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Tribunal

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M.V. ACT – ACCIDENT CLAIM – NON- EXAMINATION OF PILLION RIDER NOT FATAL WHEN SUPPORTED BY I.O. EVIDENCE- F.I.R. – CHARGE SHEET ENOUGH TO PROVE NEGLIGENCE – DULCINA FERNANDES & ORS. Vs. JOAQUIM XAVIER CRUZ & ANR. judis.nic.in/supremecourt/filename=40875

Accident claim – Registration of FIR and filing of charge sheet is enough to prove the negligence     of  opposite party who caused an accident – acquittal of criminal case can not be considered – Non- examination of pillion rider is also not fatal – when investigation officer supported the case – Apex court set aside … Continue reading

Motor Vehicles Act, 1988: s.166 – Compensation – Future loss of earning – Claimant aged 50 years working as mason – In motor accident, suffered multiple fractures resulting in shortening of right leg by 3.5 cms – Tribunal assessed disability at 20% and awarded compensation of Rs.1.55 lacs – High Court enhanced compensation by Rs.34000 – On appeal, held: Appellant had suffered an irreversible damage to his right leg posing difficulties for him in carrying out his avocation as a mason – High Court while making observation that the Tribunal’s compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” was on the lower side, did not make its own assessment under these heads – These areas needed proper introspection and a more sensitive approach as the appellant represented weaker section of the community – Matter remitted to High Court for consideration afresh. The appellant aged 50 years was working as a mason. On the fateful day, while he was crossing the road, a motorcycle hit him resulting in bone fractures, head and other injuries all over the body. He was hospitalized for about 2 weeks and was under medical treatment for about 6 months after discharge from hospital. MACT awarded him a compensation of Rs.1.55 lacs. Dissatisfied with the quantum of compensation, appellant filed appeal before High Court. High Court enhanced the compensation only by Rs.34,000/-. Hence the appeal. =Allowing the appeal and remitting the matter to High Court, the Court HELD: 1.1. The High Court did no consider the appellant’s case properly. It accepted the Tribunal’s assessment of the body disability at 20% and observed that the Tribunal has paid compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” on the lower side. However, it awarded an additional compensation only for future medical expenditures and did not deal with the aspect of future loss of earnings at all, which was not a correct approach. The incapacity or disability to earn livelihood should be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. [Paras 9, 10] [662-c-f] Ramesh Chandra v. Randhir Singh and others (1990) 3 SCC 723, relied on. 1.2. As per the evidence of PW-2, the doctor who supervised the appellant’s injuries and administered treatment in the Hospital, it was proved that the appellant sustained compound fractures in the tibia and fibula bone of the right leg. He also suffered bruises and cuts on his face and some parts of the body. He was operated. Even after his discharge, he was advised follow up treatments and physiotherapy and also exercise for better movement of his leg. In his affidavit before the Tribunal, PW2 stated that the appellant’s right leg was shortened as a result of which he had to walk with a limp. The appellant was advised to use footwear with a raised sole and to continue with the exercises. The Tribunal noted that the shortening of the leg was by 3.5 cms. The Tribunal however, in accepting the disability of the appellant at 48%, refused to accept the assessment of the doctor that the future loss of earning would also be at 48%. It opined that construction work involves many people and the doctor was not right in concluding that due to the disability on the right leg, the appellant would not be able to do construction work. The future loss of earning was assessed at a much lesser 20%. Since there was no specific evidence regarding his income, the multiplier method was used for assessing the compensation. [Paras 11-14] [662-F-H; 663-A-C; 663-E-G] 1.3. Although the Tribunal concluded by holding that the assessment of future loss of earnings should be made only at 20%, the High Court, while making the observation that the Tribunal’s compensation under the heads “loss of amenities and enjoyment of life and loss of earnings during laid up period” was on the lower side, should have given reasons and made its own assessment under these heads, since High Court, as the first appellate authority, is an authority both on facts and law. The High Court’s orders starkly lacked in any details on assessment of compensation under these heads. These areas needed proper introspection and a more sensitive approach as the appellant being a mason and a workman represented the weaker section of the community. The appellant had suffered an irreversible damage to his right leg which would pose difficulties for him in carrying out his avocation as a mason. [Para 15] [663-G-H; 664-A-C] M/s. Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi & others (1979) 4 SCC 365; Divisional Controller, KSRTC v. Mahadeva Shetty & another (2003) 7 SCC 197, relied on. 2. Long expectation of life is connected with earning capacity. If earning capacity is reduced, that impacts life expectancy as well. No amount of compensation can restore the physical frame of the appellant. Whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is not possible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. [Paras 17-19] [664-H; 665-B-C; 665-D-E] Case Law Reference: (1990) 3 SCC 723 relied on Para 10 (1979) 4 SCC 365 relied on Para 15 (2003) 7 SCC 197 relied on Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4027 of 2010. From the Judgment & Order dated 20.7.2009 of the High Court of Karnataka at Bangalore in MFA No. 259 of 2008. V.N. Raghupathy for the Appellant. A.K. De, Rajesh Kumar, Udit Kumar, Debasis Misra for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4027 OF 2010 (Arising out of SLP (Civil) No.4649 of 2010) Sri B.T. Krishnappa ..Appellant(s) Versus The Divisional Manager, United ..Respondent(s) Insurance Company Ltd. and another J U D G M E N T GANGULY, J. 1.Leave granted 2.This Appeal impugns the order … Continue reading

