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2024 DIGILAW 1164 (AP)

C. Ramachandramma (Died) v. C. Sridhar Reddy

2024-08-21

NYAPATHY VIJAY, RAVI NATH TILHARI

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JUDGMENT : RAVI NATH TILHARI, J. 1. Heard Sri S.V. Muni Reddy, learned counsel for the appellants/claimants and Sri Gudi Srinivas, learned counsel for respondent No. 3-ICICI Lombard Motor Insurance Company (in short ‘Insurance Company). 2. The appellants/claimants are the legal representatives of the deceased viz. Chiyyavaram Rajasekhar Reedy (hereinafter referred as ‘deceased’). They filed M.V.O.P. No. 714 of 2007 on the file of the Court of the learned III Additional District Judge-cum-Chairman, Motor Accident Claims Tribunal, Rajampet (in short ‘the Tribunal) under Section 166 of the Motor Vehicles Act 1988, (in short ‘MVA Act’) claiming compensation for the death of the deceased in a motor vehicle accident, which occurred at about 1.00 p.m. on 26.03.2007. 3. The case of the appellants was that the deceased was travelling in a jeep, which was proceeding from Tirupathi to Kadapa in a high speed, and when they reached Cherlapally village, a tractor belonging to respondent No. 2 was going in front of Mahindra Marshal Jeep bearing No. AP 16 S 4428. Suddenly, a spade fell on the road from the tractor and the driver stopped the tractor on the middle of the road to collect spade. The jeep driver dashed the tractor and thereby, the accident took place. The jeep belonged to respondent No. 1, the brother of the deceased. The deceased died on the way to the hospital. The complaint was preferred before the police. Cr. No. 23 of 2007 was registered against the driver of the 1st respondent. It is the further case of the appellants that if the driver of respondent No. 2 had taken precautionary measures and ought not to have stopped suddenly the tractor and spade ought not to have fallen on the road, accident ought not to have occurred. There was clear negligence on the part of the driver of the 2nd respondent. Negligence on the part of the driver of the 1st respondent was alleged to be 25%, and of the driver of the 2nd respondent as 75%. Respondent No. 3 was the insurer of respondent No. 2, owner of tractor. The age of the deceased was said to be 53 years at the time of the accident and his annual income as Rs.10,00,000/-. The claim was made for Rs.50,00,000/-. 4. The 1st respondent remained ex-parte. 5. Respondent No. 3 was the insurer of respondent No. 2, owner of tractor. The age of the deceased was said to be 53 years at the time of the accident and his annual income as Rs.10,00,000/-. The claim was made for Rs.50,00,000/-. 4. The 1st respondent remained ex-parte. 5. The 2nd respondent owner of the tractor, filed written statement and denied rash and negligence on the part of his driver. 6. The 3rd respondent-Insurance Company also denied that the driver of the tractor was rash and negligent at the time of the accident. In fact, the accident occurred only due to rash and negligent driving of the driver of respondent No. 1. The other averments in the claim petition were also denied inter-alia submitting that the appellants be put to strict proof of their case. 7. The Tribunal framed the following issues: 1. Whether death of the deceased Chiyyavaram Rajasekhar Reddy son of Jayarami Reddy died owing to rash and negligent driving of the drivers of Mahendra Marsha Jeep bearing No. AP16 S 4428 owned by respondent No. 1 and tractor bearing No. AP 04 V 4157 belonging to Respondent No. 2 on 26.03.2007 at about 1.00 pm., near Cherlapally near Vontimitta on Rajampet-Kadapa main road? 2. Whether respondents 1 to 3 are jointly and severally liable for the compensation claimed by the petitioners? 3. Whether the petitioners 1 to 4 are entitled for compensation as claimed by them? 4. To what relief? 8. On behalf of the claimants, the 2nd claimant examined herself as PW-1 and the other witnesses were examined as PWs. 2 to 5, Exs.A1 to A11 were also marked. On behalf of the respondents, the Manager of ICICI Lombard General Insurance Company Limited, Hyderabad was examined as RW-1. A copy of the insurance policy was marked as Ex.B1. 9. The Tribunal recorded the finding that the drivers of the tractor as well as the jeep were responsible for the accident. They were rash and negligent to the extent of 50 % each, thereby partly allowed the claim, vide award, dated 30.06.2017 and granted total compensation of Rs.16,20,000/- by fixing the liability on respondent Nos. 1 & 2 jointly and severally. 10. On the point of quantum of compensation, the Tribunal determined the income of the deceased as Rs.15,000/- per month. They were rash and negligent to the extent of 50 % each, thereby partly allowed the claim, vide award, dated 30.06.2017 and granted total compensation of Rs.16,20,000/- by fixing the liability on respondent Nos. 1 & 2 jointly and severally. 