The New India Assurance Co. Ltd. vs N. Ramulu

Dr. B. Siva Sankara Rao, J.—The insurer-respondent No. 2 among the Respondents including the owner of the vehicle auto bearing No. AP 22 V 0843, maintained the appeal impugning the award of the Tribunal dated 26.06.2007 in O.P. No. 3048 of 2005 maintained by the appeal-1st respondent as sole claimant injured by filing the claim under Section 163-A and 166 of M.V. Act claiming Rs. 5,00,000/- as compensation for amputation of his right hand in the accident dated 16.09.2005, from the Tribunal awarded the compensation as prayed for with interest at 7% p.a. in fixing joint liability, on very maintainability of the claim with contentions in the grounds of the appeal as well as the oral submissions of the insurer that the award of the Tribunal supra is contrary to law, weight of evidence, probabilities of the case, unsustainable to avoid failure of justice, that the tribunal grossly erred in framing the issue against the tractor for rash and negligent driving whereas in deciding contra despite the factual matrix is very clear from the evidence also on record of the driver of the tractor is at fault if at all to make a claim against the tractor owner and insurer. However, by non-application of mind gravely erred in giving the finding against the auto owner and insurer, that the trial Court misread the evidence on record in this regard to said erroneous conclusion though it is the owner and insurer of the tractor if any that are liable to pay compensation and not the owner and insurer of the auto, that there is no document to establish the earnings of the injured ought to have been fixed at Rs. 15,000/- per annum, hence to set aside the award. In the course of oral hearing, the counsel for the insurer-appellant submitted further that the very claim under Section 166 of the Act is not maintainable and the pleadings are very clear in showing the income of the injured more than Rs. 40,000/- per annum and also in saying the tractor driver is at fault and also in placing reliance on F.I.R (Ex. A-1) in this regard and the Tribunal did not consider the very maintainability of the claim against the auto owner and the insurer when the fault is lies with driver of the tractor but for against the owner and insurer of that tractor who were not impleaded, hence to set aside the award and exonerate the insurer from liability.

Whereas it is the contention of the counsel for the claimant/1st respondent to the appeal that the award of the Tribunal is just and for this Court while sitting in appeal, there is nothing to interfere but for no cross-objections to enhance from the quantum is also low, that the Court cannot give importance to the technicalities and mere mention of Rs. 40,000/- per annum itself is not fatal for the Court to claim under Section 163-A of the Act that if any taken at Rs. 2,000/- per month, the earnings of the claimant injured and not Rs. 40,000/- per annum or above and the said wrong finding of the Tribunal to that extent, this Court while sitting in appeal without even cross-objections can be rectified including from the ground No. 8 of the grounds of appeal sought by the insurer to read with reference to the latest expression of the Apex Court in Kishan Gopal V. Lala of the income to be taken Rs. 30,000/- minimum instead of Rs. 15,000/- under Schedule of the M.V. Act read with Section 163-A of the Act hence to dismiss the appeal.

Heard Sri Ravi Shankar Jandhyala, the learned standing counsel for the appellant and Smt. A. Chayadevi, learned counsel for the respondent-claimant.

Now the points that arise for consideration in the appeal are:

Whether the award of the Tribunal is unsustainable under Section 166 of the M.V. Act and Section 163-A of the M.V. Act has no application and otherwise the quantum of compensation is excessive and if so with what observations?

