Madras High Court
The Branch Manager vs Basheer on 8 October, 2014
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.10.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.2565 of 2012 M.P.Nos.1 of 2012 and 1 of 2014 The Branch Manager, United India Insurance Co. Ltd., Tirupattur Post and Taluk, Vellore District. ... Appellant vs. 1. Basheer 2. Rishana 3. Mathiarasan ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and decree, made in M.C.O.P.No.222 of 2008, dated 09.09.2011, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), at Krishnagiri. For Appellant : Mr.T.Ravichandran For Respondents 1 & 2 : Mr.M.Selvam J U D G M E N T
As per the version of the parents, the respondents herein, that on 25.04.2007, about 7.45 Hours, when their daughter, Minor Shadhu, aged about 5 years, student of a primary school, at Singarapettai, was returning to her house, walking on the left side of the road, opposite to a Hardware shop, a Motorcycle, TVS Star DLX, bearing Registration No.TN 24 X 5235, driven in a rash and negligent manner, dashed against her from behind. She was thrown away and sustained fatal injuries. Immediately, the injured was taken to Government Hospital, Uthangarai Government Hospital, but she died on the way to the hospital. They claimed compensation of Rs.4,00,000/-.
2. The owner of the vehicle, N.Mathiarasan, 3rd respondent herein, remained ex parte.
3. M/s.United India Insurance Co. Ltd., Tirupattur, insurer of the motorcycle, died negligence, attributed against the rider. The Company submitted that the deceased suddenly crossed the road, without observing the Motorcycle and through the rider applied sudden brakes, the vehicle came in contact with the girl. Therefore, they further submitted that the accident did not occur, due to the negligent of the motorcyclist and adequate care and caution was taken, to avoid the same. For the reasons, stated supra, they disputed the liability to pay compensation.
4. Before the Claims Tribunal, father of the minor girl, examined himself as PW.1 and reiterated the manner of accident. PW.2, is stated to be an eye-witness. Ex.P1 - FIR, Ex.P2 - Post-Mortem Certificate, Ex.P3 - Death Certificate, Ex.P4 - Insurance Policy, Ex.P5 - Motor Vehicles Inspector's Report, Ex.P6 - R.C. Book have been marked on the side of the respondents/claimants. On behalf of the appellant-Insurance Company, two witnesses have been examined as RWs.1 and 2. RW.1, rider of the Motorcycle, has deposed that on the date of accident, he had learner's licence, at the time of accident. Ex.R1 - Insurance Policy, Ex.R2 - Notice issued by the Insurance Company to the owner of the vehicle, Ex.R3 - Postal Acknowledgement, Ex.R4 - Notice issued by the Insurance Company to the driver of the vehicle and Ex.R5 - Postal Acknolwedgement have been marked on the side of the appellant-Insurance Company.
5. On evaluation of pleadings and evidence, the Claims Tribunal has found that the motorcyclist was negligent in causing the accident and accordingly, quantified the compensation at Rs.3,80,000/-, with interest at the rate of 7.5% per annum.
6. Perusal of the award shows that M/s.United India Insurance Company has not taken any efforts to summon any official from the concerned Regional Transport Office, to ascertain, as to whether, the rider of the offending Motorcycle, did possess a valid and effective driving licence, to ride the Motorcycle. Except marking Ex.R2 - Notice issued by the Insurance Company to the owner of the vehicle, Ex.R3 - Postal Acknowledgement, Ex.R4 - Notice issued by the Insurance Company to the driver of the vehicle and Ex.R5 - Postal Acknolwedgement, the Company has not summoned any official from the Regional Transport Office, to prove that the rider of the vehicle, did not possess a valid and effective driving licence, at the time of accident. Ex.B1, dated 01.12.2006, is the copy of the Insurance Policy, for the offending vehicle. In the absence of any proof, the Claims Tribunal, held that the owner and insurer, are jointly and severally liable to pay compensation to the accident victims.
