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2023 DIGILAW 29 (AP)

Ohnkali Nagabushanam v. Ayubkhan

2023-01-04

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order dated 09.01.2005 in M.V.O.P. No.168 of 2003 passed by the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Kadapa (for short “the tribunal”), the claimants preferred this appeal not being satisfied with the compensation awarded by the tribunal. 2. For convenience's sake, the parties will hereinafter be referred to as they were arrayed in the M.V.O.P. 3. It is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short ‘M.V.Act’) claiming compensation an amount of Rs.15,00,000/-for the death of Ohankali Vidya Sagar, who is the son of claimants. The said Ohankali Vidyasagar will hereinafter be referred to as “the deceased”. 4. The claimant's case is that on 28.08.2002 at about 06.00 AM, the deceased, his wife and his daughter were travelling in an Ambassador car bearing No.AP-09-J-6426 belonging to respondent No.3, which is insured with respondent No.4 to attend to the marriage of their relative. When the said car was passing on the extreme left side of the road at Ramarajupalli on NH-7 road, suddenly a lorry bearing No.KA-03-A-5200 (hereinafter referred to as 'the offending vehicle') belonging to respondent No.1, which is insured with respondent No.2, came in a rash and negligent manner with high speed and dashed the car, as a result of which, the car has damaged fully. The deceased was crushed in the vehicle and died on the spot. 5. Respondents 1 and 3, who are the owners of the lorry and car, respectively, have remained ex parte. 6. The second respondent filed its written statement contending that the accident occurred due to the rash and negligent driving of the car by its driver but not due to the rashness or negligence on the part of the lorry driver. Since the car driver died, a case had been registered against the lorry driver. The claimants were not dependent upon the earnings of the deceased. The quantum of compensation claimed is excessive. 7. The fourth respondent filed its written statement submitting that the claimants did not issue any notice before filing the claim petition. The compensation claimed is excessive. The accident occurred due to rashness and negligence on the part of the driver of the lorry, but not rashness or negligence of the car driver. 8. Based on the pleadings, the tribunal framed appropriate issues. The compensation claimed is excessive. The accident occurred due to rashness and negligence on the part of the driver of the lorry, but not rashness or negligence of the car driver. 8. Based on the pleadings, the tribunal framed appropriate issues. Before the tribunal, on behalf of the claimants, PWs.1 to 3 got examined and marked Exs.A.1 to A.19. No oral or documentary evidence was adduced on behalf of the respondents. 9. After considering the evidence on record, the tribunal held that the accident had occurred due to rash and negligent driving of the driver of respondent No.1's lorry and awarded compensation Rs.4,55,000/-together with interest @ 7.5% per annum from the date of filing of the petition against the respondents No.1 and 2, making them jointly and severally liable to pay the compensation, dismissing the claim against respondents 3 and 10. Heard the arguments of the learned counsel for both parties. 11. Learned counsel for appellants/claimants contends that the tribunal erred in ignoring the evidence of PW.3 on the assumption that the Managing Director of the company will not change the phone number frequently; the tribunal ought to have seen that the oral evidence of PW.3 to prove Exs.A5 and A6, which establishes the deceased was drawing a salary of Rs.15,643/-per month; and the tribunal erred in taking the monthly income as Rs.10,000/-without any valid reason and documentary evidence; and the tribunal ought to have seen that the deceased was well educated, and well-trained software engineer and his future growth chances of increase in the monthly income are enormous; the tribunal ought to have taken the judicial notice of the fact of the higher salaries that are being drawn by the software engineers in the present software boom; the tribunal erred in taking the age of the second claimant as 52 years, but as on the date of filing of the petition, her age was only 49 years. 12. Per contra, the learned counsel for the respondents supported the findings and observations of the tribunal. 13. Now the point for determination is: Whether the quantum of compensation awarded by the tribunal is just and reasonable, and it requires modification? POINT: 14. 12. Per contra, the learned counsel for the respondents supported the findings and observations of the tribunal. 