THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA No. 1451 OF 2006 AND 4046 OF 2012 DATED: 21-01-2014 Between:
M/s. United India Insurance Co. Ltd., rep., by its Branch Manager, Pavani Estates, Khairatabad, Hyderabad And B. Jyothi and four others … Appellants … Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA No. 1451 OF 2006 AND 4046 OF 2012
COMMON JUDGMENT: (per the Hon’ble Sri Justice Ashutosh Mohunta)
As both the appeals arise out of the common Award, they were heard together and are being disposed of by this common judgment.
These appeals arise out the Award dated 24-02-2006 passed in O.P No. 2016 of 2003 by the learned Chairman, Motor Accident Claims Tribunal-cum-V Additional Metropolitan Sessions Judge (Mahila Court)-cum-XIX Additional Chief Judge, Hyderabad.
M.A.C.M.A No. 1451 of 2006 is preferred by the Insurance Company being aggrieved by the quantum of compensation, whereas M.A.C.M.A No. 4046 of 2012 is preferred by the claimants being not satisfied with the amount of compensation.
For the sake of convenience, the parties herein are referred to as ‘claimants’ and ‘Insurance Company’.
The aforesaid claim petition was filed by the claimants claiming a compensation of Rs.20,00,000/- on account of death of the deceased Jhansi. Claimant Nos.1 to 3 are the children and claimant No.4 is the husband of the deceased Jhansi. It has been averred in the claim petition that on 14-10-2002 at about 3.40 PM the said Jhansi along with claimant Nos.1 and 4 was going to Narsaraopet from Hyderabad in a Ambassador car bearing No.
AP-9V-4919 and when the car reached near Gudur Village at Sai Krishna Rice Mill, the driver of the car drove the vehicle in rash and negligent manner with high speed and having lost control over the vehicle, dashed the same to the tree on the left side of the road, due to which, Jhansi and claimant Nos.1 and 4 sustained serious injuries. Jhansi was shifted to Yashoda Hospital, Malakpet wherein she succumbed to the injures while undergoing treatment on the same day at 7.30 PM.
The Police Miryalguda (RB) registered a case in Crime No. 87 of 2002 against the driver of the car under Section 337 IPC which was later altered to Section 304-A IPC.
According to the claimants, the deceased was aged 49 years at the time of accident and she was hale and healthy working as Senior TAO-III with CTA in Bharat Sanchar Nigam Limited (BSNL), Hyderabad earning a sum of Rs.15,000/- per month which she used to contribute for the maintenance of the family. Due to the sudden death of the deceased, claimant Nos.1 to 3 lost motherly love and affection and claimant No.4 had lost his life partner. The owner of the ambassador car and the Insurance Company are jointly and severally liable to pay the compensation claimed by them.
The owner of the car remained ex parte. The Insurance Company filed its counter denying the material allegations averred in the petition. It was stated that the offending vehicle was not insured with it as on the date of the accident and the manner in which the accident is alleged to have taken place was also denied stating that the car was not driven by its driver in rash and negligent manner. The age, avocation and income of the deceased were also denied. It was also contended that the amount of compensation claimed by the claimants is highly excessive and exorbitant.
On the strength of the above pleadings of the parties, the Tribunal framed the following issues:
1. Whether the deceased Smt. Jhansi died in a motor accident that took place on 14-10-12002 due to rash and negligent driving of the driver of the Ambassador car bearing No.AP-9V-4919?
2. Whether the petitioners are entitled for any compensation, if so to what amount and from whom?
3. To what relief?
In support of their claim, PW 1 was examined and Exs.A-1 to A- 12 were got marked on behalf of the claimants. On behalf of the Insurance Company none were examined but insurance policy was marked as Ex.B-1.
The Tribunal after going through the evidence and the material available on record on issue No.1 held that the accident occurred only due to the rash and negligent driving of the driver of the car. The Tribunal also held that the claimants are entitled to a total compensation of Rs.11,79,000/- and accordingly, an award was passed for the said amount together with proportionate costs and interest at 7% per annum from the date of the petition till the date of realisation.
