1. Learned counsel appearing for the appellant states that all the respondents are served. Affidavit of service has been already filed in this court. Respondent nos.1, 2 and 3 are absent.
2. By consent of parties, matter is heard finally. This appeal is directed against the judgment and award dated 27th July, 2007 passed by the MACT, Thane allowing part of the claim made by the appellant. Being aggrieved by the said judgment and award dated 27th July, 2007 the appellant has filed this appeal in so far as refusal of the tribunal to award the amount as computed in paragraph (19) of the judgment is concerned. Some of the relevant facts for the purpose of deciding this appeal are as under :-
3. On 29th December, 1998, the appellant was going towards Wada on M-80 vehicle of which he was a pillion rider. The vehicle was on Wada-Bhiwandi road. When the M-80 vehicle came near village Kudus, the motor lorry came in high and excessive speeds and in a rash and negligent manner and dashed behind the vehicle which the applicant was riding which accident resulted in serious injuries to the appellant setout in the impugned judgment. The appellant filed claim before MACT. The respondent Nos.1 and 2 did not appear before tribunal. The matter proceeded with against respondent Nos.1 and 2 ex-parte. Respondent no.3 opposed the petition by filing its written statement and denied that the accident had occurred due to negligence of the offending vehicle. The tribunal framed various issues and rendered a finding that the appellant had proved that he was injured in the said accident due to the rash and negligence driving of the respective drivers. M-80 scooter had already been ensured with the respondent no.4 at the time of accident.
4. The tribunal in paragraph (19) of the impugned judgment and award computed the compensation under ten heads at Rs.5,06,800/-. In paragraphs (20) and (21) of the impugned judgment, the tribunal apportioned the amount of Rs.3,04,080/- and Rs.2,02,720/- amongst the owners and the insurer of motor lorry on the one hand and the owner and insurer of vehicle on the other hand respectively. The tribunal however granted claim of Rs.2,50,000/- only to the appellant on the ground that the appellant had not amended his petition for enhancement of the claim which according to the tribunal was necessary in view of the judgment of this court in case of Municipal Corporation of Greater Bombay vs. Kisan Gangaram Hire, 1987 ACJ page 311 (Bom.). The tribunal accordingly directed respondent Nos.1 and 3 to pay a sum of Rs.1,50,000/- to the appellant and directed respondent Nos.2 and 4 to pay a sum of Rs.1,00,000/- to the appellant towards damages inclusive of interim compensation with interest at the rate of 9% per annum from the date of petition till realisation.
5. It is not in dispute that none of the respondents have impugned the said judgment and award dated 27th July, 2007 and the findings rendered therein. I need not go into the validity of the findings rendered by the tribunal in this first appeal.
6. A short question that arises for consideration of this court is whether enhanced claim of the appellant could have been rejected on the ground that appellant did not amend the statement of claim.
7. Mr.Mendon, learned counsel appearing for the appellant invited my attention to the judgment of the Supreme Court in case of Rajesh and others vs. Rajbir Singh and others reported in 2013 ACJ 1403 and in particular paragraphs 18 to 20 and would submit that it is duty of the tribunal to award equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages ignoring the claim made in the application for compensation. It is submitted that though the tribunal had come to the conclusion that the appellant would be entitled to compensation in the sum of Rs.5,06,800/-, the tribunal rejected the claim as computed merely on the ground that in the statement of claim, the appellant had claimed only a sum of Rs.2,50,000/- and the appellant did not apply for amendment of claim.
8. Paragraphs 18 to 20 of the judgment of the Supreme Court in case of Rajesh and ors. (supra) read thus :-
"18. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under Sub-section (4) of Section 166 of the Act, read as under:
"(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for compensation under this Act."
"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."
"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads:
(i) loss of consortium to the spouse;
(ii) loss of love, care and guidance to children; and
(iii) funeral expenses."
"It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs.10,000/-, In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
9. Supreme Court in case of Rajesh and Ors. (supra) has held that the tribunal 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. In my view once the tribunal came to the conclusion that the appellant was entitled to compensation in the sum of Rs.5,06,800/- merely because there was no corresponding amendment to the claim filed by the appellant, the tribunal could not have rejected the claim computed at a higher amount on this ground. In my view once the tribunal come to the conclusion that the appellant was entitled to just compensation, the tribunal was not required to go into whether there was any claim made to the extent the claimant was actually entitled to. The tribunal is bound to consider that the just, equitable, fair and reasonable compensation has to be awarded if other conditions are satisfied for making a claim. Merely because the claimant has not amended the claim at higher amount or has not claimed under any specific heads of compensation, tribunal cannot refuse to grant just, equitable, fair and reasonable compensation on such grounds.
10. I am, therefore, inclined to accept the submissions made by the learned counsel appearing for the appellant.
11. Learned counsel appearing for respondent no.4 submits that the tribunal was right in awarding compensation of Rs.2,50,000/- only to the appellant since the appellant had not made any amendment to the claim. In my view, this statement of the learned counsel is required to be rejected being contrary to the judgment of the Supreme Court in case of Rajesh and others (supra). No other submission is advanced by the learned counsel.
12. Appeal is accordingly allowed. Respondents are directed to pay compensation to the appellant as directed in paragraphs 20 and 21 of the impugned judgment with interest at the rate of 9% per annum from the date of petition till realization. Respondents are directed to pay the balance amount after adjusting the amount already paid to the appellant within six weeks from today. No order as to costs. It is made clear that the interest will have to be computed till the date of realization.