HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.721 OF 2011
JUDGMENT:
The New India Assurance 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-Principal District Judge, Kadapa(for short, ’Tribunal’) in
M.V.O.P.No.453 of 2008 dated 024.08.2009, awarding compensation of Rs.7,88,000/-(Rupees
seven lakh eighty eight thousand only) as against the claim of the respondent
Nos.1 and 2 (claimants in the claim petition i.e. wife and minor daughter of
deceased) of Rs.8,00,000/-(Rupees eight lakh only), in the claim petition under
Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).
2.
Heard Sri Naresh Byrapaneni, learned standing counsel for the appellant, Sri D.Kodanda
Rami Reddy, learned counsel for the respondents-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 was erred in fastening liability to the appellant alone when the
accident was a head-on-collusion, that failed to see contributory negligence on
the part of the deceased, erred in taking monthly income of the deceased at
Rs.6,000/- p.m. the reasons assigned by the Tribunal in the award are unsound
and baseless. Hence to set aside the award by allowing the appeal. whereas it
is the contention of the claimants that the award of the Tribunal no way
requires interference but for no cross-objections to reduce compensation prayed
for and sought for dismissal of the appeal. The parties are being referred as arrayed
before the Tribunal for sake of convenience.
4.
Now the points
that arise for consideration in the appeal are:
1.
Whether
there is any contributory negligence and the findings arrived by the Tribunal
are not just and if so, what is the compensation the claimants are entitled and
with what rate of interest?
2.
To what result?
POINT-1:
5.
The facts of the case as proved before the Tribunal and not in dispute in this
appeal are that, on 21.04.2008 due to the rash and negligent driving of the
driver of the crime vehicle (lorry bearing No.AP 04-T 3679) belongs to the 1st
respondent in the claim petition insured
with the 2nd respondent in the claim petition(appellant herein), hit
the motor cycle (bearing No.AP 04M 4034) being ridden by the deceased by name
Boggadi Lakshminarayana, aged about 36 years, resident of Boggadivaripalli
village, Sidhout Mandal, Kadapa district, running a hotel, as a result the
deceased died on the spot, which occurrence is covered by Ex.A.1 First
Information Report And Ex.A.5 charge sheet. The learned Tribunal basing on the
oral and documentary evidence on record, awarded in all compensation of Rs.7,88,000/-(Rupees
seven lakh eighty eight thousand only) out of Rs.8,00,000/- 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[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.
7.
From the above legal position and coming to the factual matrix, the claimants
before the Tribunal were the wife and minor child aged about 12 years of the
deceased by name B.Laxminarayana Reddy, aged about 34 years as per Ex.A.3
postmortem report and there is no other proof regarding the age, the Tribunal
out of the claim of Rs.8,00,000/- awarded compensation of Rs.7,88,000/- in
all. The claim petition was filed
against the owner of the lorry bearing No.AP04 3679 and the insurer. The policy risk covered not in dispute but
for contentions in the appeal filed by the insurer impugning the award of the
Tribunal not only on the quantum but also on the contention of the Tribunal was
erred in not considering contributory negligence on the part of the
deceased-the bike rider out of whose negligence, while both vehicles coming in opposite directions, the
accident occurred and thereby to reduce the compensation and also to fix
contributory negligence. To say that there is contributory negligence on the
part of the deceased-bike rider from the contentions of the insurer in the
appeal based on the material placed before the lower Court, there is nothing
directly, for no scene observation filed, much less rough sketch and the Ex.A.4
M.V.Report no way show even any damage to the lorry much less any dint even to
say so called head on collusion. In the absence of which merely because both
the vehicles coming in opposite direction, it is difficult to arrive any
composite or contributory negligence. In fact, the Tribunal having considered
the evidence on record more particularly from the evidence of P.Ws.1 to 3
including the eye witness to the accident and the First Information Report
registered against the lorry driver and also charge sheet filed after
investigation came to conclusion of the lorry driver is totally in fault. Thus,
for this Court while sitting in appeal there is nothing to interfere to disturb
the said finding.
8.
Now coming to the quantum of compensation, the Tribunal awarded Rs.7,88,000/- with interest at 6% p.a.
requires interference to reduce the compensation as claimed by the insurer or
to increase rate of interest as claimed by the claimant concerned, the deceased
was aged about 34 years, the multiplier that is applicable as per Sarla
Varma v. Delhi Transport Corporation[5]
followed in Rajesh v. Ranabir Singh[6],for
a person who between 31 to 35 is 16, for taking Rs.6,000/- income of the
deceased from the evidence of P.Ws. 1 to 3 and a stray sentence in a inquest,
even taken he was running pretty hotel in a village, not possessed any food
product license, and not paying any professional tax, not produced any R.C. or
other record, not registered as an Establishments of Shops under Shops and
Establishments Act and thus for saying Rs.6,000/- income per month there is no
basis. No doubt the expression of Apex
Court in Latha Wadhwa vs. State of Bihar[7]
speaks that even there is no proof of income and earnings, it can be reasonably
estimated at Rs.3,000/- p.m. for any non-earning member and even for housewife
as domestic contribution. As such, the earnings of the deceased estimated, from
the accident, dated 21.04.2008 with
increase towards prospective earnings as per Rajesh (supra) which applies not only to the salaried employees but
also to skilled workers and daily earners with fixed sum; it can be taken at
Rs.5,000/- p.m. and if half of the amount is deducted for the personal expenses
of the deceased as the dependants are only wife and minor child i.e. Rs.2,500/- x 12 x 16 (multiplier) =
Rs.4,80,000/- + Rs.1,00,000/- to the 1st claimant towards loss of
consortium, Rs.25,000/- for funeral expenses , Rs. 10,000/- for care, guidance
to the minor child (2nd claimant) and Rs.10,000/- maximum for loss
of estate in all it comes to Rs.6,25,200/- is more than just compensation,
thus, to reduce from the amount of Rs.7,88,000/- awarded by the Tribunal but by
increasing the rate of interest from 6%p.a. to 7 ½% p.a. from the settled
proposition of law in TN Transport Corporation v. Raja Priya[8]
and Sarla Varma (supra) and from the latest expression of the Apex
Court in Rajesh (Supra). Accordingly, point No.1 is answered.
Point No.2:
9.
The appeal is partly allowed while upholding the finding of the accident was of
the result of rash and negligent driving of the crime lorry of 1st
respondent injured with the 2nd respondent of the claim petition
with no contributory negligence of the deceased rider of motor cycle but by
reducing quantum of compensation Rs.7,88,000/- to Rs.6,25,000/- and increasing
rate of interest from 6%p.a. to 7½ % p.a. Rest of the award holds good. There is no order as to costs.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
16.12.2013
VVR
Note: L.R. copy to be marked. Yes/No
