FA/2822/2008 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2822 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHARDABEN SHAMBHURAM DEVMURARI - Appellant(s) Versus MOHANBHAI KESHAVDAS KELAIYA & 1 - Defendant(s) ========================================================= Appearance : MR.HIREN M MODI for Appellant(s) : 1, NOTICE SERVED for Defendant(s) : 1, MR HASMUKH THAKKER for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 28/08/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Hiren Modi for the appellants original claimants and learned Advocate Mr. HM Thakkar for Respondent No.2 Insurance Company. 2. This appeal is filed by the appellant Shardaben Shambhuram Devmurari, original claimant for enhancement of award while challenging the award passed by the Motor Accident Claims Tribunal Amreli in MACP NO. 133/2004 dated 4th March, 2008 wherein the claims tribunal has awarded FA/2822/2008 2/22 JUDGMENT compensation of Rs.3,00,000.00 to the claimants with interest at the rate of 9 per cent per annum. 3. Learned Advocate Mr. Modi for the appellant submitted that the claim petition was filed by claimant for Rs.3,00,000.00 under different head but claims tribunal has calculated amount of compensation which comes to Rs.3,63,000.00 but that was not awarded because the claimant has claimed Rs.3,00,000.00 only, therefore, same amount was awarded though claims tribunal calculated amount of Rs.3,63,000.00 for the claimants which amounts to basic error on the part of claims tribunal as there is no restriction in the Motor Vehicles Act, 1988 to award compensation more than that claimed by the claimant. In support of his contention, he placed reliance on the decision of this Court reported in 2005 (3) GLH page 651 in case of Manohar Madhukar Tambe Versus Bhagubhai Liladhar & Ors. and submitted that claims tribunal has committed gross error in not awarding the total amount of Rs.3,63,000.00 only on the ground that claimant has made claim of Rs.3,00,000/- only. 4. On the other hand, learned Advocate Mr. HM Thakkar for respondent insurance company has vehemently opposed the appeal filed by claimant and submitted that as claim was not enhanced by separate application before claims tribunal by claimant under provisions of Order 6, Rule 17, the claims tribunal is justified in not awarding amount as not claimed by the claimant. He relied upon rule 229 of the Gujarat Motor Vehicles Rules and submitted that the Code of Civil Procedure is applicable to the proceedings before claims tribunal. He relied upon decision of apex court in case of Nagappa v. Gurdayal Singh and Others [2002 AIR SCW 5348], para 5,11, 16 and 21 in particular and submitted that in case of Nagappa also, claim petition was amended by claimant and on that basis, case was considered and accordingly case was examined by apex court and, therefore, decision relied upon by claimant is not applicable to the facts of this case because in this case, claim was not enhanced by claimant while giving application FA/2822/2008 3/22 JUDGMENT during the pendency of claim petition, and, therefore, according to him, claims tribunal has rightly restricted the award and in doing so, no error has been committed by claims tribunal and, therefore, no interference of this court is required. He also vehemently opposed on merits that there was no sufficient evidence produced by claimant to establish income of deceased. No sufficient evidence was on record and yet claims tribunal has assessed compensation while assessing income and in doing so, claims tribunal has committed gross error in deciding compensation of Rs.3,63,000.00. He submitted that the amount of Rs.3,63,000.00 cannot be awarded being enhancement to claim of the claimant. Except that, no other submission is made by the learned Advocate Mr.Thakkar before this court and no other decision has been cited by him in support of the submissions made by him before this court. 5. I have considered the submissions made by both the learned Advocates for the parties.I have also perused the decision relied upon by both the learned advocates. MACP NO. 133 of 2004 was filed by present appellant. Two claim cases were arising out of common motor vehicular accident occurred on 9.12.2003 at about 6.30 pm and therefore, two claim cases No. 133/2004 and 134/04 were consolidated and evidence was recorded in MAC Petition NO. 133 of 2004 by the claims tribunal. At the time of accident, deceased Shambhuram Asharam Devmurari, of MAC Petition NO. 133/04 and Vallabhbhai Asharam Devmurari were travelling in Tractor No. GJ-14- D-374 sitting on the bags of ground nut and proceeding towards Amreli Market Yard to sale said groundnut, at that time, the driver of the said tractor drove tractor in rash and negligent manner in an excessive speed endangering human life. As a result of which deceased Shambhuram and injured Vallabhbhai fall down from tractor due to which Shambhuram of MACP NO. 133 of 2004 received serious head injury and during the course of treatment at Amreli Civil Hospital, he succumbed to the injuries and Vallabhbhai injured claimant of MACP NO. 134 of 2004 had FA/2822/2008 4/22 JUDGMENT received fracture of spine. 