Madras High Court
Rajendran And Anr. vs Selvaraj And Ors. on 8 June, 2000
Equivalent citations: I(2001)ACC240, 2002ACJ104
JUDGMENT K.P. Sivasubramaniam, J.
1. All these appeals arise out of a common award rendered in M.C.O.P. Nos. 382, 387 and 388 of 1992 respectively on the file of the Motor Accidents Claims Tribunal, Cud-dalore. The insurance company and the owner of the vehicle which was involved in the accident are the appellants in the above appeals.
2. The claim petitions were filed by the victims of an accident which took place on 2.7.1992 at about 2.15 p.m. The place of accident was Nellikuppam-Cuddalore main road. According to the claimants, the bus belonging to the appellant No. 1 bearing registration No. TN-31-6697, plying from Cuddalore to Panrutti, proceeded at a high speed very rashly and negligently and with the result went out of control and crashed against several shops dashing various movable and immovable properties and also causing serious injuries to some of the occupants.
3. In C.M.A. No. 391 of 1994, the claimant being owner of door No. 176 contended that he was running a Rice Mill in the premises and as a result of the accident, the building as well as machineries were damaged and also according to him, as a result of the stoppage of the mill, he had lost considerable income and incurred a heavy loss. A sum of Rs. 1,00,000 was claimed as compensation. The Tribunal awarded a sum of Rs. 75,000.
4. In C.M.A. No. 392 of 1994, the claimant being occupant of door No. 174 contended that he was residing in the said property which was severely damaged as a result of the accident. One Sakunthala and Ganesan who were also present sustained grievous injuries. Hence, for the damage caused to the property, the claimant sought for a sum of Rs. 45,000 as compensation and the Tribunal awarded a sum of Rs. 40,000.
5. In C.M.A. No. 393 of 1994, the claimant being the occupant of door No. 175 contended that she along with others were sitting on the front portion of the building and as a result of the accident, she and her grandson sustained grievous injuries. A sum of Rs. 1,50,000 was claimed as compensation and the Tribunal awarded a sum of Rs. 85,000.
6. In all these cases, identical defence was raised by the appellant No. 2, insurance company, disputing the manner of the accident and the quantum of compensation as claimed by the respondent and that the driver of the vehicle did not have valid licence to drive.
7. The Tribunal by a common order held that the accident had resulted only due to negligence on the part of the driver and awarded various amounts of compensation in each case as detailed above. Hence, the above appeals.
8. Negligence being an issue common to all of the cases may be dealt with first. The very nature of the accident, the vehicle having dashed against a series of shops and residential properties belonging to the claimants situated on the side of the road speaks for itself. The failure on the part of the appellant to examine their driver or for that matter any witness to speak about the accident, also clinches the issue of negligence in favour of the claimants.
9. The only issue to be considered is the quantum of compensation granted in each case and for convenience CM.A. Nos. 392 and 393 of 1994 are dealt with first.
C.M.A. No. 392 of 199410. According to the claimant, his entire shop was damaged including a teak-wood door in front of the house. The building was also damaged. According to the claimant, the premises had been rented at Rs. 800 per month and as a result of the accident, he had been rendered without due income. He had also examined himself as PW 3 and has given the details of the damages caused to the building and other materials. There was no contra evidence on the side of the appellants and hence, on a fair assessment of the damages, the Tribunal had rightly fixed the compensation at Rs. 40,000 and 1 find no reason to interfere with the award. Hence, this appeal deserves to be dismissed.
