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Judgment
G.D. Sharma, J.—Through the medium of this appeal, award dated March 1, 1988 passed by the Motor Accident Claims Tribunal,
Srinagar (for short Tribunal) has been challenged. The learned Presiding Officer of the Tribunal had assessed the award in the amount of Rs.
1,87,800/-, but awarded the compensation to the tune of Rs. One lakh as this much amount had been claimed only in the claim petition. Interest at
the rate of 10% per annum from the date of filing of the claim petition till the final realisation of the claim as well as costs of litigation in the sum of
Rs. One thousand were also made payable.
The deceased Paramjeet Singh was a Gazetted Officer working as Agriculture Research Assistant. On 8-11 -1976. he boarded the vehicle of
appellant No. 1 bearing No. JKB-5545 (3 Tonne TMB) which started its journey from village Trehgam to Village Kralpora (District Kupwara).
Appellant No.2 was driving the said vehicle and when he was negotiating the bridge on a Nallah, he hit the fencing of the bridge and lost the
control of the steering with the result the vehicle fell down into the Nallah. It is alleged that the accident occurred due to the rash and negligent
driving of the vehicle by appellant No.2. Paramjeet Singh succumbed to the injuries sustained by him due to this accident. He died in the Army
Hospital at Pattan. Appellant No.3 was working as a Conductor in the above said vehicle.
The deceased Paramjeet Singh was 34 years old and he left behind a widow of 31 years (respondent No. 1) and two minor sons and two
minor daughters (respondents 2 to 5 herein). On 19-4-1977, respondents 1 to 5 filed the claim petition in the Tribunal, wherein compensation in
the sum of Rs. one lakh was claimed alleging therein that at the time of accident the deceased was of the age of 34 years and was drawing Rs.
745/- as his monthly salary.
The learned Presiding Officer of the Tribunal had framed the following five issues :--
Was the accident which resulted in the death of Pritam Singh husband of applicant No. 1 and father of applicants 2 to 5 caused due to rash and
negligent driving of Kala Ram by vehicle No.5545 JKB ? OPP
In case issue No. 1 is proved was not the driver Kala Ram actually driving the vehicle? OP Non-applicants.
In case issue No. 1 is proved does the Union of India stands indemnified vis a vis claimants ? OP non-applicants.
In case issue No. 1 is proved and Issue No.3 is disproved to how much compensation the applicant is entitled to and from whom and in what
proportion ? OPP
Relief.
After appraising the evidence led by the parties, issue No. 1 was decided in favour of the respondents herein. Issue No.2 was decided against the
appellants. Issue No.3 was decided against appellant No. 1 and issues 4 and 5 were decided in favour of the respondents herein and they were
awarded an amount of Rs. 1,87,800/- as compensation alongwith interest and costs, as stated above.
The above stated awand has been challenged by the appellants on the following grounds :--
i) The deceased had voluntarily, executed an indemnity bond in favour of appellant No. 1, whereby he had bound himself not to put any claim
against any compensation, but the Presiding Officer of the Tribunal has
iii) The learned Presiding Officer of the Tribunal has wrongly awarded the interest at the rate of 10% on the awarded amount from the date of
presenting the claim petition till its realisation.
Heard the arguments.
The learned counsel appearing for the appellants has contended that the accident occurred due to some mechanical fault in the vehicle and not
by driving it in a rash and negligent manner. This argument is an argument of after-thought advanced for the first time on the basis of no evidence
and thus cannot be taken note of.
The other argument advanced by the counsel is that in the presence of indemnity bond, executed by the deceased, respondents 1 to 5 are
debarred to claim compensation.
In rebuttal, it has been contended by the opposing counsel that the learned Presiding Officer of the Tribunal has rightly appreciated the
evidentiary value of the indemnity bond in question which was found as a piece of paper not admissible in evidence. It is also contended that it was
not an indemnity bond, but an Identity-Form, as on its head the word is ""Form of Identity"". This Identity Form was required because the area
where the vehicle was being plied was a border area and there was an instruction to the Security Forces to give lift to the civilians after establishing
their identity as bona fide peacaful citizens of this part of the State.
From the perusal of the contents of the alleged ""Idemnity bond"", it is revealed that on its heading it is termed as ""Form of Identity"". This from
was signed by appellant No.2 (the driver of the off ending vehicle) who has not shown how he was authorised to sign it on behalf of the President
of India. Moreover, its execution and contents were not proved by leading any evidence, it is even not established whether the signatures of the
deceased were genuine or forged. Claim of compensation arising due to the rash and negligent use of a Motor vehicle has been recognised as a
statutory right under the Motor Vehicle Act and it cannot obliterated by any contract or agreement on this view of the matter, there is found no
legal force in the argument of the learned counsel.
