First Appeal No.568 of 2004

21st August, 2015.

Petitioner Counsel: Mr. D.N. KUKDAY
Respondent Counsel: Ms M.H. PATHADE

Cases Cited:
Babu Lal and Others Vs. D.T.C. and another, 2013 (1) T.A.C. 844 [Para 6]
Nagappa Vs. Gurudayal Singh, 2014 ALL SCR (O.C.C.) 17=AIR 2003 SC 674 [Para 7]
Rajesh and Others Vs. Rajbir Singh and Others, 2014 ALL SCR 2434=2013 ACJ 1403 [Para 8]

JUDGMENT

JUDGMENT :- Heard the learned Counsel for the respective parties.

2. By this appeal, the appellantInsurance Company has prayed to quash and set aside the Award dt.12.3.2004 passed by the learned Member of the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.590 of 1997 against the appellant.

3. The facts, briefly stated are as under :

Claimant Shivbodhan Singh is father of motor vehicle accident victim Rajesh while Shilvanti Devi/respondent no.3 is mother of said unfortunate Rajesh. Victim Rajesh was studying in Polytechnic Institute at Nagpur. On 4.7.1997, at about 10.30 a.m. while proceeding on his Hero Moped No.MFW 1763 on the way between Somalwada via Wardha road, Rajesh had halted his moped and was standing on the extreme southern side of the tar road when offending motor vehicle i.e. Tanker bearing registration No.MH-31 M-7740 came from behind and dashed him. In the result, he fell down. The tanker ran over his leg. He sustained severe injuries. He was admitted to Medical College hospital. But he died on 5.7.1997. The incident of accident was informed to Police Station, Sonegaon. The offence was investigated and the driver of the tanker (offending motor vehicle) was prosecuted. Rajesh was a brilliant student with very good prospects in his life and according to the claimants, he would have earned a salary in the sum of Rs.10,000/- per month. He was the only son of the claimant and respondent no.3. They lost their support in their old age. They had claimed compensation in the sum of Rs.6,00,000/- from the owner and insurer of offending motor vehicle. Owner of the offending motor vehicle failed to file Written Statement and the Claim Petition was prosecuted against the owner without Written Statement. While the Insurer (appellant) resisted the petition and denied liability to pay compensation. Ownership as well as Insurance cover in respect of offending motor vehicle is not in dispute. The Tribunal upon evidence led found that Rajesh died on account of rash and negligent driving of the offending motor vehicle.

4. According to the Tribunal, Rajesh was 25 years old when he met with the motor vehicle accident and could have contributed a sum of Rs.2,000/- p. m. to the family. Regarding claim in the sum of Rs.6,00,000/-, the Tribunal held that the claimants and parents of the victim are entitled to compensation in the sum of Rs.3,88,500/- only. The claimant had relied upon police papers including F.I.R., Spot panchanama, Inquest panchanama, Insurance Cover note, Identity card issued by the College to Rajesh in support of the Claim Petition. No evidence was led by the owner or the driver of the offending motor vehicle. The claimant had deposed about the incident of accident, about rashness and negligence on the part of the driver of the offending motor vehicle which resulted in the accident relying upon police papers which were marked from Exh. Nos. 32 to 35. The Tribunal held that the tanker came from behind the moped and dashed it at the extreme side of the road, which gives rise to the only inference as to rash and negligent driving of the offending motor vehicle. There was no evidence led on behalf of the appellant/Insurance Company to prove that Rajesh was driving the moped in the middle of the road. The driver of the offending motor vehicle was not examined.

