JUDGMENT
Motilal B. Naik, J.
1. These two Civil Miscellaneous Appeals arise out of an order passed in O.P. No. 166 of 1984 on the file of the Additional Chief Judge-cum-Chairman, Motor Accidents Claims Tribunal, City Civil Court, Secunderabad, dated 29-9-1986. Therefore, these two CM. As. are being disposed of by a common judgment.
2. C.M.A. No. 176/87 is filed by the New India Assurance Company Limited – third respondent in O.P. No. 166/84. C.M.A. No. 534 of 1987 is filed by the claimants in the said O.P. No. 166/84.
3. For the purpose of disposal, the parties are referred to as claimants/ petitioners and respondents.
4. The claimants filed O.P. No. 166/84 for the death of one Sankaraiah in a road accident claiming a total compensation of Rs. 75,000/-. The first claimant is the wife of the deceased Sankaraiah, claimants 2, 3 and 4 are the minor children of late Sankaraiah born to the first claimant and claimants 5 (since died) and 6 are the parents of late Sankaraiah.
5. It is the case of the claimants that on 15-2-1984 at 11-00 p.m. late Shankaraiah was transporting arrack in the ambassador car bearing No. ABM 2770 belonging to one Vijay Singh, from the house of Vijay Singh to the godown of Kishen at Ameerpet. When the car crossed Mallepally at a point opposite to Mahaveer Hospital, a jeep bearing No-ABD 4108 belonging to the first respondent driven by the second respondent in a rash and negligent manner hit the ambassador car from behind, on account of which, the right side door of the car was damaged and got opened, due to the impact, the deceased Shankaraiah who was sitting in the said ambassador car was thrown out of the car from right side. The jeep bearing No. ABD 4108 driven by the second respondent ran over the deceased Shankaraiah resulting in his instantaneous death.
6. It is also the case of the claimants that late Shankaraiah was aged about 25 years at the time of his death and was working as a servant in Mahender Company, Shyamlal Building, Begumpet, Hyderabad, on a monthly salary of Rs. 750/-. It is also their case that the deceased has not only left his young wife but also three minor children who are aged 7 years, 5 years and 11 months respectively, besides his aged parents who were solely dependent on his earnings.
7. On behalf of the respondents, separate counters have been filed. Respondents 1 and 2 filed a separate counter. The third respondent-Insurance Company has also filed a separate counter. The fourth respondent one Mr. Abbas Ali, claimed to be the Inspector of Excise has also filed a separate counter. The categorical plea of all these respondents is that said Shankaraiah was transporting illicit distilled liquor in the Ambassador Car bearing No. ABM 2770 and the fourth respondent who is the Excise Inspector engaged a jeep bearing No. ADD 4108 of the first respondent and chased the ambassador car in the night. While so, at the point of Mahaveer Hospital, there was another jeep coming from the opposite direction and also an Auto and there was a collision between that jeep and the ambassador car in which the deceased Shankaraiah was travelling and thus the accident took place and they are not responsible for the death of Shankaraiah.
8. The fourth respondent who filed a separate counter sought protection Under Section 69 of the A.P. Excise Act claiming that the jeep ABD 4108 has been hired by the Excise Department and therefore, they are not liable to pay any compensation.
9. The third respondent – Insurance Company has also categorically contended that the driver of the jeep in question had no valid licence as on the date of the accident and as the jeep in question has been hired by the Excise Department, they are not liable to pay any compensation. The third respondent also took a specific plea that the vehicle in question was not insured.
10. On the basis of these averments, the Tribunal below framed the following issues:
(1) Whether the accident which occurred on 15-2-1984 at 11-00 p.m. near Mahaveer Hospital, Hyderabad involving Ambassador Car ABM 2770 and Jeep No. ABD 4108 was due to rash and negligent driving of the said jeep?
(2) If so, whether the deceased Shankaraiah who was in the Car was run over by the said jeep when he fell on the road due to impact?
(3) Whether the accident was occurred due to the rash and negligent driving of the Ambassador car which was proceeding in a bid to escape from Excise Department hired jeep as contended by the R-1 and R-2?
(4) Whether the person driving the jeep ABD 4108 was not having valid driving licence?
(5) Whether the jeep No. ABD 4108 was not insured with R-3 at the relevant time?
