National Insurance Co., Ltd. vs Smt. Jeevan Kuwar & Others

Rohit Arya, J

The miscellaneous appeal No.2045 of 2012 by the Insurance Company and miscellaneous appeal No.444 of 2013 by the claimants for enhancement of

compensation under section 173(1) of the Motor Vehicles Act, 1988 have been filed challenging the impugned award dated 21/09/2012 passed in claim

case No.360/2011 by XIV Motor Accidents Claims Tribunal, Indore. Regard being had to the similitude of the controversy involved in the aforesaid

two appeals, they have been heard analogously and disposed of by this singular order.

For the sake of convenience, the facts in M.A.No.444 of 2013 have been dealt with.

Facts relevant and necessary for disposal of these appeals lie in narrow compass: Mansingh Hada (husband of appellant No.1 & father of

appellants No.2 to 5 daughters and son) on 31/05/2010 at about 10.00 am while going on his motorcycle bearing registration No.MP04/MR-0947 for

performing the duties at Bhopal and reached near Mansingh Hada Tata Crossing, Indore-Dewas road, the offending Maruti Swift car with registration

No.M.P.09/C.D.6550 driven by respondent No.2, R.K.Gupta negligently and rashly dashed the motorcycle from behind, as a result, he suffered

grievous injuries on head and other vital parts of the body. To provide immediate medical treatment, he was taken to Samskar Hospital, Dewas.

However, looking to his serious condition, he was admitted at C.H.L. Apollo Hospital, Indore on 01/06/2010 and during the course of treatment died on

04/06/2010.

Learned senior counsel appearing on behalf of the claimants submits that at the time of incident, the deceased Mansingh Hada was aged about 35

years and was employed as Inspector/Constable in the C.R.P.F., He was earning about Rs.18,000/- per month. Because of the incident, he met

untimely death, otherwise he could have continued in service till attaining the age of superannuation. Family is reeling under financial constraints and

also suffered the loss of love and affection of the deceased.

The claimants/appellants have challenged the amount of compensation awarded by the Tribunal on the premise that the compensation awarded is

meager and on the lower side on various heads and even future prospects of the deceased have not been awarded appropriately. Hence, the

compensation has to be enhanced.

Learned counsel for the Insurance Company has raised various contentions in respect of the vehicle involved in the accident which was insured

with the Insurance Company. On merits, it is submitted that looking to the facts and circumstances of the case, the amount awarded by the Tribunal is

just and proper and no enhancement is called for. Accordingly, prayed for dismissal of the appeal preferred by the claimants and allowing the appeal

preferred by the Insurance Company. The argument advanced by learned counsel for the Insurance Company appears to be lucrative but it loses its

significance in the wake of detailed findings recorded by the Tribunal in the award.

He further argues that in case the appeal preferred by the claimants is allowed, the enhancement of the award may be restricted to the tune of

Rs.5,00,000/- only as the claimants have valued and paid the Court fee, accordingly.

Faced with such a situation, learned senior counsel for the appellants submits that this Court has jurisdiction to award the just compensation and there

is no restriction that compensation could be awarded only upto claimed/valued in the memorandum of appeal. He placed reliance on the decision of the

Hon'ble Supreme Court in the case of Nagappa Vs. Gurudayal Singh, AIR 2003 SC 674 to bolster his submission. He further submits that the

appellants are willing to deposit the additional Court fee, on the further enhanced amount of compensation in terms of the directions issued by this

Court.

Heard.

Law is well settled that even if the appellant/claimant has claimed lesser amount for enhancement in appeal, looking to the peculiar facts and

circumstances of the case, the Court can award the just compensation.

In the case of Nagappa (supra), the Hon'ble Supreme Court held as under:

“7. Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ""the MV Act"") there is no restriction that compensation

could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if tribunal/court

considers that claimant is entitled to get more compensation than claimed, the tribunal may pass such award. Only embargo is-it should be 'just'

compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant

provisions of the M.V. Act. Sec. 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to,

persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who

has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal

representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as

the case may be. Under the proviso to sub-Section (1), all the legal representatives of the deceased who have not joined as the claimants are to be

impleaded as respondents to the application for compensation. Other important part of the said section is sub-sec. (4) which provides that ""the claims

tribunal shall treat any report of accidents forwarded to it under sub-sec. (6) of Sec. 158 as an application for compensation under this Act."" Hence,

claims tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no

specified amount is claimed.

Further taking into various provisions of the Motor Vehicles Act and various judgments held as under:

“21. For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that tribunal/court cannot award compensation

amount exceeding the claimed amount. The function of the tribunal/court is to award 'just' compensation which is reasonable on the basis of evidence

produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim

there would be change of cause of action. It is also to be stated that as provided under sub-sec. (4) to Sec. 166, even report submitted to the claims

tribunal under sub-sec. (6) of Sec. 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, court

may permit amendment to the claim petition. Is it permissible under the Act to award compensation by installments or recurring compensation to meet

the future medical expenses of the victim ? “

In Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236, the Hon'ble Supreme Court observed:

The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members

or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be

awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury.

The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

The term ""disability"", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body.

If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he

was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability

benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be

established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every

case.

