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IN THE HIGH COURT OF BOMBAY
Sawant P.B. Kotwal V.S., JJ.
Muncipal Corporation of Greater Bombay
(B.E.S.T. Undertaking) .... Appellant.
Verses
Kisan Gangaram Hire others .... Respondents.
First Appeal Nos. 718 785 of 1986, decided on 3/6-2-1987.
Advocates appeared :
V.H. Gumaste with A.P. Mawani B.B. Jijina i/b. Mulla Mulla Cargie Blunt Caroe, for appellant in F.A. No. 718/1986.
A.R. Kudrolli, for respondents in F.A. No. 718/1986.
G.S. Hegde, for appellant in F.A. No. 785/1986.
Shrikant Shah with B.M. Gandhi, for respondent in F.A. No. 785/1986.
The only question that requires to be considered is of the procedure that should be followed by the Tribunal before awarding higher compensation. The Courts view is that in all such cases proper notice or intimation should be given to the opposite party, so that opposite party has an opportunity to a contest the claim even by leading the 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 the amount of the 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 incident. 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.
If these safeguards are followed, the powers conferred on the Tribunal for awarding compensation higher than that claimed in the original application would not be abused as is feared.
Section 10-A-Claim for compensation-Only requirement is that the accident occurred by Motor Vehicle- Tribunal shall determine the amount which it deems fit-Tribunal can award compensation in excess of the amount claimed in proper cases.
It is necessary to take note of some other provisions of the Act, viz. those contained in Chapter VII-A which provide for liability without fault and in Section 109-A which provide for compensation in cases of hit and run accidents. It has to be noted that the provisions for no fault compensation contained in Chapter VII-A apply also in relation to any claim for compensation in respect of death or permanent disability of any person under the Workmans Compensation Act, 1923, resulting from an accident of the nature referred to in sub-section (1) of Section 92-A and the provisions of the said Chapter have effect notwithstanding anything contained in any other provisions of the Act or of any other law for the time being in force.
A survey of the aforesaid provisions shows that they do not require a claimant to specify the grounds on which the compensation is claimed. All that is required to state is that the accident in question was occasioned by a motor vehicle. The provisions also do not give any guidelines to the Tribunal with regard to the basis on which the compensation should be calculated and awarded. Beyond stating in Section 110-B that the Tribunal shall, after holding an inquiry into the claim, determine the amount of compensation which appears to it to be just, the Act has no further light to shed on the subject It is therefore, legitimate to hold that the law to be applied by the Tribunal in awarding compensation is the usual law of tort. This conclusion is inescapable also on account of the historical development of the law on the subject.
The law of tort is a product of the common law. Under the common law, no compensation was required to be paid if death occurred on the spot. The claimant could claim compensation for injuries suffered by him and for the disablement resultant on it if he survived. This iniquitous position was sought to be remedied the enacting the Fatal Accidents Act, 1855 which for the first time made a provision for compensation on account of the death of the victim. Under that Act, the benefit of the compensation can however, be claimed only by the wife, husband, parents and child of the deceased. There is some indication given in that Act of the measure of damages which can be awarded by the Court. It is laid down there that in very such case, the Court may give such damages as it may think proportioned to the loss resulting from such death to the claimant concerned. In addition to this, the executor, administrator or representative of the deceased can also claim any pecuniary loss to the estate of the deceased occasioned by the accident. (Emphasis ours). Section 3 of that Act also enjoins upon the applicant to give full particulars of the nature of the claim in respect of which damages are sought to be recovered. In contrast the provisions of the present Act do not require that particulars of the claim or of the nature of the claim should be given.
The provisions of that Act are relevant even today because whereas the present Act is applicable to the proceedings before the Tribunal, where the Tribunals are not constituted, the Civil Court will have jurisdiction to Entertain applications for claiming compensation for fatal accidents and then may be governed by the provisions of that Act.
What is further necessary to note is that what gives a cause of fiction for preferring an application for claim for compensation is the accident by motor vehicle or vehicles and not a particular monetary loss occasioned by such accident. While the compensation in all no-fault claims cases is fixed and uniform, in fault-claims cases the losses may vary from case to case. The particular losses are merely the consequence of the accident which is the cause a faction. This being so, the amounts of compensation claimed are nothing but the particulars of the claim made. By its very nature, further, the amount of compensation claimed cannot always be calculated precisely. In many cases it can at best be a fair estimate. There is also a time limit of six months 28 of Bom LJ of 1959. In Section 28 of the principal Act in sub-section (2), in clause (a), for the brackets and words "(filing of the application for claim can be stated or specified in the application. The amount or amounts or the heads under which they are claimed may arise after the application is filed and even till the date it is decided. It is, therefore, necessary in all such cases to keep the doors open for the claimant to make the claims, on grounds not stated earlier or for more amounts under beads already specified in the application.
