HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.765 OF 2012
JUDGMENT:
The injured claimant-Erikala Govindappa filed this appeal, having
been aggrieved by the Order/Award of the learned Chairman of the Motor
Accidents Claims Tribunal–cum–V Additional District Judge, (Fast Track Court),
Anantapur (for short, ’Tribunal’) in M.V.O.P.No.302 of 2000 dt.08.12.2004,
awarding compensation of Rs.16,500/-(Rupees sixteen thousand five hundred only)
as against the claim of Rs.1,00,000/-(Rupees one lakh only), against respondent
Nos.1 and 2 viz., owner and Insurer of the crime vehicle (bus) respectively for
enhancement of compensation as prayed for in the claim petition under Section
166 of the Motor Vehicle Act,1988 (for short, ‘the Act’). During the
pendency of the appeal, the claimant-1st petitioner died and
appellants 2 to 5 are brought on record as his legal representatives as per
orders in MACMA MP No.454 of 2012.
2. Heard Sri V.Rajagopal
Reddy, learned counsel for the appellants and Sri N.S.Bhasker Rao, learned standing
counsel for the 2nd respondent-National
Insurance Company Limited, and the 1st respondent-owner of the crime
vehicle, who was served with notice, is called absent with no representation
and thus taken him as heard 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 in nutshell are that
the award of the Tribunal is contrary to law, weight of evidence and
probabilities of the case, that the Tribunal has erred in fixing contributory
negligence on the part of the claimant when the evidence on record shows that
the bus is full of passengers and there is no space in the bus and the conductor
of bus allowed the claimant to sit on top of the bus, that failed to appreciate
the fact that there is insurance coverage by the date of accident and
consequently the decree ought to have
been passed against the 2nd respondent-insurance company also for
the compensation claimed by the claimant-Erikala Govindappa, that the Tribunal failed to consider properly
the decision relied upon by the respondent in Oriental Insurance Company Limited Vs. Jashmanikangari[1] and Mayamma Vs. Siddaiah[2],
that erred in not granting compensation
of Rs.33,000/- but granting only half of it stating that there is contributory
negligence, that if the conductor not allowed, he would not have boarded the
bus on its top, that the claimant sustained fracture transverse process of
right side of 4 and 5 lumbar vertebrae of low back, for which he was advised
rest and for fracture treatment, in addition thereto there were commutated
fractures for both lower end of right wrist and that there is also a wound on
the skull for which necessary treatment was given during his hospitalization
and the same are not taken into considered by the Tribunal in fixing
compensation.
4.
On the other hand, it is the contention of the insurer who is the contesting
respondent to the appeal i.e. 2nd respondent, in support of the
award of the Tribunal particularly by referring to decision in Mayamma Vs. Siddanna[3]
Karnataka High Court wherein for a person boarding on the top of the bus, the Tribunal
fixed 50% contributory negligence i.e. referred in the para-11 of the award of
the Tribunal in so arriving.
5. Now Points that arise for
consideration are:-
1)
Whether
the compensation awarded by the Tribunal is utterly low and if so what is the
just compensation and whether there is any contributory negligence on the part
of the claimant-Erikala Govindappa in boarding on the top of the bus and if so
with what percentage and whether the award of the Tribunal fixing 50%
contributory negligence on the claimant requires interference by this Court and
if so what observations?
2)
To what result?
Point-1:
6.
Before coming to decide the appeal, the factual matrix of the case before the
Tribunal that while the claimant-Yerikula Govindappa s/o Mareppa, aged 37
years, agricultural cooli, was traveling by sitting on the top of private bus
bearing No.CTS 9900 as allowed by the driver and conductor of the bus, due to
rash and negligent driving of the driver of the bus he fell down and sustained
injuries viz., fracture and other simple injuries. On findings of rash and
negligent driving against the bus driver by evidence of P.w.1-wife of the
deceased with reference to Ex.A.1 First Information Report and Ex.A.3 charge
sheet, the Tribunal for the fracture an
amount of Rs.10,000/-, for the other simple injury an amount of Rs.3,000/-, for
medical and other expenses an amount of Rs.10,000/- and for pain and sufferance
an amount of Rs.10,000/- in all awarded compensation of Rs.33,000/- with
interest at 9%p.a. and held therefrom that the claimant-injured also
contributed to the accident by his sitting on the top of the bus prohibited by
law thereby he is liable for 50% and other 50% owner-cum-driver of the crime
bus to pay, dismissing the claim against the 2nd respondent-Insurer.
