Andhra HC (Pre-Telangana)
Thulluri Ruthomma And Ors. vs S. Bala Kotaiah And Ors. on 23 September, 1996
Equivalent citations: II(1997)ACC99, 1997(1)ALT129
ORDER B.K. Somasekhara, J.
1. The claimants are the wife and children of one Obulaiah who died in a motor vehicle accident dated 8-9-1985 due to the rash and negligent driving of the lorry, belonging to the 1st respondent and insured with 3rd respondent. The claimants filed O.P. No. 40/87 on the file of the Motor Accident Claims Tribunal, Ongole claiming a compensation of Rs. 82,000/-. After an enquiry, the Tribunal found that the accident was a result of rash and negligent driving of the vehicle by its driver and awarded a total compensation of Rs. 25,000/ with joint and several liability on respondents 1 and 3.
2. The deceased having suffered the injuries succumbed to them on 19-3-1986. His age at the time of the accident is found to be 30 years and the income which was said to be Rs. 1,000/-per month both from the profession of piper and poultry farming, was not accepted, but as a whole Rs. 25,000/- was awarded as compensation to the claimants. Aggrieved by the award, this appeal is filed.
3. Mr. Krishnamurthy, learned Counsel for the appellants claimants has contended that in any manner the income of the deceased is assessed, the loss of contribution to the claimants by the deceased could not be less than Rs. 1,000/- per month providing the multiplicand at Rs. 12,000/- p.a. and with the multiplier of about 14 for the age of the deceased and with the conventional sum of Rs. 7,500/- to Rs. 10,000/- towards loss of expectation of life, Rs. 7,500/- to Rs. 10,000/- towards loss of consortium to claimant No. 1, the wife of the deceased, and some reasonable sum towards pain and suffering of the deceased as he died on 19-3-1986 and some amount towards medical and other expenses like funeral, transportation etc., the amount of compensation ought to be far in excess of what is claimed and according to him it will be about Rs. 1,57,000/-.
4. There is no representation for the respondents.
5. The case being one of fatal accidents, as per settled law, we have to adopt the multiplier method declared as law by the Supreme Court in General Manager, Kerala State Road Transport Corporation, and UPSRTC v. Trilok Chandra and Ors., 1996 (4) Supreme 479 = 1996 ALT 36 (D.N.). Except the testimony of claimant No. 1 that the income of her husband was Rs. 1000/- per month from poultry farming, there is no supporting material. What was his income from the profession of piper is not brought out. There was a solitary entry in the pass book for February 85 for Rs. 5,000/- in addition to some small entries towards accrual of interest. Such a deposit, by itself, cannot support the income either per month or per annum. If at all, that can be some deposit or savings or may be even deposited out of the amounts borrowed by the deceased as it generally happens. However, in view of the interested testimony of claimant No. 1, even presuming that the income was exaggerated or made without sufficient basis, having due regard to the number of members in the family including the deceased, the survival of them could not have been possible unless they get Rs. 100/- per head on an average and excluding Rs. 100/- towards the personal expenses of the deceased, the contribution to the family could be safely taken as Rs. 500/- per month or Rs. 6,000/- per annum representing the multiplicand. With this multiplicand and the multiplier of 14 the loss of contribution to the family would be Rs. 84,000/-. Adding a conventional sum of Rs. 7500/- towards loss of expectation of life and future happy life and Rs. 10,000/- towards loss of consortium to claimant No. 1, being the young wife of the deceased and Rs. 10,000/- towards pain and suffering of the deceased as he died almost 6 months after the accident and Rs. 2,000/- towards medical and incidental expenses, the total compensation in this case ought to have been Rs. 1,13,500/-. As against this the Tribunal very arbitrarily fixed most inadequate compensation of Rs. 25,000/- without even applying the known method of assessment of compensation in a case of death. Barring displeasure of this Court in this regard, there would be no need to say anything more in this case. In other words, the amount awarded by the Tribunal, being inadequate, requires to be enhanced in the light of the findings of the Tribunal as above.
