Madhya Pradesh High Court
Lachiyabai vs Darshansingh Punjabi And Anr. on 10 December, 1987
Equivalent citations: 1(1989)ACC160
JUDGMENT T.N. Singh, J.
1. The claimant comes from a rural background. She used to earn her livelihood as a daily labourer. Because she suffered a serious injury which left her crippled, she lodged a claim Under Section 110-A of the Motor Vehicles Act, 1939, (for short 'the Act') for compensation. The application was duly entertained by the Motor Accidents Claims Tribunal, Guna, (for short, 'the Tribunal'). The vehicle was self-driven and the owner filed written statement, but admitted position also is that he did not enter into the witness box. The insurance company was also impleaded, but filed no written statement and even did not examine any witness in support of its case.
2. We are indeed not amused at all, but are rather taken aback reading the impugned award. There is a discussion on merit on all aspects of the claim and findings are recorded on the material questions and yet, holding the application to be time-barred, the claim was rejected. One material finding which is assailed seriously in this appeal, we may refer at once. The respondents were absolved of the liability also on the ground that negligence of the driver was not pleaded and rashness was not proved. However, evidence was still assessed on the question of quantum of compensation and the Tribunal took the view that for loss of her earning, the claimant could lay a claim for a sum of Rs. 10,000/- only ignoring, however, that for pain and suffering also she was entitled to compensation, and that her loss could be reckoned at Rs. 40,000/- as she earned at the rate of Rs. 5 per day and was aged 35.
3. We propose to address ourselves to the first question, that of limitation. Section 110-A of the Act, in terms, vide Proviso to Sub-section (3), contemplates that the "Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time". Rules framed by the State of Madhya Pradesh, under the Act, provide the procedure for making application for compensation envisaged Under Section 110-A and Under Rule 277(2), the requirement contemplated is that such application shall be either presented in person or sent by registered post to the Claims Tribunal. The view taken by the Tribunal in this case is that no sufficient cause has been made out on evidence by the claimant to condone delay in filing the application and the delay was of 2 months and 17 days. The fact which has been considered immaterial, in our view, was most material to the question of determination of the issue of belated lodgment of the claim. The claimant was confined to bed in the hospital for a period of 2-1/2 months and further the fact also is undisputed that her husband, though alive, was too a rustic villager and an economically deprived person. Whether, therefore, Under Rule 277(2) aforesaid, in the facts and circumstances of the case, it could be said that there was any deliberate delay in the lodgment of the claim is real question and the facts and circumstances, on the other hand, leave no doubt that there was "sufficient cause" for the claim to be lodged belatedly on the ground of confinement in hospital of the claimant and also her husband being illiterate and poverty stricken. We accordingly hold that the application could not be thrown out and indeed at the stage of hearing after it had been duly entertained for hearing and disposal. The finding of the Tribunal on the question of limitation is accordingly set aside.
4. The second important question which is to be examined now is that of liability of the owner/driver for compensating the claimant-appellant. Because, as earlier alluded, the owner/driver did not enter into witness box, the only evidence to be assessed in this matter is that of the claimant herself. With the assistance of counsel for parties on both sides, we have read her evidence thoroughly. Two things stand out very clearly in her evidence. She has deposed that the offending vehicle came from the back side and when she was hit, she fell down and thereafter, the driver took away the vehicle without caring to look at her. There is no challenge that can be read in her evidence that the driver took the care to blow horn and see that she had cleared the road for the vehicle to pass. Mr. Dubey, insurer's counsel, submitted that she had heard the vehicle coming as she admitted that fact in her evidence, but that would hardly absolve the driver of his duty to blow horn to warn the pedestrian for the road to be made clear for passage of the vehicle. The second thing which we read in her evidence is that the vehicle was not driven with due care, caution and diligence as her evidence is that the vehicle chased her and she had to move to and fro on the road to save herself. Again, there is no challenge in her evidence that at any stage, the vehicle was stopped and she was asked to behave properly and allow passage for the vehicle to pass. We do not think if on this evidence, any other view can be taken except that the driver was rash, as also negligent. We say rash, not because the vehicle must have been driven at a high speed, but because due care was not taken in driving the vehicle, observing the rules of the road, and negligent, because the driver did not perform the duty in warning the pedestrians by blowing the horn to clear the road or by stopping the vehicle for that purpose. Accordingly, we have no hesitation to hold that the Tribunal erred in law in excusing the owner/driver of the offending vehicle of his liability under the law for the accident. We hold that the vehicle was driven rashly and negligently and, therefore, the claimant-appellant is entitled to be compensated for the injury she suffered in the course of the accident.
