HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO M.A.C.M.A. No.3214 of 2011 13-11-2013 National Insurance Company Limited Rep.by its Branch Manager, Warangal district....Appellant Guguloth Venkanna and others....Respondents Counsel for the Appellant:Smt M.Bhaskara Lakshmi Counsel for respondent Nos.1 to 6 : Sri A.Prabhakar Rao, Counsel for respondent No.7 : None appeared HEAD NOTE: ?.Cases referred:
1. 2007 AIR SCW72802) 1965(1) All.E.R-563 3) 1963(2) All.E.R.432 4) 1969(1) All.E.R.555 5) 1995 ACJ366SC) 6) 2013(4) ALT35SC) 7) 2009 ACJ12988) 2011(8) Scale 240 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.3214 OF2011JUDGMENT
: The National Insurance Company Limited-appellant filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (Fast Track Court), Warangal at Mahaboobnagar (for short, 'Tribunal') in M.V.O.P.No.262 of 2010 dt. 30.06.2011, awarding compensation of Rs.4,54,000/-(Rupees four lakh fifty four thousand only) as against the claim of appeal respondent Nos.1 to 6 (husband, three minor daughters and parents-in-law of deceased) of Rs.5,00,000/-(Rupees five lakh only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, 'the Act').
2. Heard Smt. M.Bhaskara Lakshmi, the learned standing counsel for the appellant and Sri A.Prabhakara Rao, the learned counsel for the respondent Nos.1 to 6 and the 7th respondent served with notice but called absent with no representation. Taken as heard the 7th respondent for his absence to decide on merits and perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
3. The contentions in the grounds of appeal as well as oral submissions during course of hearing in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal failed to appreciate that the deceased was an unauthorized passenger on the offending tractor as on the date of accident which is a blatant violation of condition of policy, failed to appreciate that the owner paid additional premium to cover the risk for driver only and no additional premium is paid to cover the risk of labourer engaged for loading and unloading, that erred in considering Rs.25/- premium collected under the policy towards legal liability to the driver, as premium collected cover the risk of labourer (deceased) under the policy, the Tribunal misdirected itself in holding that the premium of Rs.25/- paid for W.C. covers the labourer, that the tribunal failed to note that the deceased was only a labourer, but not a workwoman for whom the premium is paid, that it ignored the judgment of the Apex Court in United India Insurance Company Limited Vs. Serji Rao1 wherein it was held that ". Insurer is not liable to pay compensation for the labourer travelling in the tractor".. Hence to allow the appeal.
4. Now the points that arise for consideration in the appeal are:
1. Whether the policy does not cover risk of the deceased to indemnify the insured by the insurer and compensation awarded by the Tribunal is highly abnormal and requires interference by this Court while sitting in appeal against the award and if so with what observations?.
2. To what result?. POINT-1:
5. The facts of the case as proved before the Tribunal and not in dispute in this appeal are that, on 12.10.2009 morning due to rash and negligent driving of the driver of the crime vehicle (Tractor and Trailer bearing No.AP36X5089and 5090) belongs to the appeal 7th respondent insured with the appellant herein covered by Ex.A.9 policy, the deceased who was travelling in the trailer along with her two brothers fell down and the tyre of trailer ran over her due to which the deceased-Gugulotu Parvathi @ Gowri, aged about 30 years-(as per Ex.A.2 Postmortem report), sustained fracture injuries to ribs and died on the spot, which occurrence is covered by Ex.A.1 First Information Report in Cr.No.119 of 2009 under Section 304-A IPC, and also proved from Ex.A.4 MVI report. The Tribunal from the evidence of P.Ws.1 to 4 with reference to Exs. A.1 and A.5 held that the accident was occurred due to rash and negligent driving of the driver of the crime vehicle and also the premium paid to cover the risk of workmen compensation-I i.e. labour engaged in addition to the driver, and considering all other aspects like damages, loss of consortium, loss of estate loss of future earnings funeral expenses, transport charges, taking earnings of the deceased at Rs.3000/- and applying 18 multiplier, arrived total compensation of Rs.4,54,400/- against respondent Nos.1 and 2 entitled by claimants.
6. Before coming to decide, what is just compensation in the factual matrix of the case, It is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James2, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly3 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver4 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest Control (India) Private Limited5 at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.
