Andhra HC (Pre-Telangana)
Branch Manager, Oriental Fire And ... vs Dr. C. Chandra Obula Reddy And Ors. on 16 March, 2004
Equivalent citations: 2006ACJ285, 2004(4)ALD883, 2006(2)ALT209
JUDGMENT S.R.K. Prasad, J.
1. This letters patent appeal is directed against the judgment of a learned Single Judge of this Court in CMA No. 1037 of 1987 dated 28-8-1995. Appellant is the Oriental Fire and General Insurance Company.
2. The facts, which led to filing of this appeal, can be briefly stated as under:
On 13-6-1984 at 5 a.m., while the deceased Dr. P. Suseela was travelling in the APSRTC bus bearing No. A.A.Z.3743 from Ananthapur to Guntur, a lorry bearing No. A.D.F.7018, belonging to the 4th respondent herein, loaded with chicken dung, came in the opposite direction driven by its driver, 5th respondent herein, at high speed in a rash and negligent manner and dashed against the said bus. On account of which the deceased sustained grievous injuries and succumbed to injuries. Consequently, the legal representatives of the deceased i.e., husband and two daughters (Respondents 1 to 3 herein) laid a claim for compensation in a sum of Rs. 4,04,712/- before the Motor Accidents Claims Tribunal-cum-District Judge, Guntur. According to the claimants i.e., Respondents 1 to 3 herein, the deceased was working as Woman Assistant Surgeon in Government Hospital, Penukonda in Anantapur District and she was drawing a monthly salary of Rs. 2,200/- apart from her earnings on her private practice and she was aged 35 years at the time of accident.
3. The appellant-Insurance Company filed counter, which was adopted by the 4th respondent-owner and the 5th respondent driver of the vehicle, denying the rash and negligent driving of the driver of the lorry and their liability to pay the compensation.
4. The 6th respondent-APSRTC also filed counter denying the deceased travelling in its bus and earnings of the deceased and the death.
5. The Tribunal upon consideration of the evidence available on record found that the accident occurred due to the rash and negligent driving of the driver of the lorry and accordingly awarded a sum of Rs. 1,93,000/- towards compensation with interest at 6% per annum from the date of petition till the date of realization, payable by the appellant-Insurance Company and Respondents 4 and 5 herein. Aggrieved by the said award and decree, the claimants being Respondents 1 to 3 herein preferred CMA No. 1037 of 1987 before a learned Single Judge of this Court. The learned Single Judge, on a consideration of the entire material available on record, allowed the appeal in part granting a sum of Rs. 5,48,350/- towards compensation along with interest at 9% per annum from the date of petition till the date of actual realization. Aggrieved by the same, the Insurance Company has preferred this LPA.
6. Normally, this Court will not interfere with the concurrent finding of fact arrived at on the basis of the evidence by the Motor Accident Claims Tribunal as well as a learned Single Judge of this Court unless it is shown to be perverse and not based on sound reasoning. Obviously, the owner of the vehicle has not preferred any appeal to the High Court against the findings of the Tribunal. The learned Single Judge has adverted to the evidence and concurred with the finding of fact arrived at by the Tribunal regarding rash and negligent driving of the lorry by its driver and causing the accident. In that view of the matter, we do not propose to interfere with the finding of fact arrived at by the learned Single Judge as it is based on sound reasoning of evidence recorded by the Tribunal.
7. It is mainly contended by the learned Counsel appearing for the appellant-Insurance Company that the compensation awarded by the learned Single Judge of this Court is on higher side and, therefore, the same has to be reduced. It is also contended that the learned Single Judge erred in awarding more compensation than that of the amount claimed in the O.P.
8. Before adverting to the aforesaid contention, it is necessary to know the basis on which the compensation has to be awarded. The Court has to grant a just compensation. The Apex Court has stated in Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 9 ILD 627 (SC), at Para 11 of the said decision, which reads as follows:
"The 'Rule of Law' requires that the wrongs should not remain unredressed. All the individuals or persons committing wrongs should be liable in an action for damages for breach of civil law or for criminal punishment. "Compensation" means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined and given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss; or be made whole in respect of his injury; something given or obtained as equivalent; rendering of equivalent in value or amount; an equivalent given for property taken or for an injury done to another; a recompense in value; a recompense given for a thing received; a recompense for whole injury suffered; remuneration of satisfaction for injury or damage of every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damages', although compensation may often have to be measured by the same rule as damages in an action for a breach. The term 'Compensation' as pointed out in the Oxford Dictionary signifies that which is given in recompense, an equivalent rendered; 'damages' on the other hand constitute the sum of money, claimed or adjudged to be paid in compensation for loss or injury sustained. 'Compensation' is a return for a loss or damages sustained. Justice requires that it should be equal in value, although not alike in kind".
