URMILA J SANGANI Vs. PRAGJIBHAI MOHANLAL LUVANA

JUDGEMENT

(1.) This First Appeal has been placed before the Larger Bench in view of an order of reference made by the learned Single Judge on January 19, 1996. In order to understand the scope of the reference, it would be necessary to notice the facts of the case in brief which are as under : The appellant was travelling on June 15, 1986 in luxury bus bearing registration No. GRP-3586 and was going from Bombay to Junagadh. When the bus reached near Vadtal Chokdi on Ahmedabad-Bombay Highway, the bus driver noticed a truck lying in front of the bus. He, therefore, after giving signal, started overtaking the truck and at that time, a public carrier bearing registration No. GTW-4156 owned by the respondent no.4 and driven by its driver came with full speed from opposite direction and dashed with the right hand side of the bus. As a result of the accident, the appellant was injured. Therefore, she filed a claim petition under section 110-A of the Motor Vehicles Act, 1939 before the Motor Accident Claims Tribunal (Auxi.), Nadiad, District : Kheda claiming compensation of Rs.58,100.00, against the bus driver and the bus owner as well as the United India Assurance Company Ltd. with which the luxury bus was insured and the truck owner as well as the New India Assurance Company Ltd. with which the truck was insured. The driver of the truck involved in the accident was initially impleaded as one of the opponents, but was subsequently deleted in view of order passed below Exh.24. Neither the bus driver, nor the bus owner filed any written statement disputing the averments made in the claim petition. So also, no written statement was filed on behalf of the truck owner, but the New India Assurance Company with which the truck was insured as well as the United India Assurance Co. with which the luxury bus was insured filed written statements and contested the claim petition. In view of the pleadings of the parties, necessary issues for determination were raised by the Tribunal. The appellant examined herself in support of her claim for compensation as well as Dr. Mithawala and Dr.Snehal Desai, who had treated the appellant for her injuries and issued disability certificates. On appreciation of evidence, the Tribunal held that the total amount of compensation payable to the appellant was Rs. 75,000.00. However, the appellant had claimed Rs. 58,100.00. The Tribunal has, therefore, awarded the amount claimed with interest at the rate of 15% per annum and costs by award dated February 1, 1995. According to the appellant, the Tribunal has power or jurisdiction to award higher amount of compensation though not claimed by the claimant and, therefore, the appellant ought to have been awarded compensation of Rs. 75,000.00. Under the circumstances, the appellant has filed above-numbered appeal under section 173 of the Motor Vehicles Act, 1988.

(2.) When the matter was placed for admission hearing before the learned Single Judge, it was contended that the Claims Tribunal has power or jurisdiction to award higher amount of compensation though not claimed by the claimant. The learned Single Judge felt that there was conflict between the decision of Division Bench of this High Court rendered in Babu Mansa vs. Ahmedabad Municipal Corporation and ors.,., wherein it is propounded that so long as the amount awarded does not exceed the amount claimed, the amount awarded can be suitably split-up and awarded under different heads and even if specific amount is claimed under a particular head, the Tribunal has power to award an excess amount under that very head without amendment of claim application provided the evidence justifies it and the decision of Division Bench of Bombay High Court in Municipal Corporation of Greater Bombay and another vs. Kisan Gangaram Hire and others 1987 0 ACJ 311 wherein a view has been taken that if the amount awardable to the claimant as worked out by the Tribunal exceeds the amount claimed by the claimant, the Tribunal has power or jurisdiction to award higher amount of compensation though not claimed by the claimant. The learned Single Judge has, therefore, referred following questions for determination to the Larger Bench :-

(3.) Mr. B.G.Jani, learned counsel for the appellant urged that power or jurisdiction of the Tribunal to award just compensation includes the power to award the amount of compensation higher than the amount claimed by the claimant in the claim petition and, therefore, the appellant ought to have been awarded a sum of Rs.75,000/which was found payable by the Tribunal. It was claimed that it is the duty of the Claims Tribunal to pass an award for compensation which appears to be just and, therefore, claim advanced by the claimant in the claim petition would not preclude the Tribunal from passing an award of higher amount of compensation though not claimed by the claimant. According to the learned counsel, section 110-B of the Motor Vehicles Act, 1939 did not require the claimant to specify the grounds on which compensation was claimed and the only requirement being that of mentioning of factum of accident, the Tribunal ought to have awarded the sum which according to it was found payable to the appellant. What was maintained was that having come to the conclusion that the appellant was entitled to compensation of Rs. 75,000.00 instead of awarding the amount claimed in the petition, the Tribunal ought to have directed the appellant to move an amendment application and after service of the same to the opponents, ought to have passed an award for Rs.75,000.00. In support of his submissions, the learned counsel for the appellant placed reliance on the decisions rendered in; (i) Municipal Corporation of Greater Bombay and another vs. Kisan Gangaram Hire and others, 1987 0 ACJ 311, (ii) New India Assurance Company Ltd. vs. G. Lakshmi and Ors. 1996 ACJ 1068, (iii) Sharifunnisa and ors v. B.R.Date and ors. 1986 ACJ 792, (iv) Kela Devi and anr. v. Ram Chand and ors. 1986 0 ACJ 818, and (v) Dayali Bai and ors. v. State of Rajasthan and Ar. 1993 0 ACJ 1211.