The New India Assurance Company Limited, Vs. Karre Thirupathamma and Oth - Court Judgment

SooperKanoon Citationsooperkanoon.com/1170302
CourtAndhra Pradesh High Court
Decided OnFeb-12-2014
JudgeB.CHANDRA KUMAR
AppellantThe New India Assurance Company Limited,
RespondentKarre Thirupathamma and Oth
Excerpt:
the honourable sr.justice b.chandra kumar m.a.c.m.a.no.1515 of 2006 12-02-2014 the new india assurance company limited,rep.by its divisional manager, secunderabad....appellant karre thirupathamma and others.respondents counsel for the appellant: sr.c.v.rajeeva reddy counsel for the respondents: m/s.hema jaiswal : : ?.cases referred: 1 (2003) 2 supreme court cases 274 2 (2008) 3 supreme court cases 379 3 (2011) 14 supreme court cases 467 4 (2013) 10 supreme court cases 695 5 (2013) 9 supreme court cases 54 hon'ble sr.justice b.chandra kumar m.a.c.m.a.no.1515 of 2006 judgment: the learned counsel for the appellant submits that the appellant has instructed them to withdraw the appeal. however, the learned counsel for the respondents submits that it is the duty of the tribunal to award just and reasonable compensation even if the claimed amount is less. but, when the tribunal comes to a conclusion that the claimants are entitled for more compensation than claimed, the tribunal should award the amount, which appears to be just and reasonable and need not restrict the compensation to the claimed amount. since it is an important question that arises in this appeal as raised by the learned counsel for the claimants, i consider it just and reasonable to dispose of the matter on merits. for the sake of convenience, parties will be referred to as they are arrayed in the tribunal. the brief facts of the case are as follows: on 10.04.2003 at about 0.15 hours.the deceased shankar-husband of the 1st claimant and father of his minor daughter, aged about 4 years was proceeding in an auto bearing no.ap9v5299 when the said auto reached azad nagar, the offending water tanker bearing no.aar851came in opposite direction. it is alleged that the driver of the water tanker had driven the vehicle at high speed and dashed against the auto. consequently, the deceased and others sustained injuries. the deceased was shifted to osmania general hospital. subsequently, while he was taking treatment at his village, died on 01.06.2003. further case of the deceased is that the deceased was aged about 31 years.working as driver, earning rs.4,000/- per month and the claimants have lost, the source of income and accordingly they claimed a total compensation of rs.2,00,000/-. the owner of the vehicle - 1st respondent remained ex parte and 2nd respondent contested the matter. the tribunal framed the following issues: 1. whether the accident took place on 10.04.2003 at about 0.15 hours due to rash and negligent driving of water tanker bearing no.aar851 2. whether the petitioners are entitled for compensation, if so, to what amount and from whom?. 3. to what relief?. on behalf of the claimants, the 1st claimant was examined as pw.1 and one k.ramulu was examined as pw.2 and marked exs.a.1 to a.5. on behalf of the respondents, none were examined and marked ex.b.1 insurance policy. on issue no.1, the tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the water tanker and this issue is not in dispute in this appeal. on issue no.2, the tribunal came to the conclusion that the cause of death is, due to the injuries suffered by the deceased. the tribunal further came to the conclusion that the deceased was working as an auto driver and he was aged about 35 years and the appropriate multiplier is '16'. so, the tribunal has taken the income of the deceased at rs.3,000/- per month and after deducting 1/3rd towards personal expenses, calculated the loss of earnings at rs.3,84,000/-. the tribunal further came to the conclusion that the 1st claimant-wife of the deceased is entitled to an amount of rs.15,000/- towards loss of consortium, rs.2,000/- towards funeral expenses, rs.4,000/- towards transportation charges and rs.10,000/- towards loss of estate. however, the tribunal observed that as the claimants have claimed rs.2,00,000/- only, restricted the award to rs.2,00,000/-. the learned counsel for the appellant submits that the respondents have not filed any application seeking enhancement of compensation before the tribunal and that they ought to have filed such application before the tribunal. it is also her submission that this is an appeal filed by the insurance company and in this appeal the compensation awarded to the respondents cannot be enhanced. the learned counsel for respondents/claimants submits that under sub- section 4 of section 166 of m.v.act the report submitted to the claims tribunal by the police has to be treated as an application for compensation under sub- section 6 of section 158 of the act, and in the above circumstances, even if there is no claim petition, it is the bounden duty of the tribunal to treat that the report filed by the police as an application under sub-section 4 of section 166 of m.v.act claiming compensation and in that view of the matter, there is no need to claim any particular amount by the claimants and when there is no need to claim any particular amount, there is no need to file an application seeking enhancement of compensation. it is further submitted that it is the bounden duty of the tribunal to arrive at a figure, which appears to be just and reasonable compensation to which the claimants are entitled and the tribunal should award the same amount and should pass a decree accordingly. however, before obtaining the certified copy of such decree, the claimants have to pay the required additional court fee on the amount awarded to them. in support of her contention, she has relied upon the judgments reported in nagappa v gurudayal singh1, andhra pradesh state road transport corporation v m.ramadevi2, raviraj udupa v united india insurance company limited3, minu rout v satya pradyumna mohapatra4 and rajesh v rajbir singh5. in nagappa