Research › Search › Judgment

Andhra High Court · body

2010 DIGILAW 21 (AP)

Gampa Jaya & Six v. M. Satya Shanker Rao

2010-01-22

NOUSHAD ALI

body2010
Judgment : This is an appeal for enhancement of compensation granted in O.P.No.277 of 1997, dated 31-07-2000 on the file of the Motor Accidents Claims Tribunal (District Judge), (Tribunal in short) Karimnagar. The claimants are the appellants and in this appeal the parties are referred to as the claimants and respondents. The claimants filed O.P.No.277 of 1997 claiming compensation of Rs.10,00,000/-against respondents 1 to 3 with interest at the rate of 15% per annum and costs. The claimant No.1 is the wife of the deceased Gampa Mallesham, who died in the accident on 18-06-1996. The claimants 2 to 5 are the children of the deceased Mallesham and the claimants 6 and 7 are the parents of the deceased. It appears that the claimant No.6 Gampa Narasaiah died during the pendency of the O.P. and the claimants 1 to 5 and 7, who are the legal representatives of the claimant No.6, were already on record. The brief facts are that on 18-06-1996 at about 8.00 AM the deceased was travelling in a car bearing registration No.AAZ-8686 from Hyderabad to Suryapet along with one Kesha Srinivas. When the said car reached the outskirts of Rayanigudem village of Suryapet Mandal, the lorry bearing registration No.AP-5- X-1424 driven by the first respondent came in the opposite direction in a rash and negligent manner and dashed against the car. Consequently, the car was crushed and the deceased Mallesham sustained severe head injuries and died in the Community Government Hospital, Suryapet. The co-traveller and the driver of the car also died in the accident with whom this appeal is not concerned. The claimants filed O.P.No.276 of 1997 under Section 140 of the Motor Vehicles Act and a separate O.P.No.277 of 1997 under Section 166 of the Act. The legal representatives of the other deceased also filed O.P.No.275 of 1997 under Section 140 of the Act and O.P.No.278 of 1997 under Section 166 of the Act. As mentioned earlier this appeal is not concerned with the Legal Representatives of the other deceased in O.P.Nos.275 of 1997 and 278 of 1997. All the O.Ps. were clubbed by the Tribunal and a common award was passed by judgment, dated 31-07-2000. The claimants claimed that the offending lorry bearing registration No.AP- 5-X-1424 was driven in a rash and negligent manner and hit the car causing the death of the deceased Mallesham and others. All the O.Ps. were clubbed by the Tribunal and a common award was passed by judgment, dated 31-07-2000. The claimants claimed that the offending lorry bearing registration No.AP- 5-X-1424 was driven in a rash and negligent manner and hit the car causing the death of the deceased Mallesham and others. The deceased Mallesham was aged 41 years on the date of accident and he was doing business in agriculture earning Rs.10,000/- per month. It was claimed that he was an income tax assessee with GIR No.M-202 as HUF and M746 as an individual and paid tax of Rs.2,460/- for the year 1995-1996 under both heads. The respondents 1 and 2 remained ex parte and the third respondent insurance company opposed the claim in the O.Ps. The third respondent denied the accident and involvement of the lorry bearing No.AP-5-X-1424. It also denied that the accident took place as a result of rash and negligent driving of the first respondent and put the claimants to strict proof that the first respondent had valid licence and also the validity of the insurance policy. The third respondent had also put the claimants to a strict proof as regards the age, income and the avocation of the deceased. The Tribunal recorded evidence in O.P.No.277 of 1997 and the same was treated as evidence in O.P.No.278 of 1997. The claimant No.1 examined herself as P.W.1 and got examined P.W.2 to prove rash and negligence. She also filed evidence Exs.A1 to A13 and examined P.Ws.1 to 5. The third respondent got exhibited Ex.B1 insurance policy. The Tribunal famed issued as to whether the accident took place due to rash and negligent driving of the lorry bearing No.AP-5-X-1424 and as to the entitlement of the compensation of the claimants. P.W.2 was an eyewitness and in Ex.A5 - charge-sheet he was shown as L.W.1. He deposed to the manner of accident. Basing on the evidence of P.W.2 and the recitals in the F.I.R - Ex.A1 and the charge sheet -Ex.A5 the Tribunal reached a conclusion that the accident took place due to the rash and negligent driving on the part of the offending lorry and that Gampa Mallesham died in the said accident. He deposed to the manner of accident. Basing on the evidence of P.W.2 and the recitals in the F.I.R - Ex.A1 and the charge sheet -Ex.A5 the Tribunal reached a conclusion that the accident took place due to the rash and negligent driving on