Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1400 (AP)

A. NAWAB KHAN v. P. CHANDRASEKHARA REDDY

2023-10-18

DUPPALA VENKATA RAMANA

body2023
JUDGMENT : (Duppala Venkata Ramana, J.) By way of this appeal, the appellants/claimants have challenged the Award dated 23.08.2004 passed by the Motor Accident Claims Tribunal-cum-District Judge, Chittoor, (for short “the Tribunal”), in M.V.O.P.No.67 of 2000 awarding a sum of Rs.2,59,000/- with proportionate costs and with interest @ 9% per annum from the date of the petition till the date of payment, against respondents 3 and 4 jointly and severally, while dismissing the petition against Respondents 1 and 2. 2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal. 3. Heard Sri S.S.Bhatt, learned counsel for the appellants and Smt.S.A.V.Ratnam, learned counsel for the 4th respondent/Oriental Insurance Company. 4. The accident is not in dispute. The lorry bearing No.ABC5252 (hereinafter referred to as “the offending vehicle”) being insured and there being no breach of policy conditions, is a finding in Para No.16 of the Award, which had attained finality. The 4th respondent/Oriental Insurance Company Limited has not challenged its liability. The appellants having not satisfied with the quantum of compensation granted by the Tribunal, filed the present appeal. 5. The brief facts of the case are that the petitioners/claimants filed a Claim Petition before the learned Tribunal with the averments that the deceased was working as a driver in Mini Van bearing No.AP 03 U 2203 belongs to the 1st respondent for the last four years prior to his death. He was hale and healthy and aged about 23 years and used to earn Rs.5,000/- per month. While so, on 22.08.1999 night time, while the deceased was driving the said Van and when they reached near Chippalamadugu bus stop on Kadiri-Anantapur road, at about 6.30 a.m., a lorry bearing No.ABC-5252 (hereinafter referred to as “the offending vehicle”) belongs to the 3rd respondent driven by its driver rash and negligently, came in opposite direction and dashed on the right side of the Van as a result, the deceased sustained grievous head injury and died on the spot. The cleaner, who is the brother of the deceased, also sustained injury and he was shifted to the Government Hospital. The matter was reported to the Police by the brother of the deceased alleging that the accident took place as a result of rash and negligent driving of the offending vehicle by its driver. The cleaner, who is the brother of the deceased, also sustained injury and he was shifted to the Government Hospital. The matter was reported to the Police by the brother of the deceased alleging that the accident took place as a result of rash and negligent driving of the offending vehicle by its driver. Based on the same, a case in Crime No.34 of 1999 for the offence under Sections 337, 338 and 304-A IPC was registered by Patnam Police Station, Anantapur District and after investigation of the case, a charge sheet was submitted against the accused-driver of the offending vehicle for having committed the offence punishable under Sections 337, 338 and 304-A IPC. (ii) At the time of the accident, the deceased was aged about 23 years, hale and healthy and he used to earn Rs.5,000/- per month. He was unmarried and was contributing his entire income to the family of the petitioners/claimants. The parents of the deceased filed an application claiming compensation of Rs.4,00,000/- before the Tribunal on account of the death of the deceased in the alleged road accident. (iii) The 1st respondent/ owner of the Mini Van bearing No.AP 03 U 2203 did not contest the matter. (iv) The 2nd respondent/New India Insurance Company, being insurer of the Mini Van bearing No.AP 03 U 2203 filed a written statement denying the age and income of the deceased and contended that the accident took place due to the rash and negligent driving of the driver of the 3rd respondent/owner. Hence, the 3rd and 4th respondents are liable to pay the compensation. (v) The 3rd respondent/owner of the offending vehicle did not contest the matter. (vi) The 4th respondent/Oriental Insurance Company Limited filed a written statement denying the material allegations made in the petition and the petitioners are put to strict proof of the same. It was contended that the driver of the 3rd respondent drove the offending vehicle slowly but the deceased himself drove the Van in a rash and negligent manner and came into contact with the offending vehicle and was responsible for the accident and as such, this respondent is not liable to pay the compensation. It was further averred that the liability of this respondent shall be limited to the terms and conditions of the policy and subject to the validity of the R.C., driving licence, permit and other vehicle documents. It was further averred that the liability of this respondent shall be limited to the terms and conditions of the policy and subject to the validity of the R.C., driving licence, permit