rs.6,16,000/- and even the loss of
consortium from her age and having a major son of 28 years taken Rs.50,000/-
(Rajesh supra), Rs.25,000/- towards funeral expenses, Rs.10,000/- maximum
towards loss of estate comes to Rs.7,01,000/- to reduce from Rs.7,92,280/-.
12.
Now coming to the rate of interest, the Tribunal awarded 9% p.a. In fact,
Insurer places reliance upon the Apex Court expression in Sarla Verma v.
Delhi Transport Corporation[7],
where 6% p.a., is awarded. In fact,
the Apex Court in TN Transport Corporation v. Raja Priya[8],
in detail discussed the scope of Section 171 of M.V.Act and also the steep
fall in the bank lending rate and held ultimately the rate of interest 7.5%
p.a. is the reasonable and the latest expression of three judge Bench in Rajesh
v. Rajbir Singh[9],
it was categorically held that 7.5% p.a. is reasonable. Having regard to the above it is neither 6%
p.a., nor 9% p.a., but for 7½% p.a. as just, reduced from 9% p.a. Accordingly, point No.1 is answered.
Point No.2:
13.
In the result, both the appeals are partly allowed while apportioning
contributory negligence of the lorry driver at 60% to make liable the appellant
as Insurer of the lorry to indemnify the owner of the lorry and the remaining
40% by the owner of the Tata sumo vehicle and by upholding the quantum of
compensation arrived by the Tribunal in
both the claim petitions but by reducing rate of interest from 9% p.a.,
to 7½% p.a. The rest of award of the Tribunal holds good. There is no order as to costs.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
06-02-2014
VVR
Note: L.R. copy to be marked. Yes/No
