Bhagwant Suryabhan Harkal vs Maharashtra State Road Transport ...
2004 Latest Caselaw 1225 Bom

JUDGMENT

D.G. Karnik, J.

1. Mr. A.B. Dhongade, learned Counsel undertakes to file vakalat nama within a week on behalf of the respondents. The undertaking is recorded and accepted and he is heard.

2. This appeal is directed against the judgment and Order dated 3.8.1990 passed by a Member, Motor Accidents Claims Tribunal, Ahmednagar (for short, 'the Tribunal') in Claim Application No. 93 of 1987. Appellant was driving an autorickshaw at the relevant time. A bus belonging to the respondent No. 1 driven by respondent No. 2 came in the opposite direction and dashed against the autorickshaw of the appellant. The autorickshaw overturned and the appellant suffered several injuries. Appellant was first admitted in the Civil Hospital, Ahmednagar and later on was sent to Aurangabad Hospital for further treatment. The accident took place on 30.9.1986 and appellant remained in the two hospitals till 30.10.1986. The appellant suffered fracture of the shaft of femur and other injuries and despite medical treatment, his left leg was shortened by 6 inches. The appellant became completely unable to drive an autorickshaw. Alleging that the respondent No. 2 was driving the bus in a rash and negligent manner and the accident was caused because of his rash and negligent driving, the appellant filed an application bearing Claim Petition No. 93 of 1987 before the Claims Tribunal for compensation.

3. Initially, compensation of Rs. 60,000 was claimed which claim was amended and compensation of Rs. 1,00,000 claimed. After the amendment, parties went on trial. On consideration of the evidence, the Tribunal held that the bus belonging to respondent No. 1 was being driven in a rash and negligent manner by respondent No. 2 at the relevant time. It also held that the accident occurred because of the rash and negligent driving of the bus by the respondent No. 2 on account of which the appellant suffered injuries. The Tribunal awarded a sum of Rs. 10,000 to appellant for reimbursement of medical expenses and a sum of Rs. 10,000 for the pain and suffering. The Tribunal thereafter held that the appellant was earning Rs. 900 p.m. equivalent to Rs. 11,000 per year. Taking into consideration the age of the appellant as 25 years, the Claims Tribunal held that the multiplier of 19 would be appropriate for computation of the compensation and, therefore, Rs. 2,09,000 would be the appropriate compensation for loss of income. Taking into consideration the expenses for medical treatment, pain and suffering, the Tribunal held that appellant was entitled to a total compensation of Rs. 2,29,000. However, as appellant himself had claimed compensation of Rs. 1,00,000 only in his claim application, the Tribunal awarded compensation of Rs. 1,00,000. The tribunal also did not awarded any interest on the amount but awarded the interest conditional upon non-payment of the money within a period of two months by the respondents. Being aggrieved by the judgment of the Tribunal in awarding only Rs. 1,00,000, appellant has filed this appeal. Respondents have not filed any cross-objection.

4. The learned Counsel for the appellant, firstly, submits that as Tribunal has come to the conclusion that appellant was entitled to the compensation of Rs. 2,29,000, it ought to have awarded compensation of Rs. 2,29,000. If the amount of compensation claimed by the appellant was less than what he was found to be entitled, then the Claims Tribunal could have and should have issued notice to the respondents and/ or permitted the appellant to further amend the claim and claim the compensation of Rs. 2,29,000. The learned Counsel for the appellant relied upon the judgment of the Division Bench of this Court in the case of Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay). In that case, the Tribunal had come to the conclusion that the compensation greater than what was claimed by the claimant, was awardable to claimant. In such a case, what should be the procedure to be followed by the Tribunal has been laid down by the Division Bench of this Court in the following words:

The only question that is required to be considered is of the procedure that should be followed by the Tribunal before awarding higher compensation. We are of the view that in all such cases, a proper notice or intimation should be given to the opposite party so that the opposite party has an opportunity to contest the claim even by leading evidence, if necessary. Ordinarily, the Tribunal should take a written application from claimant. This application need not necessarily be in the form of an amendment to the original application. Since as stated earlier, the amount of compensation claimed or the specific heading under which it is claimed, is no more than in the nature of the particulars of the claim, a variation in the same does not change the cause of action, which is the accident. It only furnishes additional material for assessing the claim. The additional claim should as far as possible, be taken in writing which should also indicate the reasons why the additional claim is made. Where it is not possible to take the additional claim in writing, the reasons for the same should be recorded. A copy of such written application should be served on the opposite party to give it an adequate notice of the excess amount claimed and to contest it, if it so desires. Where the application is not taken in writing, the Tribunal should make a note of it in its diary and give notice of the claim similarly to the other side.

It may also happen in certain cases that on account of ignorance or otherwise, a party may not apply for higher compensation. If, however, the Tribunal feels at any stage that the party is entitled to higher compensation, the Tribunal should ask the claimant concerned to make an application for the same in writing and a copy of the application should be served on the opposite party to enable it to contest the claim for higher amount.

If these safeguards are followed, the powers conferred on the Tribunal for awarding compensation higher than that claimed in original application, would not be abused as is feared.

The procedure which we have laid down above, would be applicable hereafter and the decisions of the Tribunal given earlier would not be rendered invalid only on account of the fact that the aforesaid procedure was not followed before awarding the compensation.

5. The judgment of the Division Bench of this Court has been subsequently followed by Karnataka High Court in the case of Narayana v. H.R. Mohankumar .

6. The learned Counsel for the appellant submits that in view of the binding decision of the Division Bench of this Court in the case of Municipal Corporation of Greater Bombay 1987 ACJ 311 (Bombay), the Tribunal ought to have awarded the compensation, as assessed. He further submits that instead of remanding the matter back to the Tribunal at this stage, this Court itself should award the higher compensation.

7. I have heard the learned Counsel for the respondents. The learned Counsel for the respondents submits that the amount of compensation calculated by the Tribunal is proper and correct. In para 14 of the judgment, the Tribunal has calculated the compensation payable to the appellant to be Rs. 2,29,000. However, it had to restrict the award only to extent of Rs. 1,00,000 as the sum of Rs. 1,00,000 was claimed by the claimant. In view of the fact that the learned Counsel for the respondents does not dispute the correctness of the amount calculated by the Tribunal in paras 9 to 14 of its judgment, it is not necessary to remand the matter back to the Tribunal. It would be appropriate to grant the compensation of Rs. 2,29,000, as calculated by the Tribunal.

8. This leads me to the question of interest. Under Section 110-CC of the Motor Vehicles Act, 1939 (the present claim was filed under the Motor Vehicles Act, 1939), the Tribunal had the discretion to grant interest at such rate and from such date not earlier than the date of the application, as it may specify in this behalf. The appellant had claimed an amount of Rs. 1,00,000. The entire claim was granted by the Tribunal. The claim is enhanced in the light of the judgment of the Division Bench of this Court and in view of the fact that the computation of compensation has not been disputed by the learned Counsel for the respondents. It would, therefore, not be appropriate to grant interest on the said amount from the date of the application but it would be appropriate to award interest on the enhanced amount from the date of judgment of this Court.

9. For these reasons, appeal is allowed and the following Order is passed:

The respondent Nos. 1 and 2 shall jointly and severally pay to the claimant a sum of Rs. 2,29,000. The respondents are granted six weeks' time for making the payment. In the event the amount is paid, no interest would be payable on the amount of compensation. However, if the amount is not paid within a period of 6 weeks, the respondents shall pay interest at the rate of 12 per cent per annum on the unpaid amount of the claim, from the date of this judgment till payment. In the facts and circumstances of the case, the parties shall bear and pay their own costs in this appeal.