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2025 DIGILAW 254 (TS)

P. Nagalaxmi Pavani v. Sai Enterprises

2025-04-04

TIRUMALA DEVI EADA

body2025
JUDGMENT : TIRUMALA DEVI EADA, J. The appellants – claimants filed M.A.C.M.A.No.197 of 2021 seeking enhancement of compensation, while M.A.C.M.A.No.688 of 2021 is filed by the Insurance Company, under Section 173 of the Motor Vehicles Act, 1988 , aggrieved by the order and decree dated 02.03.2020 passed in M.V.O.P.No.1034 of 2014 by the Chairman, Motor Accidents Claims Tribunal – cum – X Additional Chief Judge, City Civil Courts, Hyderabad (for short “the Tribunal”), granting compensation of Rs.19,60,000/- against the claim of Rs.20,00,000/- for the death of one P.Bheemeshwar Goud (hereinafter referred to as 'the deceased') in the motor accident occurred on 16.05.2013. 2. For the sake of convenience and clarity, the parties herein are referred to as they were arrayed before the Tribunal. 3. The case of the petitioners before the Tribunal is that on 16.05.2013 at about 09.00 AM, the deceased was proceeding on the road by walk and when the deceased reached Kanakadurga temple, Dilsukhnagar, a Mahendra Bolero Van bearing No.AP28TB- 6770 driven by its driver at a high speed in a rash and negligent manner and dashed the deceased, as a result of which, the deceased fell down on the road and sustained fatal injuries and died on the spot. It is their case that the deceased was earning a sum of Rs.15,000/- per month as a driver and therefore, they have filed a claim petition seeking Rs.20,00,000/- towards compensation. 4. The respondent No.1 remained ex parte and respondent No.2 filed counter contending that the deceased was under the influence of alcohol and that while crossing the road, he fell down on the road and as such, the accident occurred. It is further contended by respondent No.2/Insurance Company that there was no negligence on the part of the driver of the Bolero Van and that the accident occurred only due to the negligence of the deceased. They further denied the age, occupation and income of the deceased. 5. Based on the above pleadings, the Tribunal has framed the following issues for trial: “1. Whether the deceased Bheemeshwar Gupta died in the motor accident with the Mahindra Bolero van bearing No.AP 28 TB 6770? 2. Whether the petitioners are entitled for compensation, if so, what extent and from whom? 3. To what relief? 6. At the time of trial, the petitioners got examined PWs 1 and 2 and Exs.A1 to A10 were marked. Whether the deceased Bheemeshwar Gupta died in the motor accident with the Mahindra Bolero van bearing No.AP 28 TB 6770? 2. Whether the petitioners are entitled for compensation, if so, what extent and from whom? 3. To what relief? 6. At the time of trial, the petitioners got examined PWs 1 and 2 and Exs.A1 to A10 were marked. On behalf of the respondents, RWs 1 and 2 were examined and Exs.B1 and B2 were marked. 7. Based on the evidence on record, the Tribunal has granted a compensation of Rs.19,60,000/- with interest @ 8% per annum from the date of filing of the petition to till the date of realization. Aggrieved by the same, the petitioners have preferred MACMA No.197 of 2021 while the Insurance Company filed M.A.C.M.A.No.688 of 2021. 8. Heard the submission of Sri P.Rama Krishna Reddy, learned counsel for the claimants and Sri A.Rama Krishna Reddy, learned counsel for the Insurance Company. 9. The learned counsel for the claimants has submitted that the Tribunal has wrongly granted less compensation towards consortium and that amounts towards funeral expenses and loss of estate are also awarded very low and that the Tribunal has wrongly taken the multiplier as ‘14’ instead of ‘15’ and thus, prayed to enhance the compensation. He further prayed that the Tribunal has awarded compensation to claimant No.4 who died during the pendency of the case and that though they have filed a memo dated 28.06.2017 along with the death certificate stating that claimant No.4 died during the pendency, the Tribunal failed to consider the same and failed to consider that LRs of deceased are the claimant Nos.1 to 3 herein. He prayed to allocate the share of claimant No.4 in favour of claimant Nos.1 to 3. 10. The learned counsel appearing for the Insurance Company has submitted that the Tribunal has wrongly held the insurance company to be liable in paying the compensation and he further contended that PW2 is planted as an eye witness in this case and that the same was held by the III Special Magistrate at L.B.Nagar in C.C.No.182 of 2013, wherein it was held that PW2 came to the scene of offence one hour after the accident. The counsel has further submitted that though the petitioner has not filed any proof of earnings the Tribunal has wrongly taken the notional income on a higher side and granted exorbitant amounts towards the compensation and that they wrongly fastened the liability against the insurance company, he therefore, prayed to set aside the order and decree passed by the tribunal by allowing this appeal. It is further contended by the learned counsel that in the post mortem report it is clearly mentioned that the abdomen of the deceased contained 30 ML of brown fluid and thus, it is clear that the deceased was completely under the influence of alcohol due to which he fell down on the road in an intoxicated condition and sustained injuries and contributed in the occurrence of accident and that there is no fault of the driver of Bolero jeep. He therefore, prayed to set aside the order and decree of the Tribunal. 