(Prayer: Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toset aside the order dated 21st October, 2011 passed in MVOP.No. 217 of 2006 on the file of the MACT Cum Family Court cum VI Addl. District Judge, Kadapa
IA NO: 1 OF 2012(MACMAMP 2330 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased condone the delay of 28 days in filing the appeal
IA NO: 2 OF 2012(MACMAMP 2683 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased suspend the operation of the Order dated 21st October, 2011 passed in MVOP.No .2176 of 2006 on the file of the MACT cum Family Court cum VI Addl. District Judge, Kadapa.
IA NO: 3 OF 2012(MACMAMP 7691 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim stay granted in MACMA.MP.No. 2683 of 2012 in MACMA(SR).No. 16517 of 2012, dt. 24/04/2012)
Introductory:
1. Respondent No.2 / The New India Assurance Company Limited in M.V.O.P.No.217 of 2006 on the file of Motor Accidents Claims Tribunal-cum- Family Court-cum-VI Additional District Judge, Kadapa (for short “the learned MACT”) feeling dissatisfied with the quantum of compensation of Rs.7,92,000/- with interest at the rate of 6% per annum awarded by the learned MACT as against the claim made for the death of one Manjula Srinivasulu (hereinafter referred to as “the deceased”), filed the present appeal.
2. Claimant No.1 is the wife, claimant Nos.2 to 4 are the children and claimant No.5 is the father of the deceased.
3. Respondent No.1 before the learned MACT is the owner of the Lorry bearing No.AP 11 T 4543 (hereinafter referred to as “the offending vehicle”). Respondent No.2 is the insurer.
4. For the sake of convenience, the parties will be hereinafter referred to as the claimants and the respondents with reference to their status before the learned MACT.
Case of the claimants:
5(i). On 12.11.2005, while the deceased was travelling on his motor cycle bearing No.AP 04 J 8217, when it was near Shilpa Kalavedika of Madapur, the offending vehicle, driven by its driver came in a rash and negligent manner and dashed the motor cycle, causing the accident and instantaneous death of the deceased.
(ii). A case in Crime No.332 of 2005 was registered for the offences under Section 304-A IPC and a charge sheet was laid against the driver of the offending vehicle. The deceased was hale and healthy, aged 34 years and working as a Labour Contractor, earning Rs.15,000/- to Rs.20,000/- per month. Due to his sudden demise, the family became orphans. Hence, they are entitled for just and reasonable compensation. Respondent No.1 is the owner of the offending vehicle. Respondent No.2 is the insurer. Hence, both are liable to pay compensation.
6. Respondent No.1, being the owner of the offending vehicle, remained ex parte before the learned MACT.
Case of respondent No.2 / Insurance Company:
7(i). The claimants shall prove the pleaded accident, negligence of the driver of the offending vehicle, death of the deceased due to the accident, age, occupation and income of the deceased.
(ii). The negligence of the deceased in riding the motor cycle is the cause for the accident. He suddenly tried to cross the road where there was heavy traffic. Therefore, there is no liability for the owner and Insurance Company of the offending vehicle.
(iii). In any event, the Insurance Company is not liable to pay compensation.
Findings of the learned MACT:
8(i). Considering the evidence of eye-witness-P.W.2, the learned MACT found that the negligence of the driver of the offending vehicle is the cause for the accident and the defence of the Insurance Company contra cannot be appreciated, as none are examined on behalf of the respondents. Therefore, both respondents are jointly and severally liable.
(ii). The age of the deceased is “42‟ years as per Ex.A5. As per Ex.A6, the age of the deceased is “30‟ years. The 1st identity card was issued in the year 2004 and even then the age of the deceased is mentioned as 42 years in the L& T Ltd. document. Therefore, the age is accepted at “43‟ years with reference to the date of accident. For want of proof such as income tax returns etc., the income of the deceased is accepted at Rs.6,000/- per month. If 1/4th is deducted towards the personal expenditure, net income of the deceased comes to Rs.4,500/- per month and Rs.54,000/- per annum. The Multiplier applicable is
“14‟. Then the petitioners / claimants are entitled for Rs.7,56,000/- (Rs.54,000/- X 14) under the head of loss of dependency, Rs.15,000/- towards loss of estate, Rs.3,000/- towards transport charges, Rs.3,000/- towards funeral expenses and claimant No.1, being the wife, is entitled for Rs.15,000/- towards loss of consortium. In all, the claimants are entitled for Rs.7,92,000/- as compensation.
9. Heard both sides extensively. Perused the record. Thoughtful consideration is given to the arguments advanced by both sides.
Arguments in the appeal:
For the appellant / Insurance Company:
10(i). The learned MACT erred in taking the income of deceased at Rs.6,000/- per month based on identity cards vide Ex.A5 and Ex.A6 and in failing to insist upon proof such as income tax returns, thereby, disbelieving the income claimed by the claimants.
(ii). The compensation awarded by the learned MACT is excessive.
(iii). Negligence of the deceased cannot be ignored.
For the claimants:
11(i). The claimants are entitled for more compensation than what is awarded.
