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2024 DIGILAW 625 (TS)

Kandula Balamani v. Goundla Prasad Goud

2024-08-30

M.G.PRIYADARSINI

body2024
JUDGMENT : M.G. PRIYADARSINI, J. 1. Dissatisfied with the compensation awarded by the learned Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad, in M.V.O.P. No. 1219 of 2017, dated 19.11.2018, the claim petitioners therein filed the present Appeal seeking enhancement of compensation. 2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal. 3. The brief facts of the case are that the petitioners, who are the wife, children and mother of the deceased-Laxminarayana, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.15,00,000/- with interest @ 18 % per annum on account of the death of the deceased in a motor vehicle accident that occurred on 01.04.2017. As stated by the petitioners, on 01.04.2017 at about 6.50 p.m., when the deceased-Kandula Laxminarayana was proceeding towards Bhongir side from Hanumakonda, and while crossing the road, an Auto bearing No. TS-07-UC-0361, which was driven by its driver in a rash and negligent manner at high speed, while overtaking a Cyclist, went to the extreme right side of the road and the bag which was being carried by the deceased, was locked with the right side rear view mirror of the Auto. As a result, the deceased fell down and he was dragged towards Hanumakonda side as the driver of the Auto was driving it more than 60 KM per hour speed and could not control it. The said Auto dragged the deceased for 10 metres. As a result, the deceased sustained multiple fractures, including head injury and was immediately shifted to Government Hospital, Aleru and from there, to Gandhi Hospital, Secunderabad and the deceased succumbed to injuries on the way to Government Hospital, Secunderabad at about 8.00 PM. Police of Alair Police Station, registered a case in Crime No. 48 of 2017 under Section 304-A IPC. It is stated by the petitioners that the deceased was aged 49 years as on the date of accident and is a silk saree weaver and used to earn Rs.20,000/- per month. Due to the sudden death of the deceased, the petitioners lost their bread winner, love and affection and hence filed a claim petition seeking compensation of Rs.15,00,000/- against the respondents. 4. Respondent Nos. 1 & 3, who are the owner and driver of the Auto bearing No. TS-07-UC-0361, remained ex-parte. 5. Due to the sudden death of the deceased, the petitioners lost their bread winner, love and affection and hence filed a claim petition seeking compensation of Rs.15,00,000/- against the respondents. 4. Respondent Nos. 1 & 3, who are the owner and driver of the Auto bearing No. TS-07-UC-0361, remained ex-parte. 5. Respondent No. 2/Insurance Company filed its counter denying the averments made in the claim petition including, age, occupation, earnings of the deceased, manner of accident, driver having valid driving license. It also denied that the subject Auto do not possess valid insurance policy as on the date of accident and hence prayed to dismiss the claim against it. 6. Based on the rival contentions made by both the parties, the learned Tribunal had framed the following issues: (i) Whether the death of the deceased-K. Laxminarayana was due to rash and negligent driving of the Auto bearing No. TS-07-UC-0361 driven by its driver? (ii) Whether the petitioners are entitled for compensation? If so, to what extent and against whomo? (iii) To what relief? 7. Before the Tribunal, on behalf of the petitioners, PWs 1 to 3 were examined and Exs.A1 to A9 were marked. On behalf of the 2nd respondent/Insurance Company, no witness was examined, however, Ex.B1-Copy of Insurance policy was marked. 8. After considering the evidence and documents filed by both sides, the learned Tribunal had awarded compensation of Rs.5,74,000/- along with interest @ 7.5% per annum from the date of petition till the date of realization payable by respondent Nos. 1, 2 & 3 jointly and severally. Having not satisfied with the said compensation, the claim petitioners preferred the present Appeal seeking for enhancement of the same. 9. Heard learned counsel for the appellants as well as the learned Standing Counsel for the respondent No. 2/Insurance Company. 10. The main contention of the learned counsel for the appellants is that the learned Tribunal ought to have taken income of the deceased @ Rs.20,000/- per month based on the evidence of PW3 and ought to have considered the age of the deceased as 55 years as per post-mortem examination and inquest reports and prayed to allow the Appeal by enhancing the compensation. 11. Per contra, learned counsel for the 2nd respondent/Insurance Company contended that the learned Tribunal, after considering all the aspects, had awarded reasonable compensation for which interference of this Court is unwarranted. 12. 11. Per contra, learned counsel for the 2nd respondent/Insurance Company contended that the learned Tribunal, after considering all the aspects, had awarded reasonable compensation for which interference of this Court is unwarranted. 12. Now the point that arises for determination is: Whether the order passed by the learned Tribunal suffers from any irregularity? POINT: 13. This Court has perused the entire evidence and documents available on record. Petitioner No. 1, who is the wife of the deceased, was examined herself as PW1. As she is not an eye witness to the incident, she got examined PW2, who is an eye witness to the accident and also got examined PW3 on her behalf and got marked Exs.A1 to A9. As the respondent Nos. 1 & 3 remained ex-parte before the trial Court, none of the witnesses were examined on their behalf. On behalf of the respondent No. 2, no witness was examined, however, Ex.B1-Copy of Insurance policy was marked. 