5. Learned Counsel for the appellant submitted that the impugned Award was excessive as it was in respect of nonearning student. According to the learned Counsel for the appellants, there was no evidence of brilliancy and ranking of Rajesh as student as also about his estimated future income. According to the learned Counsel for the Insurer, Award of interest @ 9 % p.a. from the date of petition was excessive and penal. According to the learned Counsel for the appellant, rate of interest at 9 % p.a. on the ground of failure to pay the entire amount under the Award with interest @ 6 % p.a. from the date of petition within two months was contrary to law and excessive. Learned Counsel for the claimants submitted that the Award amount was unjust and inequitable since victim Rajesh was Engineering student and his future was bright. He could have earned atleast a sum of Rs.10,000/- p. m. According to the learned Counsel for the claimants, even if 50 % amount is deducted towards notional self expenses of the unmarried Engineer student, the Tribunal could have awarded compensation on the basis of monthly income of Rs.5,000/- p. m. applying multiplier of 17 to the annual income. It is, thus, submitted that a sum of Rs.10,20,000/- plus funeral expenses in the sum of Rs.25,000/- and loss of estate and love and affection in the sum of Rs.1,00,000/- makes the total to the sum of Rs.11,45,000/- which would be just and reasonable compensation payable to the claimants in this case.

6. Learned Counsel for the Insurer objected the submissions on the ground that there is no CrossObjection in this appeal for claiming enhanced compensation, to which learned Counsel for the claimants replied that in view of the ruling in Babu Lal and Others vs. D.T.C. and another reported in 2013 (1) T.A.C. 844 (Delhi High Court), it was held that the Tribunal is empowered to award just compensation in accordance with law and it can be more than the amount claimed by the claimants in view of observations made by the Delhi High Court. Even in absence of CrossObjections, the Appellate Court can under Order XLI, Rule 33 of the Code of Civil Procedure is empowered to grant just compensation. The Delhi High Court observed in para nos. 19 and 20 thus-

19. It is well settled that Order XLI, Rule 33 of the Code of Civil Procedure empowers the Appellate Court to grant relief to a person who has neither appealed nor filed any crossobjections. The object of this provision is to do complete justice between the parties. Order XLI, Rule 33 of the Code of Civil Procedure has been discussed time and again by the Supreme Court in following cases :

i) Pannalal vs. State of Bombay, A.I.R. 1963 S.C. 1516.

ii) Rameshwar Prasad v. M/s.Shyam Beharilal Jagannath, (1964) 3 S.C.R. 549.

iii) Nirmal Bala Ghose v. Balai Chand Ghose, A.I.R. 1965 S.C. 1874.

iv) Giasi Ram vs. Ramjilal, A.I.R. 1969 S.C. 1144.

v) Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 2 S.C.R. 932.

vi) Mahant Dhangir v. Madan Mohan, (1988) 1 S.C.R. 679.

vii) State of Punjab v. Bakshish Singh, (1999) 8 S.C.C. 222.

20. Section 168 of the Motor Vehicles Act, 1988 empowers the Court to award such compensation as appears to be just which has been interpreted to mean just in accordance with law and it can be more than the amount claimed by the claimants. The provisions of the Motor Vehicles Act, 1988 are clearly a beneficial legislation and hence should be interpreted in a way to enable the Court to assess just compensation. The scope of Order XLI, Rule 33 of the Code of Civil Procedure and the power of the High Court to enhance the award amount in accident cases in the absence of crossobjections has been discussed by the Supreme Court in Nagappa v. Gurudayal Singh, A.I.R. 2003 S.C. 674 : 2003 (1) T.A.C. 241, where the Apex Court has held that the Court is required to determine just compensation and there is no other limitation or restriction for awarding such compensation and in appropriate cases wherefrom the evidence brought on record if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award and would empower the Court to enhance the compensation at the appellate stage even without the injured filing an appeal or cross-objections."

7. The observations would indicate that the appellate Court can grant relief in favour of a person who neither appeared nor filed CrossObjection in order to do complete justice between the parties. Hon'ble Supreme Court in the case of Nagappa vs. Gurudayal Singh reported in AIR 2003 SC 674 : [2014 ALL SCR (O.C.C.) 17] held that the Court is required to determine just compensation and there is no outer limit or restriction for awarding just compensation in appropriate cases wherefrom the evidence brought on record if the Court considers that the claimant is entitled to get more compensation than claimed. Such an Award may be made for enhancing compensation at the appellate stage. Since the observations were made pursuant to the rulings by the Apex Court, it cannot be disputed that enhanced compensation may be granted in appropriate case where award of compensation appears inadequate to meet the ends of justice.