(ii). There is no bar to awarding more compensation in this appeal, although the claimants did not choose to file an appeal.
(iii). Requires no interference.
12. The points that arise for determination in this appeal are:
1) Whether the accident occurred due to the negligence of the driver of the offending vehicle and whether the compensation of Rs.7,92,000/- awarded by the learned MACT under the impugned order and decree dated 21.10.2011 in M.V.O.P.No.217 of 2006 is just and reasonable or whether it requires any modification, and if so, to what extent?
2) What is the result of the appeal?
Point No.1:
(i) Negligence:
Statutory Guidance:
13(i). As per Section 176 of the Motor Vehicles Act, the State Governments are entitled to make rules for the purpose of carrying effect to the provisions of the Motor Vehicles Act.
(ii). In relation to claims before the learned MACT, Rule 455 to Rule 476 of the A.P. Motor Vehicles Rules, 1989, vide Chapter No.11, provides comprehensive guidance. As per Rule 476 of the A.P. Motor Vehicles Rules, 1989, the Claims Tribunal shall proceed to award the claim based on the registration certificate of the vehicle, insurance policy, copy of FIR and Post-mortem certificate etc.
Precedential Guidance:
14. The Hon‟ble Apex Court in Bimla Devi and others vs. Himachal Road Transport Corporation(2009 (13) SCC 530), in para 15 observed as follows:
“15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.”
15. There is no evidence on the part of the Insurance Company. The driver of the offending vehicle is not examined, whereas the eye witness, P.W.2, clearly stated about the occurrence of the accident and the negligence of the driver of the offending vehicle. The findings of the learned MACT are well reasoned and no grounds are found to interfere with the findings of the learned MACT with regard to negligence.
(ii). Quantum of compensation:
Precedential guidance:
16(i). For having uniformity of practice and consistency in awarding just compensation, the Hon‟ble Apex Court provided guidelines as to adoption of multiplier depending on the age of the deceased in Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and Anr.( 2009 (6) SCC 121) and also the method of calculation as to ascertaining multiplicand, applying multiplier and calculating the compensation vide paragraph Nos.18 and 19 of the Judgment.
(ii). Further, the Hon‟ble Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and Others(2017(16) SCC 680) case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% where deceased is between 40-50 years and 15% where the deceased is between 50-60 years. Further, in respect of self-employed etc., recommended addition of income at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years and at 10% where the deceased is between 50-60 years. Further, awarding compensation under conventional heads like loss of estate, loss of consortium and funeral expenditure at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively is also provided in the same Judgment.
(iii). Further in Magma General Insurance Company Ltd. vs. Nanu Ram and Others((2018) 18 SCC 130), the Hon‟ble Apex Court observed that the compensation under the head of loss of consortium can be awarded not only to the spouse but also to the children and parents of the deceased under the heads of parental consortium and filial consortium.
Just Compensation:
17. In Rajesh and others vs. Rajbir Singh and others((2013) 9 SCC 54), the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows:
10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280)
“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, the 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.”
The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213]
11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.
18(i). As per Ex.A2-Inquest Report and Ex.A3-Post-mortem Certificate, the age of the deceased is “34‟ years. As per Ex.A5-identity card issued by L&T, the age of the deceased is mentioned as “42‟ years as on the date of its issuance for the period from 03.11.2004 to 02.12.2004. As per Ex.A6-identity card issued by JMC Products, Hyderabad, the age is mentioned as “30‟ years and the date of joining is mentioned as 15.05.2005. But, as per Ex.A5, it was valid from 03.11.2004 itself. Therefore, there is no consistency in the age mentioned in various departments i.e. Ex.A2-Inquest Report, Ex.A3-Post-mortem Certificate, Ex.A5 and Ex.A6-identity cards.
(ii). The identity cards, when compared to the official documents prepared in the routine course vide Ex.A2 and Ex.A3, cannot be given more credence, as Ex.A2-Inquest Report and Ex.A3-Post-mortem Certificate are consistent. Therefore, the age of the deceased can be taken as “34‟ years.
19(i). With regard to income of the deceased, as rightly observed, no proof is filed. The solitary oral evidence of P.W.1 is that of an interested witness. The evidence of P.W.2 has nothing to do with the income of the deceased. Therefore, the income taken by the learned MACT at Rs.6,000/- can be considered as reasonable.
(ii). However, considering the age of the deceased and the nature of employment, the learned MACT ought to have added 40% towards future prospects, whereby the income should have been considered as Rs.8,400/- per month. On deduction of 1/4th towards personal expenditure, the contribution of the deceased to the claimants comes to Rs.6,300/- per month and Rs.75,600/- per annum, which can be taken as multiplicand. The multiplier applicable to the age group of “34‟ years is “16‟. Then the contribution of the deceased to the family under the head of loss of dependency comes to Rs.12,09,600/- (Rs.75,600/- x 16).
20. Further, the claimants are entitled for compensation under the conventional heads i.e. Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- each to claimant Nos.1 to 4 towards loss of consortium viz. claimant No.1-spousal consortium and claimant Nos.2 to 4- parental consortium. Claimant No.5 died pending litigation.
