Himachal Pradesh High Court
National Insurance Co. Ltd vs Sharda Devi And Others on 8 January, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 247 of 2009.
Judgment reserved on 1.1.2016.
Date of decision: 08.1.2016.
.
National Insurance Co. Ltd. ....Appellant Versus Sharda Devi and others ...Respondents Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief justice.
of Whether approved for reporting ?1 Yes.
For the appellant: Ms.Sunita Sharma, Advocate. For the respondents:
rt Nemo for respondent No.1.
Mr. Vijay Chaudhary, Advocate, for respondents No. 2 to 4.
Mr. Nimish Gupta, Advocate, for respondent No.5.
_________________________________________________ Mansoor Ahmad Mir, Chief Justice.
This appeal is directed against the judgment and award dated 28.2.2009, made by the Motor Accident Claims Tribunal Chamba, District Chamba, H.P. in MAC No. 11 of 2008, titled Sharda Devi and others versus National Insurance Company and another, for short "the Tribunal", whereby compensation to the tune of Rs.3,18,800/- alongwith interest @ 7.5% per annum was awarded in favour of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -2-
the claimants and insurer was saddled with the liability, hereinafter referred to as "the impugned award", for short.
.
2. The claimants had filed claim petition before the Tribunal, seeking compensation to the tune of Rs.8 lacs, as per the break-ups given in the claim petition, on account of death of Shri Shashi Singh, of husband of claimant No. 1 and son of claimants No. 2 and 3, who was employed as driver by respondent No. rt 2, namely, Kamal Kumar contractor with his JCB No. 4D-JCB 51622, on monthly wages of Rs.3300/-, while driving the said JCB near petrol pump Banikhet, Tehsil Dalhousie District Chamba on 10.12.2007 at 9 30 p.m. The claimants have also given details in the claim petition how they are entitled to compensation.
3. Both the respondents have contested and resisted the claim petition and following issues came to be framed.
"(i). Whether on 10.12.2007 at 9 30 PM near petrol pump, Banikhet, Shri Shasi Singh, husband of petitioner no. 1 and son of petitioner no.2 and 3 died in a vehicular mishap involving vehicle 4D-JCB-51622, as alleged? OPP.::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -3-
(ii) If issue no. 1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OP Parties.
(iii) Whether the petition has been filed by the petitioners in collusion with the driver and owner of the vehicle, as alleged? OPR1.
.
(iv) Whether the driver of the offending vehicle was not holding a valid and effective diving licence at the time of accident, as alleged? OPR-1.
(v) Whether the offending vehicle was being driven in contravention of terms and conditions of the Insurance Policy, as alleged? OPR.
(vi) Whether the petition is not maintainable in of the present form, as alleged? OPR1.
(vii) Relief.
4. rt Claimants have examined MHC Gurdhayan Singh as PW1 and Nirmala Devi claimant No.2 herself stepped into the witness-box as PW2. The claimants have also led documentary evidence, details of which have been given in the impugned award.
5. On the other hand, respondents have not led any evidence. Thus, the evidence led by the claimants has remained un-rebutted.
6. Claimants and owner of the vehicle have not questioned the impugned award on any count, thus it has attained the finality so far it relates to them.
::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -4-7. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved issue No.1 and respondents have failed to .
prove issues No. 3 to 6. After making the assessment, the Tribunal awarded the compensation to the tune of Rs.3,18,800/-, as stated supra, in favour of the claimants and against the owner and saddled the of insurer/appellant herein with the entire liability.
8. The cause of death of the deceased is not rt in dispute. Thus, the Tribunal has rightly recorded the findings on issue No.1 and are accordingly upheld.
9. Learned counsel for the appellant argued that the claim petition was not maintainable. The argument is not tenable for the following reasons.
10. The Driver was in the employment of Kamal Kumar contractor, who died in the use of a motor vehicle. The claimants are entitled to compensation in terms of the mandate of Workmen's Compensation Act. The legal representatives can file claim petition in terms of Section 167 of the Motor Vehicles Act, for short "the Act" in order to get enhanced compensation. The option lies with the legal ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -5- representatives of the deceased. It is apt to reproduce Section 167 of the Act herein.
"167. Option regarding claims for .
compensation in certain cases.
Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen's of Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions rt of Chapter X claim such compensation under either of those Acts but not under both."
