IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 23.06.2014
CORAM:
THE HON BLE MR. JUSTICE S. MANIKUMAR
C.M.A.No.1781 of 2014
and M.P.No.1 of 2014
The Managing Director,
Vs.
Santhi
Citation;2016(2) ALLMR(JOURNAL)40
According to the respondents, that on 27.08.2011, about 9.15 hours, when the husband of the 1st respondent was riding a cycle, on the left side of the mud road, towards North from South, a State Transport Corporation bus bearing Regn.No.TN23N1462, which came in the same direction, driven in a rash and negligent manner, dashed against their sole breadwinner, and he died on the spot. A case in Cr.No.407 of 2011, for offences under Sections 279 and 304-A IPC has been registered against the driver of the State Transport Corporation bus.
2. According to the respondent, at the time of accident, the deceased was aged 40 years and earned Rs.15,000/- per month in brick business. For the pecuniary and non pecuniary loss, they filed M.C.O.P.No.862 of 2011 on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Vellore, claiming compensation of Rs.25,00,000/.
3. The State Transport Corporation filed, their objections to the claim contending inter alia that the vehicle bearing Regn.No.TN23-N-1462 was not involved in the accident. They submitted that, when the vehicle was returning on its trip from Vellore, some policemen informed him that the vehicle was involved in a accident. Though, the driver denied the same, a criminal case was registered against him. According to the State Transport Corporation, had there been any accident as alleged, the passengers would not have permitted the driver to proceed further. According to the Corporation, in as much as the registration of the crime was on 28.08.2011, on the next day, that itself would prove that the accident did not occur. Thus, they denied the very involvement of the vehicle and the consequential liability to pay compensation. Without prejudice to the above, the State Transport Corporation disputed the age, avocation and income of the deceased and the compensation claimed under various heads.
4. On the basis of the above pleadings, the claims tribunal framed the following issues for consideration.
(1)whether the accident occurred due to the rash and negligent driving of the bus driver?
(2)Whether the petitioners are entitled for compensation, and if so what is the amount and
(3)by whom to be paid
5. Before the claims tribunal, wife of the deceased examined herself as PW1 and adduced evidence. Ex.P1, copy of FIR, Ex.P2, postmortem certificate, Ex.P3, legal heir certificate and Ex.P4, xerox copy of Driving Licence, have been marked on the side of the claimants. Driver of the State Transport Corporation examined himself as RW1 and denied the accident and involvement of the vehicle. Ex.R1, copy of the judgment in C.C. No.112 of 2012 on the file of the learned Judicial Magistrate No.I, Vellore, has been marked.
6. On evaluation of pleadings and evidence, the claims tribunal held that RW1, driver of the bus was negligent in causing the accident. Considering the evidence adduced by the respondents/claimants, towards pecuniary and non-pecuniary losses, the claims tribunal has awarded a sum of Rs.5,83,000/- with interest, at the rate of 7.5% per annum from the date of claim till the date of deposit.
7. Being aggrieved by the finding of negligence and the quantum of compensation, State Transport Corporation has filed this appeal. According to the learned counsel for the appellant, the vehicle was not involved in the accident. The claims tribunal has failed to consider the testimony of RW1 driver of the bus in proper perspective. Quantum of compensation has been assailed, as excessive on the grounds that without any basis, the claims tribunal had fixed the monthly income of the deceased as Rs.4,500/- for the purpose of computing the loss of contribution to the family.
8. Heard the learned counsel for the appellant and perused the materials available on record.
9. Though, PW1, has adduced evidence that when her husband was riding a cycle, on the left side of the mud road towards North from South near Kaniyambadi Ambekdhar statue situated at Vellore to Arani main road, the State Transport Corporation bus bearing Regn.No.TN23N14622 driven in a rash and negligent manner, by its driver, dashed against her husband, causing instantaneous death, she has not seen the accident. But Ex.P1, FIR, lodged against RW1, driver of the bus in Cr.No.407/11 for offences under Sections 279 and 304-A IPC has corroborated her testimony.
10. On the contra, though the State Transport Corporation has disputed the very involvement of the vehicle in the accident which occurred on 27.08.2011, in the counter affidavit filed in M.C.O.P.No.862 of 2011 on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Vellore, and contended that when the vehicle was on its return trip from Vellore, at a place called Kaniyambadi, policemen informed that the vehicle was involved in the accident and despite the objections of the driver, a criminal case was registered against RW1, except Ex.R1, xerox copy of the judgment in C.C.No.11 of 2012 on the file of learned Judicial Magistrate -1, Vellore, the State Transport Corporation has not filed any document to prove that vehicle bearing Regn.No.TN23N1462 was not operated on the said date, and in the said route, where the accident occurred. The State Transport Corporation has not marked any register or the log book, pertaining to the abovesaid vehicle. The State Transport Corporation has merely relied on the judgment of the criminal Court, in which, RW1, has been acquitted.
