HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.520 OF 2011
JUDGMENT:
The Bajaj Allianz General 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-II Additional District Judge, East Godavari
at Amalapuram (for short, ’Tribunal’)
in M.V.O.P.No.199 of 2007 dated 07.10.2010, awarding compensation of Rs.3,05,000/-(Rupees
three lakh five thousand only), as against the claim of Rs.5,00,000/-(Rupees five
lakh only), by impugning the joint liability on respondent Nos.1 and 2 viz., owner
and Insurer-the appellant herein of crime vehicle under Section 166 of the
Motor Vehicle Act,1988 (for short, ‘the Act’) prayer to exonerate the
Insurer.
2. Heard Sri T.Mahender Rao, learned standing
counsel for the appellant, Sri T.V.S. Prabhakar Rao, learned counsel for the 1st
respondent-claimant and 2nd
respondent-(owner-cum-driver of crime auto) served with notice is called absent
with no representation and thus taken as heard for his absence to decide on
merits and perused the material on 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 in the
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 fastening liability to the appellant also, that
failed to see that the owner-cum-driver was having only non transport light
motor vehicle driving licence and he was driving the passenger transport auto
at the time of accident and as such violated
the terms of policy, that the Tribunal failed to consider evidence
produced on behalf of the appellant in this regard even failed to see that 2nd
respondent not discharged his statutory obligation to hold valid driving
licence to drive his vehicle as on the date of accident, that failed to see where
the breach of conditions of contract ex facie apparent from the record, the
Court will not fasten the liability on the insurance company and that the compensation
awarded is excessive. Hence, to set aside the award by allowing the appeal.
4.
Now the points
that arise for consideration in the appeal are:
1.
Whether the award of the Tribunal fastening joint liability on
the insurer with insured to indemnify the insured for the claimant(s) requires
interference by this Court while sitting in the appeal?
2.
Whether the quantum of compensation awarded by the Tribunal is not just and requires interference
by this Court and if so with what extent and against whom with what rate of
interest with what observations?
3.
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 07.02.2007 due to the rash and negligent driving of the
driver-cum-owner of the crime vehicle (auto bearing No.AP 5W 1292) belongs to
the 1st respondent insured
with the 2nd respondent (appellant herein), the same turned turtle,
as a result the claimant by name Dogga Nagamani w/o Venkanna, aged 28 years,
Mattadipalem village, Mummudivaram Mandal, East Godavari district, who was
traveling in the said auto along with other passengers fell on the road and
sustained grievous injuries and the claimant sustained fracture of both lower
and upper jaws as well as teeth, fracture of spinal injury, head injury,
injuries to ears, eyes, chest, ribs, patella and other multiple injuries,
immediately she was shifted to KIMS hospital, Amalapuram, then to Government
General Hospital, Kakinada, then to Apollo hospital, Kakinada where she took
treatment as in-patient for about two months, which occurrence is covered by
Ex.A.1 First Information Report in Cr.No.9 of 2007 under Section 337 and 338 IPC
and Ex.A.3 charge sheet and Ex.B.1 policy issued by the Insurer covers the
risk. The learned Tribunal basing on the oral and documentary evidence on
record, awarded compensation of Rs.3,05,000/-(Rupees three lakh five thousand only) against both the respondents in the claim petition jointly
and severally by negating the contention of Insurer to be exonerated for what
is the difference between transport and non-transport Light Motor Vehicle (for
short, ‘LMV’)auto is not in size or difference in skill, but only use. Said
findings of the Tribunal is now impugned to decide the two points formulated
above.
6. Now coming to decide whether the insurer can be exonerated from
liability to indemnify the insured to the third party claimants concerned:
i) No
doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala &
Others[1], the two judge bench of the Apex Court in this
decision by referring to National Insurance Company Limited Vs.
Swaran Singh & Others[2] apart from other expressions in National
Insurance Company Limited Vs. Kusum Rai & Others[3] and Oriental Insurance Company Limited Vs.
