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2020 DIGILAW 883 (AP)

S. Chinnamma v. A. Sudhakar Reddy

2020-12-31

NINALA JAYASURYA

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JUDGMENT : Ninala Jayasurya, J. 1. This is an appeal filed by the claimants, aggrieved by the judgment and decree dated 6.7.2005 in MVOP No. 560 of 2004 passed by the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool (hereinafter referred to as Claims Tribunal), whereunder the Claims Tribunal granted a compensation of Rs. 1,33,000/- as against a claim of Rs. 3,00,000/- made by the claimants. 2. The brief facts that lead to the filing of the present appeal are as follows: The appellants are wife, children and father of one Pedda Samanna @ Raju (hereinafter referred to as 'the deceased') who died in a road accident which occurred on 9.5.2004. The appellants/claimants filed the said claim petition inter alia stating that the deceased died in a road accident due to the rash and negligent driving of tractor/trailer bearing Registration Nos. AP-21-U-7586 and AP-21-U-7587 belonging to the first respondent and insured with the second respondent. It is further stated that the deceased was hale and healthy, working as coolie and earning Rs. 4,500/- per month and contributing his entire income for the family. As a result of the death of the deceased, the appellants who are depending on him, lost their source of livelihood and as such entitled to compensation from the respondents being the owner and insurer of the vehicle respectively. The respondents filed their respective written statements contending inter alia that the deceased himself was responsible for the accident, that the deceased was sitting carelessly on the top of the water tank and therefore he fell down which resulted in his death and that the driver of the tractor/trailer was not responsible. It was also pleaded that the driver of the vehicle was not having valid driving license to drive the vehicle. On the basis of the said pleas, it was urged that the claimants are not entitled to the compensation sought for. 3. On hearing the respective parties, the Claims Tribunal formulated the issues for consideration with regard to occurrence of the accident, the reasons for the accident and compensation to which the appellants/claimants are entitled to. In support of their case, the claimants got examined P. Ws. 1 and 2 and Exs. A1 to A5 were marked on their behalf. On behalf of the second respondent/insurance company, R.W. 1 was examined and Exs. B1 to B3 were marked. 4. In support of their case, the claimants got examined P. Ws. 1 and 2 and Exs. A1 to A5 were marked on their behalf. On behalf of the second respondent/insurance company, R.W. 1 was examined and Exs. B1 to B3 were marked. 4. The Claims Tribunal after appreciation of evidence held that the accident occurred because of rash and negligent driving of the tractor only. Insofar as the issue with regard to quantum of compensation is concerned, the Tribunal, taking into account the monthly income of the deceased at Rs. 1,250/- per month, arrived at Rs. 15,000/- as income per annum. The Tribunal deducted Rs. 5,000/- there on towards personal expenses of the deceased and arrived at Rs. 10,000/- per annum as loss of his contribution to the family. Applying multiplier of 10', the Tribunal arrived at the loss of dependency @ Rs. 1,00,000/-. The Tribunal further awarded a sum of Rs. 15,000/- towards loss of consortium and Rs. 15,000/- to all the claimants/appellants towards loss of estate, Rs. 2,500/- towards funeral expenses and Rs. 500/- towards transportation of the dead body of deceased. Thus, in all, the Claims Tribunal awarded a sum of Rs. 1,33,000/- towards compensation payable by the respondents and accordingly passed a judgment and decree dated 6.7.2005 for the said sum of Rs. 1,33,000/- with interest @ 7.5% per annum from the date of the petition till the date of realization of the amount. The Tribunal further directed, the amount so awarded, shall be disbursed to the claimants/appellants in terms of the apportionment made in judgment and decree, dated 6.7.2005. The Tribunal directed that the said amount has to be paid by the first respondent and the same is to be indemnified by the second respondent respectively. 5. Aggrieved by the Award of Compensation in partly allowing the O.P., the claimants/appellants filed the above appeal. 6. There is no representation on behalf of the respondents. On the earlier occasion, when the matter was listed for hearing, there was no representation on behalf of the second respondent/insurance company. Therefore, the Registry was directed to print the name of second respondent/insurance company i.e., Oriental Insurance Company Limited in the cause list. 6. There is no representation on behalf of the respondents. On the earlier occasion, when the matter was listed for hearing, there was no representation on behalf of the second respondent/insurance company. Therefore, the Registry was directed to print the name of second respondent/insurance company i.e., Oriental Insurance Company Limited in the cause list. Though the name of the insurance company is reflected in the cause list, there is no representation on behalf of the second respondent/insurance company and as such the matter was posted under the caption for judgment, but there was no representation. 