case (1 supra).the appellant was an agriculturist. he suffered injuries in an accident. his leg was amputated. he suffered 80 to 85% permanent disability. he claimed a compensation of rs.1,00,000/- the tribunal awarded rs.30,000/- towards compensation, high court enhanced the same to rs.82,000/-. the matter has taken to apex court. there, he filed an application seeking the permission of the court to seek enhancement of compensation of rs.5,00,000/-. the insurance company opposed the application. in the above circumstances, the apex court observed as follows: ".it appears that due importance is not given to sub-section (4) of section 166 which provides that the tribunal shall treat any report of the accidents forwarded to it under sub-section (6) of section 158, as an application for compensation under this act".thereafter, section 168 empowers the claims tribunal to ".make an award determining the amount of compensation which appears to it to be just".therefore, the only requirement for determining the compensation is that it must be ".just".there is no other limitation or restriction on its power for awarding just compensation. it was further observed that the court may permit amendment of the claim petition so as to award enhanced compensation. it is also observed that there is no time limit prescribed for claiming compensation. therefore, there is no question of enhanced claim being barred by limitation. in the above circumstances, the apex court allowed the application filed by the claimant and awarded additional compensation. in andhra pradesh state road transport corporation (2 supra) the claims tribunal awarded a compensation of rs.2,46,000/- for the death of the deceased who was working as a driver. corporation carried the matter in appeal to high court. this court found that the amount awarded by the tribunal was inadequate and just compensation was not awarded and added a sum of rs.20,000/- additionally by relying on the judgment of nagappa (1 supra).though on the quantum of compensation, the appeal filed by the corporation was allowed, however the power of the high court in enhancing the compensation was not disturbed. in case between raviraj udupa (3 supra) it was held that reasons have to be assigned for reducing the amount awarded by the tribunal. in case between rajesh (5 supra) it is observed as follows: ".the expression ".just compensation". has been explained in sarla verma, (2009) 6 scc121 holding that the compensation awarded by a tribunal does not become just compensation merely because the tribunal considered it to be just. ".just compensation". is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. thus, the tribunal/court should award proper compensation irrespective of the claim made and, if required, even in excess of the claim. this view can be further strengthened by the fact that after the amendment of the motor vehicles act, 1988 by act 54 of 1994 with effect from 14.11.1994, the report on motor vehicle accident prepared by the police officer and forwarded to the claims tribunal under section 158(6) has to be treated as an application for compensation. in the said report on accident, there is no question of any reference to any claim for damages under different heads of damages or such other details. in this view, it is the duty of the tribunal/court to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. on this ground also 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".as per the latest judgment of the rajesh referred above, the wife of the deceased is entitled to rs.1,00,000/- towards compensation for loss of consortium and the claimants are entitled to a sum of rs.25,000/- towards funeral expenses and where in a case the children are minors.they are also entitled to a sum of rs.1,00,000/- towards loss of care and guidance for minor children. in view of the above settled legal position, it is clear that the claimants need not claim any specific amount. the report submitted by the investigating officer has to be treated as an application for compensation and it is the bounden duty of the tribunal to award just and reasonable compensation, the tribunal is not bound by the amount claimed by the claimants and the tribunal can award the compensation which appears to be just and reasonable in the circumstances of the case. even if the compensation claimed by the claimants is less, the tribunal can award the amount, which appears to be just and reasonable and direct the claimants to pay additional court fee, if any, required before drafting the decree. however, we are in peculiar circumstances, as this is an appeal filed by the insurance company challenging the award passed in favour of the respondents 1 and 2 in this appeal. the learned counsel for claimants submits that at least the total sum of compensation arrived by the tribunal may be awarded to the claimants. it may not be desirable to enhance the amount awarded to the respondents/claimants in this appeal. however, admittedly the tribunal has already come to the conclusion that the claimants are entitled to a sum of rs.4,50,000/- in the award under challenge, but restricted the amount of compensation to the extent claimed by the claimants. since justice has to be done and ultimately just and reasonable compensation has to be awarded. in the above circumstances, i consider it just and reasonable to remand the matter to the lower tribunal to enable the claimants to file an application seeking enhancement of compensation and in such an event the tribunal shall consider the same in accordance with law and give an opportunity to both the parties to argue the matter afresh and pass just and reasonable compensation to which the claimants are entitled within a period of four weeks from the date of receipt of a copy of the order in this appeal. accordingly, the appeal is disposed of. no order as to costs. miscellaneous petitions, if any, pending in this appeal, shall stand closed. ______________________ b.chandra kumar,j12h february, 2014
Judgment:

