HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO M.A.C.M.A. No.690 of 2011 16-12-2013 Bajaj Allianz General Insurance Company Limited ...Appellant Penugumatla Dhanalakshmi and another....Respondents Counsel for the Appellant:Sri T.Mahender Rao Counsel for respondent No.1: Sri T.V.S.Prabhakar Rao Counsel for respondent No.2-: None appeared HEAD NOTE: ?.Cases referred:
1. AIR2009SC2082. (2004) 3 SCC2972004-ACJ-1 3. (2006) 4 SCC2504. (2004) 13 SCC2242004-SAR(civil)-290 5. (2007) 10 SCC6502007(4) Scale 292 6. 2008 ACJ26547. 2008(1)LS-SC-177 8. (1997)7 SCC-558 9. (2007) 13 SCC24610. 2008(1) Scale 531 11. 2008 ACJ65412. 2007 ACJ72113. 2001 ACJ84314. 2008(1) Scale 727 15. JT-2003(2) SC595= 2003 ACJ61116. 2010 ACJ16517. 2012 ACJ128418. 1987 ACJ411(SC) 19. 2008 ACJ288520. 2000 ACJ31921. 1996 ACJ1046(SC) 22. 1987 ACJ411(SC) 23. 2008-ACJ-1498 24. AIR2007SC197125. (2004)2 SCC-1 26. Appeal (Civil) C.C.No.10993 of 2009 27. 2010 (5) ALT10528. 2005 (4) ACJ72129. AIR2011SC1234= 2011 (2) SCJ63930. (2013)11 SCC-35 31. (2013) 7 SCC6232. 1965(1) A11. E.R-563 33. 1963(2) All.E.R-432 34. 1969(1)A11.E.R -555 35.1995 ACJ366SC) 36. (2001)8 SCC19737. 2013 ACJ1403(4)ALT-35(SC) 38. 2009 ACJ129839. 2011(8) Scale 240 40. (2005) 6 SCC236HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.690 OF2011
JUDGMENT: The Bajaj Allianz General Insurance Company Limited (2nd respondent in the claim petition) filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, East Godavari at Amalapuram (for short, 'Tribunal') in M.V.O.P.No.195 of 2007 dated 07.10.2010, awarding compensation of Rs.31,000/- (Rupees thirty one thousand only), as against the claim of Rs.1,00,000/-(Rupees one lakh only), by impugning the joint liability on the respondent Nos.1 and 2 viz., owner and Insurer-the appellant herein of crime vehicle under Section 166 of the Motor Vehicle Act,1988 (for short, 'the Act') praying to exonerate the Insurer.
2. Heard Sri T.Mahender Rao, learned standing counsel for the appellant, Sri T.V.S. Prabhakar Rao, learned counsel for the 1st respondent-claimant and 2nd respondent-(owner-cum-driver of crime auto) served with notice is called absent with no representation and thus taken as heard 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 in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in fastening liability to the appellant also, that failed to see that the owner-cum-driver was having only non transport light motor vehicle driving licence and he was driving the passenger transport auto at the time of accident and as such violated the terms of policy, that the Tribunal failed to consider evidence produced on behalf of the appellant in this regard even the breach of conditions of contract is ex facie apparent from the record, and that the compensation awarded is otherwise excessive, hence, to set aside the award by allowing the appeal.
4. Now the points that arise for consideration in the appeal are:
1. Whether the award of the Tribunal fastening joint liability on the insurer with insured to indemnify the insured for the claimant(s) requires interference by this Court while sitting in the appeal?.
2. Whether the quantum of compensation awarded by the Tribunal is not just and requires interference by this Court and if so with what extent and against whom with what rate of interest with what observations?.
