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Judgment
S. Abdul Nazeer, J—Though the matters are listed for Orders, by consent of the learned Counsel for the parties, they are taken up for final hearing, heard and disposed of by this judgment.
These two appeals are directed against the judgment and award in MVC No. 6306/2012 dated 18.09.2013 on the file of the Motor Accident Claims Tribunal at Bangalore.
Sri. Nagesh was the claimant before the Tribunal. According to him on 29.08.2011 at about 7.45 p.m. he was standing on the side of the road in BMTC bus stop on Lalbagh-Krumbigal road, in order to board the bus to go to his house. At that time, a scooter bearing registration No. KA-02-HG-3716 came in a very high speed and in rash and negligent manner from the side of Lalbagh main gate and took extreme left side of the road in order to overtake the BMTC bus and dashed against the claimant. As a result, he fell down and sustained grievous injuries. Immediately, he was shifted to Sanjay Gandhi Hospital, wherein he was treated as an out-patient. Thereafter, he was admitted to other hospitals as an inpatient for treatment. During the course of the hospitalization, he was operated and external fixator was applied. Since the fracture was not united, he had to undergo major surgery. His right leg was amputated below the knee. He was working as a mason and was earning Rs. 250/- per day. Due to the accidental injuries, he could not attend to his work.
The respondent - Insurance Company has filed the written statement opposing the claim petition.
The Tribunal has framed the following issues for consideration on the basis of the pleadings of the parties.
"1. Whether the petitioner proves that on 29.08.2011 at about 7.45 p.m. near BMTC bus stand, Kumbigal Road, Kalasiplay, Bangalore, the road traffic accident took place, due to the actionable negligence by the rider of the Honda Activa bearing registration No. KA-02-HG-3716, by which the petitioner sustained grievous injuries?
Whether the petitioner proves that he is entitled for compensation? If so, how much and from whom?
What order or award?"
The claimant was examined as PW-1 and a Doctor was examined as PW-2. Eleven documents were marked in their evidence as Ex. P1 to P11. A witness was examined on behalf of the respondent - Insurance Company and a document was marked in his evidence as Ex. R1. On appreciation of the materials on record, the Tribunal has held that the accident had taken place due to the actionable negligence of the rider of the offending bike. The Tribunal in all has awarded compensation of Rs. 9,62,900/- with interest at 8% p.a. from the date of the petition till the date of realization.
The contention of the learned counsel for the Insurer is two fold. Firstly, the rider of the offending vehicle was not entirely responsible for the accident. The claimant was standing on the metalled portion of the road. Therefore, the Tribunal was not justified in holding that the rider of the bike was entirely responsible for the accident. Secondly, it is argued that the compensation awarded by the Tribunal is excessive. It is argued that the Tribunal was not justified in holding 40% permanent disability to the whole body. The Tribunal was also not right in granting the compensation towards loss of future prospects.
On the other hand, learned counsel appearing for the claimant submits that the accident had occurred due to the actionable negligence of the rider of the bike. It is argued that the claimant was working as a mason and he was earning Rs. 250/- per day. However, the Tribunal has taken his income at Rs. 5,000/- per month for the computation of loss of future earning capacity. On account of the accident, the right leg of the claimant was amputated. Keeping in view the avocation of the claimant, the Tribunal ought to have taken 100% permanent disability to the whole body and accordingly compensation should have been awarded. The compensation awarded under other heads is on the lower side.
Having regard to the contentions urged, the first question for consideration is whether the Tribunal is justified in holding that the accident had taken place due to actionable negligence of the rider of the offending bike?
After the accident, FIR at Ex. P1 was registered against the rider of the bike. Copy of the mahazar is at Ex. P2 and copy of the spot sketch is at Ex. P3. After investigation, charge sheet was filed against the rider of the bike at Ex. P8. It is clear from the evidence on record that the claimant had sustained grievous injuries in the accident. The spot sketch at Ex. P3 shows that the offending bike came from Lalbagh - road from North to south in a high speed and dashed against the claimant. It is also clear that the rider of the bike had driven the bike to the extreme left side of the road near the bus stop with a view to overtake the bus from the left side. The claimant was standing very close to the bus stop in order to board the bus. The Tribunal on appreciation of the evidence on record has held that it is only on account of the actionable negligence of the rider of the bike, the accident had occurred. I do not find any error in the said finding of the Tribunal.
