*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.132 of
2005
%
Dated 09.12.2013
Between:
# Madishetty Shobha Rani
...Appellant
and
$ J.Saidulu and others
….Respondents
! Counsel
for the Appellant : Sri M.Madhava Reddy
^ Counsel
for respondent No.1 :
dismissed for default
Counsel for respondent No.2-
The New India Assurance company
Limited : Sri Katta Laxmi Prasad,
Counsel for the respondent Nos.3&4
: Sri K.Rathangapani Reddy
< GIST:
>HEAD
NOTE:
? Cases
referred:
1)
2001(1)
ALT 495 DB
2)
1992(2)
ALT 155
3)
(2011)(4)
ALD 804
4)
1965(1)
All.E.R-563
5)
1963(2)
All.E.R.432
6)
1969(1)
All.E.R.555
7)
1995
ACJ 366(SC)
8)
2013
ACJ 1403
9)
2009
ACJ 1298
10)
2013
ACJ 12
11)
2009
ACJ 1298
12)
2013(4)
ALT 35(SC)
13)
2013(1)
An.W.R.808 SC
14)
(2001)
8 SCC 197 =AIR 2001 (SC) 3218
15)
(2005)
6 SCC 236
16)
(2004)
2 SCC 297
17)
2011(8)
scale 240
HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
M.A.C.M.A.NO.132 OF 2005
JUDGMENT:
The Claimant, wife of the deceased by
name Sri M.Manikyam, filed this appeal, having been aggrieved by the
Order/Award (Common Order in O.P.1301 and 1407 of 2000) of the learned Chairman
of the Motor Accidents Claims Tribunal–cum–Principal District Judge, Nalgonda (for
short, ’Tribunal’) in M.V.O.P.Nos.1407 of 2000 dated 22.08.2002, awarding
compensation of Rs.1,40,200/-(Rupees one lakh forty thousand two hundred only)
as against the claim of Rs.2,00,000/-(Rupees two lakh only), against respondent
Nos.1 and 2 viz., owner and Insurer of crime vehicle for enhancement of
compensation as prayed for in the claim petition under Section 166 of the Motor
Vehicle Act,1988 (for short, ‘the Act’), amended as per MACMAMP No.5732
of 2013 order dated 29.11.2013 to comply by payment of Deficit Court Fee by
dated 06.12.2013,enhancement of claim to Rs.6,00,000/-.
2. Heard Sri M.Madhava Reddy, learned
counsel for the appellant, Sri Katta Laxmi Prasad, learned standing counsel for
the 2nd respondent-The New India Assurance Company Limited (Insurer
of crime vehicle) Sri K.Rathangapani Reddy, learned counsel for respondent
Nos.3 and 4, the appeal against 1st respondent-owner of crime
vehicle (Auto) is dismissed for default. In this regard, in M.Chakra Rao v.
Y.Baburao[1],
the Division Bench of this Court at para-12 held that statutory liability
of the insurance company, in the absence of the owner of the crime vehicle in
the appeal filed by the claimants, can be decided and maintainable as held in New
India Assurance Company Limited v. Harijana Babakka[2] for fixing statutory liability, the presence
of the owner at the appellate stage is not necessary. The same was also quoted
with approval in G.Aravind Kumar v. Md Sadat Ali[3].
Thus, the contention that the appeal is not maintainable without impleading
owner of the vehicle as co-respondent against the insurer of the vehicle is not
sustainable and thereby it can be taken up for hearing. The
parties hereinafter are referred to as arrayed before the Tribunal for the sake
of convenience in the appeal.
3.
