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2020 DIGILAW 273 (TS)

Oriental Insurance Company Limited v. Thumma Kankalaxmi

2020-02-13

K.LAKSHMAN

body2020
JUDGMENT K. Lakshman, J. - Assailing the order and decree, dated 06.06.2006, passed in O.P. No.645 of 2004 by the Motor Accidents Claims Tribunal - cum - District Judge, Karimnagar (for short 'the Tribunal'), respondent No.3 therein - M/s. Oriental Insurance Company Limited filed MACMA No.2490 of 2006, while the claimants therein filed MACMA No.401 of 2012. 2. The appellant in the former appeal is Insurer, while the appellants in the latter appeal are the claimants and respondent No.6 and 7 in the former appeal are driver and owner of the lorry bearing registration No.ATS 214. 3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in O.P. No.645 of 2004 before the Tribunal. 4. Vide the aforesaid order, the Tribunal has awarded the entire amount of Rs. 8,00,000/- claimed by the petitioners towards compensation with proportionate costs and interest @ 7.5% per annum thereon against respondents jointly and severally. Feeling aggrieved by the same, the Insurer preferred MACMA No.2490 of 2006. Though the Tribunal arrived the compensation at Rs. 9,74,256/-, restricted the same to Rs. 8,00,000/- sought for by the claimants and, therefore, the claimants preferred the latter appeal for grant of just compensation. 5. Since both the appeals arise out of the very same order passed by the Tribunal and the parties are one and the same, they are being disposed of by a common judgment. 6. Heard Mr. Bathula Venkateswara Rao, learned counsel for the Insurer and Mr. Vemuganti Ramachandar Rao, learned counsel for the claimants. However, the appeal was dismissed for default against respondent Nos.6 and 7 by this Court vide order dated 05.07.2016 in the former appeal, while it was dismissed against respondent No.2 by this Court vide order dated07.09.2011 in the latter appeal. 7. According to the claimants, on 15.11.2003, the deceased - Pochaiah boarded an Auto-rickshaw bearing No.AP 15U 6787 at Rajarampalli village to go to Kondapur. While the auto-rickshaw crossing Rajarampalli bus stand at about 10.00 a.m., lorry bearing registration No.ATS 214 driven by its driver, respondent No.1, belonging to respondent No.2 and insured with respondent No.3, in a rash and negligent manner at high speed came from opposite direction and hit the auto-rickshaw. Due to the said impact, the deceased died on the spot. The police registered a case against respondent No.1. Due to the said impact, the deceased died on the spot. The police registered a case against respondent No.1. The deceased was working as Work Inspector in Irrigation Division, Peddapalli and drawing monthly salary of Rs. 10,044/-. The claimant No.1, wife, claimant Nos.2 to 4, their children and claimant No.5, father of the deceased being dependants filed the claim petition claiming an amount of Rs. 8,00,000/- as compensation. 8. The Tribunal on the analysis of the entire evidence, both oral and documentary, gave a finding that the accident was due to rash and negligent driving of driver of the offending vehicle. The Tribunal though arrived at Rs. 9,74,256/- as the compensation, but restricted the same to Rs. 8,00,000/-, the claim made by the claimants with proportionate costs and interest @ 7.5% per annum thereon from the date of petition till the date of realization. 9. The Insurer filed the former appeal challenging the liability as well as quantum of compensation. According to it, the Tribunal without appreciating the depositions and documents properly and also the fact that the driver was not examined, fixing the liability on the insurer is erroneous. But, there is no contra evidence produced by the insurer. It is also relevant to note that the insurer did not elicit anything contra from PWs.1 and 2 during cross-examination. In the absence of the same, this Court is satisfied with the reasons given by the Tribunal that the accident was due to rash and negligent driving of the driver of the lorry. 10. The next question is with regard to the quantum of compensation. It is the specific contention of the claimants that the deceased was aged 51 years as on the date of the accident. He used to work as Work Inspector in Irrigation Division, Peddapalli and used to get monthly salary of Rs. 10,044/-. However, the claimants have not filed any documentary evidence to prove the age of the deceased. But, the Tribunal after considering the left over service as 7 years 10 months, came to the conclusion that the age of the deceased as 51 years. 