At, High Court of Himachal Pradesh
By, THE HONOURABLE CHIEF JUSTICE MR. MANSOOR AHMAD MIR
For the Appellant: K.R. Thakur, Advocate. For the Respondents: R1, Ajay Chauha, R2, Narender Sharma, Advocates.
1. This appeal is directed against the judgment and award, dated 05.09.2008, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, Himachal Pradesh (for short "the Tribunal") in M.A.C. No. 165S/ 2 of 2005, titled as Smt. Mani Devi v. Sh. Baldev and another, whereby compensation to the tune of L3,06,800/with interest @ 9% per annum from the date of the claim petition till its realisation was awarded in favour of the claimant-injured, against the respondent and the insurer came to be saddled with liability (for short "the impugned award").
2. The owner-cum-driver and the insurer of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. The claimant-injured has questioned the impugned award only on the ground of adequacy of compensation.
4. Thus, the only question to be determined in this appeal is whether the amount awarded is inadequate?
5. On the last date of hearing, learned counsel for the insurer was asked to seek instructions to settle the claim by paying Rs.10,00,000/in lumpsum. Today, he stated, on instructions, that the appeal be decided on merits.
6. The claimant-injured, at the age of 34 years, became the victim of a motor vehicular accident, which was caused by the owner-cum-driver, namely Shri Baldev, while driving Mahindra Marshal Taxi, bearing registration No. HP01A3178, rashly and negligently on 22.05.2004, at about 3.15 P.M., near Kotlu, P.S. Karsog. FIR No. 71/2004 was lodged under Sections 279, 337 and 338 of the Indian Penal Code (for short "IPC"). She has claimed compensation as per the breakups given in the claim petition.
7. The claim petition was resisted by the respondents in the claim petition on the grounds taken in the respective memo of objections.
8. Following issues came to be framed by the Tribunal on 25.04.2007 :
"1. Whether the petitioner sustained the injuries due to the rash and negligent driving of Jeep No. HP01A3178 by the respondent No. 1 as alleged? OPP
2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled to the compensation as claimed. If so, its quantum and from whom? OP Parties
3. Whether the petition is not maintainable as alleged? OPR2
4. Whether the vehicle was being plied in contravention of the terms and conditions of the insurance policy. If so, its effect? OPR2
5. Whether the respondent No. 1 was not holding and
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possessing a valid and effective driving licence to drive the vehicle at the desired time. If so, its effect? OPR26. Whether the petitioner is estopped from filing the petition by her act and conduct? OPR27. Whether the petitioner was a gratuitous passenger. If so, its effect? OPR28. Relief."9. Parties have led evidence.Issue No. 1:10. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimant-injured has proved that the driver of the offending vehicle had driven the same rashly and negligent at the time of the accident and caused the accident. The findings returned on this issue are not in dispute because the driver-cum-owner and the insurer have not questioned the same. Accordingly, the findings returned by the Tribunal on issue No. 1 is upheld.Issues No. 3 to 7:11. The findings returned by the Tribunal on issues No. 3 to 7 are also not in dispute for the simple reason that it was for the insurer to discharge the onus, has not pressed into service all these issues before the Tribunal. The insurer has also not filed any appeal or cross-objections, thus, the findings returned on issues No. 3 to 7 are upheld.Issue No. 2 :12. It is pleaded that the claimant-injured was 34 years of age at the time of accident, but the Tribunal has taken her age as 39 years, which finding is not legally correct. As per copy of the Pariwar Register, Ext. PW2/ A, the age of the deceased was 39 years on the date of the issuance of the said certificate, i.e. on 14.11.2006. Meaning thereby, at the time of accident, the age of the claimant-injured was 37 years.13. The Tribunal has rightly applied the multiplier of '14' in view of the Second Schedule appended with the Motor Vehicles Act, 1988 (for short "MV Act") read with the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others v. Madan Mohan and another, reported in 2013 AIR SCW 3120 : (AIR 2013 SC (Supp) 474).14. The Tribunal has also fallen in an error in assessing the income of the claimant-injured at Rs.3,000/per month, which is legally and factually incorrect.15. Admittedly, the claimant-injured, who was a house wife, was maintaining her house, the family and was the backbone of the matrimonial home and the entire family. She has suffered permanent disability to the extent of 45%, as given in the disability certificate, Ext. PW4/ A. Not only the claimant-injured is suffering and has to suffer throughout, but it has shattered her physical frame and affected her life. The house wife is the master of the house and foundation of the home. She makes the home as a heaven, but the injury has turned the tasks.16. I deem it proper to record herein that the claimant-injured hails from rural area, is a rustic villager, is not knowing the basic purpose of legislation, thus, the amount cannot be restricted as claimed in view of the law laid down by the Apex Court.17. The moot question is whether the Tribunal or Appellate Court is/are within its/their jurisdiction to enhance the compensation without the prayer being made for the same?18. 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:......................"19. The mandate of Section 168 (1) (supra) is to 'determine the amount of compensation which appears to it to be just'.20. 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.21. This Court in a case titled as United India Insurance Company Ltd. v. Smt. Kulwant Kaur, reported in Latest HLJ 2014 (HP) 174 : (2014 AAC 1879 (HP), 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. The Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act") has gone through a sea change in the year 1994 and subsection (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 subsection (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 subsection (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. 