Andhra HC (Pre-Telangana)
M/S. United India Insurance Company ... vs Mittameedi Ramalakshmi And Others on 12 February, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.Nos.3779 of 2011 and BATCH 12-02-2014 M/s. United India Insurance Company Limited, represented by its Divisional Manager, Office at Room Nos.7 & 8, 1st Floor, Sreedevi Complex, Tilak Road,Tirupathi, Chittoor District, A.P...... APPELLANT Mittameedi Ramalakshmi and others......RESPONDENTS Counsel for the appellant: Sri E.Venugopal Reddy Counsel for the respondents: Sri V R Reddy Kovvuri <Gist: >Head Note: ?Cases referred: 1. 2004 (SCC) 517 2. 1996 ACJ 1178 3. 2007 7 SCC 445 4. 1965(1) A11. E.R-563 5. 1963(2) All.E.R-432 6. 1969(1)A11.E.R -555 7. 1995 ACJ 366(SC) 8. (2001)8 SCC 197=AIR2001(SC) 3218 9. 2011(8) Scale 240 10. 2005(6) SCC 236 11. 2004(2)SCC-297 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.Nos.3779,3839,3856,3869,3876,3918,3877,3898,3914, M.A.C.M.A.(SR)No.36149 of 2011 and 1813,1798,1806 and 24 of 2012 COMMON JUDGMENT:
M/s United India Insurance Company Limited, Tirupati, represented by its Divisional Manager, who was 2nd respondent to the claim petition along with the 1st respondent(G.Narasimha Rao)-owner of the crime bus bearing No.AP27-T-7118 of claim petition, preferred these fourteen appeals by impugning the respective fourteen Awards/Orders in (i).O.P.13 of 2010(MACMA No.3779 of 2011), (ii).452 of 2008(MACMA(SR) No.36149 of 2011), (iii).525 of 2008(MACMA No.1813 of 2012),
(iv).538 of 2008(MACMA No.1798 of 2012), (v).526 of 2008(MACMA No.1806 of 2012), (vi).480 of 2008(MACMA No.3839 of 2011), (vii).481 of 2008(MACMA No.3856 of 2011), (viii).527 of 2008(MACMA No.3869 of 2011), (ix).34 of 2009(MACMA No.3876 of 2011), (x).441 of 2008(MACMA No.3918 of 2011), (xi).447 of 2008(MACMA No.3877 of 2011), (xii).529 of 2008(MACMA No.3898 of 2011), (xiii).528 of 2008(MACMA No.3914 of 2011) and (xiv).33 of 2009(MACMA No.24 of 2012)filed by the deceased/injured for respective claims on the quantum as well as on fixing of joint liability against the Insurer and insured.
The contentions with common grounds in all the appeals by showing the owner of the vehicle as co-respondent along with the claimants as other respondents are that, the Tribunal gravely erred in fixing joint liability instead of exonerating if not subject to pay and recover as held by the Apex Court in National Insurance Company Limtied Vs. Challa Upendra Rao1 from violation of the permit limited to Nellore district as per (Exhibits of X series-X3/X2) in plying the bus in the neighbouring Kadapa district with no valid permit thereby if not to say no permit at all for such plying in the place of accident; besides overloading against the permit & seating capacity of 54+1 with 73+1 as per FIR & charge sheet; apart from the factum of the driver of the bus had no valid driving licence and the driving licence particulars furnished are proved not correct from the evidence on behalf of the insurer of RTA employee by name Smt. Padmavathy with reference to X series exhibited driving licence; that even the owner as R.W.3 like in MVOP No.538 of 2008 covered by MACMA No.1798 of 2012) came into witness box in some of the cases and deposed as if he got valid permit and driver got valid licence not produced particulars, which is suffice to say there is no licence and the alleged licence is nothing but fake to exonerate the Insurer. It is also contended that the quantum of compensation respectively in all the 14 matters are as excessive to reduce.
2. In the course of hearing, Sri E.Venugopal Reddy, the learned standing counsel for the appellant-Insurer in all the appeals reiterated said contentions in each of the respective cases. The owner of the vehicle failed to attend in all the appeals, hence taken as heard to decide on merits and heard the counsel for respective respondents/claimants.
