Bombay High Court
The Branch Manager Nagpur vs Shivbodhansingh Keshav Singh & 2 ... on 21 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.568 OF 2004
The Branch Manager,
The United India Insurance Company
Limited, City Branch No.II, Medical
Chowk, Nagpur. .......... APPELLANT.
// VERSUS //
1.Shivbodhansingh s/o. Keshav Singh,
Aged about 45 years, Occ.Service,
r/o. C/o. Shiladevi Singh, Kumar
Niketan, DVC Chowk, Post G.P.O.,
Patna (Bihar), Pin-800 001.
2.Sudesh C. Bajaj,
Aged about major, Occ.
Owner, r/o. C/o.Mrs. Kamal
Dube, Opp. Mayo Hospital,
Central Avenue Road,
Nagpur.
3.Shilwanti Devi w/o. Shivbodhan
Singh, Aged about 40 years, Occ.
Household, r/o. Kumar Niketan,
DVC Chowk, Post G.P.O.,
Patna (Bihar). .......... RESPONDENTS
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Mr.D.N.Kukday, Adv. for the Appellant.
Ms M.H.Pathade, Adv. for the Respondents.
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Date of reserving the Judgment : 22.7.2015.
Date of pronouncing the Judgment : 21.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. Heard the learned Counsel for the respective parties.
2. By this appeal, the appellant-Insurance Company has
prayed to quash and set aside the Award dt.12.3.2004
passed by the learned Member of the Motor Accident
Claims Tribunal, Nagpur in Claim Petition No.590 of 1997
against the appellant.
3. The facts, briefly stated are as under :
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Claimant Shivbodhan Singh is father of motor vehicle
accident victim Rajesh while Shilvanti Devi/respondent
no.3 is mother of said unfortunate Rajesh. Victim Rajesh
was studying in Polytechnic Institute at Nagpur. On
4.7.1997, at about 10.30 a.m. while proceeding on his Hero
Moped No.MFW 1763 on the way between Somalwada via
Wardha road, Rajesh had halted his moped and was
standing on the extreme southern side of the tar road when
offending motor vehicle i.e. Tanker bearing registration
No.MH-31 M-7740 came from behind and dashed him. In
the result, he fell down. The tanker ran over his leg. He
sustained severe injuries. He was admitted to Medical
College hospital. But he died on 5.7.1997. The incident of
accident was informed to Police Station, Sonegaon. The
offence was investigated and the driver of the tanker
(offending motor vehicle) was prosecuted. Rajesh was a
brilliant student with very good prospects in his life and
according to the claimants, he would have earned a salary
in the sum of Rs.10,000/- per month. He was the only son
of the claimant and respondent no.3. They lost their
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support in their old age. They had claimed compensation
in the sum of Rs.6,00,000/- from the owner and insurer of
offending motor vehicle. Owner of the offending motor
vehicle failed to file Written Statement and the Claim
Petition was prosecuted against the owner without Written
Statement. While the Insurer (appellant) resisted the
petition and denied liability to pay compensation.
Ownership as well as Insurance cover in respect of
offending motor vehicle is not in dispute. The Tribunal
upon evidence led found that Rajesh died on account of
rash and negligent driving of the offending motor vehicle.
4. According to the Tribunal, Rajesh was 25 years old
when he met with the motor vehicle accident and could
have contributed a sum of Rs.2,000/- p.m. to the family.
Regarding claim in the sum of Rs.6,00,000/-, the Tribunal
held that the claimants and parents of the victim are
entitled to compensation in the sum of Rs.3,88,500/- only.
The claimant had relied upon police papers including F.I.R.,
Spot panchanama, Inquest panchanama, Insurance Cover
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note, Identity card issued by the College to Rajesh in
support of the Claim Petition. No evidence was led by the
owner or the driver of the offending motor vehicle. The
claimant had deposed about the incident of accident, about
rashness and negligence on the part of the driver of the
offending motor vehicle which resulted in the accident
relying upon police papers which were marked from Exh.
Nos. 32 to 35. The Tribunal held that the tanker came from
behind the moped and dashed it at the extreme side of the
road, which gives rise to the only inference as to rash and
negligent driving of the offending motor vehicle. There was
no evidence led on behalf of the appellant/Insurance
Company to prove that Rajesh was driving the moped in the
middle of the road. The driver of the offending motor
vehicle was not examined.
