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2022 DIGILAW 213 (TS)

D. Venkatamma v. Ashwin Jain

2022-03-15

G.SRI DEVI

body2022
JUDGMENT : Being not satisfied with the quantum of compensation awarded in the order and decree, dated 01.09.2006 passed in O.P.No.242 of 2004 on the file of the Motor Accidents Claims Tribunal (I Additional District Judge), Mahabubnagar, (for short “the Tribunal”), the appellants/claimants preferred the present appeal seeking enhancement of the compensation. 2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal. 3. The facts, in issue, are as under : 4. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.3,00,000/- for the death of one D. Yellaiah (hereinafter referred to as “the deceased). It is stated that on 17.01.2004, the deceased was going to Macharam Village on his cycle to attend labour work at Laxmi Narayana Rice Mill, Jadcherla, when he reached near cross roads of Macharam on N.H.NO.7, one Toyota Qualis Car bearing No.AP 09 CH-R-1557 driven by its driver in a rash and negligent manner at high speed and dashed the deceased, as a result of which, the deceased fell down and succumbed to injuries while undergoing treatment in Government Hospital, Mahabubnagar. On a complaint, a case in Crime No.8 of 2004 has been registered against the driver of the said Car. It is stated that the deceased was 45 years old and working as Hamali in a Rice Mill and earning Rs.150/- per day and due to the sudden death of the deceased the claimants lost their source of income and love and affection. As the accident occurred due to the rash and negligent driving of the driver of the Toyota Qualis Car, the claimants filed the above O.P. against the respondents 1 and 2, who are the owner and insurer of the said Car respectively. 5. Before the Tribunal, the 1st respondent remained ex parte. 6. The 2nd respondent filed counter denying the manner in which the accident took place and also the age, avocation and income of the deceased. It is also stated that the accident occurred due to gross negligence of the deceased but not the driver of the Car and as such the 2nd respondent is not liable to pay the compensation. It is further stated that the driver of the Toyota Qualis Car was not having valid and effective driving licence at the time of accident. It is also stated that the accident occurred due to gross negligence of the deceased but not the driver of the Car and as such the 2nd respondent is not liable to pay the compensation. It is further stated that the driver of the Toyota Qualis Car was not having valid and effective driving licence at the time of accident. It is also stated that the compensation claimed is excessive and prayed to dismiss the claim-petition. 7. Basing on the above pleadings, the Tribunal framed the following issues: (1) Whether the accident occurred on 17.01.2004, at about 9.00 a.m., near Macharam Village cross road, due to rash and negligent driving of Toyota Qualis Car bearing No.AP-09/CH/R-1557/AD09X-1553 by its driver and whether it resulted in causing the death of D.Yadaiah? (2) Whether the petitioners are entitled for any compensation? If so, to what amount, and from whom? (3) To what relief ? 8. During trial, on behalf of the claimants, P.W.1 was examined and Exs.A1 to A8 were marked. On behalf of the respondents no oral evidence was adduced but Ex.B1-Insurance Policy was marked. 9. After analyzing the evidence available on record, the Tribunal held that there was contributory negligence on the part of the deceased and the driver of the Car and assessed the said negligence at 25% on the part of the deceased and 75% on the part of the driver of the Car and accordingly awarded an amount of Rs.1,93,000/- with interest @ 7% per annum from the date of petition till the date of realization to be paid by the respondents. 10. Learned Counsel for the claimants mainly submits that the Tribunal erred in holding that there was 25% contributory negligence on the part of the deceased. It is also submitted that though the deceased was getting Rs.4,,500/- per month by doing hamali work in a Rice Mill, the Tribunal erred in fixing the income of the deceased at Rs.75/- per day. It is further submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 ACJ 2700 , the claimants are also entitled to the future prospects. Therefore, it is argued that the income of the deceased may be taken into consideration reasonably for assessing loss of dependency and prayed to enhance the same. 11. Pranay Sethi and others, 2017 ACJ 2700 , the claimants are also entitled to the future prospects. Therefore, it is argued that the income of the deceased may be taken into consideration reasonably for assessing loss of dependency and prayed to enhance the same. 11. Per contra, the