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2023 DIGILAW 669 (TS)

L. Kalyani v. M. Senchil Nathan

2023-09-26

NAMAVARAPU RAJESHWAR RAO

body2023
JUDGMENT : This MACMA is filed under Section 173 of the Motor Vehicles Act, 1988 by the appellants/petitioners aggrieved by the order and decree dated 28.07.2009 passed in O.P.No.2005 of 2006 by the II Additional Chief Judge-Cum-Motor Accident Claims Tribunal, City Civil Courts, Hyderabad (hereinafter referred to as ‘the Tribunal’). 2. For convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal. 3. Brief facts of the case are that the petitioners filed a claim petition claiming compensation of Rs.16,00,000/- on account of the death of L.Susheel Kumar (hereinafter referred to as “the deceased”) in an accident that occurred on 03.12.2005, by motor vehicle. 3(1) It is stated that on 03.12.2005 at about 4.45 P.m. the deceased was slowly walking on the extreme left side of the mud road on National Highway No.7 in Namakkal district, Tamilnadu, meanwhile a bus bearing No.TN 28J 5563, driven in a rash and negligent manner by its driver, dashed the deceased. As a result, the deceased sustained grievous head injuries and several other injuries. The deceased was taken to CM Hospital, Pulavarpalayam, and thereafter, he was shifted to Gokulam Hospital, Selam, Tamilnadu. While undergoing treatment, the deceased succumbed to the injuries. The Paramathi Police registered a case in Crime No.316/2005. Hence, the claim petition. 4. Before the Tribunal, respondent No.1 remained ex-parte. Respondent No.2 filed a counter-affidavit and denied all the allegations made in the petition. Their main contention was that the crime bus was not having proper valid permit to ply on the road at the time accident. Hence, prayed to dismiss the O.P. 5. To prove their case, Pws.1 to 6 was examined and Exs.A1 to A21 was marked for petitioners. On behalf of respondent No.2 no oral evidence was adduced. However, Ex B-1 copy of the policy was marked. 6. On appreciation of the evidence on record, the Tribunal allowed the O.P. in part by awarding compensation of Rs.7,05,000/- with interest @7.5% p.a. from the date of petition till the date of payment or realization. Challenging the same, the present appeal is filed by the petitioners. 7. Learned Counsel appearing for the petitioners contended that the Tribunal erred in fixing the monthly income of the deceased to Rs.5,000/-. The deceased was earning an amount of Rs.20,000/- per month by running a hotel business in the name and style of ‘Gangotri Tiffin Centre’. Challenging the same, the present appeal is filed by the petitioners. 7. Learned Counsel appearing for the petitioners contended that the Tribunal erred in fixing the monthly income of the deceased to Rs.5,000/-. The deceased was earning an amount of Rs.20,000/- per month by running a hotel business in the name and style of ‘Gangotri Tiffin Centre’. Apart from that, the deceased, being a black belt holder in Karate, used to conduct coaching classes in Arya Samaj Maidan, situated at Nagulchinta, Hyderabad. At the time of the accident, the deceased age was 32 years, and the Tribunal had not granted any amount towards Future prospects. It is further submitted that tblack belt holder in Karate, used to conduct coaching classes in Arya Samaj Maidan, situated at Nagulchinta, Hyderabad. At the time of the accident, the deceased age was 32 years, and the Tribunal had not granted any amount towards Future prospects. It is further submitted that tblack belt holder in Karate, used to conduct coaching classes in Arya Samaj Maidan, situated at Nagulchinta, Hyderabad. At the time of the accident, the deceased age was 32 years, and the Tribunal had not granted any amount towards Future prospects. It is further submitted that Tribunal granted a very meagre amount of Rs.20,000/- to petitioner No.1 under the head ‘loss of consortium’ and had failed to grant compensation to petitioner No.2-daughter and Petitioner No.3-father. Petitioner Nos.2 and 3 are also entitled to compensation under head ‘loss of love and affection’ and ‘loss of consortium’. 8. Learned counsel for the petitioners had drawn the attention of this Court to Ex.A-20 i.e., Doctor Certificate dated 30.05.2005, wherein it clearly shows that due to the trauma, the deceased wife had an abortion. The Tribunal had not considered the same and had not granted any compensation towards the “loss of foetus”. The Tribunal had erred in fixing the compensation amount to Rs.2,500/- towards funeral expenses and Rs.2,500/- towards loss of estate. It is further submitted that the accident occurred in Tamil Nadu, and the deceased body was transferred from Tamil Nadu to his native place. To support the same, petitioners had filed the Coffin box bill and ambulance bill under Ex.A-18 and A-19, but the Tribunal had not granted any compensation under the head ‘Transport charges’. The learned counsel appearing for the petitioners prayed this Court to allow the appeal by enhancing the compensation amount. 9. To support the same, petitioners had filed the Coffin box bill and ambulance bill under Ex.A-18 and A-19, but the Tribunal had not granted any compensation under the head ‘Transport charges’. The learned counsel appearing for the petitioners prayed this Court to allow the appeal by enhancing the compensation amount. 9. Per contra, learned counsel appearing for respondent No.2 submitted that the petitioners had not submitted any proper proof of income. Hence, the tribunal had rightly fixed Rs.5,000/- as the monthly earnings of the deceased. With regard to the compensation under the head “loss of foetus”, learned Counsel contended that the petitioner had only submitted a Doctor Certificate dated 30.05.2005 and had not submitted the detailed summary sheet and further submitted that the Tribunal had rightly granted an amount of Rs.7,05,000/- in all and no interference is required by this Court. 