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Himachal Pradesh High Court · body

2016 DIGILAW 283 (HP)

Managing Director HRTC v. Khem Chand

2016-03-18

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 31.8.2009, made by the Motor Accident Claims Tribunal –cum-Presiding Officer Fast Track Court, Mandi, H.P. in Claim Petition No. 105/2002 (237/2005), titled Khem Chand versus Himachal Road Transport Corporation and others, for short “the Tribunal”, whereby compensation to the tune of Rs.1,91,000/- alongwith interest @ 7.5% per annum was awarded in favour of the claimant and insurer was saddled with the liability, hereinafter referred to as “the impugned award”, for short. 2. Claimant and driver have not questioned the impugned award on any ground. Thus, it has attained finality so far as it relates to them. 3. HRTC has questioned the impugned award on the ground of adequacy of compensation. 4. The Tribunal has awarded the compensation as follows: 1. Expenditure of medicine Transportation & attendants Charges. Rs. 30,000/- 2. Loss of Salary Rs. 11,000/- 3. Pain and suffering Rs. 30,000/- 4. Loss of amenities Rs. 30,000/- 5. Loss of income from Agricultural land Rs. 90,000/- Total Rs. 1,91,000/- 5. The learned counsel for the appellant argued that the Tribunal has fallen in an error in awarding Rs.90,000/- under the head “Loss of income from agricultural land.” The argument is attractive and forceful but I deem it proper to record herein that the Tribunal has fallen in an error in awarding compensation under the heads “pain and suffering”, “loss of amenities of life” and “loss of salary”. 6. The moot question is-whether the amount awarded can be enhanced without filing objections or without questioning by the claimants? 7. It would be profitable to reproduce Section 168 (1) of the MV Act herein: "168. Award of the Claims Tribunal. 6. The moot question is-whether the amount awarded can be enhanced without filing objections or without questioning by the claimants? 7. It would be profitable to reproduce Section 168 (1) of the MV Act herein: "168. Award of the Claims Tribunal. – On receipt of an application for compensation made under section 166 , the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:......................" 8. The mandate of Section 168 (1) (supra) is to 'determine the amount of compensation which appears to it to be just'. 9. Keeping in view the object of granting of compensation and the legislature's wisdom read with the amendment made in the MV Act in the year 1994, it is for the Tribunal or the Appellate Court to assess the just compensation and is within its powers to grant the compensation more than what is claimed and can enhance the same. 10. This Court in a case titled as United India Insurance Company Ltd. versus Smt. Kulwant Kaur, reported in Latest HLJ 2014 (HP) 174, held that the Tribunal as well as the Appellate Court is/are within the jurisdiction to enhance the compensation and grant more than what is claimed. 11. The same view was taken by the Apex Court in the case of Nagappa versus Gurudayal Singh and others, reported in AIR 2003 Supreme Court 674. It is apt to reproduce paras 7, 9 and 10 of the judgment herein: “7. Firstly, under the provisions of Motor Vehicles Act, 1988, (hereinafter referred to as “the MV Act”) there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. It is apt to reproduce paras 7, 9 and 10 of the judgment herein: “7. Firstly, under the provisions of Motor Vehicles Act, 1988, (hereinafter referred to as “the MV Act”) there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is – it should be 'Just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is subsection (4) which provides that “the Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act.” Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed. 8. .......................... 9. It appears that due importance is not given to sub-section (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under sub-section (6) of Section 158, as an application for compensation under this Act. 10. Thereafter, Section 168 empowers the Claims Tribunal to “make an award determining the amount of compensation which appears to it to be just”. 10. Thereafter, Section 168 empowers the Claims Tribunal to “make an award determining the amount of compensation which appears to it to be just”. Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation.” 12. In the case titled as State of Haryana and another versus Jasbir Kaur and others, reported in AIR 2003 Supreme Court 3696, the Apex Court has discussed the expression 'just'. It is apt to reproduce para 7 of the judgment herein: "7. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; nor a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation ( AIR 1998 SC 3191 )." 13. The same view has been taken by the Apex Court in a case titled as The Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172. 14. The Apex Court in a case titled as A.P.S.R.T.C. & another versus M. Ramadevi & others, reported in 2008 AIR SCW 1213, held that the Appellate Court was within its jurisdiction and powers in enhancing the compensation despite the fact that the claimants had not questioned the adequacy of the compensation. 15. The Apex Court in the case titled as Oriental Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717, laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v. Gurudayal Singh & Ors, (2003) 2 SCC 274 ; Devki Nandan Bangur and Ors. versus State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. versus Mohd. Jameel & Anr., (2009) 2 SCC 225 ; National Insurance Co. Ltd. versus Laxmi Narain Dhut, (2007) 3 SCC 700 ; Punjab State Electricity Board Ltd. versus Zora Singh and Others (2005) 6 SCC 776 ; A.P. SRTC versus STAT and State of Haryana & Ors. versus Shakuntla Devi, 2008 (13) SCALE 621. 16. Having said so, this Court has power to grant compensation on other heads even if the same is not claimed by the claimant. 17. Admittedly, the claimant has suffered and is still suffering. The amount awarded under the head “pain and suffering” and “loss of amenities of life” is meager. I deem it proper to grant Rs.60,000/- under the head “pain and suffering” and Rs.60,000/- under the head “loss of amenities of life” because the claimant has been deprived of amenities of life throughout and has to suffer throughout his life. The compensation awarded under the other heads, except “loss of amenities of life” is maintained. It is held that the claimant is not entitled to compensation under head “loss of income from agricultural land.” 18. The compensation awarded under the other heads, except “loss of amenities of life” is maintained. It is held that the claimant is not entitled to compensation under head “loss of income from agricultural land.” 18. In view of the above stated position, the claimant is held entitled to Rs.30,000/- under the head “Expenditure of medicine”,Rs.11,000/- under the head “loss of salary”, Rs.60,000/- under the head “Pain and suffering” and Rs.60,000/- under the head “loss of amenities of life.” Total compensation thus, comes to Rs.1,61,000/- with interest @7.5% per annum from the date of claim petition till its realization. 19. Accordingly, the impugned award is modified as indicated hereinabove. 20. The Registry to release the amount, in favour of the claimant, through payees’ cheque account or by depositing the same in his bank account, strictly as per the terms and conditions contained in the impugned award and excess amount, if any, be released to the appellant, through payees, cheque account. 21. The appeal stands disposed of. Send down the records forthwith, after placing a copy of this judgment.