HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.2258 OF 2015
JUDGMENT:
Heard learned counsel Sri S.Surender Reddy for the appellant/claimant and Sri. V.Sambasiva Rao, learned standing counsel for respondent no.2.
2. The present appeal has been filed by the appellant/claimant dissatisfied with the award passed by the Motor Accidents Claims Tribunal-cum-Judge, Family Court-cum-IV Additional District & Sessions Judge, Adilabad (for short, 'MACT') in M.V.O.P.No.470 of 2012, dated 08.06.2015 and thereby seeking enhancement of compensation.
3. The brief factual matrix of the present appeal is as under.
4. On 30.08.2012 at about 06.00 pm, the appellant-Arugula Narsaiah, was proceeding on his motorcycle bearing registration No.AP-1X-6567 from Walegaon to his agriculture field, when he reached near FCI godown, Walegaon, a Auto Trolley bearing registration No.AP-01-X-0799 dashed the said motorcycle at high speed in rash and negligent manner and due to which, the appellant/claimant received sustained fracture of Grade-III LNA,J MACMA No.2258 of 2015 2 compound wound of right thigh and other injuries throughout body and he was shifted to Government Hospital, Bhainsa. The Police, Bhainsa P.S., registered a case in Crime No.82/2012 under Sections 337 & 338 against the driver of the offending vehicle and filed charge sheet.
5. The claimant, i.e., appellant has filed claim petition against owner of the vehicle and insurance company under Section 166(1)(A) of Motor Vehicles Act, 1988 read with Rule 455 of the A.P.Motor Vehicle Rules, 1989 before the MACT claiming compensation of Rs.1,00,000/- along with interest @ 12% per annum from the date of the filing of this petition till the date of realization.
6. The appellant/claimant was aged about 25 years as on the date of accident, hale and healthy and doing agriculture and earning Rs.10,000/- per month. He was admitted as inpatient and underwent a surgery on 31.08.2012 and bedridden for about two months and incurred medical expenses of Rs.25,000/-.
7. The Respondent No.1-owner of offending vehicle remained ex-parte. The 2nd respondent-Insurance Company filed counter LNA,J MACMA No.2258 of 2015 3 denying all the allegations made in the claim petition and further contended that the driver of the Auto having valid driving license that the vehicle insured with respondent No.2-insurance company and that the liability of insurance company was subject to conditions of policy and as per Sections 147 & 149 of Motor Vehicle Act and finally contended that the compensation claimed by the claimant is highly exorbitant and excess and therefore, prayed for dismissal of the claim petition.
8. On the basis of the pleadings, the MACT has framed the following issues:
i) Whether there was any accident on 30.08.2012 at about 18.00 hours near FCI Godown, Walegaon(v), as alleged by the petitioner due to rash and negligent driving by the driver of Auto Trolley bearing No.AP-01-X-0799 of first respondent or whether there was any negligence on the part of the petitioner?
ii) Whether the petitioner suffered injuries and disability as alleged?
iii) Whether there was any insurance coverage for the driver of Auto Trolley bearing No.AP-01X-0799 and if so, does the policy cover the risk of petitioner and if so, was there any breach of policy condition alleged by the second respondent ?
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iv) Whether the petitioner is entitled to any compensation, if so, to what extent and against whom?
v) To what relief?
9. In order to substantiate the case, on behalf of the claimant, P.Ws.1 and 2 were examined and Exs.A1 to A11 were marked. To disprove the claim of the claimant, 2nd respondent-insurance company neither examined any witness nor produced any document.
10. The MACT, after considering the evidence placed on record, came to conclusion that the accident took place due to rash and negligent driving of Auto Trolley bearing registration No.AP-01-X- 0799 and awarded compensation of Rs.1,00,000/- along with interest @ 9% per annum from the date of petition till the date of realization. The owner of the offending vehicle and the Insurance company i.e., respondent Nos.1 & 2 were held to be jointly and severally liable to pay the said compensation.
