Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 1475 (AP)

Sadey Yedukondalu, S/o. Venkatesulu v. Vythla Veerabhadra Rao, S/o. Venkata Rao

2023-11-28

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : B.V.L.N. Chakravarthi, J. Challenging the order dated 16.06.2007 passed in M.V.O.P.No.1063/2004 on the file of Motor Accidents Claims Tribunal-I Addl.District Judge, Rajahmundry, the appellants/claimants filed the appeal. 2. The appellants/claimants filed claim petition before the learned Tribunal U/s.166 of Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the death of S. Mohan Kumar @ Srinu, alleging that on 02.06.2003 Sadey Mohan Kumar @ Srinu only son of these claimants proceeding on his cycle towards Pamarru side to his village Amujuru and at about 07.30 p.m., when he reached near Field Canal Bridge, then tractor and trailer bearing No.AP 5T 4600 and AP 5T 3019 driven by the 1st respondent in a rash and negligent manner at high speed dashed the cycle of said Mohan Kumar, due to that he fell down and rear side wheel of tractor ran over his head, caused instantaneous death; Thus, the accident was occurred due to rash and negligent driving of 1st respondent driver of tractor and trailer and they are insured with respondents No.3 and 5; The deceased is only son of claimants and he is working as a cycle repairer, aged about 13 years and earning a sum of Rs.80/-per day; The said accident was registered as a case in Cr.No.53/2003 against the 1st respondent by Pamarru Police. 3. The 1st respondent filed written statement, denying the allegations and contended that the accident was occurred due to the negligence of deceased only, as such, there is no liability on the part of respondents No.1 and 2; The vehicle is insured with the 3rd respondent; The 1st respondent is having valid driving licence. There is no rash and negligent act on the part of 1st respondent for occurring the accident. 4. The 2nd respondent filed written statement, denying the allegations and contended that her name is not E. Rajeswari as described in the petition and her correct name is Bikkina Rajeswari and her husband is alive; The accident was occurred due to negligence of deceased only, as such, there is no liability on the part of respondents No.1 and 2; The vehicle is insured with 3rd respondent; The 1st respondent is having valid driving licence. 5. 5. Before the learned Tribunal, the 3rd respondent/National Insurance Company Limited filed written statement, while traversing the material averments with regard to manner of accident, rash and negligence on the part of the driver of the crime vehicle, nature of injuries, age and avocation of the deceased, liability to pay compensation, and contended that the claimants have to prove that the driver of the tractor and trailer was having valid driving licence and the said vehicle is having valid documents and they are insured with the 3rd respondent and the insurance policy is in force by the date of accident; It is further contended that the deceased boy was not earning anything at the time of alleged accident; The claim of claimants is excessive and they are not entitled for the amount as claimed; The 3rd respondent filed additional written statement, contending that the tractor bearing No.AP 9T 4600 is owned by B. Sridevi daughter of Venkata Raju of Kotipalli; The claimants have impleaded the owner and insurer of the trailer only; As the trailer is not self-propelling vehicle, the owner and insurer of the tractor are proper and necessary parties to the proceedings; Hence, the petition is bad for non-joinder of necessary parties; The tractor No.AP 5T 4600 has no permit to ply with trailer bearing No.AP 5T 3509; Thus, there is no valid permit for plying of tractor and trailer in that combination. 6. The 5th respondent/New India Assurance Company Limited filed written statement denying the allegations, and contended that the 1st respondent is driver of trailer and 4th respondent is owner of the trailer; It is further contended that the said boy under the stage of confusion in peddling cycle, he himself fell down from the cycle and the back wheel of the tractor ran over the head of deceased, and thus, the deceased contributed for occurring the accident; The claimants are entitled for compensation under no fault liability only and they are not entitled for the claim; The claim of compensation and interest is excessive. 7. The 4th respondent filed memo adopting the written statement filed by the 5th respondent. 8. On the strength of the pleadings of both parties, the Tribunal framed the following issues : 1. Whether the deceased Sadey Mohan Kumar @ Srinu died in the road accident that took place on 02.06.2003 at Amujuru? 7. The 4th respondent filed memo adopting the written statement filed by the 5th respondent. 8. On the strength of the pleadings of both parties, the Tribunal framed the following issues : 1. Whether the deceased Sadey Mohan Kumar @ Srinu died in the road accident that took place on 02.06.2003 at Amujuru? If so, whether the accident occurred due to rash and negligent driving of the tractor-cum-trailer bearing No.AP 5T 4600/AP 5T 3019 by its driver i.e., 1st respondent? 2. Whether the petitioners are entitled to claim compensation? If so, to what amount and from whom? 3. To what relief? 9. To substantiate their claim, the claimants examined P.Ws-1 and 2 and got marked Exs.A-1 to A-6. On behalf of the respondents, the 1st respondent was examined as R.W-1 and Ex.B-2 was marked. The respondents No.3 and 5 have not adduced any oral evidence, but got marked Ex.B-1 and Ex.B-3 by consent. 