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Judgment
R. Banumathi, J.—Being aggrieved by the award of compensation of Rs. 67,500/- for the death of Ramesh @ Ramesha in the Road Traffic
Accident, the State Transport Corporation has preferred this appeal.
Brief facts which are necessary for disposal of this appeal are as follows:- (i) On 13.9.1990 at 9.15 A.M. the deceased Ramesh @ Ramesha
travelled in the State Transport Corporation (STC) bus for going to Hosur. When the bus was proceeding near Haritha Rolo Pharma factory, the
bus was driven in rash and negligent manner and the driver has suddenly turned the bus. Due to rash and negligent driving of bus, the deceased
Ramesh had fallen down from the bus and sustained head injury and multiple injuries all over the body. After the accident, he was admitted in
Hosur Government Hospital and thereafter in Bangalore Mental Health and Neuro Science Hospital. The deceased Ramesh succumbed to the
injuries on 17.9.1990. At the time of accident, Ramesh was aged 18 years and he was doing tomato vending business. Alleging that the accident
was due to rash and negligent driving of the Corporation bus driver, the mother of Ramesh has filed Claim Petition claiming compensation of Rs.
1,00,000/-. The father of the deceased was shown as third Respondent.
(ii)Opposing the claim, STC has filed counter stating that the deceased Ramesh was standing in the footboard and inspite of warning, he did not get
inside the bus. While, he was so travelling as footboard passenger, he lost his balance and had fallen down. Since, the accident was due to rash
and negligent driving of the bus driver, the Corporation is not liable to pay compensation.
(iii)Before the Tribunal, the Claimant examined herself as P.W.1. Exs.P1 to P5 were marked. On the side of the Respondent-Corporation the
driver was examined as R.W.1. Upon consideration of oral and documentary evidence, the Tribunal held that the crew of a bus owed a duty
towards passenger and the driver and conductor ought to have warned the deceased and that there was violation of duty on the part of the driver
and conductor of the bus. Observing that the accident was due to the failure of duty on the part of the bus driver, Tribunal held that STC is liable to
pay compensation. Taking the monthly income of the deceased at Rs. 750/- and his family contribution at Rs. 500/- per month and applied
multiplier 15, the Tribunal has calculated the loss of dependency at Rs. 90,000/-. Out of Rs. 90,000/-, the Tribunal deducted 1/4th of the amount
i.e. Rs. 22,500/- on the ground that the deceased is liable for contributory negligence. Hence, the compensation amount of Rs. 67,500/- was
awarded by the Tribunal. Deducting Rs. 25,000/- which was already paid as per interim award, the balance amount of Rs. 42,500/- was ordered
to be paid equally to the Claimant-Mother and the third Respondent.
Challenging the impugned award the learned Counsel for the Appellant-Corporation has submitted that the Tribunal erred in finding that the
accident was due to the negligence on the part of the bus driver. It was further submitted that in the absence of any evidence to show the income ,
the Tribunal erred in fixing the monthly income at Rs. 750/- and awarding compensation of Rs. 67,500/-.
The learned Counsel for the first Respondent submitted that the Tribunal fixed very low amount of Rs. 750/- per month. It was further submitted
that the Tribunal erred in not awarding conventional damages for loss of love and affection and for funeral expenses. The learned Counsel for the
Claimant-first Respondent submitted that though the Claimant has not preferred any Cross Appeal or Cross Objection, exercising power under
Order 41, Rule 33 CPC, the Court can suo moto enhance the compensation.
It is not necessary to narrate the entire facts in detail as to how the accident had occurred, who is responsible for the accident and who is liable
to pay the compensation, it is for the reason the Tribunal has recorded the findings in favour of the Claimant. Further, these findings are not under
challenge. Only the quantum of compensation is in dispute.
At the time of accident, the deceased Ramesh was aged 18 years. He has studied upto plus 2 and after withdrawing from school education, he
was doing tomato vending business. He was survived by the Claimant-Mother and the third Respondent-Father. The third Respondent-Father is
alleged to have married another woman for second time.
The deceased was aged 18 years and he was growing into adulthood. Though the deceased was not earning good income at the time of
accident, the parents were expecting to reap better income after few years. The Tribunal does not appear to have kept in view the future
prospectus of the deceased Ramesh. The monthly income of Rs. 750/- taken by the Tribunal appears to be very much on the lower side. The
Tribunal had taken the monthly contribution to the family at Rs. 500/- and calculated the loss of dependency at Rs. 90,000/-. Deducting 1/4th for
contributory negligence the Tribunal has awarded Rs. 67,500/- as compensation. It cannot be said that the quantum of compensation of Rs.