the part of the offending lorry and that Gampa Mallesham died in the said accident. The occurrence and the manner in which Mallesham died is not in dispute and since there is no appeal challenging the issue relating to rash and negligence, the said aspect need not be gone into in this appeal. Suffice it to state that the Tribunal rightly recorded a finding that the offending vehicle was driven in a rash and negligent manner and that the deceased died in the said accident. On the issue relating to the quantum of compensation and entitlement of the claimants, the Tribunal based on the evidence recorded the income of the deceased at Rs.54,000/-per annum. Out of the same, 1/3rd was deducted towards personal expenses of the deceased. His contribution to the family was recorded at Rs.36,000/- per annum. The Tribunal based on Ex.A2 - certified copy of the postmortem report recorded that the age of the deceased was 42 years. The Tribunal based on the decision of this Court reported in 1987 Accidents Claims Journal 1052 applied multiplier 12' and accordingly awarded Rs.4,32,000/- (Rs.36,000 x 12 = Rs.4,32,000/-) towards the contribution of the deceased to his estate. The Tribunal awarded Rs.15,000/-to claimant No.1 towards consortium and a further sum of Rs.10,000/-to the claimants towards love and affection. Thus, the Tribunal awarded total compensation of Rs.4,57,000/-. The claimants, not satisfied with the quantum, have filed this appeal. Heard the learned counsel for the appellants. The respondents 1 and 2 remained ex parte in the Tribunal. Despite service of notice on all the respondents, there is no appearance on their behalf in this appeal. The learned counsel for the appellants contended that the Tribunal did not consider that the deceased was earning both from the business and also as an agriculturist and that the Tribunal was not right in awarding Rs.4,57,000/- only. The point for consideration is whether the claimants are entitled for enhancement of compensation and if so, to what amount? According to the claimants the deceased was a businessman and also an agriculturist. The point for consideration is whether the claimants are entitled for enhancement of compensation and if so, to what amount? According to the claimants the deceased was a businessman and also an agriculturist. P.W.1, who is the wife of the deceased, deposed that her husband took a rice mill situated at Karimnagar from one Chakinim Agaiah on lease for a period of one year and prior to the same he took another mill viz., Radhakrishna Rice Mill from one, Gowrisetty Nagaraju. She also deposed that they owned Acs.9.00 land and her husband was earning Rs.50,000/- from business and Rs.50,000/- from Agriculture and that he was an income tax assessee. In Ex.A4, which is a certified copy of the inquest report, the occupation of the deceased was recorded as business and that he belonged to the vysya community. Claimants, however, did not file any document to show that the deceased was the leaseholder of the above mentioned rice mills. Similarly, no document was filed to show that the family owned the land. However, the claimants adduced evidence in Exs.A8 to A13 to show the income of the deceased. They also got examined P.W.5, who was income tax practitioner. Exs.A8 to A13 are the income tax returns for the assessment years 1993 to 1996. As per Ex.A8 dated 31-01-1996, net agricultural income was shown as Rs.36,000/- and as per Ex.A9 dated 31-01-1996, the net agricultural income was shown as Rs.48,000/-. These documents were signed by the Income Tax Officer on 18-03-1996. Ex.A10 is the document for the assessment year 1995-1996, which showed that a tax of Rs.58,000/-was paid. Similarly, Ex.A11 is the document for the assessment year 1993-1994 in which tax paid was shown as Rs.360/-and as per Ex.A12 for the assessment year 1994-1995 and Ex.A13 for the assessment year 1995-1996 tax was paid. These documents were not taken note by the Tribunal on the ground that they were signed by the Income Tax Officer on 18-03-1996 and filed in the Court on 15-12-1998. Ex.A10 was not taken into consideration due to the discrepancy between the claim petition and the entry in Ex.A10. I am of the opinion that as found by the Tribunal these documents are not reliable insofar as the income allegedly claimed from the agricultural source and from the rice mills. Ex.A10 was not taken into consideration due to the discrepancy between the claim petition and the entry in Ex.A10. I am of the opinion that as found by the Tribunal these documents are not reliable insofar as the income allegedly claimed from the agricultural source and from the rice mills. The claimants did not corroborate the same by filing the necessary documents regarding the ownership of the land and the nature of cultivation carried on. Further, P.W.5 admitted in his cross-examination