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2019 DIGILAW 148 (AP)

New India Assurance Co. Ltd. v. Shaik Salimoon

2019-07-24

G.SHYAM PRASAD

body2019
JUDGMENT : G. SHYAM PRASAD, J. 1. This appeal and cross-objections arise out of the order and decree dated 9.1.2006 passed in MVOP No. 838 of 2001 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge, Guntur. 2. The aforesaid O.P. was filed by respondents 1 to 3 herein, the wife, son and mother of the deceased, under Sections 163-A and 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 2,50,000/- on account of death of one Shaik Baji in a motor vehicle accident occurred on 25.4.2001, from the owner of the crime vehicle and the appellant-New India Assurance Company, who are respondent Nos. 1 and 2 respectively in the O.P. 3. By the impugned order, the Tribunal awarded compensation of Rs. 1,65,000/- with interest at 6% per annum from the date of petition till realization, payable by the appellant-insurer and the owner of the crime vehicle jointly and severally. 4. Aggrieved thereby, the appellant-insurance company fried the present appeal, while the respondents 1 to 3-claimants filed cross-objections seeking enhancement of compensation. 5. The brief facts of the case are as follows: The respondents-claimants filed the O.P. stating that on 25.4.2001, at about 5.30 a.m., while the deceased was going on a scooter bearing No. AP 7H 2456 as a pillion rider from Auto Nagar to Nagarjuna University and when they reached near Darga Tank at Pedakakani, the driver of auto bearing No. AP 7T 9692 drove the auto in a rash and negligent manner and dashed against the scooter of the deceased, due to which the deceased fell down and sustained grievous injuries and died. The matter was reported to Pedakakani Police Station and a case in Crime No. 65 of 2001 was registered under Sections 304-A and 337 I.P.C., against the driver of the auto. Prior to the accident, the deceased was stated to be hale and healthy and was earning Rs. 2,000/- per month as a rickshaw puller. The claimants, being the wife, son and mother of the deceased, were wholly depending upon the earnings of the deceased and they lost their dependency and future support on account of the death of the deceased. They, therefore, claimed an amount of Rs. 2,50,000/- towards compensation on account of the death of the deceased in the said motor vehicle accident. The claimants, being the wife, son and mother of the deceased, were wholly depending upon the earnings of the deceased and they lost their dependency and future support on account of the death of the deceased. They, therefore, claimed an amount of Rs. 2,50,000/- towards compensation on account of the death of the deceased in the said motor vehicle accident. The owner of the vehicle, who was respondent No. 1 in the O.P., remained ex parte before the Tribunal. The appellant-insurer, the second respondent in the O.P., filed written statement resisting the claim of the claimants. The Tribunal, on consideration of the oral and documentary evidence available on record, i.e., PWs. 1 and 2 and RW 1 and Exs. A1 to A4 and B1 to B5, held that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle and awarded compensation of Rs. 1,65,000/- with proportionate costs and interest at 6% per annum from the date of petition till realization, under different heads as follows: 1. Loss of dependency Rs.1,50,000/- 2. Loss of consortium Rs.10,000/- 3. Funeral expenses Rs.5,000/- Total Rs.1,65,000/- 6. Heard the arguments of Sri Kota Subba Rao, learned Counsel for the appellant-insurer, and Sri T.S. Rayalu, learned Counsel for the claimants-cross-objectors. 7. Before proceeding further, it would be appropriate to note that the deceased in the instant case was travelling as a pillion rider on the scooter, and the rider of the scooter, by name Gopinadh Jeena, also died in the same accident. The claimants of the rider of the scooter filed MVOP No. 880 of 2001 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-I Additional District Judge, Guntur, seeking compensation. In the said O.P., the Tribunal took note of the fact that there was triple riding on the scooter and therefore, held that there was contributory negligence on the part of both the vehicles and fixed the ratio of contributory negligence at 75% and 25% on the driver of the auto and the rider of the scooter respectively. The said finding was upheld by this Court in MACMA No. 1239 of 2007 filed by the Insurance Company against the order in MVOP No. 880 of 2001. The said finding was upheld by this Court in MACMA No. 1239 of 2007 filed by the Insurance Company against the order in MVOP No. 880 of 2001. Since both the claims arose out of the same accident, both the learned Counsel for the appellant-insurer and the learned Counsel for the claimants fairly submitted that the same ratio be fixed in the present case also. 8. Accordingly, the ratio of negligence is fixed at 75% and 25% on the part of the driver of the crime vehicle and the rider of the scooter respectively in this case also. 9. So far as the quantum of compensation is concerned, the contention of the learned Counsel for the appellant-insurer is that the compensation awarded by the Tribunal is on higher side, while the contention of the learned Counsel for the claimants-cross objectors is that the said compensation is not just and reasonable and it requires to be enhanced. 