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2024 DIGILAW 834 (AP)

Kuppala Ratnamala v. Shaik Basheer

2024-07-25

V.SRINIVAS

body2024
JUDGMENT : V. SRINIVAS, J. 1. This appeal is directed against the order, dated 07.10.2011 passed in M.V.O.P. No. 1038 of 2009 on the file of the learned Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Eluru (hereinafter called as “the Tribunal”). 2. The Appellants are claimants/petitioners and Respondent No. 1 is driver and Respondent No. 2 is owner of the crime vehicle. The Respondent No. 3 and 4 are insurers. 3. For the sake of convenience, the parties hereinafter are referred as they arrayed before the tribunal. 4. The case of the claimants, in the petition before the Tribunal is that: (i) On 05.06.2009 at about 4.00 P.M., in Gopalapuram Village of Agiripalli Mandal of Krishna District, one K. Durga Rao (hereinafter referred as “deceased”) who is husband of petitioner No. 1, father of petitioner Nos.2 and 3 and son of petitioner Nos. 4 and 5 along with one Kuppala Venkataramaiah boarded Auto bearing No. AP 16 TT 5492. When the auto reached near Gopalpuram Village near K.M. Stone No. 4, Respondent No. 1 who is driver of Truck Auto bearing No. AP 16 TW 1729 coming from Agiripalli side, drove the same in a rash and negligent manner at high speed without following the traffic rules and without blowing horn and dashed against the auto in opposite direction in which the deceased and another are travelling. As a result, the deceased received severe injuries all over his body and he was immediately shifted to Government Hospital, Vijayawada in 108 Ambulance. On examining by duty doctor, the deceased was declared as died. (ii) A case came to be registered for the offence punishable under Section 304-A IPC against the Respondent No. 1 and investigated into. (iii) Seeking for compensation of Rs.9,00,000/- along with interest against Respondents Nos. 1 to 3 on the death of the deceased in the motor accident, the claimants filed motor vehicle original petition. 5. Respondent Nos. 1 and 2 remained ex-parte. Respondent No. 3 filed written statement denying the material averments made by the petitioners in their petition. It is contended that the accident in question was not occurred due to rash and negligent driving of the offending vehicle by the Respondent No. 1. The petition is bad due to non-following of the mandatory provisions of the Motor Vehicles Act and Rules framed there under. 6. It is contended that the accident in question was not occurred due to rash and negligent driving of the offending vehicle by the Respondent No. 1. The petition is bad due to non-following of the mandatory provisions of the Motor Vehicles Act and Rules framed there under. 6. Respondent No. 4 filed written statement, re-iterating the material averments made by the Respondent No. 3 in its written statement and mainly contended that they are not liable to pay any compensation as the accident in question took place due to rash and negligent driving of the offending vehicle by the Respondent No. 1 only. 7. Basing on the pleadings of both parties, the Tribunal settled the following issues for enquiry: 1. Whether the Motor Vehicle Accident on 05.06.2009 near Gopalapuram Village of Agiripalli Mandal, arose on account of negligence of R1/driver of Truck Auto bearing No. AP 16 TW 1729, resulting the death of the deceased Kuppala Durga Rao? 2. Whether the petitioners are entitled for compensation and if so, for what amount and from which of the respondents? 3. To what relief? 8. During the course of enquiry before the tribunal, on behalf of the claimants, PWs 1 to 5 were examined and Exs.A.1 to A.11 are marked. The respondents 3 and 4 have not adduced any oral evidence before the Tribunal, but got marked Ex.B1 and B1. 9. On the material, the Tribunal, having come to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the crime lorry, held that the claimants are entitled compensation of Rs.4,12,000/- with interest at 7.5% per annum from the date of petition till the date of realization payable by the Respondent Nos. 1 to 3. 10. Dissatisfied with the compensation awarded by the tribunal, the present appeal is preferred by the Appellants/Claimants seeking enhancement of compensation amount. 11. Heard Sri B.V. Krishna Reddy, learned Counsel for the petitioner and Smt T.V. Sri Devi, learned counsel for the Respondent No. 3. 12. Sri B.V. Krishna Reddy, learned counsel for the petitioner submits that the tribunal erred in concluding the age of the petitioner falls between “41 to 45.” The Postmortem Report shows the age of the deceased as 37. Due to non application of wrong multiplier, the compensation amount was dropped. 12. Sri B.V. Krishna Reddy, learned counsel for the petitioner submits that the tribunal erred in concluding the age of the petitioner falls between “41 to 45.” The Postmortem Report shows the age of the deceased as 37. Due to non application of wrong multiplier, the compensation amount was dropped. The deceased is working as an employee in a firm and earning Rs.10,300/- per month, which is supported by Ex.A8 and the evidence of PW3. But, the tribunal erroneously assessed the income of the deceased at Rs.3,000/- per month. The deceased is a skilled mechanic. In catena of decisions, the Hon’ble Apex Court has categorically held that taking into the consideration of nature of work and employment of the deceased, the compensation has to be computed. Hence, prayed to allow the appeal. 