The contentions in the grounds of appeal as well as 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 Tribunal erred in
arriving a wrong conclusion on the quantum of compensation and awarded a very
meager amount and the interest taken only 9%p.a. instead of 12% and went wrong in not taking earnings of deceased
at Rs.3,000/- p.m. but taken Rs.9,00/- p.m. and not properly awarded for loss
of consortium, loss of estate, loss of love, affection, care and protection
etc., and hence to allow the appeal by enhancing and awarding full compensation
as prayed for, whereas it is the contention of the insurer-the main contestant
to the appeal that for this Court while sitting in appeal there is nothing to
interfere in enhancing the quantum of compensation, but for if at all to reduce
the rate of interest from 9% p.a. to 7 ½% p.a. as per the settled expression
more particularly from the fact of no proof filed from the kirana business like
any Registration Certificate, licence or professional tax and thereby sought
for dismissal of the appeal with costs.
4).Now the points that arise for consideration
in the appeal are:
1.
Whether
the compensation awarded by the Tribunal is not just and requires interference
by this Court while sitting in appeal against the award and if so with what
enhancement to arrive a just compensation and with what rate of interest?
2.
To what result?
POINT-1:
5.
The facts of the case as proved before the Tribunal and not in dispute in this
appeal are that, on 14.11.2000 due to the rash
and negligent driving of the rider of the crime vehicle (Auto bearing No. AP 24
U 1954) that belongs to the 1st respondent insured with the 2nd
respondent covered by Ex.A.4 policy, the auto turned turtle, as a result of
which the deceased by name Madishetty Manikyam s/o Eswaraiah, aged 30 years,
resident of Manyamchelka street, Nalgonda district, doing kirana business, who was
traveling in said auto sustained multiple injuries and died, which occurrence is
covered by Ex.A.1 First Information Report in Cr.No.86 of 2000 under Section
304-A IPC and Ex.A.5 charge sheet. The Tribunal from the oral and documentary
evidence on record awarded compensation in all of Rs.1,40,200/- with 9%p.a. against
respondent Nos.1 and 2 jointly, to be entitled by the claimant(wife) and
respondent Nos.3 and 4 (parents) of the deceased.
6. 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[4],
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[5]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[6]
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[7]
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.
The appeal claim herein is thus confined to the quantum from the contention of
not correctly taken the multiplicand and multiplier with future prospects in
earnings and on the quantum of consortium and funeral expenses etc., in
arriving a sum for awarding just compensation.
7. In this regard, it is well laid
down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh
v. Ranabir Singh[8] at paragraph Nos. 1 and 7 referring to the
earlier expressions in Sarla Verma v. Delhi Transport Corporation[9] and
Nagappa v. Gurudayal Singh[10]
that compensation which appears to it to be just, has to be assessed and
awarded by the Tribunal set up under Section 166 of the Act. The expression
‘just compensation’ has been explained in Sarla Verma`s case (cited
supra) holding that the compensation awarded by the Tribunal does not become
just compensation merely because the Tribunal considered it to be just. ‘Just
compensation’ is an adequate compensation which is fair and equitable, on the
facts and circumstances of the case, to make good the loss suffered as a result
of the wrong, as far as money can do so, by applying the well settled
principles relating to award of compensation.
8. From the above legal principles and
in the factual matrix of case, it is since proved that the appellant who is no
other than wife of deceased Manikyam filed the appeal along with her in-laws as
respondent Nos. 3 and 4 to the appeal and the owner and insurer of the crime
vehicle(auto bearing No.AP24 U 1954) as respondent Nos.1 and 2 to whom the
appeal against the 1st respondent was dismissed for non-payment of
batta vide order dated 04.01.2012, having been aggrieved by the award of the
Tribunal out of the claim made by her of Rs.2,00,000/- in granting
Rs.1,40,200/- with interest at 9%p.a. on the quantum.
9.
It is during the pendency of the appeal
the claim was amended to Rs.6,00,000/- which was allowed as per orders in
A.S.M.P.No.5732 of 2013 dated 29.11.2013 and the deficit court fee was also
paid before the Registry as directed thereon in USR No.2300 of 2013 paid proved
vide bank receipt enclosed to the order.
10.
