HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1474 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-IV Additional District and Sessions Judge, Guntur (for short,‘Tribunal’)
in M.V.O.P.No.1507 of 2008 dated 10.06.2010, awarding compensation of Rs.7,73,000/-(Rupees
seven lakh seventy three thousand only) as against the claim of the respondent
Nos.1 to 3 (claimants in the claim petition i.e. wife, son and daughter of deceased)
of Rs.10,00,000/-(Rupees ten 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
B.Parameshwara Rao, learned counsel for the respondent Nos.1 to 3-claimants.
The 4th respondent-owner of crime vehicle is called absent with no
representation and thus taken as heard the 4th 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
by counsel for Insurer 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 erred in considering Ex.A.9 so called Form 16 of
2005-06 IT returns of the deceased created with collusion of employer of Jana
Chaitanya Housing Limited (for short, JCHL) without endorsement of the Income
Tax Department in proof of submission and enclosure of Form-16 for showing the
earnings of the deceased for taking by the Tribunal as per its observations in
para-12 on average at Rs.10,000/- p.m. i.e. at Rs.1,20,000/- p.a. with 30%
deduction even of the net of Rs.84,000/-; that the Tribunal ought to have held that the Ex.A.9 Form-16 is
created for the claim petition purpose and there is no proof regarding the
income of the deceased who was only a Collection Assistant under JCHL, even as
per the evidence of P.W.2-Branch Manager, the salary of deceased was only
Rs.2,100/- and the other amounts claimed as perks and that the multiplier
adopted by the Tribunal is also not correct, hence to reduce the quantum of
compensation. Whereas it is the
contention of the claimants as R.1 to R.3 of the appeal that for this Court
while sitting in appeal there is nothing to interfere with the finding of the
Tribunal of the compensation awarded and hence to dismiss the appeal.
4).Now
the points that arise for consideration in the appeal are:
1. Whether the compensation awarded by
the Tribunal is not just and requires interference by this Court while sitting
in appeal against the award and if so what amount to arrive a just compensation
and with what rate of interest?
2. To what result?
POINT-1:
5.
The facts of the case are that, on 10.09.2008 when the deceased-G.Govindu, along
with others were proceeding in an auto and stopped at Morempudi, to pick up
passengers, the lorry bearing No.AP 16 TW 3789 belongs to the 1st respondent in the claim petition insured with
the 2nd respondent-appellant, came at high speed driven in rash and
negligent manner and dashed the auto, as a result the deceased and two other
persons died on the spot which occurrence is covered by Ex.A.1 FIR and Ex.A.4
charge sheet. The learned Tribunal basing on the oral and documentary evidence
on record, awarded in all compensation of Rs.7,73,000/-out of Rs.10,00,000/- against
both 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 fact that
the accident was rash and negligent driving of the driver of the crime vehicle
on 10.09.2008 is not in dispute. The fact that deceased was working in
JCHL is proved not only from the
evidence of P.W.1 but also of P.Ws.2 and 3 including the evidence of Branch
Manager of JCHL also in the cross-examination and Ex.A.10 ESI ID card issued by
ESI authorities for the private employees also establishes that he is employee
in JCHL. Once that is established the thing to be considered is what is the
earnings as salary of deceased from the employer-JCHL. Ex.A.9 IT returns Form-16 submitted by the
employer of the deceased to the Income Tax Department which no way contains any
endorsement of the IT Department of the deceased to say it is as good as only
an income certificate of the employer for no endorsement of IT Department.
There is nothing from the Insurer to dispute the correctness of Ex.A.9 in the
cross-examination of P.W.2-the Branch Manager of JCHL. Though what he deposed is fixed salary and perks
together that the amount shown in form-16.
It does not mean only the fixed salary is taken into consideration and
other perks cannot be taken into consideration in fact from that the Tribunal
taken the earnings of the deceased including on commission as Collection
Assistant under JCHL at Rs.1,20,000/-p.a. be estimated at Rs.10,000/- and even
deductions taken the net of Rs.84,000/- for the 12 months which comes to
average Rs.7,000/-p.m. Even for arguments sake, the claimants filed the Ex.A.9 IT
returns had been created and also SSC
Certificate of the deceased covered by Ex.A.11 besides Ex.A.12 Election ID not
only regarding age but also regarding the avocation and qualification. The Apex
Court in Latha Wadhwa vs. State of Bihar[5]
held that even there is no proof of income and earnings, it can be reasonably
estimated minimum at Rs.3,000/- p.m. for any non-earning member and even for
housewife as domestic contribution. The accident was dated 10.09.2008 about 8
years after the said expression. Here he
was working in JCHL a private entity.
Even taken the earnings of the deceased an average at Rs.6,000/- p.m. as
per the Apex Court in Rajesh v. Rajbir Singh[6] three
judge bench not only for fixed salaried employees but for public servants but
also daily wage earners there shall be proportionate increase regarding the
prospective earnings so as the aged person who between 40 and 50 with 30%, it
comes to Rs.7,800/-x12=Rs.93,600/- to say Rs.84,000/- as net income of the
deceased taken by the Tribunal is low and no way on high side even. Now coming
to the personal expenses of the deceased deducted by the Tribunal of 1/3 is
just as there are three claimants i.e. wife, son and unmarried daughter of the deceased if 1/3rd
deducted out of it, it comes to Rs.62,400/-x13(multiplier) for a person aged
between 46 to 50 it comes to Rs.8,11,200/-, for loss of consortium to the 1st
claimant Rs.1,00,000/-, for funeral expenses Rs.25,000/- and loss of estate a
minimum of Rs.5,000/- as per Rajesh(supra) in all comes to Rs.9,41,200/-
and the amount of Rs.7,73,000/- awarded by the Tribunal is no way on high side
but for to increase if at all. Here
though the claimant says the Tribunal has to award just compensation even no
cross-appeal, but for any cross appeal by the claimants, this Court has also no
right to enhance the compensation as laid down by the Apex Court in Ranjan Prakash V. Divisional Manager[7]
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.
8. Coming to the rate of interest, from the settled proposition
of law in TN Transport Corporation v. Raja Priya[8],
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[9].
Having regard
to the same and from there is 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:
9.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
