HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY M.A.C.M.A.No. 452 OF 2010 AND M.A.C.M.A.Sr.No. 17734 OF 2010 DATED 23RD JANUARY, 2014.
M.A.C.M.A.No. 452 OF 2010:
BETWEEN The New India Assurance Company Limited, Rep. by its Deputy Manager.
….Appellant And Smt. Zaheeda Begum and ors ….Respondents.
M.A.C.M.A. SR.No. 17734 OF 2010:
BETWEEN Smt. Zaheeda Begum and ors ….Appellants And B.Narasimha and anr …..Respondents.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY M.A.C.M.A.No. 452 OF 2010 AND M.A.C.M.A.Sr.No. 17734 OF 2010
COMMON JUDGMENT: ( per AM.J.)
As these appeals arise out of one and the same Award, they were heard together and are being disposed of by this common judgment.
These appeals are preferred being aggrieved by the Award dated 13-08-2009 made in OP.No.348 of 2008 by the learned Chairman, Motor Accident Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad. MACMA.No. 452 of 2010 is preferred by the Insurance Company being aggrieved by the quantum of compensation, whereas MACMA Sr.No.17734 of 2010 is preferred by the claimants/petitioners being aggrieved by inadequacy or otherwise of the compensation awarded by the Tribunal.
For the sake of convenience, the parties herein will be referred to as arrayed in the OP.
Briefly stated the facts of the case are as follows: The petitioners, who are said to be parents, brothers and sisters of the deceased, have filed the aforesaid claim petition claiming compensation of Rs.25,00,000/- on account of the death of the deceased in a motor vehicle accident that occurred on 09.12.2007. It was averred in the claim petition that as on 09.12.2007 while the deceased was going on his scooter and when he reached Minar Weigh Bridge, L.B.nagar, Ring Road, Hyderabad at about 11.00 A.M., the lorry bearing registration No.AP 29T 7119, being driven by its driver in rash and negligent manner and at high speed, dashed the said scooter, as a result of which, the deceased succumbed to injuries. It was averred in the claim petition that the deceased was aged about 24 years, was working as an Engineer (Technology) and was earning Rs.36,881/- per month. It was also averred that due to the sudden and untimely death of the deceased, the claimants lost their bread winner, love and affection and that they are dependant on the income of the deceased and in the absence of the same, they are put to starvation. Hence, the claim petition.
Before the tribunal, the owner of the crime lorry remained ex party. The Insurance company contested the claim petition by filing a counter affidavit, wherein it denied the averments made in the claim petition. It was stated that the claim made by the petitioners is excessive and exorbitant.
Based on the aforesaid pleadings, the Tribunal framed as many as three issues, as to whether the deceased died in the accident on 9.12.2007 due to rash and negligent driving of the lorry bearing No. AP 29 T 7119 by its driver; whether the petitioners are entitled to any compensation, if so, from whom and to what relief.
In order to prove the claim, on behalf of the petitioners, P.Ws. 1 and 2 were examined and Exs.A.1 to A34 were got marked. On behalf of the Insurance Company, no evidence either oral or documentary was marked.
On a scrupulous consideration of the evidence brought on record, the Tribunal recorded a finding that the accident occurred solely on the rash and negligent driving of the crime lorry by its driver. The Tribunal then assessed the compensation payable to the petitioners at Rs.14,75,000/- with interest at 7.5% per annum from the date of the petition till the date of realization and directed the owner of the crime lorry and Insurance Company to pay the said amount jointly and severally and accordingly the impugned Award was passed.
Aggrieved thereby, the petitioners and the Insurance Company preferred the present appeals as stated supra.
The learned Counsel for the petitioners/claimants submitted that the Tribunal awarded only meagre amount of compensation. He submitted that considering the age, earnings and future prospectus of the deceased, the petitioners are entitled to receive the more compensation than what was awarded by the Tribunal. He also pointed out that the Tribunal did not grant any compensation towards loss of estate, loss of love and affection and funeral and transportation expenses. He further contended that even the interest awarded by the Tribunal is on lower side.
On the other hand, the learned Standing Counsel for the Insurance Company submitted that in the absence of any proof to show the income of the deceased as on the date of the accident, the Tribunal took the income of the deceased at higher level to assess the compensation, rather it ought to have taken the notional income of the deceased at Rs.15,000/- per annum. He further contended that the compensation awarded by the Tribunal is not based on the evidence brought on record and the same is excessive and exorbitant having due regard to the facts and circumstances of the case.
Perused the record.
The Tribunal while entering into the issue as to who was at fault for the cause of the accident, thoroughly scrutinised the evidence brought on record and recorded a finding as stated supra. It is obvious from the evidence brought on record that the mother of the deceased was examined as P.W.1, who deposed in replica to the averments made in the claim petition. However, she was not an eye witness. P.W.2, who was cited as an eye witness to the accident deposed categorically in his evidence that the accident occurred solely on account of rash and negligent driving of the crime lorry by its driver. Though P.W.2 was cross examined, nothing adverse was elicited. Further, Ex.A.1-copy of FIR, Ex.A.2-certified copy of charge-sheet, Ex.A.3-certified copy of Inquest report, and Ex.A.4-certified copy of Post-mortem certificate corroborated the evidence of P.W.2. Ex.A.5-certified copy of the Motor Vehicles Inspector’s report depicts that the accident was not occurred due to the mechanical defect of the crime lorry. Neither the owner of the crime lorry nor the insurance Company did adduce any cogent and convincing evidence to discredit the evidence of the claimants/petitioners in regard thereto. The oral testimony of P.Ws.1 and 2 coupled with documentary evidence of Ex.A.1 to A.4 thus clinchingly proved and established that the accident occurred solely on account of rash and negligent driving of the crime lorry by its driver.