13. Now the point for determination is: Whether the quantum of compensation awarded by the tribunal is just and reasonable, and it requires modification? POINT: 14. As seen from grounds of appeal and contentions raised by the learned counsel for appellants/claimants, it can be seen that the tribunal’s finding that the accident occurred due to rash and negligent driving of respondent No.1's driver is not disputed by either of the parties. The said finding has become final and attained finality. The finding of the tribunal that the deceased died due to the injuries sustained in the accident is not in dispute, and it is established by Ex.A1-certified copy of F.I.R., Ex.A2-certified copy of inquest report, Ex.A3-certified copy of postmortem certificate and Ex.A4-certified copy of charge sheet. In view of the same, since the manner of the accident is not disputed, it is unnecessary to refer to the facts relating to the accident in question. 15. According to the case of the appellants/claimants, the deceased was aged 30 years by the date of the accident. They also relied on Ex.A8-duplicate Secondary School Certificate pertaining to the deceased, which shows the date of birth of the deceased as 26.08.1972. Therefore, the tribunal observed that the age of the deceased can safely be taken as 30 years by the date of the accident. Though the tribunal has given a finding regarding the age of the deceased, as seen from the order, the tribunal applied the multiplier 11' by taking into consideration of the age of the deceased's mother. 16. In Royal Sundaram Alliance Vs. Mandala Yadagari Goud decided on 09.04.2009 in CA.No.6600 of 2015 it is held that: “…A reading of the judgment in Sube Singh (supra) shows that where a three-Judge Bench has categorically taken the view that it is the age of the deceased and not the age of the parents that would be the factor to take the multiplier to be applied. This judgment undoubtedly relied upon the case of Munna Lal Jain (supra), which is also a three-Judge Bench judgment on this behalf. The relevant portion of the judgment has also been extracted. Once again, the extracted portion refers to the judgment of a three-Judge Bench in Reshma Kumari & Ors. Vs. Madan Mohan & Anr( (2013) 9 S.C.C. 65 ). This judgment undoubtedly relied upon the case of Munna Lal Jain (supra), which is also a three-Judge Bench judgment on this behalf. The relevant portion of the judgment has also been extracted. Once again, the extracted portion refers to the judgment of a three-Judge Bench in Reshma Kumari & Ors. Vs. Madan Mohan & Anr( (2013) 9 S.C.C. 65 ). The relevant portion of Reshma Kumari in turn has referred to Sarla Verma (supra) case and given its imprimatur to the same. The loss of dependency is thus stated to be based on: (i) additions/deductions to be made for arriving at the income; (ii) the deductions to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. It is the third aspect of significance, and Reshma Kumari categorically states that it does not want to revisit the law settled in the Sarla Verma case on this behalf. 12. Not only this but the subsequent judgment of the Constitution bench in Pranay Sethi (supra) has also been referred to in Sube Singh for calculating the multiplier. 13. We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of the three-Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents." 17. By following the principles laid down by the Apex Court, this Court views that the tribunal committed an error while taking the age of the deceased’s mother into consideration, and it should have taken into consideration the age of the deceased. 18. The main contention of the claimants is that the tribunal has not correctly fixed the monthly earnings of the deceased to show the employment of the deceased. The claimants got examined PW.3- M.Mohan Kumar, Managing Director of Fuji Tech Systems Limited in Secunderabad. According to his evidence, the deceased worked in their systems as Chief Executive from January 1997 to August 2002 and had drawn a salary of Rs.15,643/-per month; Ex.A.5 and Ex.A.6-service certificate and pay slips pertaining to the deceased were marked through PW.3. The claimants got examined PW.3- M.Mohan Kumar, Managing Director of Fuji Tech Systems Limited in Secunderabad. According to his evidence, the deceased worked in their systems as Chief Executive from January 1997 to August 2002 and had drawn a salary of Rs.15,643/-per month; Ex.A.5 and Ex.A.6-service certificate and pay slips pertaining to the deceased were marked through PW.3. In the cross-examination of PW.3, it is elicited that the records basing on which, he issued Exs.A5 and A6, have not been produced and the record showing the particulars of payment of salary to the deceased by way of cheque, also not produced. The claimants have not taken steps to summon those documents to establish their claim. 