10. The deceased was stated to be a rickshaw puller. As there was no positive evidence to show the income of the deceased as Rs. 2,000/- per month, the Tribunal has taken the income of the deceased at Rs. 15,000/- per annum. In the light of the judgment of the Apex Court in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197 , the minimum income of a person working in an unorganized sector has to be taken as Rs. 3,000/- per month. In view of the aforesaid judgment of the Apex Court, the notional income of the deceased can be taken at Rs. 3,000/- per month. His annual income would, therefore, comes to Rs. 36,000/-. After deducting 1/3rd towards his personal expenses, his contribution to the family would be Rs. 24,000/- per annum. 11. The deceased was aged 26 years on the date of the accident. The Tribunal has taken the multiplier 15' as per second Schedule. However, as per the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 (3) ALD 83 (SC) : (2009) 6 SCC 121 , the appropriate multiplier applicable to the age group of 26 to 30 years is 17'. Therefore, the said multiplier has to be applied for the purpose of computing the compensation. On application of the said multiplier, the loss of dependency comes to Rs. 4,08,000/-. 12. The Tribunal awarded Rs. Therefore, the said multiplier has to be applied for the purpose of computing the compensation. On application of the said multiplier, the loss of dependency comes to Rs. 4,08,000/-. 12. The Tribunal awarded Rs. 20,000/- to the first claimant towards loss of consortium and Rs. 5,000/- towards funeral expenses., The Tribunal did not grant any amount towards loss of estate. The Apex Court, in the judgment in National Insurance Company Limited v. Pranay Sethi, 2017 (6) ALD 170 (SC) : 2017 (2) TN MAC 609 (SC), held in Para No. 61 Clause (viii), that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively and the aforesaid amounts should be enhanced at the rate of 10% in every three years. In view of the ratio laid down in the above judgment, in the instant case also, the loss of consortium and funeral expenses at Rs. 40,000/- and Rs. 15,000/- respectively and a sum of Rs. 15,000/- towards loss of estate is awarded. 13. Therefore, the total compensation payable to the claimants-cross-objectors under different heads can be detailed as below: 1. Loss of dependency Rs.4,08,000/- 2. Loss of estate Rs.15,000/- 3. Loss of Consortium Rs.40,000/- 4. Loss of Expenses Rs.15,000/- Total Rs.4,78,000/- 14. Thus, the total compensation comes to Rs. 4,78,000/-. As the contributory negligence was fixed at 75% on the driver of the crime vehicle, the appellant-insurer is liable to pay 75% of the said amount, which comes to Rs. 3,58,500/-. 15. In Nagappa v. Gurudayal Singh and others, 2003 (1) ALD 1 (SC) : (2003) 2 SCC 274 , the Apex Court observed that there is no bar to award compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. Therefore, it was held that the claimant though does not claim the compensation under various heads, it is open to him/her to claim compensation on the grounds not stated earlier, which were not specified in the application. Hence, the claimants in the instant case are entitled to a total compensation of Rs. 3,58,500/- as against the claim of Rs. 2,50,000/-. 16. In the result, the compensation awarded by the Tribunal at Rs. 1,65,000/- is enhanced to Rs. Hence, the claimants in the instant case are entitled to a total compensation of Rs. 3,58,500/- as against the claim of Rs. 2,50,000/-. 16. In the result, the compensation awarded by the Tribunal at Rs. 1,65,000/- is enhanced to Rs. 3,58,500/- with proportionate costs and interest at the rate of 6% per annum on the amount awarded by the Tribunal from the date of petition till the date of this order and at the rate of 7.5% per annum on the enhanced compensation from the date of this order till realization. The appellant-insurer is directed to deposit the said compensation, excluding the amount already deposited, if any, within eight weeks from the date of receipt of a copy of this order. On such deposit, the claimants-cross-objectors. are- entitled to withdraw their respective shares, as fixed by the Tribunal. The claimants-cross-objectors are directed to pay the Court fee on the enhanced compensation amount. 17. Accordingly, the appeal is dismissed and the cross-objections are allowed to the extent indicated above. No order as to costs. 18. As a sequel, pending miscellaneous petitions, if any, shall stand closed. No order as to costs.