The Tribunal having meticulously considered the evidence brought on record, rightly recorded a finding that the accident in this case was occurred solely on account of rash and negligent driving of the crime lorry by its driver. This Court having due regard to the evidence brought on record, as discussed supra, 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 rash and negligence on the part of the driver in driving the crime lorry, no legitimate attempt was made to prove the same. Thus, the said finding of the Tribunal having been based on the evidence brought on record does not call for any interference in this appeal.
The next question is what will be the just and reasonable compensation to be awarded to the petitioners within the contemplation of the Act. It is the case of the petitioners that the deceased was earning Rs.36,881/- per month working as an Engineer (Technology). P.W.1 while deposing as to income of the deceased also brought on record Exs.A.6 to A.33 such as educational qualifications, appointment orders, tax returns, pay slips etc.,. in support of her claim. However, the evidence brought on record shows that the deceased was drawing Rs.12,096/- per month as seen from Ex.A.21, pay slip, from one company and as per Ex.A.23, he was drawing a salary of Rs.25,572/- per month from another company. But as can be seen from Ex.A.24, the deceased was relived from one company on his resignation and thereby the salary used to receive by the deceased from one company can be taken into consideration for assessing the compensation. Ex.A.23 salary slip shows that the deceased was drawing monthly salary of Rs.25,572/-. However, the Tribunal took the monthly income of the deceased at Rs.21,000/-, which is not based on any evidence. We have perused Ex.A.23 salary slip available in the records and after deducting Rs.200/- towards professional tax and Rs.1,694/- towards income tax, we can safely take the monthly income of the deceased at Rs.23,678/-. At this juncture, the learned Standing Counsel for the Insurance Company contended that Exs.A.21 and A.23 brought on record by the claimants for assessing compensation were of the year 2005 and 2006 whereas the accident occurred on 9.12.2007 and therefore there was no reliable evidence on record to establish that the deceased was earning as on the date of the accident. The said contention of the learned Counsel merits no consideration and cannot be countenanced inasmuch as the claimants have brought on record Ex.A.25 and Ex.A.26 which are the income tax computation statements of the deceased, establishing the deduction at source from his salary income and Ex.A.23, salary slip. It was also brought on record that the deceased resigned to SITEL India Limited as his candidature was forwarded to four reputed universities in Sweden and Finland by the British Council for the admission into M.S. Programme and therefore it cannot be said that the deceased was not having better future prospects. Further, it is to be noticed that no contra evidence was brought on record to discredit the alleged monthly earnings of the deceased and the evidence with regard to better future prospects marked at Exs.A.13 and A.14. Even based on Exs.A.12 and , A.14, A.16, A.18n and A.19 it cannot be ruled out that the deceased was not having better future prospects. In that view of the matter, we can safely take the monthly income of the deceased at Rs.23,678/-.
A Perusal of the award obvious that the Tribunal went wrong in not awarding any amount of compensation towards future prospects and also deduction of 1/3rd towards personal expenses inasmuch as the deceased was unmarried.
The Apex Court in its recent decision in Rajesh Vs. Rajbir Singh (2013 ACJ 1403) while following its earlier decision in the case of Sarla Verma’s case clarified that in the case of self employed or persons with fixed wages, and in case the deceased victim was below 40 years, there must be an addition of 50 percent to the actual income of the deceased while computing future prospects. If the said principle is applied, then the monthly income of the deceased would come to Rs.35,517/-
. Since the deceased was unmarried, deduction of 50% towards his personal expenses is warranted. If that be so, the monthly contribution to his family members would come to Rs.17,758/-. It is now well settled that even in case of death of a bachelor in a road accident, instead of taking the age of his/her mother, the age of the deceased bachelor can be taken into consideration for applying the appropriate multiplier. As per evidence of P.W.1, inquest report, Ex.A.3 and Post-mortem examination report Ex.A.4, the age of the deceased as on the date of the accident was 24 years. If that be so, as per the decision of the Apex Court in Sarla Varm’s case, the appropriate multiplier applicable to the age of the deceased is ’18’, and if the same is applied, the loss of dependency to his parents would come to Rs.38,35,728/- (17,758 x 18 x 12). Added to the same, award of Rs.1,00,000/- towards loss of estate and loss of love and affection, Rs.25,000/- towards funeral expenses is just and appropriate. Thus, in all, the appellants are entitled to a total compensation of Rs.39,60,728/-. It is well settled that there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount, inasmuch as the function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. In our considered view, the amount of compensation assessed supra is a ‘just compensation’.
Coming to the rate of interest, it is to be noticed that, as per the decision of the Apex Court in ABATI BEZBARUAH v. DEPUTY DIRECTOR GENERAL, GEOLOGICAL SURVEY OF INDIA [(2003) 3 SCC 148] and the provision under Section 171 of the MV Act, we feel that the petitioners/claimants are entitled to interest at 7% per annum.
Out of the aforesaid compensation, petitioners 1 and 2 being the parents of the deceased are held entitled to receive the compensation of Rs. 15.00 lakhs each, and petitioners 3 to 5 being the brothers of the deceased are held entitled to receive the remaining compensation in equal shares.
Thus, for the foregoing discussion and in the result, the appeal filed by the petitioners/claimants is allowed and the appeal filed by the Insurance Company is allowed in part by reducing the interest from 7.5% to 7% per annum. The miscellaneous petitions pending consideration if any shall stand closed. There shall be no order as to costs.
JUSTICE ASHUTOSH MOHUNTA JUSTICE M.SATYANARAYANA MURTHY Dated 23RD JANUARY, 2014.
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