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2022 DIGILAW 1112 (AP)

National Insurance Company Ltd. v. Sake Ganganna

2022-10-21

T.MALLIKARJUNA RAO

body2022
JUDGMENT: 1. Aggrieved by the order dated 21.01.2013 in M.V.O.P. No.217 of 2011 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Anantapur (for short ‘the Tribunal’), the 2nd respondent/National Insurance Company Limited represented by its Divisional Manager, Anantapur, has preferred this appeal questioning the award of compensation an amount of Rs.5,15,000/- by the tribunal with proportionate costs and interest. 2. For convenience, the parties will hereinafter be referred to as they were arrayed in the M.V. O.P. 3. The claimant has filed the claim petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 to grant compensation of Rs.6,00,000/- for the death of Sake Vengamuni (hereinafter referred to as ‘the deceased’), who is the son of the claimant No.1 and 2 and brother of claimant No.3 and 4, in a motor accident that occurred on 28.08.2010 at about 00:30 hours, during night time while the deceased was travelling as a Cleaner in the DCM Van bearing No. AP 31 TT 6365, at the out outskirts of Addakal Village on N.H.7 road in Mahaboob Nagar District, one lorry bearing No. AP 16 TV 0588 (herein after referred to as ‘crime vehicle’) which was going ahead was suddenly stopped on the middle of the road for picking up some passengers and luggage, the driver of the lorry has not applied any signals while stopping the lorry suddenly in midst of the road without giving any indicators, as a result of which, the DCM Van dashed against the lorry, thereby the deceased sustained grievous injuries all over the body and he was shifted to G.G.H., Mahaboobnagar and succumbed to death while undergoing treatment. 4. The respondents No.1, 4 to 9 have remained ex-parte. The 2nd respondent has filed its written statement contending that there is no rashness and negligence on the part of the driver of the lorry bearing No. AP 16 TV 0588 and the accident had occurred only due to the negligence on the part of the driver of the DCM van and it is obvious in the criminal records and in the claim petition also and the petitioner has to establish that the crime vehicle was insured with the 2nd respondent and the 2nd respondent does not admit the age, avocation and income of the deceased. 5. 5. The 10th respondent has filed its counter by submitting that the alleged ghastly mishap occurred due to rash and negligent driving of the driver of the lorry belonging to the 1st respondent but not due to the negligence on the part of the driver of the DCM van and therefore, the driver of the crime lorry is alone responsible for the accident. 6. Based on the pleadings the tribunal has framed appropriate issues. During the trial, on behalf of the claimants P.Ws.1 to 4 were examined and Exs.A.1 to A.8 besides Exs.X.1 to X.3 were marked. On behalf of the 2nd respondent, no oral evidence was adduced, however, Ex.B.1-policy was marked. On behalf of 10th respondent, RW-1 was examined and Ex.B.2 to B.10 were marked. After considering the material evidence on record, the tribunal has held that the deceased died while travelling in the DCM Van due to rashness and negligence on the part of the driver of the Lorry and the respondents No.1 and 2 are jointly and severally liable to pay the compensation of Rs.5,15,000/- to the claimants with interest @ 7.5% per annum and the claim is dismissed against the R-3 to R-10 without costs. 7. Heard the learned counsel for the 2nd respondent, and the learned counsel for the claimants. 8. It is contended by the learned counsel for the 2nd respondent that the tribunal ought to have held that it is a clear case of contributory negligence and the driver of DCM van is equally responsible for occurrence of the accident and the tribunal erred in adopting Rs.60,000/- as the annual income of the deceased and also in awarding a sum of Rs.50,000/- towards loss of love and affection. 9. Learned counsel for the claimants has supported the finding of the tribunal. 10. Now the point for consideration is whether the accident occurred due to rash and negligence of the driver of the crime vehicle and the tribunal fixed a just and reasonable compensation? POINT: 11. In support of the case, the claimant No.1 himself got examined as P.W.1, who is no other than father of the deceased. Though he stated in his evidence about the manner of the accident, he fairly stated that he did not witness the accident. 12. POINT: 11. In support of the case, the claimant No.1 himself got examined as P.W.1, who is no other than father of the deceased. Though he stated in his evidence about the manner of the accident, he fairly stated that he did not witness the accident. 12. It is relevant note that the contesting respondents have also not disputed the death of the deceased due to the injuries sustained in the accident. On behalf of the claimants, the driver of crime vehicle (Lorry) of 1st respondent was examined as P.W.2. P.W.2 in his evidence clearly stated that on 28.08.2010 at about 00:30 Hours, while he was proceeding with the load and when he reached Addakal Village of Mahabubnagar District, he stopped the vehicle on the midst of the road for picking up the luggage and passengers at that time, the DCM van driven by its driver in a rash and negligence manner dashed on the back side of the lorry and as a result of which the driver and cleaner of the DCM van received multiple injuries. In this regard, there is also admission in the cross examination supporting the case of the claimants. 13. He admitted that three green chilli bags falling on the road and that with a view to pick those bags, he stopped the lorry suddenly. On the other hand, it is not to be forgotten that he was examined as a witness of the claimants and he supported the case of the claimants in toto regarding the manner of the accident. The said evidence of P.W.2 goes to show that he suddenly stopped the lorry. As seen from the contest of the 2nd respondent, it mainly contends that in FIR, it is also mentioned that the driver of the DCM van caused the accident and there is negligence on the part of the said driver. 