3. It is the contention of the counsel for the respective claimants in all the appeals that, compensation awarded by the Tribunal is just and there is no proof of the driver not possessed valid driving licence required much less by summoning the driver as court witness, that there is violation of permit as special permit covering area of the place of accident to travel was there produced and exhibited and there is nothing to show overloading contributed to the accident by placing reliance on Apex Court expression in B.V.Nagaraju Vs. Oriental Insurance Company Limited2 much less to exonerate the Insurer from the liability to indemnify once policy covers the risk and thereby sought for dismissal of the appeals. Perused the material on record in all the 14 appeals. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
4. Now the common points that arise for consideration for common disposal in all the 14 appeals are:-
1) Whether the Insurer/appellant is liable to be exonerated from indemnifying the owner of the crime vehicle for the respective claims and if so the joint liability fixed by the Tribunal to indemnify is unsustainable and requires interference by this Court while sitting in appeal for so called violations of no valid permit, overloading against the permit and with no driving licence to the driver and also as to the quantum of compensation is excessive and requires interference to reduce in arriving just compensation?
2) To what result?
5.Point-I:
The fact that the Insured bus on the fateful day of the accident returning from Penchalakona of Nellore District to Railway Kodur of Kadapa District via Chitvel-Rapur road with as many as 73 passengers besides the driver out of the bus seating capacity of 54+1 and the respective deceased/injured of the 14 claim petitions are among said passengers of the bus which met with the accident on that day i.e., on 11.09.2008 at about 08.30 PM due to rash and negligent driving of the driver of the bus having dashed against road side hillock i.e., hit left side hill and turned turtle towards right side and fell down into the valley that was resulted in some persons were died and some of the passengers sustained injuries, not in dispute. So also the time of the accident at about 08.30 PM and the place of the accident was on the road between Chitvel-Rapur Ghat road from Penchalakona-Railway kodur. It is also proved from the evidence of the claimants and one Padmavati, employee of RTA Office and one Gopal, employee of the Insurer with reference to FIR, charge sheet, MVA report, permit and special permit respectively marked in all cases to say in MVOP.No.538 of 2008 as PWs.1 and 2, RWs.1 and 2, Exs.X1 to X3 and Exs.A1 to A3 with similar marking in other cases with different serial number of exhibits. In some of the cases including in O.P.No.538 of 2008 the owner of the bus came to the witness bogs as one of the witnesses on behalf of the respondents in saying orally the driver got license and he got valid permit and also special permit in the route covered by the place of the accident though from his side not produced any documents.
6. Now coming to the dispute of whether there is any permit to ply at the place of accident of the crime bus and whether there is any driving license to the driver and whether the overloading contributed to the accident from any or all these claims are for exorbitant sums concerned; before coming to the quantum on the factual matrix of each case, as this is the common contention in all claims to contest the concerned to avoid confusion, the evidence placed in M.V.O.P.No.538 of 2008 covered by MACMA.No.1798 of 2012 for easy reference is taken up for discussion as arrayed of the parties, witnesses and documents therein as some documents exhibits in A series or B series and witnesses in P series or R series or X series respectively different though some witnesses examined in some other contest in each of all cases.