and other vehicle documents. It was further contended that the claim of compensation is vague and was not based on any material. Further, the compensation claimed is highly excessive and exorbitant and prayed to dismiss the petition. (vii) In view of the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the accident occurred was due to the rash and negligent driving of the driver of the Van bearing No.AP 03 U 2203, and/or due to the rash and negligent driving of the driver of lorry ABC-5252? (2) Whether the petitioners are entitled to claim any compensation, if so, what amount and from whom? (3) To what relief? (viii) In order to establish the claim of the petitioners, during trial, the brother of the deceased, who was the cleaner of the Mini Van, was examined as P.W.1 and the mother of the deceased was examined as P.W.2 and Exs.A.1 to A.6 and Ex.B.1 were got marked on behalf of the petitioners. No oral evidence was led by the 2nd and 4th respondents/Insurance Companies and no documents were marked on their behalf. (ix) The Tribunal, after analyzing the entire evidence on record, passed an award for a sum of Rs.2,59,000/- as compensation. The breakup details of the compensation awarded by the Tribunal, are tabulated hereunder: S.No. Head of Compensation Amount of compensation awarded in Rs. 1 Loss of Dependency 2,40,000/- 2 Loss of Estate 15,000/- 3 Funeral expenses 2,000/- 4 Transportation Charges 2,000/- Total 2,59,000/- (x) Aggrieved by the said Award, the petitioners being the appellants, filed the present appeal. 6. Learned Counsel for the appellants would submit that the learned Tribunal has applied multiplier ‘12’ which should have been ‘18’ as per the judgment of the Hon’ble Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 . He would further submit that the learned Tribunal has not awarded the compensation under various conventional heads by following the Hon’ble Apex Court’s judgments. Further, he would submit that the award passed by the learned Tribunal is inadequate in nature and therefore, the same may be modified by suitably enhancing the compensation. Delhi Transport Corporation, (2009) 6 SCC 121 . He would further submit that the learned Tribunal has not awarded the compensation under various conventional heads by following the Hon’ble Apex Court’s judgments. Further, he would submit that the award passed by the learned Tribunal is inadequate in nature and therefore, the same may be modified by suitably enhancing the compensation. Further he would submit that the Tribunal has committed an illegality in awarding a meager amount of compensation. Further, he would submit that the Tribunal has committed an error while passing the award and it needs interference of this Court and prayed to enhance the compensation by modifying the award passed by the Tribunal. 7. Learned counsel for the 4th respondent/Oriental Insurance Company would submit that the Tribunal has assessed the income of the deceased and awarded compensation in spite of no documentary evidence filed proving the income of the deceased and there was infirmity in the award passed by the learned Tribunal. Further, he would submit that the 2nd respondent/New India Insurance Company is also responsible to pay the compensation. He would further submit that the award passed by the Tribunal against the 3rd and 4th respondents by exonerating the 1st and 2nd respondents from their liability, is illegal and contrary to the settled principles of law. Further, he would submit that the deceased died due to the injuries suffered in the accident which took place due to his rash and negligence in driving the Van and there was a contributory negligence on his part in causing the accident. Therefore, the award passed by the Tribunal is liable to be set aside and prayed to exonerate this respondent from its liability. 8. Now the points that arise for consideration in this appeal are: 1. Whether the compensation awarded by the Tribunal is not in accordance with the principles of law and requires enhancement? 2. Whether the compensation awarded by the Tribunal is just and reasonable or needs interference of this Court? POINT Nos.1 & 2: 9. 8. Now the points that arise for consideration in this appeal are: 1. Whether the compensation awarded by the Tribunal is not in accordance with the principles of law and requires enhancement? 