7. Placing reliance on the decisions in Mohd. Ayyub v. Satish Kumar Gupta reported in 2010 ACJ 420, R.K.Malik v. Kiral Pal reported in 2009 (1) TNMAC 593 (SC) and National Insurance Co. Ltd., v. Farzana reported in 2009 ACJ 2763 (Delhi), the Claims Tribunal has awarded Rs.2,25,000/-. In addition to the above, the Claims Tribunal has awarded 75,000/- towards pecuniary damages, Rs.75,000/- towards future prospects, Rs.5,000/- for transportation and Rs.5,000/- towards Funeral Expenses. Altogether, the Claims Tribunal has awarded Rs.3,80,000/- for the parents, who have lost their minor girl, aged 5 years.
8. Though Mr.T.Ravichandran, learned counsel for the appellant-Insurance Company contended that the Claims Tribunal has erred in fixing negligence on the rider of the Motorcycle, this Court is not inclined to accept the same, for the simple reason that the deceased was just a five years old child. At Paragraph 2 of the Memorandum of Grounds, filed in this appeal, the insurer has blamed the minor child, alleging contribution to the accident, to which, this Court takes strong reception. The relevant portion of the grounds of memorandum is extracted hereunder:
"In any event, the accident occurred on the part of the minor deceased also. "
Contributory negligence cannot be fixed on the minor child, aged about 5 years. Useful reference can be made to few decisions,
9. In a decision in Sundara Shetty v. Sanjeeva Rao reported in 1982 ACJ 129, Karnataka High Court has considered as to whether the children of tender years can be imputed with the contributory negligence. In Paragraph 28 of the judgment the Court has held as follows:
".............children of tender years cannot even be imputed with contributory negligence. They have not attained that age of discretion and what generally the adults can understand as rash or negligent acts cannot even be imputed to them as they are not in a position to understand the consequences of their acts. Many danagers which are open and obvious to the adults may be concealed and secret traps for the children."
10. In K.Samikkannu v. Union of India reported in I (1997) ACC 448, this Court has considered the question as to whether the contributory negligence can be applied to the minor child aged 13 years. The Court held that there is no question of applying contributory negligence for the minor child.
11. The Supreme Court in The Municipal Corporation of Greater Bombay v. Shri Laxman Iyer, reported in 2004 (1) MLJ 82 (SC), has held in Paragraph 6 is as follows:
"Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required inparticular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and the duty are strictly correlative. Negligence means either subjectively a careless stateof mind or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be said just and down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an action would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person."
12. As regards quantum of compensation, in R.K.Malik's case, the accident had occurred on 18.11.1997, when a School bus, carrying school children, after overrunning the road and breaking the railing, got drowned in Yamuna river at Wazirabad Yamuna Bridge, killing 29 children. Though all the legal representatives of the deceased filed separate claim petitions, the Tribunal therein, by its common judgment, dated 06.12.2004, has awarded a sum of Rs.1,55,000/- to the dependents of the children between the age group of 10 to 15 years and Rs.1,65,000/- between 15 to 18 years. Three of the children, viz., Kailash Rathi, Neena Jain and Jatish Sharma were less than 10 years. In the case of Kailash Rathi, compensation of Rs.1,05,000/- has been awarded and in the cases of Neena Jain and Jatish Sharma, compensation of Rs.1,30,000/- and Rs.1,31,000/- respectively have been awarded. In addition to the above, Rs.1,000/- has been awarded in the case of Jatish Sharma, as in some other cases, for loss of books. The Tribunal has awarded only Rs.5,000/- each towards funeral and last rites. While computing dependency compensation, Rs.5,000/- was deducted towards personal living expenses and applied '15' multiplier for the children below 15 years and '16' multiplier for the children between 16 and 18 years. While considering the aspect, as to how, the quantum of compensation to be arrived at, by the Claims Tribunal/Courts, the Apex Court, in R.K.Malik's case, at Paragraphs 10, 11, 12 and 14, held as follows:
"10. Undoubtedly, the compensation in law is paid to restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation.