11. As per the mandate of law supra, the legal representatives of driver had right of election/option.
They had two remedies available with them; one to file claim petition before the Tribunal and other to file claim under the Workmen's Compensation Act. They have chosen to knock the door of the Tribunal under the Motor Vehicles Act. Thus, the claim petition was maintainable.
12. This Court in FAO No. 363 of 2006 titled Smt. Rajo Devi versus Sh. Madan Lal Sharma and others decided on 2.5.2014, FAO No. 530 of 2009 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -6- titled Oriental Insurance Co. Ltd. versus Smt. Kamlo and others decided 25.7.2014 and FAO No. 227 of 2006 titled National Insurance Co. Ltd. versus .
Nishan Surya and another decided 3.1.2014 has laid down the similar principles of law.
13. The second argument advanced by the learned counsel for the appellant is that the JCB of machine is not a motor vehicle in the eyes of law. The argument though attractive, is devoid of any force for rt the following reasons.
14. The JCB machine itself is a motor vehicle and in Ext. R1 it is recorded that risk of one JCB helper engaged for the works of the JCB and other works in District Chamba is covered.
15. Section 2 (28) of the Act defines definition of a motor vehicle and while going through the said definition, it appears that JCB machine is a motor vehicle. It is apt to reproduce Section 2 (28) of the Act herein.
"2 (28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -7- chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle .
having less than four wheels fitted with engine capacity of not exceeding 4 [twenty-five cubic centimetres];"
16. It is also profitable to reproduce the definition of JCB given in Oxford dictionary at page of
695.
"A powerful motor vehicle with a long arm for digging rt and moving earth."
17. The above quoted definition does disclose that the JCB is a powerful motor vehicle with a long arm for digging earth. In terms of the said definition, the JCB is a motor vehicle.
18. The same question arose before the Madhya Pradesh High Court in case titled New India Assurance Co. Ltd. Indore versus Balu Banjara and others reported in 2008 (2) MPHT 252. It is apt to reproduce relevant portion of para 8 of the said judgment herein.
"8. ...... ......In the present case the JCB machine is running on the roads and is being used for construction of the roads. Only because it is not ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -8- being registered by the Regional Transport Authority as motor vehicle and no registration number is being given, it cannot be said that the JCB was not a motor under the provisions of the .
Motor Vehicles Act. In the facts and circumstances of the case, this Court is of the view that the learned Tribunal has rightly held that the JCB machine is motor for the purpose of Motor Vehicles Act."
of
19. The apex Court in Bose Abraham versus State of Kerala and another reported in AIR 2001 SC rt 835 has discussed Section 2 (28) of the Act and held that the excavators and road rollers are motor vehicles.
It is apt to reproduce para 7 of the said judgment herein.
"7. We hold that the excavators and road rollers are motor vehicles for the purpose of the Motor Vehicles Act and they are registered under that Act. The High Court has noticed the admission of the appellants that the excavators and road rollers are suitable for use on roads. However, the contention put forth now is that they are intended for use in the enclosed premises. Merely because a motor vehicle is put to a specific use such as being confined to an enclosed premises, will not render the same to be a different kind of vehicle. Hence, in our view, the High Court has correctly decided the matter and the impugned order does not call for any interference by us. However, the ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP -9- question whether any motor vehicle has entered into a local area to attract tax under the Entry Tax Act or any concession given under the local Sales Tax Act will have to be dealt with in the course of .
assessment arising under the Entry Tax Act".
20. The apex Court in another judgment rendered in case titled Nagashetty versus United of India Insurance Co. Ltd and others, reported in AIR 2001 SC 3356, held that the trailer attached with the rt tractor is a motor vehicle.
21. The apex Court in another judgment in case M/s Natwar Parikh and Co. Ltd. versus State of Karnataka and others reported in AIR 2005 SC 3428 discussed Sections 2 (28), 2 (14) and 2 (47) of the Act and held that tractor-trailer is a transport vehicle under Section 2 (47) of the Act. It is apposite to reproduce para 24 of the said judgment herein.
