Karnataka High Court
National Insurance Co. Ltd vs Renuka W/O. Suresh Bajanatri on 21 March, 2012
Author: L.Narayana Swamy
Bench: L Narayana Swamy
mfa 20523.12
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21st DAY OF MARCH, 2012
BEFORE
THE HON'BLE MR. JUSTICE L NARAYANA SWAMY
M.F.A NO.20523/2012 (MV)
Between:
National Insurance Co. Ltd.,
By its Divisional Manager,
Divisional Office, Radev Galli,
Belgaum, Herein Rep. by
National Insurance Co. Ltd.,
Regional Office, Cell,
Sujata Complex, P.B.Road,
Hubli-580 029,
Rep. by its Deputy Manager,
Appellant
(By Sri. R.R.Mane, Advocate)
And:
1. Smt.Renuka W/o.Suresh Bajantri,
Age 27 years, 0cc.: Household Work,
R/o.Siddapur, Tq.: Jamkhandi,
District Bagalkot.
2. Suresh Namdev Bajantri,
Age 31 years, 0cc.: Coolie,
R/o.Siddapur, Tq.: Jamkhandi,
District Bagalkot.
c
mfa 2052312
3. Smt.Shakuntala W/o.Annappa Kagawad,
Age 63 years, occ.: Household Work,
R/o.Halyal, Tq. :Athani, Dist.:Belgaum.
4. Ashol S/o.Annappa Kagawad,
Age 43 years, 0cc.: Business,
R/o.Halyal, Tq. :Athani, Dist. :Belgaum.
5. Chandrakanth S/o.Annappa Kagawad,
Age 41 years, 0cc.: Business,
R/o.Halyal, Tq. :Athani, Dist. :Belgaum.
6. Ravi S/o.Annappa Kagawad,
Age 39 years, 0cc.: Business,
R/o.Halyal, Tq. :Athani, Dist. :Belgaum.
Respondents.
This MFA is filed under Section 173(1) of MV Act
1988 against the judgment and award dated 15.09.2011,
passed in MVC No.347/2009 on the file of the Addi. Senior
Civil Judge, MACT No.69, Jamkhandi, awarding the
compensation of Rs.1,53,000/- with interest at the rate of
6% p.a. from the date of petition till its realisation.
This appeal coming on for admission this day, the court
delivered the following:
JUDGMENT
The Appellant--Insurance Company has filed this appeal against the judgment and award dated 15.09.2011, passed in MVC No.347/2009 on the file of the Addl. Senior Civil Judge, K mfa 20523.12 MACT No.69, Jamkhandi on the following grounds namely, when an accident has taken place on 28.11.2008, the boy of 5 years died and the place where the accident has taken place is not a public place. Secondly, the tractor and trailer, which was insured under the farmer package policy did not cover the risk.
The said grounds have been rejected on the ground that Farmer's Package Policy itself is for the tractor and trailor for agricultural activities. The policy is issued under the Farmers Package Policy under which the tractor and trailer necessarily has to be involved in agricultural operations in the agricultural field. The question is whether it is a public place or not as contemplated in Clause 34 of Section 2 of the Motor Vehicles Act. The said clause 34 of Section 2, reads thus:
public place means a road, street, way or other place. whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;
mfa 2052312 4 In the light of the said provision, the accident took place in an agricultural field definitely attracts the said provision for a limited extent to claim compensation.
2. The submission in respect of non-agricultural activities carried on by the tractor, the same has been rejected by the Tribunal and I do not find any materials to entertain the said contention.
3. The fact available in the claim petition is that, Thi1e the tractor was loaded with bricks, the accident took place. Merely, the tractor was loaded either with bricks or stones or goods itself is insufficient and inference cannot be drawn that the vehicle was used for commercial purpose. On this the judgment referred by the learned Counsel for the appellant reported in 2004 ACJ 1909 in the case of National Insurance Co. Ltd., Vs. Chinnamma, is a case where vegetables in a tractor for sale has been held as for commercial purpose. This judgment is of no use for the appellant for the reason that, what is loaded in the tractor is not very important, rnfa 2052312 whether it is loaded in the tractor for agricultural purpose or part and parcel of agricultural purpose is to be looked into. In the instant case, no such materials are found. If it is a case of the Insurance Company that bricks were loaded for selling or hiring purpose, then it is a commercial purpose. If the same is used for agricultural purpose for putting agricultural infrastructure, then it is to be held as agricultural purpose.
