Andhra Pradesh High Court - Amravati
M/S The New India Assurance Co.Ltd. vs T.Roja Rani on 25 April, 2025
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
+ M.A.C.M.A. NO: 115/2021
% Dated: 25.04.2025
# The New India Assurance Co. Limited
and another ... Appellants
and
$ T.Roja Rani and others ..... Respondents
! Counsel for the Appellants : Sri C.Prakash Reddy
^ Counsel for the Respondents 1 to 4/
claimants : Sri Rahul Chowdary,
representing Ms.S.Pranathi.
< GIST :
> HEAD NOTE :
? Cases referred :
1. (2009) 6 Supreme Court Cases 121
2. (2009)13 SCC 654
3. (2018) 6 SCC 765
4. ( 2018) 3 SCC 365
5. (2020) 13 SCC 486
6. (2014) 4 SCC 511
7. 2024 SCC Online SC 2584
8. 2024 SCC Online AP 3360
9. 2024 SCC Online AP 4073
10. 2023 SCC OnLine AP 1725
11. 2025 SCC OnLine SC 455
12. (2013) 9 SCC 166
13. (2015) 1 SCC 539
14. 2022 SCC OnLIne SC 1699
15. (2017) 16 SCC 680
16. (2018) 18 SCC 130
17. (2021) 11 SCC 780
18. 2024 SCC OnLine SC 1901
19. 2025 SCC OnLine SC 455
20. 2022 SCC OnLine SC 1683
21. (2009) 6 Supreme Court Cases 121
22. (2015) 1 SCC 539
23. (2021) 6 SCC 188
24. (2021) 2 SCC 166
25. (2020) 4 SCC 228
26. (2011)14 SCC 639
27. (2021) 16 SCC 467
28. 2024 SCC OnLine AP 3955
2
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
+ M.A.C.M.A. NO: 115/2021
% Dated: 25.04.2025
The New India Assurance Co. Limited
and another ...... Appellants
and
T.Roja Rani and others ..... Respondents
DATE OF ORDER PRONOUNCED: 25 .04.2025
(per Hon‟ble Sri Justice Ravi Nath Tilhari)
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their Lordship wishes Yes/No
to see the fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
________________________
CHALLA GUNARANJAN, J
3
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
M.A.C.M.A. NO: 115/2021
JUDGMENT:(per Hon‟ble Sri Justice Ravi Nath Tilhari) Heard Sri C.Prakash Reddy, learned Standing Counsel for the appellants-insurance company and Sri Rahul Chowdary, learned counsel representing Ms.S.Pranathi, learned counsel for respondents 1 to 4/claimants.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (in short „the M.V.Act‟) has been filed by the appellants, the New India Assurance Company Limited, being aggrieved from the judgment and award dated 18.07.2019 passed by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Tirupati(in short „the Tribunal‟) in M.V.O.P.No.191 of 2014. The aforesaid M.V.O.P. was filed by the claimants, the legal heirs of the deceased, Katta Murali, the present respondents 1 to 4.
I. Facts:
3. The case of the claimants was that Katta Murali died in the motor accident on 16.10.2013, when he was proceeding on his car bearing registration No.TN-20/CV-4497 and reached near 4 Bhimulivaripalem check post, Tada Mandal on NH 16 road at about 12.30 a.m. at that time the driver of M/s.Vayodoot Road Carriers Pvt. Ltd, 1st respondent herein, parked the lorry bearing registration MH- 06/AQ-4958 (in short „the offending vehicle‟) negligently on the right side of the road, very close to the road divider without parking lights and spot signals. The parked lorry was not having tail lights and radium stickers indicating the circumference to alert the driver of the vehicles proceeding on its back. Due to that the deceased was unable to identify the parked offending lorry. He applied the sudden brakes to avoid the accident. In spite thereof, the car went and dashed the lorry on its back. Due to that, the deceased sustained head injury and died on the spot. The vehicle was also badly damaged. The legal heirs of the deceased filed the claim petition, claiming a total compensation of Rs.40,00,000/- under different heads with interest @ 18% p.a. from the date of filing of petition till realization. Their further case was that the deceased was aged about 26 years on the date of the accident and he was working as Lecturer in Computer Science and Engineering in S.A.Engineering College, Chennai, on consolidated salary of Rs.22,000/- p.m. during probation period. They submitted that the driver of the offending lorry was negligent in causing the accident and that the claimants 5 were entitled for the compensation amount as claimed jointly and severally against the owner of the offending vehicle and the insurer.
4. The present appellants, respondents 2 and 4 respectively in M.V.O.P filed their separate counters. They denied the material contentions of the claim petitions and opposed the petition. Their case was that the age of the deceased as mentioned was on the lower side and the income on the higher side. The claimants did not file any documents to show that the deceased was working as Lecturer and was getting the income as mentioned. The plea of non- joinder of necessary parties, in as much as their case was that there were other legal heirs but they were not impleaded, was also raised. It was pleaded that there was no negligence on the part of the driver of the offending lorry. He parked lorry on the left side margin with traffic rules. They also pleaded that the deceased drove the vehicle in a rash and negligent manner causing the accident, as he lost control over the car and hit the lorry from behind. The plea was also taken that the police had verified the incident and filed the case against the deceased. The same was abated after enquiry due to his death. The deceased had no valid driving license and hence the insurance company was not liable to pay compensation to the claim petitioners. The sole negligence on the part of the deceased was 6 pleaded. It denied its liability to pay compensation and also sought protection of Sections 147, 148 and 149 of the M.V.Act.
5. In M.V.O.P, the 1st respondent is the owner of the offending vehicle insured with the 2nd respondent-M/s New India Assurance Company Ltd., represented by its Divisional Manager, Tirupati. The 3rd respondent-Katta Pradeep in M.V.O.P is the owner of the deceased‟s vehicle and insured with the 4th respondent-M/s New India Assurance Company Ltd., represented by its Divisional Manager, Tirupati in M.V.O.P. So both the vehicles, the offending vehicle and also the vehicle being driven by the deceased were insured with the same insurance company.
6. The Tribunal framed the following issues:
"1. Whether the accident in question occurred on account of rash and negligent driving of Lorry bearing Registration No. MH-06/AQ-4958 by its driver, causing death of the decased Katta Mohan?
