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Judgment
This appeal questions legality and correctness of the Award dated 30th September 2004 rendered in Claim Petition No. 27 of 2001 by the Motor Accident Claims Tribunal, Amravati.
In a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, the "MV Act") by the widow, children and parents of deceased Sanjay Ganorkar who died due to dash given to him violently to his rear side, while he was standing on the road by a red colour Maruti car in the fateful night of 31st December 1999 on BadneraAmravati Road, the Claims Tribunal partly allowed the petition and granted compensation of Rs. 12,90,560/inclusive of nofault liability with future interest @ 9% per annum from the date of petition till realization of the amount awarded. The appellant being insurer of the car which was claimed to be bearing registration No. MH-28/ H-288 belonging to respondent no. 6, felt aggrieved by the findings recorded by the Tribunal in respect of involvement of this car in this accident as well as the liability of the appellant to pay the compensation amount and that is why this appeal has been filed.
I have heard Shri Masood Shareef, learned counsel for the appellant and Shri Anoop Gilda, learned counsel for respondents no. 1 to to 3 and 5. None appears for respondent no. 6 though duly served. Respondent no. 4 having died during the pendency of appeal, by consent, his name is deleted from the array of respondents.
I have gone through the record of the case including the impugned judgment and order. The following points arise for my determination:
(i) Whether the appellant proves that Maruti Car bearing registration No. MH-28/ H-288 was not involved in the accident ?
(ii) Whether the compensation granted by the Tribunal is just and proper ?
On going through the evidence brought on record by respondents no. 1 to 3 and 5, I find that there is not a single circumstance brought on record by the appellant which would enable this Court to take a different view from the one taken by the Tribunal. The Tribunal has found, although initially crime was registered against the driver of an unknown vehicle, but as the further investigation disclosed that this Maruti car bearing registration No. MH-28/ H-288 belonging to respondent no. 6 and insured with appellant, was involved in the accident in which deceased Sanjay lost his life. No suggestions denying involvement of this car in the accident have been given to PW 1 Smt Kiran. In fact, if one reads the cross-examination of this witness, one would find that the factum of involvement of this car in the accident has not been denied by giving suitable suggestions to the witness. No other evidence has been lodged either by respondent no. 6, the owner of the car or the appellant in rebuttal. Therefore, the finding recorded by the Tribunal that this car was involved in the accident in question would have to be said to be logically arising from the evidence available on record. This finding cannot be said to be perverse. The first point is, therefore, answered in the negative.
Shri Gilda, learned counsel for the claimants relying on the cases of Andhra Pradesh State Road Transport Corporation & anr v. M. Ramadevi & ors reported in (2008) 3 SCC 379 and Jitendra Khimshankar Trivedi & ors v. Kasam Daud Kumbhar & ors reported in (2015) SCC 237 has sought enhancement of the amount of compensation. According to him, this can be done while exercising the the appellate powers under Section 173 of the MV Act. Shri Shareef, however, disputes it contending that Section 173 of the MV Act does not give wide mandate to this Court for enhancing compensation even when no cross appeal or no crossobjection, which is the case here, has been filed by a claimant. He submits that if cross-objection is filed by the claimant in an appeal filed by the insurer or insured under Section 173 of the Motor Vehicles Act, it would be for all purposes an appeal filed under this very provision of law. He submits that if such cross-objection is filed, it would be governed by the extent of powers of the Appellate Court under Section 173 of the MV Act. But, when no such cross-objection in terms of Section 173 is filed, it would have to be taken that the claimant is not aggrieved by the Award and so the quantum of compensation determined by the Tribunal would have to be accepted as just and proper consistent with the spirit of Section 168 of the MV Act. He thus submits, a claimant who does not feel aggrieved and chooses to not challenge the award by filing an appeal or crossobjection, cannot be permitted to stand up and make an oral claim later on, in an apeal filed by the insurer, for getting more compensation.
In the case of M. Ramadevi & ors (supra), relying upon the case of Nagappa v. Gurudayal Singh reported in (2003) 2 SCC 274, Hon''ble Apex Court held that enhancement in quantum of compensation in an appeal filed by the nonclaimant, without there being any crossobjection filed by the claimant, is permissible. In Jitendra Khimshankar Trivedi & ors (supra), this view has been reiterated by the Hon''ble Apex Court. In paragraph 12, it is observed thus:
"12. The Tribunal has awarded Rs. 2,24,000 as against the same, the claimants have not filed any appeal. As against the award passed by the Tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced In terms of Section 168 of the Motor Vehicles Act, the courts/the Tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasised by this Court in Nagappa v. Gurudayal Singh, Oriental Insurance Co. Ltd. v. Mohd. Nasir and Ningamma v. United India Insurance Co. Ltd. As against the award passed by the Tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of the courts/the Tribunals to award just and reasonable compensation, it is appropriate to increase the compensation."