The fact that the deceased was aged about 30 years is proved from Ex.A.3 PM
report apart from the evidence of P.W.1 no other than the claimant-wife of the
deceased and as per Sarla Varma v. Delhi Transport Corporation[11]
followed in Rajesh v. Ranabir Singh[12],
and another three judge bench in Reshmakumar
Vs.Madan Mohan[13]
of the said multiplier table, the multiplier that is applicable for a
person who is aged 31 to 35 is 16 and hence the multiplier 16 as rightly taken
by the tribunal, though for a persons aged between 26 to 30 the multiplier is
17 not taken 17 as the exact age is not proved by the claimants of which the
claimant-wife of the deceased was aged about 27 years from her own say in the
claim petition. Now coming to the
earnings of the deceased the claim is that from the kirana business earnings at
Rs.3,000/- p.m. basing on facts, as per kirana business for which rightly
concluded by the Tribunal admittedly not proved from like Registration
Certificate (R.C.) or even any professional tax or any accounts to
believe. Then, the earnings of the
deceased is to be estimated is no doubt, the Apex Court in Latha Wadhwa vs. State of Bihar[14]
that even there is no proof of income and earnings, it can be reasonably
estimated at Rs.3,000/- p.m. for any non-earning member and even for housewife
as domestic contribution. The deceased aged about 30 years, the earnings can be
assessed as on the date of accident i.e. 14.11.2000/- at Rs.3,000/- p.m., leave
about any increase for the future prospectus, as per Rajesh(Supra) from the claimants are three in number, if 1/3rd
is deducted for personal expenditure of
the said earnings of the deceased it comes to Rs.2,000/-x12x16=Rs.3,84,000/-,for
loss of consortium to the 1st claimant of Rs.1,00,000/-,for funeral
expenses of Rs.25,000/- and for loss of estate of Rs.5,000/- in all comes to
Rs.5,14,000/- which is just compensation to award.
11. Now coming to the rate of interest From the settled proposition
of law in TN Transport Corporation v. Raja Priya[15],
and latest expression in Rajesh (supra)three judge Bench and in DDA Vs. Joginder S. Monga[16]; that while awarding reasonable rate of
interest the steep fall in the bank interest rate since past several years has
to be kept in mind and awarded therefrom interest at 7.5% p.a. as reasonable
and the rate of interest to be awarded
under Section 171 of the M.V.Act at 7 ½% p.a. As per the expression in Ranjan Prakash V. Divisional Manager[17]
the appellate
Court also got the discretionary power under Order LXI Rule 33 C.P.C to award
reasonable rate of interest. Having regard to the same and from the
discretionary power of the appellate Court the interest awarded by the Tribunal
is high and the same is reduced to 7½%p.a. from date of claim petition till
realization. Accordingly, Point-1 for
consideration is answered.
Point No.2:
12.
In the result, the appeal is partly allowed by enhancing the compensation of
Rs.1,40,200/- to Rs.5,14,000/- with interest at 7½% p.a. from the date of claim
petition i.e. 18.12.2000 on Rs.2,00,000/- till dated 03.12.2013 when Deficit
Court Fee paid on the awarded claim and thus from dated 04.12.2013 till date of
payment of deposit with notice on Rs.5,14,000/- as per order in MACMAMP No.5732
of 2013 dated 29.11.2013. The Respondent Nos.1
and 2, who are jointly and severally liable to pay the compensation, as above
directed to deposit within one month said amount with interest with notice,
failing which the claimants can execute and recover. Out of said compensation amount, R.3 and
R.4-parents of the deceased who are senior citizens each entitled to 1/5th and remaining 3/5th entitled by
the claimant. On such deposit or execution and
recovery, the claimants are permitted to withdraw Rs.1,00,000/- each out of the
same, and rest of the amounts be invested in Fixed Deposits for three years.
Any further permission for withdrawal is subject to merits can be considered by
the Tribunal. There is no order as
to costs in the appeal.
________________________
Dr. B.SIVA
SANKARA RĀO, J
Date: 09-12-2013
B/o
Vvr
Note: L.R. copy to be marked. Yes/No
B/o
Vvr