14. At this stage, it is relevant to refer the evidence of P.W.2, in cross examination he had not denied the suggestion that if he had not stopped the lorry suddenly in the midst of the road, the accident could not have been occurred. 14. At this stage, it is relevant to refer the evidence of P.W.2, in cross examination he had not denied the suggestion that if he had not stopped the lorry suddenly in the midst of the road, the accident could not have been occurred. This court is also of the view that if the vehicle is suddenly stopped without any indication, the vehicles are expected to be proceeded on road usually at considerable speed, and it is highly difficult for drivers to expect to control the vehicles proceeding behind such stopped vehicle. This court is of the view basing on the allegations made in the FIR, no finding can be given unless the same is proved by the admissible evidence. It is not safe to accept the allegations made in the FIR as true when more particularly no evidence is let in support of the accusations made. If such allegations made in the FIR are accepted without any corroborative evidence, it amounts to accepting the contents of the FIR without any evidence. The contents of the FIR cannot be taken as conclusive proof by ignoring the evidence of eye witnesses. Here the driver of the lorry clearly explained the circumstances in which the accident occurred and after careful reading of the material on record, this court is of the view that the tribunal is justified in holding that the accident was occurred due to rash and negligent driving of the driver of the crime vehicle-lorry. 15. With regard to the awarding compensation, from the material on record, it is observed that as there is no proof of income of the deceased as claimed in the petition, the tribunal has considered the income of the deceased at Rs.5,000/- per month. As the deceased is an unmarried person, the tribunal has deducted half of the earnings towards his personal expenditure. But the tribunal has taken the age of the younger parent into consideration for the purpose of calculation. In view of this factual position, this court is of the view that the tribunal ought to have taken into consideration of the age of the deceased to decide the compensation amount. The Division Bench of this Court in N.Surender Rao & Ors. In view of this factual position, this court is of the view that the tribunal ought to have taken into consideration of the age of the deceased to decide the compensation amount. The Division Bench of this Court in N.Surender Rao & Ors. vs. B. Swamy & Ors., 2014 (1) ALT 515 (D.B), it was held that for application of multiplier, the age of the deceased bachelor shall be taken but not the age of the dependants of the deceased. 16. As per Ex.A.2 Postmortem Examination report, the age of the deceased is shown as 20 years. Since there is no evidence on record this court of the view that monthly earnings of the deceased as a cleaner can be taken at Rs.4,000/- per month including future prospects. The relevant multiplier applicable to the age group of the deceased is ‘18’ as per the decision of the Hon’ble Apex Court in the case of Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 and that 50% income has to be deducted towards personal expenses. After deducting 50% contribution of the notional income, contribution of the deceased to the dependants comes to Rs.24,000/- per annum. Thus, the claimants are entitled to an amount of Rs.4,32,000/- (24,000 x 18). 17. Coming to the consideration of funeral expenses, loss of estate and loss of consortium, in National Insurance Company Ltd., vs. Pranay Sethi and others, 2017 ACJ 700, the Hon’ble Apex Court held, at paragraph 61, that: “(viii) Reasonable figures under 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 18. In Magma General Ins. Co. Ltd., v. Nanu Ram, 2018 ACJ 2782 , at paragraph 8, the Hon’ble Apex Court held that: “(8.6)…the Motor Vehicles Act is beneficial and welfare legislation. The court is duty-bound and entitled to award ‘just compensation’, irrespective of whether any plea in that behalf was raised by the claimant. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, ‘consortium’ is a compendious term which encompasses ‘spousal consortium’, parental consortium’ and filial consortium. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (SC), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, ‘consortium’ is a compendious term which encompasses ‘spousal consortium’, parental consortium’ and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC). Parental consortium is granted to the child upon the premature death of a parent, for loss of ‘parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.” 19. By following the principles laid down by the Apex Court in Magma General Insurance Co. Ltd’s case and in Pranay sethi’s case, this Court inclined to award an amount of Rs.16,500/- towards funeral expenses and Rs.16,500/- towards loss of estate and an amount of Rs.50,000/- towards filial consortium. In all the claimants are entitled to the compensation as detailed hereunder:- Towards loss of earnings Rs. 4,32,000/- Towards funeral expenses Rs.16,500/- Loss of Estate Rs.16,500/- Filial consortium Rs.50,000/- Total Rs.5,15,000/- 20. In view of the aforementioned discussion, I do not find any substance in the appeal and any reason to interfere with the impugned order in the present appeal. Accordingly, the appeal is devoid of merits and deserves to be dismissed. 21. In the result, the appeal is dismissed without costs and the order dated 21.01.2013 in M.V.O.P.No.217 of 2011 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Anantapur, is hereby confirmed. 22. Miscellaneous Petitions if any pending in this appeal shall stand closed.