7. If from the O.P.No.538 of 2008 Exs.X1 and X2 are perused, the Ex.X1 is the Form 24 B register of the crime bus bearing No.AP 27 T 6118 shown in the name of owner one K Suresh of Ongole originally registered and transferred on 10.08.2007 in the name of the present owner as on the date of the accident by name G. Narasimha Rao of Nellore and it shows the vehicle was under Hire Purchase Agreement with Shriram City Union Finance Limited, Nellore with Engine and Chassis number, make class and nature of the vehicle as contract carrier and with seating capacity of 55(54+1) and Unladen weight 5080, G.V.W.(C) is 15224 kilograms and the tax paid valid till 30.09.2008 and insured with United India Insurance Company (appellant in all appeals) showing the name of the owner G. Narasimha Rao valid up to 03.12.2008 to say as on the date of the accident on 11.09.2008 there was a policy covering the risk. Coming to Ex.X2 which is a special permit issued by the RTA, Nellore, bearing SP.No.AP026/1600/PTOV/2008 for the crime vehicle bearing No.AP 27 T 6118 with seating capacity of 55 owned by said G. Narasimha Rao of Nellore and column No.5 of it shows "for journey from Nellore to Railway Kodur empty, Railway Kodur, Chitvel, Rapur, Penchalakona and the return journey from Penchalakona, Rapur, Chitvel, Railway Kodur, Railway Kodur to Nellore empty", which special permit is valid from 10.09.2008 00.00 hours to 11.09.2008 midnight 12.00 to say for the 2 days within which and within the permit period the accident occurred on 11.09.2008 at 08.30 PM. It is to say that there is a valid permit for plying of the vehicle from Nellore to Penchalakona and vice-versa through Rapur and Chitvel and it is at Chitvel the so called accident occurred and the Ex.A1 FIR herein speaks Crime No.42 of 2008 under Section 337, 338 and 304-A IPC against the driver of the vehicle on 12.09.2008 of Chitvel P.S. Kadapa District, and the accident occurred on 11.09.2008 at about 08.30 PM and information received at about 01.30 AM on 12.09.2008 (within 5 hours) and the place of the accident from Chitvel Police Station is 12 KM on ghat road between Chitvel and Rapur of the crime bus is AP 27 T 6118 due to rash and negligent driving of the driver of the vehicle. Thus from the FIR coupled with Exs.X1 and X2 referred supra, there is a valid permit to ply even at the place of the accident within Kadapa District covered by X2 of O.P.No.538 of 2008.
8. It is pursuant to the FIR, the police after investigation filed charge sheet against the driver by name Chillakuru Ramu @ Rami Reddy @ Ram Mohan Reddy of Nellore Town being driver of the crime bus bearing No.AP 27 T 6118 and the charge sheet speaks about the eye witnesses to the occurrence i.e., LWs.2 to 55 are the inmates of the crime vehicle and 56 to 77 witness are relatives of 13 persons died noted as deceased 1 to 13 with inquest report and autopsy respectively of the dead bodies and from MV report of MVI, Rajampet, collected and it mentions that about 70 persons were attending tonsure ceremony of niece of LW.1- U. Tripura, aged 3 years left to Kodur from house of Supriya the oldest sister of LW.1 to Lord Penchala Narasimha Swamy Temple, Penchalakona and after completion of the tonsure ceremony, the bus left from Penchalakona at about 06.30 PM on 11.09.2008 to go to Kodur and in the transit at ghat road due to rash and negligent driving of the driver of the crime bus the accident occurred, when the bus dashed against the left side hill and then fell into the right side deep valley and the girl Tripura and 12 others were died on the spot and others received bleeding injuries and the driver of the bus absconded having caused the accident. There is no separate offence under Sections 134(a)&(b) read with 187 of the M.V. Act registered against the driver by mentioning in the charge sheet by saying he was not having any driving license to drive the passenger transport bus. The charge sheet marked as Ex.A4 and the MV Report marked as Ex.A5 of the O.P.No.538 of 2008 speaks the place and time of the accident of the crime bus by the driver at Chitvel-Rapur road and the vehicle fallen into deep valley and the bus got fitness certificate as on the date of the accident, as the fitness certificate was to expire only by 07.04.2009 and the vehicle has been turtled and lying on left side wheels, right side body damaged, wind screen broken, the vehicle is not fit for road test, the break system however found intact with no failure of breaks for the accident occurred, steering condition and tyres are also good and permit particulars not produced so also the insurance particulars, but for showing the name of the owner G. Narasimha Rao the name and address of the owner are produced, the name and address of the driver not mentioned, DL(driving licence) particulars not produced and 13 persons were died and many a number of passengers were injured. This MV report also shows that there is valid permit to the crime bus as on the date of the accident but for to say, driving license and policy particulars so also the permit particulars are not furnished. Ex.B1 photostat copy of permit filed by the respondents marked through RW.1 shows the same was issued under Section 174(2) AP MVA Rules 1989 Form PC that there is permit for the crime bus with seating capacity of passengers of 55(54+1) in all and to ply on all roads except prohibited roads in the Nellore District subject to condition to obtain the special permits and the permit valid from 10.08.2007 to 09.08.2012. Thus, a combined reading of Ex.B1 with X2 referred supra together with X1 B-Register of the crime bus besides general permit to ply within the Nellore District from 10.08.2007 to 09.08.2012, the special permit is there to ply between Nellore to Penchalakona via Railway Kodur of Kadapa District, Chitvel, Rapur and vice-versa. The contention of the insurer when referred to the Ex.X2 permit relating to Ex.B1 permit as if no such permit is found from Nellore to Penchalakona and not extending with any special permit to the place of the accident within Kadapa District is thereby untenable and outcome of improper verification of the record. Thus the decision of Challa Upendra Rao (Supra) relied on by Insurer has no application to the facts from what is discussed supra.