Nanjappan & Others[4]
and Ishwar
Chandra & Others Vs. Oriental Insurance Company Limited & Others[5] held that the
insurer is not liable to indemnify the owner, when the driver has no license to
drive the crime vehicle.
ii) In
Ishwar Chandra (supra) it was held
by the two judge bench that
the driver’s licence when expired 30 days prior to the date of accident and no
renewal application filed even by date of accident to say a renewal dates back
to date of application, it is suffice to hold the driver has no valid licence
as on date of accident.
iii) In Kusumrai (supra) it was held by the two judge bench
that, the vehicle was used as taxi (commercial) and the driver is required to
hold appropriate licence but not having valid commercial vehicle licence and
from that breach, the insurer is held entitled to rise the defence.
iv) In Vidhyadhar Mahariwala (supra)—in para -8 of the judgment, it was
observed that in Swaran Singh (supra)whereupon
it was held as follows:-
“45. Thus, a person whose license is
ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed
thereunder, despite the fact that during the interregnum period, namely, when
the accident took place and the date of expiry of the license, he did not have
a valid license, he could during the prescribed period apply for renewal
thereof and could obtain the same automatically without undergoing any further
test or without having been declared unqualified therefore. Proviso appended to
Section 14 in unequivocal terms states that the license remains valid for a
period of thirty days from the day of its expiry.
46. Section 15 of the Act does not
empower the authorities to reject an application for renewal only on the ground
that there is a break in validity or tenure of the driving license has lapsed,
as in the meantime the provisions for disqualification of the driver contained
in Sections 19,20,21,22,23 and 24 will not be attracted, would indisputably
confer a right upon the person to get his driving license renewed. In that view of the matter, he cannot be said
to be delicensed and the same shall remain valid for a period of thirty days
after its expiry.”
v) In Ram Babu Thiwari Vs. United Insurance Company Limited[6] by referring to Ishwar Chandra, Kusum Rai, Swaran Singh (supra) among other
expressions, held that when a driving license of the driver of the offending
vehicle was expired about three years prior to accident and it was got renewed
only subsequent to the accident it was held as violation of the terms of the
policy by referring to Kusum Rai (supra)
followed in Ishwar Chandra (Supra)
observed that in view of the Section 15(1) of the Act even the license
after period of expiry remains valid for thirty days to
renew meantime any renewal subsequently would be renewed from the date of
renewal only to say as on the date of accident even be subsequent renewal long
after thirty days expiry of the statutory period not a valid renewal to say no
valid license to exonerate the Insurer and thus exonerated the insurer.
vi) The above decisions other than Swaran singh (Supra) mostly speak of no
valid license as on the date of accident though earlier it was from its lapse and timely non-renewal
or holding one license not valid to
drive other type of vehicle.
vii) On perusal of Swaran Singh (Supra) referring earlier expressions speaks several
categories of cases as to such imperfect license or lapsed license with no
license in subsistence or a fake license or even driver with no license at
all. An extreme case of this type of
driver having no license at all driving the vehicle knowingly without even
application for lilcence and without experience to drive even admittedly and in
his saying it is to the willful and conscious knowledge of the owner as a
fundamental breach.
Coming to the cases no license is concerned:-
viii)
In Sardari vs. Sushilkumar[7]- the
facts show one Jageeru , Tonga
ix)
In UIIC Vs. Gianchand[8], it
was observed that when the insured handed over the vehicle to an un-licenced
driver, insurer would be exonerated from liability to meet III party claims.
x)
In Swaran Singh (three judges
bench-supra) it was laid down that the owner of the vehicle has a
responsibility to see that no vehicle is driven except by a person who doesn’t
satisfy Sections 3 & 4 of the MVAct.
In a case where the driver admittedly did not hold licence and the same
was allowed consciously to be driven by the owner of the vehicle by such person
insurer in its defence succeed to avoid liability. The matter, however, may be different
where a disputed question of fact arises as to driver had a licence or owner
committed a breach of the policy terms by consciously allowing a person to
drive without having a valid driving licence.
xi)
In NIAC Vs. Prabhulal[9] it
was a claim arisen out of Consumer District Forum holding no liability of the
insurer against the National Consumer Commission’s verdict fixing
responsibility.
xii)
In Prem Kumari Vs. Prahlad Dev[10] it
was also observed that owner of the vehicle cannot contend no liability to
verify the fact as to whether the driver possessed a valid licence or not.