10. The learned Tribunal, taking into consideration the evidence of P.Ws-1 and 2, coupled with Exs.A-1 to A-6, held on issue No.1 that the accident occurred due to rash and negligent driving of the 1st respondent, and further held on issue No.2 that the claimants are entitled for compensation and awarded total compensation of Rs.1,07,000/- with interest @ 7.5% p.a. from the date of petition, till the date of deposit with costs. 11. The contention of the appellants/claimants is that the learned Tribunal ought to have considered the earnings of deceased at Rs.15,000/-per annum, in case of non-earning members, if not considered the earnings of deceased; the learned Tribunal failed to follow the principles laid down by Hon’ble Apex Court while determining compensation in case of minor death; the compensation awarded is very meagre and the appellants are entitled for just compensation. 12. The contention of the respondents/Insurance Companies is that the learned Tribunal basing on the facts and circumstances of the case and age of the deceased, notionally fixed the income of deceased as Rs.5,000/-per annum and applied multiplier ‘18’ to arrive loss of dependency and also awarded Rs.15,000/- towards non-pecuniary damages and Rs.2,000/- towards funeral expenses, and awarded interest @ 7.5% per annum, which are correct; and that the learned Tribunal awarded just compensation as per law, and it does not warrant any interference by this Court. 13. 13. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under : 1. Whether the award and decree passed by the learned Tribunal warrants interference of this Court? 2. To what relief? 14. POINT No.1: The claimants in order to establish their case, examined the eye witness as P.W-2 and filed Ex.A-2 copy of inquest report, Ex.A-3 copy of post-mortem report and Ex.A-4 copy of police report (charge sheet). P.W-2 deposed that on 02.06.2003 at about 07.30 p.m. when he was standing near panta kaluva, the said Mohan Kumar was proceeding on his cycle towards Pamarru to his village and when he reached near the fields of canal bridge, tractor and trailer bearing No.AP 5T 4600 and AP 5T 3019 came in opposite direction with a load of paddy, driven by its driver in a rash and negligent manner without blowing horn, dashed the said Mohan Kumar, who fell down and back wheels of tractor and trailer ran over the head of deceased, causing his instantaneous death. In the cross-examination of P.W-2, it is elicited that at the time of accident, P.W-2 was sitting on the bridge, as it is their practice to sit there during evening hours and he witnessed the accident from bridge. 15. The driver of the tractor was examined as R.W-1. He deposed that a boy tried to overtake his tractor and trailer and fell underneath his tractor, which was not pleaded in his written statement. R.W-1 admitted in his cross-examination that police registered a case against him and filed charge sheet against him, alleging that he caused the accident. In the light of these facts and circumstances, there are no grounds to interfere with the finding of the learned Tribunal, as the evidence placed before the learned Tribunal would establish that accident occurred due to rash and negligent driving of the 1st respondent, who is driver of tractor. 16. The learned Tribunal observed that as per petition averments, the deceased is aged about 13 years. P.W-1 father of deceased deposed that his son is aged about 10 years by the date of accident. Exs.A-1 to A-4 shows that the age of deceased boy is 10 years. Thus, it is proved that the age of deceased boy is 10 years by the date of accident. P.W-1 father of deceased deposed that his son is aged about 10 years by the date of accident. Exs.A-1 to A-4 shows that the age of deceased boy is 10 years. Thus, it is proved that the age of deceased boy is 10 years by the date of accident. As per evidence of P.W-1, he is a school going boy and studying 5th class by the date of accident. In such circumstances, it is not believable the version that the boy was capable of earning or working as a cycle repairer. Hence, learned Tribunal fixed the income of deceased boy on notional earnings only at Rs.5,000/-per annum. 17. For applying multiplier, the learned Tribunal considered the age of father of deceased as 38 years and mother as 28 years and take the age of mother, who is younger among her husband. Thus, for applying multiplier, the learned Tribunal considered the age of mother of deceased as 28 years. The multiplier applicable for the age group of 28 years is ‘18’ as per Second Schedule of section 163-A of M.V.Act. 18. The contention of the learned counsel for appellants is that the learned Tribunal ought to have considered the earnings of deceased at Rs.15,000/-per annum, and relied upon a decision of Hon’ble Apex Court in the case of Meena Devi Vs. Nanu Chand Mahto @ Nemchand Manto and others, 2023 (1) SCC 204 , wherein the Hon’ble Apex Court held in para 15 as follows : “It is apparent that in the cases of child death, the notional income of Rs.15,000/- as specified in the IInd Schedule of the M.V.Act has been enhanced on account of devaluation of money and value of rupee coming down from the date on which the IInd Schedule of the M.V.Act was introduced and the said notional income was treated as Rs.30,000/- in Kishan Gopal and Rs.25,000/- in Kurvan Ansari in age group of 10 and 7 years respectively”. 