Karnataka High Court
Smt. Sujatha And Ors. vs H.M. Mallappa Naik And Anr. on 21 December, 2001
Equivalent citations: I(2003)ACC56, 2003ACJ791, ILR2002KAR675, 2002(2)KARLJ358, 2002 AIR - KANT. H. C. R. 668, 2002 AIHC 1326, (2003) 1 ACC 56, (2003) 2 ACJ 791, (2002) 2 KANT LJ 358, (2002) 3 TAC 115
Author: H.N. Narayan
Bench: H.N. Narayan
JUDGMENT H.N. Narayan, J.
1. This appeal by the claimants is directed against the judgment and award of the Tribunal restricting the compensation to a sum of Rs. 3,50,000/- claimed by them in the claim petition as against the global compensation of Rs. 5,86,940/-, which according to the Tribunal is just and reasonable compensation.
2. It is contended by the appellants among other grounds of appeal that the Tribunal has erred in restricting the award to the sum claimed in the claim petition, which is against the provisions of Motor Vehicles Act, as the provisions of the Motor Vehicles Act has given wide powers to the Tribunal to make just and reasonable awards. Simultaneously, the claimants have also claimed for enhancement of compensation with interest at 12% instead of 6% granted by the Tribunal.
3. An application under Order 6, Rule 17 of the Code of Civil Procedure is filed by the claimants-appellants for amendment of the claim petition to amend the quantum of compensation from Rs. 3,50,000/- to Rs. 5,86,940/-. Insofar as the amendment application filed by the appellants is concerned, though it is filed after a long delay and is an afterthought, the said application is made taking clue from the judgment in Narayana and Anr. v. H.R. Mohankumar 2001(1) Kar. L.J. 244 : ILR 2000 Kar. 4791. At the time of arguments, learned Counsels appearing on both sides have not urged any other contention except the one which needs consideration in this appeal.
4. The main question which arises for consideration in this appeal does not arise for the first time before this Court. In Smt. Hanumakka and Ors. v. Bipin Bai and Ors., this Court held as under:
"At the hearing, appellant's learned Advocate relied on a Division Bench ruling of the Bombay High Court in Municipal Corporation of Greater Bombay and Anr. v. Kisan Gangaram Hire and Ors. 1987 ACJ 311 (Bom.). The Division Bench while considering a somewhat similar stand had occasion to hold that in cases of this type where the compensation claims are quantified, that neither sub-heads nor the aggregate would necessarily limit the power of the Court to award either a lower or higher amount insofar as they were all approximations. That principle is a correct one and having regard to the situation, the appellants would be entitled to the additional compensation. The award is accordingly modified and it is directed that the appellants shall be entitled to recover the aggregate compensation of Rs. 81,000/- together with costs and simple interest as indicated in the award less the interim compensation if any paid to them. It is clarified that the additional compensation when deposited with the Tribunal shall be apportioned in the same manner as has been indicated in the original award. The insurance company shall deposit the balance amount with the Tribunal within an outer limit of twelve weeks from today and on receipt of the same, the Tribunal shall disburse the same in the manner as indicated in the original award. The appeal succeeds and stands disposed of. No order as to costs".
The learned Judge has relied on the judgment of the Division Bench of Bombay High Court in the case of Municipal Corporation of Greater Bombay, supra. The same question cropped up again in H.J. Girish and Anr. v. Smt. Sarojamma alias Jaitunbi and Ors. ILR 1999 Kar. 4333. The Court reached a different conclusion relying upon the observation made by the Apex Court in Adikanda Sethi (dead) through L.Rs and Anr. v. Palani Swami Saran Transports and Anr. , that the compensation cannot exceed the amount claimed in the petition.
5. The learned Single Judge in Narayana's case, supra, observed as follows:
"The Hon'ble Supreme Court in Adikanda Sethi's case, supra, did not have any occasion either to deal with the review power or enhancement of compensation by way of review in a case of restricted claim. No argument on this issue was advanced before the Court. The Hon'ble Supreme Court did not have occasion to consider as mentioned earlier, these two vital issues as in the present case. In the circumstances, it cannot be said that the said judgment comes in the way of granting excess compensation by way of review in a case of restricted claim".