xiii)
By referring all these expressions at Para 9 of the Judgment of the Apex Court
in Saradari (supra), the Apex Court
did not choose to interfere with the finding of the tribunal confirmed by the
High Court, in not chosen to make liable the insurer.
xiv)
In Surina Durvasulu Vs. Bhavanarayana
Murthy[11]
Para 14 it was held that when the driver had no valid driving licence to drive
tractor and the charge sheet also mentions a penal provision for violation of
the same in driving with no licence and nothing deposed by owner despite
contention of Insurance Company, that he has taken all necessary precautions to
entrust the vehicle to a person who had valid driving licence, insurance
company not made liable holds good.
7. The other type of cases are driver possessing a
fake license and not any real license to drive and driving the vehicle
entrusted by owner it all depends upon the facts as to the owner consciously by
knowing it is a fake license allowed or believing as genuine allowed and what
extent the liability to enquire lies on the owner concerned, the cases on that
principle are as follows: -
i) In National
Insurance Company Limited Vs. Laxmi Narain Dhut[12],
it was held by the Apex Court referring to Swaran
Singh (supra) and New India
Insurance Company Limited Vs. Kamala[13]
at page 41 that the defense available to the Insurer to indemnify the insured
or not (any) of a third party claim
under Section 149 of the Act includes the license claim as genuine is
fake. In that case on facts found the
license possessed was fake and it was even renewed by the Regional Transport
Officer concerned ignorant if the fact or otherwise held that mere renewal of a
fake license cannot cure the inherent defect as renewal cannot transform a fake license as genuine as
held in Kamala(supra) was the
conclusion arrived.
ii) The other decision on that is Oriental Insurance Company Limited Vs.
Prithvi Raj[14]
which is also a fake license and proved so and held that a renewal cannot take
away the effect of fake license to make the Insurer liable and the Insurer
cannot thereby be liable to that conclusion, they followed Kamala (Supra) besides United India Insurance Co. Ltd. V. Lehru[15]
(supra).
iii) The other decisions regarding fake license is
National Insurance Company Limited Vs.
Dupati Singaiah[16]
referring to Lehru, Swaran Singh, Gain
chand, Prithvi Raj, Prahlad dev(supra),
not to mention Oriental Insurance
Company Limited Vs. Meena Variyar[17]
earlier expression in Scandia Insurance
Company Limited Vs. Kokila Ben Chandravadan[18]
and United India Insurance Company
Limited Vs.Rakesh Kumar Arora[19]
held that in Swaran Singh (surpa) at
para-102 it was held that an insurer is entitled to raise a defense in a claim
filed under Section 163-A and 166 of the Act, in terms of Section 149
(2)(a)(ii) of the Act, as to breach of the policy conditions including
disqualification of the driver or invalid license of the driver etc., and to avoid
such a liability the defense has to be proved by the insurer with a plea raised
to establish such breach. However, it was not laid down in Swaran Singh (supra) any criteria as to how said burden would be
discharged. Thus same would depend upon facts and circumstances of each case.
The question as to whether owner has taken a reasonable care to find out as to
whether driving license produced by driver is fake or otherwise does not
fulfill the requirements of law or not will have to be determined in each case. If available at the time of the accident was
driven by a person having learner’s license, Insurance Company would be liable
to satisfy the claim. Thus, unless the Insurer proves willful breach of
specific conditions of policy they cannot escape from liability. In Swaran Singh (supra), at para-85 and 94
as well as 102(3) observed that it may be true that a fake or forged license is
as good as no license, however, the question is whether Insurer must prove that
owner was guilty of willful breach of the conditions of the policy in the
contract of Insurance as considered with some details in Lehru (Supra). To agree said conclusion of Swaran singh and Lehru (supra), it was observed in Dhupati Singaiah (supra) at para-820
that in most of cases drivers and owners remaining ex-parte by taking it for granting that in the event of negligence
being proved, the Insurance Company would discharge its statutory
liability. It is the only Insurer that
has to lead evidence both on the question of negligence and on the question of
liability, therefore, main defense available to the Insurer is under Section
149(2) of the Act when if Insurer leads evidence to show license found in the
vehicle involved in the accident is fake or the driver had no license or valid
license, it can be taken sufficient
proof of breach of conditions as per Section 149 (2)(a) of Act therefrom
Section 149(2)(a)(ii) of the Act enables the Insurer to escape from liability
if shown that there has been a breach of specified condition of policy and on facts
therefrom held Insurer to be exonerated from liability.