Motor Vehicles Act, 1988 – ss. 140 and 166 – No fault compensation – Fatal accident – Death of driver and four occupants, of a private car – Surviving occupant sustained serious injuries – While rejection of claim petition, prayer for no fault compensation also rejected Held: Liability arising from s. 140 would almost invariably be passed on to insurer to be paid off from the vast fund created by virtue of ss. 146 and 147 unless owner of the vehicle causing accident is guilty of some flagrant violation of the law – In case of death or permanent disablement of any person resulting from motor, accident, a minimum amount must be paid to the injured or heirs of deceased, independently of the compensation on the principle of fault – Thus, claimants entitled to no-fault compensation u/s. 140 – Insurance company directed to pay Rs.25,000/- along with simple interest @ 6% p.a. A privately owned car met with a fatal accident resulting in the death of the driver and the four occupants. The fifth passenger sustained injuries. The heirs and legal representatives of the driver filed a claim for compensation under the Workmen’s Compensation Act, 1923 and the same was rejected holding that the accident did not take place in the course of employment. The heirs and legal representatives of the four occupants and the fifth passenger sought compensation before the Motor Accidents Claims Tribunal and the same was also rejected. The tribunal also rejected the express prayer made on behalf of the appellants and other claimants for grant of the `no fault compensation’ as provided under section 140 of the Act. The High Court dismissed the appeal by a brief order. Therefore, the appellants filed the instant appeal. =Allowing the appeal, the Court HELD: 1.1 The reasons assigned for denying the appellants the `no fault compensation’ as provided under section 140 of the Motor Vehicles Act, 1988 by the tribunal cannot be accepted. The tribunal was gravely in error in taking the view that a claim for compensation under section 140 of the Act can succeed only in case it is raised at the initial stage of the proceedings and further that the claim must fail if the accident had taken place by using the car without the consent or knowledge of its owner. All that is required to attract the liability under section 140 is an accident arising out of the use of a motor vehicles(s) leading to the death or permanent disablement of any person. [Para 12] [370-F-H; 371-B] 1.2 Chapter X of the Act deals with “Liability without fault” and contains ss. 140 to 144. Seen in isolation, these provisions might appear harsh, unreasonable and arbitrary in as much as these create the liability of the vehicle(s) owner(s) even where the accident did not take place due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned but entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made, but the said provisions must be seen along with certain provisions of Chapter XI. Section 146 forbids the use of the vehicle in a public place unless there is in force, in relation to the use of the vehicle, a policy of insurance complying with the provisions of that chapter. Section 147 contains the provisions that are commonly referred to as `Act only insurance’. The provisions of sections 146 and 147 are meant to create the large pool of money for making payments of no fault compensation. Thus, the liability arising from section 140 would almost invariably be passed on to the insurer to be paid off from the vast fund created by virtue of sections 146 and 147 of the Act unless the owner of the vehicle causing accident is guilty of some flagrant violation of the law. Thus, the provisions of chapter X together with sections 146 and 147 would appear to be in furtherance of the public policy that in case of death or permanent disablement of any person resulting from a motor accident a minimum amount must be paid to the injured or the heirs of the deceased, as the case may be, without any questions being asked and independently of the compensation on the principle of fault. [Paras 15 and 16] [374-G-H; 375-A-D] 1.3 The provisions of section 140 are indeed intended to provide immediate succor to the injured or the heirs and legal representatives of the deceased. Hence, normally a claim under section 140 is made at the threshold of the proceeding and the payment of compensation under section 140 is directed to be made by an interim award of the tribunal which may be adjusted if in the final award the claimants are held entitled to any larger amounts. But that does not mean, that in case a claim under section 140 was not made at the beginning of the proceedings due to the ignorance of the claimant or no direction to make payment of the compensation under section 140 was issued due to the over-sight of the tribunal, the door would be permanently closed. Such a view would be contrary to the legal provisions and would be opposed to the public policy. [Para 17] [375-E-G] 1.4 The tribunal was completely wrong in denying to the appellants, the compensation in terms of section 140 of the Act. The appellants (as well as the other 3 claimants) were fully entitled to no fault compensation under section 140 of the Act. The insurance company is directed to pay to the appellant Rs.25,000/- along with simple interest @ 6% p.a. from the date of the order of the tribunal till the date of payment. The other 3 claimants are not before this Court, but that is presumably because they are too poor to come to this Court. Since, the claim of the appellants is allowed, the said order should be extended to the other three claimants as well. The insurance company is directed to make the payment. [Para 18] [375-H; 376-A- C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7049 of 2002. From the Judgment & Order dated 12.03.2001 of the High Court of Karnataka at Bangalore in M.F.A. No. 3442 of 1996. G.V. Chandrashekhar (for P.P. Singh) for the Appellants. Manjeet Chawla, Vishnu Mehra (for B.K. Satija), Naresh Kaushik, Sanjeev K. Bhardwaj (for Lalitha Kaushik) for the Respondents.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7049 OF 2002 Eshwarappa @ Maheshwarappa and Anr. Appellants Versus C. S. Gurushanthappa and Anr. Respondents JUDGMENT AFTAB ALAM,J. 1. A certain Basavaraj was the driver of a privately owned car. In the night of October 28, 1992 he took out the … Continue reading