7. Now coming to the quantum of compensation, the Tribunal awarded Rs.4,54,000/- from the deceased was aged about 28 years and the earnings as on the date of accident i.e.12.10.2009 estimated at Rs.100/- per day = Rs.3,000/-p.m. x 12 = Rs.36,000/- p.a. and Tribunal in fact, deducted only 1/3rd for personal expenses of the dependants-claimants who are as many as six in number that from the latest expression of the Apex Court in Rajesh v. Ranabir Singh6 and Sarla Varma v. Delhi Transport Corporation7, 1/4th is to be deducted where the dependants are more than three and even therefrom either the monthly earnings of the deceased estimated by the Tribunal or the multiplier adopted 18 by the Tribunal no way on high side. It is in fact as per Sarla Verma (supra) the multiplier 17 is applicable for a person between the age of 26 to 30 and even taken the same the earnings of deceased at Rs.3,000/- p.m. with 50% escalation of prospective earnings it comes to Rs.4,500/-p.a.x 12=Rs.54,000/-, after 1/4th deducted for personal expenses = Rs.40,500/-x17(multiplier)=Rs.6,88,500/-, for loss of consortium to the 1st claimant of Rs.1,00,000/-, for funeral expenses of Rs.25,000/-, for care and guidance to the minor even taken of Rs.20,000/- as per as per Rajesh (supra) and for loss of estate of Rs.10,000/- it comes to Rs.8,43,500/- and thereby what the claim awarded by the Tribunal of Rs.4,14,000/- is no way on high side and so also the interest at 71/2% but for to say this Court otherwise can grant just compensation, has no such right for want of cross-objections of the claimants in the appeal filed by the Insurer as laid down in Ranjana Prakash Vs. Divisional Manager8.
8. Now coming to the other contention of the Insurer impugning the award is that the Insurance policy covered by Ex.A.9 through referred at page 2 about W.C. coverage by collection of additional Rs.25/- besides compulsory PA to the owner- cum-driver of Rs.100/- and third party property damage of Rs.200/- apart from premium for the tractor as well as the trailer i.e. the crime vehicle; it does not cover risk of the deceased being not a workman for awarding compensation to the claimants to indemnify by the insurer. It is also contended by saying the deceased even for arguments sake though unauthorized passenger taken as if a labourer engaged, the policy does not cover the risk to any employee when he is not within the definition of workman as per schedule II of the Workmens Compensation Act, 1923(for short 'the W.C.Act) and thus the Tribunal is erred in awarding compensation apart from the quantum awarded is also high and unsustainable.
9. In fact, on perusal of the policy referred above, it clearly speaks additional premium collected covers the risk of one person referred as employee. Admittedly, The W.C.Act, no way defines employee. Now the only thing to be considered is that a person engaged as a labourer by the owner of the crime tractor and trailer; who met with an accident while use of the vehicle is within the definition of employee to fix liability on the insurer from coverage of the policy or not. When admittedly employee is not defined and a person whose services hired by the owner involved in the accident while use of the vehicle from the rash and negligent driving being a third party even otherwise entitled to compensation as there is no force in saying that he is unauthorized passenger from the factum of his services were hired by the owner and even referred as a labourer and not referred as employee or workman, the nomenclature of such reference is not decisive but for engaging of his service. Thus, there is coverage of the risk of the deceased whose services engaged by the Insured. Having regard to the above, when the Tribunal's finding is very clear that once he is engaged, he comes within the definition of employee to make the Insurer liable, it no way requires interference. Coming to the proposition referred in para-8 of the Award, now even placed reliance of Serji Rao (supra); what it lays down is that Insurer is not liable to pay compensation for the labourer travelling in the tractor. It is not the case with any co-relation to the facts of present case. Apex Court not laid any distinction between workman and employee. The Rs.25/- premium collected is to cover the risk of labourer engaged only to travel on the trailer. When admittedly it is not for driver of the tractor with single seating capacity only for driver; it is for any other to travel on trailer and any person to travel on trailer is connected with goods or load and for its loading and unloading. In fact, Rules 185(x)(f)(v) of the A.P. Motor Vehicles Rules,1989 says that in a goods carriage for loading and unloading maximum 7 coolies can be taken, even though Rule 28 of the Central Traffic Rules,1989 does not permit carrying or allowing or taking of any person on tractor. A combined reading of said Rules speaks that on trailer propelled to tractor, upto 7 persons connected with loading and unloading engaged as labourers/workmen can travel. Here, the deceased was travelling on the trailer as such workmen and the policy by collection of additional premium of Rs.25/- covers the risk. Thus, Insurer has to indemnify the Insured and pay the compensation and cannot be allowed to take any hair splitting contentions. When such is the case as rightly held by the Tribunal, the decision has no application to the present case. It is in fact what is the principle of law laid down that is criteria for its co-relation to the facts as even a slight difference in the facts may tilt the result. Hence, there is nothing to interfere with said finding of the Tribunal so far as fastening of liability on the Insurance Company to indemnify the Insured to the claimants for death of the deceased. Accordingly, Point-1 is answered. POINT -2:
10. In the result, the appeal is dismissed. No costs. _______________________ Dr. B. SIVA SANKARA RAO, J Date:
13. 11-2013