iv) In Ashok Gangadhar Maratha V. Oriental Insurance Co. Ltd[20] and Roshanben (supra) also the
above principles of law are reiterated in exonerating the insurer.
v)
In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the
law in this regard referring to Lehru (supra) and Kamala (supra) that followed the earlier three-Judges bench
decision Sohan Lal Passi V. P.Sesha
Reddy[21]
wherein the reference was answered upholding the view taken Skandia Insurance Co. Ltd. V. Kokila Ben
Chandravadan[22]
and the principle laid down therefrom in Swaran Singh (supra) was approved and reiterated even in the
subsequent decisions including the above but for distinguishing for the facts
on hand in each of the cases as held by the Apex Court in
NIC Vs. Geetabhat[23] that the principle is the same but for any deviation from factual matrix of each case if at all to say non-liability.
NIC Vs. Geetabhat[23] that the principle is the same but for any deviation from factual matrix of each case if at all to say non-liability.
vi) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan
(supra), Geetabhat (supra) and several
other expressions in the cases relating to no license at all or imperfect and no
valid license held that even it is one of breach of terms of policy and
violation of rules, since the policy otherwise covers risk, though denied
liability from no valid license, the insurer is to pay and recover. The insurance company cannot escape liability
unless the violation proved willful with conscious knowledge and fundamental,
every violation of policy conditions cannot be considered to escape the insurer
from liability to indemnify the owner (insured) to the 3rd party
claimants.
vii) Even in Geetabhat (supra) it was held reiterating the principle laid down
in the above decisions after referring the above among other several decisions
that when insurer seeks to avoid liability on ground of fake or no licence of
driver of the vehicle of the insurer, but for saying no licence issued by RTO
in name of the driver, even taken alleged licence as fake, insurer has to pay
to the third party claimants and recover from insured.
viii) In fact, in Swaran Singh's
case (supra), the Apex Court
ix) Furthermore, in Oriental
Insurance Company Limited Vs. Brij Mohan & Others[24] while holding that insurance company has no
liability, however, invoked Article 142 and 136 of the Constitution in
directing the insurer to pay first and recover from the vehicle owner, like in
several other cases within the power of the Apex Court.
x) The other decision of Apex
Court
xi) In National Insurance Company
Limited VS. Baljit Kaur[25] it was
held (even the case of unauthorized passenger of goods vehicle) as a general
observation that interest of justice would be sub-served in giving such a
direction to pay and recover having regard to the scope and purport of Sections
149 read with 168 of the MV Act,1988.
xii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni & Another[26], the Apex Court doubted
the correctness of the directions issued in various judgments to the insurer to
pay even though not liable and therefrom formulated issues for consideration by
a larger bench
xiii) In fact, by referring to the above expression in Swaran Singh's case (supra), this Court
(High Court of Andhra Pradesh) in an appeal by insurance company, observed in New India Assurance Company Limited,
Tirupati, Vs. G.Sampoorna & Others[27] from paras-6
onwards that insurer raised the contention of driver was not having valid
license at the time of accident and examined employee of Regional Transport
Office, besides employee of the insurance company and the owner of the vehicle
did not speak anything. No evidence produced by claimants to show that there
was a license or it was even if lapsed renewed later. However, the Tribunal
held that even in the absence of driving license, insurance company has to pay
and recover rather than escaping from liability for the claimants are not
parties to the contract of insurance of the vehicle between insurer and
insured.
xiv) Therefrom further held that the conclusion is not acceptable from
reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala case (supra) in
saying the statute itself excludes insurer's liability in such a case, thereby
the fact whether the claimant being a third party is not a privy to the policy
between insurer and insured has no relevance. It is however, by referring to
the Swaran Singh (supra) apart from
the earlier expressions referred therein, observed that the proposition laid
down in Swaran Singh (supra) is
referred to a larger bench and it is still pending.