2. Whether the compensation awarded by the Tribunal is just and reasonable or needs interference of this Court? POINT Nos.1 & 2: 9. A perusal of the impugned award would show that the Tribunal has framed the Issue No.1 as to whether the accident occurred was due to the rash and negligent driving of the driver of the Van bearing No.AP 03 U 2203, and/or due to the rash and negligent driving of the driver of lorry ABC-5252, to which the Tribunal after considering the evidence of P.W.2 coupled with the documentary evidence, has categorically observed at Para No.12 of the Award that the driver of the 3rd respondent, on the fateful day, by his rash and negligent driving caused the accident. Therefore, this Court is of the view that there is no reason to interfere with the findings of the Tribunal that the alleged accident occurred due to the rash and negligent driving of the driver of the offending vehicle, due to which the deceased sustained severe injuries and died on the spot. 10. In the present case, it is an undisputed fact that the accident had taken place on 22.08.1999 when the deceased was the driver of the Mini Van bearing No.AP 03 U 2203 proceeding towards Chennai from Bellary with loaded eggs and when he reached near Chippalamadugu in between Kadiri-Anantapur, the offending vehicle came in an opposite direction, dashed against the Mini Van and caused damages on the right side front portion and the deceased sustained severe injuries and died on the spot. The claimants (mother and father of the deceased) are claiming that the deceased was drawing Rs.5,000/- per month by the date of his death and he was unmarried. But, the learned Tribunal meagerly assessed the monthly income of the deceased @ Rs.2,500/-. The accident occurred in the year 1999. In the absence of proof of income, the Tribunal is not justified in taking the notional income of the deceased. Even if the deceased is a labourer/coolie, at least, he may get Rs.100/- per a day. But, the learned Tribunal meagerly assessed the monthly income of the deceased @ Rs.2,500/-. The accident occurred in the year 1999. In the absence of proof of income, the Tribunal is not justified in taking the notional income of the deceased. Even if the deceased is a labourer/coolie, at least, he may get Rs.100/- per a day. Therefore, this Court is of the view that the deceased can be treated as a labourer/coolie and his monthly income as on the date of the accident can be taken into consideration as Rs.3,000/- per month. Therefore, there is no reason for the Tribunal to determine the monthly earning of the deceased to be a sum of Rs.2,500/-. 11. To grant compensation under various heads, now it is necessary to refer to the decision in Sarla Verma’s case (supra), wherein, at Para-18, it was held as follows: “18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.” 12. A perusal of Ex.A.4/Driving Licence of the deceased would show that his date of birth was mentioned as 05.06.1976. The accident occurred on 22.08.1999. Therefore, the age of the deceased at the time of the accident was ‘23-24’ years and he was unmarried. Based on the said document, this Court has taken the age of the deceased as ‘23’ years. Since the deceased was a labourer and between the age group of 21-25 years by the date of the accident, the Tribunal committed an error in applying the multiplier ‘12’ instead of ‘18’, contrary to the guidelines laid down in Sarla Verma’s case (supra), wherein, the loss of dependency was thus, reassessed at para-42 of the decision, which reads as under: “42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 13. In the instant case, evidently, the deceased was survived by parents, who are the appellants/claimants and unmarried by the date of his death. Therefore, the number of his dependent family members is ‘two’. According to Sarla Verma’s case (supra), 50% of the income of the deceased should be deducted towards his personal and living expenses. On this aspect, the observation of the Hon’ble Apex Court in Sarla Verma’s case (supra), at paras-30, 31 and 32, is as under: “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third”. 14. In the instant case, the deceased was unmarried by the date of the accident and petitioners/claimants are the parents of the deceased. As per the decision in Sarla Verma (supra), 50% of the income of the deceased has to be deducted towards his personal and living expenses. On an overall view of the principles laid down in the above judgments, this Court is of the considered opinion that if the monthly income of the deceased is taken as Rs.3,000/-, the annual income would be worked out to Rs.36,000/- (Rs.3,000/- x 12 = Rs.36,000/-). 50% of the said amount would be arrived at Rs.18,000/- (Rs.36,000 x 50% =Rs.18,000/-). After deducting the same towards his personal and living expenses, the annual income of the deceased would be arrived at Rs.18,000/- (Rs.36,000/- (-) Rs.18,000/- =Rs.18,000/-). 15. As the deceased was found to be ‘23’ years old at the time of the accident, the appropriate multiplier applicable would be ‘18’ instead of ‘12’ in view of the principles laid down in Sarla Verma?s case (supra). 15. As the deceased was found to be ‘23’ years old at the time of the accident, the appropriate multiplier applicable would be ‘18’ instead of ‘12’ in view of the principles laid down in Sarla Verma?s case (supra). Having applied the said principles and the multiplier, the loss of dependency would be worked out to Rs.3,24,000/-(Rs.18,000/- x 18 = Rs.3,24,000/-). This Court finds that the Tribunal has committed an error while awarding compensation under loss of dependency. A reading of the Tribunal?s award, makes it clear that the learned Tribunal?s approach does not accord at all with current judicial opinion. Therefore, the claimants are entitled to a sum of Rs.3,24,000/- under the head ‘Loss of Dependency’, which would be substantive. 