3. 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 07.02.2007 due to the rash and negligent driving of the driver-cum-owner of the crime vehicle (auto bearing No.AP5 1292) belongs to the 1st respondent insured with the 2nd respondent (appellant herein), the same turned turtle, as a result the claimant by name Penugumatla Dhanalakshmi w/o Nageswararao, aged 38 years, Ambedkar Nagar, I Polavaram village and mandal, East Godavari district, who was traveling in the said auto along with other passengers fell on the road and sustained grievous injuries and the claimant sustained fracture of ribs on both sides, tongue bite, injuries to chin, head, left side of the stomach, forehead and other multiple injuries all over the body, immediately she was shifted to Government General Hospital, Yanam, then to Government General Hospital, Kakinada where she took treatment as in-patient for about ten days, which occurrence is covered by Ex.A.1 First Information Report in Cr.No.9 of 2007 under Section 337 and 338 IPC and Ex.A.3 charge sheet. The learned Tribunal basing on the oral and documentary evidence on record, awarded compensation of Rs.31,000/-(Rupees thirty one thousand only) against both the respondents in the claim petition jointly and severally by negating the contention of Insurer to be exonerated for what is the difference between transport and non-transport Light Motor Vehicle (for short, 'LMV')auto is not in size or difference in skill, but only use. Said findings of the Tribunal is now impugned to decide the two points formulated above.
6. Now coming to decide whether the insurer can be exonerated from liability to indemnify the insured to the third party claimants concerned: i) No doubt in National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Others1, the two judge bench of the Apex Court in this decision by referring to National Insurance Company Limited Vs. Swaran Singh & Others2 apart from other expressions in National Insurance Company Limited Vs. Kusum Rai & Others3 and Oriental Insurance Company Limited Vs. Nanjappan & Others4 and Ishwar Chandra & Others Vs. Oriental Insurance Company Limited & Others5 held that the insurer is not liable to indemnify the owner, when the driver has no license to drive the crime vehicle. ii) In Ishwar Chandra (supra) it was held by the two judge bench that the driver's licence when expired 30 days prior to the date of accident and no renewal application filed even by date of accident to say a renewal dates back to date of application, it is suffice to hold the driver has no valid licence as on date of accident. iii) In Kusumrai (supra) it was held by the two judge bench that, the vehicle was used as taxi (commercial) and the driver is required to hold appropriate licence but not having valid commercial vehicle licence and from that breach, the insurer is held entitled to rise the defence. iv) In Vidhyadhar Mahariwala (supra)-in para -8 of the judgment, it was observed that in Swaran Singh (supra)whereupon it was held as follows:- ".45. Thus, a person whose license is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the license, he did not have a valid license, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefore. Proviso appended to Section 14 in unequivocal terms states that the license remains valid for a period of thirty days from the day of its expiry.
46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving license has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19,20,21,22,23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving license renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.". v) In Ram Babu Thiwari Vs. United Insurance Company Limited6 by referring to Ishwar Chandra, Kusum Rai, Swaran Singh (supra) among other expressions, held that when a driving license of the driver of the offending vehicle was expired about three years prior to accident and it was got renewed only subsequent to the accident it was held as violation of the terms of the policy by referring to Kusum Rai (supra) followed in Ishwar Chandra (Supra) observed that in view of the Section 15(1) of the Act even the license after period of expiry remains valid for thirty days to renew meantime any renewal subsequently would be renewed from the date of renewal only to say as on the date of accident even be subsequent renewal long after thirty days expiry of the statutory period not a valid renewal to say no valid license to exonerate the Insurer and thus exonerated the insurer. vi) The above decisions other than Swaran singh (Supra) mostly speak of no valid license as on the date of accident though earlier it was from its lapse and timely non-renewal or holding one license not valid to drive other type of vehicle. vii) On perusal of Swaran Singh (Supra) referring earlier expressions speaks several categories of cases as to such imperfect license or lapsed license with no license in subsistence or a fake license or even driver with no license at all. An extreme case of this type of driver having no license at all driving the vehicle knowingly without even application for lilcence and without experience to drive even admittedly and in his saying it is to the willful and conscious knowledge of the owner as a fundamental breach. Coming to the cases no license is concerned:- viii) In Sardari vs. Sushilkumar7- the facts show one Jageeru, Tonga driver on 10-2-85 met with accident when it colluded with tractor and he later was expired on 15-2-85 and the Insurance Company in the counter contended that the driver of the tractor did not hold valid and effective