10. Heard both sides. Perused the record. 11. The petitioners claimed that at the time of death, the deceased was earning Rs.20,000/- per month by running Tiffin centre and coaching karate class and the Tribunal had taken the deceased’s salary as Rs.5,000/-P.M, which is very low. To support their claim, the petitioners had not filed proper proof of the income. This Court is inclined to enhance the deceased’s salary from Rs.5,000/- to Rs.6,000/-P.M. 12. The annual income of the deceased would come to Rs.72,000/- (Rs.6,000/- x 12). To this, future prospects of 40% i.e. Rs.28,800/- is to be added as per the decision of the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680 as the deceased was aged 32 years. Since the deceased was a family man, 1/3 of the deceased’s income towards personal expenses shall be deducted, which the deceased might have spent for himself is proper. The appropriate multiplier as per the decision of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 . is “16”. Thus, the total loss of dependency would come to Rs.10,75,200/- (Rs.72,000/- + 40% -1/3 x 16). 13. The Tribunal had granted Rs.20,000/- towards loss of consortium only to petitioner No.1. Petitioner Nos.2 and 3 are also entitled for compensation under the head ‘loss of love and affection’ and ‘loss of consortium’. The Tribunal had not granted any compensation to the petitioner Nos.2 and 3. 13. The Tribunal had granted Rs.20,000/- towards loss of consortium only to petitioner No.1. Petitioner Nos.2 and 3 are also entitled for compensation under the head ‘loss of love and affection’ and ‘loss of consortium’. The Tribunal had not granted any compensation to the petitioner Nos.2 and 3. Hence, this Court grants Rs.44,000/-(Rs.40,000 + 10%) to petitioner No.1 towards loss of spousal consortium; Rs.40,000/-each to petitioner Nos.2 and 3 towards loss of love and affection, parental consortium and loss of filial consortium. The Tribunal had granted Rs.2,500/- towards funeral expenses and Rs.2,500/- towards loss of estate, which is very low. This Court is inclined to enhance the funeral expenses to Rs.16,500/-(15000+10%) and towards loss of estate amount Rs. 16,500/-(15000+10%) is granted. 14. The court below did not grant any amount for medical treatment under Ex.A-20 and under Ex.A-21. While rejecting the amount, the court below observed that "the incident occurred after the deceased's death. It cannot be considered as they are in no way concerned”. It is regrettable the conclusion of the court below. Considering the arguments of the petitioner’s counsel, the court below failed to consider the nature of the trauma the deceased's wife faced. The deceased's wife was pregnant. Due to the sudden and shocking news of the death of her husband, as per Ex.A-20, due to trauma, her blood pressure levels increased very high in that unbearable condition, and the child in her womb died. Immediately, she has undergone an abortion. 15. Learned counsel for the petitioner relied on the judgment of Shiv Kumar and others vs. Gainda Lal and Others in Civil Appeal No.7629 of 2022. In the said case, the deceased is a wife, and at that time, she was pregnant. Apex court considered the ‘Pregnancy and under head of “Loss of Foetus”, awarded some amount. In the present case wife of the deceased was pregnant. After the sudden death of her husband and under Shocking trauma, her blood pressure levels increased to high level. As a result, foetus died in her womb, led to abortion. This unfortunate situation cannot be considered as normal and ignored. This court feels that due to unbearable shock, only the mother lost her foetus. If any woman lost her foetus for any reason, her family could not digest the situation. As a result, foetus died in her womb, led to abortion. This unfortunate situation cannot be considered as normal and ignored. This court feels that due to unbearable shock, only the mother lost her foetus. If any woman lost her foetus for any reason, her family could not digest the situation. In the present case, the loss is in two ways: one is the loss of her husband and another is the loss of her foetus. Under these circumstances, this court is inclined to grant the amount under the head of “Loss of Foetus” Rs. 1,00,000/-. 16. After examining the EX.A-18 and Ex.A-19 the Tribunal had not granted any amount under the head ‘Transportation and other charges’. This Court grants Rs.2,500/- towards coffin charges and Rs.18,930/- towards Ambulance bill. With regard to interest, the Tribunal rightly considered the interest at 7.5% p.a., needs no interference. 17. In all, the petitioners are entitled to Rs.13,53,630/- towards compensation. However, the petitioners/appellants shall pay the deficit Court fee on the enhanced compensation. 18. Accordingly, the M.A.C.M.A is allowed in part by enhancing the compensation amount awarded by the Tribunal from Rs.7,05,000/- to Rs.13,53,630/- (Rupees Thirteen lakh, fifty three thousand six hundred and thirty only) with interest @7.5 % p.a. from the date of petition till the date of realization on the enhanced amount. Respondents are directed to deposit the said amount with costs and interest after deducting the amount, if any, already deposited within two months from the date of receipt of a copy of this judgment. On such deposit, the petitioners are permitted to withdraw the same in accordance with the manner and apportionment as determined by the Tribunal, subject to payment of the deficit Court fee within two months from the date of receipt of a copy of this judgment. There shall be no order as to costs. Miscellaneous petitions, if any pending, shall stand closed.