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Himachal Pradesh High Court · body

2016 DIGILAW 76 (HP)

Ratna Devi v. Rajwanti Devi

2016-01-08

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. FAO No. 54, 55, 56 and 200 of 2014 By the medium of these appeals, the insured has questioned the impugned awards on the grounds that the Tribunal has wrongly saddled the insured/appellant with the liability, while FAO No.238 of 2014 has been preferred by the claimants questioning the impugned award on the ground that the Tribunal has fallen in error in not awarding the compensation of Rs.31,93,600/-, which was assessed by the Tribunal and awarded only Rs.15,00,000/- as claimed by them in the claim petition. 2. All the appeals are outcome of one accident, therefore, these are being disposed of by a common judgment. 3. Claimants have specifically averred in the claim petitions that the deceased were traveling in the offending vehicle, alongwith goods. The said fact has been admitted by the owner in the reply filed to the Claim Petitions. Thus, there was no dispute about the fact that the deceased were traveling in the offending vehicle alongwith their goods. 4. It is settled preposition of law that the facts admitted need not be proved. However, issues were framed and the parties have led their evidence. It has come on the record that the deceased were traveling in the offending vehicle alongwith their goods, thus, cannot be termed as gratuitous passengers. 5. This Court in FAO No.638 of 2008, titled National Insurance Company vs. Sundri Devi and in series of judgments has held that when a person is traveling in a vehicle as owner of the goods, he cannot be said to be traveling as gratuitous passenger. 6. The Tribunal has also fallen in error in holding that the insurance policy was an Act Policy, which is factually incorrect. A perusal of the Insurance Policy shows that the same was a Comprehensive Policy, which fact was also frankly conceded by the learned counsel for the insurer during the course of hearing of the appeal. Thus, the risk of the persons traveling in the offending vehicle alongwith goods is covered. 7. Having said so, in all the claim petitions the insured/owner has to satisfy the award, but the offending vehicle was duly insured, thus, the insurer has to indemnify and, therefore, the insurer is to be saddled with the liability. 8. Thus, the risk of the persons traveling in the offending vehicle alongwith goods is covered. 7. Having said so, in all the claim petitions the insured/owner has to satisfy the award, but the offending vehicle was duly insured, thus, the insurer has to indemnify and, therefore, the insurer is to be saddled with the liability. 8. In the given circumstances, the appeals, being FAO Nos.54, 55, 56 and 200 of 2014 are allowed and the awards, impugned in the said appeals, are modified by saddling the insurer with the liability. FAO No. 238 of 2014 9. In this appeal, the claimants have questioned the award dated 11th March, 2014, passed by the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, Camp at Reckong Peo, in MAC Petition No.0100037 of 2009, (also subject matter of FAO No.200 of 2014, supra), on the ground of adequacy of compensation. In the claim petition the claimants had claimed compensation to the tune of Rs.15,00,000/-, as per the break-ups given therein. 10. The Tribunal, after making the assessment, held that though the claimants were entitled to Rs.31,93,600/- as total compensation, however, since they had claimed compensation only to the tune of Rs.15,00,000/- in the claim petition, therefore, restricted the award to the tune of Rs.15,00,000/-. 11. The moot question in the instant appeal is whether the Tribunal or the Appellate Court is/are within its/their jurisdiction to enhance the compensation without there being any prayer for the same? 12. To answer the said question, first of all, I would like to refer to Section 168(1) of the MV Act hereunder:- "168. Award of the Claims Tribunal. 11. The moot question in the instant appeal is whether the Tribunal or the Appellate Court is/are within its/their jurisdiction to enhance the compensation without there being any prayer for the same? 12. To answer the said question, first of all, I would like to refer to Section 168(1) of the MV Act hereunder:- "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:- ......................" 13. The mandate of Section 168(1) (supra) is that it is incumbent upon the Tribunals to award just compensation in claim petitions filed under Sections 166 of the MV Act. 14. 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. 15. 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. It is apt to reproduce paras 41 to 45 of the judgment herein:- "41. Before I determine what is the just and adequate compensation in the case in hand, it is also a moot question – whether the Appellate Court can enhance compensation, even though, not prayed by the medium of appeal or by cross-objection. 42. It is apt to reproduce paras 41 to 45 of the judgment herein:- "41. Before I determine what is the just and adequate compensation in the case in hand, it is also a moot question – whether the Appellate Court can enhance compensation, even though, not prayed by the medium of appeal or by cross-objection. 42. The Motor Vehicles Act, 1988 (hereinafter referred to as “the MV Act”) has gone through a sea change in the year 1994 and sub-section (6) has been added to Section 158 of the MV Act, which reads as under:- “158. Production of certain certificates, licence and permit in certain cases. – ................................... (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.” In terms of this provision, the report is to be submitted to the Tribunal having the jurisdiction. 43. Also, an amendment has been carried out in Section 166 of the MV Act and subsection (4) stands added. It is apt to reproduce sub-section (4) of Section 166 of the MV Act herein: “166. Application for compensation. – ....................................... (4) 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.” It mandates that a Tribunal has to treat report under Section 158(6) (supra) of the MV Act as a claim petition. Thus, there is no handicap or restriction in granting compensation in excess of the amount claimed by the claimant in the claim petition. 