The learned counsel for the claimants contends that the compensation awarded by the Tribunal is on lower side as the Tribunal has not granted any amount towards the future prospects of the deceased. The Tribunal has also granted less amount towards loss of consortium and funeral expenses. He further contends that the Tribunal has taken the contribution of the deceased to the family on lower side.
The learned Standing Counsel for the Insurance Company contended that the claimants are not entitled to claim any compensation and claimant No.4 who is the husband of the deceased is entitled to claim only loss of consortium.
Admittedly the Tribunal thoroughly considering the evidence on record, recorded a finding that the accident in this case occurred only due to the rash and negligent driving of the car by its driver. This Court having due regard to the evidence brought on record does not find any valid and legitimate reason to interfere with the same. Further, it seems from the Award that except making an averment that there was no negligence on the part of the driver of the lorry, no legitimate attempt was made to prove the same.
Before considering the question as to what should be the amount of compensation to be awarded to the appellants, it is necessary to consider the contention raised by the appellant that the claimants are not entitled to claim compensation.
The contention of the Insurance Company that claimant No.4/husband as legal representative of the deceased cannot maintain the application for compensation, as he was not dependent on the earnings of the deceased and that claimant Nos.1 to 3 are to be maintained by the father/claimant No.4, therefore, they are also not entitled for compensation cannot be accepted.
It cannot be said that the husband and the children who are the legal representatives of the deceased have not suffered on account of death of the deceased. The deceased was one of the earning members of the family. It is impossible to assume that the deceased was not contributing her earnings to the common pool which was utilized for the benefit of the family. In Gujarat State Road Transport [1] Corporation v. Ramanbhai Prabhatbhai , the Supreme Court held as under:
“Amongst the High courts in India there is a cleavage in the opinion as regards the maintainability of action under S.110-A of the Act by persons other than the wife, husband, parent and child of the person who dies on account of a motor vehicle accident. All theses cases are considered by the High Court of Gujarat in its decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj 195). The first set of cases are those which are referred to in paragraph 5 of the above decision which lay down that every claim application for compensation arising out of a fatal accident would be governed by the substantive provisions in Ss. 1-A and 2 of the 1855 Act and no dependent of the deceased other than the wife, husband, parent or child would be entitled to commence an action for damages against the tortfeasors. Amongst these cases are P.B. Kader v. Thatchamma, AIR 1970 Ker 241 and Dewan Hari Chand v. Municipal Corpn. Of Delhi, AIR 1973 Delhi 67. The second group of cases are those referred to in Para 6 of the decision of the Gujarat High court. They are Perumal v. Ellusamy Reddiar, 1974 Acc CJ 182 (Mad) and the Vanguard Insurance Co. Ltd. v. Hanumantha Rao, 1975 Acc CJ 244 (Andh Pra). These cases lay down that while the compensation payable under S.1-A of the Fatal Accidents Act, 1855 is restricted to the relatives of the deceased names therein the compensation payable under S.2 thereof may be awarded in favour of the representatives of the deceased who are entitled to succeed to the estate of the deceased. The third group of cases are those referred to in para 7 of the judgment of the Gujarat High Court. They are Mohmammed Habibullah v. K. Seethammal, AIR 1967 Mad 123; Veena Kumari Kohli v. Punjab Roadways, 1967 Acc CJ 297 (Punj) and Smt. Ishwari Devi Malik v. Union of India, AIR 1969 Delhi 183 which take the view that a claim for compensation arising out of the use of a motor vehicle would be exclusively governed by the provisions of Ss. 110 to 110-F of the Act and bears no connection to claims under the 1855 Act and the Claims Tribunal need not follow the principles laid down under the latter Act. Having considered all the three sets of decisions referred to above, Ahmadi, J, who wrote the judgment in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj 195) came to the conclusion that an application made by the nephews of the deceased who died on account of a motor vehicle accident was clearly maintainable under S.110-A of the Act.