6. Before the claims tribunal, reply was filed by present respondent insurance company vide Exh. 11 denying averments made by claimant in claim petition and denied the averments as regards age and income of the injured and deceased. Thereafter, claims tribunal framed issues vide Exh. 18 and decide the matter. Before the claims tribunal, on behalf of claimant, Shardaben Shambhuram Devmurari was examined vide Exh.23 and in her oral evidence, it was deposed by her that at the time of accident, deceased was aged about 55 years and was earning Rs.60,000.00 per year by doing agricultural work but the claimant has not produced any documentary evidence regarding date of birth of deceased but PM Report was suggesting age about 55 years, therefore, claims tribunal came to conclusion that the age of the deceased was 55 years. So far as income of the deceased Shambhuram is concerned, extract of village form no. 7/12 and 8A were produced by claimant in respect of the agricultural lands possessed by the deceased at Exh. 28 and 29 respectively but not produced any documentary evidence regarding agricultural income or income from diamond cutting and, therefore, in absence of the documentary evidence regarding income, considering age of deceased, tribunal assessed income of Rs.2500.00 and considering second schedule read with section 163A of the Act, applied multiplier of 11 and accordingly, future prospects were taken into account and held that dependency comes to Rs.3,30,000.00 and Rs.10,000.00 towards expectancy of life, Rs.10,000.00 towards consortium and Rs.10,000.00 towards pain and mental agony by the claimant and Rs.3000.00 towards funeral charges and thus, claimant is entitled to total compensation of Rs.3,63,000.00 but ultimately awarded only Rs.3,00,000.00 only on the ground that claimant has claimed only Rs.3,00,000.00 and, therefore, not entitled to the amount more than that. Relevant discussion made by the claims tribunal in para 11 of the award is reproduced as under: “11. So far as the quantum is concerned, the FA/2822/2008 5/22 JUDGMENT claimant has claimed Rs.3,00,000.00 under different heads.The claimant Shardaben Shambhuram Devmurari being wife of the deceased Shambhuram Asharam Devmurari has stated in her oral evidence by way of afidavit at Exh.23 that at the time of accident the deceased was aged about 55 years and was earning Rs.60,000.00 per year by doing agricultural work. The claimant has not produced any documentary evidence regarding date of birth of deceased Shambhuram Asharam Devmurari But by going through PM Report Exh. 25 the age of deceased Shambhuram has been mentioned about 55 years hence for the purpose of this claim petition,I consecutively take the age of deceased Shambhuram as 55 years. So far income of the deceased Shambhuram is concerned, the claimants have produced extract of village form no. 7 and 12 and 8A in respect of the agricultural land possessed by the deceased Shambhuram at Exh. 28 and 29 respectively but has not produced any documentary proof regarding agricultural income or income from diamond cutting. Hence, in absence of any documentary proof regarding income, taking into consideration the age of the injured claimant and present rate of inflation as well as agricultural land in the name of deceased Shambhuram it can very well be presumed that the deceased might be earning Rs.2,500/- per month and so it would be just and proper to assess income of Rs.2,500/- per month. Taking second schedule under section 163-A of M.V. Act, as quite line, I take multiplier of 11 for deciding dependency benefit. Thus taking the income of Rs.2,500.00 per month and applying the principle laid down in the case of Manohar Madhukar Tambe v/s. Bhatubhai Liladhar and others reported in 2005 (3) GLH 651, the loss of dependency would be Rs.2500/- x 3= Rs.7500/- x ½ = Rs.3750/- x 2/3 = Rs.2,500 x 12 = Rs.30,000/- = Rs.3,30,000.00 under the head FA/2822/2008 6/22 JUDGMENT of dependency benefit. To this we can add Rs.10,000/- towards loss of expectancy of