HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
M.A.C.M.A.NO.507 OF 2007
JUDGMENT:
The Claimants, who are husband, major
son and two minor daughters of deceased Laxmi, filed this appeal, having been
aggrieved by the Order/Award of the learned Chairman of the Motor Accidents
Claims Tribunal–cum–III Additional Chief Judge, City Civil Court, Hyderabad, (for
short, ’Tribunal’) in O.P.No.1442 of 2001 dated 29.09.2005, awarding
compensation of Rs.2,00,000/-(Rupees two lakh only) as against the claim of Rs.5,00,000/-(Rupees
five lakh only), against respondent Nos.1 and 2 viz., the owner and insurer of
the crime vehicle (lorry) for enhancement of compensation as prayed for in the
claim petition under Section 166 of the Motor Vehicle Act,1988 (for short,
‘the Act’).
2. Heard K.Siva Reddy, the learned counsel
for the appellants and Sri R.Sridhar, the learned standing counsel for the 2nd
respondent-The New India Assurance Company Limited and the 1st
respondent-owner of the crime lorry bearing No.AP12 T 6138 remained ex parte
before the Tribunal and did not choose to put forth his appearance herein,
hence taken as heard the 1st respondent for the 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 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, the Tribunal erred in not
taking correct multiplier and not properly assessed the earnings of the
deceased and the interest awarded at 6%p.a. is also low, hence to allow the
appeal by enhancing and awarding full compensation as prayed for. Whereas, it is the contention of the 2nd
respondent-Insurer that for this while sitting in appeal, there is nothing to
interfere with the reasoned award of the Tribunal either on the quantum or rate
of interest. Hence, to dismiss the appeal.
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 are that on 05.07.2001 while the deceased B.Laxmi along
with some others while returning from Yadagirigutta to Hyderabad in an auto bearing No. AP 12 T 7554, due to
rash and negligent driving of the driver of the crime lorry bearing No.AP 12 T
6138 belongs to the 1st respondent insured with the 2nd
respondent covered by the Ex.B.1 policy while proceeding in opposite direction,
dashed to the auto, as a result of which the driver of the auto and the
deceased died on spot, which occurrence is covered by Ex.A.1 First Information
Report and A.11 charge sheet. The
Tribunal from the oral and documentary evidence on record, awarded compensation
of Rs.2,00,000/- with interest at 6%p.a. against both the respondents jointly
and severally.
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[1],
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[2]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[3]
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[4]
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. From the above legal principles and
in the factual matrix of case, the fact that the accident was the result of the
rash and negligent driving of the driver of the crime lorry bearing No.AP 12 T 6138
belongs to the 1st respondent insured with the 2nd
respondent covered by the Ex.B.1 policy while proceeding in opposite direction to
the auto bearing No. AP 12 T 7554 in
which the deceased was travelling as one of the passengers, not in dispute. Ex.A.1 FIR and Ex.A.11 chargesheet with
reference to the evidence of P.Ws. 1 to 3 besides not in dispute no way
requires interference by this Court but for to decide on the quantum of
compensation and rate of interest as unjust.
First considering the age of the deceased, the age of her husband shown
as 40 years alleged as if unemployee (for the case purpose), the eldest son
about 18 years and the daughters at 16 and 15 respectively. The postmortem report not filed much less any
proof of age for reasons better known.
In fact, the death certificate of the deceased obtained showing falsely as
if aged only 30 years after the accident dated 05.07.2001, on 31.08.2001 for
the case purpose. Because, when the eldest son is more than 18 years shown as
major admittedly the age of the mother must be at least 17 or 18 years
inclusive to that to say about approximately of 36 years even taken with
reference to the age of the husband P.W.1 of the deceased above 40 years as
claimed as on the date of claim petition immediately after the accident. Thus,
the multiplier as per Sarla Verma v. Delhi Transport Corporation[5]
for a person aged between 36 to 40 applicable is 15 and accordingly taken in
this case as 15. Coming to the earnings
of the deceased, it is claimed that she was doing tailoring work and earning
Rs.4,500/- per month and relied upon Ex.A.4 to A.9 so called receipts regarding
payment of the amount as tailor. Ex.A.10
is receipt of Bentex Tailor shop. That no way proves the allegation of she was
a tailor by avocation much less working as tailor. In the absence of showing
any employment as per the rules under the Minimum wage Act and Shops and
Establishments Act or the like, even taken the earnings at minimum of
Rs.3,000/- per month as on the date of accident i.e. 05.07.2001 basing on the
Apex Court’s expression in Latha Wadhwa
vs. State of Bihar[6]
in which it is held 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. Out of the claimants even the eldest son
major, the others are the unmarried minor daughters and the husband, 1/3rd
to be deducted towards personal
expenses it comes to Rs.2,000/- p.m. the contribution to the family i.e. Rs.2,000/-p.m.x12x15=Rs.3,60,000/-
and Rs.25,000/- towards funeral expenses, Rs.75,000/- towards loss of
consortium as per Rajesh v. Rajbir Singh[7]
(three judge Bench expression),
however, herein since in the wedlock they got three children and one was
admittedly major, besides and Rs.10,000/- maximum towards loss of estate which
comes to Rs.4,70,000/- is the just compensation to award.
8.
Having regard to the interest the Tribunal awarded at 6% per annum is low but
from the settled proposition of law TN Transport Corporation v. Raja Priya[8],
Sarla Verma’s case (cited supra)
and from the latest expression of the Apex Court in Rajesh’s case
(cited supra), interest is
awarded at 7½% per annum by modifying and enhancing from 6% per annum awarded
by the Tribunal. Accordingly, Point-1
for consideration is answered.
POINT -2:
9.
In the result, the appeal is partly allowed by modifying the Award of the
Tribunal on quantum of compensation by enhancing the same from Rs.2,00,000/- to
Rs.4,70,000/-(Rupees four lakh seventy thousand only) with interest at 7½% per
annum from date of the claim petition till realization/deposit with notice.
Respondent Nos.1 and 2, who are jointly and severally liable to pay the
compensation, are directed to deposit within one month said amount with
interest from the date of petition (after deduction of any amount paid so far
pursuant to the award of the Tribunal), failing which the claimants can execute
and recover. In other respects, award of the Tribunal holds good. It is left open to move the Tribunal for any
permission for withdrawal to consider on any just grounds. There is no order as
to costs in the appeal.
________________________
Dr. B.SIVA
SANKARA RĀO, J
Date: 10-02-2014
VVR
Note: L.R. copy to be marked. Yes/No