We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realization of compensation and that is provided by S. 110-A of 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in S.110-B of the Act to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by S. 110B of the Act amongst the legal representatives for whose benefit an application may be filed under S.110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family, brothers sisters and brothers’ children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhai, (AIR 1977 Guj 195) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under S. 110-A of the Act if he is a legal representative of the deceased.”
In the circumstances, in view of the law laid down by the Supreme Court in case of Gujarat State Road Transport Corporation (1 supra), we hold that the claimants as the legal representatives of the deceased are entitled to claim compensation.
The next issue to be considered is with regard to the quantum of compensation. The claimants have claimed compensation of Rs.20,00,000/-. The claimants have claimed that the deceased was working as Senior TAO-III with CTA in Bharat Sanchar Nigam Limited (BSNL), Hyderabad earning a sum of Rs.15,000/- per month which she used to contribute for the maintenance of the family. In proof of the same, they filed Ex.A-12 salary certificate of the deceased which reveals that the deceased as on the date of her death was getting Rs.13,629/- per month. No contra evidence was brought on record to dispute the same. Taking into consideration Ex.A-12, we take the earnings of the deceased to be Rs.13,000/- per month or Rs.1,56,000/- per annum. Since no amount of compensation was awarded by the Tribunal towards the future prospects of the deceased, following the
[2]
judgment of the Supreme Court in Rajesh v. Rajbir Singh , 30% has to be added towards future prospects i.e., Rs.46,800/- giving a total of Rs.2,02,800/- per annum. Since there are four dependants, one-fourth is to be deducted towards the personal and living expenses, then contribution of the deceased to the claimants comes to Rs.1,52,000/-.
In view of the judgment of the Supreme Court in Sarla Verma &
[3]
others Vs. Delhi Transport Corporation , as the deceased was 49
years of age as on the date of accident, therefore multiplier of ‘13’ would be applicable in the present case and hence, the total loss of dependency comes to Rs.19,77,300/-. Added to the aforesaid amount, Rs.1,00,000/- has to be awarded towards loss of consortium to the husband, another sum of Rs.1,00,000/- towards loss of love and affection to the children and also a sum of Rs.25,000/- for funeral and transportation charges. Thus, the appellants – claimants are entitled to total compensation of Rs.22,02,300/-.
Even though the claimants have claimed only Rs.20,00,000/-, they are entitled to the aforestated amount since Section 168 empowers the Claims Tribunal to ‘make an award determining the amount of compensation which appears to it to be just’. 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 (see Nagappa v. Gurudayal Singh[4]). Further, in Rajesh’s case (1 supra), the Supreme Court held that the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. Similar view was also taken by the Supreme Court in Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service.[5] For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. As observed by the Supreme Court, the function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under Sub-section (4) to Section 166, even report submitted to the Claims Tribunal under Sub- section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition.
In the result, M.A.C.M.A No. 1451 of 2006 filed by the Insurance Company is dismissed, whereas M.A.C.M.A No. 4046 of 2012 filed by the claimants is allowed awarding a sum of Rs.22,02,300/- together with proportionate costs and interest at 7% per annum from the date of petition till the date of realization, which shall be shared by them in equal proportion. The share of the minor children shall be kept in fixed deposit in any nationalized bank till they attain majority. Claimant No.4 is entitled to withdraw the annual interest accrued on the aforesaid amounts to meet the expenses of the minor children.
Inasmuch as more compensation than what was claimed by the claimants has been awarded to them, they are directed to pay the requisite Court fee for the enhanced amount.
Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J 20th January, 2014 ks 1 AIR 1987 SC 1690
[2] 2013 ACJ 1403
[3] III (2009) ACC 708 (SC)
[4] 2003 ACJ 12 (SC)
[5] 2013 ACJ 2733