4. The next aspect for which the matter was adjourned on the last two occasions at the request of the appellant's Counsel is whether this Court can enhance the compensation in the appeal filed by the Insurance Company, for which the learned Counsel submitted that, without issuing a notice which is mandatory, enhancement cannot be made, for which the learned Counsel referred Section 168 of the Motor Vehicles Act and sub section (1) of the said provision makes it mandate to the Tribunal to issue notice after a claim petition is filed under Section 166 of the Motor Vehicles Act for the purpose of awarding compensation. Further, it contemplates that, a Tribunal is bound to award compensation which rnfa 2052312 6 appears to it as 'just', after complying the issuance of notice to the respondent, namely, owner and Insurance Company. If that is the case, in a statutory appeal filed under Section 173 of the said Act, whether this Court could examine as to whether the Tribunal has awarded just compensation or not, wherever if it comes to the knowledge of this Court in an appeal filed either by the Insurance Company or by the claimant, an error has been committed or injustice has been done, then in those circumstances, even notwithstanding the technicalities, the Court has to uphold the provisions of law. In a case of this nature, where an appeal is filed either by the Insurance Company challenging the award, if the Court finds that a just compensation has not been awarded, in those circumstances, definitely, this Court can exercise the power in awarding a just compensation. Whether notice is required to be issued as it is mandatory under Section 168 or not, the answer would be, the notice could be dispensed for the reason that, wherever the adverse order is likely to be passed against a person or the claimant, then he is to be heard for which notice is required.
rnfa 2052312 7 But when a judgment is to be rectified in order to award a just compensation, it is in no way adverse to the interest of the claimant, then notice is not mandatory.
5. In the light of the discussions, I have examined the order passed by the Tribunal and found that the Tribunal has erred in not awarding just compensation. The facts leading to this case is a boy aged about 2 ½ years died on 28.11.2008 in an accident committed by the tractor and trailor, which was insured under Farmers Package Policy. The claim has been made by the parents of the deceased and on considering the facts of both the parties and by following the judgment of Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr. Reported in 2009 ACJ 1298 by taking a notional income of Rs.15,000/- and multiplier of 15, Rs.1,50,000/- has been awarded under loss of dependency after deducting 1/3 towards personal expenses. The Tribunal has also awarded Rs.1,000/- towards transportation of dead body and Rs.2,000/- towards cremation and other rituals.
Ic, rnfa 20523.12 8
6. The learned counsel for the appellant referred Order 41 CPC and submitted that there is no scope for the first appellate court to enhance the compensation without issuing notice to the other side. It is submitted, at the most, the appeal if it is not merited admission, it could be dismissed at the admission stage itself,
7. The said submission of the learned counsel when the appeal is filed under CPC. This is an appeal filed under Section 173 of the Motor Vehicles Act. A duty is cast on the claims tribunal to award just and reasonable compensation to the accident victims and even if the claim made in the claim petition is lesser when compared to just compensation, the lesser claim made in the claim petition is not a bar to award just compensation. So also when this Court finds in an appeal that the compensation awarded by the claims tribunal is not a just compensation, it can always rectify the same and award mfa 20523.12 9 just compensation irrespective the claim made in the claim petition and the claimant filing appeal or otherwise.
8. Further dispensation of notice depends upon the facts and circumstances. The appeal of the insurance company challenging the liability also could be considered for reduction of the amount ordered on the principles of "just" compensation. If the submission of the learned counsel not to enhance the compensation since the claimant has not filed appeal or cross objection is to be accepted, it would cause injustice to the claimant/s. The society in which we are living and also taking into account lack of literacy and legal awareness, most of the times, it prevents people from approaching the court to prosecute their just cause. Though it is made mandatory on the part of the Government under Article 39-A of the Constitution to provide legal aid and spread legal awareness, the expected goal is yet to be achieved. In the K mfa 2052312 10 circumstances, the courts should take judicial notice of fate of poor victims of the motor accidents. Therefore, the contention of the learned counsel that compensation cannot be enhanced without notice to the claimants in the appeal filed by the insurance company cannot be accepted and it is hereby rejected.
9. In the case on hand, the Claims Tribunal has deducted one-third out of the notional income of Rs, 15,000/- towards personal expenses of the deceased.
The said deduction is improper in view of the fact that the deceased was not a major and a non-earning member.
