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2020 DIGILAW 232 (AP)

Patan Parveen Khanam @ S. Parveen Begum v. D. Sreenivasan

2020-03-12

R.RAGHUNANDAN RAO

body2020
JUDGMENT : The Appellants, who are the claimants in MVOP No.661 of 2007, have filed the present appeal against the Award Dt.12.-08-2009 of the Motor Accidents Claim Tribunal-cum-Principal District Judge, Kadapa, (for short ‘the Tribunal’). 2. On account of an accident on 04.08.2007, Patan Khaleel Ahamad Khan, who was driving a lorry bearing No. AP 04V 2354 passed away on account of the accident involving this lorry with another lorry bearing registration No. TN 21 L 6037. Late Patan Khaleel Ahammed Khan left behind his wife, who is the first claimant, two minor sons, who are claimants Nos. 2 and 3 and his mother-Claimant No.4, who initiated MVOP No.661 of 2007 with a claim of Rs.7,00,000/-. 3. Learned Tribunal has framed the following issues: (i) Whether the deceased Patan Khaleel Ahamad Khan, S/o Mahaboob Khan died owing to rash and negligent driving by driver of Lorry bearing registration No. TN 21 L 6037 owned by respondent No.1 on 04.08.2007 at 6.00 pm on Saleem to Dharmapuri Road near Rajyalakshmi Petrol Bunk ? (ii) Whether the respondents 1 and 2 are jointly and severally liable for the compensation claimed by the petitioners ? (iii) Whether the petitioners 1 to 4 are entitled for compensation as claimed by them ? (iv) To what relief ? and held in favour of the claimants in relation to Issues Nos. 1 and 2. It may be mentioned that respondent No.1 in the MVOP was the owner of the other vehicle and respondent No.2 was the insurer of the other vehicle. 4. Having held in favour of the claimants in relation to Issue Nos. 1 and 2, the Tribunal then proceeded to consider the question of compensation payable. It was the evidence of the claimants that the deceased was a lorry driver with a heavy vehicle driving license earning Rs.5,000/-per month. The said amount of Rs.5,000/-per month was shown by way of a salary certificate issued by the owner of the vehicle, who was examined as PW2. However, it appears that the first claimant who was examined as PW1 is said to have admitted that the ration card of the claimants discloses the income of the family at Rs.9,000/-per annum. The said amount of Rs.5,000/-per month was shown by way of a salary certificate issued by the owner of the vehicle, who was examined as PW2. However, it appears that the first claimant who was examined as PW1 is said to have admitted that the ration card of the claimants discloses the income of the family at Rs.9,000/-per annum. On account of this statement, the Tribunal refused to accept that the deceased was earning Rs.5000/-per month and fixed compensation on the basis of a notional income of Rs.15,000/-per annum and applied multiplier “16” arriving at a figure of Rs.2,40,000/-as compensation towards loss of income and future expectancy of life and deducted 1/3rd of the same towards personal expenses of the deceased, resulting in a figure of Rs.1,80,000/-. The tribunal also granted compensation at Rs.15,000/-towards loss of estate, compensation towards funeral expenses at Rs.2,000/-and compensation towards loss of consortium in favour of first claimant at Rs.3,000/-and thereby arrived at a total compensation of Rs.2,00,000/-, which was to be paid to the claimants with interest at 6% per annum from the date of petition till deposit. 5. Mr. S. Arifullah, appearing for the claimants/appellants submitted that the Tribunal mis-directed itself grossly in taking the notional income at Rs.15,000/-and also erred in granting amounts which were much lower than permissible in relation to other claims, apart from fixing 1/3rd deduction towards personal expenses, when the said deduction should have been 1/4th. The learned counsel also relied on the judgments of the Hon’ble Supreme Court in Sarla Verma (Smt) and others v Delhi Transport Corporation and another, (2009) 6 SCC 121 , Syed Sadiq and others v Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735 and the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited v Pranay Sethi and others, 2017 (6) ALD 170 (SC). 6. Heard learned counsel for the Claimants/Appellants. 7. Sri Kota Subbarao, appearing for the respondent No.1/Insurance Company submits that the fixation of the income of the deceased on a notional basis of Rs.15,000/-per annum by the Tribunal was correct in view of the undisputed figure of Rs.9,000/-per month being the income of the family as per the ration card and as such, no further enhancement would be permissible in the case. 8. 8. A significant fact which needs to be looked at is that the deceased, who was a resident of Kadapa District, was driving a lorry in Tamil Nadu State when the accident occurred. This would clearly mean that the deceased was a lorry driver, who has enough experience to drive a lorry in the State of Tamil Nadu, which is at a distance from his area of residence. In such a case, the refusal of the Tribunal to accept the Salary Certificate of Rs.5,000/-per month issued by PW2 is not acceptable. Further, the Tribunal simply went on the basis of a stray sentence in the cross examination of PW2 and relied upon a ration card which was not even marked as an exhibit in the trial. For both these reasons, the finding of the Tribunal that the income of the deceased should be fixed at a notional value of Rs.15,000/-per annum has to be set aside. The salary of a lorry driver driving on an inter-state basis, in the year 2007, would definitely be not less than Rs.5,000/-per month. In these circumstances, the claim of the claimants that the deceased was earning a sum of Rs.5,000/-per month would have to be accepted. 