9. Coming to the policy whether covers risk or not, Ex.B2 policy undisputedly in force covers the risk up to 55 person with seating capacity 54+1 in all and the claimants even for 13 deaths and other injured are within the limit. Thus any need to apply the thumb rule of considering the highest claims to fix liability for the maximum limit of seating capacity on Insurer and rest on the owner to appropriation as per the Apex Court express in National Insurance Company Limited Vs. Anjana Shyam3 does not arise. When such is the case in this Anjana Shyam Supra and B.V. Nagaraju (supra), it was held that carrying persons beyond the seating capacity of the vehicle with permit is even breach of in terms of policy, it is not so fundamental a breach to exonerate the Insurer as the overloading not contributed to the accident but for as proved from the facts discussed supra due to sheer rash and negligent driving of the driver of the vehicle which results in the bus dashed to a road side hillock, turned turtle and fallen into deep valley therefrom.
10. There remains whether the driver got any valid driving license and how far the same is proved. There is nothing to show any notice served to produce the driving license on the owner or the driver much less summoning the driver to examine regarding it by Insurer. In chief-examination affidavit of owner, he stated that the driver got valid driving license and there is valid permit and there is policy which covers risk to indemnify by the insurer to the claimants and he has thereby not personally liable to pay any compensation to any of the claimants. In his cross-examination, he deposed that the police filed charge sheet pursuant to the FIR and a criminal case against the driver of the crime bus is pending and as per Ex.B1 permit the passengers capacity of the bus is 55 (54+1) including the driver and he is pretending that he does not know as if whether 74 persons were traveling in fact it is discussed supra 73+1 in all traveling against seating capacity 54+1. It is suggested that there is violation of policy and permit conditions by allowing with overloading of passengers to exonerate the insurer and that is the only suggestion and there is no suggestion of driver has no valid driving license. Then coming to the evidence of RW.2 of O.P.No.538 of 2008 Ch. Padmavati, Senior Assistant of RTA, Nellore, who attended as per the summons with the B-Register and permit of the vehicle covered by Exs.X1 and X2 the same was discussed supra and what she deposed is that the seating capacity of the vehicle is 55(54+1) passengers as per the permit and there is no cross-examination by either side. Coming to the Assistant Manager of the insurer-K.S. Gopal examined as RW.2 in O.P.No.538 of 2008 in chief affidavit what he stated was the policy covers the risk as on the date of the accident for seating capacity of 54+1 which includes even driver and cleaner of the vehicle. He further deposed that, there is violation of permit from allowing about 70 passengers, which is already discussed supra of that breach is not fundamental to exonerate the insurer. He further deposed that, the bus plied to Kodur from Penchalakona without valid permit and there is violation of permit. In this regard also as discussed supra, there is valid permit as per Ex.X2 with reference to Ex.B1 to say special permit covers as on the date of the accident for the place of the accident of Kadapa District and also the specific route from Nellore to Penchalakona through Kadapa District for taking passengers from Railway Kodur through Chitvel and Rapur within which place, the accident occurred admittedly. He filed Ex.B2 policy and in the cross-examination he further deposed that the policy covers the risk for 54 passengers + driver though denied suggestion of Ex.B1 permit allows to ply as on the date of the accident within Kadapa District and there is valid permit with no any violation and the other suggestion is as if there is no overloading. Thus, from the above, there is nothing to show the driver has no valid driving license even the burden is on the insurer so to prove for not proved from above evidence. Thus, the insurer is liable to indemnify the Insured (bus owner) to the claimants third parties with joint liability as rightly concluded by the Tribunal.
