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2022 DIGILAW 216 (TS)

Yerragolla Sailu v. B. Mallesh

2022-03-15

G.SRI DEVI

body2022
JUDGMENT: 1. Being not satisfied with the quantum of compensation awarded in the judgment and decree, dated 10.02.2005 passed in O.P.No.1540 of 2002 on the file of the Motor Accidents Claims Tribunal (Fast Track Court), Nizamabad (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 Y.Mahender @ Mahesh (hereinafter referred to as “the deceased”). It is stated that on the intervening night of 22/23-09-2002 at 0.30 hours the deceased, along with others, were traveling in an auto bearing No.AP 23 U 609 from Dhaba Hotel, Ramayampet town side and on the way the driver of the auto drove the same at high speed in rash and negligent manner and dashed against a stationed lorry bearing No.AP 1 T 351, as a result of which, the driver of the auto sustained grievous injuries and the deceased died on the spot. On a complaint, a case in Crime No.92 of 2002 has been registered against the driver of the Auto. It is also stated that the deceased was aged about 24 years and was working as auto driver and earning Rs.6,000/- per month. In view of the sudden death of the deceased, the claimants lost their source of income. As the accident occurred due to the rash and negligent driving of the driver of the Auto, the claimants filed the above O.P. against the respondents 1 and 2, who are the owner and insurer of the said Auto, respectively. 5. Before the Tribunal, the 1st respondent remained ex parte. 6. The 2nd respondent filed counter denying all the averments made in the claim-petition, including the manner in which the accident took place, age, avocation and earnings of the deceased. It is also contended that the accident took place due to gross negligence on the part of the driver of the Lorry, who parked the lorry on the road without parking lights and as such the owner and insurer of the said lorry are necessary parties and the claim-petition is bad for non-joinder of necessary parties. 7. It is also contended that the accident took place due to gross negligence on the part of the driver of the Lorry, who parked the lorry on the road without parking lights and as such the owner and insurer of the said lorry are necessary parties and the claim-petition is bad for non-joinder of necessary parties. 7. Basing on the above pleadings, the Tribunal framed the following issues : 1) Whether the motor vehicle accident occurred due to the rash and negligent driving of the vehicle auto bearing No.AP 23 U 609 by its driver resulting in death of the deceased? 2) Whether the petitioners are entitled for compensation. If so, what amount and from which of the respondents? 3) To what relief? 8. During trial, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A8 were marked. On behalf of the respondents, no oral evidence was adduced but Ex.B1-policy was marked with consent. 9. After analyzing the evidence available on record, the Tribunal held that there was 50% negligence on the part of the driver of the Auto in which the deceased was traveling and 50% negligence on the part of the driver of the stationed lorry, who parked the lorry on the road, without parking indicators and accordingly awarded an amount of Rs.1,85,000/- with interest @ 9% 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 though the charge sheet filed against the driver of the auto, in which the deceased was traveling, but the Tribunal erred in holding that there was 50% contributory negligence on the part of the driver of the stationed lorry. It is further submitted that the Tribunal ought to have taken the age of the deceased not the age of his mother while determining the multiplier in view of the law laid down by the Apex Court in Munna Lal Jain v. Vipin Kumar Sharma and others, 2015 (6) SCC 347 . It is further submitted that though the deceased was getting Rs.6,000/- per month, the Tribunal erred in fixing the income of the deceased at Rs.3,000/- per month. It is further submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. It is further submitted that though the deceased was getting Rs.6,000/- per month, the Tribunal erred in fixing the income of the deceased at Rs.3,000/- per month. 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. 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.3,000/- per month since no documents have been produced to prove the income of the deceased. It is further submitted that since the deceased was a bachelor, the Tribunal erred in deducting 1/3rd towards personal and living expenses of the deceased instead of 50%. 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 40% 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 50% contributory negligence on the part of the driver of the lorry, which was stationed on the road without indicators, which needs no interference. 12. Insofar as the contributory negligence is concerned, admittedly Ex.A3-charge sheet has been laid against the driver of the Auto, alleging that the accident occurred due to rash and negligent driving of the driver of the auto, but from a perusal of the F.I.R. it is clear that the driver of the lorry did not take precautions by switching on the rear lights or place boulders etc. indicating the stationed lorry. indicating the stationed lorry. The contents of the F.I.R. also discloses that the lorry was stationed in the middle of the road, so, the Tribunal in paragraph No.9 has categorically held that the drivers of both the auto and the lorry were at contributory negligence resulting in this accident and answered the issue No.1 holding that the accident occurred due to rash and negligent driving of the driver of the auto bearing No. AP 23 U 609 and due to negligent act of the driver of the lorry No. AP 1 T 351 in parking the lorry in the middle of the road without any indications, 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 an auto driver and was earning Rs.6,000/- per month but no proof of income has been filed. In Latha Wadhwa vs. State of Bihar, (2001) 8 SCC 197 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. As per Ex.A7-diriving licence, the deceased was a driver and he was authorized to drive auto rickshaw. Therefore, this Court is inclined to take the income of the deceased as Rs.4,000/- per month. Apart from the same, the claimants are entitled to addition of 40% towards future prospects, as per the decision of the Supreme Court in Pranay Sethi (supra). Therefore, monthly income of the deceased comes to Rs.5,600/- (Rs.4,000/- + Rs.1600/-). Since the deceased was a bachelor, his personal living expenses shall be 50% of the said amount, i.e., Rs.2,800/- per month. In view of the decision of the Apex Court in Munna Lal Jain v. Vipin Kumar Sharma and others (supra) when the deceased was a bachelor, the age of the deceased has to be considered while determining the multiplier and not the age of the mother. Since the age of the deceased was 27 years at the time of the accident, the appropriate multiplier is ‘17’ as per the decision reported in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). Adopting multiplier 17, his total loss of earnings would be Rs.2,800/- x 12 x 17, which comes to Rs.5,71,200/-. Since the age of the deceased was 27 years at the time of the accident, the appropriate multiplier is ‘17’ as per the decision reported in Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC). Adopting multiplier 17, his total loss of earnings would be Rs.2,800/- x 12 x 17, which comes to Rs.5,71,200/-. The claimants are also entitled to Rs.33,000/- towards loss of estate and funeral expenses, as per Pranay Sethi’s case (supra). Thus, in all the claimants are entitled to Rs.6,04,200/-. Since the claimants did not implead the owner and insurer of the Lorry and that there was a contributory negligence of 50% on the part of the driver of the lorry, the claimants are entitled to a sum of Rs.3,02,100/- towards 50% 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. 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 in part. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.1,85,000/- to Rs.3,02,100/-. 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. 17. Accordingly, the M.A.C.M.A. is allowed in part. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.1,85,000/- to Rs.3,02,100/-. 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.