that there was no income from the rice mills. However, the deceased was getting income on commission basis. As per the evidence of P.W.5 and Exs.A8, 9 and 10 the income from such commission for the years 1993-1994 was Rs.33,000/-, Rs.42,000/- for 1994-1995 and Rs.54,000/-for the year 1995-1996. Therefore, taking the date of accident on 18-06-1996 into consideration, the income at Rs.54,000/-per annum can be accepted as done by the Tribunal. I, therefore, hold that the deceased was earning an income of Rs.54,000/-per annum. It is now to be seen what the age of the deceased was, what should be the deduction from out of the said amount and what is the right multiplier and other additions to in order to award just compensation. The Tribunal deducted 1/3rd from the said amount and applied 12' multiplier by relying upon a decision of this Court rendered in 1997 Accidents Claims Tribunal 1052. In this regard the judgment of the Supreme Court recently rendered assumes significance in Sarla Varma Vs. Delhi Transport Corporation and another (2009 (6) SCC 121), wherein the Apex Court reviewed the entire case law regarding the award of compensation. The Apex Court laid down the criteria and the multiplier to be applied in the cases of award of compensation under Section 166 of the Motor Vehicles Act. The Apex Court observed that basically three facts need to be established by the claimants for assessing compensation in the case of death -- (a) age of the deceased ; (b) income of the deceased; and (c) the number of dependents and the issues to be determined by the Tribunal to arrive at the loss of dependency are - (i) additions/deductions to be made or arrive at the income; (ii) the deduction to be made towards a person living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. The Apex Court has laid down the said criteria to ensure uniformity and consistency in the award of compensation by various Tribunals and Courts. The Apex Court has laid down a table indicating the multiplier to be applied to various age groups. The Apex Court also laid down the procedure of the computation of the compensation and deductions to be made from the income of the deceased. The Apex Court has laid down that in the case of the deceased aged between 41 to 45, the multiplier is 14'. The number of dependents on the deceased has been taken as the basis for deduction from the income. It has been laid down that where the deceased had married, the deduction towards personal and living expenses of the deceased should be 1/3rd where the number of dependent family members are 2 to 3, 1/4th where the number of dependent family members are 4 to 6 and 1/5th where the number of dependent family members accedes 6. I am inclined to follow the judgment of the Apex Court instead of decision of this Court in 1987 Accidents Claims Journal 1052. Applying the aforesaid judgment of the Apex Court to the instant case, it is seen that the deceased was aged 42 years as per Ex.A2 certified copy of postmortem report and that his income was Rs.54,000/-per annum as per Ex.A10 Income Tax Returns for the year 1995-96 supported by the evidence of P.W.5. I accept the same as correct. There were 7 dependents on the deceased as on the date of accident, as claimant No.6 died during the trial, there were 6 dependents as on the date of the award, applying the aforesaid decision of the Apex Court, only 1/4th amount should be deducted towards the personal expenses of the deceased. Further, as the deceased was found to be 42 years old, the multiplier should be 14. Thus, the pecuniary loss would be Rs.54,000/- minus Rs.13,500/- (1/4th) = Rs.40,500/- per annum to be multiplied by 14', the amount comes to Rs.5,67,000/-. The Tribunal awarded Rs.4,32,000/-. Therefore, the differential amount is Rs.1,35,000/-towards loss of dependency. The Tribunal has already awarded conventional amounts of Rs.15,000/- towards loss of consortium to the first claimant and Rs.10,000/-towards love and affection. Hence, no further amount need be awarded. The Tribunal awarded Rs.4,32,000/-. Therefore, the differential amount is Rs.1,35,000/-towards loss of dependency. The Tribunal has already awarded conventional amounts of Rs.15,000/- towards loss of consortium to the first claimant and Rs.10,000/-towards love and affection. Hence, no further amount need be awarded. Therefore, the claimants are entitled for enhancement of compensation of Rs.1,35,000/- in addition to the compensation already awarded by the Tribunal. The claimants are also entitled for interest at 6% on the enhanced amount from the date of petition till the date of realization. The distribution of the said amount is in the same proportion as indicated by the Tribunal. Accordingly, C.M.A. is allowed in part as indicated above and the award in O.P.No.277 of 1997 is modified accordingly. No costs.