2. Whether the petitioners are entitled for compensation? If so, to what amount and from which of the respondent?
3. To what relief?"
7. The claim petitioners, in evidence, examined the first claimant as PW.1 and PW.2 and PW.3 and exhibited Exs.A1 to A12. Ex.X1 was also marked. On behalf of the respondents 2 and 4, RW.1 and RW.2 were examined and Ex.B1 and Ex.B2 were marked. 7
II. Award of the Tribunal:
8. The Tribunal, on consideration of the material on record, recorded the finding on issue No.1 that the accident occurred on account of negligent parking of the driver of the 1st respondent insured with the 2nd respondent while discharging his duties, caused death of the deceased out of motor accident. Issue No.1 was thus, answered in favour of the claim petitioners. On issue No.2, it held that the claimants were entitled for the compensation. On the point of compensation, the Tribunal had taken monthly income of the deceased at Rs.20,000/- as a private employee. 40% of the monthly income was added towards future prospects. The age of the deceased was recorded as 26 years on the date of the accident. So the multiplier of „17‟ as per the judgment in Sarla Verma Vs Delhi Transport Corporation and Another 1 , was applied. 1/4th of the income was deducted towards personal expenses of the deceased. The Tribunal arrived at an amount of Rs.2,52,000/- as loss of dependency, annually, and multiplied with „17‟, the amount came to Rs.42,84,000/-. To the aforesaid amount, the Tribunal added an amount of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively under the heads loss of estate, loss of consortium and funeral expenses respectively. It awarded total compensation of 1 (2009) 6 Supreme Court Cases 121 8 Rs.43,54,000/- with interest at 9% p.a. from the date of claim petition till deposit. It also awarded the costs. It made apportionment amongst the claimants. The claim against the respondents 3 and 4 in M.V.O.P was dismissed. The 3rd respondent is the owner of the car of the deceased and the 4th respondent is the insurance company of that car.
9. The Tribunal, thus, partly allowed the M.V.O.P vide judgment and award dated 18.07.2019.
10. Challenging the award, the appeal has been filed under Section 173 of the M.V.Act.
III. Submissions of the learned counsels: (i) For the appellants:
11. Learned counsel for the appellants submitted that PW.2- M.Rama Krishna is a planted witness. PW.2 was not shown as witness neither at the time of inquest report nor in the charge sheet. He submitted that PW.2 is said to be running the tea stall near the place of accident but as per the site plan (Ex.A4), the tea stall belongs to Sri P.Rama Krishna and not to PW.2. There is no other witness to prove negligence of the lorry driver. He further submitted 9 that PW.2 could not be the eye witness as his name was not mentioned in the inquest report or the charge sheet.
12. Learned counsel for the appellants further submitted that the rough sketch-Ex.A4 shows that there was negligence on the part of the deceased in driving the car. There was no evidence with respect to the negligence of the driver of the lorry. As the deceased dashed a front going lorry, he was at fault. The lorry was moving and was not stationed. The deceased drove the vehicle in a rash and negligent manner and he lost control and hit the lorry from behind. The deceased was solely responsible. So, his submission was that the claimants were entitled at the most, for the compensation only under no fault liability.
13. Alternatively, learned counsel for the appellants submitted that even if it be taken to be a case of stationed lorry, it is a case of contributory negligence on the part of the deceased as he dashed the lorry coming from behind. The finding recorded by the Tribunal that there was sole negligence of the driver of the lorry is unsustainable. He submitted that in such a case, the contributory negligence would be to the extent of 50% each of both the driver of the lorry and the deceased. He referred to the inquest report-Ex.A2, (translation memo at page No.5); the FIR, and the final report, to 10 contend that the deceased was at fault. He placed reliance in Raj Rani and others v. Oriental Insurance Company 2 and Nishan Singh and others v. Oriental Insurance Company Limited3.
14. Learned counsel for the appellants further submitted that the income of the deceased has been determined on the higher side. Ex.A7(Salary Slips) were not signed and PW.3 had no authority to depose on the income of the deceased. The compensation awarded is highly excessive.
(ii) For the claimants/respondents 1 to 4:
15. Learned counsel for the claimants/respondents 1 to 4 submitted that it is a case of accident with stationed lorry, which was parked on the road and without any parking lights or precautionary measures. PW.2 was the eye witness of the incident. The insurance company did not lead any evidence to support that PW.2 was not the eye witness. The driver of the offending lorry was not examined by the insurance company. The finding on the point of sole negligence of the driver of the lorry as recorded by the Tribunal cannot be faulted.
2 (2009)13 SCC 654 3 (2018) 6 SCC 765 11
16. Learned counsel for the claimants/respondents 1 to 4 further submitted that so far as the income of the deceased is concerned, Ex.A6 is the appointment letter and Ex.A7-salary slips. The evidence of PW.3 supported the monthly income. He submitted that though as per the evidence on record, the monthly salary was Rs.22,000/- p.m but the Tribunal determined at Rs.20,000/- p.m. The deceased was M.Tech graduate. He was a Lecturer and his age was 26-27 years. However, the finding on the point of income at Rs.20,000/- p.m, considering the job of the deceased and his educational qualifications, the claimants are not challenging.
17. The learned counsel for the respondents 1 to 4/claimants further submitted that the Tribunal legally erred in not granting the amount under the heads of loss of consortium as also other conventional heads, as per the settled legal position. The amount of compensation thus awarded is not fair and just compensation but is on the lower side, which deserves to be enhanced. The claimants are entitled for grant of just compensation in the present appeal.
18. Learned counsel for the respondents 1 to 4/claimants, placed reliance on the following judgments:
12
Archit Saini v. Oriental Insurance Company Limited 4 , Sunita v.
Rajasthan State Road Transport Corporation 5 , Meera Devi v.
Himachal Pradesh Road Transport Corporation 6 , Sushma v. Nitin Ganapati Rangole 7, Reliance General Insurance Limited v. Ponga Geetha8, and APSRTC v. Jartha Sujatha9.
(iii) Reply submissions of appellants' counsel:
19. In reply, learned counsel for the appellants submitted that the claimants have not filed any appeal nor any cross objections. So they are not entitled for any enhanced compensation, even if it be found that the claimants are entitled for higher compensation than the compensation as awarded by the Tribunal.
IV. Points for determination:
20. In view of the aforesaid submissions, the following points arise for our consideration:
1. Whether the driver of the offending lorry was solely negligent or there was contributory negligence on the part of the deceased? and if there was contributory negligence, what would be its extent?
2. Whether the amount of compensation as awarded is just and fair compensation or it is excessive, as 4 2018) 3 SCC 365 5 (2020) 13 SCC 486 6 (2014) 4 SCC 511 7 2024 SCC Online SC 2584 8 2024 SCC Online AP 3360 9 2024 SCC Online AP 4073 13 contended by the appellants‟ counsel or it is on the lower side as contended by the claimants‟ counsel?
3. Whether in the absence of any appeal or cross objections by the claimants, they can be awarded enhanced compensation, if the finding on point No.2 be that the claimants are entitled for enhanced compensation, being just and fair?
4. Whether the impugned judgment of the Tribunal suffers from illegality and deserves interference?"
V. Analysis: Point No.1: Contributory Negligence:
21. On the point of negligence the Tribunal, considered the evidence of PW.2, the eye witness of the accident. He deposed that at the time of accident, he was in the tea stall. At that time, one lorry bearing registration No.MH 06 AQ 4958 was parked on the right side of road, very close to road divider without parking lights and spot signals and the driver of lorry got down from the lorry, went to the check post to talk with check post staff, at that time the car, which was coming on the same direction, on seeing the parked lorry, applied sudden brakes. In spite of it, his car went and dashed the stationed lorry on its back. The Tribunal considered that evidence, including his cross examination and believed the evidence of PW.2 as worthy of credence as eye witness. It recorded that it was due to wrong parking of the offending vehicle by its driver and without parking lights and signals, the deceased could not notice the parked 14 vehicle at some distance and thereby hit his vehicle to the offending vehicle, in spite of his applying the sudden brakes.