(6) To what compensation, if any, are the petitioners entitled to and to whom?
(7) To what relief?
11. As against these issues, on behalf of the claimants, three witnesses have been examined and no documents were marked on their behalf. On behalf of the respondents none was examined. However, Ex.B-1, copy of the insurance policy was marked.
12. On the basis of the evidence and other material available on record, the tribunal below held that the stand taken by the respondents is not proved in the absence of any rebuttal evidence. It is also held by the tribunal below that though the fourth respondent claimed to be an Inspector of Excise and stated in his counter that on receipt of information he chased the ambassador car, failed to examine himself to rebut the case of the claimants. It was also held by the tribunal below that even the driver of the jeep bearing No. ABD 4108 failed to examine himself to rebut the case of the claimants. Therefore, in the absence of any rebuttal evidence forthcoming, the tribunal below rejected the counter stand taken by the respondent and held that the accident had taken place on the day as pleaded by the claimants and the jeep in question driven by the second respondent is responsible for the accident resulting in the instantaneous death of Shankarniah. The tribunal below further held that the third respondent -Insurance Company is liable to pay the compensation awarded by it as the vehicle involved in the accident was insured with it at the time of accident.
13. Coming to the quantum of granting compensation, the tribunal below held, taking into consideration the age of the deceased as 30 years, that the earning capacity of the deceased could be Rs. 10/- per day and Rs. 300/- per month. The tribunal has set apart Rs. 100/- for personal expenses of the deceased and fixed Rs. 200/- as the net contribution of the deceased to his family. Applying the multiplier 16-04, the tribunal below granted a compensation of Rs. 39,000/- to the claimants under the head of loss of earnings. Over and above this amount, the Tribunal has also awarded an amount of Rs. 6,000/- towards consortium to the first claimant i.e., wife of the deceased Shankaraiah. Thus, in all, a total compensation of Rs. 45,000/- was granted by the tribunal to the claimants, besides, interest at the rate of 9 % per annum on the said amount from the date of filing of the petition.
14. C.M.A. No. 534/87 is filed by the claimants seeking enhancement of the compensation as well as the rate of interest on the ground that the tribunal has not properly calculated the loss of earnings of the deceased Shankaraiah while fixing his daily earning though it was categorically stated by P.W.3 who is the employer of late Shankaraiah that late Shankaraiah was earning Rs. 750/- per month. It is also contended that the rate of interest has been erroneously granted at 9% per annum though they are entitled to 12% per annum.
15. C.M.A. No. 176/87 is filed by the third respondent-Insurance Company contending that they are not liable to pay compensation inasmuch as the vehicle involved in the accident was not insured and as the accident itself was not proved, they are not liable to pay any amount of compensation.
16. The contention of the third respondent-Insurance Company that the accident itself was not proved is not acceptable to this Court as the finding of the Tribunal below on this aspect, in my view, is proper in the absence of any rebuttal evidence let in by the respondents. The tribunal below has categorically held that the fourth respondent who claimed to be the Excise Inspector chased the ambassador car in a jeep bearing No. ABD 4108 and the second respondent who had driven the said jeep failed to examine themselves to falsify the version of the claimants, as stated by P.W.2 who was the eye-witness to the said accident. The tribunal below further held that the jeep bearing No. ABD 4108 belonging to the first respondent which was driven by the second respondent was responsible for the accident which resulted in the instantaneous death of late Shankaraiah.
17. In this view of the matter, I am not persuaded to differ with the finding of the tribunal below on this aspect, more so, in the absence of any rebuttal evidence let in by the respondents to falsify the version of the claimants. Accordingly, I hold that the death of late Shankaraiah was due to the rash and negligent driving of the jeep bearing No. ABD 4108 belonging to the first respondent which was driven by the second respondent at the time of the said accident.
18. Coming to the question as to whether the claimants are entitled for higher compensation, the law is well settled in sofar as granting the compensation is concerned as has been laid down by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandraum v. Mrs. Susamma Thomas, .
19. In the instant case, P.W.1 who is the wife of late Shankaraiah has categorically stated that her husband was earning nearly Rs. 800/- per month. She also stated that the deceased was aged 25 years at the time of his death. P.W.3 who is the employer of the deceased Shankaraiah has also categorically stated that the deceased was around 30 years and he was being paid Rs. 750/-per month. Though P.W.3 has not placed any documentary proof before the tribunal below indicating that he was paying the said amount, he stated that late Shankaraiah, his wife and other members are staying with him as his servants and they were being provided food and accommodation besides paying Rs. 750/- to both late Shankaraiah as well as to his wife the first claimant herein for doing domestic work in the house of P.W.3.