14. PW2, who is an eye witness to the incident, deposed in his evidence that on 01.04.2017, while he was proceeding to police station on his motor cycle, he witnessed the crime Auto bearing No. TS-07-UC-0361 being driven by its driver in a rash and negligent manner at high speed hit the deceased who was intending to cross the road. As a result, the rear view mirror of the Auto locked the bag of the deceased and dragged him nearly 8 to 10 yards. As a result, the deceased sustained multiple injuries including, head injury and while he was being shifted to Government Hospital, Secunderabad, he died on the way. 15. It is also pertinent to state that a perusal of Ex.A1-FIR shows that Police of Alair Police Station, registered a case in Crime No. 48 of 2017 under Section 304-A IPC, took up investigation and laid charge sheet against the driver of the subject Auto under Ex.A6. Ex.A2 is the Inquest report wherein, the opinion expressed by the panchayatdars is that the accident occurred due to the rash and negligent driving of the driver of the crime Auto. Ex.A3 is the post-mortem examination report which shows that the cause of death was due to ‘Head injury’. Ex.A4 is the report of Motor Vehicle Inspector wherein it is stated that the occurrence of accident was not due to any mechanical defect. Ex.A3 is the post-mortem examination report which shows that the cause of death was due to ‘Head injury’. Ex.A4 is the report of Motor Vehicle Inspector wherein it is stated that the occurrence of accident was not due to any mechanical defect. Ex.A5 is the notice under Section 41-A Cr.P.C. issued to driver of the crime Auto. Ex.A7 & A8 are the statements of witnesses. Ex.A9 is the Identity card issued by the Telangana State Government Handlooms and Textiles Unit, Nalgonda. Therefore, from the evidence of PW2 coupled with the documents marked under Exs.A1 to A4 & A6, it is clear that the death of the deceased was due to rash and negligent driving of the driver of the crime Auto bearing No. TS-07-UC-0361. This Court do not find any reason to interfere with the findings of the learned Tribunal. 16. Coming to the quantum of compensation awarded, as the petitioners failed to produce necessary documents evidencing the age of the deceased, the learned Tribunal took the age of the deceased @ 61 years as per Ex.A9- Identity card issued by the Telangana Handlooms Unit, Nalgonda. Though the petitioners contended that the deceased is a Silk Saree Weaver by profession and used to earn Rs.20,000/- per month, but they did not produce any documentary proof to that effect. Hence, the learned Tribunal assessed his monthly income @ Rs.8,000/- and calculated compensation accordingly which arrived @ Rs.5,74,000/-. 17. Learned counsel for the appellants argued that the learned Tribunal ought to have considered the age of the deceased as 55 years as mentioned under Exs.A2 & A3 which are the inquest and post-mortem examination reports and ought to have calculated compensation accordingly. It is also contended that the learned Tribunal ought to have considered the income of the deceased @ Rs.20,000/- per month based on the evidence of PW3. 18. Admittedly, there is no Date of Birth certificate filed by the claim petitioners. Hence, the learned Tribunal had taken the age mentioned in Ex.A9- Identity card issued by the Telangana State Handlooms and Textiles Wing, Nalgonda, into consideration. It is pertinent to state that Ex.A9 is not an authenticated document. Hence, it cannot be taken into consideration. In the absence of Date of Birth Certificate, Courts normally rely upon Post Mortem Examination Report. Hence, the learned Tribunal had taken the age mentioned in Ex.A9- Identity card issued by the Telangana State Handlooms and Textiles Wing, Nalgonda, into consideration. It is pertinent to state that Ex.A9 is not an authenticated document. Hence, it cannot be taken into consideration. In the absence of Date of Birth Certificate, Courts normally rely upon Post Mortem Examination Report. Hence, this Court, by relying upon the Postmortem examination report marked under Ex.A3, issued by the Doctor who conducted autopsy over the dead body of the deceased, is inclined to take the age of the deceased as 55 years and would calculate compensation accordingly. Though it is the contention of the learned counsel for appellants that the deceased used to earn Rs.20,000/- per month as a Silk Saree weaver which contention is corroborated by the evidence of PW3, but there is no documentary proof evidencing the same and mere filing of Ex.A9-Identity Card issued by the T.S. Handlooms & Textiles Wing, Nalgonda does not suffice to consider the income of the deceased @ Rs.20,000/- per month. Under these circumstances, this Court feels it reasonable that the learned Tribunal has rightly taken the income of the deceased @ Rs.8,000/- which needs no interference by this Court. Hence, the calculation of compensation is as under. 19. The monthly income of the deceased is taken @ Rs.8,000/-. Since this Court considered the age of the deceased as ‘55’ years as per Ex.A3-Post-mortem examination report, the dependents of the deceased are entitled for addition of 10% of income towards future prospects which comes to Rs.8,800/-. If 1/4th income is deducted towards personal expenses as the number of dependents are four, then the net monthly income of the deceased comes to Rs.6,600/- and the annual income comes to Rs.79,200/- and after applying multiplier ‘11’ for the deceased being aged 55 years, then the total loss of income comes to Rs.8,71,200/-. Apart from this the learned Tribunal had awarded a sum of Rs.70,000/- towards conventional heads i.e. loss of estate, loss of consortium and funeral expenses by relying upon the Judgment of Hon’ble Apex Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi and Others, 2017 ACJ 2700 which this Court feels considerable and is not inclined to interfere with the same. Thus in all, the appellants are entitled for a total compensation of Rs.9,41,200/-. 20. Ltd. vs. Pranay Sethi and Others, 2017 ACJ 2700 which this Court feels considerable and is not inclined to interfere with the same. Thus in all, the appellants are entitled for a total compensation of Rs.9,41,200/-. 20. In the result, the Appeal is partly-allowed by enhancing the amount of compensation awarded by the Tribunal from Rs.5,74,000/- to Rs.9,41,200/- which carries interest @ 7.5% per annum payable by the respondent Nos. 1, 2 & 3 jointly and severally within a period of two months from the date of receipt of a copy of this order. Upon such payment made, the appellants are entitled to withdraw the same as per the apportionment made by the learned Tribunal. There shall be no order as to costs. 21. Miscellaneous petitions pending, if any, shall stand closed.