22. Learned counsel for the appellants, submitted that PW.2 was not the eye witness and the Tribunal erred in considering him as the eye witness. The submission is that as per the site plan in which the tea stall has been shown, it refers to the tea stall belonging to P.Rama Krishna and not to M.Rama Krishna. PW.2 is M.Ramakrishna. He submitted that the person by name P.Ramakrishna was not examined. We do not find any force in the aforesaid submission and based thereon, it cannot be said that PW.2 is not the eye witness. The insurance company did not file any evidence before the Tribunal, to show that there were two persons by name M.Rama Krishna and P.Rama Krishna. PW.2, specifically deposed "....when I was in my tea stall....." He was not cross examined on „my tea stall‟. The deposition of PW.2 in his cross examination, does not show that even any suggestion was made to him in the cross examination made by the respondents 2 and 4 in the M.V.O.P. that he (M.Rama Krishna) was not the owner of the tea stall or that the tea stall belonged to one P.Ramakrishna and not to M.Rama Krishna, PW.2. It appears to be a minor mistake of mentioning the name in the site plan with respect to the person to 15 whom the tea stall belongs. So, on the aforesaid submission, we do not find force that PW.2 is not the eye witness of the incident.
23. Learned counsel for the appellants submitted that PW.2 could not be the eye witness because his name was not mentioned in the inquest report or in the charge sheet filed with respect to the accident.
24. We do not find force in the above submission as well. In Sunitha (supra), the deposition of one of the witnesses namely Bhagchand was held unreliable by the High Court because his name was not mentioned in the list of witnesses in the criminal proceedings. The Hon‟ble Supreme Court, held that the approach of the High Court was mystified. The strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act. The standard of proof is one of the preponderance of probability. The Hon‟ble Apex Court observed that there is nothing in that Motor Vehicles Act to preclude a cited witness in a motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross-examine the witness concerned. In the present case, the witness namely PW.2 was cross examined and consequently, there was fair opportunity. Simply because his name 16 does not find mention in the inquest report or in the charge sheet, he cannot be disbelieved as the eye witness.
25. Relevant part in Paras 29 and 30 Sunitha (supra), read as under:
"29. The next question is whether the purported shortcomings in the evidence of Bhagchand Khateek (AD 2) and the lack of evidence of the pillion rider on the motorcycle, Rajulal Khateek, would be fatal to the appellants' case. As regards the evidence of Bhagchand, the High Court found that the deposition of the said witness was unreliable because his name was not mentioned in the list of witnesses in the criminal proceedings and also because he was unable to tell the age of the pillion rider. Besides, the said witness lived in Pakhala Village, which was 3 (three) km away from the accident spot and hence, he could not have been near the said spot when the accident occurred. The Tribunal had dealt with these objections quite substantially and, in our opinion, correctly, in its judgment, wherein it records......:"
30. Clearly, the evidence given by Bhagchand withstood the respondents' scrutiny and the respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross-examination of this witness by the respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (AD 2) evidence from the viewpoint of him not being named in the list of eyewitnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the appellants. This approach of the High Court is mystifying, especially in light of this Court's observation (as set out in Parmeshwaris and reiterated in Mangla Ram) that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross-examine the witness concerned. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross-examination, for which opportunity was granted to the respondents by the Tribunal."
17
26. In Archit Saini (supra) also, the Hon‟ble Apex Court held that it is well settled that the nature of proof required in cases concerning accident claims is qualitatively different from the one in criminal cases, which must be on preponderance of probabilities.
27. The evidence of PW.2 shows that the deceased, travelling in Car applied sudden brakes. So, he took all care what was expected at that time. The date of the accident is 16.10.2013 and the time is 12.30 a.m. Any evidence has not been filed by the appellants- insurance company to show that there were sufficient lights to see that there was a stationed lorry. On the contrary, the evidence on record shows that the offending vehicle was parked to the road side divider without parking lights and spot lights signals. The driver of the offending vehicle by leaving the vehicle, stationed on the road, got down from the offending vehicle and went to the check post to talk to the check post staff. The said act, clearly shows the negligence on the part of the offending vehicle. The finding thus, recorded on the point of sole negligence of the driver of the offending lorry and no negligence on the part of the deceased, is based on the evidence on record of the eye witness of the accident and on its correct appraisal. 18
28. A Coordinate Bench of this Court in National Insurance Company Ltd. v. Suseelamma 10 observed and held that the question of contributory negligence arises when there has been some act or omission on the claimant‟s part, which has materially contributed to the damage caused and is of such a nature that it may be properly described as „negligence‟. Negligence ordinarily means breach of a legal duty to care, but when used in the expression „contributory negligence‟, it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an „author of his own wrong‟. Such questions are decided on the basis of the evidence on record and standard of proof by preponderance of probabilities. Paras 37 to 42 are reproduced as under:
"37. In Anitha Sharma v. New India Assurance Company Limited ((2021) 1 SCC 171), the Hon'ble Apex Court held that the strict principles of evidence and standards of proof like in a criminal trial are inapplicable in Motor Accident Claim Cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true.
38. In Anitha Sharma (supra), the Hon'ble Apex Court referred to its previous judgment in Dulcina Fernandes v. Joaquim Xavier Cruz((2013) 10 SCC 646), in which it was held that the plea of negligence on the part of the first respondent who was 10 2023 SCC OnLine AP 1725 19 driving the pick-up van as setup by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt.
39. Even, R.W.1, in his cross-examination, by seeing the accident photo deposed "that the lorry came on wrong side and dashed against the Car." Though he added that he was not at fault on the accident.
40. In Usha Rajkhowa v. Paramount Industries ((2009) 14 SCC
71), the Hon'ble Apex Court observed and held that the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as „negligence‟.
Negligence ordinarily means breach of a legal duty to care, but when used in the expression „contributory negligence‟ it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an „author of his own wrong‟.
41. We find that there is absolutely no evidence to suggest that there was any failure on the part of the Maruti Car driver to take any particular care or that he had breached his duty in any manner. In this respect, the appellant Insurance Company has failed to discharge its burden to prove the contributory negligence on the part of the deceased driver of the Maruti Car.
42. We are satisfied that on the preponderance of evidence, including the evidence of P.W.2, the eyewitness, and in the absence of any corroboration of the evidence of R.W.1, the driver of the offending lorry vehicle, no fault can be found in the finding of the Tribunal that the accident was caused due to rash and negligent driving of the driver of the lorry and there was no contributory negligence on the part of the deceased driver of the Maruti Car. We affirm those findings on consideration of evidence by us, recorded by the Tribunal in the present case."
29. Recently in Prabhavathi v. Managing Director, Bangalore Metropolitan, Transport Corporation 11 , the Hon‟ble Apex Court, while referring to its judgment in Jiju Kuruvilla v. Kunjujamma Mohan 12 , observed that in the absence of any direct or 11 2025 SCC OnLine SC 455 12 (2013) 9 SCC 166 20 corroborative evidence on record, it cannot be assumed that the accident occurred due to the rash and negligent driving of both the vehicles. It also referred to the judgment in Kumari Kiran v. Sajjan Singh13, in which it was observed that on the allegations simplicitor, it cannot be presumed that the accident occurred due to rash and negligent driving of both vehicles, for having driven at high speed. It was further observed that under the Motor Vehicles Act, it is established that in compensation cases, the strict rules of evidence as used in criminal trials do not apply. Instead, the standard of proof is based on the preponderance of probabilities.