11. In cases of motor accidents the endeavour is to put the dependents/claimants in the pre-accidental position. Compensation in cases of motor accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act.
12. However, no amount of com-pensation can restore the lost limb or the experience of pain and suffering due to loss of life. Loss of a child, life or a limb can never be eliminated or ameliorated completely. To put it simply - pecuniary damages cannot replace a human life or limb lost. Therefore, in addition to the pecuniary losses, the law recognises that payment should also be made for non-pecuniary losses on account of, loss of happiness, pain, suffering and expectancy of life, etc. The Act provides f or payment of just compensation vide Sections 166 and 168. It is left to the Courts to decide what would be just compensation in facts of a case.
14. For calculating the yearly Loss of Dependency the starting point is the wages being earned by the deceased, less his personal and living expenses. This provides a basic figure. Thereafter, effect is given to the future prospects of the deceased, inflation and general price rise that erodes value and the purchasing power of money.
To the multiplicand so calculated, multiplier is to be applied. The multiplier is decided and determined on the basis of length of dependency, which must be estimated. This has to be necessarily dis-counted for contingencies and uncertainties. Reference in this regard may be made to the judgments of this Court in the case of Sarla Dixit v. Balwant Yadav , 1996 (3) SCC 179; Managing Director TNSTC Ltd. v. K.I. Bindu , 2005 (2) TN MAC 350 (SC) : 2005 (8) SCC 473; T. N. State Transport Corp. Ltd. v. S. Rajapriya , 2005 (1) TN MAC 341 (SC) : 2005 (6) SCC 236; New India Assurance Co. Ltd. v. Charlie , 2005 (1) TN MAC 334 (SC) : 2005 (10) SCC 720 and United India Insurance Co. Ltd. v. Patrica Jean Mahajan , 2002 (6) SCC 281.
13. Addressing the problem of quantifying the loss in the case of death of children, the Supreme Court, at Paragraphs 15 and 16, observed as follows:
"15. The real problem that arises in the cases of death of children is that they are not earning at the time of the accident. In most of the cases they were still studying and not working. However, under no stretch of imagination it can be said that the parents, who are appellants herein, have not suffered any pecuniary loss. In fact, Loss of Dependency by its very nature is awarded for prospective or future loss. In this context, Lord Atkinson aptly observed in Taff Vale Rly. Co. v. Jenkins , (1911-13) All E.R. 160 as follows:
In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived.
16. Then, how does one calculate Pecuniary Compensation for loss of future earnings and Loss of Dependency of the parents, grand parents, etc. in the case of non-working student? Under the Second Schedule of the Act in case of a non earning person, his income is notionally estimated at Rs. 15,000/- per annum. The Second Schedule is applicable to Claim Petitions filed under Section 163-A of the Act. The Second Schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years and between 15 years but not exceeding 20 years. Even when compensation is payable under Section 166 read with 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible, except in exceptional cases. [see Abati Bezbaruah v. Dy. Director General, Geological Survey of India , 2004 (1) TN MAC 549 (SC) : 2003 (3) SCC 148; United India Insurance Company Ltd. v. Patricia Jean Mahajan , 2002 (6) SCC 281 and UP State Road Transport Corp. v. Trilok Chandra , 1996 (4) SCC 362].
14. As regards the assessment of non-pecuniary loss, the Supreme Court, at Paragraphs 19 to 23, extracted the decisions, as hereunder:
"19.The other issue is with regard to non-pecuniary compensation to the appellants-dependents on the loss of human life, loss of company, companionship, happiness, pain and suffering, loss of expectation of life etc.
20. In the Halsbury's Laws of England, 4th Edition, Vol. 12, page 446, it has been stated with regard to non-pecuniary loss as follows:
"Non-pecuniary loss: the pattern.
Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstance of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."