It is clear from the above judgment that even in an appeal by the nonclaimant, the claimant can indeed seek enhancement in quantum of compensation even without filing any crossobjection and it is obligatory for the appellate court to consider the same and award him the compensation which, in its opinion, is just and fair.
This being the law settled by Hon''ble Supreme Court, I do not think that there is any scope left out to consider the argument canvassed by learned counsel for the appellant. The argument of learned counsel for the appellant is, therefore, rejected. Accordingly, I find that the oral claim raised on behalf of the claimants seeking enhancement of compensation in the present appeal is tenable before this Court.
Now, the question would be, what should be the just and fair compensation to be awarded to the claimants could it be just the same as granted by the Tribunal or lesser or higher than that ? I think, the answer would go to the higher side of the compensation if one considers missing out by the Tribunal some of the parameters while awarding the compensation under the impugned Award. The Tribunal has also not considered the future prospects @ 50% of the monthly income as held by the Hon''ble Supreme Court in the case of Sarla Verma (Smt) & ors v. Delhi Transport Corporation & anr reported in (2009) SCC 121. The Tribunal has not taken into consideration the compensation payable under some of the nonpecuniary heads. In Rajesh & ors v. Rajbir Singh & ors reported in (2013) 9 SCC 54, the appropriate compensation under the head of loss of consortium is of Rs. 100,000/while in the impugned award, the same has been given at Rs. 50,000/. The Tribunal has also reduced the compensation on account of love and affection for two children to Rs. 50,000/although, as held in the case of Rajesh & ors (supra), it is of Rs. 1 lac for each child. The Tribunal has not given any compensation on account of loss of estate for the widow and the children which I think, in view of the settled law, is due to them at Rs. 100,000/. The Trbunal has also not granted any funeral expenses although the same should have been grated at Rs. 25,000/, as observed in Rajesh & ors (supra).
These failings of the Tribunal would now be the tasks for this Court to finish here. Accordingly, the exercise is computed in the following manner :
(1) Monthly net income as rightly determined by the Tribunal .. Rs. 8520/-
( 2) 50% of future prospects .. Rs. 9260/-
( 3) Addition of (1) + (2) .. Rs. 12,780/-
( 4) Annual income - 12 x 12,780 = Rs. 1,53,360/-
( 5) Annual loss of dependency to be calculated by deducting 1/4th amount from (4) = Rs. 1,15,020/-
As per Sarla Verma (Smt) & ors v. Delhi Transport Corporation & anr reported in (2009) 6 SCC 121, for the age group of 36 to 40, multiplier "15" is to be applied. There is no dispute about the age of the deceased which was 38 years at the time of accident. Applying this multiplier of "15" to the annual loss of income of Rs. 1,15,020/total loss of dependency would come to Rs. 17,25,300/. To this amount of compensation, on account of such heads as loss of consortium, loss of love and affection, loss of estate and funeral expenses further amounts would have to be added in the following manner by relying upon the case of Rajesh & ors (supra) :
(1) Total loss of dependency .. Rs. 17,25,300/-
(2) Loss of consortium for respondent no.1 .. Rs. 1,00,000/-
( 3) Loss of love and affection for respondents no. 2 and 3 .. Rs. 2,00,000/-
( 4) Loss of estate for all respondents .. Rs. 1,00,000/-
( 5) Funeral expenses .. Rs. 25,000/-
Total amount of compensation .. Rs. 21,50,300/-
Thus, I find that the compensation which the claimants are entitled to receive in the present case in a just and fair manner would come to Rs. 21,50,300/which would be inclusive of no fault liability compensation, with interest at the same rate as given by the Tribunal. The compensation would be payable by the appellant and respondent no. 6 to the respondents no. 1 to 3 and 5 jointly and severally within three months from the date of payment of requisite court fees failing which the claimants would be entitled to recover the same together with interest awarded through coercive method. The impugned Award is thus modified in the above terms and the appeal filed by the appellant is dismissed. Parties to bear their own costs. Requisite amount of court fees be paid by the claimants within one month from the date of order.