THE HONOURABLE Sr.JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.1515 of 2006 12-02-2014 The New India Assurance Company Limited,rep.by its Divisional Manager, Secunderabad....Appellant Karre Thirupathamma and others.Respondents Counsel for the Appellant: Sr.C.V.Rajeeva Reddy Counsel for the Respondents: M/s.Hema Jaiswal : : ?.Cases referred: 1 (2003) 2 Supreme Court Cases 274 2 (2008) 3 Supreme Court Cases 379 3 (2011) 14 Supreme Court Cases 467 4 (2013) 10 Supreme Court Cases 695 5 (2013) 9 Supreme Court Cases 54 HON'BLE Sr.JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.1515 of 2006 JUDGMENT

: The learned counsel for the appellant submits that the appellant has instructed them to withdraw the appeal.

However, the learned counsel for the respondents submits that it is the duty of the Tribunal to award just and reasonable compensation even if the claimed amount is less.

But, when the Tribunal comes to a conclusion that the claimants are entitled for more compensation than claimed, the Tribunal should award the amount, which appears to be just and reasonable and need not restrict the compensation to the claimed amount.

Since it is an important question that arises in this appeal as raised by the learned counsel for the claimants, I consider it just and reasonable to dispose of the matter on merits.

For the sake of convenience, parties will be referred to as they are arrayed in the Tribunal.

The brief facts of the case are as follows: On 10.04.2003 at about 0.15 houRs.the deceased Shankar-husband of the 1st claimant and father of his minor daughter, aged about 4 years was proceeding in an auto bearing No.AP9V5299 When the said auto reached Azad Nagar, the offending water tanker bearing No.AAR851came in opposite direction.

It is alleged that the driver of the water tanker had driven the vehicle at high speed and dashed against the auto.

Consequently, the deceased and others sustained injuries.

The deceased was shifted to Osmania General Hospital.

Subsequently, while he was taking treatment at his village, died on 01.06.2003.