11. From the above, now coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James4, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly5 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver6 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest Control (India) Private Limited7 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.
12. From the above propositions, coming to the factual matrix of each of the case to consider as to quantum of compensation awarded by the Tribunal is excessive or just and reasonable:-
(a). Coming to MACMA.No.3779 of 2011, the claimant is the injured and the claim was for Rs.8,00,000/- and the Tribunal awarded Rs.2,94,000/- @ 6% per annum from the facts that she was aged about 51 years as per Ex.A2 wound certificate for the fracture of left hand above elbow which was amputated and was treated as in-
patient for 12 days for amputation and disfiguration on 12.09.2008 and discharged on 18.09.2008 as proved by the Dr.PW.1 who treated her and the amputation was below elbow stump of the below 5cm was left and the disability shown from the medical board certificate Ex.A4 of 70% and assessed 100% disability for doing business in the name of her husband. Even taken her domestic contribution as per the expression of Latha Wadhwa Vs. State of Bihar8 a minimum is of Rs.3,000/- per month and the accident dated 11.09.2008 about 7 or 8 years thereafter with increase in the economic price index by taking at Rs.3,600/- for 70% it comes to Rs.2,520/- per month and multiplier as per Sarla Verma (Supra), it comes Rs.2,520/-x12x11(multiplier)=Rs.3,32,640/-, besides treatment, loss of earnings, attendant charges, transport charges and extra nourishment to be entitled. Thereby the claim is no way excessive of Rs.2,94,000/- but less; but for to say this Court has no power to enhance for want of cross objections.
(b). Coming to MACMA.No.3839 of 2011, the claimants are 3 in number who are 2 major sons and one married daughter of the deceased aged about 27 to 30 years to say the deceased as on the date of the accident was aged about 50 years and the Tribunal taken the age between 45-50 and adopted multiplier 13 as per Sarla Verma Supra and the earnings of the deceased even estimated at Rs.3,600/-. However, the claimants being Legal heirs though entitled to compensation are not dependants on the deceased and thereby their income also to be taken into consideration in assessing the contribution of the deceased to them to take at Rs.2,100/- per month as loss of contribution to them if 1/3rd deducted it comes to Rs.1,400/-p.m. x 12x13(multiplier)=Rs.2,18,400/-, besides that they are entitled funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- that comes to Rs.2,53,400/- rounded to Rs.2,54,000/- and what the Tribunal awarded is Rs.3,33,000/- is excessive to reduce.
(c). Coming to MACMA.No.3856 of 2011, the claimants are 6 in number who are major sons and married daughters of the deceased Chandramma aged about 61 years as per Ex.A2-PM report as per Sarla Verma (Supra) up to 60 years multiplier is 9, thus to take 8 multiplier rather than 7 taken by the Tribunal. If the earnings of the deceased even taken at Rs.3,600/-, however, the claimants are not dependants on the deceased and thereby their income also to be taken into consideration in assessing the contribution of the deceased to them to take at Rs.2,000/- per month as loss of contribution to them if 1/5th deducted it comes to Rs.1,600x12x8(multiplier)=Rs.1,53,600/-, besides that they are entitled to funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- that comes to Rs.1,88,600/- rounded to Rs.1,89,000/- and what the Tribunal awarded is Rs.2,76,780/- is excessive to reduce.
(d). Coming to MACMA.No.3869 of 2011, the claimants are 3 in number who are the husband and 2 minor children of the deceased Chaitanya aged about 27 years as per the claimants but from Ex.A.2 PM report and from the age of the husband and first child, the Tribunal taken about 31 years and multiplier adopted as per Sarla Verma (Supra) is 16. If the earnings of the deceased even taken at Rs.3,600/- if 1/3rd deducted it comes to Rs.2,400x12x16(multiplier)=Rs.4,60,800/-, besides that the 1st claimant is entitled to loss of consortium Rs.1,00,000/-, funeral expenses Rs.25,000/-, loss of estate minimum Rs.5,000/- as per Rajesh (Supra) that can be entitled it comes to Rs.5,90,800/- and what the Tribunal awarded is Rs.4,20,000/- is no way excessive but less; but for to say this Court has no power to enhance for want of cross objections.