13. Smt. T.V. Sri Devi, learned counsel for the Respondent No. 3 submits that the tribunal has erred in coming to a conclusion that the accident was occurred due to rash and negligent driving of the Respondent No. 1. In fact, the accident in question was occurred due to rash driving of the rider of motor cycle. The quantum of compensation claimed by the petitioners is excessive and prays to dismiss the appeal. 14. Now, the following points arise for determination: 1. Whether there is any flaw in the compensation awarded by the tribunal to the claimants? 2. To what relief? 15. POINT No. 1: In any claim of motor accident cases, the initial burden is upon the petitioners/claimants to establish that the accident was occurred due to rash or negligent act of the driver of offending vehicle. In the present case, the wife of the deceased who is 1st petitioner examined herself as PW1 and got marked Ex.A1 to A9. The chief affidavit of PW1 is in the lines as to how the accident occurred due to rash and negligent driving of Respondent No. 1. Except denying the suggestion that it is mentioned in charge sheet that the deceased was living by doing agricultural coolie work, nothing crucial material is elicited during the course of cross-examination of PW1. Coming to evidence of PW2, he is the crucial evidence who witnessed the accident and he deposed about the manner in which the accident occurred due to the rash and negligent driving of the offending vehicle and resulted in accident. 16. Coming to evidence of PW2, he is the crucial evidence who witnessed the accident and he deposed about the manner in which the accident occurred due to the rash and negligent driving of the offending vehicle and resulted in accident. 16. Though the learned counsel for the Respondents contended that the accident occurred due to rash and negligent driving of the auto, but no evidence has been put forth to prove the same. Even the Respondents 1 and 2 did not choose to enter into the witness box and failed to rebut the evidence of PWs 1 and 2, thereby the evidence of PW1, and PW2 who is eye witness to the incident, coupled with Ex.A1 to A5 leaves no doubt to hold that the accident was occurred due to rash and negligent act of 1st respondent-driver of the offending vehicle. 17. Coming to the compensation, since the deceased died in a motor accident, the dependents are entitled to seek compensation under Section 166 of MV Act. 18. PW3 who is Managing Partner of Special Dies and Components, Hyderabad, deposed that the deceased used to work as Wire Cut operator in their company and earn salary of Rs.10,300/- per month. He further stated that the deceased was a general worker. The deceased used to do real estate business also in addition to working in their company. During his cross-examination, he admitted that there is no appointment letter given for appointment of deceased. No registers also produced with respect to wages, payment etc. He denied suggestion that deceased never worked in their company and Ex.A9 was issued at the request of petitioners for claiming compensation. The evidence of PWs 4 and 5 is on the same lines that they are childhood friends to the deceased and doing real estate business. They admitted that there is no written proof that the deceased did Real estate business jointly. 19. So far as the income of the deceased is concerned, the contention of the claimants that the deceased was earning Rs.10,300/- per month was disbelieved by the tribunal on the observation that they failed to let in any convincing evidence. They admitted that there is no written proof that the deceased did Real estate business jointly. 19. So far as the income of the deceased is concerned, the contention of the claimants that the deceased was earning Rs.10,300/- per month was disbelieved by the tribunal on the observation that they failed to let in any convincing evidence. The tribunal taking into consideration of the fact that, in the charge sheet it is mentioned that the deceased was living by doing agricultural coolie work by the date of death and that even though it is not a substantive form of document, in the light of the admissions of PW3 and decision relied on by the learned counsel for the respondents in Mataji Beva and Others vs. Hemanth Kumar Jena and Another, 1994 ACJ 1303 , the tribunal took the monthly earning of the deceased at Rs.3000/- which is appropriate. 20. Now, challenging the method adopted by the tribunal for computing compensation, the learned counsel for the appellants argued that the tribunal committed error in assessing the age of the deceased between “41 to 45.” 21. It is further contended that the tribunal opined that the particulars mentioned in postmortem examination certificate is on approximate basis only and not on correct basis and since the petitioners have not placed any satisfactory material before the tribunal to prove the correct age of the deceased, the tribunal held that the deceased would fall under the age group of 41 years to 45 years, which is contrary to the principle laid down by Hon’ble Apex Court in catena of decisions. 22. In support of their contention, the learned counsel for the petitioners relied on a decision of Hon’ble Apex Court in K. Ramya and Others vs. National Insurance Co. Ltd. and Another, 2022 Live Law (SC) 816, wherein it was held that “compensation must be fair, reasonable and equitable. Further, the determination of quantum is a fact-dependent exercise which must be liberal and not parsimonious.” 