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2016 DIGILAW 2302 (ALL)

U. P. S. R. T. C. v. GUDIA DEVI

2016-07-05

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This appeal under Section 173 of the Motor Vehicles Act (for short the ‘Act’) has been filed by the appellant-corporation challenging the judgment and award dated 24.2.2016 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Aligarh awarding a sum of Rs. 8,75,500/- as compensation on account of death of one Satish Kumar in an accident involving the bus of the appellant-corporation. Respondent-claimants filed a claim petition under Section 140 read with Section 166 of the Act against the appellant-corporation claiming compensation to the tune of Rs. 19,75,000/-. According to the claimants, on 21.5.2014, Satish Kumar alongwith his wife-claimant No. 1 and his friends, Sanju, Surendra and Bunty was travelling to Aligarh by Indica car bearing registration No. HR 51 W 2390, at about 10.00 p.m., when they reached near Jain petrol pump at Atrauli-Aligarh road, the offending bus bearing registration No. UP81 AF 2725, which was being driven rashly and negligently, all of a sudden came on the wrong side and hit the car, which caused grievous injuries to all the occupants and Satish Kumar died while undergoing treatment in J.N. Medical College, Aligarh. A First Information Report was lodged at P.S. Harduaganj, which was registered as Case Crime No. 230 of 2014 under Sections 279, 338, 427, 304A IPC. It was further pleaded that the deceased was aged about 23 years and was employed as a driver in J.P.S. Public School, Narauna and was earning Rs. 7,500/- per month. 2. The appellant-corporation and the driver of the bus contested the proceedings by filing written statements denying the allegations. It was pleaded that driver after seeing that the car was being driven rashly and negligently, stopped the bus, but the driver of the car could not control it and dashed into the bus. On the basis of the evidence brought on record by the parties, the Tribunal returned a finding that accident was a result of contributory negligence of the bus to the extent of 70% and that of the car to the extent of 30%. 3. The said finding has been recorded by the Tribunal after analysing the evidence of P.W. 2, Surendra Singh, who was travelling in the car alongwith deceased and also the driver of the offending bus. 3. The said finding has been recorded by the Tribunal after analysing the evidence of P.W. 2, Surendra Singh, who was travelling in the car alongwith deceased and also the driver of the offending bus. On an analysis of the aforesaid two witnesses, the Tribunal arrived at the conclusion that accident was caused due to contributory negligence of both the parties. 4. On the question of quantum, the Tribunal found that the salary of Rs. 7,500/- per month as driver was established by the salary certificate dated 13.8.2015 issued by the Principal of the college, which was duly proved by him as P.W. 3. The Tribunal further awarded 50% towards future prospect in accordance with the dictum of the Hon’ble Apex Court in the case of Reshma Kumari v. Madan Mohan, 2013 (2) TAC 369 (SC) and after deducting 1/4th towards personal expenses, determined the compensation of a sum of Rs. 12,15,000/- after applying the multiplier of 18 in accordance with the age of the deceased. 30% of the said amount was deducted towards contributory negligence and, accordingly, the Tribunal determined a sum of Rs. 8,50,000/-. Tribunal further awarded a sum of Rs. 5000/- towards funeral expenses, Rs. 5000/- towards loss of estate, Rs. 10,000/- towards loss of love and affection and Rs. 5000/- to the wife towards loss of consortium. 5. Insofar as the determination of the compensation is concerned, we do not find any illegality in the methodology adopted by the Tribunal in determining the same. 6. Monthly income of Rs. 7,500/- of the deceased was duly proved by the claimants by filing the salary certificate and producing the Principal of the institution in the witness box to prove the same. Award of 50% towards future prospect is also in accordance with the well established principle laid down by the Hon’ble Apex Court in the case of Reshma Kumari (supra) and Munna Lal Jain and another v. Vipin Kumar Sharma and others, 2015 (3) TAC 1 (SC). The age of the deceased was found to be 25 years and, thus, the Tribunal has rightly applied the multiplier of 18 prescribed by the Hon’ble Apex Court in the case of Smt. Sarla Varma and others v. Delhi Transport Corporation and another, JT 2009 (6) SC 495. 7. The age of the deceased was found to be 25 years and, thus, the Tribunal has rightly applied the multiplier of 18 prescribed by the Hon’ble Apex Court in the case of Smt. Sarla Varma and others v. Delhi Transport Corporation and another, JT 2009 (6) SC 495. 7. There were three major dependants and two minor dependants, who were taken to be one unit, as such, there were four dependants and, thus, the Tribunal rightly made deductions of 1/4th towards personal expenses. 8. Thus, the methodology adopted by the Tribunal in determining the compensation is in accordance with the well established principles settled down by the Hon’ble Apex Court and no illegality is reflected therefrom, which may require any interference. 9. However, a perusal of the impugned award goes to show that only a sum of Rs. 5000/- has been awarded towards funeral expenses, Rs. 5000/- towards loss of estate, Rs. 10,000/- towards loss of love and affection and Rs. 5000/- towards loss of consortium. These amounts awarded by the Tribunal under non-pecuniary heads, are extremely on the lower side. 10. Hon’ble Apex Court in the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and Kalpanaraj and others v. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC), held that guiding principle for determining compensation is that it must be just and reasonable and the Court should not succumb to niceties or technicalities, in such matters while considering the issue of award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to children and funeral expenses. It has been observed in paragraph 17 as under: “17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practise of awarding compensation under conventional heads: loss of consortium to thee spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs. 5000 to 10,000. In legal parlance. “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection. etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United State of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the Courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts awards at least rupees one lakh for loss of consortium.” 11. Again in the case of Kalpanaraj and others (supra), Hon’ble Apex Court raised compensation of Rs. 30,000/- awarded towards loss of consortium and Rs. 20,000/- towards loss of love and affection of the minor children to Rs. 1,00,000/- each under the said heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of Rajesh (supra). 12. In view of the aforesaid law laid down by the Hon’ble Apex Court, we feel that the claimants are entitled to be awarded a sum of Rs. 50,000/- towards funeral expenses, Rs. 25,000/- towards loss of estate, Rs. 50,000/- for minor children towards loss of love and affection and a sum of Rs. 1,00,000/- to the respondent-wife towards loss of consortium. 13. 50,000/- towards funeral expenses, Rs. 25,000/- towards loss of estate, Rs. 50,000/- for minor children towards loss of love and affection and a sum of Rs. 1,00,000/- to the respondent-wife towards loss of consortium. 13. At this stage, learned counsel for the appellant vehemently contended that non-pecuniary damages have rightly been awarded in accordance with the Rule 220A of the Motor Vehicle Rules and the two judgements of the Hon’ble Apex Court in the Rajesh (supra) and Kalpanaraj (supra) are clearly distinguishable on the ground that they do not deal with a situation where Rule has been framed by the State for determination of compensation. It is also submitted that in an appeal filed by the Insurance Company, no order can be passed adverse to the appellant by increasing the amount of compensation without there being any cross-appeal by the claimants. 14. In so far as the first submission of the learned counsel for the appellant in respect of Rule 220A of the Motor Vehicles Rules is concerned, we do not find any reason to distinguish the aforesaid two judgements of the Hon’ble Apex Court on the ground that they do not deal with a situation where Rule was framed by the State for determination of compensation. Hon’ble Apex Court has clearly ruled that main guiding principle for determining the compensation is that it must be just and reasonable and the Court and tribunal are not required to frugal with regard to award compensation towards funeral expenses and other non-pecuniary damages. The other argument advanced by learned counsel for the appellant that amount of compensation cannot be increased in an appeal filed by the Insurance Company in the absence of cross-appeal by the claimant, is also without any force. 15. Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of Court of appeal clearly provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made as the case may require, and this power may be exercised in favour of all or any of the respondents or parties though they may not file any appeal or objection. Order XLI Rule 33 of the Code reads as under : “33. Order XLI Rule 33 of the Code reads as under : “33. Power of Court of Appeal—The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [any may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees] [Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]” 16. The provisions of Order XLI Rule 33 C.P.C. was explained by the Hon’ble Apex Court in the case of Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54 , in following words : “The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33 Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these : That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these : That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.” 17. The same view has again been reiterated in a later decision by the Hon’ble Apex Court in the case of Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43 . 18. We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (supra) the Hon’ble Apex Court has observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers. 19. Thus, the argument in this regard made by the learned counsel for the appellant has no legs to stand and is not liable to be sustained. 20. In view of above facts and discussions, we are of the considered opinion that the claimant-respondents are entitled to be awarded a total sum of Rs. 11,00,000/- as compensation alongwith 7% simple interest from the date of making of the application till the date of actual payment. 21. The apportionment of the amount to be paid to the claimants under this order shall be made in the same proportion as directed in the award passed by the Tribunal. 22. Accordingly, though the appeal filed by the appellant Insurance Company stands dismissed but the award stands modified to the extent directed above. 21. The apportionment of the amount to be paid to the claimants under this order shall be made in the same proportion as directed in the award passed by the Tribunal. 22. Accordingly, though the appeal filed by the appellant Insurance Company stands dismissed but the award stands modified to the extent directed above. The Registry is directed to remit the statutory deposit made before this Court to the Tribunal, which shall be liable to be adjusted towards the deposit to be made by the appellant. 23. However, in the facts and circumstances, we do not make any order as to costs.