licence and there is no liability to indemnify. In the course of trial, the said tractor driver Sushil Kumar categorically deposed that he does not know how to drive a tractor as he never even tried to learn driving tractor, that he had not been possessing any licence to drive a tractor and he did not even apply for licence. It was therefrom, the Tribunal held that admittedly when the driver of crime tractor was not knowing to drive tractor and not even having any licence at all to drive, the Insurance Company is not liable to indemnify owner of the tractor. The appeal was also dismissed confirming the said finding of the tribunal when preferred by driver and owner of the tractor for no appeal by claimants. In that factual context it was observed in para 6 of the judgment by the Supreme Court that, time and again made distinction between cases where III party is involved Vis--vis owner of the vehicle was involved. The object of Sections 147 & 149 of the MV Act enacted was social justice doctrine envisaged in the preamble of the constitution, however, the Act itself provides where the insurance company can avoid its liability. The avoidance of such liability by insurer largely depends upon violation of conditions of the Insurance Contract. Where the breach is ex-facie apparent from the record, court need not fasten liability on the insurer. In certain situations, however, the court while fastening liability on insured, may direct the insurer to pay to the claimants and recover the same from the insured. ix) In UIIC Vs. Gianchand8, it was observed that when the insured handed over the vehicle to an un-licenced driver, insurer would be exonerated from liability to meet III party claims. x) In Swaran Singh (three judges bench-supra) it was laid down that the owner of the vehicle has a responsibility to see that no vehicle is driven except by a person who doesn't satisfy Sections 3 & 4 of the MVAct. In a case where the driver admittedly did not hold licence and the same was allowed consciously to be driven by the owner of the vehicle by such person insurer in its defence succeed to avoid liability. The matter, however, may be different where a disputed question of fact arises as to driver had a licence or owner committed a breach of the policy terms by consciously allowing a person to drive without having a valid driving licence. xi) In NIAC Vs. Prabhulal9 it was a claim arisen out of Consumer District Forum holding no liability of the insurer against the National Consumer Commission's verdict fixing responsibility. xii) In Prem Kumari Vs. Prahlad Dev10 it was also observed that owner of the vehicle cannot contend no liability to verify the fact as to whether the driver possessed a valid licence or not. xiii) By referring all these expressions at Para 9 of the Judgment of the Apex Court in Saradari (supra), the Apex Court did not choose to interfere with the finding of the tribunal confirmed by the High Court, in not chosen to make liable the insurer. xiv) In Surina Durvasulu Vs. Bhavanarayana Murthy11 Para 14 it was held that when the driver had no valid driving licence to drive tractor and the charge sheet also mentions a penal provision for violation of the same in driving with no licence and nothing deposed by owner despite contention of Insurance Company, that he has taken all necessary precautions to entrust the vehicle to a person who had valid driving licence, insurance company not made liable holds good.
7. The other type of cases are driver possessing a fake license and not any real license to drive and driving the vehicle entrusted by owner it all depends upon the facts as to the owner consciously by knowing it is a fake license allowed or believing as genuine allowed and what extent the liability to enquire lies on the owner concerned, the cases on that principle are as follows: - i) In National Insurance Company Limited Vs. Laxmi Narain Dhut12, it was held by the Apex Court referring to Swaran Singh (supra) and New India Insurance Company Limited Vs. Kamala13 at page 41 that the defense available to the Insurer to indemnify the insured or not (any) of a third party claim under Section 149 of the Act includes the license claim as genuine is fake. In that case on facts found the license possessed was fake and it was even renewed by the Regional Transport Officer concerned ignorant if the fact or otherwise held that mere renewal of a fake license cannot cure the inherent defect as renewal cannot transform a fake license as genuine as held in Kamala(supra) was the conclusion arrived. ii) The other decision on that is Oriental Insurance Company Limited Vs. Prithvi Raj14 which is also a fake license and proved so and held that a renewal cannot take away the effect of fake license to make the Insurer liable and the Insurer cannot thereby be liable to that conclusion, they followed Kamala (Supra) besides United India Insurance Co. Ltd. V. Lehru15 (supra). iii) The other decisions regarding fake license is National Insurance Company Limited Vs. Dupati Singaiah16 referring to Lehru, Swaran Singh, Gain chand, Prithvi Raj, Prahlad dev(supra), not to mention Oriental Insurance Company Limited Vs. Meena Variyar17 earlier expression in Scandia Insurance Company Limited Vs. Kokila Ben Chandravadan18 and United India Insurance Company Limited Vs.Rakesh Kumar Arora19 held that in Swaran Singh (surpa) at para-102 it was held that an insurer is entitled to raise a defense in a claim filed under Section 163-A and 166 of the Act, in terms of Section 149 (2)(a)(ii) of the Act, as to breach of the policy conditions including