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2023 DIGILAW 30 (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.169 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 quantum of compensation awarded by the tribunal. 2. For convenience's sake, the parties will hereinafter be referred to as arrayed in the M.V.O.P. 3. It is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (short 'MV Act’) claiming compensation of Rs.8,00,000/-for the death of Ohankali Lakshmi Devi @ Lakshmi, who is the daughter-in-law of the claimants. The said Ohankali Lakshmi Devi 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 and her husband and 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 sustained grievous injuries, and immediately she was shifted to the hospital for treatment. She died on 01.09.2022 while undergoing treatment. 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 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 dependents upon the earnings of the deceased. The deceased is not an earning member, but she is only a housewife. 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 claimants were not dependents upon the earnings of the deceased. The deceased is not an earning member, but she is only a housewife. 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 lorry driver, but not due to 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 4 got examined and marked Exs.A.1 to A.10 and Exs.X1 and X2. The evidence of PW.3 and PW.4 is eschewed. 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.1,00,000/-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 4. 10. Heard the arguments of the learned counsel for both parties. 11. Learned counsel for appellants/claimants contends that the trial court ought to have considered Exs.A.4 to A.8 issued by reputable institutions and Telugu Vishwavidyalayam (university); and ought to have considered Ex.A.10 photos which show that the deceased was a professional dancer. 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 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. 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 in dispute, 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 28 years by the date of the accident. In the absence of evidence showing the exact age of the deceased, the tribunal relied on an Ex.A3 certified copy of the postmortem report. It estimated the deceased's age as 28 years. 16. The claimants relied on Ex.A5 certificate issued by Pragathi School to establish that the deceased worked as a part-time dance teacher in their school and was earning Rs.1700/-per month. Ex.A6 certificate issued by Nirmala Kuchipudi Nrithya Kala Nikethan, Hyderabad, to show that the deceased worked as a teacher in the said institution and used to get Rs.2,000/-per month. Claimants also relied on Ex.A8 certificate issued by Telugu University, Hyderabad, to the effect that the deceased worked as a part-time dancer and used to get a remuneration of Rs.3,000/-per month, relied on Ex.A9-provisional certificate shows that the deceased is a holder of Master of Arts degree. Ex.A10-bunch of photographs to show that the deceased was a dancer. Ex.X1 and Ex.X2 are the deputation letters issued by Nirmala Kuchipudi Nrithya Kala Nikethan to PW.3 and PW.4. 17. From the reading of the aforesaid documents relied on by the claimants and also by following the principles laid down in Lakshmi Devi and others Vs. Mohammad Tabber, 2008 ACJ 488, the Apex Court laid down a principle that, in today’s world, even common labour can earn Rs.100/-per day. Based on the above principle, this Court views that the monthly earnings of the deceased can be fixed at Rs.3,000/-. 18. It is the finding of the tribunal that the claimants cannot be considered dependent on the earnings of the deceased being in-laws, and the deceased has no responsibility to maintain in-laws. With the said observation, the tribunal has awarded compensation only for the loss of their love, affection and services as a daughter-in-law. 19. 18. It is the finding of the tribunal that the claimants cannot be considered dependent on the earnings of the deceased being in-laws, and the deceased has no responsibility to maintain in-laws. With the said observation, the tribunal has awarded compensation only for the loss of their love, affection and services as a daughter-in-law. 19. In N.Jaya Sree and Ors Vs. Cholamandalam MS General Insurance Company Ltd., Civil Appeal No.6451 of 2021 (Arising out of S.L.P. (C) No.1458 of 2019) D/d. 25.10.2021, the Apex Court held in paragraph 21 that, 21. Coming to the facts of the present case, the fourth appellant was the mother-in-law of the deceased. Materials on record establish that she was residing with the deceased and his family members. She was dependent on him for her shelter and maintenance. It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance. Appellant no.4 herein may not be a legal heir of the deceased, but she suffered on account of his death. Therefore, we have no hesitation in holding that she is a "legal representative" under Section 166 of the MV Act and is entitled to maintain a claim petition. 20. In 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. The finding of the tribunal that the age of the deceased is 28 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.3,000/-+ 40% = Rs.4,200/-. 21. Since the deceased was married and she had a husband and daughter who are also said to be dead in the accident, claimants are the in-laws of the deceased. Had the deceased been alive, she might have incurred 50% of her income towards her personal and living expenses, and she could have incurred the remaining 50% of her income towards the claimants 22. Had the deceased been alive, she might have incurred 50% of her income towards her personal and living expenses, and she could have incurred the remaining 50% of her income towards the claimants 22. In Sarala Verma v. Delhi Transport Corporation, 2009 ACJ 1295 , the Apex Court held that what would be the percentage of the 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. 23. This Court views that 50% of the earnings of the deceased be deducted towards personal and living expenses of the deceased. After the deduction of half of the earnings, as observed above, the monthly earnings, including the future prospectus of the deceased after deducting personal expenses, would arrive at Rs.2,100/-(Rs.4,200/-x 50%). 24. To assess the loss of earnings, this Court relied on the judgment of the Apex Court in Sarala Verma’s case, 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 to 30 is provided as 17'. Therefore, the loss of dependency can arrive at an amount of Rs.4,28,400/-(Rs.2,100/-x 12 x 17). 25. By following the principles laid down in Pranay Sethi’s case, this Court awarded an amount of Rs.16,500/-towards funeral expenses and also awarded an amount of Rs.16,500/-towards loss of estate. 26. As a result, the appeal is allowed in part without costs, enhancing the compensation from Rs.1,00,000/-to an amount of Rs.4,61,400/-(Rs.4,28,400/-+ Rs,16,500/-+ Rs.16,500/-) (Rupees Four Lakhs Sixty One Thousand Four Hundred 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 receipt of a copy of this order. The claimants are entitled to an enhanced compensation amount with interest in equal proportion. 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. 27. Miscellaneous petitions pending, if any, in this appeal shall stand closed.