44. Keeping in view the purpose and object of the said provisions read with the mandate of Section 173 of the MV Act, I am of the view that the Appellate Court is exercising the same powers, which the Tribunal is having. 44. Keeping in view the purpose and object of the said provisions read with the mandate of Section 173 of the MV Act, I am of the view that the Appellate Court is exercising the same powers, which the Tribunal is having. Also, sub-clause (2) of Section 107 of the Code of Civil Procedure (hereinafter referred to as “the CPC”) mandates that the Appellate Court is having all those powers, which the trial Court is having. It is apt to reproduce Section 107 sub-clause (2) of the CPC herein:- “107. Powers of Appellate Court. – ................................. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein.” 45. Thus, in the given circumstances, the Tribunal as well as the Appellate Court is within the jurisdiction to enhance the compensation." 16. 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. 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. 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”. 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.” 17. 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. There is no other limitation or restriction on its power for awarding just compensation.” 17. 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. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation ( AIR 1998 SC 3191 )." 18. 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. 19. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation ( AIR 1998 SC 3191 )." 18. 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. 19. 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. 20. 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. 21. The Apex Court in another case titled as Ningamma & another versus United India Insurance Co. Ltd., reported in 2009 AIR SCW 4916, held that the Court is duty bound to award just compensation to which the claimants are entitled to. It is profitable to reproduce para 25 of the judgment herein: “25. Undoubtedly, Section 166 of the MVA deals with “Just Compensation” and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting “Just Compensation” in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award “Just Compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award “Just Compensation” irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court.” 22. The Apex Court in a latest judgment in a case titled Sanobanu Nazirbhai Mirza & others versus Ahmedabad Municipal Transport Service, reported in 2013 AIR SCW 5800, has specifically held that compensation can be enhanced while deciding the appeal, even though prayer for enhancing the compensation is not made by way of appeal or cross appeal/objections. It is apt to reproduce para 9 of the judgment herein: “9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants.” 23. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants.” 23. The Apex Court in a latest judgment in the case titled as Smt. Savita versus Bindar Singh & others, reported in 2014 AIR SCW 2053, has laid down the same proposition of law and held that the Tribunal as well as the Appellate Court can ignore the claim made by the claimant in the application for compensation. It is apt to reproduce para 6 of the judgment herein: "6. After considering the decisions of this Court in Santosh Devi as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation." 24. Viewed thus, the Tribunal/Appellate Court is within its power to award compensation more than what is claimed or even if no appeal is filed, the appellate Court can enhance the compensation. 25. The claimants have claimed in the claim petition that the deceased was a Junior Basic Teacher and was earning Rs.15,000/- per month. However, the Tribunal has taken the income of the deceased as Rs.14,600/- per month. 25. The claimants have claimed in the claim petition that the deceased was a Junior Basic Teacher and was earning Rs.15,000/- per month. However, the Tribunal has taken the income of the deceased as Rs.14,600/- per month. In view of the law laid down by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 312, 1/5th of the total monthly income i.e. Rs.2900/- was to be deducted. Thus, after deducting 1/5th, the monthly loss of source of dependency to the claimants can be said to be Rs.11,700/-, say Rs.12,000/-. 26. Admittedly, the age of the deceased was 38 years at the time of accident. Thus, as per the 2nd Schedule attached to the MV Act read with the law laid down by the Apex Court in Sarla Verma’s supra and the latest judgment of the Apex Court in Munna Lal Jain & anr. vs. Vipin Kumar Sharma & Ors., 2015 AIR SCW 3105, the Tribunal has rightly applied the multiplier of 15. 27. Having said so, the claimants are held entitled to compensation to the tune of Rs.12000 x 15 x 12 = 21,60,000/- under the head ‘loss of source of dependency’. In addition to it, the claimants are also held entitled to Rs.10,000/- each i.e. Rs.40,000/- in all, under the heads ‘loss of love and affection’, ‘loss of estate’, ‘loss of consortium’ and ‘funeral expenses’. 28. Thus, in all, the claimants are held entitled to Rs.21,60,000 + Rs.40,000/- = Rs.22,00,000/-, with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization. 29. The insurer is directed to deposit the entire amount alongwith interest up-to-date within a period of eight weeks from today and on deposit, the Registry is directed to release the same in favour of the claimants strictly in terms of the impugned award. 30. Apart from it, the statutory amount deposited by the insured in FAO Nos.54, 55, 56 and 200 of 2014 is also awarded to the claimants, alongwith interest accrued thereon, as cost of the litigation throughout. The said amount be also released in favour of the claimants forthwith, after proper identification. 31. 30. Apart from it, the statutory amount deposited by the insured in FAO Nos.54, 55, 56 and 200 of 2014 is also awarded to the claimants, alongwith interest accrued thereon, as cost of the litigation throughout. The said amount be also released in favour of the claimants forthwith, after proper identification. 31. All the appeals stand disposed of accordingly.