The learned Single Judge, therefore, agreed with the view expressed in Smt. Hanumakka's case, supra, and held that the Tribunal cannot restrict the compensation to the claim made in the claim petition.
6. I have carefully perused the two judgments rendered by my learned brothers in Smt. Hanumakka's case, supra and in Narayana's case, supra. While concurring with their judgments, I am of the opinion that, this question needs little elaborate consideration.
7. Chapter XII of the Motor Vehicles Act, 1988, is a species of the law of tort. The purport and object of establishing the Claims Tribunal under the Motor Vehicles Act is stated in the statement of objects and reasons to the Amended Act 54 of 1994. The function of the Claims Tribunal under the Motor Vehicles Act is to determine the damages incurred by the victim or victims as the case may be. The basic principle for damages in tort as well as in contract is that there should be restitutio in integrum. The object of award of damages is to give the plaintiff the compen sation for the damage, loss or injury he has suffered. Lord Blackburn in Livingstone v. Rawyards Coal Company (1880)6 App. Cas. 25, 39, defined measure of damages as follows:
"...that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation".
(Extracted from the Me Gregor on "Damages'', 15th Edition, page 10.) Hence, the damages are the pecuniary compensation obtainable by success in an action for a wrong, which is either a tort or breach of contract.
8. The learned author Winfield in his Textbook on Tort, 11th Edition by W.V.H. Rogers at page 3, defined the tortious liability as follows:
"Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages".
This definition by Winfield is not accepted as entirely accurate and universal, but its merit lies in its comparative brevity. The emphasis in this definition is to the remedy for breach of a duty, which is fixed by law, in other words, for tortious liability and one of the remedies provided is an action for unliquidated damages. An observation made in Hulton v. Hulton (19171 KB 813, which is extracted at page 7 under the head "other remedies", further shows that the action for unliquidated damages is one pretty sure test of tortious liability and it has some show of express judicial approval. It is also said that by no means the only remedy for a tort, and that, for some torts, it is not even the primary remedy. The question which needs an answer is:
Whether the claim arising under Section 166 of the Motor Vehicles Act is an action for unliquidated damages'?
A 'tort' is distinguishable from 'contract' and the injury or damage sustained by the victim is not ascertainable. The 'liquidated damages' are defined as a sum stated and agreed to be paid as damages between the parties to a contract, in the event of default by either; the primary meaning of that phrase is that the sum had been "assessed between the parties". A claim is 'liquidated' when the amount due is fixed by law or has been ascertained and agreed upon by the parties. (Extracted by Mr. P. Ramanatha Iyer from the Law Lexicon, 2nd Edition, Reprint 2001.) Therefore, while 'liquidated damages' are ascertainable and a specific sum agreed upon by the parties in the event of default of either of the parties, 'unliquidated damages' are those, which are not ascertainable or specified and it can only be determined by the Court as non-pecuniary loss or as global compensation.
9. The claim which arises under the provisions of Section 166 of the Motor Vehicles Act, is a species of tort and the person who has sustained the injury; or the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be, can claim compensation which arises out of an accident of the nature specified in Sub-section (1) of Section 165 of the Act. The provision of Section 168 of the Motor Vehicles Act, enables the Claims Tribunals to make an award. The said provision reads as follows:
"168. Award of the Claims Tribunal.--(1) On receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be".
(emphasis supplied) Section 168 of the Motor Vehicles Act clearly indicates the nature of the award, which the Tribunal is required to pass. The Parliament in its wisdom has not restricted the power of Claims Tribunal to grant that much of compensation, which is specified in the claim petition. The Parliament has in unambiguous language stated that the Tribunal has to make an award determining the amount of compensation, which appears to it to be just. It is this provision, which makes tbe claim under Section 166 of the Motor Vehicles Act, 'unliquidated damages'.