C.M.A. No. 393 of 199411. The claimant Sakunthala had examined herself as PW 2 and had deposed that she had sustained injuries on her right hip, abdomen and stomach portion and her grandson sustained injuries on his head. It is further stated that she was admitted as in-patient in Zipmer Hospital, Pondi-cherry, where she took treatment for 20 days. She would further state that her vision was also affected and had taken treatment for her eyes also. PW 5, the doctor who had treated her, had deposed that the claimant suffered fracture injuries as a result of the accident. She had sustained fracture of her hip and the bone on the right side of hip had slipped. During the treatment, she was unable to pass urine and urine had been drained by inserting a tube. As a result of the hip fracture, she cannot sit in the normal posture by bending her legs and cannot also sit on her knees. X-rays also disclose, according to the doctor, improper and irregular unification of the bones. Exh. A-l1 is the X-ray and Exh. A-10 is the disability certificate disclosing that the claimant had suffered 35 per cent disability. The Tribunal awarded the following amounts:
(1) Disability Rs. 50,000 (2) Pain and suffering Rs. 25,000 (3) Medical expenses Rs. 7,000 (4) Transport and nutrition Rs. 2,500 (5) Miscellaneous expenses Rs. 3,000
Out of the aforementioned amounts, it is stated that the sum of Rs. 50,000 granted towards disability is on the higher side and that there is also no basis for awarding Rs. 3,000 under the head of miscellaneous expenses. I agree that the Tribunal itself had commented that there was no basis for the claim of Rs. 14,000 towards miscellaneous expenses. Yet, a sum of Rs. 3,000 had been awarded merely for the asking by the claimant. However, on a proper calculation of the total compensation, bearing in mind the nature of injuries sustained by the claimant, the total amount awarded by the Tribunal cannot be stated to be excessive. Even though the award of Rs. 50,000 may be on the higher side as against the disability certified at 35 per cent, I am inclined to hold that the percentage thus certified appears to be disproportionate to the nature of the injury sustained by the claimant and the permanent disability caused to her. The medical evidence discloses that she had sustained a major hip fracture culminating in dislocation and mal-unification of the bones and the victim is also rendered incapable of sitting in the normal postures. There is also evidence to show that during the period of treatment, she must have undergone severe pain and discomfort as a result of the hip fracture and the block in flow of urine necessitating insertion of tube for draining the urine. Therefore, on an overall consideration notwithstanding the grant of Rs. 3,000 towards miscellaneous expenses which is not sustainable, the total amount awarded cannot be stated to be excessive warranting any interference. Hence, the above appeal is dismissed.
C.M.A. No. 391 of 199412. In this appeal, the claim of damages is twofold, namely, for damages to the property and for the economical loss of income arising out of the damage caused to the property of the claimant. According to the claimant, his Rice Mill and the machineries were damaged for which he claimed a sum of Rs. 65,000 and a further sum of Rs. 35,000 was claimed for loss of income resulting in stoppage of the functioning of the mill. The Tribunal awarded Rs. 50,000 towards damage to the property and Rs. 25,000 towards loss of income.
13. As far as the grant of Rs. 50,000 is concerned, the claimant had examined himself as a witness. Exh. A-12 is the permit for running the Rice Mill. Exhs. A-13 to A-15 are the certificates of assessment as regards the damage caused to the building and the machinery, issued by an Engineer. PW 7 is a qualified and authorised surveyor who has also spoken about the extent of the damage. No contra evidence had been adduced on the side of the appellant. After detailed discussion, the Claims Tribunal had fixed a sum of Rs. 50,000 towards damage to the property even as against the quantum of damages certified at Rs. 64,500 under Exh. A-15. Therefore, I do not find any grounds to interfere with the amount awarded towards damage to the property.
14. The contentious issue is the grant of Rs. 25,000 towards loss of income or economical loss or revenue loss arising out of the non-functioning of the Rice Mill. According to the claimant, he was earning Rs. 200 per day and that he had suffered a total loss of Rs. 35,000. According to Mr. Narsimhan, learned Counsel for the insurance company, loss of income due to damage to the property or the alleged economic loss is not permissible under the Motor Vehicles Act and the issue is already covered by a judgment of this Court in Nesamony Transport Corporation Ltd. v. Kochammal (1995) 1 ACC 601.