20. Admittedly, the accident took place in the year 1984. Late Shankaraiah claimed to be working in the wine shop of P.W.3 and was staying in the house of P.W.3. P.W.3 was also providing food and accommodation to late Shankaraiah and his family members. Therefore, it could safely beheld that late Shankaraiah could be earning Rs. 500/- per month. His wife, the first claimant herein, could be earning Rs. 250/- per month. The earning of Rs. 500/- by the deceased Shankaraiah is in addition to the food and shelter being provided by P.W.3. Therefore, the earnings of late Shankaraiah would be Rs. 500/- per month. Of course, a small amount of Rs. 100/- could be set apart towards his personal expenditure as he was not spending any amount for his food or accommodation. Therefore, a reasonable amount of Rs. 400/- could be taken as contribution of late Shankaraiah to his family per month and for one year, it comes to Rs. 4,800/-. The tribunal below has accepted the age of the deceased Shankaraiah as 30 years. I do not propose to take a different view as far as the age of the deceased is concerned. Once the age of the deceased is taken as 30 years, the relevant multiplier would be 16.51 and the same is to be rounded of to 17. If this multiplier is applied, the loss of earnings of the deceased would be (4,800 x 17) Rs. 81,600/-. As held by the Supreme Court in the decision cited (1) supra, the first claimant is entitled for an amount of Rs. 15,000/- towards loss of consortium. In terms of the above decision cited (1 supra), the claimants are also entitled for an additional amount of Rs. 15,000/- towards loss of estate. Thus, in all, the claimants are entitled to the following amounts:
Loss of earnings ..... Rs. 81,600-00
Loss of estate ..... Rs. 15,000-00
Loss of consortium to the first claimant ..... Rs. 15,000-00
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Rs. 1,11,600-00
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Apart from the above amount, the claimants are also entitled for interest at the rate of 1?% per annum from the date of filing of the Original Petition.
21. The next interesting question would be whether the claimants are entitled to receive more compensation over and above the claim made by them?
22. During the course of hearing of these appeals, the learned Counsel appearing on behalf of the third respondent-Insurance Company has categorically contended that in the absence of a claim by the claimants for a specific amount, Courts cannot grant compensation over and above the claim made by the parties. In support of his contention, the learned Counsel placed reliance on two decisions reported in Bhagwan Das v. Mohd. Arif, 1987 ACJ 1052 and P. Satyanarayana, rep. by his wife P. Mahalakshmi v. I. Balm Rajendra Prasad, 1988 ACJ 88. Before the learned Judge, this proposition was not an issue at all and therefore, while disposing the above two cases, the learned single Judge had no occasion to decide the proposition now raised by the third respondent-Insurance Company. Therefore, I am of the view, these two decisions are not relevant for deciding the issues involved in these two appeals.
23. Now, it has to be seen whether the claimants are entitled to receive compensation over and above the claim made by them.
24. In order to understand the intricacies involved in this issue, it is necessary to refer to the provisions contemplated in Section 110-B of the Motor Vehicles Act, 1939 (for short “the Act”)
110-B: Award of the Claims Tribunal.
“On receipt of an application for compensation made Under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer (or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be).”
25. Thus, it is evident from the above provision, the Tribunal shall grant a just compensation while considering the totality of the circumstances, that is to say, the compensation should be just in the opinion of the Tribunal. Therefore, it is clear that there is no embargo imposed by the legislature on the Tribunals to grant compensation over and above the amount claimed by the parties in a given case.
