HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
M.A.C.M.A.NO.1742 OF 2007
JUDGMENT:
The claimants, who are parents of the
deceased girl baby Naviya aged about 3 years at the time of accident i.e. on
03.08.2002, 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, Khammam(for short,‘Tribunal’) in O.P.No.1001 of 2002
dated 21.03.2005 for the compensation awarded of Rs. 65,000/- against the claim
of Rs.1,00,000/-(Rupees one 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 Smt. Bobba Vijayalakshmi, the learned counsel for the appellant and Sri T.Ramulu,
the learned standing counsel the 2nd
respondent-New India Assurance Company Limited and the 1st
respondent-owner of the vehicle who contested before the tribunal did not
choose to put forth appearance herein, thus 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 during course of arguments in
nutshell are that the award of the Tribunal is contrary to law, weight of
evidence and probabilities of the case, that the Tribunal should have
considered that the claimants lost the love and affection for ever as they lost
their daughter and also mental agony they undergone and awarded of compensation
as prayed. Hence to allow the appeal by granting the claim as prayed for before
the tribunal.
4. Counsel for the 2nd respondent-Insurer
contended that for this Court while sitting in appeal for this Court, there is
nothing to interfere with the finding of the tribunal in awarding compensation
which is just. Hence, to dismiss the appeal.
5).Now
the points that arise for consideration in the appeal are:
1. Whether the compensation awarded by
the Tribunal is not just and utterly low 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:
6.
The facts of the case are that on 03.08.2002 the deceased girl by name Korati
Naviya was proceeding from her house in order to go to Venkata Ramana Cloth
Stores situated near their house in which shop the father of the girl-1st
claimant is working as a clerk, the crime lorry bearing No. MH-13-G-6899
belongs to the 1st respondent insured with the 2nd
respondent covered by Ex.B.1 policy, being driven by its driver at high speed
in rash and negligent manner, dashed to the deceased girl, due to which the
girl received bleeding injuries and died on the spot, which occurrence is
covered by Ex.A.1 First Information Report and Ex.A.2 chargesheet. The Tribunal basing on the oral and documentary
evidence on record, awarded in all compensation of Rs.65,000/- with interest at
9%p.a. against both the respondents(owner of crime vehicle and Insurer).
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[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.
8.
The fact that the accident was the result of the driving of the driver of the
crime lorry belongs to the 1st respondent-insured with the 2nd
respondent under Ex.B.1 policy marked by consent not in dispute for the purpose
of the appeal but for the quantum.
9.
From the above legal principles and in the factual matrix of case, Coming to
the quantum even the schedule II of Section 163-A of the amended MV Act speaks that
the compensation to be awarded shall not be less than Rs.50,000/-. Even if that is taken, a child in womb is
also entitled to that amount. For the
child herein three years aged and nothing to show they got other issues who
lost their prospective earnings besides
love and affection even for the three years, the proportionate increase RS.20,000/-p.a.,
it will be more than Rs.1,00,000/- which is the claim of claimant for compensation.
Hence, Rs.1,00,000/- as claimed by the claimed is awarded from enhancing from
Rs.65,000/-.
10.Coming
to the rate of interest awarded by the tribunal at 9% per annum is excessive,
from the settled proposition of law in TN Transport Corporation v. Raja
Priya[5]
and 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.
Hence the interest is modified and reduced from 9% p.a. to 7½% p.a. Accordingly, Point-1 is answered.
POINT -2:
11.
The appeal is allowed, as prayed for before the Tribunal, awarding compensation
of Rs.1,00,000/-with interest at 7.5%p.a.from
date of the claim petition till realization/deposit with notice. Both the
respondents jointly and severally liable to pay the compensation, are directed
to deposit within one month said amount with interest from the date of
petition, 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 RĀO, J
Date: 18-02-2014
VVR
Note: L.R. copy to be marked. Yes/No
