*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.769 of
2011
%
Dated 03.01.2014
Between:
# The National Insurance Company
Limited
Rep. by its Managers
...Appellant
and
$ Billingani Laxmi and others
….Respondents
! Counsel
for the Appellant : Sri Nisaruddin Ahmed Jeddy
^ Counsel
for respondent Nos.1&2 : Sri
C.Pratap Reddy
Counsel for respondent No.3- :
None appeared
< GIST:
>HEAD NOTE:
? Cases
referred:
1) 2007(1)ALD 380
2) 1965(1) All.E.R-563
3) 1963(2) All.E.R.432
4) 1969(1) All.E.R.555
5) 1995 ACJ 366(SC)
6) 2013(4) ALT 35(SC)
7) 2009 ACJ 1298
8) 2011(8) Scale 240
9) (2005) 6 SCC 236
10) (2004) 2 SCC 297
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.769 OF 2011
JUDGMENT:
The National 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-Judge,
Family Court-cum-VII Additional District and Sessions Judge, Medak (for
short,’Tribunal’) in M.V.O.P.No.255 of 2009 dated 02.12.2010, awarding
compensation of Rs.4,20,500/-(Rupees four lakh twenty thousand five hundred
only) as against the claim of the respondent Nos.1 and 2 (claimants in the
claim petition i.e. wife and mother of deceased) of Rs.5,00,000/-(Rupees five lakh
only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for
short, ‘the Act’).
2.
Heard Sri Nisaruddin Ahmed Jeddy, learned standing counsel for the appellant, Sri
C.Pratap Reddy, learned counsel for the respondent Nos.1 and 2-claimants. The 3rd
respondent-owner of crime vehicle who was served with notice is called absent
with no representation and thus taken as heard the 3rd 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, that the
Tribunal went wrong in assuming that the deceased Mallesham was working as a
cleaner of said Eicher van with no material by simply relying upon the so
called testimony of his wife P.W.1 even for the Tribunal to take the earnings
of the deceased there is no material on
record filed though claimed orally by P.W.1 as if Rs.6,000/- and that
the The A.P.High Court in Bhagvan Das
Vs. Mohd.Arif[1],
taken consideration of income of the non-earning member at Rs.15,000/-p.a. as
per structured formulae Schedule-II of M.V.Act that the Tribunal ought to have
taken the same in assuming earnings of the deceased to ascertain the dependency
to the claimants apart from the fact of had it been true and so taken by the
Tribunal and deceased was a cleaner of the crime mini van of the claim
petition-1st respondent, it could have adopted the calculation for
compensation under the Workmens Compensation Act,1923(for short, ‘the WC Act,)
and not under MV Act, hence to set aside the award of the Tribunal and reduce
the quantum of compensation, whereas it is the contention of the counsel for
the claimants-R.1 and R.2 to the appeal that since R.3 to the appeal-owner of
the vehicle remained ex parte including in the Tribunal, for this Court
while sitting in appeal there is nothing to interfere, hence to dismiss the
appeal by confirming the quantum as well as rate of interest.
4.
Now the points
that arise for consideration in the appeal are:
1.
Whether
the award of the Tribunal impugning compensation of Rs.4,20,500/- in favour of
the claimants is excessive and untenable by following MV Act procedure for the
claim under Section 166 of the Act and requires interference by this Court
either to adopt MV Act procedure or WC Act and if so with what observations,
what compensation and with what rate of interest?
2.
To what result?
POINT-1:
5.
The facts of the case are that, on 13.01.2009 at about deceased- Mallesham,
working as cleaner to the crime vehicle (Eicher van bearing No.AP V 5038)
belongs to the 1st respondent
in the claim petition insured with the 2nd respondent-appellant, met
with an accident at Chinna Kodapgal of Pitlam Mandal due to rash and negligent
driving of the driver of said vehicle, as a result, deceased-Mallesham
sustained fatal injuries and 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.4,20,500/-(Rupees
four lakh twenty thousand and five hundred only) out of Rs.5,00,000/- against the respondents in the claim petition 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[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.
7.