6. The claimants having laid a claim for Rs. 82,000/- cannot think of anything more than that in the normal course. In fact, Mr. Krishnamurty, learned counsel for the appellants, never argued for granting anything more than that in the beginning. However, taking support from a latest pronouncement of this Court in Venkateswara Rao v. G. Gouramma, pleaded for awarding compensation more than claimed if found to be just. It is true that the learned Advocate is supported by the pronouncement which had the occasion to deal with the scope of Section 110-A of the MV Act of 1939 to impress that the compensation to be awarded should be the just compensation and even if some amount is claimed in the petition, the Tribunal can award more amount if it is just compensation. In fact by setting aside the award of the Tribunal which has awarded Rs. 75,000/-, actually Rs. 1,11,600/- were awarded by allowing the appeal. This court is persuaded by the rule laid down in the precedent. But there are many questions to be answered before implementing such a rule viz., whether Section 110-A of the MV Act and the rules framed thereunder permit the grant of compensation in excess of what is claimed, viz, whether the Tribunal can grant it suo motu, whether any amendment of the claim is necessary and whether it can be done at any stage including appeal, perhaps even at the stage of execution and whether any application is necessary for amendment and any oral application is necessary etc. No such questions have been either raised or answered by this Court in the case supra. Therefore, to that extent, the precedent has become per incuriam. The answer to such questions are to be found in Municipal Corporation of Greater Bombay v. Kisan Gangaram, 1987 ACJ 311 (Mah.) which while dealing with the question in a detailed manner and relying upon its own earlier rulings in Kumar Mohammad Rafique v. Municipal Corporation of Greater Bombay, 1986 ACJ 55 (Mah.). Sharifunnisa v. Basappa Ramachandra, 1986 ACJ 792 (Mah.) and of the Delhi High Court in Kela Devi v. Ramchand, 1986 ACJ 818 (Delhi) and also the Full Bench decision of the Punjab and Haryana High Court in Jai Singh v. N.A. Subramanyam 1983 ACJ 1 (P&H) (F.B.), held that a survey of the authorities strengthens the proposition that there are no fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the application. But at the same time, laid down the following procedure:
"The only question that requires to be considered is of the procedure that should be followed by the Tribunal before awarding higher compensation. We are of the view that in all such cases a proper notice or intimation should be given to the opposite party so that the opposite party has an opportunity to contest the claim even by leading evidence, if necessary. Ordinarily, the Tribunal should take a written application from the claimant. This application need not necessarily be in the form of an amendment to the original application. Since as stated earlier the amount of compensation claimed or the specific heading under which it is claimed is no more than in the nature of the particulars of the claim, a variation in the same does not change the cause of action, which is the accident. It only furnishes additional material for assessing the claim. The additional claim should as far as possible be taken in writing which should also indicate the reasons why the additional claim is made. Where it is not possible to take the additional claim in writing, the reasons for the same should be recorded. A copy of such written application should be served on the opposite party to give it an adequate notice of the excess amount claimed and to contest it, if it so desires. Where the application is not taken in writing, the Tribunal should make a note of it in its diary and give notice of the claim similarly to the otherside.
It may also happen in certain cases that on account of ignorance or otherwise, a party may not apply for higher compensation. If, however, the Tribunal feels at any stage that the party is entitled to higher compensation, the Tribunal should ask the claimant concerned to make an application for the same in writing and a copy of the application should be served on the opposite party to enable it to contest the claim for higher amount.
If these safeguards are followed, the powers conferred on the Tribunal for awarding compensation higher than that claimed in the original application would not be abused as is feared."
Patently these safeguards were not presented before the Court or considered in Venkateswara Rao's case (3 supra). Since the appellants have not raised any such question to be considered in detail, this Court does not express any final opinion in this regard except to say that the Tribunal is not debarred from granting more compensation than claimed, provided certain conditions are fulfilled not to abuse the process of law either by the parties or by the Court. Since nothing of that kind is done, this Court is not able to accept the contention of the learned counsel for the appellants to grant any compensation than what is claimed before the Tribunal.
7. The Appeal is allowed and the award of the Tribunal is set aside. It shall be substituted with the following award:- The claimant shall be entitled to recover a sum of Rs. 82,400/- by way of compensation from the respondents 1 and 3 with joint and several liability with costs throughout and simple interest at 12% p.a. from the date of petition till date of realisation. If any amount is paid/deposited, that shall be deducted. However, this is subject to deposit of the amounts as per the guidelines issued by the Supreme Court in the decisions 1 and 2 supra.