16. In the instant case, the claimants are entitled to the compensation under conventional heads viz., loss of estate, loss of consortium and funeral expenses, in view of the principles laid down in National Insurance Company Vs. Pranay Sethi, 2017 ACJ 2700 (SC). Funeral Expenses: 17. Under this conventional head the Tribunal wrongly awarded a sum of Rs.2,000/-. The same is enhanced from Rs.2,000/- to Rs.15,000/- (as per the decision of the Constitution Bench in Pranay Sethi’s case). Loss of Estate: 18. Under this conventional head, the claimants are entitled to be awarded a sum of Rs.15,000/- as rightly awarded by the Tribunal, as per the decision of the Constitution Bench in Pranay Sethi’s case. Loss of Consortium: 19. The mother and father of the deceased (appellants/claimants) are entitled to be awarded towards loss of consortium under the head ‘filial consortium’ as held by the Hon’ble Apex Court in Magma General Insurance Company Ltd., Vs. Nanu Ram @ Chuhru Ram and others, 2018 ACJ 2782 (SC) @ Rs.40,000/- each, as held in the matter of Pranay Sethi (supra). Consequently, in addition, the appellants/claimants are entitled to the above amount towards ‘filial consortium’. 20. In Sarla Verma’s case (supra) the Hon’ble Apex Court, while elaborating the concept of ‘just compensation’ observed as under: “Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.” 21. It is not intended to be a bonanza, largesse or source of profit.” 21. On an overall re-appreciation of the pleadings, material on record and the law laid down by the Hon’ble Supreme Court in the afore-cited decisions, I am of the definite opinion that the claimants are entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. S.No. Head of Compensation Amount awarded by the Tribunal Enhanced Amount 1 Loss of Dependency 2,40,000/- Rs.3,24,000/- (Rs.100 x 30 = Rs.3,000 x 12 = Rs.36,000 – 50% = Rs.18,000 x 18) 2 Loss of Estate 15,000/- 15,000/- 3 Funeral Expenses 2,000/- 15,000/- 4 Loss of Consortium Rs.40,000 each to Claimants 1 and 2 (mother and father of the deceased) ---- 80,000/- 5 Transportation Charges 2,000/- 6,000/- Total 2,59,000/- 4,40,000/- 22. As per the decision of the Hon’ble Supreme Court of India in the case of Nagappa Vs. Gurudayal Singh and others, (2003) 2 SCC 274 , under the provisions of the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only upto the amount claimed by the claimant. In an appropriate case where from the evidence brought on record, if Tribunal /Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Therefore, the claimants are entitled to get more compensation than claimed, but the Tribunal did not pass such award. There is no embargo to award compensation more than that claimed by the claimant. Rather, it is obligatory for the Tribunal and Court to award “just compensation”, even if it is in the excess of the amount claimed. 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 than the amount awarded, though they might not have claimed the same at the time of filing of the claim petition. 23. 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 than the amount awarded, though they might not have claimed the same at the time of filing of the claim petition. 23. Therefore, in view of the foregoing discussion and following the principles laid down by the Hon’ble Apex court in the Judgments supra, this Court is of the opinion that the award passed by the Tribunal warrants interference and thereby, enhanced the compensation from Rs.2,59,000/- to Rs.4,40,000/-. 24. Resultantly, the appeal is allowed with costs and the compensation amount is enhanced from Rs.2,59,000/- to Rs.4,40,000/- along with interest @ 9% per annum from the date of filing of the claim petition till the date of payment, against the Respondents 3 and 4 (Owner and Insurer of the offending vehicle) jointly and severally. The claim against Respondents 1 and 2 is hereby dismissed. (ii) Respondents 3 and 4 are directed to deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against them. (iii) The appellants/claimants are directed to pay the requisite Court-fee in respect of the enhanced compensation amount awarded over and above the compensation claimed (As per the judgment of Hon’ble Apex Court in Ramla Vs. National Insurance Company Limited, 2019 ACJ 559 (SC)). (iv) On such deposit, the claimants are permitted to withdraw the amount with accrued interest and costs as apportioned by the Tribunal, by filing proper application before the Tribunal. (v) The impugned award of the learned Tribunal stands modified to the aforesaid extent and the terms and directions as above. (vi) The record be sent back to the Tribunal within three weeks from this day. (vii) As a sequel, interlocutory applications pending for consideration, if any, shall stand closed.