11. During the course of hearing of appeal, learned counsel for appellant/claimant submitted that though the MACT, on considering the issues 1 to 5 and thoroughly appreciating the evidence and the material placed on record, awarded the total LNA,J MACMA No.2258 of 2015 5 compensation of Rs.3,32,120/-, but the entitlement of compensation was restricted to Rs.1,00,000/- on the ground that the claimant/appellant claimed compensation of Rs.1,00,000/-. He submitted that if the claimant is entitled the just compensation more than the claim, the MACT ought to have granted the just compensation by directing the claimant to pay the deficit court fee by following the law laid down by the Hon'ble Apex Court and the Hon'ble High Courts. However, in the instant case, the MACT grossly erred in restricting the entitlement of compensation to Rs.1,00,000/- and therefore, prayed for allowing the appeal, and also enhance the just compensation as awarded by the MACT.
12. On the other hand, learned counsel for respondent no.2- insurance company would submit that the MACT has rightly awarded the compensation as claimed by the claimant and therefore, there is no need to interfere with the award passed by the MACT and finally, prayed for dismissal of the appeal.
13. The main contention raised by the learned counsel for the appellant in the appeal is that the appellant is entitled to compensation of Rs.3,32,120/-, as quantified by the MACT on LNA,J MACMA No.2258 of 2015 6 considering all the issues framed by MACT irrespective of whether appellant had claimed such amount or not.
14. With regard to the quantum of award of compensation, on perusal of the award passed by the MACT and considering thorough analysis done by the MACT on each issue, this Court is of the opinion that there is no need to reproduce and analyze the issues once again. The MACT had properly quantified the compensation payable to the appellant/claimant, however, the MACT committed error in restricting the compensation to Rs.1,00,000/-, which was claimed by the appellant in the claim petition. The approach of MACT is contrary to the settled principle of law, as held by the Hon'ble Apex Court in the case of Ningamma and another vs. United India Insurance Company Limited 1.
15. In Ningamma (supra), the Hon'ble Apex Court held as under:
"31. Recently, this Court in Raj Rani v. Oriental Insurance Co. Ltd.
[(2009) 13 SCC 654] wherein one of us (Hon'ble S.B. Sinha, J.) has taken the view that it is not necessary in a proceeding under the MVA to go by any rules of pleadings or evidence. Section 166 of the MVA speaks about "just compensation". The court's duty being to 1 (2009) 13 SCC 710 LNA,J MACMA No.2258 of 2015 7 award "just compensation", it will try to arrive at the said finding irrespective of the fact as to whether any plea in that behalf was raised by the claimant or not.
32. It was further observed in Raj Rani case [(2009) 13 SCC 654] that although the multiplier specified in the Second Schedule appended to the MVA are stricto sensu not applicable in a case under Section 166 of the MVA, it is not of much dispute that wherever the court has to apply the appropriate multiplier having regard to several factors in mind. The Court has placed reliance on earlier judgment of this Court in Nagappa v. Gurudayal Singh [(2003) 2 SCC 274 : 2003 SCC (Cri) 523] wherein it was observed as follows in para 7: (SCC p. 279) "7. Firstly, under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the MV 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 the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The 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 MV 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 authorised 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. The other important LNA,J MACMA No.2258 of 2015 8 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, the Claims Tribunal in an appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed."
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34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not."
16. In view of the above decision of the Hon'ble Apex Court, in considered view of this Court, appellant is entitled to just compensation of Rs.3,32,120/- as quantified by the MACT. However, the interest awarded by the MACT is on higher side, therefore, the interest is reduced to 7.5% as against 9% awarded by the MACT.
17. Accordingly, the Appeal is allowed in part, enhancing the compensation from Rs.1,00,000/- to Rs.3,32,120/- with interest LNA,J MACMA No.2258 of 2015 9 at the rate of 7.5% from the date of the petition i.e., 01.12.2012 till the date of realization, subject to the claimant paying deficit Court fee. The respondent No.2-insurance company is directed to deposit the entire compensation amount within a period of eight weeks from the date of receipt of copy of this order by duly adjusting the amounts, if any, already deposited/paid to the appellant/claimant. There shall be no order as to costs.
18. Pending miscellaneous applications if any shall stand closed.
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