10. The practice prevalent at the Bar in India is to specify certain amount of compensation in the column specified in the application contemplated under Section 166 of the Motor Vehicles Act. Column 21 particularly specifies that the claimant shall indicate the probable amount of compensation to which he is entitled, whether it be a personal injury action or a fatal incident action. The whole exercise in this regard is to put the injured in the same position as he would have been, if he had not sustained the wrong for which he is now getting his compensation or reparation. This is amply made clear in the case of H.T. Bhandary v. Muniyamma , wherein the Division Bench held at para 10 as follows:
"10. In a fatal accidents action damages must be assessed once and for all. The measure of damages is the pecuniary loss suffered by the defendants by reason of the death. The pecuniary loss means the actual pecuniary benefit, in terms of money, goods and services, of which the dependants have been, in fact, deprived, whether the benefit was a result of a legal obligation or what may reasonably be expected to take place in the future. It is the amount of the pecuniary advantage which it is reasonably probable that the dependants would have received if the deceased had remained alive. The purpose is to put the dependants in the same position, as far as money could do, as if the deceased had lived his natural span of life, subject to all its uncertainties and vicissitudes. But the contingencies of the future need not necessarily be adverse and need not inevitably tend to scale down the multiplicand or the multiplier. All contingencies of the future are not adverse; all vicissitudes need not necessarily be harmful".
Therefore, Courts cannot attempt to find a different meaning to the provisions of Section 168 of the Motor Vehicles Act and restrict the damages or compensation, which is so claimed by the claimants under Section 166 of the Motor Vehicles Act.
11. Their Lordships of the Bombay High Court in Municipal Corporation of Greater Bombay's case, supra, though considered this question at length on a different note, have not adverted to this question namely, whether the claim arising under Section 166 of the Motor Vehicles Act is liquidated or unliquidated damages? Their Lordships have suggested so many ways and means for the claimant to overcome the difficulty in getting the just and reasonable compensation and suggested to make an application for amendment of the claim petition. While agreeing with the ratio laid down therein, I am of the opinion that the claim arising under Section 166 of the Motor Vehicles Act is the claim for unliquidated damages. Though claimants very often specify certain amount of compensation in Column 21 of the claim petition, it is no bar for the Tribunals to decide the claim and award compensation, which appears to it just, reasonable and adequate. Therefore, while agreeing with the view expressed by my learned Brother. His Lordship Justice R. Gururajan in Narayana's case, supra, and by His Lordship Mr. Justice M.F. Saldanha in Smt. Hanumakka's case, supra, on this question, in my opinion, an application for amendment of Column 21 under the circumstances is not at all necessary, which very often puts the claimant under terms. When the Statute directs the Tribunal to consider the claim in accordance with the provisions of law, the Courts have necessarily to give liberal interpretation to these provisions, specially where the Statute is beneficial in its nature and has far-reaching implications. 1 do not find any ambiguity in the language of Section 168 of the Motor Vehicles Act, to restrict the award passed by the Tribunals to the amount of compensation claimed or specified in the claim petition. Therefore, the Tribunal is not right in granting only Rs. 3,50,000/-, which is claimed by the claimants as against the compensation of Rs. 5,36,940/- determined by the Tribunal as just and reasonable. The claimants are however not entitled for enhancement of compensation or interest at 12% on the said amount of compensation.
12. The argument addressed on behalf of the second respondent herein is that if the Court had granted Rs. 5,86,940/-, it would have questioned the correctness of the award, and as the Court has only granted Rs. 3,50,000/- claimed by the claimants, it has not done so, and therefore, respondents would be highly prejudiced if the order is set aside. I do not see any merit in this contention. The respondents had ample time to challenge the finding of the Tribunal. Hence, that ground cannot be considered in this appeal filed by the claimants.
13. Therefore, this appeal is allowed. The claimants-appellants are entitled for a total compensation of Rs. 5,86,940/- with interest at 6% per annum. I direct the insurer to deposit the enhanced compensation with interest at 6% per annum, from the date of petition till the date of realisation, within 12 weeks from the date of this order.