THE HONOURABLE SRI JUSTICE N.V. RAMANA and THE HONOURABLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. Nos. 2868, 3123 and 3172 of 2005 and 923 and 924 of 2006 COMMON JUDGMENT: (Per Hon’ble Sri Justice Noushad Ali) These five appeals arise out of the common judgment dated 04.04.2005 passed in M.V.O.P. Nos. 1090 of 2002 and 306 of 2003 by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Vijayawada. As all the appeals arise out of the same judgment, they are heard together and are being disposed of by this common judgment. For convenience sake, the parties shall be referred to by their status in the M.V.O.Ps. before the Tribunal. 2. The deceased R. Haragopal was an M.L.A. elected from Gudivada Assembly Constituency. On 13.10.1999, he along with his wife (claimant No.1) and others were traveling in an Ambassador car bearing No.A-11-C-1, from Vijayawada to Gudivada. When the car reached Nandamuru Village, it dashed against the Tractor and Trailer bearing No. AP 16 T-8345 and 8346, parked on the left side of the road, loaded with wooden logs, without indicating the warning lights. The Ambassador Car belonged to respondent No.1 and was insured with respondent No.2-The New India Assurance Company Limited, while the Tractor and Trailer belonged to respondent No.3 and was insured with respondent No.4-The Oriental Insurance Company Limited. In the accident, the deceased succumbed to his injuries, while claimant No.1, who is his wife, suffered multiple grievous injuries. The police concerned registered cases against the drivers of both the Ambassador Car and Tractor and Trailer. 3. Hence, the wife of the deceased, his two major daughters and son, filed M.V.O.P. No. 1090 of 2002 claiming compensation of Rs. 2,95,00,000/- for the death of the deceased in the motor accident, stating that the deceased at the time of his death was aged 45 years, was an M.L.A., and was doing business and agriculture, and that his annual income was Rs.19,78,520/-. While claimant No.1 filed M.V.O.P. No.306 of 2003 claiming compensation of Rs. 49,63,200/- for the multiple injuries, namely injuries to the face, loss of smelling capacity, disability in closing and opening the left eyelid and continuous discharge of water from the left eye. 4. Respondent No.1, namely owner of the Ambassador Car filed his counter. Respondent No.2, namely the Insurance Company, with which the Ambassador Car was insured, filed counter. Respondent No.3, namely the owner of the Tractor and Trailer remained ex parte. Respondent No.4, namely the Insurance Company, with which the Tractor and Trailer was insured, also filed counter. 5. In the counters filed in both the M.V.O.Ps, respondent Nos. 1, 2 and 4 denied their liability to pay the compensation. 6. Based on the pleadings of the respective parties, the Tribunal framed the following issues: In M.V.O.P.No.1090 of 2002: 1) Whether the deceased died in a motor accident due to rash and negligent driving of the Car by driver of R1 only or from any contributory negligence of the driver of Tractor and Trailor of R3? 2) What is the correct age and income of the deceased as on the date of accident? 3) Whether the petitioners are entitled for compensation as prayed for? If so, from whom and for what extent? 4) What relief? In M.V.O.P.No.306 of 2003: 1) Whether the petitioner sustained injuries in a motor accident due to rash and negligent driving of the Car by driver of R1 only or from any contributory negligence of the driver of the Tractor and Trailer of R3? 2) Whether the petitioner is entitled for compensation as prayed for? If so, from whom and for what extent? 3) What relief? 7. At the request of the parties, the Tribunal tried both the M.V.O.Ps. together. The evidence recorded in M.V.O.P. No. 1090 of 2002 was adopted in the other M.V.O.P. also. 8. On behalf of the claimants, P.Ws.1 to 5 were examined and Exs. A1 to A26 and 15-A and 22-A were marked. On behalf of respondent No.2, R.W.1 was examined and Ex.B1 was marked and on behalf of respondent No.4, R.W.2 was examined and Exs. B2 to B7 were marked. 9. The Tribunal, upon appreciating the evidence placed on record, and having dealt with the matter in detail, held that the accident had taken place due to the contributory negligence on the part of the drivers of both the Ambassador Car and the Tractor and Trailer, and fixed the contributory negligence at 80% and 20% respectively. 10. For arriving at the quantum of compensation payable to the claimants in M.V.O.P. No.1090 of 2002, the Tribunal has taken the age of the deceased as 46 years as on the date of his death and, based on the documentary evidence, fixed the salary of the deceased as M.L.A. at Rs.10,000/- per month and further fixed a sum of Rs.35,000/- per month towards loss of supervision of agricultural operations, businesses and other properties of his family, and accordingly fixed the total income of the deceased at Rs. 45,000/- per month. After deducting 1/3rd from the said amount, towards his personal expenses, arrived the net loss of his contribution to the family at Rs. 30,000/- per month i.e. Rs. 3,60,000/- per year. By applying the multiplier ‘14’ as applicable to the age of the deceased, worked out the net loss of income at Rs. 50,40,000/. Apart from that, the Tribunal awarded Rs. 15,000/- towards loss of consortium to the claimant No.1 and Rs. 15,000/- towards loss of estate to the claimants. Thus, in all, the Tribunal awarded a total sum of Rs. 50,70,000/- with interest @ 9% from the date of petition till the date of realization and proportionate costs to the claimants in M.V.O.P. No.1090 of 2002, and fixed the liability of paying the same on respondents 1 and 2 at 80% and on respondents 3 and 4 at 20%. 