(e). Coming to MACMA.No.3876 of 2011, the claimants are 5 in number who are the husband, major sons and married daughter of the deceased Subashanamma aged about 56 years as arrived by the Tribunal with reference to Ex.A.2 PM Report and the multiplier applicable as per Sarla Verma Supra is 9. If the earnings of the deceased even taken at Rs.3,600/- it is for the 1st claimant-husband and others are not dependents on the deceased if 1/2 deducted towards personal expenses it comes to Rs.1,800x12x9(multiplier)=Rs.1,94,400/-, besides that the 1st claimant is entitled to loss of consortium for the advanced age Rs.50,000/- though in Rajesh Supra it was awarded Rs.1,00,000/-, funeral expenses Rs.25,000/-, loss of estate minimum Rs.5,000/- it comes to Rs.2,74,400/- and what the Tribunal awarded is Rs.2,80,000/- is no way excessive to interfere and reduce from the little difference.
(f). Coming to MACMA.No.3918 of 2011, the claimants who are the parents of the deceased girl the only daughter, student of 3rd class aged about 8 years and the Tribunal by taking the age of the mother among the parents below 30 years by adopting multiplier 18 by taken the earning capacity as per the schedule of the Act of Rs.15,000/- per annum with 1/3rd deduction arrived at Rs.2,50,000/-. From the age only the prospective earnings and uncertainty of life in young age that to be considered and even from other age multiplier 17 not 18 that applies. Even taken for a child in womb is also entitled no fault liability of Rs.50,000/- besides Rs.20,000/- per annum and for 8 years, it comes to Rs.2,10,000/- and loss of estate, funeral expenses and love and affection from death of only issue if taken Rs.50,000/- in all comes Rs.2,60,000/- what the Tribunal awarded is Rs.2,50,000/- is no way excessive but less; but for to day this Court has no power to enhance for want of cross objections.
(g). Coming to MACMA.No.3877 of 2011, the claimant is no other than the major son of the deceased Vellamma aged about 45 years as taken by the Tribunal from Ex.A.2 PM report and multiplier applicable is 13 as per Sarla Verma (Supra). If the earnings of the deceased even estimated at Rs.3,600/-. However, the claimant is not dependant on the deceased being the major son though only clause 1 legal heir suffered from the death of the mother, care and guidance and domestic contribution and the contribution of the deceased to him to assess if taken therefrom her contribution at Rs.2,000/-p.m. if half deducted, it comes to Rs.1,000x12x13(multiplier) = Rs.1,56,000/-, besides that they are entitled to funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- that comes to Rs.1,91,000/- and what the Tribunal awarded is Rs.3,28,000/- is excessive to reduce.
(h). Coming to MACMA.No.3898 of 2011, the claimants who are the husband and minor sons of the deceased Niraja aged about 36 years as taken by the Tribunal with reference to PM report by applying multiplier 15 as per Sarla Verma Supra. If the earnings of the deceased even taken at Rs.3,600/- if 1/3rd deducted it comes to Rs.2,400x12x15(multiplier)= Rs.4,32,000/-, besides that the 1st claimant is entitled to loss of consortium Rs.50,000/-, funeral expenses Rs.25,000/-, loss of estate minimum Rs.5,000/- it comes to Rs.5,12,000/- and what the Tribunal awarded is Rs.3,96,000/- is no way excessive but less, but for to say this Court has no power to enhance for want of cross objections.