disqualification of the driver or invalid license of the driver etc., and to avoid such a liability the defense has to be proved by the insurer with a plea raised to establish such breach. However, it was not laid down in Swaran Singh (supra) any criteria as to how said burden would be discharged. Thus same would depend upon facts and circumstances of each case. The question as to whether owner has taken a reasonable care to find out as to whether driving license produced by driver is fake or otherwise does not fulfill the requirements of law or not will have to be determined in each case. If available at the time of the accident was driven by a person having learner's license, Insurance Company would be liable to satisfy the claim. Thus, unless the Insurer proves willful breach of specific conditions of policy they cannot escape from liability. In Swaran Singh (supra), at para-85 and 94 as well as 102(3) observed that it may be true that a fake or forged license is as good as no license, however, the question is whether Insurer must prove that owner was guilty of willful breach of the conditions of the policy in the contract of Insurance as considered with some details in Lehru (Supra). To agree said conclusion of Swaran singh and Lehru (supra), it was observed in Dhupati Singaiah (supra) at para-820 that in most of cases drivers and owners remaining ex-parte by taking it for granting that in the event of negligence being proved, the Insurance Company would discharge its statutory liability. It is the only Insurer that has to lead evidence both on the question of negligence and on the question of liability, therefore, main defense available to the Insurer is under Section 149(2) of the Act when if Insurer leads evidence to show license found in the vehicle involved in the accident is fake or the driver had no license or valid license, it can be taken sufficient proof of breach of conditions as per Section 149 (2)(a) of Act therefrom Section 149(2)(a)(ii) of the Act enables the Insurer to escape from liability if shown that there has been a breach of specified condition of policy and on facts therefrom held Insurer to be exonerated from liability. iv) In Ashok Gangadhar Maratha V. Oriental Insurance Co. Ltd20 and Roshanben (supra) also the above principles of law are reiterated in exonerating the insurer. v) In fact, the three judges bench judgment of the Apex Court in Swaran Singh (supra) well laid down the law in this regard referring to Lehru (supra) and Kamala (supra) that followed the earlier three-Judges bench decision Sohan Lal Passi V. P.Sesha Reddy21 wherein the reference was answered upholding the view taken Skandia Insurance Co. Ltd. V. Kokila Ben Chandravadan22 and the principle laid down therefrom in Swaran Singh (supra) was approved and reiterated even in the subsequent decisions including the above but for distinguishing for the facts on hand in each of the cases as held by the Apex Court in NIC Vs. Geetabhat23 that the principle is the same but for any deviation from factual matrix of each case if at all to say non-liability. vi) The Apex court in Lehru (supra), Swaran Singh (supra), Nanjappan (supra), Geetabhat (supra) and several other expressions in the cases relating to no license at all or imperfect and no valid license held that even it is one of breach of terms of policy and violation of rules, since the policy otherwise covers risk, though denied liability from no valid license, the insurer is to pay and recover. The insurance company cannot escape liability unless the violation proved willful with conscious knowledge and fundamental, every violation of policy conditions cannot be considered to escape the insurer from liability to indemnify the owner (insured) to the 3rd party claimants. vii) Even in Geetabhat (supra) it was held reiterating the principle laid down in the above decisions after referring the above among other several decisions that when insurer seeks to avoid liability on ground of fake or no licence of driver of the vehicle of the insurer, but for saying no licence issued by RTO in name of the driver, even taken alleged licence as fake, insurer has to pay to the third party claimants and recover from insured. viii) In fact, in Swaran Singh's case (supra), the Apex Court observed that it is the obligation on the part of owner to take equitable care to see that the driver had an appropriate license to drive the vehicle. The question as regards the liability of owner vis--vis the driver being not possessed of a valid license concerned, at para-89, it was observed that Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of this Section. The various types of vehicles described for which a driver may obtain a license for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. ix) Furthermore, in Oriental Insurance Company Limited Vs. Brij Mohan & Others24 while holding that insurance company has no liability, however, invoked Article 142 and 136 of the Constitution in directing the insurer to pay first and recover from the vehicle owner, like in several other cases within the power of the Apex Court. x) The other decision of Apex Court in Roshanben (supra) did not lay any different proposition, it was in fact held that in the absolute proof of the defect of licence contributed to the cause of accident, for the defect alone the insurer cannot be absolved from liability. It was a case of driving licence was meant for driving non-transport auto and held not meant to drive the transport auto. xi) In National Insurance Company Limited VS. Baljit Kaur25 it was held (even the case