21. In the case of Ward v. James, (1965) I All E R 563, it was observed:
"Although you cannot give a man so gravely injured much for his `lost years', you can, however, compensate him for his loss during his shortened, span, that is, during his expected `years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money."
22. The Supreme Court in the case of R.D.Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551, at page 556, has observed as follows in para 9:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
In this case, the Court awarded non-pecuniary special damages of Rs. 3, 00,000/- to the claimants.
23. In Common Cause, A Registered Society v. Union of India (1999) 6 SCC 667 @ page 738, it was observed: "128. The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups: pecuniary and non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do. In Mediana, Re87 Lord Halsbury, L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident.... But nevertheless the law recognises that as a topic upon which damages may be given."
15. The Apex Court, at Paragraphs 25 and 26, further held as follows:
"25. That being the position, the crucial problem arises with regard to the quantification of such compensation. The injury inflicted by deprivation of the life of a child is extremely difficult to quantify. In view of the uncertainties and contingencies of human life, what would be an appropriate figure, an adequate solatium is difficult to specify. The Courts have therefore used the expression standard compensation and conventional amount/sum to get over the difficulty that arises in quantifying a figure as the same ensures consistency and uniformity in awarding Compensations.
26. While quantifying and arriving at a figure for loss of expectation of life, the Court have to keep in mind that this figure is not to be calculated for the prospective loss or further pecuniary benefits that has been awarded under another head i.e. pecuniary loss. The compensation payable under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on the capacity and the ability of the deceased to provide happiness to the claimant. This compensation is paid for loss of prospective happiness which the claimant/victim would have enjoyed had the child not been died at the tender age."
16. After considering the judgment in Lata Wadwa v. State of Bihar reported in 2001 ACJ 1735 and M.S. Grewal and another v. Deep Chand Sood and others (2001) 8 SCC 151, at Paragraph 31, the Apex Court in R.K.Malik's case (cited supra) held as follows:
"31. A forceful submission has been made by the learned counsels appearing for the claimants-appellants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation. Reliance in this regard may be placed on the decisions rendered by this Court in General Manager, Kerala S.R.T.C., v. Susamma Thomas, (1994) 2 SCC 176; Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179; and Lata Wadhwa case (supra)."
17. Ultimately, the Supreme Court in R.K.Malik's case, awarded Rs.75,000/- towards future prospects. Holding that the legal representatives of the deceased are entitled to be compensated, for the head, future prospects, had the deceased been alive, at Paragraph 14, held as follows:
"14. For calculating the yearly loss of dependency the starting point is the wages being earned by the deceased, less his personal and living expenses. This provides a basic figure. Thereafter, effect is given to the future prospects of the deceased, inflation and general price rise that erodes value and the purchasing power of money. To the multiplicand so calculated, multiplier is to be applied."
18. At this juncture, this Court deems it fit to consider that the Amendment to the Motor Vehicles Act, 1994 has been introduced on 14.04.1994. The amount under the various heads, in Clauses 2 to 6, in the Schedule have been specified in the year 1994. Considering the inflation rate, cost of escalation in the prices, the Apex Court have time and again, directed the Central Government to amend the provision, but the Central Government have not brought about any change. Recently, pursuant to the directions of this Court, it has been brought to the notice of this Court that the Central Government have brought about some changes to Section 163-A of the Act. Some of the decisions, where the Supreme Court has issued directions to the Central Government to amend the Schedule are extracted hereunder.