(i). Coming to MACMA.No.3914 of 2011, the claimants are 5 in number who are the husband, majors sons and married daughters of the deceased Iswaramma aged about 56 years as arrived by the Tribunal with reference to Ex.A.2 PM Report and the multiplier applicable as per Sarla Verma (Supra) is 9. If the earnings of the deceased even taken at Rs.3,600/- and it is for the 1st claimant-husband and others are not dependents on the deceased if 1/2 deducted towards personal expenses, it comes to Rs.1,800x12x9 (multiplier)=Rs.1,94,400/-, besides that the 1st claimant is entitled to loss of consortium for the advanced age Rs.50,000/- though in Rajesh (Supra) it was awarded Rs.1,00,000/-, funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- it comes to Rs.2,79,400/- rounded to Rs.2,80,000/-and what the Tribunal awarded is Rs.2,80,000/- is no way excessive.
(j). Coming to MACMA(SR).No.36149 of 2011, the claimants who are the parents of the deceased girl U. Tripura, aged about 3 years and the Tribunal awarded compensation of Rs.2,50,000/- by taking the age of the mother about 25 years by adopting multiplier 18 instead of 17 as per Sarla Verma (Supra) with estimation of earnings of deceased at Rs.15,000/- per annum minimum. In fact, the age of the child at the early age is without uncertainty in life and uncertainty in estimation of future settlement to be taken into consideration in fixing the quantum and from the fact of even child in womb entitled to compensation of minimum Rs.50,000/- within the no fault liability and for the child aged 3 years if Rs.20,000/- per annum taken with proportionate increase it comes Rs.1,10,000/-(Rs.50,000/-+ Rs.60,000/-), and loss of estate, funeral expenses and love and affection to the parents from the kid even taken at Rs.50,000/- in all comes Rs.1,60,000/- what the Tribunal awarded is Rs.2,50,000/- is excessive to reduce.
(k). Coming to MACMA.No.1813 of 2012, the claimants are 3 in number who are the husband and 2 majors sons of the deceased K.Bhagyavathy aged about 56 years as arrived by the Tribunal with reference to Ex.A.2 PM Report and the multiplier applicable as per Sarla Verma Supra is 9. If the earnings of the deceased even taken at Rs.3,600/- it is for the 1st claimant-husband and others are not dependents on the deceased if 1/2 deducted towards personal expenses it comes to Rs.1,800x12x9(multiplier)= Rs.1,94,400/-, besides that the 1st claimant is entitled to loss of consortium for the advanced age Rs.50,000/- though in Rajesh (Supra) it was awarded Rs.1,00,000/-, funeral expenses Rs.25,000/-, loss of estate minimum Rs.5,000/- it comes to Rs.2,74,400/- and what the Tribunal awarded is Rs.2,80,000/- is no way excessive to interfere and reduce from the little difference.
(l). Coming to MACMA.No.1798 of 2012, the claimants who are the husband, major son and married daughter of the deceased aged about 65 years as arrived by the Tribunal with reference to Ex.A.2 PM Report and the multiplier applicable as per Sarla Verma Supra is 5. If the earnings of the deceased even taken at Rs.3,600/- it is for the 1st claimant-husband and others are not dependents on the deceased if 1/2 deducted towards personal expenses it comes to Rs.1,800x12x5=Rs.1,08,000/-, besides that the 1st claimant is entitled to loss of consortium for the advanced age Rs.25,000/-, funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- it comes to Rs.1,68,000/- and what the Tribunal awarded is Rs.1,56,000/- is no way excessive but less, but for to say this Court has no power to enhance for want of cross objections.
(m). Coming to MACMA.No.1806 of 2012, the claimants who are the husband and major son of the deceased N.Nagarathnamma aged nearly 50 years as arrived by the Tribunal with reference to Ex.A.2 PM Report and the multiplier applicable as per Sarla Verma Supra is 9. If the earnings of the deceased even taken at Rs.3,600/- it is for the 1st claimant-husband and others are not dependents on the deceased if 1/2 deducted towards personal expenses it comes to Rs.1,800x12x9(multiplier)=Rs.1,94,400/-, besides that the 1st claimant is entitled to loss of consortium for the advanced age Rs.25,000/-, funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- it comes to Rs.2,54,400/- and what the Tribunal awarded is Rs.2,52,000/- is no way excessive to interfere from the little difference.