It is further stated by the Supreme Court at Para 12 of the decision, which read as follows:
"It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Merris in West v. Shepard, 1964 AC 326. Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimants as far as possible in the same position financially as he was before accident. Broadly speaking, in the case of death, basis of compensation is loss of pecuniary benefits to the dependents of the deceased, which includes pecuniary loss, expenses, etc., and loss to the estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient.
There can be no exact uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathematical calculation: but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a source of profit of the person in whose favour it is awarded. Upjohn, L.J. in Charter House Credit v. Jolly, (1963) 2 CB 683 remarked, 'the assessment of damages has never been an exact science: it is essentially practical.' It is also further stated by the Supreme Court at Para 14 of the said decision, which read as follows :
"Compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation, which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time the compensation is not expected to be a windfall for the victim. The expression 'just' denotes equitability, fairness and reasonable, and non-arbitrary. If it is not so it cannot be just."
9. While passing the Motor Vehicles Act, 1988, fortunately, the Legislature having accepted the principles as to the grant of damages, incorporated the same in the second Schedule of the Act (Vide Section 163-A of the Act). General damages can be granted in case of death under the heads of funeral expenses and loss of consortium, if beneficiary is the spouse. Loss of estate and medical expenses shall be payable in addition to the compensation. General damages can be granted in case of injuries and disabilities under the heads of pain and sufferings, grievous injuries, non-grievous injuries and medical expenses.
10. The compensation shall be awarded under two general heads i.e., pecuniary and non- pecuniary damages. The Court has to take into consideration regarding the loss of supervisory services of the deceased also in managing the house before awarding compensation. The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of services to the family, if there was a reasonable prospect of such services being rendered freely in future but for the death. While estimating the services of the housewife, a narrow meaning should not be given to that of services, but should be construed broadly one has to take into account the loss of the constant love and affection as also of personal care and attention by the deceased to her children, as a mother and to her husband, as a wife. This aspect has not been taken into account by the Tribunal or by the learned Single Judge of this Court. Moreover, the learned Single Judge while awarding compensation has stated that the compensation under the head "funeral expenses" is legally impermissible in view of the principles laid down by a Division Bench of this Court in APSRTC v. Gali Aruna, , and thereby disallowed the claim regarding funeral expenses. This has to be considered under the Motor Vehicles Act, 1988, which enables the claim of funeral expenses under the Second Schedule vis-a-vis the principles laid down in the aforesaid decision. Therefore, we are unable to agree with the ratio decidendi laid down in the aforesaid decision of a Division Bench in APSRTC v. Gali Aruna (supra), in as much as it goes contra to the intention of the Legislature, which has been made clear in Second Schedule of the Act. This amendment has come into force with effect from 14-11-1994 and as such, the principles laid down in the said decision, can no longer be held a good law in view for the statutory amendment. Keeping in view the said legal principles, we proceed to deal with the aspect of compensation. It is now well settled that the appellant-Insurance Company has no right to question the compensation without denying the accident itself, on which there are concurrent findings. However, we propose to deal with the awarding of compensation under the different heads.