10. On the point of quantum of compensation, the Tribunal determined the income of the deceased as Rs.15,000/- per month. The agricultural income of the deceased videEx.A10-Attested copy of agriculture income certificate, dated 24.03.2007 was not added to his income, observing the reason, in the absence of any payment of income tax to that effect. Nothing was awarded towards the future prospects, observing he was a business man. The Tribunal further recorded that the claimants failed to establish that the deceased was the business partner of 28% share in M/s. SSRR Constructions. Ex.A9 attested copy of partnership deed issued by the Chartered accountant, dated 18.08.2005, was not relied on as the attestation did not show as to who had attested the said partnership deed. The genuinity of Ex.A9 was not accepted for want of proper attestation. The age of the deceased was considered as 53 years. Taking the annual income as Rs.1,80,000/- after deducting ¼ towards personal expenses of the deceased and applying the multiplier of 11, the total dependency was assessed as Rs.14,85,000/-. To the said amount, a sum of Rs.1,00,000/- towards loss of Consortium, Rs.25,000/- towards loss of Estate, Rs.5,000/- towards funeral expenses and Rs.5,000/- towards transport charges were added. Thus, the total compensation was awarded by the Tribunal came to a sum of Rs.16,20,000/-. The Tribunal awarded interest @ 7.5 % per annum from the date of petition till the date of realization. 11. The respondent No. 3-Insurance Company has not challenged the award. 12. The appeal has been filed by the claimants seeking enhancement of the compensation amount awarded by the Tribunal. 13. Learned counsel for the appellants submits that the Tribunal erred in holding the contributory negligence on the part of the driver of the jeep also, as 50%. He submitted that the negligence was more on the part of the driver of the tractor, which suddenly stopped on the road to collect spade. The contributory negligence in any case of the jeep driver could not be more than 25%. Consequently, the contributory negligence of tractor driver should be 75%. 14. He submitted that the negligence was more on the part of the driver of the tractor, which suddenly stopped on the road to collect spade. The contributory negligence in any case of the jeep driver could not be more than 25%. Consequently, the contributory negligence of tractor driver should be 75%. 14. Learned counsel for the claimants further submitted that the agricultural income should have been taken into account. Not adding such income on the reason assigned is unjustified. The claimants are entitled for supervisory charges. He further submitted that future prospects should also be added and under the conventional heads, the amount awarded is less. The compensation awarded, as such does not reflect the just compensation. 15. Learned counsel for respondent No. 3-Insurance Company submitted that the jeep belonged to respondent No. 1, who was the brother of the deceased. Any FIR or complaint was not lodged against the driver or owner of the jeep. The driver of the tractor was examined by the claimants as PW-3. There was collusion between the claimants and the driver of the tractor. The plea of the driver of the tractor that he stopped the tractor on the middle of the road to collect spade, is an afterthought. He submitted that though there was no negligence on the part of the driver of the tractor as per the version of the 3rd respondent, but the insurance company has not filed any appeal. There is nothing to indicate that the percentage of the contributory negligence would be 75 % on the part of the driver of the tractor. He further submitted that the finding has been recorded that the jeep driver was also rash and negligent in driving his vehicle. If he had maintained a sufficient distance from the tractor and was not in such a high speed, the accident could have been avoided. In the circumstances, the submission is that the finding on the point of contributory negligence on the part of both the drivers to the extent of 50% each, deserves no interference. He relied upon the judgment of the Hon’ble Apex Court in Nishan Singh and Others v. Oriental Insurance Company Limited and Others (2018) 6 SCC 765 , to contend that ‘sufficient distance’ would mean at least a safe distance of two or three seconds gap in ideal conditions to avert collision and allow the following driver to respond. 16. He relied upon the judgment of the Hon’ble Apex Court in Nishan Singh and Others v. Oriental Insurance Company Limited and Others (2018) 6 SCC 765 , to contend that ‘sufficient distance’ would mean at least a safe distance of two or three seconds gap in ideal conditions to avert collision and allow the following driver to respond. 16. Learned counsel for respondent No. 3 further submitted that the appellants did not file Income Tax returns to determine the income. The finding on income is perfectly justified and the compensation awarded cannot be said to be not a just and fair compensation. 17. We have considered the submissions advanced by the learned counsels for the parties and have perused the material on record. 