11. Based on the above rival contentions, this Court frames the following points for consideration: 1. Whether the accident has not occurred due to the rash and negligence of the driver of the Bolero jeep bearing No.AP 28 TB 6770, resulting in the death of P.Bheemeshwar Goud? 2. Whether there was any contributory negligence on part of the deceased in the occurrence of accident? 3. Whether the claimants are entitled for enhancement of compensation granted by the Tribunal is just and reasonable? 4. Whether the order and decree of the Tribunal need any interference? 5. To what relief? 12. POINT NOS.1 AND 2: a) A perusal of the record would reveal that PW1 is not an eye witness to the accident. PW2 is cited as an eye witness in the charge sheet under Ex.A2/Charge Sheet. He stated that he witnessed the accident and that the accident occurred due to the rash and negligent driving of the driver of Bolero jeep. During his cross examination, except mere denial of the suggestions given by the respondent counsel, nothing much could be elicited to discredit his evidence. b) The contention of the learned counsel for insurance company is that the evidence of PW2 should be discarded, as it was held by the criminal Court that he is not an eye wintess. During his cross examination, except mere denial of the suggestions given by the respondent counsel, nothing much could be elicited to discredit his evidence. b) The contention of the learned counsel for insurance company is that the evidence of PW2 should be discarded, as it was held by the criminal Court that he is not an eye wintess. It is his contention that PW2 is planted as an eye witness in this case and that the same was held by the III Special Magistrate at L.B.Nagar in C.C.No.182 of 2013, wherein it was held that PW2 came to the scene of offence one hour after the accident. It is pertinent to mention here that the decision of a criminal Court is not binding in civil proceedings that too the proceedings under the MV Act do not call for strict proof of evidence, therefore, the decision of criminal Court is not binding on the Tribunal and the Tribunal has rightly relied upon the evidence of PW2 and has held that the accident occurred due to the rash and negligence of the driver of the Bolero Jeep and that there was no negligence of the deceased. c) It is asserted by the claimants that the deceased was going by walk and it is deposed by PW2 that while the deceased was going by walk, he was hit by the Bolero Van, driven by the driver at a high speed, therefore it is held that there is no contributory negligence on the part of the deceased. d) The counsel has argued that it is mentioned in Postmortem Examination that the Abdomen of the deceased contained alcohol but a perusal of Ex.A4 reveals that it has brown colour fluid in the abdomen. It is nowhere mentioned that the contents of the abdomen were alcohol. RW2 is Doctor R.Sudha, who conducted Post Mortem Examination and she too has not stated in her evidence that she has found any alcohol in the body of the deceased and she further stated that she did not send Vicera for FSL examination, therefore, it cannot be held that the deceased was under the impact of alcohol, while crossing the road. e) It is also pertinent to mention here that the charge sheet was filed against the driver of Bolero jeep. e) It is also pertinent to mention here that the charge sheet was filed against the driver of Bolero jeep. Relying upon the FIR under Ex.A1, the charge sheet under Ex.A2 and also considering the evidence of PW2, it is held that the accident occurred due to the rash and negligent driving of the driver of Bolero van and that there was no negligence on the part of the deceased. Point Nos.1 and 2 are answered accordingly. 13. POINT NO.3: a) The appellants in MACMA No.197 of 2021 are seeking enhancement of compensation. A perusal of the order passed by the Tribunal reveals that the Tribunal has taken the income of the deceased as Rs.10,000/-. It is asserted by the petitioners that the deceased was earning Rs.15,000/- per month as a driver and filed Ex.A9/driving licence to prove the same. b) A perusal of Ex.A9 reveals that the said Driving License is valid from 23.11.2005 to 27.03.225 and it is issued for driving LMV non-transport vehicles, thus, it is held that the deceased was holding a valid driving licence as on the date of accident to drive light motor vehicles. Though, no other proof is filed by the petitioners to prove the earnings of the deceased, he was aged 40 years and was an able bodied person prior to the accident and was running a family of four members and thus, it is opined that the Tribunal has rightly assessed the income of the deceased as Rs.10,000/- per month on