life, Rs.10,000/- towards consortium, Rs.10,000/- towards mental agony suffered by the claimant as after one day of accident, the deceased died and Rs.3,000.00 towards funeral charges. Thus, the petitioners of MAC Petition NO.133/2004 are entitled to get compensation as under: Rs.3,30,000/- towards loss of dependency. Rs.0,10,000/- towards loss of estate Rs.0,10,000/- towards consortium Rs.0,10,000/- towards mental agony Rs.0,03,000/- towards funeral expenses. ------------- Rs.3,63,000/- Total Thus, in all, the applicant of MAC Petition NO.133/2004 is entitled to sum of Rs.3,63,000/- but as the claimant has restricted her claim to Rs.3,00,000/-, the claimant is entitled to sum of Rs.3,00,000/- from the opponent Nos.1 and 2 who are jointly and severally liable.” 7. Considering the aforesaid discussion made by the claims tribunal in para 11 of the award on quantum, I have considered two contentions raised by learned Advocate Mr.Thakkar. One is that without amending plaint or claim petition, tribunal cannot award compensation for more than what was claimed by the claimant. Next is that there was no documentary evidence on record for receiving income from the agricultural field. First, I will deal with the contention regarding income, raised by the learned Advocate Mr.Thakkar. The claimant in her oral evidence at Exh.23, deposed that her husband was doing agricultural work. There was no rebuttal evidence produced by the insurance company before the claims tribunal that deceased was not doing agricultural work. It is also necessary to note important part that on the date of accident on 9.12.2003, deceased Shambhuram Asharam Devmurari injured Vallabhbhai Asharam Devmurari were going to sell ground nuts at Amreli Market Yard and at that time, accident occurred. From FA/2822/2008 7/22 JUDGMENT the evidence on record itself, it is appearing that both were sitting on the bags of groundnut which proves product from agricultural field received by deceased and injured which both were going to sell it at market yard at Amreli. This evidence itself is enough to establish income of the deceased because in absence of agricultural field, there may not be groundnut available to the deceased. Agricultural field belongs to deceased as per documentary evidence on record Exh. 28/29. This fact is not disputed by insurance company and no contrary evidence is produced by the insurance company. A person who is possessing agricultural land naturally he must have received income from such agricultural field and ground nuts being product received from agricultural field, both were going to sell the groundnut at Amreli Market Yard and while they were going with such agricultural product in the tractor, accident occurred. So, products received from agricultural field was proved and for selling them, they were going to Amreli Market Yard, therefore, on the basis of this evidence itself and looking to the year of accident 2003, farmer having this much land as per Exh. 28 and 29, naturally he must get at least this much amount of Rs.2500.00 by taking crops 2 to 3 times in a year and it cannot be considered to be unreasonable assessment made by claims tribunal and, therefore, according to my opinion, the claims tribunal has rightly assessed the income of the deceased at Rs.2,500.00 per month who was having agricultural land in his possession as per Exh. 28 and 29 and products of groundnut was received by them and they were going to sell it in the Market Yard at Amreli which is a direct evidence of income to be received from groundnuts by the deceased, otherwise, there was no purpose of selling groundnuts by the deceased in absence of products from agricultural field, therefore, assessment is very much reasonable, just and fair and rational and, therefore, contention raised by the learned advocate Mr. Thakkar in that regard cannot be accepted and therefore, same is rejected. FA/2822/2008 8/22 JUDGMENT 8. While considering the next contention raised by the learned advocate Mr. Thakkar that without amending claim petition and without enhancing claim by the claimant, amount more than the claim made by the claimant cannot be awarded by the claims tribunal, I have considered the decision of the Division Bench of this Court in case of Manohar Madhukar Tambe Versus Bhagubhai Liladhar & Ors. reported in 2005 (3) GLH page 651. Para 8 and 11 of which are quoted as under: “8.Next question pertains to assessment of compensation. Minor Manohar Madhukar Tambe was 15 year old at the time of accident. He suffered fracture on right thigh and on the knee, apart from other parts of the body. He was