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2023 DIGILAW 67 (AP)

Zibbidi Kotamma, Vizianagaram v. A. Sankara Rao

2023-01-05

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order dated 24.08.2009 in M.V.O.P. No.521 of 2007 passed by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Vizianagaram (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 (for short ‘M.V. Act’) claiming compensation for an amount of Rs.4,50,000/- for the death of Zibbidi Jamanna and Rs.50,000/- towards compensation for bullocks. 4. It is not in dispute that the deceased is the husband of the first claimant, the father of claimants 2 and 3 and the son of claimants 4 and 5. The said Zibbidi Jamanna would hereinafter be referred to as “the deceased”. 5. The claimants’ case is that on 16.05.2005 at about 09.15 PM, the deceased, after purchasing six buffaloes, started from Kothavalasa to Alamanda sandy; when he reached Alamanda village at approximately 11.00 PM, a lorry bearing No. A.P. 35 T 7288 (hereinafter referred to as "offending vehicle") proceeding from Vizianagaram side to Kothavalasa side, driven by the 1st respondent in a rash and negligent manner at high speed even without blowing any horn or following traffic rules, dashed the deceased and buffaloes. Due to this, the deceased died on the spot, three buffaloes also died, and three buffaloes sustained injuries. 6. Respondents 1 and 2, the driver and owner of the offending vehicle, remained ex-parte. 7. The third respondent filed its written statement contending that the claimants have to prove that there is an employer and employee relationship between the respondents. The claimants have to prove that the 1st respondent driver had a valid driving licence at the time of the accident, that the vehicle was insured with the third respondent and that the policy was in force at the time of the accident. The accident occurred only due to gross negligence on the part of the deceased but not on the first respondent. The quantum of compensation claimed is excessive. 8. Based on the pleadings, the Tribunal framed appropriate issues. Before the Tribunal, on behalf of the claimants, PWs.1 and 2 were examined and marked Exs.A.1 to A.6. The accident occurred only due to gross negligence on the part of the deceased but not on the first respondent. The quantum of compensation claimed is excessive. 8. Based on the pleadings, the Tribunal framed appropriate issues. Before the Tribunal, on behalf of the claimants, PWs.1 and 2 were examined and marked Exs.A.1 to A.6. On behalf of the third respondent, no evidence was adduced on its behalf, but got marked Ex.B.1-policy by consent. 9. After considering the evidence on record, the Tribunal held that the accident had occurred due to rash and negligent driving of the offending vehicle's driver, i.e., the first respondent, awarded compensation Rs.2,10,000/- i.e., Rs.20,000/- compensation towards loss caused due to death of buffaloes and towards injured buffalo and bull and Rs.1,90,000/- towards the death of deceased) with interest at 6% per annum from the date of petition till the date of realization against respondents No.1 to 3, making them jointly and severally liable to pay the compensation. 10. Heard the arguments of the learned counsel for both parties. 11. Learned counsel for appellants/claimants contends that the Tribunal failed to appreciate the case properly and granted the award for the death of buffaloes and towards injured buffalo and bull, but it is a meager amount. Hence it is illegal; the Tribunal failed to consider the case of the deceased that he was hale and healthy, and he used to earn Rs.200/- per day by doing cattle business and labour work. But nowadays, even daily labour is earning more than Rs.200/- per day, hence the finding of the Tribunal is illegal. 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 the rash and negligent driving of the offending vehicle’s driver, who is the first respondent, is not disputed by either of the parties. Hence, the said finding has attained finality. 15. The finding of the Tribunal that the deceased died due to injuries sustained in the accident is not in dispute. Hence, the said finding has attained finality. 15. The finding of the Tribunal that the deceased died due to injuries sustained in the accident is not in dispute. It is established by Ex.A.1-certified copy of F.I.R., Ex.A2-certified copy of the postmortem certificate of the deceased, Ex.A5-certified copy of M.V.I. report and Ex.A.6-certified copy of charge sheet. The finding of the Tribunal that the accident caused the death of buffaloes and injuries caused to the buffalo and bull is also not in dispute. It is established by Ex.A3-certified copy of the postmortem certificate of (3) buffaloes. 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. 16. Though the claimants disputed the quantum of compensation awarded towards the death of buffaloes and the injuries caused to the buffalo and bull, no evidence is placed before the Court to show the actual value of the buffaloes and the amount spent towards the treatment for the injuries sustained by the buffaloes and bull. In the absence of such evidence on record, the Tribunal estimated the loss caused to the claimants and awarded the compensation amount. No material is placed to show that the compensation awarded by the Tribunal is meager and not just. As such, this Court is not inclined to interfere with the compensation awarded towards the death of buffaloes and injuries to buffaloes and bulls. 17. According to the case of the appellants/claimants, the deceased was aged 26 years by the date of the accident. In the absence of evidence showing the exact age of the deceased, the Tribunal relied on Ex.A.2-certified copy of the postmortem certificate of the deceased. It estimated the deceased's age as 26 years, which is not disputed. 