11. So far as the claim of claimant No.1 in M.V.O.P. No. 306 of 2003 is concerned, the Tribunal, taking into consideration the oral and documentary evidence with regard to the injuries sustained by her, held that claimant No.1 sustained three grievous injuries and considering the nature of injuries sustained by her and treatment she has taken, the Tribunal awarded a sum of Rs. 2,50,000/- towards pain and suffering, medical expenses etc., and fixed the liability of paying the same on respondents 1 and 2 at 80% and on respondents 3 and 4 at 20%. 12. Accordingly, the Tribunal passed common judgment dated 04.04.2005 in both the M.V.O.Ps. 13. Seeking enhancement of compensation awarded in M.V.O.P. No. 1090 of 2002, the claimants filed C.M.A. No. 923 of 2006. Likewise, claimant No.1 seeking enhancement of compensation awarded in M.V.O.P. No. 306 of 2003 filed C.M.A. No. 924 of 2006. Respondent No.2, New India Assurance Company Limited, filed CM.A. No. 2868 of 2005 questioning the award in M.V.O.P. No. 1090 of 2002. Respondent No.4, namely The Oriental Insurance Company Limited, filed C.M.A. Nos. 3123 and 3172 of 2005 questioning the awards in M.V.O.P. Nos. 1090 of 2002 and 306 of 2003. 14. Insofar as subject-matter of claim in C.M.A. No. 923 of 2006, the learned counsel for the claimants submitted that the deceased was a young and dynamic person. He was actively involved in social and public life. He was elected as M.L.A. of Gudivada Assembly Constituency, just six days prior to his death in the motor accident. He was having a bright future in politics. Apart from his involvement in public life, and managing his agricultural and other landed properties, was also partner in several businesses. The Tribunal, while estimating the income of the deceased, ought to have taken the income, as reflected in the Income Tax Returns filed by the deceased for the year 1999-2000, which was marked as Ex.A5 as also the salary particulars, as reflected in Ex. P8, as per which the salary of the deceased, would approximately work out to Rs. 22,000/- per month. The Tribunal also ought to have taken into consideration the fact that the salaries of the M.L.As. were doubled in the next year, while estimating the income of the deceased. He further submitted that since the deceased was only 45 years, and given his activities, the Tribunal ought to have taken his future prospects while estimating his monthly income. He further submitted that the Tribunal also ought to have taken into consideration the fact that after the death of the deceased, there being no one to manage the businesses, his family members either withdrew from the partnerships or closed down the businesses run by the deceased, and this has resulted in loss of income to the family of the deceased, as is evident from the Income Tax Returns filed by the family members of the deceased for the years subsequent to his death. He submitted that since the family of the deceased, apart from the deceased comprised four other members, the Tribunal ought to have deducted 1/4th of the monthly income towards personal expenses of the deceased, and it committed an error in deducting only 1/3rd of the salary towards his personal expenses, and in support of this argument, he placed reliance on the judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation[1]. 15. So far as subject-matter of claim in C.M.A. No. 924 of 2006 is concerned, the learned counsel for the claimant submitted that the claimant suffered multiple injuries in the accident. She was admitted as an inpatient in government and private hospitals for treatment. Despite spending huge amounts towards medical tests and medicines as evident from the medical evidence, including medical bills, the claimant still suffers from smelling disability and non-movement of the left eyelid, resulting in continuous discharge of water therefrom. Given the medical evidence placed by the claimant, as supported by the medical bills, the Tribunal ought to have allowed the claim of the claimant as prayed for, but it committed an error in awarding far less amount than what has been claimed. Hence, he prayed that the claim of the claimant, be allowed in toto. 16. Sri K. Subba Rao, learned Standing Counsel appearing for the New India Assurance Company Limited, the appellant in C.M.A.No.2868 of 2005, submitted that the Company has not obtained permission as required under Section 170 of the Motor Vehicles Act, to contest the award. However, for the purpose of rebutting the claim of the appellants in C.M.A. Nos. 923 and 924 of 2006, for enhanced compensation, learned Standing Counsel for the New India Assurance Company Limited, made the following submissions: 17. That the income tax returns filed after the death of the deceased cannot be taken into consideration and in support of this submission, he relied on the judgment of the High Court of Madhya Pradesh in Sutinder Pal Singh Arora v. Ashok Kumar Jain[2] and the judgment of Supreme Court in V. Subbulakshmi v. S. Lakshmi[3]. That from the gross income of the deceased, the amount of income tax as was applicable at relevant time should be deducted, so as to compute the loss of income of the deceased and in support of this submission, he relied on the judgments of this Court in A. Vijaya v. Vegurla Rajaiah[4] and Orinetla Insurance Co. Ltd. v. Ram Prasad Varma and others[5] . Relying on the judgment of the Supreme Court in Rani Gupta v. United India Insurance Co. Ltd.