Further case of the deceased is that the deceased was aged about 31 yeaRs.working as Driver, earning Rs.4,000/- per month and the claimants have lost, the source of income and accordingly they claimed a total compensation of Rs.2,00,000/-.

The owner of the vehicle - 1st respondent remained ex parte and 2nd respondent contested the matter.

The Tribunal framed the following issues: 1.

Whether the accident took place on 10.04.2003 at about 0.15 hours due to rash and negligent driving of water tanker bearing No.AAR851 2.

Whether the petitioners are entitled for compensation, if so, to what amount and from whom?.

3.

To what relief?.

On behalf of the claimants, the 1st claimant was examined as PW.1 and one K.Ramulu was examined as PW.2 and marked Exs.A.1 to A.5.

On behalf of the respondents, none were examined and marked Ex.B.1 insurance policy.

On issue No.1, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the water tanker and this issue is not in dispute in this appeal.

On issue No.2, the Tribunal came to the conclusion that the cause of death is, due to the injuries suffered by the deceased.

The Tribunal further came to the conclusion that the deceased was working as an auto driver and he was aged about 35 years and the appropriate multiplier is '16'.

So, the Tribunal has taken the income of the deceased at Rs.3,000/- per month and after deducting 1/3rd towards personal expenses, calculated the loss of earnings at Rs.3,84,000/-.

The Tribunal further came to the conclusion that the 1st claimant-wife of the deceased is entitled to an amount of Rs.15,000/- towards loss of consortium, Rs.2,000/- towards funeral expenses, Rs.4,000/- towards transportation charges and Rs.10,000/- towards loss of estate.

However, the Tribunal observed that as the claimants have claimed Rs.2,00,000/- only, restricted the award to Rs.2,00,000/-.

The learned counsel for the appellant submits that the respondents have not filed any application seeking enhancement of compensation before the Tribunal and that they ought to have filed such application before the Tribunal.

It is also her submission that this is an appeal filed by the insurance company and in this appeal the compensation awarded to the respondents cannot be enhanced.

The learned counsel for respondents/claimants submits that under Sub- Section 4 of Section 166 of M.V.Act the report submitted to the claims Tribunal by the police has to be treated as an application for compensation under Sub- Section 6 of Section 158 of the Act, and in the above circumstances, even if there is no claim petition, it is the bounden duty of the Tribunal to treat that the report filed by the police as an application under Sub-Section 4 of Section 166 of M.V.Act claiming compensation and in that view of the matter, there is no need to claim any particular amount by the claimants and when there is no need to claim any particular amount, there is no need to file an application seeking enhancement of compensation.

It is further submitted that it is the bounden duty of the Tribunal to arrive at a figure, which appears to be just and reasonable compensation to which the claimants are entitled and the Tribunal should award the same amount and should pass a decree accordingly.

However, before obtaining the certified copy of such decree, the claimants have to pay the required additional court fee on the amount awarded to them.

In support of her contention, she has relied upon the judgments reported in Nagappa v Gurudayal Singh1, Andhra Pradesh State Road Transport Corporation v M.Ramadevi2, Raviraj Udupa v United India Insurance Company Limited3, Minu Rout v Satya Pradyumna Mohapatra4 and Rajesh v Rajbir Singh5.

In Nagappa case (1 supra).the appellant was an agriculturist.

He suffered injuries in an accident.

His leg was amputated.

He suffered 80 to 85% permanent disability.

He claimed a compensation of Rs.1,00,000/- the Tribunal awarded Rs.30,000/- towards compensation, High Court enhanced the same to Rs.82,000/-.

The matter has taken to Apex Court.

There, he filed an application seeking the permission of the Court to seek enhancement of compensation of Rs.5,00,000/-.

The insurance company opposed the application.

In the above circumstances, the Apex Court observed as follows: ".It appears that due importance is not given to sub-section (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under sub-section (6) of Section 158, as an application for compensation under this Act".Thereafter, Section 168 empowers the Claims Tribunal to ".make an award determining the amount of compensation which appears to it to be just".Therefore, the only requirement for determining the compensation is that it must be ".just".There is no other limitation or restriction on its power for awarding just compensation.