To what result? POINT-1:"

Coming to the maintainability of the claim concerned, no doubt the claim having been filed under Section 163-A and 166 of the Act, there was no option exercised before the Tribunal before commencement of trial as held required to opt by the Apex Court in Hansrajbhai Sony V. Girishbhai Sony and in the absence of exercising option the expression of Division Bench of this Court in National Insurance Co. Ltd. V.J. Yellappa speaks that in the simultaneous petitions filed under two provisions to prosecute not sustainable and option is available to the claimant to opt one to proceed out of both, as the claim filed under Section 163-A of the Act, it is not an interim measure like under Section 140 of the Act, but for final proceeding and again proceeding or simultaneously proceeding under Section 166 of the Act thus does not arise. No doubt in this expression, it is clearly laid down that in the absence of exercising of option by the claimants before commencement of trial, the Tribunal has to take the same as a claim under Section 163-A of the Act which is the first provision in order of seriatim for the reason of Section 166 of the Act arises after Section 163-A of the Act in a separate chapter. In fact, the above expression of Apex Court in Hansrajbhai supra what all laid down is the claimants have to exercise the option before commencement of trial and cannot proceed under both and in the absence, the Tribunal can proceed under either of the provision.

However, subsequently a division bench of this Court in Bhupati Prameela V. Superintendent of Police, Vizianagaram observed that when it is the duty of the Court to do justice to the parties when technicalities coming in the way, much importance need not be given because ultimately justice has to be done and when two views are possible, the view in favour of the victim which relieve their distress and misery should be adopted in saying even the claim petition filed under Section 163-A and 166 of the Act, as section 166 of the Act since beneficial that can be considered.

Having regard to the same, the Tribunal ought to have been considered the claim under Section 163-A if at all to give a finding against the owner and insurer of the auto from the fact that the vehicle auto is in use and the injured inmate of the auto a passenger at the time of the accident, though the evidence on record establish the fault lies with the opposite vehicle that is the tractor and admittedly the driver or owner or insurer of the tractor not made parties much less the particulars of the tractor and its owner and insurer furnished. However, the Tribunal went wrong in its finding of the claim is under Section 166 of the M.V. Act when it wants to give relief to consider the claim against the owner and insurer of the auto, as otherwise if the claim to be considered under Section 166 of the Act from the entitlement of the defence of the respondents to raise the material and the defence show only the tractor driver at fault mainly with any contribution for the driver of the auto also. No doubt, the other rider in this case from the factual matrix is in the very claim petition income of the injured is shown above Rs. 40,000/- per annum. Once that is the case, it is Section 163-A has no application, but Section 166 of the Act in the claim relating to final disposal. Here the crux from perusal of Section 163-A of the Act read with the Schedule, in reference to it, clause-I in relation to fatal accidents, there was in relation to annual income the higher table ends with Rs. 40,000/- per annum. A close perusal of the table show the multiplier to be adopted is from the arriving of the income with reference to the age of the injured or deceased. In fact the first part deals with a victim to say only injured, when that is the case and as laid down by the Apex Court in Hansrajbhai supra in relation to the interpretation of the beneficial provisions the same must be in favour of the victim or the claimants or the family of the deceased met with accident, as the amount to be arrived is from the income of the injured or deceased on arrivement and not from the mere claim made. As such, even prima facie the claim for its numbering not maintainable in showing annual income above Rs. 40,000/- from the two provisions mentioned of Section 163-A and 166 of the Act in the claim petition and the claimant injured did not exercise the option to prefer one among the two before commencement of trial, even it is for the Court as per the Division Bench expression in Bhupati Prameela supra to do justice between the parties and in so any technicalities coming in the way cannot be given much importance as justice has to be done to the parties and as such where two views are possible, the view in favour of the victim which will relieve their distress and misery that should be adopted as per the provisions of the Act and even there from, it is the provision which is beneficial is Section 163-A and not Section 166 of the Act.