xv) In Swaran Singh (supra)
it was held that the Tribunals and Courts in exercise of their jurisdiction to
issue any direction for pay and recovery considering, depending upon facts and
circumstances of each case. In the event
of such a direction has been issued despite arriving at a finding of fact to
the effect that the insurer has been able to establish that the insured has
committed a breach of contract of insurance under Section 149(2)(a)(ii) of the
Act, the insurance company shall be entitled to realize the award amount from
owner or driver, as the case may be, in execution of the same award in view of
Sections 165 and 168 of the Act.
xvi) It is from this, the Court in Sampoorna
(supra) from para-13 onwards observed that "In my opinion from the afore-extracted
passage of the judgment, it is evident that direction to the insurance company
to pay the compensation does not automatically follow in every case where the
insurance company is found not liable. The same depends upon the fats and
circumstances of each case. In all the aforementioned cases, which were
referred to by the Supreme Court, directions were given on the facts of each
case and considered the fact that the provisions of the Act dealing with
insurance and payment of compensation are beneficial in nature".
xvii) In paragraph 81 of Swaran Singh (supra), it was observed that
right to avoid liability in terms of Section 149(2) is restricted as has been
discussed herein before. It is one thing to say that the insurance companies
are entitled to raise a defence; but it is another thing to say that despite
the fact that its defence has been accepted, having regard to facts and
circumstances of the case, the Tribunal has power to direct them to satisfy the
decree at the first instance and then direct recovery of the same from the
owner. These two matters stand apart and require contextual reading.
xviii) The Supreme Court in subsequent judgments have not treated the
previous judgments including Swaran
Singh (supra) as laying down unexceptionable principle that in every claim
brought before the Tribunal, the insurance company should be directed to pay
compensation amount first even though its defence was found accepted, as evident
from some of the later expressions like in National
Insurance Company Limited Vs. Bommithi Subbhayamma & Others[28], (a case of passenger in a goods vehicle).
xix) By referring to the above, from paragraph 20, the High Court in Sampoorna (supra) observed that on the
strength of the discussion undertaken above, it is not possible for this Court
to treat the judgment in Swaran Singh
(supra) as containing mandatory directions to Tribunals and Courts to
invariably direct the insurer to pay at first instance and recover from owner
of the vehicle even though they are held not liable. Pending resolution of the issues by the
larger bench of the Supreme Court, it would be reasonable to understand the
judgment in Swaran Singh (supra) as
leaving discretion to the Tribunals and the Courts to give appropriate
directions depending upon facts and circumstances of each case.
xx) By applying the ratio in Swaran
Singh (supra) at para-21 of the judgment, the High Court held that some
amount that was already deposited by the insurance company, which holds good to
withdraw, and for the rest, insurance company is not liable.
8.
In fact besides Lehru (supra), Swaran Singh’s (supra) and Nanjappan
(supra) in holding that from lack of license or fake license or imperfect or defective
license, the insurer can be ordered firstly to satisfy the claimants by
indemnifying the owner and then recover from owner and driver;
i)
Even in the subsequent expressions of the Apex Court
ii)
Even in the recent expression of the High Court in Jaya Prakash Agarwal V. Mohd. Kalimulla[30]
having considered the law at length taken similar view, while saying at para-39
that each case has to be decided on its own facts and circumstances.
iii)
Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company[31] a
two judge bench of the Apex Court held that even though the insurer has taken
the defence that there is a breach of conditions of the policy excluding from
liability, from the driver is not duly licenced in driving the crime vehicle
when met with accident, third party has a statutory right under Section 149
read with 168 of the Act to recover compensation from insurer and it was for
the insurer to proceed against the insured for recovery of amount paid to third
party in case there was any fundamental breach of condition of Insurance
policy.
9.