11. From the perusal of the award, it could been seen that during cross examination, RW1, has fully admitted that disciplinary proceedings have been taken against him, for his act of negligence and that he was under suspension for three months. While adverting to the evidence adduced, on behalf of both parties, the claims tribunal has considered the judgment, made in Zoological Park Vs. S.Kalyana Raman and others, reported in 2008 ACJ 133 wherein, the Court has held that the finding of the criminal court, is not binding on the claims tribunal. Mere acquittal in the criminal case does not amount to absolving a person of his rash and negligent driving. It is well known that the test to prove the guilt of an offence in the court of criminal jurisdiction is proof beyond all reasonable doubt, whereas, in claim for compensation under the Motor Vehicles Act, 1988, it is suffice that the claims tribunal adjudge, negligence on the principles of preponderance of probability.
12. At this juncture, this Court also deems it fit to consider the judgment wherein, the Apex Court has explained the distinction between a tort and crime, where negligence is the fact, required to be proved and the Apex Court has drawn the distinction between criminal negligence and negligence in tort;- a civil liability.
(i) In Jacob Mathew v. State of Punjab reported in 2005 (4) CTC 540, at Paragraphs 10, 11, 27 and 48(1), held as follows:
10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442)- "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
11. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
1. the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23)
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24)
27. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerla (1996) 10 SCC 508, the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence can be found proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur.
48. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'."
In the above reported judgment, at Paragraphs 13 to 17, the Apex Court, has explained the difference between the tort and crime, as follows:
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated,
"Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case-
"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13)
15. The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
16. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423, a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
Factum of mens rea is not required to be decided in Motor Accidents Claims cases, which is purely a civil liability on the driver / owner or the insurer, as the case may be to pay compensation to the injured or the legal representatives of the deceased.
13. Mere acquittal in a criminal case does not lead to an automatic inference that there was no negligence on the part of RW.1, driver of the bus. Needless to state that in Motor Accident Claims Cases, preponderance of probability is the test to arrive at the conclusion regarding negligence. The standard of proof required is entirely different from the Criminal Court. At this juncture, it is also useful to extract the decision of a Hon'ble Division Bench of this Court in Oriental Insurance Co. Ltd., v. K.Balasubramanian reported in 2007 (2) TN MAC 399, wherein, the Court held as follows:
"It is a well settled proposition of law that the judgments of the Criminal Courts are neither binding on the Civil Court/Motor Accident Claims Tribunal no relevant in a Civil Case or a claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is convicted based on his admission, the judgment of the Criminal Court becomes admissible and relevant in Civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the Criminal Court, but as a document containing an admission. Of Course, admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence."
14. In view of the above, evaluation of the evidence adduced and conclusion of negligence fixed on RW1, driver by the claims tribunal, cannot be said to be manifestly illegal, or per verse or as a case of no evidence, warranting intervention. Hence finding of negligence fixed on RW1, is sustained.
15. On the question as to whether the claims tribunal has erred in awarding a bonanza to the family of the bereaved, perusal of the award shows that though PW1, wife of the deceased adduced evidence that the deceased earned Rs.15,000/- by doing brick business, no document was produced to prove the same. Therefore, having regard to the number of members in the family and the age of the deceased, the claims tribunal has taken a notional income of Rs.4,500/- per month, for the purpose of computing the loss of contribution to the family.
16. At this juncture, this Court deems to fit to consider that even in respect of a labourer, who died in an accident in 2004, in Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC, the Hon'ble Supreme Court has fixed the monthly income of the deceased as Rs.4,500/-. The Supreme Court found fault with the claims tribunal, in reducing the monthly income from Rs.4,500/- to Rs.3,000/- for the purpose of computing the loss of contribution to the family and by fixing Rs.4,500/- as monthly income computed the loss of contribution to the family. In a given case, where there is no evidence regarding employment and income earned by the deceased, the claims tribunal having regard to the number of dependents in other circumstances, can fix a reasonable income for the purpose of computing the loss of contribution to the family.
17. The deceased is survived by the claimants, wife, two daughters aged about 18 and 16 respectively and a son aged about 14. As per the decision reported in Sarla Verma and Others Vs. Delhi Transport Corporation, reported in 2009 ACJ 1298, the claims tribunal ought to have deducted
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, in Paragraph 12, the Supreme Court has held that,
"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 benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
In Paragraph 15 of the said judgment, the Supreme Court has held that,
"Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iii) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), a three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)
(iv) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependents and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. (emphasis supplied)
18. Having regard to the error in deducting 1/3rd, towards the personal and living expenses of the deceased and on the basis of the principles of law, stated supra, this Court in exercise of the powers, under Order 41 Rule 33 CPC, deems it fit to suo motu enhance the compensation, by deducting 1/4th towards the personal and living expenses of the deceased, and while doing so, take the support of the following judgments:
(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows:
37. 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 Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), 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 what-ever 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 bene-fits 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 un-reasonable, excessive nor deficient.
38. Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] 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 over-pitching 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, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice.
Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.