Now, the other aspect concerned from the rival contentions of the parties to the lis in the appeal is whether this Court while sitting in appeal impugning the award by the insurer, can take it under Section 163-A when tribunal proceed rightly or wrongly under Section 166 of the Act. In fact the law is fairly settled particularly from the expression of the Apex Court in Oriental Insurance Company Ltd. V.R. Swaminathan that for the appeal maintained under Section 173 of the Act, Order XLI C.P. C is applicable and though the same is not referred in the later expression of the Apex Court in Ranjan Prakash V. Divisional Manager it is categorically held also that for appeals under M.V. Act, Order XLI C.P. C is applicable and the appellate Court can exercise the power under Order XLI Rule 33 C.P. C to pass any order which ought to have been passed by the trial Court and to make such further order or orders as the case may require even if the respondent has not filed any appeal or cross-objections as the power is entrusted to the appellate Court to enable it to do complete justice between the parties. Order XLI Rule 33 C.P. C can however be pressed into service to make the award more effective or maintain the award on other grounds or make the other parties to lis to share the benefit or the liability but cannot be invoked to get larger or higher relief. As such, the law is very clear that this Court while sitting in appeal as appellate Court by invoking Order XLI Rule 33 C.P. C exercising the power even though the trial Court did not exercise as discussed supra, the trial Court has ought to have been taken the claim only under Section 163-A of the Act for the option even not exercised by the claimants before commencement of trial, for the trial Court got such power to take under appropriate provision even before disposal of the case while pronouncing the order and since failed to do so, this Court while sitting in appeal can even though the claimants did not file any cross-objection or independent appeal in this regard, against that finding, within the power of this Court in deciding the appeal, more particularly from the expression of the Division Bench in Bhupati Prameela supra with reference to the expression in Swami Nathan and Ranjan Prakash supra.

From this, now coming to the quantum awarded by the Tribunal of Rs. 5,00,000/- correct or not concerned, Pratap Narain Singh Deo V. Shrinivas Sabata in relation to the functional disability when compared to actual factual disability held that when it effects the very avocation of the injured of permanent disability totally in its functioning irrespective of the physical disability is not 100%, the functional disability in relation to loss of earnings can be taken at 100%. There also the injured is carpenter who lost his left hand, there was amputation of left hand above elbow and the Apex Court observed that with single hand the carpenter cannot work, thereby the functional disability is 100%. When such is the case, from the injured in this case aged about 26 years, the multiplier that is applicable as per Section 163-A is 18 and the earnings of the injured taken by the Tribunal at Rs. 2,000/- per month though as per Schedule-II of Section 163-A of the Act. In the absence of proof of earnings, the amount that could be taken as 15,000/- per annum but for the latest expression in this regard in Kishan Gopal supra of the same is to be taken at Rs. 30,000/- per annum even then what the tribunal taken at Rs. 24,000/- per annum, it comes to Rs. 4,08,000/- as per the Schedule. Apart from it, the trial Court rightly awarded a sum of Rs. 25,000/- towards loss of future amenities, Rs. 40,000/- towards pain and sufferance and also Rs. 2,662/- towards medical bills in total the appellant is entitled to Rs. 4,75,662/-. Thus, for this Court while sitting in appeal so far as the quantum concerned as held by the Apex Court in Ranjan Prakash supra that the claimants in the appeal filed by the insurer can attack the finding of the Tribunal and maintain the quantum on one ground or other though not entitled to higher relief, from that by setting aside the above finding of the Tribunal and by taking the claim under Section 163-A of the Act by this Court while sitting in appeal in the factual scenario from which as per the Apex Court expression in Hansrajbhai if the vehicle is in use that is enough and the claimants need not plead or prove negligence on the opposite vehicle and even the evidence on record establishes negligence or contribution of the opposite vehicle that not a bar to the claimants entitlement against the auto owner and insurer but for giving liberty to the insurer to proceed against the said tractor driver, owner and insurer by execution of the award before the learned Chairman of the Tribunal. In such an event of filing of an application for execution by the present insurer to fix the liability on the tractor driver, owner and insurer also to apportion for reimbursement. Accordingly, the point No. 1 is answered.

POINT No. 2:

In the result, the appeal is allowed in part with the above observations by reducing the compensation from Rs. 5,00,000/- to Rs. 4,75,662/- and while modifying the rate of interest from 7% p.a. to 7.5% p.a. from the date of claim petition till the date of realization with joint and several liability. Rest of award/decree terms of the Tribunal holds good. There is no order as to costs in the appeal.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.