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2022 DIGILAW 901 (AP)

Gavvala Yerra Mallappa v. K. Anji Babu

2022-09-15

T.MALLIKARJUNA RAO

body2022
JUDGMENT: 1. This appeal is filed by the claimants in M.V. O.P. No.24 of 2010 against the order dated 12.11.2010 passed by the Chairman, Motor Accidents Claims Tribunal, Judge, Family Court-cum- Additional District & Sessions Judge, Anantapur, (for short, ‘the tribunal’), wherein the tribunal awarded an amount of Rs.2,32,000/- with interest at 7.5% per annum and costs, seeking enhancement of compensation awarded by the tribunal. 2. For convenience sake, the parties will hereinafter be referred to as they were arrayed in M.V.O.P. 3. The claimants filed claim petition seeking compensation for an amount of Rs.3,50,000/- for the death of G.Mallikarjuna, who is the son of claimants 1 and 2, brother of claimants 3 to 5, in a motor accident that occurred on 21.03.2007 at about 3.15 PM when himself along with one Obi Reddy were taking cup of tea in front of Jayamma hotel near Kalluru by pass road on N.H. 7 standing on the extreme road margin, the truck bearing No.AP 27 U 5184 driven by its driver in a rash and negligent manner dashed him and as such he sustained multiple injuries and died on the spot. 4. Respondent No.1 remained exparte. Respondent No.2 filed counter contending that the truck driver had no valid driving licence and it was known to the respondent No.1. It is violation of policy conditions and as such respondent No.1 is only liable to pay compensation and further contended that the claim is highly excessive. 5. The tribunal, on considering the evidence on record, awarded an amount of Rs.2,32,000/- with interest @ 7.5% per annum payable by the respondents jointly and severally. Aggrieved by the same, the claimants preferred this appeal seeking enhancement of compensation on the ground that the tribunal has not appreciated the claim of the appellants in its right perspective and granted inadequate compensation. 6. Heard learned counsel for the claimants and the learned counsel for the 2nd respondent. 7. Learned counsel for the claimants has submitted their case in consonance with the averments made in the appeal. 8. Learned counsel for the 2nd respondent has contended that the tribunal has passed award in accordance with law and the compensation awarded by the tribunal is just and reasonable in the facts and circumstances of the case. 9. 7. Learned counsel for the claimants has submitted their case in consonance with the averments made in the appeal. 8. Learned counsel for the 2nd respondent has contended that the tribunal has passed award in accordance with law and the compensation awarded by the tribunal is just and reasonable in the facts and circumstances of the case. 9. The 2nd respondent did not file any appeal or cross objections aggrieved by the order passed by the tribunal and therefore, this Court need not go into other aspects of the case except the issue of enhancement of compensation awarded by the tribunal. 10. Now the point for consideration is, whether the compensation awarded by the tribunal is just in the facts and circumstances of the case or it requires enhancement? POINT: 11. As seen from the averments of the claim petition, the claimants filed their claim under Sections 140 and 166 of the Motor Vehicles Act, 1988. It is averred in the petition that though the petitioners are entitled to compensation of Rs.5,00,000/-, but they restricted their claim to Rs.3,50,000/-. The relationship of the claimants with the deceased as pleaded in the petition and as deposed in the evidence is not in dispute. Before the tribunal, on behalf of the claimants, the 1st claimant himself got examined as P.W.1 and the eye witness of the accident and who lodged the complaint was examined as P.W.2 to prove the accident in question and also to prove about the death of the deceased in the accident got marked Exs.A.1 to A.5. On behalf of the respondents, no evidence was let in, but the copy of insurance policy was marked as Ex.B.1. After evaluation of the evidence adduced by the parties, the tribunal has given a finding that the death of the deceased was due to rash and negligent driving of the truck by its driver and the said finding is supported by the documents placed on record. 12. As far as the quantum of compensation, the tribunal has observed that there is no dispute as regards the age of the deceased and from the contents of Ex.A.2 inquest report and Ex.A.3 post mortem certificate, the tribunal come to a conclusion regarding the age of the deceased as 24 years. 12. As far as the quantum of compensation, the tribunal has observed that there is no dispute as regards the age of the deceased and from the contents of Ex.A.2 inquest report and Ex.A.3 post mortem certificate, the tribunal come to a conclusion regarding the age of the deceased as 24 years. It is the version of P.W.1 that the deceased was earning Rs.10,000/- per month, but she has not placed any documentary evidence in support of the said plea. Since the deceased is a bachelor, the tribunal has not accepted the case of the petitioner that the petitioners 3 to 5 are the dependents on the earnings of the deceased. 