5. Learned Counsel for the appellant submitted that the
impugned Award was excessive as it was in respect of non-
earning student. According to the learned Counsel for the
appellants, there was no evidence of brilliancy and ranking
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of Rajesh as student as also about his estimated future
income. According to the learned Counsel for the Insurer,
Award of interest @ 9 % p.a. from the date of petition was
excessive and penal. According to the learned Counsel for
the appellant, rate of interest at 9 % p.a. on the ground of
failure to pay the entire amount under the Award with
interest @ 6 % p.a. from the date of petition within two
months was contrary to law and excessive. Learned
Counsel for the claimants submitted that the Award amount
was unjust and inequitable since victim Rajesh was
Engineering student and his future was bright. He could
have earned atleast a sum of Rs.10,000/- p.m. According to
the learned Counsel for the claimants, even if 50 % amount
is deducted towards notional self expenses of the
unmarried Engineer student, the Tribunal could have
awarded compensation on the basis of monthly income of
Rs.5,000/- p.m. applying multiplier of 17 to the annual
income. It is, thus, submitted that a sum of Rs.10,20,000/-
plus funeral expenses in the sum of Rs.25,000/- and loss of
estate and love and affection in the sum of Rs.1,00,000/-
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makes the total to the sum of Rs.11,45,000/- which would
be just and reasonable compensation payable to the
claimants in this case.
6. Learned Counsel for the Insurer objected the
submissions on the ground that there is no Cross-Objection
in this appeal for claiming enhanced compensation, to
which learned Counsel for the claimants replied that - in
view of the ruling in Babu Lal and Others vs. D.T.C. and
another reported in 2013 (1) T.A.C. 844 (Delhi High
Court), it was held that the Tribunal is empowered to
award just compensation in accordance with law and it can
be more than the amount claimed by the claimants in view
of observations made by the Delhi High Court. Even in
absence of Cross-Objections, the Appellate Court can under
Order XLI, Rule 33 of the Code of Civil Procedure is
empowered to grant just compensation. The Delhi High
Court observed in para nos. 19 and 20 thus :-
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19.It is well settled that Order XLI, Rule 33 of the
Code of Civil Procedure empowers the Appellate
Court to grant relief to a person who has neither
appealed nor filed any cross-objections. The object of
this provision is to do complete justice between the
parties. Order XLI, Rule 33 of the Code of Civil
Procedure has been discussed time and again by the
Supreme Court in the following cases :
i) Pannalal vs. State of Bombay,
A.I.R. 1963 S.C. 1516.
ii) Rameshwar Prasad v. M/s.Shyam Beharilal
Jagannath, (1964) 3 S.C.R. 549.
iii) Nirmal Bala Ghose v. Balai Chand Ghose,
A.I.R. 1965 S.C. 1874.
iv) Giasi Ram vs. Ramjilal, A.I.R. 1969 S.C.
1144.
v) Harihar Prasad Singh v. Balmiki Prasad
Singh, (1975) 2 S.C.R. 932.
vi) Mahant Dhangir v. Madan Mohan,
(1988) 1 S.C.R. 679.
vii) State of Punjab v. Bakshish Singh,
(1999) 8 S.C.C. 222.
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20. Section 168 of the Motor Vehicles Act, 1988
empowers the Court to award such compensation as
appears to be just which has been interpreted to mean
just in accordance with law and it can be more than
the amount claimed by the claimants. The provisions
of the Motor Vehicles Act, 1988 are clearly a
beneficial legislation and hence should be interpreted
in a way to enable the Court to assess just
compensation. The scope of Order XLI, Rule 33 of the
Code of Civil Procedure and the power of the High
Court to enhance the award amount in accident cases
in the absence of cross-objections has been discussed
by the Supreme Court in Nagappa v. Gurudayal
Singh, A.I.R. 2003 S.C. 674 : 2003 (1) T.A.C. 241,
where the Apex Court has held that the Court is
required to determine just compensation and there is
no other limitation or restriction for awarding such
compensation and in appropriate cases wherefrom 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 and would empower the Court to enhance
the compensation at the appellate stage even without
the injured filing an appeal or cross-objections. "
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7. The observations would indicate that the appellate
Court can grant relief in favour of a person who neither
appeared nor filed Cross-Objection in order to do complete
justice between the parties. Hon'ble Supreme Court in the
case of Nagappa vs. Gurudayal Singh reported in AIR
2003 SC 674 held that the Court is required to determine
just compensation and there is no outer limit or restriction
for awarding just compensation in appropriate cases
wherefrom the evidence brought on record if the Court
considers that the claimant is entitled to get more
compensation than claimed. Such an Award may be made
for enhancing compensation at the appellate stage. Since
the observations were made pursuant to the rulings by the
Apex Court, it cannot be disputed that enhanced
compensation may be granted in appropriate case where
award of compensation appears inadequate to meet the
ends of justice.
8. Reference is also made to the case of Rajesh and
Others vs. Rajbir Singh and Others reported in 2013 ACJ
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1403. Three Judges Bench of Hon'ble Supreme Court
observed thus :-
"19. In a report on accident, there is no question of
any reference to any claim for damages, different
heads of damages or such other details. It is the duty
of the Tribunal to build on that report and award
just, equitable, fair and reasonable compensation
with reference to the settled principles on assessment
of damages. Thus, on that ground also we hold that
the Tribunal/court has a duty, irrespective of the
claims made in the application, if any, to properly
award a just, equitable, fair and reasonable
compensation, if necessary, ignoring the claim made
in the application for compensation. "
9. Thus, it appears that it is the duty of the Tribunal to
consider awarding just, equitable, fair and reasonable
compensation irrespective of the claim made in the
application.