It was further observed that the Court may permit amendment of the claim petition so as to award enhanced compensation.

It is also observed that there is no time limit prescribed for claiming compensation.

Therefore, there is no question of enhanced claim being barred by limitation.

In the above circumstances, the Apex Court allowed the application filed by the claimant and awarded additional compensation.

In Andhra Pradesh State Road Transport Corporation (2 supra) the Claims Tribunal awarded a compensation of Rs.2,46,000/- for the death of the deceased who was working as a driver.

Corporation carried the matter in appeal to High Court.

This Court found that the amount awarded by the Tribunal was inadequate and just compensation was not awarded and added a sum of Rs.20,000/- additionally by relying on the judgment of Nagappa (1 supra).Though on the quantum of compensation, the appeal filed by the Corporation was allowed, however the power of the High Court in enhancing the compensation was not disturbed.

In case between Raviraj Udupa (3 supra) it was held that reasons have to be assigned for reducing the amount awarded by the Tribunal.

In case between Rajesh (5 supra) it is observed as follows: ".The expression ".just compensation".

has been explained in Sarla Verma, (2009) 6 SCC121 holding that the compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just.

".Just compensation".

is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation.

Thus, the Tribunal/court should award proper compensation irrespective of the claim made and, if required, even in excess of the claim.

This view can be further strengthened by the fact that after the amendment of the Motor Vehicles Act, 1988 by Act 54 of 1994 with effect from 14.11.1994, the report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under Section 158(6) has to be treated as an application for compensation.

In the said report on accident, there is no question of any reference to any claim for damages under different heads of damages or such other details.

In this view, it is the duty of the Tribunal/court to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages.

On this ground also 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".As per the latest judgment of the Rajesh referred above, the wife of the deceased is entitled to Rs.1,00,000/- towards compensation for loss of consortium and the claimants are entitled to a sum of Rs.25,000/- towards funeral expenses and where in a case the children are minORS.they are also entitled to a sum of Rs.1,00,000/- towards loss of care and guidance for minor children.

In view of the above settled legal position, it is clear that the claimants need not claim any specific amount.

The report submitted by the Investigating Officer has to be treated as an application for compensation and it is the bounden duty of the Tribunal to award just and reasonable compensation, the Tribunal is not bound by the amount claimed by the claimants and the Tribunal can award the compensation which appears to be just and reasonable in the circumstances of the case.

Even if the compensation claimed by the claimants is less, the Tribunal can award the amount, which appears to be just and reasonable and direct the claimants to pay additional Court fee, if any, required before drafting the decree.

However, we are in peculiar circumstances, as this is an appeal filed by the insurance company challenging the award passed in favour of the respondents 1 and 2 in this appeal.

The learned counsel for claimants submits that at least the total sum of compensation arrived by the Tribunal may be awarded to the claimants.

It may not be desirable to enhance the amount awarded to the respondents/claimants in this appeal.

However, admittedly the tribunal has already come to the conclusion that the claimants are entitled to a sum of Rs.4,50,000/- in the award under challenge, but restricted the amount of compensation to the extent claimed by the claimants.

Since justice has to be done and ultimately just and reasonable compensation has to be awarded.

In the above circumstances, I consider it just and reasonable to remand the matter to the lower Tribunal to enable the claimants to file an application seeking enhancement of compensation and in such an event the Tribunal shall consider the same in accordance with law and give an opportunity to both the parties to argue the matter afresh and pass just and reasonable compensation to which the claimants are entitled within a period of four weeks from the date of receipt of a copy of the order in this appeal.

Accordingly, the appeal is disposed of.

No order as to costs.

Miscellaneous petitions, if any, pending in this appeal, shall stand closed.

______________________ B.CHANDRA KUMAR,J12h February, 2014