It is against which the insured-claimant preferred the appeal and during the
pendency of the appeal he died and his legal representatives viz., wife,
unmarried daughter and two major sons came on record as appellant Nos. 2 to 5
to succeed his estate.
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[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.
8.
The fact that
the accident was result of rash and negligent driving of the driver of the
crime bus by allowing the claimant as one of the passengers to board on the top
of the bus is not practically in dispute.
However, in this Court apart from charge sheet and First Information
Report registered against the bus driver but for the injured as passenger not boarded
on the top of the bus, the accident could not have been happened as none of the
inmates of the bus in the respective seats met with any injury at all. This fact
itself speaks that there is a contribution
on the part of the injured in boarding on the top of the bus. Merely because he claims that he was allowed
by the driver and conductor of the bus but that is not excuse much less to say
no contribution to the accident nor even of mitigating the circumstances to
favour him more particularly from Section 123(2) of the M.V.Act it is a
violation of the statutory provision for no person shall travel on the running
board or on the top or on the bonnet of a motor vehicle. Having violated the law there is nothing to
say that not contributed to the accident but for to say on what proportion boarding
on the top of the bus contributes to the accident. In the above referred expression
of Mayamma (Supra), there is no any
scientific observations to say 50% contributory negligence on the part of the
person boarded on top of the bus, but for observations including he also
contributed by boarding on top of the bus and mainly of a bus driver allowing
to board on top of the bus not taking required precaution and driving the bus in
rash and negligent manner. All these facts not covered by any evidence to dwell
for further discussion in the factual matrix.
9.
Coming to the core, the fact that by his proceeding on the running bus by
sitting on top of the bus even allowed by the driver and conductor that
contributed to the accident is conclusion substantiated from the record as
observed supra. Now coming to percentage of contribution on the part of the claimant,
it can be taken to 25% the maximum as that is not the sole contribution much
less half of the contribution as had there been any precaution on the part of
the bus driver, the accident could not have been happened though there is
contribution on the part of the passenger by boarding on the top. Once
contribution of the injured for the accident can be arrived at 25%, for the
remaining 75% negligence of the bus driver for the accident, its owner and Insurer
are liable to indemnify the claimant.
10.Coming
to the quantum of compensation, the fracture sustained is on the right side of
4 and 5 lumber vertebra low back with absolute rest advised for recovery apart
from treatment as in-patient for about two months as deposed by P.W.2 doctor
besides other simple injury he sustained and said fracture was deposed as of comminuted
fracture of both bones of the lower end of right wrist and the other injury is
wound to skull. By taking consideration of said injuries and its gravity what
the Tribunal awarded in all including for medical expenses and treatment of Rs.33,000/-
is utterly low. For the said fracture an amount of Rs.25,000/- is the minimum
compensation including the pain and sufferance, for the other injury which is
wound to the skull an amount of minimum of Rs.5,000/-, for medical expenses and
treatment an amount of Rs.10,000/- since already awarded the said sum by the
Tribunal, for transport and attendant charges and loss of earnings during the
period of treatment an amount of Rs.10,000/- in all Rs.50,000/- is just, out of
which if 25% contributory negligence of the injured deducted, it comes to Rs.37,500/-. Thus, the claimants are entitled for
compensation of Rs.37,500/-.
11. 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[8],
Sarla Verma v. Delhi Transport Corporation[9]
and from the latest expression of the Apex Court in Rajesh v. Rajbir
Singh[10],
interest is awarded at 7½% p.a.by modifying and reducing from 9% p.a.
awarded by the Tribunal. Accordingly,
Point-1 for consideration is answered.
POINT -2:
12.
In the result, the appeal is partly allowed modifying the Award of the Tribunal
on quantum of compensation by enhancing the same from Rs.16,500/-/-(Rupees sixteen
thousand and five thousand only) to Rs.37,500/-(Rupees
thirty seven thousand five hundred only) with interest at 7½% per annum from
the date of petition (MVOP) till realization/deposit with notice, against both
the respondents, who are directed to deposit said amount with interest within
one month from today, failing which the claimants can execute and recover. On such deposit or execution and recovery,
the claimants are permitted to withdraw the same. There is no order as to costs
in the appeal.
_____________________
Dr. B. SIVA SANKARA RAO, J
Date:19.12.2013
Note: L.R.
copy to be marked. No.
B/o
VVR