It is borne out from the material on record that the deceased suffered various injuries including head injury followed by multiple injuries on vital

parts of the body.

It is established from the material available on record that the accident took place by the offending vehicle and the offending vehicle was duly

insured with the appellant/Insurance Company in M.A.No.2045/2012. There is no material on record that there was breach of insurance policy by the

driver/owner of the vehicle. As such, the appeal preferred by the appellant/Insurance Company sans merit and is hereby dismissed.

It is considered apposite to mention that the accident in question occurred in the year 2010 and the appeal on behalf of the claimants is pending

since the year 2013; for the last 05 years.

The moot question to be addressed upon in the appeal preferred by the claimants is as to whether the Tribunal was justified awarding

Rs.22,53,192/- + medical expenses, Rs.80,819/-; total compensation of Rs.23,39,011/- + plus interest at the rate of 9% per annum to the claimants.

Having gone through the impugned award and looking to the fact that deceased was below 40 years of age on the date of accident and was a

government employee, loss of earning/dependency, loss of love and affection, funeral expenses, attendant expenses from 01/06/2010 to 04/10/2010,

medical expenses, loss of estate and her future prospects have not been assessed properly. Hence, in the opinion of this Court, the amount awarded

by the Tribunal is on the lower side and needs to be enhanced appropriately.

The finding of the Tribunal as regards earning of the deceased as determined under section 163 of the Motor Vehicles Act is incorrect. Therefore,

the finding as regards earning of the deceased is totally perverse and absolutely unreasonable. The claimants have asserted that the deceased was

aged 35 years. The salary certificate issued by the employer, i.e., office of the Commandant, 107 BN RAF/CRPF Bangrasai, Bhopal is on record

showing that the deceased was earning Rs.19,043/- per month, on the date of accident. Accordingly, the income of deceased is assessed as

Rs.19,043/- per month, Keeping in mind the principle laid down by the Hon'ble Supreme Court in 2017 ACJ 2700 National Insurance Company

Limited Vs. Pranay Sethi and others, the claimants are entitled for future prospects of 50%; thus Rs.19,043/- + 9,500/- = 28,543/- x 12 = 3,42,516/-.

The deceased as per post mortem report found to be 40 years of age. Hence, the multiplier '16' is appropriate multiplier. After deducting 1/4th towards

personal expenses of the deceased, out of Rs.3,42,516/- , i.e., Rs.85,629/-, i.e., Rs.2,56,887 x 16 = total dependency comes to Rs.41,10,192/-. Keeping

in mind the principle laid down in the case of National Insurance Company Limited (supra) deduct 10% towards the tax liability of the deceased on

salary, i.e., Rs.41,10,192/- - Rs. 4,11,019/- = 36,99,173/-.

The Hon'ble Supreme Court in the case of Rajesh & others Vs. Rajbir Singh and others, (2013) 9 SCC 54 taking into consideration its earlier

judgments, particularly; in the case of Santosh Devi Vs. National Insurance Company Limited and others, (2012) 6 SCC 421 has expressed a view

that the conventional heads:, loss of love, care and guidance to children, loss of consortium to the spouse and funeral expenses etc., the sum of

Rs.2,500 to Rs.10,000 in those heads was fixed several decades ago and having regard to inflation factor due to increase of price index from time to

time, the same needs to be increased for award of “just compensation.â€​

The Tribunal has awarded the compensation on the heads as follows:

(i) towards loss of dependency  : Rs.22,38,192/-

(ii) towards medical expenses   : Rs.  80,819/-

(iii) towards loss of estate      : Rs.  5,000/-

(iv) towards consortium        : Rs. 10,000/-                       Â

Total                  ::  Rs.23,39,011/-

Bearing in mind the principle laid down by the Hon'ble Supreme Court in the case of Rajesh and others (supra) and to meet the ends of justice, the

compensation awarded by the Tribunal is substituted and the claimants are entitled for just compensation as follows:

(i) towards loss of dependency  : Rs.36,99,173/-

(ii) towards medical expenses    : Rs.  80,819/-

(iii) towards loss of estate       : Rs.   5,000/-

(iv) towards loss of consortium    : Rs.   40,000/-

 (wife of the deceased)       Â

Total                    :: Rs.38,24,992/-

As such, the total amount awarded to the claimants is from Rs.23,39,011/- to Rs.38,24,992/- (the enhanced amount comes to Rs.14,85,981/-

(Rupees fourteen lakhs eight five thousand and nine hundred eighty one only) with interest at the rate of 9% per annum which is ordered accordingly

to be payable to the claimants as directed by the Tribunal in the same apportionment. The enhanced amount of compensation shall be payable to the

claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall

remain intact.

The appellants in M.A.No.444/2013 are directed to deposit the remaining amount of Court fee on the enhanced amount in accordance with the

statute, within four weeks from today. Thereafter, after verification, the Registry shall issue the certified copy of order passed today to the appellants.

With the aforesaid directions, the appeal of the insurance company is dismissed and the appeal of the claimants stands allowed in part and

disposed of with the aforesaid directions.

A copy of the order be placed in the connected Mis. Appeal No.444/2013.