30. In Prabhavathi (supra), the Hon‟ble Apex Court further observed referring to Rajwati alias Rajjo v. United India Insurance Company Ltd.14 that the Motor Vehicles Act is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal‟s role is to award just and fair compensation.
31. It is apt to refer paragraphs 18 to 20 of Prabhavathi (supra) as under:
"18. Reference in this connection may also be made to the observations made by this Court in the case of Sunita v. Rajasthan State Road Transport Corporation, (2020) 13 SCC 486 wherein it was observed as under:--13
(2015) 1 SCC 539 14 2022 SCC OnLIne SC 1699 21 "It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
19. Similarly, in the case of Kusum Lata v. Satbir, (2011) 3 SCC 646, this Court observed that it is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.
20. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."
32. Learned counsel for the appellants then submitted that it is not a case of stationed lorry. It is a case of moving lorry. So the deceased dashing from behind itself evidenced the sole negligence of the deceased. In this respect, he has submitted that in the counter filed on behalf of respondents 2 and 4 in the claim petition, it was specifically pleaded that the deceased dashed against the rear side of the 1st respondent lorry and it was going ahead of his car. He has further referred to the inquest report (Ex.A2) to submit that in the said report also, it is mentioned that "he started on 15.01.2013 night 22 approximately in between 10.30-11.00 hours in his red coloured Wagon R car NoTN 20 CV 4498 and enroute near the B.V.Palem Integrated Check Post at Kaarooru Mitta on NH-16 road going in high-speed dashed a front-going container lorry No.MH 06 AQ 4959 at its back side."
33. We are of the view that the submission cannot be accepted. The claimants specifically pleaded in their claim petition that at that time (time of accident) the driver of 1st respondent lorry bearing registration No.MH 06-AQ-4958 negligently parked his lorry on the right side of the road very close to road divider without parking lights and spot signals. The evidence of PW.2 clearly showed that at the time of accident, the lorry was stationed on the road without precautionary measures being taken and the deceased applied brakes. The evidence of PW.2 also shows that the driver of the offending lorry got down from the lorry and went to the check post to talk the staff of check post. Learned counsel for the appellants placed much emphasis on the inquest report contending that therefrom it was evident that „the lorry was front going‟. Even if, we consider the inquest report, the offending lorry might be a front going container but at the time of the accident, it was got stationed negligently and without parking lights on. So even from the inquest report no benefit, can be derived, to contend that the accident, 23 occurred with the on-going container lorry. It might have been a front going container lorry but at the time of accident, as per the evidence of the eye witness, PW.2, it was stationed and parked negligently. In view of clear evidence of the eye witness of the accident, PW.2, no predominance can be given to the contents of the inquest report, in support of which no ocular evidence was given to prove and explain the contents of the inquest report. The oral evidence of the eye witness, PW.2, shall be given predominance, who was also cross examined but nothing could be elicited to the contrary.
34. Learned counsel for the appellants, referring to the site plan/rough sketch (Ex.A4), submitted that the deceased was at fault. A bare perusal of the site plan, does not support the contention. Based on the site plan, it cannot be said that the deceased was negligent or contributed to the accident. The competent witness to prove or substantiate, the site plan i.e. the police official, who prepared the site plan was not examined. The existence of the site plan may not be any doubt, but based on the site plan, the finding against the deceased, regarding contributory negligence cannot be recorded and more so, in the absence of any oral evidence to prove and explain the contents of the site.
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35. In Sunita (supra) based on the site plan the negligence of the deceased was sought to be established. The Hon‟ble Apex Court observed and held in para 36 as under:
"36. The site plan (Ext. 3) has been produced in evidence before the Tribunal by witness AD 1 (Appellant 1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained much less proved through a competent witness by the respondents to substantiate their defence. Besides, the police official concerned who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, more so in absence of ocular evidence to prove and explain the contents of the site plan."
36. Learned counsel for the appellants placed reliance in Nishan Singh (supra), in which, the Maruti car had dashed against the truck, which was running ahead of it. The case of the appellant therein was that the truck driver suddenly applied brake while the truck was on the centre of the road bringing it to the road side, as a result of which the Maruti car collided with truck from the back. The Tribunal, on the said issue held that the accident occurred due to rash and negligent driving of the driver of the Maruti car. The High Court dismissed the appeal reiterating the finding recorded by the Tribunal that the evidence clearly indicated that the driver of Maruti car himself was negligent in driving his vehicle and had failed to keep safe distance running in the same direction. Before the appellate Court, the question was whether the Tribunal committed any error in 25 recording the finding against the appellant, Nishan Singh and in favour of the insurance company. Considering Regulation 23 of the Road Regulations, 1989, which provided for the safe distance to be maintained from vehicles in front, it was observed that there was no evidence on record to indicate that the driver of the truck suddenly applied brakes in the middle of the road. The Hon‟ble Apex Court did not interfere with the said finding, being a finding of fact and recorded concurrently by the Tribunal and the High Court. Consequently, it was held that the question of contributory negligence would arise when both the parties are involved in the accident due to rash and negligent driving. In that case the negligence was attributed only to the Maruti Car and not to the driver of the truck and in such situation, the issue of contributory negligence was not taken forward.
37. We are of the view that Nishan Singh (supra), is of no help to the appellants, for the reasons that in the said case, the truck was moving and the Maruti car behind it was also in motion and there was no evidence that the truck driver applied sudden brake. Consequently, for not maintaining safe distance and in the facts of that case, it was held that there was sole negligence of the Maruti driver. In the present case, the truck driver had stationed the lorry on the road, without parking back lights and without other 26 precautionary directions. It was night time and there is a specific evidence of the eye witness that the car driver applied sudden brakes. It is settled that the law as laid down, apply to the facts of each and every case. The facts of Nishan Singh (supra) are different. There was concurrent finding on the point of negligence on the part of the deceased, which was affirmed by the Hon‟ble Supreme Court.
38. Learned counsel for the appellants placed reliance in Raj Rani (supra), on the point of contributory negligence. The Hon‟ble Apex Court held in paras 17 to 19 as under:
"17. So far as the issue of "contributory negligence" is concerned, we may notice that the Tribunal has deducted 1/3rd from the total compensation on the ground that deceased had contributed to the accident. The same, we find, has been upheld by the High Court. This Court in Usha Rajkhowa v. Paramount Industries((2009 14 SCC 71) discussed the issue of contributory negligence noticing, inter alia, earlier decisions on the same topic. It was held that:
(SCC a p. 75, para 20) "20. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak(2002) 6 SCC 455. That was also a case of collision between a car and a truck. It was observed in SCC p. 458, para 8:
8.... The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as "negligence". Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence"
it does not mean breach of any duty. It only means the 27 failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong"."
