Ashutosh Mohunta, J.@mdashSince both the appeals arise out of the common order, they are heard together and being disposed of by this common judgment. MACMA (SR) No. 27967 of 2013 is preferred by the appellants-claimants against the Award dated 16-12-2008 passed in M.V.O.P. No. 64 of 2007 by the learned Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kadapa at Proddatur being not satisfied with the amount of compensation awarded to them on account of the death of one Sreenivasa Murthy; while MACMA No. 2237 of 2013 is filed by the Insurance Company against the same Award being aggrieved by the quantum of compensation.
2. The parties herein are referred to as arrayed before the Tribunal.
3. Briefly, the facts of the case are that on 17-05-2006 at 9.00 AM the deceased was proceeding to Kadapa on his motor cycle bearing No. AP 04 F 4754 and when he reached near Post Office, Proddatur at the wielding shop of PW 2, the lorry of respondent No. 1 bearing No. AP 09W 5798 came in high speed in negligent manner and dashed the motor cycle causing accident. The deceased passed away while receiving treatment in the Government Hospital, Proddatur.
4. The claimants who are the wife, minor daughters and parents of the deceased stated that the deceased was aged 38 years and was hale and healthy. It was further averred that the deceased used to work as Higher Grade Assistant in L.I.C. and was drawing a monthly income of Rs. 115,473/-. They stated that they suffered loss of bread winner on account of the untimely death of the deceased.
5. Before the Tribunal, the 1st respondent who is the owner of the lorry remained ex parte and the 2nd respondent filed counter denying the averments of the claim petition and contended that the accident had not occurred due to the negligence of the driver of the lorry, that the deceased was not having a valid driving licence and that the vehicle stands in the name of one Paparao. As such, it is not liable to pay compensation. It was also stated that the driver of the 1st respondent had no valid driving licence. The 2nd respondent disputed with regard to the age, avocation and income of the deceased and also contended that the claim of the claimants was excessive.
6. On the basis of the aforesaid pleadings, the following issues were framed by the Tribunal:
(1) Whether the deceased died in a motor accident that occurred on 17-5-2006 at 9 a.m. due to rash and negligent driving of the vehicle No. AP-09-W-5798 by its driver?
(2) Whether the petitioners are entitled to the compensation as prayed?
(3) To what relief?
7. In order to prove the claim, on behalf the appellants-claimants, P.Ws. 1 and 2 were examined and Exs. A-1 to A-12 were got marked. On behalf of the respondent-Insurance Company, R.W. 1 was examined and Ex. B-1 copy of the insurance policy was got marked.
8. Upon thorough appreciation of the evidence on record, the Tribunal recorded a finding that the accident occurred due to the rash and negligent driving of the lorry by its driver. Then proceeding to assess the compensation, the Tribunal awarded a total compensation of Rs. 19,00,000/- to claimant Nos. 1 to 3 and 5 together with proportionate costs and interest at 7.5% per annum from the date of filing the claim petition till the date of deposit of the amount and apportioned the compensation among the dependants of the deceased.
9. The learned Standing Counsel for the Insurance Company contended that the Tribunal having found that the deceased was also responsible for the accident, ought to have deducted at least 50% of the compensation under contributory negligence. He also contended that the multiplier applied by the Tribunal was on higher side. According to him, the rate of interest awarded by the Tribunal was also on higher side.
10. The learned counsel for the claimants contended that the Tribunal did not take into consideration the future prospects of the deceased and that since the number of dependants are more, the Tribunal ought to have deducted one-fourth instead of one-third towards the personal and living expenses of the deceased. It was further contended that the Tribunal erred in not granting amounts under the heads such as loss of consortium, loss of love and affection and funeral expenses. It was also contended that the Tribunal below erred in deducting a sum of Rs. 80,544 towards negligence holding that the deceased was also bit less careless even though there is no such evidence on record.
11. Heard the learned counsel for the parties and perused the material available on record.
12. PW 2 who was cited as eyewitnesses to the incident stated that the vehicle of the 1st respondent which was coming in the opposite direction dashed the motor cycle causing the accident. The Tribunal held that the fact that the vehicle of the 1st respondent hit the motor cycle speaks of the negligent driving by its driver. The Tribunal having held that the accident occurred due to the negligence of the driver of the 1st respondent, ought not to have deducted Rs. 80,544 from the amount of compensation. Thus the finding of the Tribunal in this regard is set aside.
13. Insofar as the quantum of compensation is concerned, it is the case of the claimants that the deceased was working as a Higher Grade Assistant in L.I.C. and was drawing a salary of Rs. 15,473/- per month. However, it is to be seen, if the principles laid down by the Apex Court in
14. Even though the claimants have claimed only Rs. 25,00,000/-, the claimants are entitled to the aforestated amount since Section 168 empowers the Claims Tribunal to ''make an award determining the amount of compensation which appears to it to be just''. The only requirement for determining the compensation is that it must be ''just''. There is no other limitation or restriction on its power for awarding just compensation (see Nagappa v. Gurudayal Singh 2003 (1) An. W.R. 135 (SC) : 2003 ACJ 12 (SC). Further, in Rajesh''s case (supra), the Supreme Court held that the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim.
15. For the reasons discussed herein above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot 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 subsection (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.
16. In the circumstances, MACMA (SR) No. 27967 of 2013 filed by the claimants is allowed awarding compensation of Rs. 30,69,000/- with proportionate costs, with interest at 7% per annum from the date of the petition till the date of realization and the respondents are jointly and severally liable to pay the said compensation. As for as the apportionment in concerned the claimants shall be entitled to apportionment in the same ratio as awarded by the Tribunal. MACMA No. 2237 of 2013 filed by the Insurance Company is allowed in part to the extent of awarding interest at 7% per annum from the dale of petition till the date of realisation.
17. Inasmuch as more compensation than what was claimed by the claimants has been awarded to them, they are directed to pay the requisite Court fee for the enhanced amount. Miscellaneous petitions, if any, pending in both the appeals shall stand closed. No order as to costs.