"24. Section 2(28) is a comprehensive definition of the words "motor vehicle". Although, a "trailer" is separately defined under Sec. 2(46) to mean any vehicle drawn or intended to be drawn by a motor vehicle, it is still included into the definition of the words "motor vehicle" under Sec. 2(28). Similarly, the word "tractor" is defined in Sec. 2(44) to mean a motor vehicle which is not itself constructed to ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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carry any load. Therefore, the words "motor vehicle" have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words "motor vehicle" in the broadest .
possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles, etc. A combined reading of the aforestated definitions under Sec. 2, reproduced hereinabove, shows that the definition of "motor vehicle" includes any mechanically of propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn rt by a motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a "goods carriage" under Sec. 2(14), and consequently, a "transport vehicle" under Sec. 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under Sec. 2(14) as a "goods carriage" and consequently, it falls under the definition of "transport vehicle" under Sec. 2(47) of the M.V. Act, 1988."
22. The Gujarat High Court in case National Insurance Co. Ltd. v. Baby Anjali & Ors., reported in ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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AIR 2008 Gujarat 12, has discussed the definition in terms of Sections 2 (18) and 2 (19) of the Act and held that the trailer attached to the tractor falls within the .
definition of motor Vehicle.
23. The question arose before the Gujarat High Court in case titled State of Gujarat versus Danabhai Bhulabhai and Ors., reported in 1991 (2) of G.L.H. 404, whether the bulldozer is a motor vehicle and it was held that the same is a motor vehicle. It is rt appropriate to reproduce relevant portion of para 11 of the said judgment herein.
"11. .........Therefore, going by the definition of the expression 'Motor Vehicle' and keeping in mind the evidence on record, the submission that bulldozer cannot be said to be a motor vehicle must be said to have been rightly rejected by the Tribunal."
24. In case Kusum and others versus Kamal Kumar Soni and another reported in 2009 ACJ 1613, the Madhya Pradesh High Court held that the power-
tiller is a motor vehicle.
25. The apex Court in a latest judgment in case titled Chairman, Rajasthan State Road Transport Corporation & Ors versus Smt. Santosh & Ors.
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reported in 2013 AIR SCW 2791 has discussed the object of the Motor Vehicles Act and also Sections 2 (28) and 2(44). It is apt to reproduce relevant portion .
of para 22 of the said judgment herein.
"22. The Tractor is a machine run by diesel or petrol. It is a self- propelled vehicle for hauling other vehicles. It is used for different purposes. It is also used for agricultural purposes, along with of other implements; such as harrows, ploughs, tillers, blade-terracers, seed- drills etc. It is a self- propelled vehicle capable of pulling alone as rt defined under the definition of Motor Vehicles. It does not fall within any of the exclusions as defined under the Act. Thus, it is a Motor Vehicle in terms of the definition under Section 2(28) of the Act, which definition has been adopted by the Act.
So, even without referring to the definition of the Tractor, if the definition of the Motor Vehicle as given under the Act is strictly construed, even then the Tractor is a Motor Vehicle as defined under the Act. The Tractor is not only used for agricultural purposes but is also used for other purposes as stated above. Therefore, it cannot be said that the Tractor in its popular meaning is only used for agricultural purposes and, thus, is not a Motor Vehicle as defined under the Act. The Tractor is a Motor Vehicle is also proved by this definition under Section 2(44) of the Act. Different types of Motor Vehicles have been defined under the provisions of the Act, and the Tractor is one of them. Thus, considering the question from any ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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angle, the Tractor is a Motor Vehicle as defined under the Act."
26. Viewed thus, it is held that the JCB is a .
motor vehicle.
27. Before I will deal with issue No. 2, I deem it proper to deal with issues No. 3 to 5 at the first instance. It was for the insurer to discharge the onus, of has not led any evidence. It is beaten law of the land that if a party fails to discharge the onus, issues have rt to be decided against the said party. Thus, the Tribunal has rightly decided all these issues in favour of the claimants and against the insurer/appellant.
Accordingly, the findings returned by the Tribunal on these issues are upheld.
28. Issue No.2. It is specifically averred in the claim petition that the monthly income of the deceased was Rs.3300/- per month which is not disputed by the owner in the reply. Even no evidence has been led to dislodge the same. The Tribunal has rightly held that the income of the deceased was Rs.3300/- per month. However, the Tribunal has ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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wrongly deducted 1/3rd deduction and wrongly applied the multiplier.