15. In the said judgment Ratnam, J. as he then was held that the expression "damages to the property" as occurring in Section 110 (1) of the Motor Vehicles Act, 1939, would take in only the mandatory compensation to set right only the damage caused to the property in an accident involving the motor vehicle and nothing more and that it cannot be extended or expanded into damages under other heads. Mr. Narsimhan would also emphasise his contention by referring to the specific provisions under Section 165(1) of the Motor Vehicles Act, 1988 [section 110 (1) of 1939 Act], dealing with the constitution of Claims Tribunal "for the purpose of adjudicating upon the claims for compensation in respect of accidents 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". Therefore, according to him, the Act did not visualise compensation of economic loss or revenue loss arising out of damage to the property.
16. I had the benefit of going through the analysis of the provisions of the Motor Vehicles Act by the learned Judge in the judgment cited above. With due respect, I am inclined to express the contrary view which is based both on the analysis of the provisions of the Act as they were earlier and as well as a subsequent statutory change in the Motor Vehicles Act, 1988, taking away the jurisdiction of the civil court. The concept of granting compensation for damages arising out of the accident grew out of common law principles. In formulating various heads under which the compensation was to be calculated, it is pertinent to note that neither in the Motor Vehicles Act, 1939 nor in the Motor Vehicles Act, 1988, the legislature had created or incorporated any specific items of heads of claims such as loss of income, loss of consortium, love and affection, medical expenses, loss of prospective income, pain and suffering, funeral expenses, etc. The legislature used only four expressions and nothing more, namely, (1) death, (2) permanent disability, (3) fatal injury and (4) damage to the property. The various other heads under which the compensation was to be calculated and the consequential loss arising out of an accident were formulated only by series of judicial pronouncements both under common law and awards under the Act. For instance, the following passage in the judgment of the Supreme Court in the case of Susamma Thomas , illustrates how the measure of damages on the death of a person was arrived at in course of time by judicial precedents:
The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant. Thus 'except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Act must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased'. [Per Lord Macmillan in Davies v. Powell (1942) AC 601]. Lord Wright in the same case said, 'The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit and on the other, any pecuniary advantage which from whatever source comes to him by reason of the death'. These words of Lord Wright were adopted as the principle applicable also under the Indian Act in Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC), where the Apex Court stated that the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand, the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained.
17. The process of assessment of damages is bound to continue or change according to the prevailing attitudes and views. There was a time when lump sum payment resulted in deduction, but now the said deductions have been held to be unacceptable. In Hardeo Kaur v. Rajasthan State Road Trans. Corporation , the Apex Court recognises that while calculating the loss of pay, upward revision of pay-scales and time-bound prospects of promotions also be taken into account while assessing loss of income.
18. The reason why I am referring to these features is that it may not be appropriate to expect the legislature to spell out specifically all aspects of loss of income or damages arising out of an accident. For the first time, an attempt has been made by the legislature to statutorily recognise the various heads under which compensation may be assessed and had inserted Section 163-A by Amending Act 54 of 1994 with effect from 14.11.1994 introducing special provisions for payment of compensation on the basis of a structured formula and appended Second Schedule to the Act containing a Table of formula for awarding compensation for fatal accidents and injury cases and for general damages under several heads such as funeral expenses, loss of consortium, loss to estate, pain and suffering, etc. As regards the said provisions, the Supreme Court had already held that the Schedule can be used only as guidelines vide the judgment of U.P. State Road Trans. Corporation v. Trilok Chandra .