19. In Oriental Insurance Co. Ltd., v. Hansrajbhai V.Kodala reported in 2001 (5) SCC 175, at Paragraph 26, the Apex Court, held as follows:
"In addition, the learned counsel also pointed out that in case of fatal accident and disability in non-fatal accident, it has been provided that notional income for the claimant who had no income prior to accident shall be Rs.15000/- per annum and still however the Second Schedule provides table of income ranging from Rs.3000/- to Rs.40000/- and the brake-up also does not provide any calculation for Rs.15000/-, as the columns in the Schedule inter alia provide for compensation for a person having income of Rs.12000/-, and thereafter straightway at Rs.18000/-. The learned counsel also submitted that despite the specific provision in Section 163A(3) that the Central Government may, keeping in view the cost of living, by notification in Official Gazette from time to time amend the Schedule, nothing has been done so far. Further, by order dated 30.8.2000, this Court again noticed number of anomalies in the Second Schedule and, therefore, thought it fit to have assistance of either the Attorney General of India or the Solicitor General of India. When the matter was called out on 15.12.2000, Mr. Altaf Ahmad, ASG, stated before the Court that the order passed by this Court on 30.8.2000 has already engaged serious attention of the Ministry of Surface Transport Department and the Government was considering the matter for bringing necessary correction in the Second Schedule of the Motor Vehicles Act. Thereafter, we again sought assistance of the Additional Solicitor General on the interpretation of Section 163A and also to verify whether there are corrections in the Second Schedule. Learned Additional Solicitor General stated that amendment might take some time. In this view of the matter, we think it would be appropriate if the Central Government takes necessary action as early as possible under Section 163A(3)."
20. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd., reported in 2004 (5) SCC 385, at Paragraph 72, held as follows:
"72. Section 163-A was introduced in the year 1994. The executive authority of the Central Government has the requisite jurisdiction to amend the Second Schedule from time to time. Having regard to the inflation and fall in the rate of bank interest; it is desirable that the Central Government bestows serious consideration to this aspect of the matter."
21. On the principles of assessment of quantum of compensation, in Reshma Kumari v. Madan Dohan reported in 2009 (13) SCC 422, at Paragraph 41, the Supreme Court observed as follows:
"Grant of compensation in a case involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had sustained the wrong."
22. In R.K.Malik's case, though an argument was advanced that the notional income of Rs.15,000/- taken into consideration for computing the compensation should be enhanced, when the Central Government did not come forward to amend the Second Schedule to Section 163-A of the Act, since 14.11.1994, on the facts and circumstances of the reported case and considering the difference in time, between the date of enactment and the date of accident, in the reported case, ie., 18.11.1997, was not substantial, the Supreme Court, declined to enhance the notional income. However, at Paragraph 16 of the judgment, the Apex Court has made it clear that as the deceased was a child, by necessary implication, future prospects, inflation, price rise, etc., have to be taken into consideration, while assessing the compensation.
23. The quantum of compensation specified in the Act in 1994, cannot be static and it would be unreasonable to contend that only on that said basis, the Claims Tribunals/Courts should award compensation, dehors the inflation, cost index and other factors to be considered by the Claims Tribunals/Courts, to award a just compensation, to the accident victims. Of course, there is a judgment of a High Court, which has held that the quantum of compensation to be awarded in a claim petition under Section 163-A of the Act, should be within the parameters of Section 163-A of the Act, but the said judgment with due respect, has not taken note of the directions of the Apex Court in Oriental Insurance Co. Ltd., v. Hansrajbhai V.Kodala reported in 2001 (5) SCC 175, Deepal Girishbhai Soni v. United India Insurance Co. Ltd., reported in 2004 (5) SCC 385, Reshma Kumari v. Madan Dohan reported in 2009 (13) SCC 422 and R.K.Malik v. Kiran Pal reported in 2009 (14) SCC 1.
24. Reading of Section 163-A(3) of the Motor Vehicles Act, itself makes it clear that the Legislature has indicated that the Central Government may, keeping in view the cost of living, by notification in the Official Gazette, from time to time amend the Second Schedule. At this juncture, this Court deems it fit to consider Section 4 of the Employees Compensation Act, 1923, wherein, the Act contemplates the method to be adopted for computing the compensation. Section 4 of the Workmen's Compensation Act, deals with amount of compensation and reads as follows:
"(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
(a) Where death results from the injury: an amount equal to fifty per cent. of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of eighty thousand rupees,whichever is more;
(b) Where permanent total disablement results from the injury: an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of ninety thousand rupees, whichever is more;
Explanation I: For the purposes of clause (a) and clause (b) relevant factor in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.