It has also been urged by the learned counsel for the appellants that the offending vehicle was a Departmental vehicle and not a Public Service
vehicle, so no amount of compensation can be awarded for a passenger who had travelled in it. The learned Presiding Officer of the Tribunal has
based his findings on the basis of foreign law, which has no relevancy to the facts of the present case.
In reply to this argument, it is contended by the opposing counsel that plying of the offending vehicle by driver Kala Ram could not be said as a
sovereign act because this act could be done by anybody. When he had given a lift in his vehicle to the deceased, he was duty bound not to ply it
rashly or negligently. In support of this contention, he has cited the case of Smt. Iqbal Kaur Vs. Chief of Army Staff, . In this case, the Division
Bench of Allahabad High Court has held that where an accident occurs due to negligent driving by a driver of Government truck when he was
going with the truck for imparting training in Motor driving to new M. T. recruits, this act would not constitute an act in exercise of sovereign power
and the driver and the Union of India were held liable for damages. In the case of Pushpa Thakur v. Union of India 1984 ACJ 559: AIR 1986 SC
1197 the apex Court has held that a Military Truck when was driven negligently while carrying back rations and some sepoys to its permanent
locations could not be absolved of the liability to pay damages to an injured on the priciple of soverign immunity.
Lastly, it has been contended by the learned counsel for the appellants that the amount of compensation is exorbitant as a multiplier of 26 was
adopted on the higher side. Controverting this argument, it is urged on behalf of the respondents that the compensation as awarded by the Tribunal
is not just and it could not be circumscribed to a limit of Rs. One lakh. It is why the respondents have filed cross objections wherein they claimed
the compensation to the extent of Rs. 1,87,800/- as was assessed by the Tribunal.
It is the statutory duty of the Tribunal to assess Just compensation and the respondents (claimants) who had lost their bread-winner at the
prime of his youth and career should not be allowed to lead a life of destitutes and despondency. The widow of the deceased at the time of
accident was 31 years old and claimant Vikramjeet Singh of the age of seven years. Claimant Manjeet Kaur of the age of five years. Kuljeet Kaur
of three years and Saljeet Singh a baby of 15 days. The deceased was a promising officer and had bright future in his service career and his pay,
which was at the time of his death at Rs. 745/- pm, by now would have increased manifold and claimants would have consistantly received their
share of dependency at higher rates. In support of this contention, the learned counsel has cited the case of Municipal Corporation of Greater,
Bombay v. Kisan Ganga Ram Hire 1987 ACJ 311 (Bombay)) and Oriential Fire and General Insurance Company v. Mast Ram 1989 ACJ 1120
(Him Pra). The ratio decidendi of both the cases is that the Tribunal has the jurisdiction to award compensation in excess of what claimed in the
application for compensation. 1989 ACJ 1180 (supra) is asingle Judge ruling, wherein the learned Judge has confirmed the award of the MACT to
the extent of Rs. 48,000/-when the claimant had claimed the award upto a limit of Rs. 40,000/- only. 1987 ACJ 311 (supra) is a Division Bench
ruling, wherein it is held that there are no fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the
application. In para 11 of the judgment, the guide lines have been laid as to now the Tribunal has to act where it is found that the compensation has
to exceed the amount claimed. Para 11 is reproduced as under :--""The only question that requires to be considered is of the procedure that should
be followed by the Tribunal before awarding higher compensation. We are of the view that in all such cases a proper notice or intimation should be
given to the opposite party so that the opposite party has an opportunity to contest the claim even by leading evidence, if necessary. Ordinarily the
Tribunal should take a written application from the claimant. This application need not necessarily be in the form of an amendment to the original
application. Since as stated earlier the amount of compensation claimed or-the specific heading under which it is claimed is no more than in the
nature of the particulars of the claim, a variation in the same does not change the cause of action, which is the accident. It only Furnishes additional
material for assessing the claim, The Additional claim should as far as possible be taken in writing which should also Indicate the reasons why the
additional claim is made. Where it is not possible to take the additional claim in writing the reasons for the same should be recorded. A copy of
such written application should be served on the opposite party to give it an adequate notice of the excess amount claimed and to contest it, if it so
desires. Where the application is not taken in writing, the Tribunal should make a note of it in its diary and give notice of the claim similarly to the
other side.