18. The principle of 50:50 in cases of contributory negligence has been discussed and applied in many cases before this Court. In Krishna Vishweshwar Hede v. Karnataka SRTC((2008) 15 SCC 771 this Court upheld the judgment of the Tribunal assessing the ratio of liability at 50:50 in view of the fact that there was contributory negligence on the part of the appellant and fixed the responsibility for the accident in the ratio of 50:50 on the driver of the bus and the appellant.
19. In this case, the truck was stationary. Some amount of negligence on the part of the deceased cannot be ruled out. Hence in the instant case, we find that there was contributory negligence on the part of the deceased and accordingly the claimant was entitled to only 50% of the total amount of loss of dependency."
39. In Raj Rani (supra), the Tribunal concluded that there was a contributory negligence on the part of the deceased driving the Maruti car. The Tribunal, therefore, deducted 1/3rd from the total compensation on account of the deceased contributing to the accident. The same was upheld by the High Court. The Hon‟ble Apex Court, also found that the truck was stationed. The amount of negligence on the part of the deceased could not be ruled out. So, being convinced with the finding on contributory negligence on the part of the deceased as recorded by the Tribunal and upheld by the High Court, the claimant was entitled to only 50% of the total amount of loss of dependency.
28
40. Learned counsel for the appellants placed reliance in Raj Rani (supra) to contend that even if it be taken that the lorry was stationed, the deceased hit that lorry from behind. So, there would be contributory negligence on the part of the deceased and only to the extent of 50% of the loss of dependency, the insurance company could be made liable and not for the entire amount of compensation.
41. The principle of law as laid down in Raj Rani (supra) is well settled. In the cases of contributory negligence, the liability is to be apportioned, if the deceased contributed in the accident. The entire liability cannot be fastened on the offending vehicle only. However, in the present case, the finding recorded by the Tribunal is of „no contributory negligence‟ on the part of the deceased. It cannot be, as a rule that, if one vehicle hits the other from behind, he has also contributed to the accident. It all depends on the facts of each and every case. The contributory negligence is to be proved as a fact based on cogent evidence. In Meera Devi (supra), the Hon‟ble Apex Court held as under in para10:
"10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case."29
42. In Raj Rani (supra), there was finding recorded by the Tribunal of contributory negligence against the deceased. That finding was affirmed by the High Court in appeal. So, that was a case of concurrent finding on the point of contributory negligence against the deceased and in favour of the insurance company, with which the Hon‟ble Apex Court did not interfere. Whereas, in the present case, the finding is that there was no contributory negligence. The lorry was stationed on the road and the lights were not on, so as to give indication to the driver of the vehicles coming from behind, to identify the parked lorry. The driver of the offending lorry had also not taken the requisite precautions. So, the finding is that the driver of the lorry was solely negligent. No evidence has been placed or pointed out to show the negligence on the part of the deceased that he did not take such reasonable precautions of some act or omission which would have avoided the accident. There is no evidence brought on record on behalf of the insurance company of any eye witness to indicate that it was the fault of the deceased in using reasonable care for the safety. On the contrary the evidence on record of the eye witness PW.2, shows that the deceased applied brakes but still the vehicle of the deceased dashed the lorry.
43. At this stage, we shall refer paras 33 to 35 and 40 of Sushma(supra), which read as under:
30
"33. These legal provisions leave no room for doubt that the person in control of the offending truck acted in sheer violation of law while abandoning the vehicle in the middle of the road and that too without taking precautionary measures like switching on the parking lights, reflectors or any other appropriate steps to warn the other vehicles travelling on the highway. Had the accident taken place during the daytime or if the place of accident was well illuminated, then perhaps the car driver could have been held equally responsible for the accident by applying the rule of last opportunity. But the fact remains that there was no illumination at the accident site either natural or artificial. Since the offending truck was left abandoned in the middle of the road in clear violation of the applicable rules and regulations, the burden to prove that the placement of the said vehicle as such was beyond human control and that appropriate precautionary measures taken while leaving the vehicle in that position were essentially on the person in control of the offending truck. However, no evidence was led by the person having control over the said truck in this regard. Thus, the entire responsibility for the negligence leading to the accident was of the truck owner/driver.
34. In view of the above discussion, the view expressed by the High Court that if the driver of the car had been vigilant and would have driven the vehicle carefully by following the traffic rules, the accident may have been avoided is presumptuous on the face of the record as the same is based purely on conjectures and surmises. Nothing on record indicates that the car was being driven at an excessively high speed or that the driver failed to follow the traffic rules. The High Court recorded an incongruous finding that if the offending truck had not been parked on the highway, the accident would not have happened even if the car was being driven at a very high speed. Therefore, the reasoning of the High Court on the issue of contributory negligence is riddled with inherent contradictions and is paradoxical.
35. The Courts below erred in concluding that it is a case of contributory negligence, because in order to establish contributory negligence, some act or omission which materially contributed to the accident or damage should be attributed to the person against whom it is alleged.
40. On a holistic analysis of the material available on record, it is established beyond the pale of doubt that the offending truck was parked in the middle of the road without any parking lights being switched on and without any markers or indicators being placed around the stationary vehicle so as to warn the incoming vehicular traffic. This omission by the person in control of the 31 said truck was in clear violation of law. The accident took place on a highway where the permissible speed limits are fairly high. In such a situation, it would be imprudent to hold that the driver of a vehicle, travelling through the highway in the dead of the night in pitch dark conditions, would be able to make out a stationary vehicle lying in the middle of the road within a reasonable distance so as to apply the brakes and avoid the collision. The situation would be compounded by the headlights of the vehicles coming from the opposite direction and make the viewing of the stationary vehicle even more difficult. Thus, the conclusion drawn by the Courts below that the driver of the car could have averted the accident by applying the brakes and hence, he was equally negligent and contributed to the accident on the application of principle of last opportunity is ex-facie perverse and cannot be sustained. Hence, it is a fit case warranting exercise of this Court's powers under Article 136 of the Constitution of India to interfere with the concurrent finding of facts."
44. Thus considered, we uphold the finding of the Tribunal that there was no-contributory negligence on the part of the deceased. There was sole negligence of the driver of the offending lorry. Consequently, there is no question of apportionment of the liability for compensation on the deceased due to any contributory negligence on his part.
45. We do not find force in the submission of the learned counsel for the appellants that there was contributory negligence of the deceased and the liability of the insurance company should be 50% only.
Point No.2:
Determination of Just and fair amount of compensation:32
i) income:
46. So far as the monthly income is concerned, we find that the deceased was employed as Lecturer. The appointment letter of the deceased-Ex.A6 is on record. The salary slips have also been filed as Ex.A7. Considering the nature of the job, we are also of the view that the finding recorded by the learned Tribunal at Rs.20,000/- p.m, which is supported by the documentary evidence, cannot be faulted.
There is no evidence to the contrary filed by the insurance company.