7. Heard learned Counsel for the appellants/claimants. Learned Counsel for the appellants/claimants submits that the judgment and decree of the Claims Tribunal, insofar as, it is adverse to the appellants is concerned, is not tenable or sustainable. Learned Counsel further submits that the Claims Tribunal erred in taking the monthly income of the deceased @ Rs. 1,250/- per month, and further in applying multiplier as 10'. Learned Counsel submits that as per the judgment of the Hon'ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (3) ALD 83 (SC) : (2009) 6 SCC 121 , in respect of age group like the deceased i.e., 46 to 50 years, the applicable multiplier is 13'. The learned Counsel for the appellants submits that the Tribunal ought to have accepted the income of the deceased @ Rs. 4,500/- as the same was not disproved by the respondents, that in similar facts and circumstances, the Hon'ble Supreme Court in a case reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (R), 2011 (6) ALD 75 (SC), took into consideration, the monthly income of a coolie @ Rs. 4,500/- per month, at the time of accident which occurred in the year 2004 and that in the present case also, the accident took place in the year 2004 and in such a view of the matter, the monthly income @ Rs. 4,500/- should be adopted even in respect of the deceased who was working as coolie at the time of accident which occurred in the year 2004. That is a case where the matter was carried by way of an appeal to the Hon'ble Supreme Court wherein the Tribunal has taken into consideration, the earnings of a coolie @ Rs. 3,000/- as against Rs. That is a case where the matter was carried by way of an appeal to the Hon'ble Supreme Court wherein the Tribunal has taken into consideration, the earnings of a coolie @ Rs. 3,000/- as against Rs. 4,500/- on the assumption that the wages of the labourer during the relevant period i.e., in the year 2004 was Rs. 100/- per day. The Hon'ble Supreme Court interfering in the matter recorded its conclusions holding inter-alia that the view taken by the Tribunal is not sustainable. The relevant paragraph of the judgment of the Hon'ble Supreme Court is extracted herein. "14: In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning Rs. 4,500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of Rs. 3,000/- only on the assumption that wages of the labourer during the relevant period viz., in the year 2004, was Rs. 100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of Rs. 3,000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between Rs. 100/- to Rs. 150/- per day or Rs. 4,500/- per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4,500/- to Rs. 3,000/- per month. We, therefore, accept his statement that his monthly earning was Rs. 4,500/-." 8. Learned Counsel with reference to the above judgment of the Hon'ble Supreme Court submits that the even in the present case on hand, the Tribunal had simply taken the monthly income of the deceased who was a Coolie @ Rs. 1,250/- without any justification. This Court finds considerable force in the contention advanced by the Counsel for the appellants. No reasons were assigned by the Claims Tribunal for adopting monthly income @ Rs. 1,250/-. The appellants/claimants cannot be expected to file or produce any income certificate in respect of the earnings of the deceased who was a Coolie. There is no denial that the deceased was not a Coolie. Therefore, the monthly income of Rs. 1,250/-, as taken by the Claims Tribunal is not just or tenable as the same was taken without any valid basis. Applying the judgment of the Hon'ble Supreme Court referred to supra, it would be appropriate in the facts and circumstances of the case to take the monthly income of the deceased as Rs. 4,500/- per month to arrive at loss of dependency. 9. With regard to the contention that the multiplier as adopted by the Claims Tribunal is not correct and a multiplier of 13' has to be taken into account, in view of the ratio laid down in the Sarla Verma's case (supra), the multiplier applicable for the age group of 46 to 50 years, in the present case should be 13'. 10. 10. Apart from the contentions referred to above, the learned Counsel for the appellants also submits that the compensation as awarded by the Claims Tribunal is not just and reasonable compensation and the Claims Tribunal, despite evidence on record, has failed to allow the claim in toto, and in fact, in the facts and circumstances of the case, the claimants are entitled to more compensation, than what was claimed in the claim petition. In support of his contentions, learned Counsel has relied on the judgment of the Hon'ble Supreme Court in Nagappa v. Gurudayal Singh and others, 2003 (1) ALD 1 (SC). The Apex Court in the said judgment 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 an Award. In the said judgment, the Hon'ble Supreme Court further held that the claimants, though does not claim the compensation under various heads, it is open to him or her to claim compensation on the grounds not stated earlier, which were not specified in the application. The learned Counsel further relied on the judgments of learned Single Judge of this Court in Royal Sundaram Alliance Insurance Co. Ltd., Chennai v. Gollapudi Madhavi and others, 2019 (6) ALD 492 (AP) and in Jami Nirmala and others v. Chavali Mary Rani and others, 2019 (6) ALD 494 (AP) and submitted that the claimants are entitled for more compensation in view of the factual and legal position referred to above. The learned Counsel also relied on the judgment of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others, 2017 (6) ALD 170 (SC) : (2017) 16 SCC 680 and submitted that the claimants are entitled to reasonable amounts on conventional heads viz., loss of estate, loss of consortium and funeral expenses in terms of the said judgment. 