67,500/- is excessive or on the higher side.
The Tribunal has not chosen to award any compensation for loss of love and affection and for funeral expenses. The Claimant''s Mother was
aged only 40 years at the time of death of her son Ramesh. The Claimant''s husband also separated and married another woman. While so, the
Claimant would have totally dependent upon her son for income and for love and affection. Having regard to the facts and circumstances of the
case, in my considered view the Tribunal ought to have awarded compensation for loss of love and affection and also for funeral expenses.
Ofcourse, the Claimant has not preferred any Cross Appeal or Cross Objection. The question arising for consideration is whether in the
absence of any cross objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under
Order 41 Rule 33 CPC could enhance the quantum of compensation even without cross objection. The Courts and Tribunals have a duty to weigh
various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in
1971 ACJ 206 (SC) [Sheikhupura Trans. Co. Ltd. v. Northern India Transporter''s Ins. Co. Ltd.], wherein it is held that 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 future pecuniary
benefits and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, i.e. the balance of loss and
gain to a dependent by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In
the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is
loss of pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate
hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should
not be inadequate and should neither be unreasonable, excessive nor deficient.
Of course, the claimant who is the mother of the deceased has not filed any cross objection. Even without a cross-objection questioning the
quantum, the Court could suo motu enhance compensation under Order 41 Rule 33 CPC. In this context, reference could be made to The
Divisional Controller, Now The General Manager, Karnataka State Road Transport Corporation And Bangalore Transport Service, Bangalore
Vs. J.D. Sigamany And Another, wherein it has been held as follows:
(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant''s learned advocate when he points out
that it is a well settled principle that a party who suffers an order or a decree and does not appeal against it or assail it would normally not be
permitted at the hearing of the appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to
whether this situation prescribes an absolute and total bar to the court granting a relief if in the interest of justice such a relief is an absolute must.
One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that
is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general
condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard
to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a
situation wherein the court finds that no appeal or cross-objections have been filed. The essence of doing justice requires that compensation when
awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the
appeal involves a total review of the case and the appeal is virtually an extension of the proceedings before the lower court. The law is well settled
with regard to one interesting aspect of the matter, namely, that the courts do come across a few instances where instead of overpitching the case
before the trial court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount
that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had
occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective
of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the court has to the power
to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to
the appeal court and though I do not dispute that a court would normally not permit a party to ask for enhancement unless an appeal or cross-
objections have been filed but there could be a very small category of cases in which the court would make an exception, the reason being that the
essence of doing justice requires that a court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if
the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair
evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the courts in the decisions set out by me above, subscribe
to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, rule 33, CPC and more
importantly, such powers can certainly be exercised u/s 151, CPC in the interest of justice.
Applying the above decision and exercising power under Order 41 Rule 33 CPC and Section 151 CPC. in 2006 (3) ACJ 1917 [Tamil Nadu
State Transport Corporation v. Vasnathan and Ors.], Justice Arumuga perumal Adithyan, J. has enhanced compensation.
By exercising power under Order 41, Rule 33 CPC, it would be just and appropriate to award Rs. 25,000/- for loss of love and affection to
the Claimant Lakshmi ammal and Rs. 5000/- is awarded for funeral expenses.
Thus this Appeal is disposed of with the following directions.
The compensation amount of Rs. 67,500/- awarded by the Tribunal is enhanced to Rs. 97,500/-.
The compensation amount of Rs. 67,500/- awarded by the Tribunal is payable with interest at 12% p.a.
The enhanced compensation of Rs. 30,000/- is payable only to the Claimant - Lakshi ammal.
Enhanced compensation of Rs. 30,000/- is payable with interest at 7.5% p.a. from the date of petition till the date of realisation.
The Appellant is directed to deposit the compensation amount within a period of eight weeks from the date of receipt of a copy of this Judgment.
The third respondent is entitled to withdraw his share as per the order of the Tribunal (i.e. half of Rs. 67,500/- less any amount already withdrawn
by him) and the Claimant is entitled to withdraw the compensation amount as per the order of the Tribunal and also the enhanced compensation
amount of Rs. 30,000/- along with accrued interest.
There is no order as to costs.