11. On perusal of the entire record, more particularly, deposition of PW.3, that the deceased was having 7 years 10 months left over service and his salary was Rs. 10,044/-. But, the Tribunal after considering the left over service as 7 years 10 months, came to the conclusion that the age of the deceased as 51 years. 11. On perusal of the entire record, more particularly, deposition of PW.3, that the deceased was having 7 years 10 months left over service and his salary was Rs. 10,044/-. Therefore, this Court is of the opinion that the age of the deceased should be considered as 51 years and his salary as Rs. 10,044/- minus tax components. As per Ex.A5 - salary certificate, professional tax is only being shown as Rs. 20/- and, therefore, the said amount has to be deducted from the salary. Therefore, the salary of the deceased would be Rs. 10,024/-. There are 5' dependants and as per the decision of the Apex Court in Sarla Verma v. Delhi Transport Corporation, 2009 6 SCC 121 1/4th has to be deducted from the income of the deceased towards personal and living expenses. On such deduction, an amount of Rs. 7,518/- (1/4th of 10,024/-) per month or Rs. 90,216/- per annum would be earning capacity of the deceased. The relevant multiplier for the age groups of 51-55 years is 11' as per the decision of the Apex Court in Sarla Verma, 2009 6 SCC 121 . Therefore, the appellants are entitled for Rs. 9,92,376/- (Rs.90,216 x 11) towards loss of dependency. An addition of 15% of the income should be awarded to the claimants as per the principle held by the Apex Court National Insurance Company Limited v. Pranay Sethi, 2017 16 SCC 680 for the age groups more than 50-60 years and the same would work out to Rs. 1,48,856/- (15% of Rs. 9,92,376/-). 12. As per the principle held by the Apex Court in Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram, 2018 18 SCC 130 the claimants are entitled Rs. 15,000/- towards funeral expenses and Rs. 15,000/- towards loss of estate. 13. Claimant No.1 is wife, while claimant Nos.2 to 4, children of the deceased are considered being dependants for awarding spousal consortium and parental consortium respectively. Therefore, they are entitled to Rs. 40,000/- each under the said heads as per the principle held in Magma General Insurance Company Limited3 . Similarly, claimant No.5, father of the deceased, is also entitled to Rs. 40,000/- towards filial consortium. An amount of Rs. Therefore, they are entitled to Rs. 40,000/- each under the said heads as per the principle held in Magma General Insurance Company Limited3 . Similarly, claimant No.5, father of the deceased, is also entitled to Rs. 40,000/- towards filial consortium. An amount of Rs. 5,000/- is awarded towards transportation charges. Thus, in all, the claimants are entitled to Rs. 13,76,232/- (Rupees thirteen lakhs seventy six thousand two hundred and thirty two only) as compensation under the following heads: i) Loss of dependency .. Rs. 9,92,376-00 ii) Future prospects at 15% .. Rs. 1,48,856-00 iii) Funeral expenses .. Rs. 15,000-00 iv) Loss of estate .. Rs. 15,000-00 v) Spousal Consortium .. Rs. 40,000-00 vi) Parental consortium .. Rs. 1,20,000-00 vii) Filial consortium .. Rs. 40,000-00 viii) Transportation Charges .. Rs. 5,000-00 _________________ Total .. Rs. 13,76,232-00 14. The Tribunal has awarded the interest at the rate of 7.5% per annum, which is reasonable one and, therefore, the same is affirmed and granted even on the enhanced compensation. 15. In the result, M.A.C.M.A. No.2490 of 2006 filed by the Appellant - Insurer is dismissed, while M.A.C.M.A. No.401 of 2012 filed by the claimants is allowed. Accordingly, the order and decree dated 06.06.20066 in O.P. No.645 of 2004 passed by the Tribunal are modified enhancing the compensation to Rs. 13,76,232/- (Rupees thirteen lakhs seventy six thousand two hundred and thirty two only) from Rs. 8,00,000/-(Rupees eight lakhs only) with interest at the rate of 7.5% per annum thereon from the date of petition till realization. The compensation amount shall be apportioned among the claimants in the same proportion in which original compensation amounts were directed to be apportioned by the Tribunal. The claimants are directed to pay the deficit court fee within one month from the date of receipt of a copy of this judgment. Similarly, Respondent No.3 is directed to deposit the above said amount with interest and costs, after deducting the amount, if any, deposed earlier within one month from the date of receipt of certified copy of this judgment. There shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeals shall stand closed.