The income taken at Rs.15,000/- is a notional income and the multiplier 15 both are drawn from Second Schedule of the M V Act. Therefore, the calculation would be Rs.15,000/- x 15 = Rs.2,25,000/- which the compensation to which the claimants are entitled under the head loss of dependency. This is supported by the mfa 20523.12 11 decision in Manju Devi Vs. Musafir Paswan, VII (2005) SLT 257 which is followed in II 2006 ACC 1997, in the case of Sobhagya DeW & Ors. Vs. Sukhvir Singh & Ors, where Rajsthan High Court has awarded Rs.2,25,000/- for the death of 12 years old boy.
10. For the death of 5 years old boy, Delhi High Court in Syam Narayan Vs. Kitty Tours & Travels, 2006 ACJ 320 has also awarded Rs.2,25,000/-. In this regard, it is quite useful to extract some of the paragraphs from decision in R.K.Malik vs. Kiran Pal, 2009(8) Scale 451, as under: -
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 Haisburys Laws of England, 4th Edition, Vol. 12, page 446, it has been stated with regard to non-pecuniary loss as follows:
mfa 2052312 12 "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>1 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, mfa 20523.12 13 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 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 x mfa 2052312 14 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:
1< mfa 20523.12 15
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, Re Lord Haisbury, 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.
24. It is extremely difficult to quantify the non pecuniary compensation as it is to a great extent based upon the sentiments and emotions. But, the same could not be a rnfi 20523.12 16 ground for non-payment of any amount whatsoever by stating that it is difficult to quantify and pinpoint the exact amount payable with mathematical accuracy. Human life cannot be measured only in terms of loss of earning or monetary losses alone. There are emotional attachments involved and loss of a child can have a devastating effect on the family which can be easily visualized and understood. Perhaps, the only mechanism known to law in this kind of situation is to compensate a person who has suffered non-pecuniary loss or damage as a consequence of the wrong done to him by way of damages / monetary compensation. Undoubtedly, when a victim of a wrong suffers injuries he is entitled to compensation including compensation for the prospective life, pain and suffering, happiness etc., which is sometimes described as compensation paid for 'loss of expectation of life. This head of compensation need not be restricted to a case where the injured person himself initiates action but is equally admissible if his dependant brings about the action.
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 exfremely difficult to quantify. In view of the uncertainties and contingencies of human life, what mfa 20523.12 17 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.
27. In the case of Lata Wadhwa (supra), wherein several persons including children lost their lives in a fire accident, the Court awarded substantial amount as K rnfa 20523.12 18 compensation. No doubt, the Court noticed that the children who lost their lives were studying in an expensive school, had bright prospects and belonged to upper middle class, yet it cannot be said that higher compensation awarded was for deprivation of life and the pain and suffering undergone on loss of life due to financial status. The term conventional compensation used in the said case has been used for non pecuniary compensation payable on account of pain and suffering as a result of death. The Court in the said case referred to Rs. 50, 000/- as conventional figure. The reason was loss of expectancy of life and pain and suffering on that account which was common and uniform to all regardless of the status. Unless there is a specific case departing from the conventional formula, non- pecuniary compensation should not be fixed on basis of economic wealth and background.
28. In Lata Wadhawa case (supra), herein the accident took place on 03.03.1989, the multiplier method was referred to and adopted with approval. In cases of children between 5 to 10 years of age, compensation of Rs. 1.50 lakhs was awarded towards pecuniary compensation and in addition a sum of Rs. 50,000/- was awarded towards conventional compensation. In the case of children between 10 to 18 years compensation of rnfa 2052312 19 Rs. 4.10 lakhs was awarded including conventional compensation. While doing so the Supreme Court held that contribution of each child towards family should be taken as Rs. 24,000/- per annum instead of Rs. 12, 000/- per annum as recommended by Justice Y. V.Chandrachud Committee. This was in view of the fact that the company in question had an un-written rule that every employee can get one of his children employed in the said company.
29. In the case of M.S. Grewal v. Deep Chand Sood MANU/SC/0506/2001, wherein 14 students of a public school got drowned in a river due to negligence of the teachers. On the question of quantum of compensation, this Court accepted that the multiplier method was normally to be adopted as a method for assigning value of future annual dependency. It was emphasized that the Court must ensure that a just compensation was awarded.