5. However, to do justice to the labour undertaken by Mr. Dubey, we must observe that for the contention of learned Counsel about contributory negligence of the claimant, we have no material. Merely because the claimant admitted in her evidence that she moved to and fro, would not saddle her with the liability of contributory negligence. Because, as earlier observed, the truck was chasing her. It, was not that she was doing so as a funny exercise.
6. The question of quantum is one on which we have been addressed at some length by both sides. Mr. Dubey has made a twofold contention in this regard. He submits that for the injury suffered, there are judicial authorities that in such cases, compensation ranging between Rs. 10,000/- to Rs. 25,000/- is awarded. Secondly, counsel has contended that deduction has to be made from that amount. The cases cited by him, we have accordingly noted and examined. Three cases, counsel has cited from the same volume of 1986 ACJ. At page 770 is a decision in the case of Jagahandhu Mohanty 1986 ACJ 770 (Orissa), of a learned single Judge of the Orissa High Court at Cuttack which supports the counsel's contention. It was observed that the injured being a villager engaged in collection and supply of vegetables and eggs, he had no future prospects of higher income and deduction on account of uncertainty of life and also lump sum payment may be made. Deduction made in that case was 1/6th on both counts. Another case on the question of deduction cited by counsel, however, has to be read in a decision of Division Bench of Calcutta High Court in the case of Oriental Fire and General Ins. Co. Ltd. v. Khudiram Dutt 1980 ACJ 136 (Calcutta). At para 8 of the report, no reason is given at all for the view taken except that in the opinion of their Lordships, the percentage of deduction for acceleration of the estate should be 25 per cent and not 10 per cent, made by the Tribunal. On the other hand, their Lordships observed in the same paragraph that there is no "hard and fast rule that such deductions should be made; they are made for justice and fair play between the parties". However, in the course of dictation, at this stage, counsel has also cited some more cases on the question of deduction. Both cases are reported in the same volume of 1976 ACJ. The first case is of Marine and General Insurance Co. Ltd. v. Balkrishna Ramachandra Nayan 1976 ACJ 288 (Bombay) and the question raised in this case is considered therein at para 24 of the report. However, we do not read any reason therein also for the view taken except mere statement of the fact that the deduction formula adopted by the Tribunal did not suffer any illegality. The next case is that of New India Assurance Co. Ltd. v. Kahnu Charan Sahu 1976 ACJ 353 (Orissa). In this case, deductions at the rate of 6 per cent were allowed on lump sum payment, but no reasons are given for the view taken except holding that out of the compensation, "6 per cent has to be deducted on account of lump sum payment and uncertainties of life".
7. The other cases that counsel has cited on the quantum of compensation are reported in 1986 ACJ which may be examined now. The Rajasthan High Court enhanced the compensation in appeal to Rs. 16,300/- in the case of Heera Singh v. Dayal Singh 1986 ACJ 586 (Rajasthan) for fracture of the shaft of left tibia and fibula and also allowed 12 per cent interest from the date of the application till realisation. However, it does not appear if in the facts and circumstances of this case, for pain, suffering and confinement for treatment, anything was awarded as evidence to that effect is not discussed. The same learned Judge of the same High Court awarded a compensation of Rs. 23,700/- in the case of Azimulla Khan v. Shanti Devi 1986 ACJ 761 (Rajasthan). In that case itself, however it was held that in the cases of accident claims petition, stringent rules of limitation cannot be applied because the socio-economic object to be achieved by the statutory provision should be the paramount consideration with the Tribunal. That was a case of amputation of right hand and fracture of collar bone. The other decision is on the question of contributory negligence which is reported in the case of Rukmani Devi v. Rameshwar Datt 1986 ACJ 1116 (P&H) and in that case a sum of Rs, 25,000/- was awarded for two fractures of the right leg requiring hospitalisation for 20-25 days.