47. The submission of the learned counsel for the appellants that the pay slip (Ex.A7) was unsigned and that PW.3, M.P.Kanthi Kumar, had no authority to depose about the income of the deceased and consequently, the income could not be determined based on Ex.A7 is misconceived. We do not find force in the said submission. The reason is that Ex.A6 is the appointment letter issued by the Director of S.A.Engineering College, Chennai-77, dated 10.07.2013 containing the conditions of the appointment of the deceased, which clearly mentioned that "he is eligible to draw a consolidated salary of Rs.22,000/- p.m. during probation period". Ex.A7 is the salary pay slips evidencing monthly salary as Rs.22,000/- for the month. Further, the witness PW.3, in his chief examination clearly deposed that he was working as Assistant 33 Professor in S.A.Engineering College, Chennai, for the last five years. The Director of the said college, instructed the Principal of the College to authorize PW.3 to depose in the Court. So, we find that there was authorisation of PW.3 to give evidence in Court. PW.3 proved EXs.A6 and A7. He deposed that the deceased was drawing a sum of Rs.22,000/- p.m., which was subject to increase year by year. The deceased was permanent employee of the Engineering College. So, on the point of income, there was evidence led by the claimants. Even considering the qualification of the deceased being M.Tech in Computer Science, and he being the Lecturer in Computer Science and Engineering Department of S.A.Engineering College, Chennai, the monthly salary of Rs.20,000/- as determined by the Tribunal is a fair and reasonable determination. Consequently, we are not inclined to interfere with the finding on income recorded by Tribunal.
ii) Deductions:
48. The Tribunal deducted 1/4th towards personal expenses. There are four applicants/dependents. So, there is no illegality.
iii) Future Prospects:
49. The Tribunal has awarded the future prospects @40%. The deceased was a private employee and his age was 26-27 years. So, 34 below the age of 40 years. The award of 40% of the monthly income towards the future prospects is as per the decision of the Hon‟ble Apex court in National Insurance Company Limited vs. Pranay Sethi and others15 as per para 59.4, which is as under:
"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
iv) Conventional heads:
50. The only thing, we find is that under the conventional heads, the amount has not been correctly awarded as per the settled legal position. Towards loss of consortium, only Rs.40,000/- has been awarded, whereas there are 4 claimants, the widow, two children and mother. They all would be entitled for amount under the head of loss of consortium. Consequently as per the judgments of the Hon‟ble Apex Court in Pranay Sethi (supra), Magma National Insurance Company Limited vs Nanu Ram @ Chuhru Ram and Ors.,16Smt. Anjali (supra), United India Insurance Co. Ltd. vs. 15 (2017) 16 SCC 680 16 (2018) 18 SCC 130 35 Satinder Kaur @ Satwinder Kaur and Ors.,17 and Rojalini Nayak and Others vs Ajit Sahoo and Others18, we award the enhanced amounts under the Conventional Heads of Loss of Consortium, Loss of Estate and Funeral Expenses, at Rs. 48,400/- (per claimant), Rs. 18,150/- and Rs. 18,150/- respectively as was awarded, also recently, in Prabhavathi and others v. Managing Director, Bangalore Metropolitan, Transport Corporation19. Just and fair compensation:
51. It is well settled in law that the claimants are entitled for just and fair compensation. The Hon‟ble Supreme Court in Smt.Anjali v. Lokendra Rathod 20 while referring to Sarla Verma Vs Delhi Transport Corporation and Another,21observed that, "16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."
52. The amount of just and fair compensation would come to as follows:
17
(2021) 11 SCC 780 18 2024 SCC OnLine SC 1901 19 2025 SCC OnLine SC 455 20 2022 SCC OnLine SC 1683 21 (2009) 6 Supreme Court Cases 121 36 Sl. Head Compensation Awarded No.
1. Net Annual Income Rs.20,000 x 12 = Rs.2,40,000/-
2. Future Prospects Rs.96,000/-
(at the age of 26/27 years) (40% of the Rs.2,40,000/-) Total (i.e. 1+2)=Rs.3,36,000/-
3. Deduction towards Rs.84,000/-
personal expenditure (i.e.1/4th)
4. Total Annual loss Rs.2,52,000/-
5. Multiplier of 17 for the age Rs.42,84,000/-
of 26/27 years i.e.
6. Conventional Heads:
i) Loss of Consortium Rs. 1,93,600/-
(Rs. 48,400/- x 4)
ii) Loss of Estate Rs. 18,150/-
iii) Funeral expenses Rs. 18,150/-
7. Total Compensation Rs.45,13,900/-
Interest:
53. The Tribunal granted interest at the rate of @ 9% p.a. The same is maintained, considering the judgments of the Hon‟ble Apex 37 Court in Kumari Kiran vs. Sajjan Singh and others,22. In Rahul Sharma & Another vs. National Insurance Company Limited and Others, 23 Kirthi and another vs. Oriental Insurance Company Limited,24 and Smt. Anjali(supra), in which the Hon'ble Apex Court also referred Malarvizhi & Ors. Vs. United India Insurance Co. Ltd. & Ors25, which allowed interest @ 9% p.a. Point No.3:
Claimants' entitlement for enhanced compensation in the absence of appeal/cross objection:
54. Learned counsel for the appellants submitted that the claimants/respondents 1 to 4 have not filed any appeal for enhancement of compensation amount nor any cross objections in the appeal filed by the insurance company and consequently, the submission is that even if there be some illegality on the point of determination of compensation under some heads, the compensation amount cannot be enhanced.
55. This issue came up for consideration by this Court in National Insurance Company Ltd. v. Suseelamma. On consideration of the principle that it is the duty of the Court to award just and fair 22 (2015) 1 SCC 539 23 (2021) 6 SCC 188 24 (2021) 2 SCC 166 25 (2020) 4 SCC 228 38 compensation to the claimants; the applicability of Order 41 Rule 33 C.P.C. and the powers of the appellate Court under the said provision, to the appeal filed under Section 173 of the M.V.Act, the Coordinate Bench concluded that for doing justice and to award just compensation, the provisions of Order 41 Rule 33 C.P.C. have to be invoked, as there is no legal interdict or prohibition under law, to invoke such provision to award just compensation and on the contrary, the mandate of law is to award just compensation.
56. It is apt to refer paragraphs 49 to 67 in Suseelamma(supra) as under:
"49. The claimants/respondents have not filed any appeal for enhancement of the compensation amount as awarded by the Tribunal. However, Sri. S.V. Muni Reddy, learned counsel for the claimants/respondents submits that the claimants are entitled for the enhancement of the amount under the head of loss of consortium as also the interest @ 9% on the amount awarded. The said argument has been countered by the appellant's counsel that in the absence of any appeal by the claimants/respondents or cross-objection the amount as awarded by the Tribunal cannot be enhanced.
50. In our considered view, the claimant/respondents are entitled for just compensation and if on the face of the award or even in the light of the evidence on record, and keeping in view the settled legal position regarding the claimants being entitled to just compensation and it also being the statutory duty of the Court/Tribunal to award just compensation, this Court in the exercise of the appellate powers can enhance the amount of compensation even in the absence of appeal or cross-objection by the claimants.
51. In Helen C. Rebello (Mrs) v. Maharashtra State Road Transport Corporation ((1999) 1 SCC 90), the Hon'ble Apex Court held that the word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and 39 equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this (Motor Vehicles) Act or any other provision having the force of law.