[6], the Standing Counsel submitted that since the deceased was running family business, what was the actual loss of dependency to the family from his contribution to run the business has to be taken into consideration. He also tried to justify the contributory negligence on the part of respondent No.3 in causing the accident, by stationing the tractor by the side of the road without putting the warning lights on, and relied on the judgment of the High Court of Delhi in New India Assurance Co. Ltd. v. Maya Wati[7]. 18. Learned Standing Counsel for the Oriental Insurance Company Limited, appellant in C.M.A. Nos. 3123 and 3172 of 2005, advanced arguments questioning the fixing of 20% liability on the Oriental Insurance Company Limited for paying the compensation awarded under the impugned order, for the contributory negligence on the part of the driver of the stationed tractor. He submitted that the accident has occurred only due to the negligence on the part of the driver of the car and that there is no independent evidence on record to prove the negligence on the part of the driver of the stationed tractor and the Tribunal is not justified in fastening 20% liability on respondent No.4 to indemnify respondent No.3, to pay the compensation awarded to the claimants and injured. 19. Heard the learned counsel for the claimants and injured, the learned Standing Counsel for the New India Assurance Company Limited and the learned Standing Counsel for the Oriental Insurance Company Limited, and perused the impugned award and other material made available on record. 20. In the light of the arguments advanced and in the light of the nature of appeals filed by the respective parties questioning the judgment and award of the Tribunal, the following questions arise for consideration in this batch of five appeals: 1) Whether the Tribunal was justified in holding that the driver of the Tractor, which is insured with respondent No.4, also contributed to the accident and thereby fastening 20% liability on respondent No.4 for payment of compensation? 2) Whether the appeal in C.M.A.No.2868 of 2005 filed by the New India Assurance Company Limited, is not maintainable, due to failure of the insurer to obtain permission as required under Section 170 of the Act, to contest the award, questioning the quantum of compensation? 3) Whether the compensation awarded by the Tribunal for the death of the deceased is just and reasonable compensation or is on the higher or lower side or requires reduction or enhancement, as contended by the insurance companies and the claimants? 4) Whether the compensation awarded by the Tribunal for the injuries suffered by appellant No.1 is on the higher side or lower side or required reduction or enhancement, as contended by the insurance companies and appellant No.1? In re question No.1: 21. The contention of the learned Standing Counsel for Oriental Insurance Company Limited that the Tribunal committed an error in holding that respondent No.3- driver of the tractor, which is insured with respondent No.4, is also responsible for the accident, and thereby fastening liability at 20% on respondent No.4 to indemnify respondent No.3 for his liability to pay compensation towards contributory negligence, is bad, cannot be accepted. The accident admittedly took place at about 23.30 hours on the night of 13.10.1999, when the car in which the claimants and the deceased were traveling hit the tractor parked on the side of the road. It is not known whether the place where the tractor was parked on the road, is illuminated with street lights. Whether the road is illuminated with streetlights or not, when vehicles are parked on the flanks of the road, minimum care that is required to be taken by the driver of the vehicles, is to ensure that warning lights are switched on, so as to indicate that the vehicle is parked. Admittedly, the driver of the tractor parked the tractor on the side of the road, without switching on the warning lights. Every one has a right to use public road, and when he uses the road, he is required to take minimum precautions, so that in the use of the road by him, no inconvenience is caused to others. Respondent No.3, who was using the road to park his vehicle, had the duty to the take minimum care in the parking. Section 122 of the Motor Vehicles Act, 1988, prohibits the driver of a vehicle from parking a vehicle in a manner that is likely to cause danger or obstruction or inconvenience to the users of the road or to passengers, and while Section 126 thereof provides that a vehicle cannot be allowed to remain stationed in a public place unless precautionary measures are taken. The Delhi High Court in Maya Wati’s case (7 supra), considered the question ‘whether the bus driver was negligent in leaving the bus without any indication to warn the other road users’ and held as follows: “As far as the legal proposition is concerned there is no dispute that under Section 81 of the Motor Vehicles Act, 1939, no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such position or in such a condition or in such circumstances as to cause or to be likely to cause danger, obstruction or undue inconvenience to other users of the road. Parking of the bus on road at Sunder Nagar Sweet Corner without its parking lights on and without any indication that the said bus was lying parked there is an act of negligence on his part. He should have taken all the care and precautions to indicate for the benefit of the users of the road that the said bus was lying parked there. The Motor Accidents Claims Tribunal has correctly held that the driver of the bus was negligent who had parked the bus on the road without giving any indication that the bus was lying parked there. He has been correctly held liable for rash and negligent act. I find no ground to interfere in the judicious finding of the Tribunal on this point.” 