30. In Grewal case (supra), compensation of Rs. 5 lakhs was awarded to the claimants and the same was held to be justified. Learned Counsel for the respondent No. 3, however, pointed out that in the said case the Supreme Court had noticed that the students belonged to an affluent school as was apparent from the fee structure and therefore the compensation of Rs. 5 lakhs as mfa 2052312 20 awarded by the High Court was not found to be excessive. It is no doubt true that the Supreme Court in the said case noticed that the students belonged to an upper middle class background but the basis and the principle on which the compensation was awarded in that case would equally apply to the present case.
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 b this Court in General Manager, Kerala S. R. T. C. v. Susamma Thomas(1994) 2 SCC 176; Sarla Dixit v. Baiwant Yadav (1996) 3 SCC 179; and Lata Wadhwa case (supra).
rnfa 2052312 2!
32. In view of discussion made hereinbefore, it is quite clear the claim with regard to future prospect should have been be addressed by the courts below. While considering such claims, child's performance in school, the reputation of the school etc. might be taken into consideration. In the present case, records shows that the children were good in studies and studying in a reasonably good school. Naturally, their future prospect would be presumed to be good and bright. Since they were children, there is no yardstick to measure the loss of future prospects of these children. But as already noted, they were performing well in studies, natural consequence supposed to be a bright future. In the case of Lata Wadhwa (supra) and M. S. Grewal (supra), the Supreme Court recognised such future prospect as basis and factor to be considered. Therefore, denying compensation towards future prospects seems to be unjustified. Keeping this in background, facts and circumstances of the present case, and following the decision in Lata Wadhwa (supra) and M. S. Grewal (supra), we deem it appropriate to grant compensation of Rs. 75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision.
rnfa 2052312 We would like to clarify that this amount i.e. Rs. 75,0OO/- is over and above what has been awarded by the High Court.
33. Besides, the Courts have been awarding compensation for pain and suffering and towards non- pecuniary damages. Reference in this regard can be made to R. D. Hattangadi case (supra). Further, the said compensation must be just and reasonable. This Court has observed as follows in State of Haryana v. Jasbir Kaur (2003) 7 SCC 484:
7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense damages which in turn appears to it to be just and reasonable. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be just and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and mfa 2052312 23 quantify the amount of compensation, which should be just. What would be just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. 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. The expression "just denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just."
34. So far as the pecuniary damage is concerned we are of the considered view both the Tribunal as well as the High Court has awarded the compensation on the basis of Second Schedule and relevant multiplier under the Act. However, we may notice here that as far as non-
mfa 2052312 24 pecuniary damages are concerned, the Tribunal does not award any compensation under the head of non-- pecuniary damages. However, in appeal the High Court has elaborately discussed this aspect of the matter and has awarded non-pecuniary damages of Rs. 75,000. Needless to say, pecuniary damages seeks to compensate those losses which can be translated into money terms like loss of earnings, actual and prospective earning and other out of pocket expenses. In contrast, non-pecuniary damages include such immeasurable elements as pain and suffering and loss of amenity and enjoyment of life. In this context, it becomes duty of the court to award just compensation for non-pecuniary loss. As already noted it is difficult to quantify the non- pecuniary compensation, nevertheless, the endeavour of the Court must be to provide a just, fair and reasonable amount as compensation keeping in view all relevant facts and circumstances into consideration. We have noticed that the High Court in present case has enhanced the compensation in this category by Rs. 75, 000/- in all connected appeals. We do not find any infirmity in that regard.
I mfa 2O52312 25
11. In the light of the judgments referred supra, I deem it proper to mention that the Tribunal has committed an error and the same has been rectified even without the claim filed by the claimant/s. I also award Rs.75,000/- towards non pecuniary damages following the decision in R.KMaIik vs. Kiran Pal, 2009(8) Scale 451.
12. The learned counsel has relied upon the judgment in Kaushlya Devi vs., Sri Kiran Arora & others reported in CDJ 2007 SC 596, where for the death of 14 years old boy, a compensation awarded at Rs. 1 lakh has been affirmed. The said judgment is not followed in view of the latest judgment in R K Malik's case supra.
13. In view of the above discussion, the appeal is disposed of awarding a total compensation of Rs.3,00,000/- to the claimants along with interest at 6%.
The enhanced compensation is to be kept in Fixed Deposit mfa 2052312 26 in any Nationalized Bank for a period of five years and the claimants are not entitled to draw any interest out of it.
14. The amount in deposit is to be transmitted to the claims tribunal.
Sd/ JUDGE gab/