HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY M.A.C.M.A. No. 2215 OF 2013 Dated: 20th January, 2014 BETWEEN Brahmadandi Chinnaiah and another …Appellants And M.A. Kareem and another …..Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M SATYANARAYANA MURTHY M.A.C.M.A. No. 2215 OF 2013 JUDGMENT: ( per the Hon'ble Sri Justice Ashutosh Mohunta) This is an appeal preferred by the appellants - claimants being not satisfied with the amount of compensation awarded vide Award dated 19-03-2008 passed in O.P No.1561 of 2003 by the learned Chairman, Motor Accident Claims Tribunal (District Judge), Nizamabad.
The aforesaid claim petition was filed by the appellants claiming compensation of Rs.15,00,000/- on account of death of the deceased Brahmadandi Kishan, who is the son of the 1st and 2nd appellants and husband of the third appellant. It was averred in the claim petition that on 02-08-2003 the said Brahmadandi Kishan was going on his cycle very slowly on the left side of the road from Balkonda towards Kisannagar village side on N.H 7 road and at about 9.15 PM, when he reached the limits of Balkonda Village, one lorry bearing No. ADG-6055 driven by its driver at high speed in rash and negligent manner, came from behind and dashed against his cycle due to which he fell down and received injuries to head, right hand, chest, crush injuries on the right of chest, right leg and other multiple injuries and died on the way to hospital.
The appellants - claimants stated that the deceased was aged 22 years as on the date of the accident and was earning Rs.25,000/- per month by doing electrical motor winding works and cloth business and also as electrical pump set dealer and was contributing his earnings to the family. It is their case that on account of the death of the deceased, the 1st and 2nd appellants lost their son and the 3rd appellant lost her husband. Respondent Nos.1 and 2 being the owner and the insurer of the offending lorry are jointly and severally liable to pay the aforesaid compensation.
Before the Tribunal, the 1st respondent who is the owner of the lorry filed his written statement denying the averments made in the petition and the manner in which the accident is alleged to have occurred. It was contended that in view of the fact that the lorry was insured with the 2nd respondent and the policy was in force by the date of accident, if the Tribunal comes to the conclusion that the appellants - claimants are entitled to any compensation, then the same may be awarded against the 2nd respondent.
The 2nd respondent – Insurance Company also filed its written statement denying the averments of the petition, the manner in which the accident had occurred, rash and negligence on the part of the driver of the lorry and also the age, occupation and income of the deceased. The 2nd respondent further denied that the driver of the lorry at the time of accident was holding valid driving licence to drive the vehicle and that the vehicle was roadworthy with valid permit and fitness to ply. It was contended that the lorry was not insured with it and that the first respondent is not the registered owner of the lorry. The compensation claimed by the appellant - claimants is excessive, capricious and out of all proportions.
Based on the above pleadings, the following issues were framed by the Tribunal :
"1) Whether the accident has taken place due to rash and negligent driving of lorry bearing No. ADG-6055 by its driver?
2) Whether the petitioners are entitled to compensation? If so, to what just amount and against whom?
3) To what relief?"
In order to prove the claim, on behalf the appellants-claimants, PWs 1 and 2 were examined and Exs.A-1 to A-6 were got marked. On behalf of the respondent-Insurance Company, none were examined, but copy of the policy was marked as Ex.B-1.
Upon thorough appreciation of the evidence brought on record, the Tribunal recorded a finding that the evidence of PWs 1 and 2 and Exs.A-1 to A-5 make it clear that the accident occurred due to the rash and negligent driving of the driver of the lorry. The Tribunal also held that the appellants - claimants are entitled to receive compensation of Rs.4,28,000/- with proportionate costs and interest at the rate of 7.5% per annum from the date of petition till the date of realization.
Being not satisfied with the amount of compensation awarded by the Tribunal, the appellants – claimants have preferred the present appeal.
Learned counsel for the appellants – claimants contends that the compensation awarded by the Tribunal is extremely on lower side, that the evidence of PWs 1 and 2 has not been properly considered by the Tribunal regarding the income of the deceased and that the Tribunal below erred in taking the income of the deceased at Rs.3,000/- per month.
The learned Standing Counsel appearing for the Insurance Company contends that the amount of compensation awarded by the Tribunal is reasonable and needs no interference by this Court.
Heard the learned counsel for the parties and perused the material available on record.
Admittedly the Tribunal having thoroughly considered the evidence on record, recorded a finding that the accident in this case occurred due to the rash and negligent driving of the driver of the lorry. This Court having due regard to the evidence brought on record does not find any valid and legitimate reason to interfere with the same. Further, it seems from the Award that except making an averment that there was no negligence on the part of the driver of the lorry, no legitimate attempt was made to prove the same.
With regard to the question as to what should be the compensation awarded to the appellants, the appellants have claimed compensation of Rs.15,00,000/-. It has been averred that the deceased used to earn Rs.25,000/- per month on electrical motor winding works, as electrical pump set dealer and on cloth business. In order to prove the age, occupation and income of the deceased, the appellants examined PWs 1 and 2. PW 1 who is the wife of the deceased deposed that by the date of accident, the deceased was aged 22 years and was earning Rs.25,000/- per month on electrical motor winding works and on cloth business and as electrical pump set dealer. PW 2 also deposed on the same lines.
PWs 1 and 2 except stating that the deceased used to earn Rs. 25,000/- per month have not filed any documentary evidence in proof of the same. As per Ex.A-4 inquest report, the deceased was aged 23 years and his occupation was shown as motor winding work. Taking into consideration the fact that the deceased was aged 23 years, the Tribunal took the income of the deceased as Rs.3,000/- per month, which in our considered opinion is on lower side. Having regard to the facts and circumstances of the case, it is appropriate to take income of the deceased to be Rs.4,000/- per month or Rs.48,000/- per annum.
Keeping in view the fact that the deceased was aged 23 years, as per
[1]
the judgment of the Supreme Court in Rajesh v. Rajbir Singh , 50% has to be added towards future prospects i.e., Rs.2,000/- giving a total of Rs.6,000/- per month or Rs.72,000/- per annum. As there are three claimants, therefore, one-third has to be deducted towards the personal and living expenses of the deceased. Thus, the contribution of the deceased to the appellants comes to Rs.48,000/- per annum. In view of the judgment of the Supreme Court in Sarla Verma & others
[2]
Vs. Delhi Transport Corporation , as the deceased was 23 years of
age, therefore multiplier of ‘18’ would be applicable in the present case and hence, loss of dependency comes to Rs.8,64,000/-. Added to the aforesaid amount, Rs.1,00,000/- has to be awarded towards loss of consortium to the wife who is the 3rd appellant and also a sum of Rs.25,000/- for funeral and transportation charges. Thus, in all the appellants – claimants are entitled to receive compensation of Rs.9,89,000/-.
In the result, we allow this appeal in part awarding compensation of Rs. 9,89,000/- together with proportionate costs and interest at the rate of 7% per annum. Out of the said amount, the 3rd appellant who is the wife of the deceased is held to be entitled to receive compensation of Rs. 6,89,000/-. The 1st and 2nd appellants who are the parents of the deceased are held to be entitled to receive compensation of Rs.1,50,000/- each.
Miscellaneous petitions, if any, pending consideration in the appeal shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M.SATYANARAYANA MURTHY, J Dated: 20th January, 2014 ks
[1] 2013 ACJ 1403
[2] III (2009) ACC 708 (SC)