21. In view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to the compensation awarded by the learned MACT is found as follows:
| Head | Compensation awarded by the learned MACT | Fixed by this Court | |
| (i) | Loss of dependency | Rs.7,56,000/- | Rs.12,09,600/- |
| (ii) | Loss of estate | Rs.15,000/- | Rs.15,000/- |
| (iii) | Loss of Consortium | Rs.15,000/-@ towards claimant No.1 | Rs.1,60,000/-@ Rs.40,000/- each to claimant Nos.1 to 4 |
| (iv) | Funeral expenses | Rs.3,000/- | Rs.15,000/- |
| (v) | Transportation | Rs.3,000/- | -Nil- |
| Total compensation awarded | Rs.7,92,000/- | Rs.13,99,600/- | |
| Interest (per annum) | 6% | 6% | |
“Granting of more compensation than what claimed, if the claimants are otherwise entitled:-
23. The legal position with regard to awarding more compensation than what claimed has been considered and settled by the Hon‟ble Supreme Court holding that there is no bar for awarding more compensation than what is claimed. For the said proposition of law, this Court finds it proper to refer the following observations of the Hon‟ble Supreme Court made in:
(1) Nagappa vs. Gurudayal Singh and Others((2003) 2 SCC 274), at para 21 of the judgment, that –
“..there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award “just” compensation, which is reasonable on the basis of evidence produced on record.”
(2) Kajal vs. Jagadish Chand and Ors.( 2020 (04) SCC 413) at para 33 of the judgment, as follows:-
“33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.”
(3) Ramla and Others vs. National Insurance Company Limited and Others((2019) 2 SCC 192) at para 5 of the judgment, as follows:-
“5. Though the claimants had claimed a total compensation of Rs 25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty-bound to award just compensation.”
24. Awarding more compensation than what is claimed and awarding compensation to the claimants even in the absence of any appeal or cross objections by the claimants require examination.
Enhancement of compensation in the absence of appeal:
25(i). Whether the compensation can be enhanced in the absence of an appeal or cross appeal by the claimant. The legal position as to powers of the Appellate Court particularly while dealing with an appeal in terms of Section 173 of the Motor Vehicles Act, 1988, where the award passed by the learned MACT under challenge at the instance of the Insurance Company (Respondents) and bar or prohibition, if any, to enhancing the quantum of compensation and awarding just and reasonable compensation, even in the absence of any appeal or cross objections was considered by the Division Bench of this Court in a case between National Insurance Company Limited vs. E. Suseelamma and others(2023 SCC Online AP 1725) in M.A.C.M.A. No.945 of 2013, while answering point No.3 framed therein vide, para 50 of the judgment, which reads as follows:
50. In our considered view, the claimant/respondents are entitled for just compensation and if on the face of the award or even in the light of the evidence on record, and keeping in view the settled legal position regarding the claimants being entitled to just compensation and it also being the statutory duty of the Court/Tribunal to award just compensation, this Court in the exercise of the appellate powers can enhance the amount of compensation even in the absence of appeal or cross-objection by the claimants.
(ii). The observations made by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others (9 supra) case are in compliance with the observations of the Hon‟ble Apex Court in Surekha and Others vs. Santosh and Others((2021) 16 SCC 467).
(iii). In Surekha and Others vs. Santosh and Others (10 supra) case, in Civil Appeal No.476 of 2020 vide judgment dated 21.01.2020, a three-Judge Bench of the Hon‟ble Supreme Court observed that “it is well settled that in the matter of Insurance claim compensation in reference to the motor accident, the Court should not take hyper technical approach and ensure that just compensation is awarded to the affected person or the claimants”. While addressing a case where the High Court has declined to grant enhancement on the ground that the claimants fail to file cross appeal above observations are made.
Point No.3:
26. In the result,
(i) The appeal is dismissed.
(ii) However, the compensation awarded by the learned MACT in M.V.O.P.No.217 of 2006 at Rs.7,92,000/- with interest at the rate of 6% per annum is modified and enhanced to Rs.13,99,600/- with interest at the rate of 6% per annum from the date of petition till the date of realization.
(iii) Claimants are liable to pay the Court fee for the enhanced part of the compensation, before the learned MACT.
(iv) Apportionment:
(a) Claimant No.1 / wife of the deceased is entitled for Rs.6,49,600/- with proportionate interest and costs.
(b) Claimant Nos.2 to 4 / children of the deceased are entitled for Rs.2,50,000/- each with proportionate interest.
(v) Respondents before the learned MACT are liable to pay the compensation. However, Respondent No.2 is liable in view of the insurance policy.
(vi) Time for payment /deposit of balance amount is two months.
(a) If the claimants furnish the bank account number within 15 days from today, the respondents shall deposit the amount directly into the bank account of the claimants and file the necessary proof before the learned MACT.
(b) If the claimants fail to comply with clause (vi)(a) above, the respondents shall deposit the amount before the learned MACT and the claimants are entitled to withdraw the amount at once on deposit.
(vii) There shall be no order as to costs, in the appeal.
27. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.