HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.Nos.1806 and 1884 OF 2011
JUDGMENT:
The appellant-claimant filed MACMA No.1806
of 2011, filed this appeal having been aggrieved by the Order/Award of the
learned Chairman of the Motor Accidents Claims Tribunal–cum- District Judge, Srikakulam,(for
short, ‘Tribunal’) in M.V.O.P.No.388 of 2009 dated 21.03.2011, awarding
compensation of Rs.4,32,300/-(Rupees four lakh thirty two thousand three
hundred only) with interest at 7.5% p.a. as against the claim of the claimant of
Rs.7,00,000/-(Rupees seven lakh only), contending that the Tribunal awarded
only Rs.4,32,000/- with interst at 7.5%p.a. awarded dated ----- to allow the appeal by enhancing
the claim as prayed for in the claim petition and in the said grounds of
appellant it is the submission that the taking of the earning of the deceased
even Kousi--- proved from evidence only at Rs.75/- per day and Rs.20250/- per
month is contray utterly low and deducted multiplier 16 is incorrect. Hence, to
increase whereas it is the contention of the insurer contesting 2nd
respondent to the claim petition as well as the appeal for 1st
respondent served in contesting have been remained exparte before the Tribunal
even, that this Court whle sitting in appeal the is nothing to interfere but
for if at all reduce the quantum, no cross-appeal and that the multiple adopted
and the earnings estimated by the Tribunal are just so also disability
arrived rate of interest hence to
dismiss the appeal. . the compensation awarded is high impugning the thirty two thousand three hundred only) with
interest at 7.5% p.a. as against the claim of the claimant of Rs.7,00,000/-(Rupees
seven lakh only), in the claim petition
under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).
2.
Heard Sri P.Harinath Gupta, the learned standing counsel for the appellant-insurance
company. Sri V.Ram Chandar Rao, counsel
for 1st respondent-claimant
and the appeal against 2nd respondent-driver of crime vehicle and 3rd
respondent-owner dismissed for default vide orders dated 25.01.2010. Perused
the material on record. The parties hereinafter are referred to as arrayed
before the Tribunal for the sake of convenience in the appeal.
Another
appeal MACMA No.1884 of 2011 is filed by the appellant-National Insurance
Company Limited-2nd respondent in the same O.P.No.338 of 2009 having
been aggrieved by the Order/Award with the contentions in the grounds of appeal
as well as oral submissions in nutshell are that the order and decree of the
Tribunal is contrary to law, weight of evidence and probabilities of the case
and compensation awarded is high together with interest, failed to know that
the Insurance policy in question (Ex.B.1) is issued for goods carrying
commercial vehicle and the respondent/petitioner was a gratuitous and
unauthorized passenger sitting in said load, fell down and sustained injuries, that the insurance policy is issued to a
tractor and trailer which is a goods carrying commercial vehicle having seating
capacity of one person in the driver seat. Apart from the driver no other
person is permissible to sit or travel in the goods carrying commercial
vehicle. So the petitioner is unauthorized and gratuitous passenger forwhich no
premium is paid bythe respondent-insured, that failed tonote that the
respondent/petitioner is not a third party totheaccident and erronerously
saddled him with an award ofRs.4,32,000/- third party means who have not
traveled in the vehicle, that the
evidence ofR.W.1-A.O. of appellant company clearly points that insurance policy
is issued to goods carrying commercial vehicle , crime vehicle driver did not
have valid driving licence, seating capacity of tractor-trailor is only one
personi.e. driver, tractor-trailor was carrying respondent/petitioner at the
time of accident for hire and reward, which isnot permissible as per terms of
policy, the petitioner was an unauthorized passenger, that R.W.2 also deposed
the asame and further deposed as no specific endorsement in the Ex.B.5-driving
licence to drive the tractor and trailer, that failed to note that no proof of
income and occupation has been filed by the respondent/petitioner there is no
even jthird party affidavit ofhis employer that the respondent/petitioner is
working as a loading and unloading coolie with respondent insured, that the
collection of premium for risk of coolies is only for liading and unloading
operations and not for unlawfuly allowing them to travel in the goods vehicles,
that the owner of the goods alone can travel in the vehicle with his goods,
that the respondent/petitioner has not examined the treating doctor who is
alleged to have done amputation of his right arm. What prevented
respondent/petitioner to examine the doctor who has carried out amputation of
his right arm isnot known? Strangely the respondent/petitioner got examined
P.W.2(Dr.B.Uday Kumar) who has not done amputation of the respondent right arm
and much worse P.W.2 and also issued a disability certificate that ought to have exonerated the appellant as
it held that the R.1-driver is not having valid and effective driving licence
at the time of accident which is a clear violation of conditions of policy and
the award is unsustainable in law and the same is liable to be set aside and
the compensation is excessive.