That is why probably the Legislature thought it fit not to insist upon the particulars of the claim in the application and also to give wide powers to the Tribunal in the matter of granting compensation by providing that the Tribunal may determine the amount which appears to it to be just. That is why again that while the provisions of Rules 7 and 17 of Order VI of the Civil Procedure Code are made applicable except Rule 10 of Order VII, no other provision of the said Order bas been in terms applied to the application for compensation made under the Act. The other provisions apply to the proceedings before the Tribunal only so far as they may be made applicable. The word "claim" in the expression "new ground of claim" in Rule 7 of Order VI obviously refers to cause of action; and as stated earlier in the proceedings before the Tribunal, the cause of action is the accident. The provision made for amendment of the claims-application by making Rule 17 of the said Order applicable be speaks of the awareness of the legislature, of the eventualities for such amendment. There are cogent reasons to give ample liberty both to the claimant as well as to the Tribunal in the matter of claiming and granting compensation as they are occasioned by the very nature of the claim. Else, it would occasion avoidable delays and difficulties in the trial of the applications for claim. A. has been emphasised earlier, the amount of compensation being the consequence of the accident which is the cause of action and since that amount would keep varying or fluctuating even till the date of the decision of the application, enough leeway is necessary in the matter of both claiming and granting compensation. The variation if any is not on account of the variation in the cause of action but on account of the modification or addition of the particular or particulars of the consequences of the accident.
These modifications do not go to the root of the application for claim and no prejudice is caused to the opposite party on account of such variation except in the matter of the quantum of the amount claimed. In all cases the quatum is to be justified by the claimant by leading necessary evidence. The opposite party will at all times have an opportunity to contest the modified amount claimed. At the cost of repetition, it may to stated that in most of the cases, the claimant can at best give only an estimate of the compensation at the time he files his application for claim. It is neither fair nor realistic to insist that he shall not claim more than what is claimed by him at the initial stage or that in spite of the evidence on record, the Tribunal shall not grant more than what is claimed in the application. Therefore, to hold that under no circumstances the claimant should be awarded compensation which is in excess of the amount claimed originally in the application, is neither reasonable nor just. This is particularly so when the legislature has in unmistakable terms given ample powers to the Tribunal to award compensation as it thinks just. It is also necessary to emphasise that the Act itself nowhere lays down that the Tribunal will not grant amount in excess of the amount claimed in the application.
2. In First Appeal No. 718 of 1986, the accident in question occurred at 11 p.m. on 12-1-1980 at Kannamwar Nagar No. 1 which involved a B.E.S.T. bus bearing No. MBL 5572 belonging to the opposite party, the Muncipal Corporation of Greater Bombay. The victim was one Shantaram Kisan Hire, a 36 years old man who was an instructor in a driving school and was at the relevant time earning a salary of Rs. 800/- per month. According to the applicant who are the parents, the widow and minor children of the deceased, at the relevant time the B.E.S.T. bus was being driven at high speed and it knocked down the victim who was crossing the road. He was taken to Rajawadi Hospital in an unconscious condition and thereafter transferred to the Nair Hospital on 16-1-1980 at about 2 p.m., but expired there at about 4 p.m. on the day. In the application, the applicants claimed compensation of Rs. 75,000/-. The Tribunal held that the accident had occurred on account of the rash and negligent driving of the driver of the bus and therefore, the opposite party-Corporation was liable to pay compensation. In calculating the compensation, the Tribunal held that the deceased was contributing at least Rs. 500/- per month to the household expenses and that he would have worked at least for 20 to 25 years more. The total amount of dependency was therefore calculated by applying the multiplier of 15 years having regard to the uncertainties of the life and also to the fact that the compensation would be paid in lumpsum. Thus calculated, the amount came to Rs. 90,000/-. To this amount the Tribunal added Rs. 5,000/- on account of the loss of expectancy of life and Rs. 10,000/- on account of loss of consortium. Thus the Tribunal worked out the total amount payable to the applicants at Rs. 1,05,000/- as just compensation. The Tribunal further held that although the claimants had claimed only Rs. 75,000/- as compensation, it did not restrict the power of the Tribunal to award just compensation even if it was more than what was claimed. According to the Tribunal what the applicants are expected to do while filing the application is to mention an estimated amount and that amount does not restrict its power to determine what is the just compensation. The Tribunal accordingly directed the opposite party-Corporation to pay the compensation of Rs. 1,05,000/- together with interest at 12 % per annum from the date of the applicant till realisation and also the costs of the application and further directed the applicants to pay the Court fees or the difference of Rs. 30,000/- between the claim and the awarded amount. The Tribunal also gave necessary directions for investment of a part of the amount for the benefit of the minor applicants Nos. 4 to 7.
3. In First Appeal No. 785 of 1986, the accident occurred on 29-5-1978 at about 20-45 p.m. at Vikhroli, Bombay on account of a rash and negligent driving by the driver of bus No. MHC-8756 belonging to the appellant the opposite party No. 1 Maharashtra State Road Transport Corporation which was driven by the opposite party No. 2. The applicant who was the victim of the said accident had sustained certain physical injuries in the same. According to him he was a passenger in the bus and when the bus was at Vikroli near the electric pole SW/122 on the western track of the Eastern Express Highway, it dashed against mo
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