8. However, appellant's counsel Mr. Lahoti has placed reliance on a Division Beneh decision of this Court imploring us that the view of this Court should claim primacy. The decision is in the case of Madhiya v. Rameshchandra 1987 (I) MPWN 223. This Court, in appeal, enhanced the compensation to Rs. 30,000/- and also awarded interest at the rate of 12 per cent per annum in the case of a young boy of 28 years of age who was a skilled artisan earning Rs. 3/- per day when the accident took place. He has also placed reliance on a decision of a learned single Judge of Orissa High Court in the case of Jagabandhu Mohanty v. Hadibandhu Swain 1986 ACJ 770 (Orissa), which decision is also relied, albeit by Mr. Dubey, but in this case, Mr. R.C. Lahoti points out that a sum of Rs. 56,500/- was awarded as the compensation and from that amount, a deduction of 1/12th was allowed for lump sum payment. The injury in that case was the amputation of left leg below the knee of a village vendor earning Rs. 5/- per day. On the question of deduction, counsel has submitted that the view of this Court is different and has relied on the judgment in the case of Jayanti Prakesh v. M.P.S.R.T.C. 1987 (1) 244 (Sic). This Court has taken the view that deduction for lump sum payment is not a rule of law that could be made applicable universally in all cases. It has been further held by this Court that Under Section 110-CC, interest to be awarded should be 12 per cent and as such, interest awarded by the Tribunal was enhanced accordingly from 6 per cent.
9. However, Mr. Dubey has relied on a Division Bench decision of this Court in the case of Mannalal v. Stale of Madhya Pradesh 1986 ACJ 902 (MP). In that case, Tribunal had allowed interest at the rate of 4 per cent which was enhanced by this Court to 9 per cent per annum. However, in that case, it was not held that interest more than that cannot be allowed and the view recently taken by their Lordships of Supreme Court was not brought to the notice of the Division Bench in that case. We have no doubt that the law that now prevails in this country by vjrtue of Article 141 is that Under Section 110-CC, interest to be awarded should not be less than 12 per cent per annum. See Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), Jagbir Singh v. General Manager Punjab Roadways 1987 ACJ 15 (SC).
10. On the survey of authority cited, we are clearly of the view that the case in hand is comparable on facts to one in Madhiya v. Rameshchandra 1987 (I) MPWN 223, and the claimant/appellant has to be allowed lump sum amount of compensation which we assess at Rs. 30,000/- on all counts. We have considered not only the evidence adduced in the case on the question of loss of earning capacity, but we have also considered that for pain and suffering, the claimant/appellant could claim compensation which fact was ignored by the Tribunal. Indeed, the Tribunal has noted in the impugned award that the claimant had become almost a cripple and she was not able even to stand and walk properly. In that view of the matter, we do not think if any amount less than what we have assessed would do justice to her case. We are also of the view that from the meagre sum that we have awarded to her, it would not be reasonable to make further deduction from that amount. Indeed, this view we have taken because all courts have consistently taken this view and have developed a judicial consensus on the question of deduction, namely, that as rule of law to be applied universally, deduction is not to be made and indeed, there is no statutory provision in that regard that can be read and indeed, nothing has been pointed out to us.
11. Although at the conclusion of the judgment Mr. Dubey has still insisted that on the question of award of interest there remains a leeway for the court to walk through, having regard to the facts and circumstances of the case, we find, however, bound by the law laid down by their Lordships of the Supreme Court. True, it is that in a decision of a learned single Judge of the Karnataka High Court in the case of Adamkhan Mohamed v. Ramesh Raya Naik 1978 ACJ 409 (Karnataka) the question of interest was raised and it was held that because the case was pending for a long time, the interest awarded should be reduced from 6 to 5 per cent per annum. However, with due respect, we are not inclined to depart from the view we have already taken in the matter of award of interest.
12. For all the foregoing reasons, we hold that the claimant/appellant has to be awarded compensation and interest as directed above Accordingly, the appeal is allowed and the award passed by the Tribunal is set aside. The claimant shall be paid a sum of Rs. 30,000/- as compensation and interest thereon at the rate of 12 per cent per annum from the date of application till payment. It is not disputed that vehicle was insured with respondent No. 2 and as such, the award has to be satisfied by the insurer, namely, the second respondent as the sura awarded falls within the statutory liability of the insurer. Within three months, the claim awarded shall be satisfied by the insurer. We direct that certified copy of the judgment shall be delivered to the insurer's counsel on application being made in that regard on payment of usual costs.