22. In the case on hand, the driver of the tractor, as noted above, did not take any such care while parking the tractor, and was negligent in parking the vehicle and, therefore, the Tribunal was justified in attributing 20% contributory negligence to the driver of the tractor. 23. Though the learned Standing Counsel contends that the driver of the tractor was merely imposed a fine while the driver of the car was convicted, and as such fastening 20% liability on respondent No.4 to indemnify respondent No.3, is bad, the fact remains, merely because a small amount of fine was imposed on the tractor of the vehicle, it cannot be said that he has not at all contributed or is responsible to the causing of the accident. Imposition of fine and award of compensation, are two different aspects, they are independent of each other, and imposition of fine on the driver of a vehicle in a criminal case, does not absolve him from his liability to pay compensation, which is determined under the Motor Vehicles Act. In fact, fastening liability on the driver to pay compensation under the Motor Vehicles Act, does not depend upon whether a driver of the vehicle is guilty of commission of the accident or not, and whether he is convicted or acquitted in a criminal case for causing the accident, in relation to which claim for compensation is made, is immaterial. Since it is a case of composite negligence, respondent No.4, with whom respondent No.3 indemnified his vehicle, is also responsible to pay compensation towards contributory negligence. In that view of the matter, we are of the considered opinion that in the facts and circumstances of the case, the Tribunal has rightly fastened 20% liability on respondent No.4 to indemnify respondent No.3 to pay the compensation to the claimants towards contributory negligence, and no interference is called for therewith. In re question No.2: 24. As admitted to by the learned Standing Counsel appearing for the New India Assurance Company Limited, the appellant in C.M.A.No.2868 of 2005, the Company has not obtained permission as required under Section 170 of the Motor Vehicles Act, to contest the award. It is well settled that where an appeal was filed by Insurance Company against award, failure of the insurer to obtain permission for impleading under Section 170 of the Act will make the appeal incompetent. In this context, the Supreme Court, in National Insurance Company Limited v. Nicolletta Rohtagi[8], has categorically held that the insurer is not entitled to file appeal questioning the award of Tribunal granting compensation and the findings as regards negligence or contributory negligence of the offending vehicles, if the insurer has not obtained any permission as required under Section 170 of the Act, to contest the award on any other grounds than the grounds specified under Section 149 (2) of the Act. Hence, the appeal in C.M.A. No.2868 of 2005 is not maintainable and is liable to be dismissed to the extent of quantum of compensation awarded, but they are entitled to question the award on the other grounds. In re question No.3: 25. The provisions of the Motor Vehicles Act, 1988 in relation to payment of compensation to victims of/dependants of the deceased, who die in a motor accident, is a beneficial piece of legislation. The principle underlying the Act, is payment of just compensation, in that the compensation to be awarded by the Tribunal, should neither be a windfall nor a gratis. The compensation to be arrived at by the Tribunal as far as possible, must be commensurate with the damage caused to or loss suffered by the family, due to sudden demise of their family member. The basis for payment of just compensation, is loss of pecuniary benefits to the dependants of the deceased, which includes pecuniary loss, expenses, loss to the estate, average life expectancy of the citizens of the country, and future loss of income on account of the death of the deceased, etc. 26. The life of a human being is precious. How long a human being will live had he not been killed in a motor accident, cannot be specified with precision, unless at the time of death in the accident, he was very old or was terminally ill or was suffering from a fatal disease, which would shorten his normal life. Therefore, there can be no exact formula to measure the value of a human being and measurement of damage cannot be arrived at with precise mathematical calculation, but the amount recoverable would depend upon the facts and circumstances of each case. The amount to be paid to the dependants of the deceased should not be a source of profit nor can it be punitive against whom the claim is decreed. 27. What factors have to be taken into account while assessing the damages to compensate the dependants of the deceased who died in a motor accident was considered by the apex Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas[9], and it was held as follows: The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased many not have lived or the dependants many not live upto the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year’s purchase. Much of the calculation necessarily remains in the realm of hypothesis “and in that region arithmetic is a good servant but a bad master” since there are so often many imponderables. In every case “it is the overall picture that matters” and the Court must try to assess