Motor Vehicles Act, 1988 – ss. 163A and 166 – Proceedings both u/ss. 163A and 166 – Permissibility of – Motor accident resulting in death of a person – Application u/s.166 by legal heirs of the deceased – Subsequent application u/s. 163A claiming no-fault compensation – Application u/s. 163A partly allowed by the Tribunal – Thereafter, Tribunal permitting the claimants to proceed with the application filed u/s. 166 – Order of the Tribunal upheld by High Court – =On appeal, held: Claimant must opt/elect to go either for a proceeding u/s. 163A or u/s. 166 but not under both – Claimants having obtained compensation, finally determined u/s. 163A were precluded from proceeding further with the petition filed u/s. 166 – Thus, order of the Tribunal permitting the claimants to proceed further with the petition filed u/s. 166 as upheld by the High Court, not sustainable and is set aside. Deepali Girishbhai Soni and Ors. vs. United India Insurance Co. Ltd. Board (2004) 5 SCC 385 – relied on. Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Kodala and Ors. (2001) 5 SCC 175 – referred to. Case Law Reference: 1993 (3) SCC 634 Referred to. Para 5 (2004) 5 SCC 385 Relied on. Para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 682 of 2011. From the Judgment & Order dated 15.01.2010 of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 9400 of 2006. M.K. Dua for the Appellant. Brajesh Kumar for the Respondents.

REPORTABLE IN THE SURPEME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(s). 682 OF 2011 (@ SLP (C) No.12743/2010) ORIENTAL INSURANCE CO.LTD. Appellant(s) VERSUS DHANBAI KANJI GADHVI & ORS. Respondent(s) O R D E R Leave granted. This appeal is directed against the judgment dated 15.1.2010 rendered by the learned Single Judge of the … Continue reading

whether the allottees are liable to pay interest ? = the Board entered into agreements of sale with various allottees of the plots of land during the years 1988-1990 and made a provision therein that the Board shall be entitled to re-fix the final price of the property agreed to be sold to the allottees taking into account inter alia the enhanced compensation awarded by the Courts and Tribunals and that the decision of the Board in fixing the revised price of the property shall be conclusive and final. It was also expressly agreed in the agreements of sale that after finalization of the price of the property agreed to be sold by the Board, the allottee shall pay to the Board together with interest at the rate of 15% per annum, the difference between the tentative price fixed and the price finally fixed for the property by the Board within thirty days of the date of a registered notice demanding the payment thereof or in such quarterly installments over a period not exceeding two years to

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.7835 OF 2011 (Arising out of S.L.P. (C) No. 10580 of 2006) Kerala State Housing Board & Ors. … Appellants Versus Kerala State Housing Board, Nellikode Housing Colony Allottees Assn. & Ors. … Respondents WITH CIVIL APPEAL No.7836 OF 2011 (Arising out of … Continue reading

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