Explanation II.Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only;
(c)Where permanent partial disablement result from the injury:
(i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
Explanation I:- Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II.In assessing the loss of earning capacity for the purpose of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
(d)Where temporary disablement whether total or partial results from the injury a half monthly payment of the sum equivalent to twenty-five per cent of mostly wages of the workman, to be paid in accordance with the rovisions of sub-section (2).
(1A) Notwithstanding anything contained in sub-section (1), while fixing the amount of compensation payable to a workman is respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country.
(2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day
(i) from the date of disablement where such disablement lasts for a period of twenty-eight days or more, or
(ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years, whichever period is shorter:
Provided that
(a) there shall be deducted from any lump sum or half-monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half-monthly payment, as the case may be; and
(b) no half-monthly payment shall in any case exceed the amount, if any by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
Explanation: Any payment or allowance which the workman has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso.
(3) On the ceasing of the disablement before the date on which any half-monthly payment falls due there shall be payable in respect of that half-month a sum proportionate to the duration of the disablement in that half-month.
(4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of two thousand and five hundred rupees] for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.
25. The first amendment to the said Section came into effect in the year 1995, vide, the Workmen's Compensation (Amendment) Act, 1995 (Act No.30 of 1995) and the said amendment is extracted hereunder:
4. Amendment of section 4.in section 4 of the principal Act,
(a) in sub-section (1),
(i) in clause (a), for the words "forty per cept." and "twenty thousand rupees", the words "fifty per cent." and "fifty thousand rupees" shall respectively be substituted;
(ii) in clause (b), the words "fifty per cent." and "twenty-four thousand rupees", the words "sixty per cent." and "sixty thousand rupees', shall respectively be substituted;
(iii) in Explanation II, for the words "one thousand rupees", at both the places where they occur, the words "two thousand rupees" shall be substituted;
(b) after sub-section (1), the following Sub-Section shall be inserted, namely : "(1A) Notwithstanding anything contained in+sub-section (1), while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country,";
(c) after sub-section (3), the following sub-section shall be inserted, namely: "(4) if the injury of the workman results in his death, the employer shall, in addition to the compensation under sub-section (1), deposit with the Commissioner a sum of one thousand rupees for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.".
26. Thereafter, in the year 2000, an amendment has been brought about to the said Section, vide The Workmen's Compensation (Amendment) Act, 2000 [Act No.46 of 2000] and it is extracted, Amendment of Section 4:- In Section 4 of the Principal Act,-
(a) in sub-section (1),-
(i) in Clause (a), for the words fifty thousand rupees, the words eighty thousand rupees shall be substituted.
27. Thus, it could be seen from the above, though Workmen's Compensation Act, has underwent changes in Section 4 of the Act, the last amendment has been made in the year 2000 and for the last 12 years, there is no change in the amount fixed in Section 4 of the Act, though there is an escalation in price, inflation, etc. Workmen's Compensation Act, is also a beneficial legislation.
28. Under the Motor Vehicles Act, the amount specified in Section 163-A of the Act, remains static, for nearly 18 years. So also, under the Workmen's Compensation Act, 1923, the amount specified in Section 4 remains, unaltered for nearly 12 years. Unlike in Motor Vehicles Act, where there is a specific provision under Section 163-A(3), wherein, the Legislature has envisaged a revision of amounts and imposed a statutory obligation on the Central Government to notify the same in the official Gazettee, from time to time, amending the Second Schedule, keeping in view of the cost of living, there is no such provision in the Employees Compensation Act, 1923. Inflation, cost price and such other economic factors had been clearly taken note of by the Supreme Court, while issuing directions to the Central Government for amending the Schedule to Section 163-A of the Motor Vehicles Act.