admitted in Bilimora Mangusi Hospital, thereafter, removed to Panchal Orthopedic Hospital, where he stayed for 2½ months. He was operated twice and remained in the hospital for a long time and had plaster for six months. Because of injuries, he remained in bed from 22-03-1985 to 19.10.1985. He was examined by Dr. Panchal, who states that patient had compound fracture of femur on right side. He claims compensation for pain, shock and suffering, medical expenses, loss of education, transportation and other connected charges including attendance, etc. He has been awarded Rs.15,000/- for pain, shock and suffering, Rs.12,000/- for medical expenses attendance and transportation, Rs.12,600/- for disability. Through this appeal, enhancement of Rs.10,000/- is claimed. Shri Amrish Pandya learned counsel for the claimants submits that looking to the nature of injuries and other loss suffered by him, claimant is entitled to just compensation, i.e. more than what has been claimed,. He claimed Rs.50,000/- before the Claims Tribunal and confined the appeal to Rs.10,000/-, since due to poverty, he could not pay FA/2822/2008 9/22 JUDGMENT court fee. Learned counsel for the claimants submits that evidence for enhancement is available, therefore, without amendment and evidence, enhanced compensation can be awarded. Reliance is placed on Apex Court decision in Nagappa vs. Gurdayal Singh and others (2002 AIR SCW 5348). There is substance in the contention advanced by the learned counsel. On perusal of injuries suffered by the claimant, it is crystal clear that they are of serious nature. Claimant remained in bed under plaster for 9 months and subjected to two operations. One of the injuries found by Dr.Panchal is compound fracture of femur on right side. Claimant must have undergone great pain, shock and suffering, therefore, award of Rs.15,000/- seems to be unjust, consequently, it is enhanced to Rs.50,000/-. 11. Next comes the claim for permanent partial disability. Nature of injuries has been discussed in the preceding part of this judgment. Further, it is added that due to disability suffered by the claimant, his leg was shortened by 2” and he limps while walking. He cannot walk properly, he cannot run, he cannot sit cross- legged, nor squat or do cycling. There is, therefore, alround difficulty suffered by the claimant due to this disability. Of course, looking to the factual, physical disability, permanent partial disability of right lower limb is fixed by doctor at 1/6th of 45%, i.e. 8% of the entire body. Division Bench of this Court said in State of Gujarat v. Somabhai Dhurabhai Sindhava and other (1993.2 GLR 1043) that for computing the future economic loss of an injured person, the Court has to apply its mind not only to the abstract percentage of loss of earning capacity, but also to FA/2822/2008 10/22 JUDGMENT the actual economic loss sustained or likely to be sustained by the injured person. Merely computing the economic loss on the basis of the Medical Certificate regarding physical disability will amount to turning a blind eye to the reality of actual economic loss. The claimant is going to suffer with physical disability throughout his life, therefore, he will have the disadvantage in every sphere of activity, earning or non-earning. Accordingly, it is just and proper to fix the disability at 25%. The age of claimant at the time of accident was 17 and applying multiplier of 16 on the income of Rs.15,000/- of a non-earning member, the compensation is worked out thus: annual income Rs.15,000, monthly income Rs.1,250 x 25% = Rs.312.50 x 12 x 17 = Rs.63,750/-. Therefore, the claimant is entitled to compensation of Rs.50,000/- (pain, shock and suffering), Rs.20,000/- (Medicines and other charges), Rs.63,750/- (permanent partial disability), Rs.10,000/- (loss of studies), which comes to a total compensation of Rs.1,43,750/-, although the appellant claims Rs.50,000/-. Consequently, First Appeal No.647 of 1989 is allowed. The award stands modified to the aforesaid extent. Claimant is held entitled to total compensation of Rs.1,43,750/-,which will carry interest at the rate of 12% from the date of application till realisation. Costs of this appeal shall be borne by the parties. “ 9. In Nagappa v/s. Gurdayal Singh and others reported in 2002 AIR SCW 5348, relied upon by learned Advocate Mr. Thakkar, apex court observed as under in para 5, 11, 16 and 21: “5. At the time of hearing of this matter, learned counsel for the appellant has filed an application seeking permission to amend the claim petition and for enhancement of FA/2822/2008 11/22 JUDGMENT