18. As per claimants, the deceased used to do cattle business, and labour work and thereby earned Rs.200/- per day. There is no specific evidence with respect to the income of the deceased. In a case like this, where there is no specific evidence as to the income of the deceased, the Apex Court, in Lakshmi Devi and others Vs. Mohammad Tabber, 2008 ACJ 488 held that, in today’s world, even common labour can earn Rs.100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/-. Mohammad Tabber, 2008 ACJ 488 held that, in today’s world, even common labour can earn Rs.100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/-. But the Tribunal wrongly assessed the income of the deceased notionally at Rs.15,000/- per year. 19. In National Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ 270, wherein it is held in case the deceased was self-employed, an additional 40% of the established income should be the warrant where the deceased was below the age of 40. Given the same, the monthly earnings of the deceased, including a future prospectus, can be assessed at Rs.3,000/- + 40% = Rs.4,200/-. 20. Since the deceased was married and the claimants are dependents upon the earnings of the deceased, and considering the size of the dependents, i.e., 5 in number and view of the principle laid down in Sarala Verma v. Delhi Transport Corporation, 2009 ACJ 1298 , this Court views 1/4th of the deceased's earnings to be deducted towards personal and living expenses. After the deduction of 1/4th of the earnings as observed above, the monthly earnings, including the future prospectus of the deceased after deducting the 1/4th of the earnings of the deceased towards his personal and living expenses, the contribution of the earnings towards the family welfare would arrive at Rs.3,150/- (Rs.4200/- (-) Rs.4,200/- x 1/4). 21. To assess the loss of earnings, this Court relied on the judgment of the Apex Court in Sarla 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 and 30 is provided as 17'. Therefore, the loss of earnings would arrive at an amount of Rs.6,42,600/- (Rs.3,150/- x 12 x 17). 22. In Magma General Ins. Co. Ltd. v. Nanu Ram, 2018 ACJ 2782 , at paragraph 8, the Apex Court held that : "(8.6)…the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant. (8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium. In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.). The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training. The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship, and role in the family unit." 23. The judgment in Pranay Sethi’s case was rendered in the year 2017. Therefore, the claimants are entitled to a 10% enhancement of conventional heads. In all, the claimants are entitled to the compensation as detailed below : Towards loss of dependency Rs.6,42,600/- Towards funeral expenses Rs.16,500/- Towards loss of estate Rs.16,500/- Towards spousal consortium Rs.44,000/- Towards parental consortium Rs.88,000/- Towards filial consortium Rs.20,000/- Total Rs.8,27,600/- 24. Since claimants 2 and 3 are minors, this Court is inclined to award an amount of Rs.44,000/- under the head parental consortium to each of claimants 2 and 3. In all, the claimants are entitled to the compensation amount of Rs.8,27,600/-. 25. Since claimants 2 and 3 are minors, this Court is inclined to award an amount of Rs.44,000/- under the head parental consortium to each of claimants 2 and 3. In all, the claimants are entitled to the compensation amount of Rs.8,27,600/-. 25. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Company Limited and another, (2011) 10 SCC 756 the Apex Court while referring to Nagappa v. Gurudayal Singh, 2003 (12) A.C.J. 274 (SC) held as under : “It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274 , in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident.” 26. In Ramla vs. National Insurance Co. Ltd., CIVIL APPEAL No.11495 OF 2018 the Apex Court held no restriction to award compensation exceeding the amount claimed. As such, given the principle laid down by the Apex Court, the claimants are entitled to an amount of Rs.8,27,600/- exceeding the claimed amount. However, the claimants shall pay the requisite court fee over and above the compensation awarded. 27. Following the principles laid down by the Apex Court in a catena of judgments, this Court can safely conclude that the claimants are entitled to get more than what has been claimed. Further, the Motor Vehicles Act is a beneficial piece of legislation where the interest of the claimants is a paramount consideration. The Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent. 28. In the result, the appeal is allowed without costs, enhancing the compensation from Rs.2,10,000/- to Rs.8,27,600/- (Rupees Eight Lakhs Twenty-Seven Thousand Six Hundred only), with interest at 6% per annum as awarded by the Tribunal. The claimants are entitled to the enhanced compensation amount, subject to the payment of the requisite court fee. Respondents 1 to 3 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 the enhanced compensation amount, subject to the payment of the requisite court fee. Respondents 1 to 3 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. Out of the enhanced compensation amount, the first claimant is entitled to 40% of the enhanced compensation with cost and interest, claimants 2 and 3 are entitled to 20% each of enhanced compensation, and claimants No.4 and 5 are entitled to 10% each of the enhanced compensation amount. On such deposit, the claimants are permitted to withdraw their respective shares on filing appropriate applications before the Tribunal. 29. Consequently, in this appeal, miscellaneous petitions pending, if any, shall stand closed.