That brings to me to the next question as to whether the compensation awarded by the Tribunal is just and reasonable?
The claimant was aged 22 years at the time of the accident. Though the claimant states that he was earning Rs. 250/- per day by working as a mason, he has not produced any materials in support of the said contention. Since the accident had occurred on 29-08-2011, his income can be notionally fixed at Rs. 6,500/- per month. It is also not in dispute that on account of the accident, his right leg below the knee was amputated. However, the total body disability cannot be taken 100%. The claimant was aged 22 years. He may be able to do some other work after the amputation. Therefore, it is just and proper to take 70% permanent disability to the whole body. The Tribunal in my opinion is not justified in awarding compensation by taking into account his future prospects. By taking his income at Rs. 6,500/- per month with the application of multiplier 18 and permanent disability at 70% to the whole body, the compensation payable towards loss of future earning capacity comes to Rs. 9,82,800/-. The claimant is also entitled for a sum of Rs. 1,00,000/- towards pain and suffering and Rs. 1,00,000/- towards loss of amenities. The medical expenses awarded by the Tribunal in a sum of Rs. 1,11,900 is just and reasonable. He is entitled for a sum of Rs. 19,500/- (three months earnings) towards loss of income during laid up period. Award of Rs. 25,000/- towards marriage prospects is reasonable, so also Rs. 25,000/- awarded towards artificial limb. The Tribunal has rightly awarded a sum of Rs. 28,000/- towards attendant charges, food, nourishment and conveyance charges.
Thus, the compensation payable to the claimant is reassessed as under:
At this stage, learned counsel appearing for the Insurance company submits that the total claim of the appellant before the Tribunal was Rs. 10 lakhs. Therefore, award of compensation in excess of Rs. 10 lakhs is not permissible in law.
Section 168 of the Motor Vehicles Act, 1988 states that on receipt of an application for compensation made under Section 166, the claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an enquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just.
Thus, the Tribunal has to award just compensation irrespective of the claim made in the claim statement.
In Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and Another, (2006) ACJ 2742 : (2009) 121 FLR 1103 : (2009) 8 JT 26 : (2009) 3 LLJ 559 : (2009) 156 PLR 778 : (2009) 8 SCALE 161 : (2009) 6 SCC 280 : (2010) AIRSCW 866 : (2009) AIRSCW 3717 : (2009) 4 Supreme 589 . The Apex Court has held as under:
"The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even it no amount is claimed, the Commissioner must determine the amount which is found payable to the workman. Even in the cases arising out of the 1988 Act it is the duty of the Tribunal to arrive at a just compensation having regard to the provisions contained in Section 168 thereof."
(emphasis supplied by me).
In Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 . It has been held as under:
"19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such others 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."
(emphasis supplied by me).
It is thus clear that irrespective of the claim made in the petition, it is the duty of the Court to award just, equitable, fair and reasonable compensation if necessary ignoring the claim made in the petition for compensation. The appeal is a continuation of the original proceedings. In appropriate cases, there is no bar for the Court to award compensation in excess of the claim made by the applicant. There is no merit in the contention of the learned counsel for the Insurer that the award cannot be made in excess of the claim made in the claim statement.
The total compensation payable to the claimant is determined at 13,92,200/- as against the compensation determined by the Tribunal in a sum of Rs. 9,62,900/-. The balance of compensation payable to the claimant comes to Rs. 4,29,300/-.
In the light of the above discussions, I pass the following:
ORDER
"1. The appeal filed by the Insurer in MFA No. 942/2014 is hereby dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.
The appeal filed by the claimant in MFA No. 769/2014 is allowed in part. The appellant - Insurance Company is directed to deposit a sum of Rs. 4,29,300/- in addition to what has been awarded by the Tribunal after deducting the amount, if any, deposited by it either before the Tribunal or before this Court with interest at 8% per annum from the date of petition till the date of deposit. The deposit as above shall be made within a period of six weeks from the date of receipt of copy of this order. The claimant is permitted to withdraw the amount on its deposit. No costs."