11. In the claim petition, proper heads have not been mentioned and the compensation was not awarded under proper heads. The learned Single Judge of this Court also denied the right to claim compensation towards funeral expenses. In this case, the deceased was 35 years at the time of her death and she was working as Woman Assistant Surgeon in the Government Hospital, Penukonda and she was drawing salary of Rs. 1,628/- per month as per Ex.A5 salary certificate. The deceased was also getting Rs. 6,000/- per annum from her private practice as per Ex.A6 income tax returns and she was getting Rs. 500/- p.m. Therefore, the monthly income of the deceased could be fixed at Rs. 1,628/- + Rs. 500/- = Rs. 2,128/-, which is rounded off to Rs. 2,130/-. The maximum that can be deducted towards personal expenditure is 1/3rd of the monthly income. It is not an hard and fast rule that in each and every case to deduct 1/3rd towards personal expenditure while arriving at the monthly income to be taken into consideration for computing the compensation. Therefore, it would be just and proper to deduct 1/4th towards her personal expenditure in the light of the facts of this case. If the same is applied, the contribution of the deceased would be Rs. 1,600/- (Rs. 2,130/- (-) Rs. 530/-). The annual contribution of the deceased for the claimants is Rs. 19,200/- (Rs. 1,600/- x 12). The question of double the income being taken into consideration depends upon facts of each case and it is not a hard and fast rule. It is not laid down in the decision of the Supreme Court in General Manager, K.S.R.T.C. v. Susamma Thomas, , that income has to be doubled and it has to be taken into consideration. What is stated in that decision is future prospects have also to be considered and multiplier has to be fixed by fixing the income on higher side depending upon facts of each case. As the deceased was aged 35 years at the time of her death, the appropriate multiplier that would be applied is '15'. If we apply the multiplier '15' with the annual contribution, it comes to Rs. 2,88,000/-(Rs. 19,200/- x 15) towards loss of earnings. Apart from this, a sum of Rs. 15,000/- can be awarded towards loss of consortium to the 1st respondent-husband. A sum of Rs. 20,000/- can be awarded towards loss of estate. A sum of Rs. 15,000/- can be a warded towards love and affection to Respondents 2 and 3 children. Another sum of Rs. 10,000/-can be awarded towards funeral expenses. A sum of Rs. 1,10,000/- can be awarded towards loss of supervisory services rendered by the deceased in maintaining her house. No amount is payable towards pain and suffering or medical expenses as the deceased had instantaneous death. Thus, the Respondents 1 to 3 being claimants are entitled to a total compensation of Rs. 4,58,000/- instead of Rs. 5,48,350/- as awarded by the learned Single Judge of this Court.
12. The Respondents 1 to 3 being claimants are entitled to compensation not only as dependents but also as legal representatives of the deceased. Therefore, they are entitled to equal share each subject to the finding that the amount of compensation under the head of "consortium" shall fall to the share of 1st respondent-husband and the amount of compensation under the head of love and affection has to be equally distributed to Respondents 2 and 3-children. If the amount of compensation under the head of "consortium" and "love and affection" are deducted, the compensation that remains for equal distribution among Respondents 1 to 3, would be Rs. 4,28,000/-(Rs. 4,58,000/- (-) Rs. 30,000/-). Hence, the 1st respondent-husband is entitled to Rs. 1,42,668/- + Rs. 15,000/- = Rs. 1,57,668/-and the Respondents 2 and 3 children are entitled to Rs. 1,42,666/- + Rs. 7,500/- = Rs. 1,50,166/-each.
13. The learned Counsel for the appellant-Insurance Company further contends that it is impermissible for the learned Single Judge to award compensation more than the amount claimed by the Respondents 1 to 3 in their claim petition. On the other hand, the learned Counsel for the Respondents 1 to 3 contends that there is no restriction in awarding of compensation should be confined to the amount that was claimed in the petition. In support of his contention, he placed reliance on the decision the Supreme Court in Nagappa v. Gurudayal Singh, 2003 ACJ 12.
14. In relevant portions at Paras 7 and 10 of the aforesaid decision read as follows:
"(7) Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act'), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation then claimed, the Tribunal may pass such award. Only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to Sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said section is Sub-section (4), which provides that "the Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act". Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though on such claim is made or no specified amount is claimed.
"(10) Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."
15. The lower Tribunal did not award compensation more than that of the amount claimed by the claimants. It is only the learned Single Judge who granted compensation more than the compensation claimed by the claimants. There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. What the Supreme Court in Nagappa v. Goru Dayal Singh, 2003 ACJ 12, has stated in the aforesaid decision is that the Courts have got jurisdiction to grant more compensation than claimed.
16. In the result, the LPA is allowed in part. The Respondents 1 to 3-claimants are entitled to total compensation of Rs. 4,58,000/-instead of Rs. 5,48,350/- as awarded by the learned Single Judge, along with interest at the rate of 9% pre annum from the date of petition till the date of realization. The appellant-Insurance Company is directed to pay the compensation amount within one month from today. Out of the total compensation, the 1st respondent-husband is entitled to Rs. 1,42,668/- + Rs. 15,000/- = Rs. 1,57,668/- and the Respondents 2 and 3-children are entitled to Rs. 1,42,666/- + Rs. 7,500/- = Rs. 1,50,166/- each. The amount if any deposited by the Insurance Company shall be deducted from out of the amount payable to Respondents 1 to 3-claimants. The appellant-Insurance Company shall pay costs in this LPA to the Respondents 1 to 3. The claimants are entitled to withdraw the amount after deposit. A modified decree is passed awarding the same.