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) and
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:
The fact that
the accident was the result of the rash and negligent driving of the driver of
the same crime tractor trailer AP30 U 1367-3766 of claim petition 1st
respondent-insurer with the claim petition 2nd respondent Ex.B.1
policy not in dispute. So also the fact that the vehicle got registered and
permit and the driver got licence covered by Exs.B.2 to 5 and evidence of
R.Ws.1 and 2 as per the P.W.6 the worker cum—driver with a tractor
and trailer for loading and unloading even otherwise there is a premium paid
additional in addition to the driver of the tractor to say he is otherwise only
say attendant of the goods which is
admittedly with a sand load and the goods vehicle from Ex.B.2 permit, read with
B.1 police and B.3 registration extract evidence of R.Ws.1 and 2.
5.The
facts are that on 21.11.1999 the claimant-minor boy by name Ravikumar was at
the bus stop of Duddenapalli and the petitioner while crossing road the 1st
respondent-driver of the crime vehicle-Suzuki motor cycle bearing No.
AP-15-H-9340 came riding in rash and negligent manner from Karimnagar side and
dashed against the claimant, due to which the claimant fell down and sustained
grievous injuries, immediately he was shifted to Government hospital,
Karimnagar and then to M.G.M.Hospital, Warangal for treatment and said
occurrence is covered by Ex.A.1 FIR and Ex.A.3 charge sheet. The Tribunal
basing on the oral and documentary evidence on record, taking into
consideration of all aspects in all awarded compensation of Rs.19,000/- with
interest at 9%p.a. against respondent Nos.1 to 3 to be entitled by the
claimant.
6.The fact that the accident was the result of the rash and
negligent driving of the driver of the crime vehicle- crime vehicle-Suzuki motor cycle bearing
No. AP-15-H-9340 insured with the 3rd respondent
in claim petition covered by Ex.B-1 policy is proved from the evidence of PW.1
with reference to Ex.A-1 FIR and Ex.A-3 charge sheet. Thus the only thing to be seen is whether the
appellant is to be exonerated from the liability to pay compensation. In this
regard, on perusal of the award, the Tribunal held that though the
appellant herein got examined his employee as R.W.1 who deposed as 1st
respondent-driver of the crime vehicle is not having valid driving licence at
the time of accident and the same is also mentioned in Ex.A.3 charge sheet, the
same is not a conclusive proof and appellant herein failed to prove that the 1st
respondent-driver is not having valid licence at the time of accident. This
court also does not require any interference with above finding of the Tribunal
as Ex.A.3 charge sheet cannot itself be a basis as per the settled expressions
in the absence of proof like summoning the RTO or driver or owner, however, no
efforts made by the Insurer at least by giving notice to the driver and owner
to bring the driving licence, the same is rightly held by the Tribunal. Hence,
this Court confirms the joint liability on respondents as held by the Tribunal
in view of no proof of driving licence of the 1st respondent-driver
at the time of accident. Accordingly, point No.1 is answered.
POINT No.2:
7.
Coming to decide the dispute on quantum as to 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 compensation 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 should 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 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. In
this regard, it is well laid down by the Apex Court (Three Judges Bench) in the
latest expression in Rajesh v. Rajbir Singh[5] at paras-1 and 7 referring to the earlier
expressions in Sarla Verma v Delhi Transport Corporation[6] and Nagappa
v Gurudayal Singh[7] that
compensation which appears to it to be just, has to be assessed and awarded by
the Tribunal set up under Section 166 of the Act. The expression ‘just compensation’ has been explained
in Sarla Verma`s case (cited supra) holding that the compensation
awarded by the Tribunal does not become just compensation merely because the
Tribunal considered it to be just. ‘Just compensation’ is an adequate compensation
which is fair and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as money can do
so, by applying the well settled principles relating to award of compensation.
9.
In view of the above legal propositions and factual matrix, what the Tribunal in
fact awarded Rs.19,000/- under different heads basing on the evidence of P.W.1
and Ex.A.8 Discharge summery card and considering other aspects is just and
reasonable and the said awarding of quantum of compensation by the Tribunal
does not require any interference by this
Court while sitting in appeal if not to say it is low and even then for
no cross appeal; this Court has no right to enhance the compensation as laid
down by the Apex Court in Ranjana
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, the Tribunal awarded
interest at 9% p.a. 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
POINT -3:
11.
Accordingly and in the result, the appeal is dismissed and the rate of interest
awarded by the Tribunal of 9% p.a. is reduced to 7.5% p.a. from
date of the claim petition till realization/deposit with notice. The Respondent
Nos.1 to 3, 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, failing which the claimant can execute and recover. On such deposit or execution and recovery,
the claimant is permitted to withdraw the same. There is no order as to costs
in the appeal.
12.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
02-01-2014
Vvr
Note: L.R. copy to be marked yes/no
(b/o) Vvr