(n). Coming to MACMA.No.24 of 2012, the claimants who are major sons and married daughters of the deceased O.Rathnamma aged about 56 years as taken by the Tribunal with reference to Ex.A.2 PM report and the multiplier applicable as per Sarla Verma (Supra) is 9 and the earnings of the deceased even estimated at Rs.3,600/-. Since none of them are dependents on the deceased, but for to say they suffered from the death of their mother, advice and domestic contribution also. While so, when the claimants are being legal heirs even entitled to compensation are not dependants on the deceased and thereby their income also to be taken into consideration in assessing the contribution of the deceased to them to take at Rs.2,100/- per month as loss of contribution to them if 1/3rd deducted it comes to Rs.1,400x12x9(multiplier)=Rs.1,51,200/-, besides that they are entitled to funeral expenses Rs.25,000/-, loss of estate maximum Rs.10,000/- that comes to Rs.1,86,200/- and what the Tribunal awarded is Rs.1,82,000/- is no way excessive to interfere.
13. Though the tribunal as well as the Court sitting in appeal against it has to award just compensation from the propositions supra for no cross appeal or cross objections by claimants but for to allow even within the power of Order XLI Rule 33 of CPC to defend for the quantum awarded by the Tribunal on one or the other ground, this Court has no power much less the claimants as respondents to the appeal of the insurer to claim for more compensation as per the expression in Ranjana Prakash Vs. Divisional Manager9.
14. Now coming to the rate of interest awarded at 6%/7.5%, in fact under Section 171 of the Act the interest to be awarded is reasonable, no doubt discretionary however the bank rate of interest is criteria as the guidance to fix as laid down by the Apex Court in TN Transport Corporation Vs. Rajapriya10 that from steep fall in the bank lending rate, interest under Section 171 of the Act at 7.5% is just and reasonable. The latest three Judge bench expression in Rajesh (supra) also substantiates the same from 7.5% p.a. awarded thereon. Thereby what the Tribunal awarded at 6% is unreasonable. Though it is the contention of the insurer that without cross appeal, the Court has no power to enhance the rate of interest the same is untenable as the Apex Court in DDA Vs. Joginder S. Monga11 categorically held that the appellate Court also exercise the discretionary power to award interest at reasonable rate. Thus, to modify to reasonable rate of interest no cross-objections or counter claim necessary but from the facts and circumstances to appreciate within the power of the Court. Accordingly, Point-1 is answered.
15. In the result:-
a) MACMA No.3779 of 2011 (O.P.13 of 2010) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
b) MACMA No.3839 of 2011 (O.P.480 of 2008) is allowed in part by reducing compensation from Rs.3,32,000/- to Rs.2,54,000/- and in other respects award of the Tribunal holds good and there is no order as to costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
c) MACMA No.3856 of 2011 (O.P.481 of 2008) is allowed in part by reducing compensation from Rs.2,76,780/- to Rs.1,89,000/- and in other respects award of the Tribunal holds good and there is no order as to costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
d) MACMA No.3869 of 2011 (O.P.527 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
e) MACMA No.3876 of 2011 (O.P.34 of 2009) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
f) MACMA No.3918 of 2011 (O.P.441 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
g) MACMA No.3877 of 2011 (O.P.447 of 2008) is allowed in part by reducing compensation from Rs.3,29,000/- to Rs.1,91,000/- and in other respects award of the Tribunal holds good and there is no order as to costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
h) MACMA No.3898 of 2011 (O.P.529 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
i) MACMA No.3914 of 2011 (O.P.528 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
j) MACMA(SR)No.36149 of 2011 (O.P.452 of 2008) is allowed in part by reducing compensation from Rs.2,50,000/- to Rs.1,60,000/- and in other respects award of the Tribunal holds good and there is no order as to costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
k) MACMA No.1813 of 2012 (O.P.525 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
l) MACMA No.1798 of 2012 (O.P.538 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
m) MACMA No.1806 of 2012 (O.P.526 of 2008) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a.
n) MACMA No.24 of 2012 (O.P.33 of 2009) is dismissed with no costs, however, by modifying rate of interest from 6% p.a. to 71/2 %p.a. Consequently, miscellaneous petitions, if any pending in these appeals shall stand closed.
______________________ Dr. B. SIVA SANKARA RAO, J Date: 12.02.2014