11. On detailed consideration of the contentions advanced on behalf of the Counsel for the claimants, the material available on record and the decisions cited supra, the issue, what would be just and reasonable compensation, is to be determined. The claimants claimed that the deceased was a Coolie earning Rs. 4,500/- per month and the same is un-controverted. As opined supra, the Claims Tribunal had taken the monthly income of the deceased @ Rs. 1,250/- without any valid basis. The claimants claimed that the deceased was a Coolie earning Rs. 4,500/- per month and the same is un-controverted. As opined supra, the Claims Tribunal had taken the monthly income of the deceased @ Rs. 1,250/- without any valid basis. In the absence of any other evidence contrary to the claim made by the claimants, the Claims Tribunal should have accepted the claim and adopted the monthly earnings @ Rs. 4,500/- as claimed. As observed by the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (supra), there was no reason for the Tribunal to refuse the claim of the claimants and taking the monthly earnings @ Rs. 1,250/- only. The claim is not so exorbitant nor the same is contrary to any ground realities. In such a view of the matter, this Court is of the opinion that the Tribunal, without any justification has restricted monthly income of the deceased @ Rs. 1,250/- per month which is not just or reasonable and thereby committed error in taking the said amount for the purpose of arriving at the loss of dependency. Further the submissions of the learned Counsel for the appellants with reference to awarding of just and reasonable compensation deserves consideration in the light of the judgments relied upon by him referred to supra. As observed by the Hon'ble Courts in a catena of decisions, the Tribunals are expected to make an Award by determining the amount of compensation which should appear to be just and proper. In the present case, the compensation as awarded by the Claims Tribunal, against the background of the facts and circumstances of the case, is not just and reasonable and the claimants are entitled to more compensation though they might not have claimed the same at the time of filing of the claim petition. 12. This Court, in the light of the facts and circumstances, is inclined to take into consideration, the monthly income of the deceased @ Rs. 4,500/- since there is no other evidence available on record that he was not earning the same and in the light of the judgment of the Hon'ble Supreme Court reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (supra). Therefore, for the purpose of arriving at the compensation towards loss of dependency, income of Rs. 4,500/- since there is no other evidence available on record that he was not earning the same and in the light of the judgment of the Hon'ble Supreme Court reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (supra). Therefore, for the purpose of arriving at the compensation towards loss of dependency, income of Rs. 4,500/- per month is adopted and thus the annual income of the deceased is arrived at Rs. 54,000/-. After deducting 1/3rd of the income towards personal expenses of the deceased, contribution to his family would be at Rs. 36,000/- per annum. As per the judgment of the Hon'ble Supreme Court in Sarla Verma's case (supra), the appropriate multiplier for the age group of 46 to 50 years is 13'. Adopting the same, the total compensation towards loss of dependency is arrived at Rs. 4,68,000/- (Rs. 36,000/- x 13 = Rs. 4,68,000/-). Apart from the above, the appellants are entitled for compensation under conventional heads in terms of the judgment of the Hon'ble Supreme Court in Pranay Sethi's case (supra). Accordingly, the claimants are entitled to an amount of Rs. 15,000/- towards loss of estate, Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards funeral expenses. 13. Accordingly, the appeal is allowed enhancing the compensation from Rs. 1,33,000/- to Rs. 5,38,000/- with costs alongwith interest @ 7.5% per annum from the date of petition till the date of realization. The respondents are directed to deposit the enhanced compensation amount after giving credit to the amount already deposited within a period of 8 weeks from the date of receipt of this order. The appellants/claimants shall pay deficit Court fee on the compensation amount awarded over and above the amount claimed within six weeks from the date of receipt of copy of this order. The appellants/claimants are entitled to withdraw the enhanced compensation as per their respective shares in terms of the decree of the Claims Tribunal. 14. The appeal is accordingly allowed, as indicated above. 15. Miscellaneous petitions, if any, pending in this appeal shall stand dismissed.