HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.18 OF 2011
JUDGMENT:
The IFFCO-TOKIO 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-Additional District & Sessions Judge, Medak
at Sangareddy (for short, ’Tribunal’)
in M.V.O.P.No.539 of 2006 dated 021.07.2010, awarding compensation of Rs.2,27,500/-(Rupees
two lakh twenty seven thousand five hundred only), as against the claim of Rs.4,00,000/-(Rupees
four lakh only), against respondent Nos.1 and 2 viz., owner and Insurer-the
appellant herein of crime vehicle 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 Sri T.Mahender Rao, learned standing
counsel for the appellant, Sri M.S.R.Subramanyam, learned counsel for the
respondent Nos.1,4 and 5(respondent Nos.4 and 5 minors represented by
mother-R.1), Respondent Nos.2,3 6 and 7 (R.7-owner of the crime vehicle) served
with notice are called absent with no representation and thus taken as heard to
decide on merits. 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 oral submissions by the appellant-insurance company in
nutshell are that the Judgment and decree of the Tribunal is contrary to law,
weight of evidence and probabilities of the case and ought to have dismissed
the claim petition contending that the Tribunal gravely erred in observing that
the insurer failed to prove as required by law the factum of the driver of the
insured auto was having only non transport light motor vehicle driving licence and
was driving the passenger transport auto at the time of accident and as such he
was not holding valid and effective driving licence and therefore, the owner of
the insured auto –7th respondent violated the terms of policy, the Tribunal failed to
see that the R.7- owner of the insured auto did not cross-examine R.W.1 who
stated that the driver of crime auto was having only non-transport driving
licence but driving passenger transport vehicle, that the Tribunal failed to
see that the R.7 failed to discharge his statutory obligation in knowing
whether the driver of his vehicle is having valid driving licence to drive his
vehicle as on the date of accident, that the driver of the crime vehicle was
not authorized to drive the insured auto which is a commercial vehicle which is
more than enough in discharging the burden on the part of the insurer and once
the driver not possessed effective driving licence, the insurer cannot be fastened
any liability as per the expressions National Insurance Co. Ltd. V. Kanti Devi
& others[1],
National
Insurance Co. Ltd V. Kusum Rai & others[2],
Oriental Insurance Co. Ltd. V. Syed Ibrahim & others[3],
National Insurance Co. Ltd. V. Prabhu Lal[4],
New India Assurance Co. Ltd. V. Roshanben R Fakir & another[5],
Oriental Insurance Co. Ltd. V. Angad Kol and others[6]
and that the quantum of compensation awarded by the Tribunal is also on high
side, hence to set aside the award of the Tribunal and also so far as fixing
the liability by exonerating the insurer.
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 S-1 & 2:
5.
The facts are that on 01.06.2006 at about 1.30 p.m. due to the rash and
negligent driving of the driver of the crime vehicle (auto bearing No.AP 28W 3983)
belongs to the 1st respondent-insured
with the 2nd respondent(appellant herein),the same hit the auto
bearing No.AP28 W 8160 in which the deceased by name Narsing Rao, was
travelling, as a result he sustained serious injuries and was shifted to BNR
hospital initially then to Osmania General Hospital and later died on the same
day while undergoing treatment which occurrence is covered by Ex.A.1 FIR and
Ex.A.2 charge sheet and the same as proved from the material on record and no
way requires interference in the appeal. The learned Tribunal basing on the
oral and documentary evidence on record, awarded compensation of Rs.2,27,500/-(Rupees
two lakh twenty seven thousand five hundred only) with interest at 6% p.a. to
the claimants under various heads against both the respondents in the claim
petition jointly and severally.
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[7], the two judge bench of the Apex Court in this
decision by referring to National Insurance Company Limited Vs.
Swaran Singh & Others[8] apart from other expressions in National
Insurance Company Limited Vs. Kusum Rai & Others[9] and Oriental Insurance Company Limited Vs.
Nanjappan & Others[10]
and Ishwar
Chandra & Others Vs. Oriental Insurance Company Limited & Others[11] 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[12] 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[13]- the
facts show one Jageeru , Tonga
ix)
In UIIC Vs. Gianchand[14], 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[15] 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[16] 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[17]
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[18],
it was held by the Apex Court referring to Swaran
Singh (supra) and New India
Insurance Company Limited Vs. Kamala[19]
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[20]
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[21]
(supra).
iii) The other decisions regarding fake license is
National Insurance Company Limited Vs.
Dupati Singaiah[22]
referring to Lehru, Swaran Singh, Gain
chand, Prithvi Raj, Prahlad dev(supra),
not to mention Oriental Insurance
Company Limited Vs. Meena Variyar[23]
earlier expression in Scandia Insurance
Company Limited Vs. Kokila Ben Chandravadan[24]
and United India Insurance Company
Limited Vs.Rakesh Kumar Arora[25]
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[26] 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[27]
wherein the reference was answered upholding the view taken Skandia Insurance Co. Ltd. V. Kokila Ben
Chandravadan[28]
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[29] 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[29] 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[30] 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[31] 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[32], 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[33] 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 realise 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[34], (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[36]
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[37] 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.
