G. Govindan Vs. C. David and anr. - Court Judgment

Excerpt:
- - 26 of 1980, on the file of the motor accidents claims tribunal at chengalpattu, not satisfied with the compensation awarded by the tribunal, has filed this appeal. 4. the tribunal, on the issue of negligence, has clearly found that the accident took place on account of rash and negligent driving of the ambassador car. oh the other hand, learned counsel appearing for the appellant submitted that the consistent view taken by the various high courts and the supreme court in the matter of interpreting the scope of section 110-b of the motor vehicles act is to the effect that notwithstanding the defects of low claim made by the claimant, it is open to the tribunal as well as the appellate court to award enhanced compensation, if circumstances warrant, to satisfy the test of just and fair compensation. by itself it cannot be decisive, and for good cause shown an amendment may be ordered even if the amendment were belated. the amounts of compensation claimed are nothing but the particulars of the claim made and cannot always be calculated precisely. 9. a careful perusal of the above decisions will clearly show that whenever the circumstances warrant, the court is justified in allowing the claimant to amend the petition for enhancement, and even without that, the court can exercise such power on the basis that in motor accident cases, what is important is the duty of the court, namely, fixing the just and fair compensation.k. venkataswami, j. 1. the claimant in m.o.p. no. 26 of 1980, on the file of the motor accidents claims tribunal at chengalpattu, not satisfied with the compensation awarded by the tribunal, has filed this appeal.2. brief facts leading to the filing of the claim are as under: the petitioner was working as a lineman attached to madras electricity system at tambaram. he was getting a salary of rs. 541.50. on 17.8.1979, he was proceeding on a bicycle from north to south along the g.s.t. road, near tambaram. at kadapperi at about 7.45 a.m., the ambassador car bearing registration no. mdl 2364, coming from the opposite direction, dashed against the claimant/appellant as a result of which the appellant sustained injuries and the cycle was damaged. the appellant was taken to general hospital at tambaram and his right leg was amputated. he was in-patient in the hospital from 17.8.1979 to 2.10.1979. as a lineman, his job was to climb pillars and posts for correcting the defects in the line, to maintain power supply. as a result of the amputation, he could not do that job. he claimed a sum of rs. 25,000/- by way of compensation, under various heads.3. the respondents, contesting the claim, raised objections, stating that the accident was on account of negligence on the part of the appellant and, therefore, the respondents are not liable to pay any compensation. it was also contended that the amount of compensation claimed was excessive.4. the tribunal, on the issue of negligence, has clearly found that the accident took place on account of rash and negligent driving of the ambassador car. however, while fixing the compensation, the tribunal awarded a sum of rs. 11,664/- under the following heads: rs. 3,000/- towards pain and suffering, rs. 7,000/- towards permanent disability due to amputation of leg, rs. 450/- towards purchase of artificial limb, rs. 1,082/- towards loss of earning, rs. 131.35 towards purchase of crutches. aggrieved by the low fixation of the compensation, this appeal is preferred.5. pending appeal, it appears that the appellant was discharged from service on the ground that he could not serve as lineman any more. on the basis of that discharge order, he filed c.m.p. 14486 of 1985 for amendment of the petition claiming compensation at rs. 64,000/-. the amendment was ordered by s.a. kader, j., on 30.10.1986.6. in this background, we have to fix the just and fair compensation to be paid to the appellant. at the outset, we will dispose of the point regarding negligence. from the judgment of the tribunal, it is quite clear that the accident was on account of rash and negligent driving of the ambassador car. this point has not been seriously disputed.7. on the question of quantum, the learned counsel for the insurance company submitted that the applicant cannot claim more than rs. 25,000/-, the maximum amount claimed before the tribunal. oh the other hand, learned counsel appearing for the appellant submitted that the consistent view taken by the various high courts and the supreme court in the matter of interpreting the scope of section 110-b of the motor vehicles act is to the effect that notwithstanding the defects of low claim made by the claimant, it is open to the tribunal as well as the appellate court to award enhanced compensation, if circumstances warrant, to satisfy the test of just and fair compensation. in support of his contention, he cited the following decisions: sheikhupura transport co. ltd. v. northern india transporters' insurance co. ltd. 1971 acj 206 (sc) d. kannan v. southern roadways 1980 acj 298 (mad) anand kumar jain v. union of india 1986 acj 774 (sc)sharifunnisa v. basappa ramchandra date 1986 acj 792 (bom) kela devi v. ram chand 1986 acj 818 (delhi) municipal corporation of greater bombay v. kisan gangaram hire 1987 acj 311 (bom) narinder kaur v. jagan nath 1987 acj 1039 (p&h;) and municipal board, mount abu v. hari lal 1988 acj 821 (raj)8. in sheikhupura transport co. ltd. v. northern india transporters' insurance co. ltd. 1971 acj 206 (sc) the supreme court, on the scope of section 110-b of the motor vehicles act, 1939, observed as follows:under section 110-b of the motor vehicles act, 1939, the tribunal is required to fix such compensation which appears to it to be just. the power given to the tribunal in the matter of fixing compensation under that provision is wide. even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under fatal accidents act, 1855 (act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained--see gobald motor service ltd. v. r.m.k. veluswami 1958-65 acj 179 (sc) in d. kannan v. southern roadways 1980 acj 298 (mad) a learned single judge of this court has held as follows:amendment of pleadings in claim applications must be as common and frequent if not more as in pleadings in civil suits. the power to grant leave for amendment of pleadings is a matter of discretion for the court and the question of limitation can be only one of the relevant considerations. by itself it cannot be decisive, and for good cause shown an amendment may be