29. Though the present lis does not involve any claim under the Employee's Compensation Act, 1923, having regard to the principles of compensation, this Court deems it fit to issue directions to the Secretary to Government of India, Labour and Employment Department, New Delhi 110 001, to bring about suitable amendments to Section 4 of the abovesaid Act.
30. Similarly, the legal representatives of the deceased, who met with an accident, as defined under Section 124 of the Railways Act, 1989 or become victim of untoward incidents, as defined under Section 123(c) of the Railways Act, 1989, is entitled to compensation for the loss of life and injuries of their involvement in a railway accident or untoward incident. Section 123(b) of the Railways Act, defines who are all the persons entitled to claim compensation.
31. The Central Government, in exercise of the powers conferred under Section 129 of the Railways Act, 1989, have framed the Railway Accidents and Untoward Incident (Compensation) Rules, 1990, wherein, compensation for the death or 100% permanent disability was Rs.2 Lakhs. In case of injury, the minimum of Rs.32,000/- and a maximum amount of Rs.3,60,000/- has been prescribed, depending upon the gravity of the injury. Ex-gratia to be paid by the Railway Administration is as follows:
Immediately after the accident or untoward incident has taken place, ex-gratia at the rate of
(a) Rs.15000/- to the dependant of dead passenger,
(b) Rs.5000/- to the grievously injured and
(c) Rs.500/- to simple injured is also given to take care of their immediate needs.
32. The abovesaid Rules have underwent an amendment, with effect from 1st November, 1997. In Rule 3 of the said Rules, following amendments have been made, (i) In sub-rule 2, for the words rupees two lakhs the words rupees four lakhs shall be substituted;
(ii) In the proviso to sub-rule 3 for the words rupees forty thousand the words rupees eighty thousand shall be substituted.
In the rule 4 of the said rules, for the words rupees two lakh the words rupees four lakhs shall be substituted.
33. It is to be noted that even under the Railways Act, the compensation amount, for loss of life remains static, at Rs.4 Lakhs, for nearly 15 years, since 1997 onwards. Value of life cannot be measured in precise mathematical terms, and cannot remain static forever. There is escalation in inflation, money value is diminished. There is a need to bring about suitable amendments, by considering the economic factors. In cases arising out of Motor Vehicles Act, 1988, the Apex Court, has issued directions. Ministry of Railways has to bring about suitable amendment. Accordingly, there shall be a direction to the Secretary to Government of India, Ministry of Railways, New Delhi 110 001, to bring about suitable amendments to Rules 3 and 4 of the Railway Accidents and Untoward Incident (Compensation) Rules, 1990.
34. When the legislature, in its wisdom, has consciously has introduced Section 163-A(3) to the Motor Vehicles Act, stating that the Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule, thus making its intention, clear that the amounts specified in the Second Schedule requires revision and periodically, when the Apex Court has also issued directions, as stated supra, to the Central Government to increase the amounts fixed under Section 163-A of the Act and when the same is not implemented by the Government, this Court is of the view that the Courts/Tribunals should bear in mind that the Motor Vehicles Act, 1988, is a beneficial legislation to provide a just compensation to the accident victim. On the aspect of the beneficial legislation, reference can be made to a decision of the Apex Court in Smt.Rita Devi and others v. New India Assurance Co. Ltd., reported in AIR 2000 SC 1930, wherein, in construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose.
35. An amount fixed nearly two decades ago, ie., on 14.11.1994, cannot and should not be static. Conveyance charges fixed in the year 1994, in Schedule to Section 163-A, would never the same, after many years. So also the quantum of compensation under other heads. Let me extract few decisions, as to what 'just compensation' means,
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required 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 disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:
The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "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 in 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, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. (emphasis supplied)
36. All the claim petitions in R.K.Malik's case, were filed under Section 163-A of the Act. Even though Section 163-A of the Act did not envisage compensation under the head, future prospects, the Supreme Court, considering the said aspect, awarded Rs.75,000/- to the legal representatives of the deceased children. In the case on hand, the Insurance Company, though aware of the judgment in R.K.Malik's case, has failed to consider the same. The Insurance Company has conveniently omitted to apply the principles of rules of equity and law of precedents, in not considering the latter judgment of the Supreme Court. The judgment in R.K.Malik's case is the law of the land under Article 142 of the Constitution of India and it has to be uniformly applied to every claim made under Section 163-A of the Act, whenever the legal representatives of the deceased child/children, make a claim for just compensation.