52. The relevant part from Para 28 of Helen C. Rebello (supra) reads as under:--
"............The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having force of law. In Law Lexicon, 5th Edn., by T.P. Mukherjee "just"
is described:
"The term „just‟ is derived from the Latin word Justus. It has various meanings and its meaning is often governed by the context. „just‟ may apply in nearly all of its senses, either to ethics or law, denoting something which is morally right and fair and sometimes that which is right and fair according to positive law. If connotes reasonableness and something conforming to rectitude and justice something equitable, fair (vide p. 1100 of Vol. 50, Corpus Juris Secundum). At p. 438 of Words and Phrases, edited by West publishing Co., Vol.23 the true meaning of the word "just" is in these terms:
„The word "just" is derived from the Latin justus, which is from the Latin jus, which means a right and more technically a legal right-a-law. Thus "jus dicere" was to pronounce the judgment; to give the legal decision. The word "just" is denned by the Century standard Dictionary as right in law or ethics and in Standard Dictionary as conforming to the requirements of right or of positive law, in Anderson's Law Dictionary as probable, reasonable, Kinney's Law Dictionary defines "just" as fair, adequate, reasonable, probable; and justa cause as a just cause, a lawful ground. Vide Bregman v. Kress (81 NYS 1072 83 App Div 1), NYS at p. 1073."
53. Nagappa v. Gurudayal Singh ((2003) 2 SCC 274), the Hon'ble Apex Court held that under the Motor Vehicles Act, there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action.
54. It is apt to refer Paragraph Nos. 14 and 21 as follows:-- 40
"14. In case, where there is evidence on record justifying the enhanced Compensation for the medical treatment which is required because of the injury caused to a claimant due to the accident, there is no reason why such amendment or enhanced compensation should not be granted. In such cases, there is no question of introducing a new or inconsistent cause of action. Cause of action and evidence remain the same. Only question is __ application of law as it stands.
21. For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under subsection (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition.
Is it permissible under the Act to award compensation by instalments or recurring compensation to meetthe future medicalexpenses of the victim?"
55. In Kirti v. Oriental Insurance Company Limited ((2021) 2 SCC 166), the Hon'ble Apex Court held that "any compensation awarded by a Court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity and good conscience".
56. Thus, the claimants of the deceased have a right to receive just compensation, to be determined by principles of fairness, equity and good conscience.
57. In Sharanamma v. North East Karnataka RTC ((2013) 11 SCC 517), the Hon'ble Apex Court held that when an appeal is filed under Section 173 of the MV Act before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also.
58. Paragraph-10 in Sharanamma (supra) is reproduced as under:--
"10. When an appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter shall be referred to as "the Act"), before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well-settled position of law that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power 41 effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the appellate court to consider the entire case on facts and law."
59. In view of the aforesaid, we are of the considered view that to the appeal under Section 173 of the MV Act to the High Court, in the absence of a different procedure having been provided, either under the MV Act or the APMV Rules, 1989, and the applicability of Order 41 CPC also not having been excluded, in view of the judgment of the Hon'ble the Apex Court, the normal rules which apply to appeals before High Court, are applicable.
60. Order 41 CPC is that normal rule, which applies to appeals before the High Court.
61. Order 41 Rule 33 of C.P.C reads as under:--
"33. Power of Court of Appeal:--
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
"Illustration:--
62. A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."
63. In Pannalal v. State Of Bombay (AIR 1963 SC 1516), with respect to Order 41, Rule 33, the Hon'ble Apex Court held that wide wording of Order 41, Rule 33 CPC, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondent as "the case may require". It was further held that if there was no impediment in law, the High 42 Court in appellate court therefore, though allowing the appeal of the defendant by dismissing the plaintiffs suit against it, but the plaintiff/respondents decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument.
64. In Chaya v. Bapusaheb((1994) 2 SCC 41), the Hon'ble Apex Court held that this provision (Order 41 Rule 33 C.P.C) is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the case may require, notwithstanding the fact that the Appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule.
65. In Pralhad v. State of Maharashtra ( (2010) 10 SCC
458), the Hon'ble Apex Court held that the provisions of Order 41, Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
66. It is apt to refer Para No. 18 as under:--
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to 43 be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
67. We are therefore of the considered view that for doing justice and to award just compensation, the provisions of Order 41 Rule 33 are to be invoked which are being invoked accordingly, as we find that there is no legal interdict or a prohibition under law, rather the mandate of law is to award just compensation. There is also no prejudice being caused to a person not a party before the Court. The appellant has been heard on the point of just compensation."
57. At this stage, we would refer to the judgment of the Hon‟ble Apex Court in Ranjana Prakash v. Divisional Manager 26 , which could not be noticed in Suseelamma (supra).
58. In Ranjana Prakash (supra), the motor accident claims tribunal, awarded compensation with interest. On appeal by the insurer, the High Court upheld the findings in regard to the income and calculation of compensation and held that the Tribunal ought to have deducted 30% of the annual income towards income tax. Consequently, the High Court deducted 30% and reduced the compensation. Before the High Court, the claimants had contended that the future prospects as per the decision in Sarla Verma (supra), which ought to have been 30% of the income, was not granted by the Tribunal. They made the request for grant of the future prospects. The High Court did not take a cognizance of this 26 (2011)14 SCC 639 44 contention of the claimants, on the ground that, the claimants had not challenged the award of the Tribunal and therefore, they could not find fault with it. The order of the High Court was challenged before the Hon‟ble Apex court. The Hon‟ble Apex Court held in paras 6, 7 and 8 in Ranjana Prakash(supra) as under:
"6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs 23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/ insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections.
7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on 45 an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
59. In Ranjana Prakash(supra), the Hon‟ble Apex Court observed that where an appeal is filed challenging the quantum of compensation irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owners/insurer for reduction. The law as in Ranjana Prakash(supra) is that the High Court cannot increase the 46 compensation in an appeal by the owner/insurer for reducing the compensation, nor it can reduce compensation in an appeal by the claimants seeking enhancement of compensation, vide para (8) of the judgment. However, on this aspect, there is a later pronouncement of the Hon‟ble Apex Court in Surekha v. Santosh27.
60. In Surekha (supra), the High Court of Judicature at Bombay, Bench at Aurangabad, though agreed with the stand of the claimants therein that just compensation amount, ought to be Rs.49,85,376/-, however declined to grant such enhancement merely on the ground that the claimants had failed to file cross appeal. The Hon‟ble Apex Court modified the order of the High Court and granted the just compensation, holding that "By now, it it is well-settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants."
61. Paragraphs 1 to 4 of Surekha (supra) read as under:
"1. Leave granted. This appeal takes exception to the judgment and order dated 4-1-20191 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in First Appeal No. 2564 of 2016, whereby the High Court, even though agreed with the stand of the appellants that just compensation amount ought to be Rs 49,85,376 (Rupees forty-nine lakhs eighty-five thousand three hundred seventy-six only), however, declined to grant enhancement merely on the ground that the appellants had failed to file cross-appeal.27
(2021) 16 SCC 467 47
2. By now, it is well-settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants.
3. As a result, we modify the order passed by the High Court to the effect that the compensation amount payable to the appellants is determined at Rs 49,85,376 (Rupees forty-nine lakhs eighty-five thousand three hundred seventy-six only), with interest thereon as awarded by the High Court.