13. In Lakshmi Devi and others vs. Mohhammad Tabber, 2008 ACJ 1488 , the Apex Court has laid down a principle that, in today’s world, even a common labour can very easily earn Rs.100/- per day. In view of the principle laid down by the Apex Court, the tribunal ought not to have assessed the monthly income @ Rs.2,500/-. As such this Court is inclined to consider the annual income of the deceased at Rs.36,000/-, out of which half of the monthly earnings should be deducted towards personal expenses of the deceased, then it comes to an amount of Rs.18000/-. 14. In National Insurance Company Limited v. Panay Sethi, 2017 ACJ 2700 SC the Apex Court held that in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. A reading of the order passed by the tribunal would show that future prospectus is not awarded to the claimants. By following the judgment of the Apex Court in Pranay Sethi’s case, this Court is of the view that the claimants are also entitled 40% of their earnings towards future prospectus. Thus, an amount of Rs.25,200/- towards annual income can be taken into consideration. When the same is multiplied with the multiplier ‘18’, as per the law laid down by the Apex Court in Sarala Varma vs. Delhi Transportation Corporation and others, 2009 ACJ 1298 , the loss of dependency works out to Rs.25,200/- x 18 = Rs.4,53,600/-. Thus, an amount of Rs.25,200/- towards annual income can be taken into consideration. When the same is multiplied with the multiplier ‘18’, as per the law laid down by the Apex Court in Sarala Varma vs. Delhi Transportation Corporation and others, 2009 ACJ 1298 , the loss of dependency works out to Rs.25,200/- x 18 = Rs.4,53,600/-. This apart the claimants are entitled to an amount of Rs.16,500/- for loss of estate and Rs.16,500/- for funeral expenses in view of the law laid down by the Apex Court in Pranay Sethi’s case. In all, the claimants are entitled to the compensation as under: Towards loss of dependency Rs.4,53,600/- (Rs.25,200x 18) Towards loss of estate Rs. 16,500/- Towards funeral expenses Rs. 16,500/- Total Rs.4,86,600/- 15. At this stage, it is relevant to note that the claimants clearly stated that they are entitled to compensation Rs.5,00,000/-, but they restricted their claim of Rs.3,50,000/-. They have not given any reasons to restrict their claim. In United India Insurance Co., Ltd., V. Kesarben Ravjibhai Dabasiya, F.A.No.1105 of 2003 at paragraph 14, the Division Bench of Gujarat High Court held that, “(14) at the first breath the contention may appear to be with substance, but on further scrutiny it appears that had the claimant been interested in full amount of compensation, he ought to have joined the driver and the owner of the car as party respondent in the claim petition and the insurance company also, if any of the car. Original claimants have consciously not joined the driver or owner of the car. Under the circumstances, it can be said that they abandoned the right qua the driver and owner of the car…” 16. In the absence of any reasons, this court cannot award more compensation than they claimed, once they abandoned their right to claim over and above Rs.3,50,000/-. The claimants have not claimed the compensation though they were aware that they are entitled to the claim for an amount of Rs.5,00,000/-. Since the claimants themselves restricted their claim Rs.3,50,000/- even though they are entitled to more compensation, this court is inclined to fix the compensation amount only to the extent of their restricted claim. 17. The claimants have not claimed the compensation though they were aware that they are entitled to the claim for an amount of Rs.5,00,000/-. Since the claimants themselves restricted their claim Rs.3,50,000/- even though they are entitled to more compensation, this court is inclined to fix the compensation amount only to the extent of their restricted claim. 17. In the result, this appeal is allowed, enhancing compensation from an amount of Rs.2,32,000/- to an amount of Rs.3,50,000/- (Rupees three lakhs, fifty thousand only) together with interest 7.5% per annum from the date of claim petition till the date of deposit. The 2nd respondent - insurance company shall deposit the compensation amount along with interest within eight (08) weeks from the date of receipt of a copy of this order, after deduction of the amount already deposited. 2nd claimant, who is the mother of the deceased, is entitled to the enhanced amount of compensation with accrued interest. She is permitted to receive the same on deposit. In other respects, the judgment passed by the tribunal holds good. There shall be no order as to costs. 18. Miscellaneous petitions, if any, pending in this appeal shall stand closed.