23. In that view, learned counsel for the petitioners are strongly relying on Ex.A5 as well Ex.A7 Post mortem report which shows the age of the deceased as “37” years. It is further contended that in the long cause title of the petition also, the age of the deceased was mentioned as “37” years. In that view, learned counsel for the petitioners are strongly relying on Ex.A5 as well Ex.A7 Post mortem report which shows the age of the deceased as “37” years. It is further contended that in the long cause title of the petition also, the age of the deceased was mentioned as “37” years. The respondents also never disputed with regard to age of the deceased and when the documents are showing the age of the deceased as 37 years, the tribunal taking into consideration of age of the petitioners and assessing the age of the deceased between 41 to 45 years is erroneous. 24. In the light of the above discussion, considering Ex.A5 as well A7 and since it is also not disputed by the respondents, this Court deems it fit to consider the age of the deceased as “37” years at the time of death. 25. Now coming to the quantum of compensation, it is settled law that, three facts need to be established by the claimants for assessing compensation in case of death (1) Age of the deceased (2) Income of the deceased and (3) Number of dependents. Once these facts are determined, the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 has prescribed a structured method of calculation as below: “To have uniformity and consistency, the Tribunals should determine compensation in cases of death by following well-settled steps: Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this court. The multiplier should be chosen from the said table with reference to the age of the deceased. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family. Thereafter, a conventional amount in the range of Rs.5000/- to Rs.10,000/- may be added as loss of estate, Where the deceased is survived by his widow, another conventional amount in the range of Rs.5000/- to Rs.10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added.” 26. In the case on hand, the age of the deceased is “37” years as on the date of death which is supported by Ex.A5 as well as Ex.A7 as discussed above. As regards the dependents, petition has been filed by five petitioners i.e. wife, two minor children and parents of the deceased. Hence, the dependents are taken as five persons. 27. As regards the income, the deceased is stated to be working as Wire Cut Operator and as already discussed above, income of the deceased is taken at Rs.3000/- per month. Out of the said monthly income of Rs.3000/- as there are five dependents, in terms of Sarla Verma's Case (supra), 1/4th is to be deducted towards personal living expenses. Then the amount comes to Rs.2,250/- [Rs.3000 - 750 (3000 x 1/4)]. In National Insurance Company Ltd. v. Pranay Sethi, 2017 ACJ 2700 the Hon’ble Supreme Court has allowed adding of certain percentage of income towards future prospects of the deceased. In the present case, the deceased was treated as a self employed and below the age of 40 years, as such, 40% addition is added to the income, then the amount comes to Rs.3,150/- [Rs.2250 + 900] if this monthly income is multiplied by 12 months, then the annual income comes to Rs.37,800/-. In the present case, the deceased was treated as a self employed and below the age of 40 years, as such, 40% addition is added to the income, then the amount comes to Rs.3,150/- [Rs.2250 + 900] if this monthly income is multiplied by 12 months, then the annual income comes to Rs.37,800/-. Since the age of the deceased is 37 years, the multiplier applicable to him is “15” and if the multiplicand is multiplied with the fixed multiplier, the amount comes to Rs.5,67,000 [Rs.37,800 x 15]. To this amount, as per the Pranay Sethi’s decision (2 supra), an amount of Rs.15,000/- is allowed as funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards consortium. Then, the total amount comes to Rs.6,37,000/-. Out of this amount, the 1st petitioner is awarded Rs.2,00,000/- and the 2nd and 3rd petitioners are awarded Rs.1,50,000/- each and 4th and 5th petitioners are awarded Rs. 1,37,000/- (68,500 + 68,500) which would be a just compensation to the petitioners. 28. As the offending vehicle Truck Auto bearing No. AP 16 TW 1729 is covered by an insurance policy marked under Ex.A6, which indemnify the vehicle owner, driver and third party in accident claim, which was admittedly in force by the date of accident, the Tribunal holds that the Respondent Nos. 1 to 3 are liable to pay the above awarded compensation to the petitioners. The petition against 4th respondent is liable to be dismissed since the crime vehicle possesses valid policy which is in force. 29. In the result, the petition is partly allowed by directing the respondent Nos. 1 to 3 to pay compensation of Rs. 6,37,000/- (Rupees Six Lakhs Thirty Seven Thousand Only) as above with proportionate interest at the rate of 7.5% per annum from the date of petition i.e. 23.11.2009 till date of realization, and proportionate costs to the petitioners, within 30 days from the date of receipt of this order. 30. Advocate fee shall be paid as fixed by the tribunal.