of unauthorized passenger of goods vehicle) as a general observation that interest of justice would be sub-served in giving such a direction to pay and recover having regard to the scope and purport of Sections 149 read with 168 of the MV Act,1988. xii) In another judgment of two judges bench in National Insurance Company Limited Vs. Parvathneni & Another26, the Apex Court doubted the correctness of the directions issued in various judgments to the insurer to pay even though not liable and therefrom formulated issues for consideration by a larger bench xiii) In fact, by referring to the above expression in Swaran Singh's case (supra), this Court (High Court of Andhra Pradesh) in an appeal by insurance company, observed in New India Assurance Company Limited, Tirupati, Vs. G.Sampoorna & Others27 from paras-6 onwards that insurer raised the contention of driver was not having valid license at the time of accident and examined employee of Regional Transport Office, besides employee of the insurance company and the owner of the vehicle did not speak anything. No evidence produced by claimants to show that there was a license or it was even if lapsed renewed later. However, the Tribunal held that even in the absence of driving license, insurance company has to pay and recover rather than escaping from liability for the claimants are not parties to the contract of insurance of the vehicle between insurer and insured. xiv) Therefrom further held that the conclusion is not acceptable from reading of Section 149(2)(a) r/w Section 3 of the Act and by referring to Vidhyadhar Mahariwala case (supra) in saying the statute itself excludes insurer's liability in such a case, thereby the fact whether the claimant being a third party is not a privy to the policy between insurer and insured has no relevance. It is however, by referring to the Swaran Singh (supra) apart from the earlier expressions referred therein, observed that the proposition laid down in Swaran Singh (supra) is referred to a larger bench and it is still pending. xv) In Swaran Singh (supra) it was held that the Tribunals and Courts in exercise of their jurisdiction to issue any direction for pay and recovery considering, depending upon facts and circumstances of each case. In the event of such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance under Section 149(2)(a)(ii) of the Act, the insurance company shall be entitled to realise the award amount from owner or driver, as the case may be, in execution of the same award in view of Sections 165 and 168 of the Act. xvi) It is from this, the Court in Sampoorna (supra) from para-13 onwards observed that ".In my opinion from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the fats and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considered the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature".. xvii) In paragraph 81 of Swaran Singh (supra), it was observed that right to avoid liability in terms of Section 149(2) is restricted as has been discussed herein before. It is one thing to say that the insurance companies are entitled to raise a defence; but it is another thing to say that despite the fact that its defence has been accepted, having regard to facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. xviii) The Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay compensation amount first even though its defence was found accepted, as evident from some of the later expressions like in National Insurance Company Limited Vs. Bommithi Subbhayamma & Others28, (a case of passenger in a goods vehicle). xix) By referring to the above, from paragraph 20, the High Court in Sampoorna (supra) observed that on the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (supra) as containing mandatory directions to Tribunals and Courts to invariably direct the insurer to pay at first instance and recover from owner of the vehicle even though they are held not liable. Pending resolution of the issues by the larger bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (supra) as leaving discretion to the Tribunals and the Courts to give appropriate directions depending upon facts and circumstances of each case. xx) By applying the ratio in Swaran Singh (supra) at para-21 of the judgment, the High Court held that some amount that was already deposited by the insurance company, which holds good to withdraw, and for the rest, insurance company is not liable.
8. In fact besides Lehru (supra), Swaran Singh's (supra) and Nanjappan (supra) in holding that from lack of license or fake license or imperfect or defective license, the insurer can be ordered firstly to satisfy the claimants by indemnifying the owner and then recover from owner and driver; i) Even in the subsequent expressions of the Apex Court in Kusumlatha and others V. Satbir and Others29 it was held that the Tribunal has got inherent power to issue such directions to insurer to pay and recover. ii) Even in the recent expression of the High Court in Jaya Prakash Agarwal V. Mohd. Kalimulla30 having considered the law at length taken similar view, while saying at para-39 that each case has to be decided on its own facts and circumstances. iii) Even in the latest expression of the Apex Court in S.Iyyappan Vs. United India Insurance Company31 a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licenced in driving the crime vehicle when met with accident, third party has a statutory right under Section 149 read with 168 of the Act to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any fundamental breach of condition of Insurance policy.