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10. In the case in hand, the parents of the victim had
demanded compensation on account of death of their only
son who was pursuing studies as an Engineering student.
Compensation was claimed in the sum of Rs.10,50,000/-
and sum of Rs.10,000/- towards funeral expenses and
Rs.50,000/- towards loss of estate. The claimants had
restricted their claim to the sum of Rs.6,00,000/- in the
Claim Petition and demanded 18 % p.a. interest upon
award of compensation from the date of petition till
realisation.
11. The evidence of witness no.1 for the claim petitioner
was of Shivbodhan Singh (father of victim of accident) who
made reference to the F.I.R., spot panchanama, inquest
panchanama, cover note of the Insurance of offending
motor vehicle, post mortem report and Identity card of
Rajesh. It was a case where Rajesh, 25 years old student of
final year of Polytechnic College studying in Bodhisatva
Polytechnic College, Nagpur. According to Shivbodhan
Singh, his son was a brilliant student and could have
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earned salary in the sum of Rs.10,000/- p.m. The claimant
lost his only son who was unmarried. The claimant had
taken loan for the education of his son. To this evidence,
except suggestions to deny the liability, there was no any
concrete opposition to the claim. The spot panchanama
indicated that Hero Majestic moped, which was driven by
Rajesh, was by the southern corner of the road in a broken
condition as a result of the accident. Police had registered
Crime No.93 of 1997, u/ss.279, 338, 427 r/w. Section 304-
A of the Indian Penal Code on the ground that the driver of
the tanker bearing registration no.MH-31 M-7740 drove the
tanker rashly and negligently and dashed Hero Moped of
victim Rajesh and caused severe injuries to him. The
Insurance Cover Note (Exh.34) indicated that the offending
motor vehicle was insured covering the date of the accident
while the post mortem notes indicated that the cause of
death of Rajesh was shock and haemorrhage due to injuries
described in the post mortem. Thus, prima facie, it was
clear that the accident was caused because of rash and
negligent driving of the offending motor vehicle.
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12. Considering the facts and circumstances of the case
that the victim was a bright Engineering final year student
and was a bachelor, his aged parents lost their only son,
father of the victim was aged about 52 years, the monthly
income inclusive of prospective increases in the income, a
sum of atleast Rs.10,000/- p.m. could have been considered
as a basis for calculations of just compensation. Assuming
that a bachelor would spend more amount towards his self-
expenses, a sum of Rs.5,000/- can be deducted leaving sum
of Rs.5,000/- p.m. as loss of dependency for parents which
was annually a sum of Rs.60,000/-. The victim was aged
less than 25 years and hence, multiplier of 17 could have
been applied to the annual loss of dependency in the sum of
Rs.60,000/- making the compensation in the sum of
Rs.10,20,000/- as just and reasonable. The claimant had
only claimed a sum of Rs.2,000/- towards funeral expenses
and Rs.2,500/- towards loss of estate. Thus, by written
submissions at Exh.40 compensation was claimed in the
sum of Rs.10,24,500/- only which, in my opinion, in the
background of the rulings cited, appears just and
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reasonable compensation payable to the parents with
interest @ 6 % p.a. from the date of Claim Petition till
realisation of the amount. Therefore, the impugned Award
needs modification in terms of enhancement of the amount
to the sum of Rs.10,24,500/- irrespective of restricted
claim. Hence, just and proper compensation in the facts and
circumstances of the case would be a sum of Rs.10,24,500/-
together with interest @ 6 % p.a. from the date of petition
till realisation. The appellant, the driver and the owner of
the offending motor vehicle i.e. tanker bearing registration
no.MH-31 M-7740 are jointly and severally liable to pay the
amount for compensation accordingly inclusive of no fault
liability. The amount already deposited and withdrawn by
the claimants shall be deducted from the balance amount
payable. The balance amount shall be paid as directed
above to the parents of deceased Rajesh in equal
proportions. The appeal stands disposed of accordingly.
JUDGE
jaiswal
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Visit of Hon'ble Shri Justice A.P.Bhangale along with three
ig family members to Jalgaon.
Tour Program
_______________________________________________________
21.8.2015 4.30 p.m. Leaving Nagpur for Jalgaon by
Friday road (440 kms.)
12 Midnight Arrival at Jalgaon
Halt at Govt. Circuit House
(Two VIP suits in Padmalay
Govt. Circuit House are
required for 21.8.2015,
22.8.2015 & 23.8.2015).
23.8.2015 2.00 p.m. Leaving Jalgaon for Nagpur
Sunday by road.(440 kms.)
12 Midnight Arrival at Nagpur.
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