4. The appeal is allowed in the above terms. Pending applications, if any, stand disposed of."
62. In Surekha (supra), the High Court had declined to grant enhancement merely on the ground that the claimants therein failed to file cross appeal. The Hon‟ble Apex Court observed that the Court should not take hyper technical approach and ensure that just compensation, is awarded to the affected person or the claimants.
63. Surekha (supra) is by the larger bench of the Hon‟ble Apex Court.
64. In Ranjana Prakash(supra), it was held that the just compensation is to be determined irrespective of who has filed the appeal. So, even in an appeal filed by the insurance company challenging the award, the just compensation is to be determined by the appellate Court, though the claimants had not filed any appeal or cross objections. The difference between Ranjana Prakash(supra), and Surekha (supra) appears to us to be that as per Ranjana Prakash(supra), it cannot be enhanced in the appeal filed by the 48 insurance company and cannot be reduced in the appeal filed by the claimants in the absence of any appeal or cross objections by the claimants or by the insurance company as the case may be, whereas, as per Surekha (supra), the just compensation is to be awarded to the claimants which cannot be denied on the ground of technicality, that, the claimants did not file appeal or cross objection.
65. In United India Insurance Co. Ltd. v. Susubelli Bapuji and others, 28, another Coordinate Bench considering the judgment of the Hon‟ble Apex Court in Surekha(supra), and others, concluded that the claimants were entitled for just and fair compensation and the Court should not take hypertechnical approach but ensure to award just and fair compensation.
66. Paragraphs 15 to 20 of Susubelli Bapuji (supra) are as under:
"15. In Surekha v. Santosh((2021) 16 SCC 467), where the High Court of Bombay though agreed with the stand of the appellants therein that just compensation amount ought to be Rs. 49,85,376/-, declined to grant enhancement merely on the ground that the appellants had failed to file cross- appeal, the Hon'ble Apex Court observed in para-2 is as under:
2. By now, it is well-settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants.28
2024 SCC OnLine AP 3955 49
16. In Meena Pawaia v. Ashraf Ali ((2021) 17 SCC 148), the Hon'ble Apex Court held that the claimants are entitled to just compensation. Merely because in the execution proceedings they accepted the amount as awarded may be as full and final settlement, that shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation. The Motor Vehicles Act is a benevolent Act and claimants are entitled to just compensation.
17. Para No. 17 of Meena Pawaia (5th supra) read as under:
17. Now so far as the submission on behalf of the Union of India that as in the execution proceedings the claimants accepted the amount due and payable under the impugned judgment and order and accepted the same as full and final settlement, thereafter the claimants ought not to have preferred appeal for enhancement of the compensation is concerned, the aforesaid cannot be accepted. The claimants are entitled to just compensation. Merely because in the execution proceedings they might have accepted the amount as awarded by the High Court, may be as full and final settlement, it shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation which they as such are held to be entitled to. As such, the Motor Vehicles Act is a benevolent Act and as observed hereinabove the claimants are entitled to just compensation. As such, the Union of India ought not to have taken such a plea/defence.
18. In Smt Anjali v. Lokendra Rathod 2022 LiveLaw (SC) 1012, the Hon'ble Apex Court observed and held as under:
10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of just and fair‟ compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of just compensation‟ which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicants).
11. In Sarla Verma v. Delhi Transport Corporation, this Court has laid down as under:
"16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit."50
19. From the aforesaid judgments it is settled in law that the claimants are entitled for just and fair compensation.
Endeavour should be made by the court to award just and fair compensation irrespective of
a) that they have not preferred any appeal for enhancement nor filed any cross objection in the appeal filed by the owner/Insurance company.
b) that even after they accepted the amount in execution proceedings they can claim the just compensation in the proper proceedings, and
c) that the amount of compensation claimed in their petition, is less than the amount of the compensation determined by the Tribunal/Court.
20. Consequently, we are of the view that the claimants/respondents though they have not preferred any appeal for enhancement nor filed any cross objection, they are entitled for just & fair compensation. This Court therefore in the exercise of appellate jurisdiction proceed to determine the just compensation, to which they might be entitled, keeping in view the submissions advanced by the learned counsels for the Insurance Company as also the claimants.
67. Consequently, following Ranjana Prakash(supra), irrespective of the fact that the claimants have not filed the appeal or the cross objection, we determined the just compensation in the appeal filed by the insurance company and as we have come to the conclusion that the claimants are entitled for just compensation, which is higher than the compensation awarded by the Tribunal, following Surekha (supra), we cannot deny grant of just compensation on the technicality that the claimants have not filed appeal or cross objections and so we award the enhanced compensation being the just and fair compensation to the respondents 1 to 4.
51
68. Conclusion:
Thus considered, our conclusions on the points for determination are as under:
Point No.1: The finding of the learned Tribunal that the driver of the offending lorry was solely negligent and there was no contributory negligence of the deceased calls for no interference. As there was no contributory negligence on the part of the deceased, there is no question of considering its extent or reducing the liability of insurance company by making any apportionment.
Point No.2: The amount of compensation awarded by the Tribunal is on the lower side. It does not represent just and fair compensation.
The claimants are entitled for just and fair compensation as determined by us in this appeal.
Point No.3: Even in the absence of any appeal or cross objection by the claimants they can be awarded enhanced compensation, if, in the appeal filed by the insurance company, it is determined that the claimants are entitled for the higher amount of compensation than the amount awarded by the Tribunal. Just and fair compensation so determined cannot be denied on the technicalities that the claimants did not file the appeal or cross objection in the appeal filed by the 52 insurance company in view of the Hon‟ble Apex Court judgment by the larger bench in Surekha (supra).
Point No.4: The appeal of insurance company deserves to be dismissed, but the compensation amount as awarded by the Tribunal deserves enhancement as per the determination made in this appeal i.e. Rs.45,13,900/- with interest at 9% p.a. from the date of the M.V.O.P till realization.
69. Accordingly, while dismissing the appeal of the insurance company, finding no force, but being of the view that the claimants are legally entitled for Rs.45,13,900/- as just and fair compensation, we award the same with interest.
Result:
70. In the result,
i) The M.A.C.M.A.No.115 of 2021 is dismissed;
ii) The respondents 1 to 4/claimants are granted enhanced compensation of Rs.45,13,900/-as just and fair, with interest @ 9% per annum from the date of claim petition till realization;
iii) The appellants-insurance company shall deposit the amount as aforesaid, adjusting the amount already deposited/paid, if any, before the Tribunal within one 53 month, failing which the amount shall be recovered as per law and paid to the claimants;
iv) On the deposit being made, the claimants shall be entitled to withdraw the same in the proportion as per the award of the Tribunal;
v) The costs throughout is made in favour of the claimants to be paid by the appellants.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J _______________________ CHALLA GUNARANJAN, J Date: 25.04.2025 Note:
L.R.Copy to be marked.
B/o.
Pab 54 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN M.A.C.M.A. NO: 115/2021 Date:- 25.04.2025 Pab 55