37. Agony of the parents, who have lost the life of their beloved son, for the rest of their lifetime, would be inexplicable and whether time could heal the wound of mind, nobody can decide. Loss of life is an emotional injury. Even passage of time, money that is awarded, as compensation, would not be a reparation to the loss of love and affection of the child. Money is not the substitute for loss of life. Suffering due to the loss of love and affection of the child, cannot be precisely calculated in precise arithmetical calculation, but certainly, it should be considered as a factor, while awarding compensation.
38. It cannot be lost sight of the fact that if the loss of love and affection is a factor to be considered for awarding compensation, under Section 166 of the Act, there is no reason, as to why the same should not be considered, in the case of a claim under Section 163-A of the Act. If the legislature has not included the said factor in the schedule to Section 163-A, it cannot be contended that the legal representatives of the deceased child, has to be treated differently, violating Article 14 of the Constitution of the India. It is well settled that the introduction of the Schedule to Section 163-A, was only to avoid any protracted litigation and it is not intended to defeat just compensation, under all heads, including love and affection, which the claimants are entitled to, as in the case of a claim under Section 166 of the Act.
39. In Satender's case, wherein the Supreme Court has awarded compensation of Rs.1,80,000/-, the case has been decided in the 2006. Whereas, in Manju Devi's case, even in the year 2005, the Supreme Court has awarded a compensation of Rs.2,25,000/-. R.K.Malik's case has been decided in the year 2009, where the Supreme Court has considered a new factor, viz., Future Prospects and awarded Rs.75,000/- exclusively, under the said head, irrespective of the age of the children.
40. As stated supra, in the Railways Act, 1989, the minimum and maximum compensation for the death of a person, whether he or she, was a minor or aged person, rich or raff, compensation amount is Rs.4,00,000/-. In the case on hand, the competent authority is Rs.3,80,000/-. Claim has been made for Rs.4,00,000/-. Considering the cost of escalation and other economic factors, this Court deems it fit to suo-motu enhance the amount to Rs.4,00,000/-, as claimed. Reference can be made to the following decisions,
(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows:
37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient.
38. Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] wherein it has been held as follows:
(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or Cross-Objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Cross-Objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice. Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.
(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the same issue and the said point is answered as follows:
6. On point:
The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross-objection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:
Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.
The issue that arises in this case is, whether the Division Bench of the High Court was justified in in-creasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:
In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same. To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:
(i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ 281.
(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.
(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ 151.
(iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222.
9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:
Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.
In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection.
The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:
The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.
10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:
At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre-tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.
11. Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:
Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. 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; or (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.
(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:
17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.
41. In the result, the Civil Miscellaneous Appeal preferred by the United India Insurance Company Ltd., is dismissed with a costs of Rs.10,000/- to be paid, in addition to the amount fixed by this Court at Rs.4,00,000/-. The enhanced compensation of Rs.20,000/-, shall carry interest at the rate of 7.5% per annum. The appellant-Insurance Company is directed to deposit the amount, with proportionate accrued interests and costs, to the credit of M.C.O.P.No.222 of 2008, on the file of the Motor Accidents Claims Tribunal (Principal District Judge), at Krishnagiri, less the amount already deposited, within a period of four weeks, from the date of receipt of a copy of this order. On such payment, the respondents/claimants are permitted to withdraw the S. MANIKUMAR, J.
skm same, by filing necessary applications before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is also closed.
08.10.2014 skm To The Motor Accidents Claims Tribunal (Principal District Judge), at Krishnagiri.
C.M.A.No.2565 of 2012