claim to the tune of Rs. 5 lacs as compensation. Before the trial Court, the Claim was only for a sum of Rs. one lac. 11. Secondly, under Section 169, the Claims Tribunal in holding any inquiry under Section 168 is required to follow the rules that are made in this behalf and follow such summary procedure as it thinks fit. In the present case, it has been pointed out that Rule 253 of Karnataka Motor Vehicles Rules, 1989 empowers the Claims Tribunal to exercise all or any of the powers vested in a Civil Court under the provisions of Code of Civil Procedure, 1908. Rule 254 inter alia makes specific provision that Order 6, Rule 17, CPC is applicable to such proceedings. In this view of the matter, in an appropriate case, depending upon the facts and the evidence which has been brought on record and in the interest of justice, Court may permit amendment of claim petition so as to award enhanced compensation. Further, for amendment of the pleadings, it is settled law that unless it causes injustice to other side or it is not necessary for the purpose of determining real issue between the parties, Court would grant amendment. It is also to be stated that under the M.V. Act there is no time limit prescribed for claiming compensation. Therefore, there is no question of enhanced claim being barred by limitation. 16. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and give an opportunity to the parties to produce relevant evidence. 21. For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot FA/2822/2008 12/22 JUDGMENT award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition. Is it permissible under the Act to award compensation by instalments or recurring compensation to meet the future medical expenses of the victim? “ 10. Considering the peculiar facts of this case and aforesaid decisions, such too much technical stand of the insurance company to deny just compensation available under the law to the claimant cannot be accepted by this court simply on the ground that there is no restriction in the provisions made in the MV Act that the claims tribunal cannot grant the amount of compensation beyond the amount claimed by the claimant in his claim petition. Claims Tribunal may make an award subject to the provisions of section 162 to determine the amount of compensation which appears to be just and specify person or persons to whom such compensation shall be paid by the insurer and/or insured or owner or driver, as the case may be. It is legal obligation on the part of claims tribunal to see that just and fair compensation is awarded by it to the claimants though the actual amount claimed by the claimant is either lesser or higher than the amount calculated by the claims tribunal as just and fair compensation according to law. 11.It is the legal obligation on the part of claims tribunal to award just and fair FA/2822/2008 13/22 JUDGMENT compensation to the claimants for which they are entitled as per law. Claims Tribunal is not restricted by any provisions under the MV Act, 1988 and there is no prohibition made in the Statute Book that the claims tribunal cannot grant the amount which is beyond the prayer made by the claimants in their claim petition. Purpose and object of the MV Act, 1988 is to award reasonable just and fair compensation to the claimants. Actual claim made by the claimants may be less or high than the estimate made by the claims tribunal as just compensation but it is the duty of the claims tribunal to award just and fair compensation to which claimants are entitled according to law and, therefore, if the claim of the claimant is lesser than that, then the claims tribunal cannot deny only on the ground that no claim is made by the claimant. Recently, apex court has examined this aspect in case of A.P.S.R.T.C. v. M. Ramadevi & Ors. reported in AIR 2008 SC 1221, it was held by the apex court that there is no restriction that Tribunal/Court cannot award compensation exceeding the amount claimed. In the case before the Supreme Court, a claim petition under sec. 166 of the MV Act, 1988 was filed by the claimants claiming compensation of Rs.5,00,000.00 on account of death of M.Nageshwar Rao in accident on 18.5.1998. The deceased was working as a driver of the APSRTC. Deceased was aged about 38 years and salary was Rs.4467.50 ps. Corporation had filed objections and ultimately, the claims tribunal awarded compensation of Rs.2,46,000.00 and, thereafter, High Court awarded Rs.3,35,952.00 and, thereafter, APSRTC approached the apex court. Apex court considered this aspect in peculiar facts of the case wherein tribunal had