18. The points for determination arising in the appeal are as follows: “1. Whether the contributory negligence of the driver of the tractor, so also of the jeep, as determined by the Tribunal as 50% each, calls for any interference? 2. Whether the compensation awarded is a just and fair compensation or is it on the lower side, which deserves enhancement in the light of the submissions advanced?” POINT No. 1: 19. The Tribunal has recorded finding based on the evidence on record that there was contributory negligence on the part of the driver of the tractor as also the jeep, in which the deceased was travelling. Learned counsel for the appellants has not challenged the finding on the contributory negligence, which has been attributed to the drivers of both the vehicles. The only challenge is to the extent of contributory negligence. So, we shall proceed with that there was contributory negligence on the part of the driver of the jeep as well. 20. So far as the extent i.e., percentage of contributory negligence is concerned, there is no criteria to determine. Learned counsel for the appellants drew our attention to the Paragraph No. 12 of the award, where the Tribunal has mentioned that the driver of the tractor was also negligent and rash by way of not taking any precautionary measures. The spade fell down and he suddenly stopped the vehicle. In our view, the same only shows the negligence on the part of the driver of the tractor. But, that could not determine the extent of his negligence. The spade fell down and he suddenly stopped the vehicle. In our view, the same only shows the negligence on the part of the driver of the tractor. But, that could not determine the extent of his negligence. With respect to the driver of the jeep also, there is evidence of PW-4 that the jeep hit the tractor from behind. The jeep driver was also negligent as it is evident from the evidence of the claimants/appellants that he was also driving at high speed, lost control and dashed against the tractor on the rear side. Further, it has also come on record that the jeep belonged to the brother of the deceased and PW-2 is the driver of the jeep. The claimants even examined the driver of the tractor as their witness i.e., PW-4. The Tribunal on consideration of evidence recorded findings, based on the appreciation of oral and documentary evidence. Therefore, we do not find any reason to interfere with such findings in the exercise of the 1st appellate jurisdiction. The view taken by the Tribunal was that both the drivers were equally responsible to the extent of 50% contributory negligence, which is the possible view, with which this Court in the exercise of appellate jurisdiction, and that too, in the absence of any evidence shown to us to determine the contributory negligence of the deriver of jeep as 25% and the driver of the tractor as 75%, finds no reason to interfere. We, therefore, on point No. 1 do not interfere with the finding on contributory negligence to the extent of 50% each on the part of both the drivers and maintain the same finding. POINT No. 2: 21. So far as the compensation amount is concerned, the age of the deceased, his income, the ¼ deduction and the multiplier of 11 are not disputed. There is no challenge on those aspects. 22. The things that are to be determined by this Court are the agriculture income, and in view thereof, the supervisory charges and grant of future prospects. 23. On the point of agricultural income, the Tribunal did not believe Ex.A10-Attested copy of agriculture income Certificate, dated 24.03.2007, observing that Ex.A10 could not be relied upon in the absence of any payment of Income Tax to that effect. The reason as assigned, in our view, is not sustainable to disbelieve Ex.A10. 23. On the point of agricultural income, the Tribunal did not believe Ex.A10-Attested copy of agriculture income Certificate, dated 24.03.2007, observing that Ex.A10 could not be relied upon in the absence of any payment of Income Tax to that effect. The reason as assigned, in our view, is not sustainable to disbelieve Ex.A10. The agricultural income is not subject to income tax. Consequently, even if Income Tax returns were not filed or there was no proof of payment of income tax, in the presence of PW-1 to prove that the deceased had the agricultural income and in the absence of any contrary evidence, the agricultural income ought to have been taken into consideration for grant of supervisory charges. 24. The Hon’ble Apex Court in K. Ramya and Others v. National Insurance Co. Ltd. 2022 SCC Online SC 1338, observed that: “21. Now, the sole issue which remains before this court is whether the entire amount under ‘Income from House Property and Agricultural Land’ should be deducted or not. In this respect, we are guided by the observations of this court in State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484 wherein it was noted that: 8. xxx xxx xxx The land possessed by the deceased still remains with his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. (Emphasis Applied) 22. In our opinion, the abovementioned observations, though made in the context of agricultural land, would also be applicable to rent received from leased out properties as the loss of dependency arises mainly out of loss of management capacity or efficiency. As a rule of prudence, computation of any individual's managerial skills should lie between 10 to 15 per cent of the total rental income but the acceptable range can be increased in light of specific circumstances. The appropriate approach, therefore, is to determine the value of managerial skills along with any other factual considerations.” 