9. Coming to the compensation that is to be calculated on the basis of that income. The first issue that would arise would be the quantum of compensation on account of loss of income. The method of calculation of such compensation has been gone into at length by various leading judgments of the Hon’ble Supreme Court and other Courts. For the purpose of calculating compensation for loss of income, the Hon’ble Supreme Court in Sarla Verma’s case (1 supra) had set out the method of such calculation and the same has been approved by the Hon’ble Supreme Court in Pranay Sethi’s case (3 supra). The Hon’ble Supreme Court in the case of Sarla Verma (1 supra) had held that compensation in case of death is to be calculated in three steps. The first step being ascertaining the multiplicand which would require an estimate of the income of the deceased per annum, the deduction to be made in regard to the amount which the deceased would spend on himself, step No.2 would be ascertaining the multiplier to be applied to the net annual income and step No.3 being the actual calculation of the figure. Apart from this, compensation was also to be paid out for loss of estate, lost of consortium, funeral expenses and medical expenses, if any, etc., 10. On the question of ascertaining the income of the deceased and the consequential loss of income to the family, the following factors are to be looked at. (1) The actual income of the deceased per annum; (2) the prospect of future addition to the said income and (3) the deduction that is to be made for personal expenses. 11. As far as the income of the deceased is concerned, it can be safely taken to be Rs.60,000/-per annum. On the question of future income, the Hon’ble Supreme Court in the case of Pranay Sethi (3 supra) had held that in case the deceased was self employed or on a fixed salary, an addition of 40% to the established income, should be the warrant, where the deceased was below the age of 40. In the present case, the deceased was 33 years old and therefore, an addition of 40% of the established income would have to be made. 12. On the issue of the deduction that needs to be made on account of personal expenses of the deceased, the Hon’ble Supreme Court in the case of Pranay Sethi (3 supra) (para Nos. 43 and 61) held that the principles set out in para No.43.6 of Reshma Kumari and others v Madan Mohan and another, (2013) 9 SCC 65 should be applied. In para No.43.6 of Reshma Kumari’s case, the Hon’ble Supreme Court held that the deductions set out in para Nos. 30 to 32 of the Judgment in Sarla Verma’s case should be applied. According to the said paragraph in Sarla Verma’s case, where the deceased was married and the number of dependant family members is 2 to 3, 1/4th of the income should be taken as the deduction to be made. In the present case, the family of the deceased consisted of himself, his wife, two minor sons and mother. In those circumstances, the deduction would be 1/4th of the income. 13. The income of the deceased being Rs.60,000/-per annum, a sum of Rs.15,000/-would have to be deducted towards 1/4 deduction. The net amount available to the dependants would be Rs.45,000/-per annum. The Tribunal applied the multiplicand of ‘16’ and the same can be applied here also. In those circumstances, the deduction would be 1/4th of the income. 13. The income of the deceased being Rs.60,000/-per annum, a sum of Rs.15,000/-would have to be deducted towards 1/4 deduction. The net amount available to the dependants would be Rs.45,000/-per annum. The Tribunal applied the multiplicand of ‘16’ and the same can be applied here also. The compensation payable on account of the loss of income would be (Rs.45,000 x 16 + 40/100 x 45,000 x 16) = (Rs.7,20,000/-+ 2,88,000/-) = Rs.10,08,000/-. 14. Apart from this compensation, the claimants would also be entitled as per, para No.51, of the Judgment of the Hon’ble Supreme Court in the case of Pranay Sethi (3 supra) to enhance compensation under the following heads: 1. Loss of Estate Rs.15,000/- 2. Loss of Consortium For 1st claimant Rs.40,000/- 3. Funeral expenses Rs.15,000/-. 15. The amount claimed by the claimants was Rs.7,00,000/-. However, the present award goes beyond the claimed amount. It is now settled law that in such deserving cases, the Tribunals and the Court would be entitled to award amounts, which are beyond the amounts claimed also. As such, the above amounts are being awarded as compensation to the claimants. 16. Accordingly, the Civil Miscellaneous Appeal is allowed and the compensation awarded by the MACT is enhanced from Rs.2,00,000/-to Rs. 10,78,000/-. The enhanced amount of compensation would carry interest at the rate of 6% per annum from the date of petition till deposit of the said amount. The conditions of withdrawal as set out in para-16 of the award would be applicable to the enhanced amount. The appellants are directed to pay the Court fee on the enhanced compensation amount. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.