From the above legal position and coming to the factual matrix, the fact that
the accident was rash and negligent driving of the driver of the crime vehicle
on 13.01.2009 is not in dispute. The
Ex.A.1 FIR within no time lapsed after the accident. In setting the law into
motion it is stated that the driver of the crime vehicle was one Md.Moulana and
the cleaner was one Mallesham who is no other than the deceased herein, the
husband of the 1st claimant and it further reads that it is on the
information over phone passed on by the driver that while he was overtaking a
lorry he lost control of the mini van and dashed to a road side tree as a
result the cleaner-deceased was succumbed to death and he being the driver fled
away with fear hence to take recourse. Said informant of Ex.A.1 FIR is one of
the panch witnesses for Ex.A.2 inquest report which contains the same version
and Ex.A.5 filed by police after investigation also discloses the same of the
accident by the result of rash and negligent driving of the driver of the crime
vehicle to which deceased was cleaner. It is what the P.W.1 reiterated in her
evidence in support of the documentary evidence apart from P.W.2 another eye
witness which establishes that the accident was the result of rash and
negligent driving of the driver of the crime mini van in which the deceased was
as cleaner and thereby for this Court while sitting in appeal there is nothing
to interfere as the MVI report also shows that the vehicle was badly damaged as
the same dashed against the road side tree and the Ex.A.3 postmortem report
also shows deceased was succumbed to death with multiple injuries including
fractures of chest and ribs.
8.
Now coming to the contention of the appellant-Insurer when he is the cleaner of
the crime vehicle, the remedy is to proceed under the WC Act concerned as
rightly pointed out by the respondents to the appeal-the claimants, from
perusal of the counter filed by the Insurer before the Tribunal there is no
such plea taken but for taken the plea of the MV Act provisions that are
applicable and as such the plea cannot be permitted to raise for the first time
to the appeal apart from the settled law that option is available either to
proceed under MV Act or under WC Act.
9.
Now coming to the quantum of compensation of Rs.4,20,500/- awarded by the
Tribunal is on high side or not concerned, the deceased was as per the PM
report aged about 30 years and coming to his earnings as deposed by P.w.1-wife
of deceased who claimed at Rs.6,000/- p.m. In fact, for a cleaner not a daily
wage labourer it is something more and even otherwise as per the expression in Rajesh
v. Rajbir Singh[6] three
judge bench not only for the public
servants and other salaried employees but also daily wage earners, there shall
be proportionate increase from the earnings as on the date of accident so far
as persons between 30 to 40 with 50% and if that is taken it comes to
Rs.4,500/- p.m. the earnings of the deceased and the claimants are two in
number who are wife and mother of the deceased and even from the observations
of the Apex Court in Sarla Verma v. Delhi Transport Corporation[7]
at paras 29 to 32 held in a case of married persons, the personal expenses
deducted can be 1/3rd, generally if the dependants are more than 4,
to deduct 1/4th, more than 6 members to deduct 1/6 and in case of a
bachelor invariably of dependants or parents or where there are more than two
dependants it is only half but 1/3rd or the like depending upon the
number of dependants to deduct personal expenses. Here when the dependents are two it is not
the 1/3rd but half towards personal expenses of the deceased to
deduct as just in the factual matrix. If
this is taken into consideration, the monthly earnings of the deceased comes to
Rs.2250/-x12x17(multiplier for a person aged upto 30 years) which comes to
Rs.4,59,000/- and the 1st claimant is entitled to Rs.1,00,000/-
towards loss of consortium, Rs.25,000/- towards funeral expenses Rs.5,000/-
towards loss of estate as per Rajesh(supra) and in all it comes to
Rs.5,89,000/-. However, for no cross appeal by the claimants, this
Court has no right to enhance the compensation as laid down by the Apex Court
in Ranjan Prakash V. Divisional Manager[8]
in categorical terms that in the appeal filed by insurer or driver as the case
may be, the claimant but for to support the quantum on one ground or other, has
no right to ask for enhancement of compensation so also the appellate authority
even under Order XLI Rule 33 C.P.C to enhance in absence of independent appeal
or cross objections.
10. Coming to the rate of interest, from the settled
proposition of law in TN Transport Corporation v. Raja Priya[9],
and Rajesh (supra) 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. The
appellate Court also got the discretionary power under Order LXI Rule 33 C.P.C
to award reasonable rate of interest from the drastic fall in bank rate of interest in bank rate as laid down by the Apex Court in DDA Vs. Joginder S. Monga[10].
Having regard
to the same and from the discretionary power of the appellate Court as the
interest at 7½% p.a. awarded by the Tribunal is quite reasonable and it
requires no interference. Accordingly, Point-1 for consideration is answered.
Point No.2:
11. In the result, appeal is dismissed with no costs.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
03-01-2014
VVR
Note: L.R. copy to be marked. Yes/No