25. Accordingly, we award the supervisory charges @ 15% on the agricultural income of Rs.5,00,000/- based on Ex.A10 i.e. Rs.75,000/- 26. As discussed above, the future prospects have been denied on the ground of age and occupation of the deceased. The appropriate approach, therefore, is to determine the value of managerial skills along with any other factual considerations.” 25. Accordingly, we award the supervisory charges @ 15% on the agricultural income of Rs.5,00,000/- based on Ex.A10 i.e. Rs.75,000/- 26. As discussed above, the future prospects have been denied on the ground of age and occupation of the deceased. In the case of National Insurance Company Limited v. Pranay Sethi and Others, on the point of future prospects, the Hon’ble Apex Court has held as under: “59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” 27. We are of the view that in view of the Pranay Sethi judgment, the claimants are entitled for the future prospects @10%, in addition, on total income including the agricultural income. Accordingly, we grant the same. 28. Additionally, the claimants are entitled for an amount of Rs.48,000/- to each of the claimants being Rs.1,92,000/- for loss of Consortium, towards funeral expenses Rs. 18,000/- and towards loss of estate Rs.18,000/- in view of a three-Judge Bench of the Hon’ble Apex Court in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others, (2021) 11 SCC 780 after considering Pranay Sethi (Supra), observed that the aforesaid conventional heads are to be revised every three years @ 10%. Accordingly, the three Conventional Heads are increased by 20%. 29. Ltd. v. Satinder Kaur @ Satwinder Kaur and Others, (2021) 11 SCC 780 after considering Pranay Sethi (Supra), observed that the aforesaid conventional heads are to be revised every three years @ 10%. Accordingly, the three Conventional Heads are increased by 20%. 29. Thus considered, the claimants/appellants are entitled in total to the following amount of compensation: S. No. Head Compensation Awarded 1. Net Annual Income Rs. 1,80,000/- 2. Supervisory charges on Agricultural Income @ 15% 75,000/- [i.e. 15% of Rs. 5,00,000/-] 3. Future Prospects Rs. 25,500/- [i.e. 10% of the income] Total = Rs. 2,80,500/- 4. Deduction towards personal expenditure (i.e. 1/4th) Rs. 70,125/- 5. Total income Rs. 2,10,375/- 6. Multiplier of 11 at the age of 53 years i.e. [11 x 2,10,375/-] = Rs. 23,14,125/- 7. Conventional Heads: (i) Loss of Consortium Rs. 1,92,000/- [Rs. 48,000/- x 4] (ii) Loss of Estate Rs. 18,000/- (iii) Funeral expenses Rs. 18,000/- 8. Total Compensation Rs. 25,42,125/- 30. The Tribunal granted interest at the rate of @ 7.5% p.a. In Kumari Kiran v. Sajjan Singh and Others, (2015) 1 SCC 539 the Hon’ble Apex Court set aside the judgment of the Tribunal therein awarding interest @ 6% as also the judgment of the High Court awarding interest @ 7.5% and awarded interest @ 9% p.a. from the date of the claim petition. In Rahul Sharma and Another vs. National Insurance Company Limited and Others, (2021) 6 SCC 188 the Hon’ble Apex Court awarded @ 9% interest p.a. from the date of the claim petition. Also, in Kirthi and Another v. Oriental Insurance Company Limited, (2021) 2 SCC 166 the Apex Court allowed interest @ 9% p.a. 31. Accordingly, on the aforesaid amount the claimants are granted interest @ 9% p.a. from the date of the claim petition till realization. 32. The liability of the 2nd respondent i.e., the owner of the tractor would be only to the extent of 50%. The rest will be on the 1st respondent. 33. The Respondents to deposit the amount as aforesaid, adjusting the amount already deposited/paid if any, before the Tribunal. 34. On such deposit being made, the claimants shall be entitled to withdraw the same in the proportion as per the award failing which, the amount shall be recovered as per law. 35. The rest will be on the 1st respondent. 33. The Respondents to deposit the amount as aforesaid, adjusting the amount already deposited/paid if any, before the Tribunal. 34. On such deposit being made, the claimants shall be entitled to withdraw the same in the proportion as per the award failing which, the amount shall be recovered as per law. 35. Accordingly, we allow the appeal in part and enhance the compensation by modifying the award of the Tribunal as per the calculation made in this judgment being the just compensation, with costs proportionate to the claimants. 36. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.