19. On the other hand, the claimants have also placed a bank passbook relating to the deceased to show that he used to get a salary of Rs.15,643/-. The claimants have relied on Ex.A7-B.Tech., a certificate in Computer Science, Ex.A9-Certificate in Cobol dt.18.12.1995, Ex.A10-P.G.Diploma in computer, Ex.A11-P.G.Diploma in Systems Management, Ex.A12-Certificate by Sun Microsystems in U.S.A., Ex.A13-Certificate by Sun Mars Technologies and Ex.A14-Certificate by Sun Mars Technologies, Hyderabad, to show the educational qualifications of the deceased. The respondents have not seriously disputed the educational qualifications referred to in the petition, as evidenced by the documents. Though the claimants have relied on Ex.A17-Passbook, and Ex.A18-Credit card, the tribunal, after consideration of those documents, observed that the said documents do not go to show that the deceased has been saving some amount and also maintaining Maruthi car. After careful perusal of oral and documentary evidence, this Court views that the tribunal has given an appropriate finding considering the material on record, and as such, this Court is not inclined to interfere with the said observation. After considering the material on record, the tribunal has given a finding that it has assessed the income of the deceased at Rs.10,000/-per month. 20. In a decision reported between National Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ 270, wherein it is held in case the deceased was self-employed, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. The finding of the tribunal that the age of the deceased is 30 years as of the date of the accident is not disputed. The finding of the tribunal that the age of the deceased is 30 years as of the date of the accident is not disputed. Given the same, the annual earnings of the deceased, including a future prospectus, can be assessed at Rs.10,000/-+ 40% = Rs.14,000/-. 21. Since the deceased was married and he had a wife and daughter who are also said to be dead in the accident, and claimants are the parents of the deceased. Had the deceased been alive, he might have incurred 50% of his income towards his personal and living expenses, and he could have incurred the remaining 50% of his income towards the claimants. In Sarala Verma v. Delhi Transport Corporation, 2009 ACJ 1295 , the Apex Court held that what would be the percentage of a deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon the circumstances of each case and further held that where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. 22. Here, in this case, the wife and daughter of the deceased also died in the same accident, and as such, this Court is inclined to deduct 50% of the monthly earnings of the deceased as if the deceased is a bachelor. Thus, the monthly earnings of the deceased, including a future prospectus, can be assessed at Rs.7,000/-(Rs.14,000/-x 50%). 23. To assess the loss of earnings, this Court relied on the judgment of the Apex Court in Sarala Verma v. Delhi Transport Corporation, in which the Apex Court provided the table of the multiplier to be considered for the claims made under Section 166 of the Motor Vehicles Act. Hence, the multiplier for the persons aged between 26 and 30 is provided as 17'. Therefore, the loss of dependency would arrive at an amount of Rs.14,28,000/-(Rs.7,000/-x 12 x 17). 24. By following the principles laid down in Pranay Sethi's case, this Court views an amount of Rs.16,500/-towards funeral expenses, an amount of Rs.16,500/-towards loss of estate and also an amount of Rs.20,000/-towards filial consortium can be awarded. 25. As a result, the appeal is allowed in part without costs, enhancing the compensation from an amount of Rs.4,55,000/-to Rs.14,81,000/-(Rs.14,28,000/-+ Rs.16,500/-+ Rs.16,500/-+ Rs.20,000/-) (Rupees Fourteen Lakhs Eighty One Thousand only), with interest at 7.5% per annum as awarded by the tribunal. 25. As a result, the appeal is allowed in part without costs, enhancing the compensation from an amount of Rs.4,55,000/-to Rs.14,81,000/-(Rs.14,28,000/-+ Rs.16,500/-+ Rs.16,500/-+ Rs.20,000/-) (Rupees Fourteen Lakhs Eighty One Thousand only), with interest at 7.5% per annum as awarded by the tribunal. Respondents 1 and 2 are directed to deposit the enhanced compensation amount, excluding the amount deposited, if any, within two months from the date of receipt of a copy of this order. The mother of the deceased, i.e., claimant No.2, is entitled to 75% of the enhanced compensation amount with interest. In contrast, claimant No.1 is entitled to 25% of the compensation amount with accrued interest. On such deposit, the claimants are permitted to withdraw their respective shares upon filing an appropriate application before the tribunal as per the terms of the order passed by the tribunal. 26. Miscellaneous petitions pending, if any, in this appeal shall stand closed.