(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the question as to whether compensation can be enhanced suo-moto in exercise of power under Order 41 Rule 33 and the point is answered as follows:
6. On point:
The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross-objection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:
Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.
The issue that arises in this case is, whether the Division Bench of the High Court was justified in in-creasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:
In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case wa-rrants the same.
To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:
(i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ 281.
(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.
(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ 151.
(iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222.
9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:
Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.
In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection.
The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:
The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise th at discretion on mere technicalities.
10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:
At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discre-tionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.
11. Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:
Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. 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. Section 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 subsection (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 subsection (4) which provides that ?the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 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.
(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:
17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.
After deducting x 12 x 15).
19. At the time of accident, the 1st respondent widow was stated to be 36 years. The other claimants / daughters and sons were aged 18, 16 and 14 respectively. The claims tribunal has failed to consider that the 1st respondent had lost her husband, and burdened with a responsibility to take care of her daughters, including two minors, without the guidance, love and affection, from her husband. Compensation of Rs.15,000/- awarded under the head loss of consortium, in the opinion of this Court is less. Hence, it is enhanced to Rs.30,000/-. Sum of Rs.20,000/- awarded to the children under the head loss of love and affection is less. Loss of love and affection of a father, to the daughters would be more, because, lateron, they may have to settle, in some other family. Therefore, this Court deems it fit to award Rs.45,000/- under the head loss of love and affection (Rs.15,000/- each). Compensation of Rs.3,000/- awarded under the head transportation is less. Considering the date of accident i.e.27.08.2011, it is enhanced to Rs.5,000/-. Funeral expenses of Rs.5,000/- is also less. It is enhanced to Rs.10,000/-. A sum of Rs.1,000/- is granted under the head loss of damages to clothes and articles.
20. After reworking, as per decision of the Sarla Verma's case, the quantum of compensation works out to Rs.6,98,500/- with interest, at the rate of 7.5% per annum, from the date of claim till the date of deposit, as detailed hereunder.
Loss of contribution to the family : Rs.6,07,500/-
Loss of Consortium : Rs. 30,000/-
Loss of love and affection : Rs. 45,000/-
Transportation : Rs. 5,000/-
Funeral expenses : Rs. 10,000/-
Damages to clothes : Rs. 1,000/-
21. Though, in Sri Ramachandrappa's case, decided in 2011, the Apex Court, fixed the income of a labourer as Rs.4,500/-, for the accident which occurred in the year 2004, and despite the repeated pronouncements of this Court, finding fault with the attitude of the Managing Directors, of State Transport Corporation, repeatedly questioning the correctness of the award of tribunals, wherein a nominal income of even Rs.4,500/-pm, has been fixed, to support a family, the present appeal has been filed. In the instant case, the family comprises of four persons, and therefore, the income fixed at Rs.4,500/- per month is not on the higher side, when the expenses to be incurred to provide food, shelter, clothing and other basic amenities, to the family members, is considered. Unmindful of the inflation, price index and reduction in the purchasing power, determination of monthly income at the rate of Rs.4,500/- per month, has been questioned, by a mechanical approach by the Managing Director of the State Transport Corporation. The appeal has been filed only with a view to protract the proceedings. The accident has occurred in the year 2011. A sum of Rs.100/- per day, alone, has been taken into account for the purpose of computing the loss of contribution to the family.
22. Though, apparently, the claims tribunal has erred in deducting 1/3rd towards the personal and living expenses of the deceased for the purpose of computing the loss of contribution to the family, still the Managing Director,Tamilnadu state Transport Corporation, Vellore, the appellant herein, has filed the appeal, assailing the quantum, as grossly excessive, unmindful of the fact that due to the sudden demise of the breadwinner, the family comprising of wife and three daughters, have lost the continuous financial support and guidance. Having regard to the attitude of the Managing Director, Tamilnadu State Transport Corporation, Vellore, the appellant herein, this Court deems it fit to award cost of Rs.10,000/- to be paid by him, to the claimants.
23. In the light of the decisions and discussion stated supra, the appeal is dismissed with cost and suo motu enhancement of Rs.6,98,500/- is ordered as compensation to be paid, with interest, at the rate of 7.5% from the date of claim till the date of deposit. Cost of Rs.10,000/- has to be paid to the claimants. The amount determined shall be deposited within a period of six weeks from the date of receipt of a copy of this order.
24. On such deposit, the 1st respondent is entitled to Rs.2,18,500/- and the respondents 2 to 4 are entitled to Rs.1,60,000/- each. At the time of filing of the claim petition in the year 2011, the 3rd respondent was aged 16 years and by this time, he would have attained majority. Therefore, respondents 1 to 3 are permitted to withdraw their share in the award amount, with proportionate accrued interest and cost, as apportioned by this Court, by making necessary applications. The share of the minor/4th respondent shall be deposited in any one of the Nationalised Banks, proximate to the residence of the minor in a fixed deposit under the reinvestment scheme initially for a period of three years. The interest accruing on the share of the minor/4th respondent shall be paid to the 1st respondent/mother of the minor once in three months, till he attains majority.
23.06.2014
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