In the above said authority, the procedure laid down was made applicable after that judgment was given and the decisions of the Tribunal given
earlier were held not invalid only on account of the fact that such procedure was not followed.
Applying the above said ratio of the judgments to the facts of the present case, what has to be observed as safe guard, is that the claim put
forth in the original claim petition should not be abused. On the basis of the evidence, which was led in presence of learned counsel of the
appellants, the Tribunal had assessed the compensation at an amount of Rs. 1,87,800/-, but it found lacking in its powers to grant that amount
simply for the reason that the claimants had claimed only a sum of Rs. one lakh, it is noted here that only one claimant i.e. Smt. Dilair Kour who
was the widow of the deceased was major and she being a house wife had no wordly wisdom and exposure to set up just claim in the memo of
claim petition which might have been drafted at the advice of the then counsel engaged by her as well as suggestions made by the relatives and
wishers. Besides, her own interests, the interests of the minor children were also involved in the claim of compensation. The question which arises
for determination is, whether the amount so assessed by the Tribunal is exorbitant or reasonable ? The learned Presiding Officer of the Tribunal has
not taken into account the future hike in the pay of the deceased, but reckoned his monthly income at Rs.745/- and after allowing a deduction of
Rs.145/- PM for his personal expenses, determined Rs.600/- PM as the maintenance allowance of the claimants. He had adopted a multiplier of
26 years and by multiplying the multiplicand of 7200 with 26 years assessed an amount of Rs. 1,72,800/-. The loss of consortium was fixed at Rs.
10, 000/- and loss of love and affection at Rs.5000/-. In the amended Motor Vehicles Act, there is a second Schedule prescribed u/s 163-A,
which is a schedule for compensation for third party fatal accident injury cases claims. In this schedule the multiplier prescribed where the age of
the victim is about 30 years but not exceeding 35 years is 17. The method adopted by the Tribunal is wrong in respect of adopting the multiplier
and the multiplicand. In this case, the maximum multiplier should have been of 17. But at the same time, the multiplicand should have been
determined keeping in view the future rise in the earning of the deceased. In the case of General Manager, Kerala State Road Transport
Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, the deceased was of the age of 38 years and his monthly salary was Rs.1032/-.
The MACT had determined the claim of Rs.58,760/- to the respondents and on appeal, the High Court had enhanced the compensation to
Rs.2,64,000/- and the interest was allowed at the rate of 12% per annum from the date of the petition till payment. In the case of Smt. Sarla Dixit
and another Vs. Balwant Yadav and others, , the deceased was Major in the Army and his age was 27 years. The proper multiplier in that case
was 15. The Tribunal should have also taken in to consideration the future prospects of advancement in life and career in terms of money to
augment the multiplicand, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future need
not necessarily be gainful. The deceased in this case had a stable Government job. it will not be inapprobate in taking a liberal view of the
prospects of the future cross income and the loss of dependency. In General Manager, Kerala State Road Transport Corporation, Trivandrum Vs.
Mrs. Susamma Thomas and others, : General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and
others, when the income of the deceased was Rs.1032/- PM then having regard to the prospects of advancement in the future career his gross
income was reckoned Rs.2000/- PM. From this a deduction was made for his personal living expenses and the dependency amount was reckoned
to 1400/- PM. Thus initial loss was reckoned to Rs. 17000/- and this dependency was capitalised on a multiplier of 12 and compensation was
assessed at Rs.2,03,000/- (two lakhs and three thousand), which was added by a consortium of a sum of Rs. 15,000/- for loss of consortium and
loss of the estate.
Applying the yard-stick of these cases to the facts and circumstances of the present case, the initial dependency of the claimants comes to
about Rs, 12000/- annually and by adopting a multiplier of 17, the amount comes to Rs.2,04,000/-. On this account the conventional loss of
consortium and the estate could also be given upto a sum of Rs. 15,000/- alongwith interest at the rate of 12% per annum. Viewing the case in this
perspective, it is found that the amount of compensation assessed by the Tribunal in the sum of Rs. One lakh, eighty seven thousand and eight
hundred alongwith interest at the rate of 10% per annum is not exorbitant. There is no force in the argument that interest is not payable.
In the result, there is found force in the cross objections, which are accepted Accordingly, the appeal is found meritless which is dismissed with
costs of Rs. two thousand and the award of the Tribunal shall stand modified in terms of this order.