26. In the instant case, the age of the deceased was held to be 30 years by the Tribunal below. The Tribunal has also fixed the earning capacity of the deceased at Rs. 10/- per day. I have held that the fixing of Rs. 10/- per day as the earning capacity of the deceased Shankaraiah is not based on any evidence though there is the evidence of P.VV.3 who was the employer of the deceased Shankaraiah to the effect that the deceased was being paid Rs. 750/- per month besides providing food and shelter to him. P.W.3 also stated that Rs. 750/- was being paid to the services rendered by late Shankaraiah and his wife. Therefore, I have held that the deceased Shankaraiah could be earning Rs. 500/- per month besides the free benefits from P.W.3 in the nature of food and shelter. Tentatively, I have estimated the personal expenditure of late Shankaraiah as Rs. 100/-per month and his net contribution to his family would be Rs. 400/- per month. Taking into consideration the relevant multiplier, I have held that the loss of earnings to the claimants could be Rs. 81.600/-. In view of the decision cited (1) supra, I have also awarded a sum of Rs. 15,000/- towards loss of consortium to the first claimant and a further sum of Rs. 15,000/- towards loss of estate to the claimants apart from granting interest at 12% per annum. Thus, in all, the claimants are entitled for an amount of Rs. 1,11,600/- towards compensation apart from interest at 12% per annum from the date of filing of the petition. This compensation amount granted by me is in tune with the provisions of Section 110-B of the Act when it says that the Tribunal has to grant just amount of compensation. In my view, this is the just compensation to which the claimants are entitled to. Therefore, technicalities cannot prevent the claimants of their entitlement to get just compensation in terms of Section 110-B of the Act. In R.L. Gupta v. Jupitor General Insurance Company, the Supreme Court has categorically held that technicality of law should not be permitted to stand in the way in directing just compensation to the parties.
27. As I said earlier, the legislature has not imposed any embargo on the Tribunals to grant higher compensation over and above the compensation claimed by the parties, and I am also supported by the following decisions of various High Courts in Sharifunnisa v. Basappa Ramachandra Date, 1986 ACJ 792 , Kela Devi v. Ram Chand, 1986 ACJ 818, G. Govindan v. C. David, 1990 ACJ 1039 and in Dayali Bai v. State of Rajasthan, 1993 ACJ 1211, in this regard.
28. Having regard to the above discussion and having regard to the view I have taken, I hold that the appellants claimants are entitled for the compensation as determined by me in the foregoing paras which is just and reasonable in terms of Section 110-B of the said Act. The claimants are also entitled to interest at 12% per annum from the date of filing of the Original Petition on the amount as indicated above.
29. As the fifth claimant has since died, the above compensation is apportioned among the remaining claimants on record in the following terms:
(i) The first claimant being the wife of the deceased Shankaraiah, is entitled to an amount of Rs. 41,000/-.
(ii) The second claimant being the minor daughter of the deceased, is entitled to an amount of Rs. 20,200/-.
(iii) The third claimant being the minor son of the deceased, is entitled to an amount of Rs. 20,200/-.
(iv) I he fourth claimant being tine minor daughter of the deceased, is entitled to an amount of Rs. 20,200/- and;
(v) The sixth claimant being the natural mother of the deceased is entitled to an amount of Rs. 10,000/-.
30. It is reiterated that apart from the above amount, the claimants are entitled to interest at the rate of 12% per annum on their respective shares from the date of filing of the Original Petition.
31. Since I have held that the third respondent-Insurance Company is liable to pay the entire compensation, the third respondent shall deposit the entire amount of compensation as directed by this Court. While doing so, any deposits already made which are calculated on the basis of interest at 9% per annum as directed by the Tribunal below shall be given credit to. However, the appellants in C.M.A. No. 534 of 1987 have to pay the difference of Court-fees in O.P. No. 166 of 1984, as per the revised compensation granted by this Court.
32. The Tribunal below on depositing the said amount by the third respondent-Insurance Company pursuant to this common judgment, shall keep the amounts according to the shares of the claimants 2, 3 and 4 (being the minor children) in fixed deposit in any Nationalised Bank. The first claimant being the natural mother is entitled to withdraw the interest accrued on the shares of claimants 2, 3 and 4 once in six months. The first claimant is also entitled to move the tribunal seeking release of any amount from the shares of the claimants 2, 3 and 4 for their benefit and the tribunal shall consider such application and direct the release of the amounts which it may think appropriate. The first claimant and sixth claimants are entitled to receive the entire amount which falls to their respective shares on deposit by the third respondent-Insurance Company without any hindrance.
33. In this view of the matter, C.M.A. No. 176/87 fails and is accordingly dismissed, but without costs.
34. Consequently, C.M.A. No. 534/87 filed by the claimants is allowed as indicated above. There shall be no order as to costs.