From the above legal position and coming to the factual matrix, the fact that
the accident was the result of rash and negligent driving of driver of the
crime vehicle as proved form the evidence of P.Ws.1 and 2 read with Ex.A.1 FIR,
Ex.A.2 charge sheet and Ex.A.5 M.V.I. report as concluded by the Tribunal in
its findings at page 7 of the award not in dispute. Now coming to the core of the issue as to
insured is liable or not, it is suggested to P.W.1 and also deposed by R.W.1
employee of the insurer by relying on Ex.B.1 policy condition No.7 of
non-liability in case of any breach of the terms of the policy. The owner of
the crime vehicle appeared through advocate before the Tribunal, however, did
not choose to cross-examine R.W.1. It
might be for the fact that already R.W.1 was confronted by cross-examination by
the claimants. The mere fact that the R.W.1 was not cross-examined is not a
ground to say the insured will not make avail the cross-examination on record
from R.W.1 to appreciate. As it is the fairly settled law that the appreciation
of evidence is from the entire matter at large on record irrespective of on
whom the burden lies and who produced what evidence. Having regard to the above, there is
suggestion to R.W.1 by the claimants which is also available to the insured of
not filed any investigation report which to say the driver was having only
non-transport LMV driving licnce. In fact it is the contention of the insurer
that the non-cross-examination by the insured of the employee of the insurer
despite R.W.1 deposed of driver was not
having valid licence is suffice to
attribute knowledge to the insured of no licence as it is not the first time version
at witness box since such plea taken in the counter of the insured. The fact
remains to be appreciated under law is proof of willful and with conscious
knowledge as on the date of accident in entrusting vehicle. In this context, mere fact of not giving such
a suggestion by owner is not sufficient to attribute conscious knowledge to the
owner either at the time of entrusting vehicle or at the time of accident.
However, the fact further remains that there is no notice issued to the owner
to produce licence or to summon as Court witnesses at least the driver; apart
from the owner also not discharged his burden by coming to the witness box of
he verified the licence and satisfied in entrusting the vehicle to say there is
breach. The non-coming to witness box
even to infer knowledge, it is not to infer as a breach to the conscious
knowledge of the owner to exempt the Insurer from total liability; but for to
pay and recover. Thus, in the factual matrix, it is a
fit case for pay and recover including from the above expressions of the Apex
Court in Swaran Singh (supra), Lehru (supra), Nanjappan (supra), Kusumlata
(supra) and S.Iyyappan (supra).
10.
Having regard to the above, it is the insurer also
along with the insured owner of the crime vehicle jointly and severally liable
to pay compensation to the claimants and then it is for the insurer to recover
from the owner of the vehicle by filing execution petition in the same award
without need of any separate proceedings.
Accordingly Point No.1 is answered.
POINT No.2:
11.
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[38],
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[39]
remarked that the assessment of damages has never been an exact science and it
is essentially practical. Lord Morris in Parry v. Cleaver[40]
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[41]
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.
12. In
this regard, it is well laid down by the Apex Court (Three Judges Bench) in the
latest expression in Rajesh v. Rajbir Singh[42] at paras-1 and 7 referring to the earlier
expressions in Sarla Verma v Delhi Transport Corporation[43] and Nagappa
v Gurudayal Singh[44] 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. It is also required to
mention in this context that irrespective of lack of proof of income of deceased/injured
of the permanent disability, the Court has to assess the income by nature of
avocation by taking as guideline the expression of Apex Court
13.
The Tribunal in fact awarded of Rs.2,27,500/- from age of deceased 55 years and
taken the earnings at Rs.2,700/-p.m. x 12 = Rs.32,400/-p.a. after deducting 1/3rd
for personal expenses, it comes to Rs.21,600/- x 8(multiplier), thus, the
earnings that can be taken as Rs.2,16,000/-. Apart from the above, Rs.1,00,000/-
towards consortium, Rs.25,000/- for funeral expenses, Rs.5,000/- for loss of
estate and Rs.20,000/- to the two minor children for care and guidance as per Rajesh (supra). Thus, the compensation
is not a high side but law; however, for no cross
appeal; this Court has no right to enhance the compensation as laid down by the
Apex Court in Ranjan Prakash V.
Divisional Manager[46]
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.
14. Coming to the rate of interest, the Tribunal awarded
interest at 6% p.a. which is very low.
From the settled proposition of law in TN Transport Corporation v.
Raja Priya[47],
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[48].
Having regard to the same and from the discretionary
power of the appellate Court as the interest at 6% p.a. awarded by the
Tribunal found contrary to law and
unjust and the same is increased to 7½%p.a. from date of claim petition till
realization. Accordingly, Point-2 for
consideration is answered.
POINT -3:
15.
Accordingly and in the result, while allowing the appeal in part and while
modifying and enhancing the rate of interest from 6% p.a. to 7.5% p.a. from the
date of claim petition till the date of realization with joint and several
liability of the insurer and insured (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 balance 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 claimants (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 claimants, 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:
10.12.2013
VVR
Note: L.R. copy to be marked yes/no