19. To repeat what has been stated earlier, the legislature can and in fact, had only specified the broad categories of causes of action such as death, disablement, fatal injury and damage to the property and nothing more. Under Section 168 of the Motor Vehicles Act, 1988 (section 110-B of 1939 Act), the Tribunals are enabled to make an award determining the amount of compensation which appears to be just? It was left to the courts to formulate various items or heads under which the total compensation was to be arrived at. When once death or disablement or injury was established, it was left to the Tribunal to consider all the incidental and consequential loss or deprivation caused to the victim or his legal heirs. Therefore, to say that a person who suffers damage to the property would not be entitled to the consequential loss of income, the court's opinion, amounts to placing a narrow construction or interpretation of the provisions of a remedial or beneficial legislation. The word 'property' has always been understood and interpreted as not only specific movable or immovable properties alone, but would also include a right to use or enjoyment for a beneficial right over all tangible things and in Ramanatha Iyer's Law Lexicon, 1987 Edn., property has been defined as extending to every species of valuable right or interest, either real or personal property, or any easements, franchise and incorporeal hereditaments and in the latter everything which is the subject of ownership or to which the right of the property may legally attach or in other words, every clause of acquisition which a man can own or have an interest in.
20. In Deokian Prasad v. State of Bihar , the Supreme Court held that the right of an individual to receive pension, was property and that denial of the same would be an infringement of his right under Articles 31(1) and 19(1)(f) of the Constitution of India.
21. Section 2(15) of the Estate Duty Act, 1953 defined 'property' as including any interest in the property, movable or immovable, proceeds of sale thereof and any money or investment representing the proceeds of the sale and includes any property converted from one species into another by any method. In the said context, in Controller of Estate v. Mrudla Naresh Chandra 1986 SCC (Supp) 357, the Supreme Court held that the interest in the goodwill of a firm will be an asset or a property of the partnership and will be includable in the estate.
22. The above two judgments are only instances of very many rulings whereunder the word 'property' had received very liberal interpretation and wider meaning and there is no reason why the words "damage to property" as occurring in the Motor Vehicles Act should receive a narrow meaning and cannot include consequential and incidental loss for the purpose of calculation of compensation.
23. Even ignoring the word 'property', while calculating just and fair compensation resulting out of an accident, the Tribunal cannot ignore all the resultant and consequential damages caused by the accident. Otherwise, there would have been no justification to award any amount even towards loss of income or loss to estate arising out of death or disability or bodily injury on the ground that the Act did not mention about loss of income or loss to estate prior to introduction of Section 163-A only in the year 1994. Therefore, there is no warrant to restrict the meaning of the expression "damage to property" as not inclusive of the resultant loss of income. The provisions of a beneficial or remedial Act require to be interpreted in a purposeful and liberal manner so as to achieve the purpose of the Act. In Raghu-raj Singh v. Han Kishan AIR 1944 PC 35, the Privy Council held as follows:
The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved.
24. In Workman of American Express International Banking Corporation v. Management of American Express International Banking Corporation , the Apex Court held that the principles of statutory construction, required that social welfare legislation and human rights legislation should be construed and interpreted in a liberal manner and that imposture of literal construction should be avoided. It was further stated that the Judges ought to be more concerned with the colour, the content and the context of such statute.
25. Even apart from my views as regards the expression "damage to property" a subsequent statutory change which has been brought about in the 1988 Act, had altered the basis of one of the reasons stated in the judgment in (1995) 1 ACC 601. Therefore, there is no necessity to refer the issue for consideration by a larger Bench. The said issue is dealt with below.
26. In the 1939 Act, Section 110 (1), which was the subject-matter of interpretation by Ratnam, J., as he then was, in (1995) 1 ACC 601, the proviso to Section 110 (1) entitled the claimant to opt for reference of his claims before a civil court for adjudication, if such claim included a claim for compensation in respect of damage to property exceeding Rs. 2,000. In other words, if the claim of compensation included damage to property in excess of Rs. 2,000 such a claim can be made before the civil court also alternatively and the option was left to the claimant. This was the position in the 1939 Act, notwithstanding the bar of jurisdiction of the civil court under Section 110-F. One of the reasons behind the learned Judge's view that the word 'damage' has to be restricted only to the "damages to the property" before the Claims Tribunal was the availability of the remedy before the civil court. The learned Judge has expressed as follows:
No doubt, such an interpretation may leave a claim for damages other than that to property arising out of a motor accident, for adjudication by a civil court, but that cannot be helped in view of the language employed in Section 110(1) of the Act.