a reasonable hypothesis. In addition, the Tribunal has taken Rs.700/- per month towards gratuity based on a presumption, which cannot be sustained. c) In the light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi & Others, AIR 2017 SCC 5157 40% of the income needs to be added towards future prospects. Adding 40% towards future prospects would give Rs.14,000/- (Rs.10,000/-x 40/100 = 4000/-) per month, which comes to Rs.14000/- x 12 = Rs.1,68,000/- per annum. d) Further, a deduction of 1/4th is to be made to his income as there were four dependents, therefore, the income after deduction towards personal expenses would come upto Rs.1,26,000/- (Rs.1,68,000/- (-) Rs.42,000/-). e) The age of the deceased was shown as ‘38’ years in Ex.A8/Bonafide certificate, while it was shown as ‘40’ years in Ex.A4/Post Mortem Examination Report. d) Further, a deduction of 1/4th is to be made to his income as there were four dependents, therefore, the income after deduction towards personal expenses would come upto Rs.1,26,000/- (Rs.1,68,000/- (-) Rs.42,000/-). e) The age of the deceased was shown as ‘38’ years in Ex.A8/Bonafide certificate, while it was shown as ‘40’ years in Ex.A4/Post Mortem Examination Report. The multiplier should be chosen with regard to the age of the deceased, as per column No.4 of the table given in Sarla Verma v. Delhi Transport Corporation , [ 2009 (6) SCC 121 ] . Thus, the deceased age was considered to be between 36-40 years, the appropriate multiplier to be applied is ‘14’. Thus, the loss of dependency comes up to an extent of Rs.17,64,000/- (Rs.1,26,000/- X 14). f) With regard to the consortium, the Tribunal has awarded only Rs.40,000/- towards consortium to the 1 st petitioner who is the wife of the deceased but not awarded to the 2nd petitioner who is the son, 3rd and 4th petitioners who are the parents of the deceased. g) In the light of Pranay Sethi ’s case, Rs.15000/- towards loss of estate and Rs.15,000/- towards funeral expenses and Rs.40,000/- towards loss of consortium have to be awarded and further it was held that there has to be 10% enhancement in these amounts for every three years. h) In Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others , [ (2018) 18 SCC 130 ] , the Apex Court has elaborately discussed the principles laid down in Pranay Sethi ’s case and has further held that not only the spouse but the parents and children of the deceased are also entitled to loss of consortium. Therefore, in the present case, all the claimants would get Rs.48,000/- each towards ‘loss of consortium’, hence, the compensation amount under this head would be Rs.1,92,000/- instead of Rs.40,000/-. Further, it is held that under the heads of funeral expenses Rs.18,000/- and loss of estate Rs.18,000/- would be just and proper. i) In all, the claimants are entitled to the following compensation amounts: 1. Compensation under the head of loss of dependency Rs.17,64,000/- 2. Compensation towards loss of consortium Rs.1,92,000/- 3. Compensation towards loss of estate Rs.18,000/- 4. Further, it is held that under the heads of funeral expenses Rs.18,000/- and loss of estate Rs.18,000/- would be just and proper. i) In all, the claimants are entitled to the following compensation amounts: 1. Compensation under the head of loss of dependency Rs.17,64,000/- 2. Compensation towards loss of consortium Rs.1,92,000/- 3. Compensation towards loss of estate Rs.18,000/- 4. Compensation towards funeral expenses Rs.18,000/- Total Rs.19,92,000/- j) The Tribunal has awarded Rs.19,60,000/- while the claimants are held to be entitled to a compensation of Rs.19,92,000/- and hence, the same is enhanced to the said extent. Point No.3 is answered accordingly. 14. POINT NO.4: In view of the finding arrived at point Nos.1 to 3, it is held that the order and decree passed by the Tribunal need to be modified. The compensation granted by the Tribunal to the extent of Rs.19,60,000/- is enhanced to Rs.19,92,000/-. 15. POINT NO.5: In the result, the MACMA No.688 of 2021 filed by the Insurance Company is dismissed, while the MACMA No.197 of 2021 filed by the claimants is partly allowed modifying the order and decree dated 02.03.2020 passed in M.V.O.P.No.1034 of 2014 by the Chairman, Motor Accidents Claims Tribunal–cum–X Additional Chief Judge, City Civil Courts, Hyderabad, enhancing the compensation from Rs.19,60,000/- to Rs.19,92,000/- and the enhanced amount of compensation shall carry interest @ 7.5 % per annum from the date of claim petition till realization. However, the interest for the period of delay, if any, is forfeited. The respondents are directed to deposit the compensation amount with accrued interest within a period of two months from the date of receipt of a copy of this judgment after deducting the amount if any already deposited. On such deposit, the claimants are entitled to withdraw the said amount without furnishing any security, as per their respective shares as allotted by the Tribunal and the share of claimant No.4 shall be distributed to claimant Nos.1 to 3 who are on record. No costs. Miscellaneous petitions, pending if any, in this appeal, shall stand closed.