9. The 1st respondent is owner-cum-driver of the auto which is transport LMV and R.Ws. 1 and 2 examined on behalf of the Insurer with reference to Ex.B.1 to B.6 also deposed that it is a transport LMV and as per Ex.B.5 and B.6 and as per Ex.B.2, the owner-cum-driver got only LMV non transport licence but not for transport and even Ex.B.3 notice issued to produce the licence particulars covered by Ex.B.4 acknowledgment, the owner-cum-driver of the auto did not comply. It establishes that but for no valid licence he could have produced by non-giving reply to draw inference adversely against the owner-cum-driver. However, said violation of the policy terms or permit even it is to the conscious knowledge to attribute being owner-cum-driver nothing to show willful and fundamental to exonerate the Insurer once the policy covers the risk admittedly within the scope of Section 149 read with 168 of the Act to direct the owner to pay and then to recover. Thus, fixing of joint liability against the Insurer and insured is thereby unsustainable but for to fasten liability on the Insurer to pay to the claimant and recover. Accordingly, Point No.1 is answered. Point No.2 7. 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. James32, 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. Tolly33 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver34 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 Limited35 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.
8. From the above legal position and coming to the factual matrix, there is no dispute on the fact that the accident was the result of rash and negligent driving of the driver -cum-owner of the auto-1st respondent insured with the 2nd respondent covered by Ex.B.1policy and also proved from Ex.A.1 First Information Report and Ex.A.3 charge sheet besides evidence of P.W.1. Now coming to the quantum of compensation, the earnings of the claimant as cooli taken by the Tribunal basing from the evidence of P.W.1 that she lost earnings nearly one and half month, awarded Rs.5,000/- is just. Even the Apex Court in Latha Wadhwa Vs. State of Bihar36 held that even a domestic contribution of a women and non-earning member income can be assessed at Rs.3,000/- p.m. and the accident in this case was dt. 07.02.2007 about six years after the said expression of the Apex Court. Even not taken any prospective earnings based on Rajesh Vs.Rajbir Singh37 with 50% increase by not even believing as cooli and only a domestic contributory and the question of deduction of 1/3rd for personal expenses in case of injured does not arise even after Apex Court expression it comes to Rs.3,000/-p.m.x 12 x Rs.36,000/-p.a.x and the claimant is aged 38 years and cooli by avocation not in dispute and multiplier if applied as per Sarla Verma Vs. Delhi Transport Corporation38 for a person aged between 36 to 40 is only 15 (multiplier)=Rs.5,40,000/- and for the medical expenses, treatment and extra nourishment, the Tribunal already arrived of Rs.20,000/- which requires no interference in all it comes to Rs.5,60,000/- so far as this amount concerned which though appears to be just and what the Tribunal awarded of Rs.31,000/- is low. This Court, while sitting in appeal filed by the insurer against the award, has no right to enhance for no cross-objections or independent appeal by the claimants as laid down by the Apex Court in Ranjana Prakash Vs.Divisional Manager39. Thus the amount of Rs.31,000/- awarded by the Tribunal is sustainable. Coming to the rate of interest, the interest awarded by the Tribunal is at 71/2%p.a. is just and reasonable as the Apex Court in TN Transport Corporation v. Raja Priya40, Sarla Verma(supra) and from the latest expression in Rajesh (supra) three judge bench interest is awarded 71/2%p.a. only. Accordingly, point-2 is answered. Point-3:
9. In the result, appeal is partly allowed upholding the rate of interest at 7.5% p.a. on the compensation of Rs.31,000/-(Rupees thirty one thousand) as awarded by the Tribunal, from the date of claim petition till the date of realization with joint and several liability of the owner and insurer (respondents 1 and 2) to pay by the Insurer and then to recover. The respondents shall deposit said amount within one month, failing which the claimant can execute and recover. It is made clear from the settled expressions of the Apex Court in Lehru (supra) & Nanjappan (supra) that the insurer is entitled, while depositing the amount payable, if not deposited or paid any amount so far to deposit in bank, to approach the Tribunal to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimant (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimant, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. Rest of the terms of the award of the Tribunal holds good. There is no order as to costs.
16. Miscellaneous petitions, if any pending in this appeal, shall stand closed. _______________________ Dr. B. SIVA SANKARA RAO, J Date:
16. 12-2013