8. Reference is also made to the case of Rajesh and Others vs. Rajbir Singh and Others reported in 2013 ACJ 1403 : [2014 ALL SCR 2434]. Three Judges Bench of Hon'ble Supreme Court observed thus :-

"19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/court has a duty, irrespective of the claims made in the application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation."

9. Thus, it appears that it is the duty of the Tribunal to consider awarding just, equitable, fair and reasonable compensation irrespective of the claim made in the application.

10. In the case in hand, the parents of the victim had demanded compensation on account of death of their only son who was pursuing studies as an Engineering student. Compensation was claimed in the sum of Rs.10,50,000/- and sum of Rs.10,000/- towards funeral expenses and Rs.50,000/- towards loss of estate. The claimants had restricted their claim to the sum of Rs.6,00,000/- in the Claim Petition and demanded 18 % p.a. interest upon award of compensation from the date of petition till realisation.

11. The evidence of witness no.1 for the claim petitioner was of Shivbodhan Singh (father of victim of accident) who made reference to the F.I.R., spot panchanama, inquest panchanama, cover note of the Insurance of offending motor vehicle, post mortem report and Identity card of Rajesh. It was a case where Rajesh, 25 years old student of final year of Polytechnic College studying in Bodhisatva Polytechnic College, Nagpur. According to Shivbodhan Singh, his son was a brilliant student and could have earned salary in the sum of Rs.10,000/- p. m. The claimant lost his only son who was unmarried. The claimant had taken loan for the education of his son. To this evidence, except suggestions to deny the liability, there was no any concrete opposition to the claim. The spot panchanama indicated that Hero Majestic moped, which was driven by Rajesh, was by the southern corner of the road in a broken condition as a result of the accident. Police had registered Crime No.93 of 1997, u/ss.279, 338, 427 r/w. Section 304-A of the Indian Penal Code on the ground that the driver of the tanker bearing registration no.MH-31 M-7740 drove the tanker rashly and negligently and dashed Hero Moped of victim Rajesh and caused severe injuries to him. The Insurance Cover Note (Exh.34) indicated that the offending motor vehicle was insured covering the date of the accident while the post mortem notes indicated that the cause of death of Rajesh was shock and haemorrhage due to injuries described in the post mortem. Thus, prima facie, it was clear that the accident was caused because of rash and negligent driving of the offending motor vehicle.

12. Considering the facts and circumstances of the case that the victim was a bright Engineering final year student and was a bachelor, his aged parents lost their only son, father of the victim was aged about 52 years, the monthly income inclusive of prospective increases in the income, a sum of atleast Rs.10,000/- p. m. could have been considered as a basis for calculations of just compensation. Assuming that a bachelor would spend more amount towards his selfexpenses, a sum of Rs.5,000/- can be deducted leaving sum of Rs.5,000/- p. m. as loss of dependency for parents which was annually a sum of Rs.60,000/-. The victim was aged less than 25 years and hence, multiplier of 17 could have been applied to the annual loss of dependency in the sum of Rs.60,000/- making the compensation in the sum of Rs.10,20,000/- as just and reasonable. The claimant had only claimed a sum of Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate. Thus, by written submissions at Exh.40 compensation was claimed in the sum of Rs.10,24,500/- only which, in my opinion, in the background of the rulings cited, appears just and reasonable compensation payable to the parents with interest @ 6 % p.a. from the date of Claim Petition till realisation of the amount. Therefore, the impugned Award needs modification in terms of enhancement of the amount to the sum of Rs.10,24,500/- irrespective of restricted claim. Hence, just and proper compensation in the facts and circumstances of the case would be a sum of Rs.10,24,500/- together with interest @ 6 % p.a. from the date of petition till realisation. The appellant, the driver and the owner of the offending motor vehicle i.e. tanker bearing registration no.MH-31 M-7740 are jointly and severally liable to pay the amount for compensation accordingly inclusive of no fault liability. The amount already deposited and withdrawn by the claimants shall be deducted from the balance amount payable. The balance amount shall be paid as directed above to the parents of deceased Rajesh in equal proportions. The appeal stands disposed of accordingly.

Ordered accordingly.