learned Counsel for the Insurance Company submits that the income of the deceased has rightly been taken by the Tribunal as Rs.75/- per day since no documents have been produced to prove the income of the deceased. On the point of future prospects, learned Counsel submits that the matter has been considered by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others (supra) and as per that judgment, the claimants are entitled 25% amount towards future prospects. It is further submitted that the compensation towards non-pecuniary damages has been rightly granted by the Tribunal and the same need not be enhanced. It is also submitted that the Tribunal has rightly fixed 25% contributory negligence on the part of the deceased, which needs no interference. 12. Insofar as the contributory negligence is concerned, as per the contents of Ex.A3-charge sheet, the accident occurred during day time while the deceased was crossing the road along with his cycle. There is a duty of care owned by all road users to avoid harm or injury to others. An essential part of this duty consists in regulating the speed at which a vehicle is driven in a particular area or locality. The deceased too cannot escape blame in that he had proceeded to go across the road without taking due care to see whether it was safe to do so. Taking into consideration the evidence of P.W.2 coupled with Ex.A3, the Tribunal has held that there was contributory negligence on the part of the deceased offending vehicle and the deceased at 75% and 25% respectively and hence, the said finding is found to be proper and correct. Therefore this Court does not call for any interference on this aspect. 13. Insofar as the quantum of compensation is concerned, though the claimants claimed that the deceased was working as Hamali and earning Rs.4,500/- per month but no proof of income has been filed. Therefore this Court does not call for any interference on this aspect. 13. Insofar as the quantum of compensation is concerned, though the claimants claimed that the deceased was working as Hamali and earning Rs.4,500/- per month but no proof of income has been filed. In catena of decisions the Apex Court held that even there is no proof of income and earnings, it can be reasonably estimated minimum at Rs.3,000/-per month for any non-earning member. Therefore, this Court is inclined to take the income of the deceased as Rs.3,000/- per month. Apart from the same, the claimants are entitled to addition of 25% towards future prospects, as per the decision of the Hon’ble Supreme Court in Pranay Sethi (supra). Therefore, monthly income of the deceased comes to Rs.3,750/- (Rs.3,000/-+ Rs.750/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC) as the dependents are four in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.2,812/- per month and Rs.33,744/- per annum. Since the age of the deceased was 45 years at the time of the accident, the appropriate multiplier is ‘14’ as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier ‘14’, the total loss of dependency would be Rs.33,744/- x 14, which comes to Rs.4,72,416/-. The claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi’s case (supra). Thus, in all the claimants are entitled to Rs.5,49,416/-. Since there is contributory negligence at 25% on the part of the deceased, the claimants are entitled to a sum of Rs.4,12,062/- towards 75% of the compensation. 14. At this stage, the learned Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.3,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law. 15. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another, (2011) 10 SCC 756 , the Apex Court while referring to Nagappa Vs. 15. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another, (2011) 10 SCC 756 , the Apex Court while referring to Nagappa Vs. Gurudayal Singh, 2003 ACJ 12 (SC) held as under: “It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.” 16. In view of the Judgments of the Apex Court referred to above, the claimants are entitled to get more amount than what has been claimed. Further, the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimants is a paramount consideration the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent. 17. Accordingly, the M.A.C.M.A. is allowed. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.1,93,000/- to Rs.4,12,062/-. The enhanced amount will carry interest at 7.5% p.a. from the date of passing of award by the Tribunal till the date of realization, payable by respondents 1 and 2 jointly and severally. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. However, the claimants are directed to pay Deficit Court Fee on the enhanced amount. There shall be no order as to costs. 18. Miscellaneous petitions, if any, pending shall stand closed.