27. A Division Bench of the Madhya Pradesh High Court in Raj Kumar v. Mahendra Singh 1985 ACJ 103 (MP), also has adopted the same view, namely, no claim can be made before the Tribunal on account of loss of business income. In that judgment also, one of the reasons given for arriving at the said conclusion was that the party aggrieved on this account was free to file a civil suit and that Section 110-F of the Act was not a bar to the jurisdiction of the civil court.
28. Therefore, both in the judgment rendered by this Court in (1995) 1 ACC 601 and that of the Division Bench of the Madhya Pradesh High Court, one of the reasons for having come to the conclusion that revenue loss cannot be claimed before the Tribunal was due to the fact that the claimant was entitled to approach the civil court for the said relief.
29. Now, the position in 1988 Act is that the proviso mentioned above is not in existence. With the result, the legislature having chosen to retain the bar on the civil court under Section 175 of 1988 Act also and the claimant having been deprived of his liberty to move the civil court for claims towards damages to the property, he is totally disabled from suing for loss of income or economic loss. There can be no dispute over the entitlement of a person aggrieved, to sue for loss of income or revenue loss under common law and if there is a forum before which he could pray for the said relief, he cannot be heard to complain. But, with the deletion of the option given to the claimant to approach the civil court, he has no other option except to pray for the remedy only before the Tribunal. Section 165 of the Act, is all pervasive and for all claims of compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicle or damages to any property of a third party so arising, a claimant can approach only the Tribunal and nowhere else his claim petition would be entertained, if the claim relates to an accident arising out of the use of the motor vehicles. Therefore, the court inclined to hold that by necessary implication it is only the Claims Tribunal which has the jurisdiction to adjudicate and to grant the loss of income or revenue loss arising out of damage caused to the property of the claimant.
30. Assuming for the sake of discussion that the common law remedy before the civil court is not barred for claiming the revenue loss on the ground that it is not covered by the Act, it would lead to very anomalous and conflicting results. In 1939 Act the proviso ensured that the claim petition can be filed before only one of the two forums. Now, the claimant has to necessarily file his petition only before the Tribunal for compensation for damage to the property and a separate suit before the civil court for revenue loss. This could result in conflicting verdict by the respective authorities. On the question of negligence and liability, two different opposing views could be expressed. Therefore, there is one more reason to hold that by necessary implication, the Tribunal has jurisdiction to award compensation for revenue loss.
31. It is true that in assessing such economic loss or loss of income arising from damage to the property, the Tribunal has to adopt a strict assessment and claimants cannot be permitted to capitalise on the accident unreasonably. The period of assessment could be only the reasonable maximum period required to restore the property to its original condition. It cannot depend upon the self-serving plea of the claimant that he was unable to do so within the reasonable period for his own reason or that he would not condescend to restore the property to its original position within that period. For instance, if the property damaged is a commercial vehicle which could be put on the road only after repairs, a reasonable income for a period of two or three months at the most can be granted. The claimant cannot keep his vehicle idle without being sent for repairs for several months or years and claim loss of income for such indefinite period.
32. In the present case, the award of Rs. 25,000 granted towards loss of income appears to be on the higher side. Even according to the claimant himself, he was earning Rs. 200 per day out of his Rice Mill, for which there is no positive evidence. Being an immovable property and having regard to the nature of damages, it would be reasonable to fix Rs. 150 per day and on that basis, for a period of four months which would be sufficient to restore his business, he would be entitled to a sum of Rs. 18,000 only. To the said extent, the above appeal has to be allowed.
33. In the result, C.M.A. Nos. 392 and 393 of 1994 are dismissed. C.M.A. No. 391 of 1994 is partly allowed modifying the quantum of compensation at a sum of Rs. 68,000 with interest at the rate of 12 per cent per annum from the date of the claim petition. No costs.