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. "22. The same view was taken by the Apex Court in the case of Nagappa v. 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. 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 subsection (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 subsection (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 subsection (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under subsection (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."23. In the case titled as State of Haryana and another v. 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 Section 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)."24. The same view has been taken by the Apex Court in a case titled as The Divisional Controller, K.S.R.T.C. v. Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172.25. The Apex Court in a case titled as A.P.S.R.T.C. & another v. M. Ramadevi & others, reported in 2008 AIR SCW 1213 : (AIR 2008 SC 1221), 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.26. The Apex Court in the case titled as Oriental Insurance Co. Ltd. v. Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717 : (AIR 2009 SC (Supp) 1619), 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 : (AIR 2003 SC 674); Devki Nandan Bangur and Ors. v. State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. v. Mohd. Jameel & Anr., (2009) 2 SCC 225 : (AIR 2009 SC 1219); National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (AIR 2007 SC 1563); Punjab State Electricity Board Ltd. v. Zora Singh and Others (2005) 6 SCC 776 : (AIR 2006 SC 1820); A.P. SRTC v. STAT andState of Haryana & Ors. v. Shakuntla Devi, 2008 (13) SCALE 621 : (AIR 2009 SC 869).27. The Apex Court in another case titled as Ningamma & another v. United India Insurance Co. Ltd., reported in AIR SCW 4916 : (AIR 2009 SC 3056), 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. 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."28. The Apex Court in a latest judgment in a case titled Sanobanu Nazirbhai Mirza & others v. Ahmedabad Municipal Transport Service, reported in 2013 AIR SCW 5800 : (AIR 2013 SC (Civ) 2673), 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."29. The Apex Court in a latest judgment in the case titled as Smt. Savita v. Bindar Singh & others, reported in 2014 AIR SCW 2053 : (AIR 2014 SC (Supp) 275), 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 (AIR 2012 SC 2185 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."30. Having said so, the Tribunal/Appellate Court is within its powers to award the just compensation.31. It is beaten law of land that while assessing compensation in injury cases, guess work is to be made and compensation is to be awarded under two heads : pecuniary damages and non-pecuniary damages.32. My this view is fortified by the judgments made by the Apex Court in the cases titled as R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, Arvind Kumar Mishra v. New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, Ramchandrappa v. The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787 : (AIR 2011 SC 2951), and Kavita v. Deepak and others, reported in 2012 AIR SCW 4771 : (AIR 2012 SC 2893).33. Admittedly, the claimant-injured has suffered 45% disability, which is permanent in nature, has shattered her physical frame and virtually is dependent on her family. Thus, it can be safely said that the Tribunal has fallen in an error in assessing the loss of income.34. If a person has to engage a labourer or a helper as domestic help or a cook, the minimum amount, which he/she will have to pay, is not less than Rs.10,000/- per month. However, by exercising guess work, it can be safely said that the claimant-injured would have been contributing towards her family not less than Rs. 6,000/- per month.35. Applying the multiplier of '14', the claimant-injured is held entitled to Rs. 6,000/x 12 x 14 = Rs.10,08,000/under the head 'loss of income'.36. Learned counsel for the claimant-injured stated at the Bar that the claimant-injured has spent a huge amount on her treatment and has also to spend a considerable amount on her future treatment. Further stated that the claimant-injured, being a rustic villager, has lost the medical bills qua the expenses incurred on her medical treatment.37. Thus, keeping in view the facts of the case read with the judgments (supra), by exercising guess work, Rs.50,000/- is awarded under the head 'medical treatment already undergone' and Rs.50,000/- under the head 'future treatment'.38. Admittedly, the 45% permanent disability suffered by the claimant-injured has made her life miserable and dependent on her family throughout her life. She had undergone a lot of pain & sufferings and has also to undergo the same in future. Thus, I deem it proper to award Rs. 2,00,000/- under the head 'pain and sufferings suffered' and Rs.2,00,000/- under the head 'pain and sufferings in future'.39. The claimant-injured has lost her amenities of life due to the permanent disability suffered by her, is not in a position to manage her matrimonial home, to do the domestic work. Thus, Rs.1,00,000/- is awarded under the head 'loss of amenities of life'.40. The claimant-injured was taken to hospital at Karsog, was referred to IGMC Shimla, remained admitted in hospital for a considerable time, would have been attended upon by an attendant and would have spent some amount on transportation charges. Accordingly, Rs. 20,000/- is awarded to the claimant-injured under the head 'attendant charges' and Rs. 10,000/- under the head 'transportation charges'.41. Viewed thus, the claimant-injured is held entitled to the enhanced compensation to the tune of Rs.10,08,000/+ Rs. 50,000/+ Rs. 50,000/+ L2,00,000/+ Rs. 2,00,000/+ Rs.1,00,000/+ Rs.20,000/+ Rs.10,000/= Rs.16,38,000/with interest @ 7.5% per annum from today till its realization.42. Having said so, the appeal is allowed and the impugned award is modified, as indicated herein above.43. The enhanced amount be deposited before this Registry within eight weeks. On deposition of the amount, the same be released in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award after proper identification.44. Send down the record after placing copy of the judgment on Tribunal's file.Appeal allowed.
"2015 AAC 3044,"