Case Note & Summary
The present matter arises from a fatal road accident on 25.07.2011, when Jose Leandro Souza, a 38-year-old welder and agricultural labourer, was struck by a tipper truck while riding his Honda Activa scooter on the Margao-Panaji Highway, near Old Mardol Hotel, Verna. His widow, Smt. Rosa Maria Fernandes e Souza, and minor son, Master Raydon Souza, filed Claim Petition No.217 of 2011 before the Motor Accident Claims Tribunal, Margao, seeking Rs.19,75,000/- as compensation. The Tribunal, by its judgment and award dated 18.09.2013, awarded Rs.7,89,500/- with interest at 9% per annum, assessing the deceased’s notional income at Rs.6,500/- per month. Aggrieved, the claimants filed First Appeal No.148 of 2013 on 20.12.2013 for enhancement of compensation, contending the income should be Rs.10,000/- per month, future prospects at 40% should be added as per Pranay Sheti, and non-pecuniary damages should be raised. The respondents (driver, owner, and insurer) filed Cross Objections No.4 of 2014 on 12.03.2014, challenging the award on grounds that negligence was not proved and the compensation was excessive. The cross-objectioners also raised the preliminary issue of maintainability of their cross objections, arguing that they are aggrieved parties entitled to file cross objections under Order 41 Rule 22 of the Code of Civil Procedure, 1908, even though the insurer had deposited the awarded amount without protest. The appellants, on the other hand, argued that the cross objections are not maintainable because the respondents had accepted the award by depositing the amount and were not aggrieved. They relied on an unreported decision in Francis Fernandes v. Roshni D'Silva. The respondents cited Narendra Kumar v. Yarenissa, Urmila Devi v. Branch Manager National Insurance Co. Ltd., and an unreported Allahabad High Court judgment to support maintainability. On the merits of quantum, the appellants argued that the Tribunal erred in ignoring evidence of the deceased’s welding and agricultural work, and relied on the principles laid down in National Insurance Co. v. Pranay Sheti for future prospects and standardized non-pecuniary heads. The respondents countered that there was no reliable proof of income, the deceased lacked welding qualifications, and the award was just. On negligence, the appellants pointed to the chargesheet filed against the driver and the presence of eye witnesses, arguing that the driver and owner failed to enter the witness box, warranting an adverse inference. The respondents contended the eye witnesses were relatives and interested parties. The High Court heard arguments, reserved judgment on 29.10.2020, and began pronouncing on 04.12.2020. The available text of the judgment discusses the submissions and preliminary legal citations, but cuts off before the court’s final analysis and decision on any of the issues.
Issue of Consideration
Maintainability of cross objections in an appeal under Section 173 of Motor Vehicles Act, 1988; quantum of compensation including income, future prospects, consortium, funeral expenses, and loss of estate; proof of negligence.
Case Details
2020 LawText (BOM) (12) 80
First Appeal No. 148 of 2013 with Cross Objections No.4 of 2014
Mr. S.S. Kakodkar for Appellant; Mr. E. Afonso for Respondents/Cross Objectioners
Smt. Rosa Maria Fernandes e Souza and Master Raydon Souza
Jaisingh Kiro, Mrs. Florinda Colaco, The New India Assurance Company Ltd.
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Nature of Litigation
Appeal and cross objections arising from a motor accident claim under the Motor Vehicles Act, 1988, seeking enhancement of compensation and challenging the findings on negligence and quantum.
Remedy Sought
Appellants (claimants) sought enhancement of compensation awarded by the Motor Accident Claims Tribunal; respondents/cross-objectioners sought setting aside the award on grounds of no negligence and excessive quantum.
Filing Reason
Dissatisfaction with the MACT award of Rs.7,89,500/- as compensation for the death of Jose Leandro Souza in a road accident; claimants considered the compensation inadequate, while respondents challenged the finding of negligence and quantum.
Previous Decisions
The Motor Accident Claims Tribunal, Margao, in Claim Petition No.217 of 2011, awarded Rs.7,89,500/- with 9% p.a. interest by judgment dated 18.09.2013.
Issues
Whether cross objections filed by respondents are maintainable in an appeal under Section 173 of Motor Vehicles Act, 1988, especially when they have deposited the awarded amount without protest.
Whether the Tribunal correctly assessed the monthly income of the deceased at Rs.6,500/- and whether the claimants are entitled to enhancement on account of actual income, future prospects, and non-pecuniary damages.
Whether the respondents have sufficiently proved the alleged rash and negligent driving of the tipper truck driver.
Submissions/Arguments
Appellants: Cross objections not maintainable as respondents not aggrieved due to depositing compensation without protest; reliance on Francis Fernandes vs. Roshni D'Silva; compensation should be enhanced based on actual income of Rs.10,000/- and future prospects at 40% as per Pranay Sheti; non-pecuniary heads to be increased; negligence proved by FIR/chargesheet and eye witnesses; adverse inference against driver/owner for not entering witness box.
Respondents/Cross-objectioners: Cross objections maintainable under Order 41 Rule 22 CPC; reliance on Narendra Kumar, Urmila Devi, and Allahabad HC judgment; eye witnesses are interested relatives; income not proved; deceased not qualified welder; award is just and fair; insurer's right to challenge limited but maintainable.
Judgment Excerpts
The present appeal and cross objections are filed being aggrieved by the judgment and award dated 18.09.2013 passed by the Motor Accident Claims Tribunal, Margao, in Claim Petition No.217 of 2011 for enhancement and cross objections are filed for setting aside the Judgment and Award therein.
The learned Tribunal awarded amount of Rs.7,89,500/- along with interest at the rate of 9% per annum.
It is further submitted that the Cross Objections are not maintainable as those were filed in the month of March, 2014 and, that too, after depositing, without any protest or reservation, the entire amount of compensation as per the award.
Learned Counsel relied on National Insurance vs. Pranay Sheti & ors. (2017) 16 SCC 680.
In my considered opinion, the said citation is on the point that the insurer has a remedy by filing an appeal before the High Court and, therefore, the High Court ought not to have entertained the petition under Article 226 and 227 of the Consti...
Procedural History
On 25.07.2011, a road accident occurred causing death of Jose Leandro Souza. Claim Petition No.217 of 2011 was filed by the widow and minor son before the Motor Accident Claims Tribunal, Margao. The Tribunal passed an award on 18.09.2013 granting Rs.7,89,500/- with 9% interest. The claimants filed First Appeal No.148 of 2013 on 20.12.2013 for enhancement. The respondents filed Cross Objections No.4 of 2014 on 12.03.2014. The High Court heard the matter and reserved judgment on 29.10.2020, and pronounced on 04.12.2020.
Acts & Sections
- Motor Vehicles Act, 1988: Section 173, Section 149(2)
- Code of Civil Procedure, 1908: Order 41 Rule 22, Order 21 Rule 1
- Constitution of India: Article 226, Article 227