ordered even if the amendment were belated. in anand kumar jain v. union of india 1986 acj 774 (sc) the supreme court, in a case where amendment for enhancement of compensation was not allowed, held as follows:this is a fit case in which the amendment prayed for by the appellant should have been allowed. the appellant merely wanted enhancement of the original claim of rs. 40,000/- to rs. 3 lakhs on the ground that permanent disability to the extent of 50 per cent was discovered after he had filed his original claim. there is no reason why this amendment should not be granted. we, therefore, allow the appeal, set aside the order passed by the high court as also the order passed by the motor accidents claims tribunal and allow the application of the appellant to amend the claim petition, as prayed for by him. the amendment will be carried out by the appellant within 6 weeks from the date of receipt of the copy of this order by the motor accidents claims tribunal. the respondents will file their supplementary written statement, if any, within 2 weeks from the date when the amendment is carried out. there will be no order as to costs. in sharifunnisa v. basappa ramchandra date 1986 acj 792 (bom) a division bench of the bombay high court, while rejecting an argument that more compensation than what was claimed by the claimant cannot be granted, observed as follows:although the claim is restricted to rs. 1,00,000/-, in the facts and circumstances of the case and on the calculation made by the tribunal itself, the claimants would be entitled to the said sum of rs. 1,15,200/-. the claimants would, however, pay court fees on the additional sum of rs. 15,200/- within four weeks from today. in kela devi v. ram chand 1986 acj 818 (delhi) a learned single judge of the delhi high court, while allowing enhanced compensation, has observed as follows:however, the claimants have claimed only rs. 50,000/- as compensation. that claim was made in 1967. the claimants had not anticipated raising of the pay scales by the commission. so also the fall in the value of rupee due to heavy inflation for the last 18 years must also be taken into account. i would fix the compensation at rs. 1,25,000/-. in municipal corporation of greater bombay v. kisan gangaram hire 1987 acj 311 (bom) a division bench of the bombay high court, while upholding the award of the tribunal granting more amount than what was claimed, observed as follows:the 'amount of compensation claimed' in the petition does not require the applicant to state the amounts claimed under different sub-heads such as dependency benefit, medical expenses, pain and suffering, etc. the amounts of compensation claimed are nothing but the particulars of the claim made and cannot always be calculated precisely....the amount of compensation being the consequence of the accident which is the cause of action and since that amount would keep varying or fluctuating even till the date of the decision of the application, enough leeway is necessary in the matter of both claiming and granting compensation. in all cases the quantum is to be justified by the claimant by leading necessary evidence. it is neither fair nor realistic to insist that he shall not claim more than what is claimed by him at the initial stage or that in spite of the evidence on record, the tribunal shall not grant more than what is claimed in the application.the act itself nowhere lays down that the tribunal will not grant amount in excess of the amount claimed in the application. before awarding higher compensation, a proper notice should be given to the opposite parties to contest the claim even by leading evidence, if necessary. the additional claim should as far as possible be taken in writing which should also indicate the reason why the additional claim is made.in narinderkaury.jagannath 1987 acj 1039 (p&h;), a learned single judge of the punjab and haryana high court, while upholding the award of the tribunal granting more than what was claimed, further enhanced the compensation on the facts and circumstances of the case by allowing an amendment petition. in municipal board, mount abu v. hari lal 1988 acj 821 (raj) a learned single judge of the rajasthan high court has allowed a petition for amendment for enhancement of compensation.9. a careful perusal of the above decisions will clearly show that whenever the circumstances warrant, the court is justified in allowing the claimant to amend the petition for enhancement, and even without that, the court can exercise such power on the basis that in motor accident cases, what is important is the duty of the court, namely, fixing the just and fair compensation. one requirement is that before allowing enhancement petition, the opposite party must be given due notice and opportunity. in this case, after giving notice to opposite party, we have already pointed out that the amendment prayed for was ordered. therefore, it is not open to the insurance company now to contend that the appellant is not entitled to ask for more than his original claim of rs. 25,000/-. in this case, the fact is that, when the case was pending before the tribunal, the appellant was in service and the tribunal fixed compensation on that basis. when the appeal is pending in this court, the appellant was discharged from service on the ground that his services as a lineman could no longer be utilised in view of amputation of leg which was on account of the accident in question. therefore, we proceed to fix the just and fair compensation, overruling the objection raised by the learned counsel for the insurance company.10. it is not in dispute that the appellant was getting a sum of rs. 541/- by way of salary on the date of the accident. he had to his credit a service of five years and six months. if he had continued in service, he would have earned rs. 35,640/- by way of salary. we can take judicial notice of the increase in salary subsequently. taking that into account, we fix a sum of rs. 40,000/- towards loss of earnings. in addition to that, we fix a sum of rs. 5,000/-towards pain and suffering and another sum of rs. 10,000/- towards permanent disability. in all, we fix a sum of rs. 55,000/- as against the amended claim of rs. 64,000/- as just and fair compensation, payable by the second respondent to the appellant with interest at 12 per cent per annum from the date of petition till date of payment. any payment with interest already made shall be deducted from the compensation now fixed. this appeal is allowed accordingly. however, there will be no order as to costs.