The 1st respondent is owner-cum-driver of the auto which is
transport LMV and R.Ws. 1 and 2 examined
on behalf of the Insurer with reference to Ex.B.1 to B.6 also deposed that it
is a transport LMV and as per Ex.B.5 and B.6 and as per Ex.B.2, the
owner-cum-driver got only LMV non transport licence but not transport and even
Ex.B.3 notice issued to produce the licence particulars covered by Ex.B.4
acknowledgment, the owner-cum-driver of the auto did not comply it establishes
that but for no valid licence he could have produced by non-giving reply to
draw inference adversely against the owner-cum-driver. However, said violation
of the policy terms or permit even it is to the conscious knowledge to
attribute being owner-cum-driver nothing to show willful and fundamental to
exonerate the Insurer once the policy cover the risk admittedly within the
scope of Section 149 read with 168 of the Act to direct the owner to pay and
then to recover. Thus, fixing of joint liability against the Insurer and
insured is thereby unsustainable but for to fasten liability to pay to the
claimant and recover. Accordingly, Point
No.1 is answered.
Point
No.2:
10. 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[32],
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[33]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[34]
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[35]
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.
11.
From the above legal position and coming to the factual matrix, on quantum of
compensation, the age of the injured lady is 28 years a cooli by avocation and
the multiplier as per Sarla Verma Vs. Delhi Transport Corporation[36]
for a person aged between 26 to 30 is only 17 but not 18. Hence, the multiplier 18 to be reduced to
17. Now coming to earnings of the claimant
as cooli what the Tribunal taken notional income of Rs.15,000/- is unjust. The
Apex Court in Latha Wadhwa Vs. State of Bihar[37]
held that even a domestic contribution of a women and non-earning member income can be assessed at
Rs.3,000/- p.m. and the accident in this case was dt. 07.02.2007 about six
years after said expression of the Apex Court. Even not taken any prospective earnings based
on Rajesh Vs.Rajbir Singh[38]
with 50% increase by not even believing as cooli and only a domestic contribution
and from question of deduction of 1/3rd for personal expenses in
case of injured does not arise, it comes to Rs.3,000/-p.m.x12=Rs.36,000/-p.a.x17
(multiplier)=Rs.6,12,000/- and 70% of the permanent disability already arrived
by the Tribunal from the proof including by evidence of P.Ws.2 to 5 doctors
coupled with Exs.X.1 and X.2 , it comes to Rs.4,28,400/-, besides for the medical
expenses, treatment and extra nourishment, the Tribunal already arrived of Rs.75,000/-
which requires no interference but for Rs.20,000/- additionally for pain and
sufferance, in all it comes to Rs.5,23,400/- which though appears to be just
and what the Tribunal awarded of Rs.3,05,000/- is low; however, this Court
while sitting in appeal filed by the insurer against the award, has no right to
enhance for no cross-objections or independent appeal by the claimant as laid
down by the Apex Court in Ranjana Prakash Vs.Divisional Manager[39].
Thus the amount of Rs.3,05,000/- awarded by the Tribunal is sustainable. Coming
to the rate of interest, the interest awarded by the Tribunal is at 7½%p.a. is just and reasonable as the Apex
Court in TN Transport Corporation v. Raja Priya[40],
Sarla Verma(supra) and from the latest expression in Rajesh (supra)
three judge bench interest is
awarded 7½%p.a. only. Accordingly, point-2 is answered.
Point-3:
9.
In the result, appeal is partly allowed upholding the rate of interest at 7.5%
p.a. on the compensation of Rs.3,05,000/-(Rupees three lakh five thousand only)
as awarded by the Tribunal from the date of claim petition till the date of
realization with joint and several liability of the owner and insurer
(respondents 1 and 2) to pay by the Insurer and then to recover. The respondents shall deposit said amount
within one month, failing which the claimant can execute and recover. It is made clear from the settled expressions
of the Apex Court in Lehru (supra)
& Nanjappan (supra) that the
insurer is entitled, while depositing the amount payable, if not deposited or
paid any amount so far to deposit in bank, to approach the Tribunal to direct
the RTA concerned not to register any transfer of the crime vehicle and to seek
for attachment of the crime vehicle or other property of the insured as an
assurance for execution and recovery in the same proceedings or under revenue
recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the
deposited amount to claimant (but for to invest in a bank) till such attachment
order is made. However, after the same,
the Tribunal shall not withhold the amount of the claimant, if there is any
necessity to permit for any withdrawal but for to invest the balance in fixed
deposit in a nationalized bank. Rest of the terms of the award of the Tribunal
holds good. There is no order as to
costs.
16.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
16-12-2013
VVR
Note: L.R. copy to be marked. Yes/No