19. Therefore, this Court is of the considered opinion that there is tenable force in the argument of the learned counsel for claimants. Considering the fact that accident was occurred in the year 2003, the notional income of the deceased can be fixed at Rs.15,000/-per annum. The multiplier applicable is ‘18’. Thus, the loss of dependency would be Rs.15,000 x 18 = Rs.2,70,000/-. The learned Tribunal awarded Rs.15,000/- towards pecuniary damages and Rs.2,000/- towards funeral expenses. Considering the fact that accident was occurred in the year 2003, the notional income of the deceased can be fixed at Rs.15,000/-per annum. The multiplier applicable is ‘18’. Thus, the loss of dependency would be Rs.15,000 x 18 = Rs.2,70,000/-. The learned Tribunal awarded Rs.15,000/- towards pecuniary damages and Rs.2,000/- towards funeral expenses. The claimants who are parents of the deceased are entitled to Rs.40,000/ each towards filial consortium as per judgement of the Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and others, 2018 ACJ 2782 . The claimants are entitled to Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate as per judgement of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 . 20. Therefore, the claimants are entitled for a total compensation of Rs.2,70,000 + 80,000 + 30,000 = Rs.3,80,000/-. But the learned Tribunal awarded Rs.1,07,000/-. Admittedly, the claimants filed the claim application claiming compensation of Rs.2,00,000/- from the respondents. The learned Tribunal awarded Rs.1,07,000/- only towards just compensation. Therefore, the contention of the appellants that the learned Tribunal failed to award just compensation, is having force. In that view of the matter, the finding of the learned Tribunal does warrants interference of this Court. 21. The Hon’ble Apex Court in the case of Mona Baghel and others Vs. Sajjan Singh Yadaav and others, 2022 LiveLaw (SC) 734, held that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. Therefore, though the claimant sought for a lesser amount, and the claim petition being valued at lesser value for Rs.2,00,000/-, the amount actually due and payable to be awarded is Rs.3,80,000/-. In that view of the matter, the award passed by the Tribunal is liable to be set aside. 22. Therefore, though the claimant sought for a lesser amount, and the claim petition being valued at lesser value for Rs.2,00,000/-, the amount actually due and payable to be awarded is Rs.3,80,000/-. In that view of the matter, the award passed by the Tribunal is liable to be set aside. 22. In view of the above judgment of the Hon’ble Apex Court case, the Court shall award just compensation, even if it exceeds the amount claimed by the claimants, subject to payment of court fee. In that view of the matter, this Court is of the considered opinion that the appellants are entitled to Rs.3,80,000/- towards just compensation. 23. The learned Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of deposit. This Court do not find any ground to interfere with the rate of interest awarded by the learned Tribunal at 7.5% p.a., from the date of petition, till the date of judgment i.e., 28.11.2023 on the claim petition amount of Rs.2,00,000/-and at 7.5% p.a. from the date of judgment i.e., 28.11.2023, till the date of realisation, on the enhanced compensation amount of Rs.1,80,000/-, in view of the Hon’ble Apex Court judgement in the case of National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). 24. Considering the facts and circumstances of the case, the appeal be allowed by setting aside the award and decree passed by the learned Tribunal. Accordingly, the point is answered. 25. POINT No.2: To what relief? In the light of finding on point No.1, the appeal is liable to be allowed by setting aside the award and decree dated 16.06.2007 passed in M.V.O.P.No.1063/2004 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Rajahmundry. 26. In the result, the appeal is allowed by setting aside the award and decree dated 16.06.2007 passed in M.V.O.P.No.1063/2004 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Rajahmundry, by holding that the claimants are entitled to a compensation of Rs.3,80,000/-(Rupees Three Lakhs and Eighty Thousand only) with interest at 7.5% p.a., from the date of petition, till the date of judgment i.e., 28.11.2023 on the claim application amount of Rs.2,00,000/- and at 7.5% p.a. from the date of judgment i.e., 28.11.2023, till the date of realisation, on the enhanced compensation amount of Rs.1,80,000/-. The respondents No.1 to 5 are jointly and severally liable to pay the compensation amount to the appellants. The respondents No.1 to 5 are jointly and severally liable to pay the compensation amount to the appellants. There shall be no order as to costs. 27. The 3rd respondent/National Insurance Company Limited, Kakinada, and the 5th respondent/New India Assurance Company Limited, Rajahmundry are directed to deposit the compensation amount of Rs.3,80,000/-(Rupees Three Lakhs and Eighty Thousand only) equally at 50% each, along with accrued interest thereon, within six (06) weeks from the date of judgment. In the event of the 3rd respondent/National Insurance Company Limited, Kakinada, and the 5th respondent/New India Assurance Company Limited, Rajahmundry have already deposited some amount, the said amount be excluded, and the balance amount shall be deposited within six (06) weeks from the date of judgment. 28. On such deposit, the 1st Appellant/1st claimant being the father of the deceased is entitled to an amount of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) and he is permitted to withdraw the said amount along with accrued interest thereon. 29. The 2nd Appellant/2nd claimant being the mother of the deceased is entitled to an amount of Rs.2,30,000/-(Rupees Two Lakhs and Thirty Thousand only) and she is permitted to withdraw the said amount along with accrued interest thereon. 30. The appellants/claimants are directed to pay the required court fee before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989, within one month from the date of receipt of certified copy of judgment. As a sequel, miscellaneous applications pending, if any, shall stand closed.