29. Admittedly, the age of the deceased was .
27 years. 1/4th was to be deducted as per the ratio laid down in Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104. Thus, it is held that the claimants have of lost source of dependency to the tune of Rs.2500/- per month. rt
30. Keeping in view the age of the deceased read with Munna Lal Jain and another versus Vipin Kumar Sharma and others reported in 2015 AIR SCW 3105, the multiplier is to be applied according to the age of the deceased. The multiplier of "16' was applicable, keeping in view Sarla Verma's case supra and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120, but the Tribunal has applied the multiplier of "12". Thus multiplier of "16" is applied in this case.
31. Viewed thus, the claimants have lost source of dependency to the tune of Rs.2500x12x16= Rs.4,80,000/-.
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32. I also hold the claimants entitled to compensation under the four heads as under:
(i) loss of love and affection: Rs.10,000/-
.
(ii) Loss of estate : Rs.10,000/-
(iii) Funeral expenses : Rs.10,000/-
(iv) Loss of consortium : Rs.10,000/-
Total Rs.40,000/-
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33. Having said so, the amount awarded is enhanced to Rs.4,80,000/-+Rs.40,000/- =Rs.5,20,000-.
rt The rate of interest awarded by the Tribunal is upheld.
34. The moot question is-whether the amount awarded can be enhanced without filing objections or without questioning by the claimants?
35. 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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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:
......................"
.
36. The mandate of Section 168 (1) (supra) is to 'determine the amount of compensation which appears to it to be just'.
37. Keeping in view the object of granting of of compensation and the legislature's wisdom read with the amendment made in the MV Act in the year 1994, it rt 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.
38. 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.
39. The same view was taken by the Apex Court in the case of Nagappa versus Gurudayal Singh and others, reported in AIR 2003 Supreme ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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 of 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 rt 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 sub- section (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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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."
40. In the case titled as State of Haryana and another versus Jasbir Kaur and others, reported of in AIR 2003 Supreme Court 3696, the Apex Court has discussed the expression 'just'. It is apt to rt 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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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)."
41. 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 of another, reported in AIR 2003 Supreme Court 4172.
42. rtThe 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.
43. 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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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 of Shakuntla Devi, 2008 (13) SCALE 621.
44. The Apex Court in another case titled as rt Ningamma & another versus United India Insurance Co. Ltd., reported in 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. 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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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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."
.
45. 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 of that compensation can be enhanced while deciding the appeal, even though prayer for enhancing the rt 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 ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP
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date of filing the claim petition till the date payment is made to the appellants."
46. 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 of claim made by the claimant in the application for compensation. It is apt to reproduce para 6 of the rt 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."
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47. Having said so, the Tribunal/Appellate Court is within its powers to award the just compensation.
.
48. Similar principles of law have been laid down by this Court in FAO No. 663 of 2008 titled Mani Devi versus Sh. Baldev and another decided on 7.8.2015, FAO No. 224 of 2008 titled Hem Ram and of another versus Krishan Ram and another decided on 29.5.2015, alongwith connected matters, FAO rt No.226 of 2006 titled United India Insurance Co. Ltd.
versus Kulwant Kaur and another decided on 8.3.2014 and FAO No.524 of 2007 titled Jagdish versus Rahul Bus services and others decided on 15.5.2015.
49. Now the question is who is to be saddled with the liability. The factum of insurance is not in dispute. Insurance policy Ext. R-1 is on record, which does disclose that the JCB machine was insured and the risk of operator/driver and helper was covered. The Tribunal has rightly recorded the findings and made the discussion in para 8 of the impugned award, needs no interference.
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50. In view of the foregoing discussion and reasoning, the insurer/appellant is liable to satisfy the amount of compensation to the tune of Rs.5,20,000/-, .
with interest as awarded by the Tribunal.
51. The insurer/appellant is directed to deposit the amount in the Registry within six weeks from today.
52. The Registry to release the amount, of including the enhanced amount, in favour of the claimants, through payees' cheque account or by rt depositing the same in their bank accounts, strictly as per the terms and conditions contained in the impugned award.
53. Accordingly, the impugned award is modified and compensation amount is enhanced, as indicated hereinabove, and the appeal is disposed of.
54. Send down the records forthwith, after placing a copy of this judgment.
(Mansoor Ahmad Mir) January 08, 2016. Chief Justice. (cm Thakur) ::: Downloaded on - 15/04/2017 19:42:09 :::HCHP