THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A. No.3008 OF 2007 Date: 17.06.2014 Between:
1. Kuchi Venkateswarlu
2. Kuchi Seethamma … Appellants/Petitioners And
1. Shaik Mahabula
2. The Oriental Insurance Company Limited, rep.by Its Divisional Manager, DS Complex, Kothapet, Gudur. … Respondents THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A. No.3008 OF 2007 JUDGMENT:
Not being satisfied with the quantum of compensation awarded in M.V.O.P.No.1008 of 2005 on the file of the Motor Vehicles Accidents Claims Tribunal-cum- X-Additional District & Sessions Judge (FTC), Guntur at Narasaraopet (for short, ‘the Tribunal’) the claimants preferred the present appeal seeking enhancement of the same.
Heard the learned counsel for the appellants and perused the material available on record. In spite of service of notice on the 2nd respondent Insurance company, there is no representation on their behalf hence treated as heard.
For the sake of convenience, the parties will hereinafter be referred to as arrayed before the Tribunal.
The facts in issue are as under:
The claimants, who are the appellants and the parents of K. Venkata Subba Rao (deceased), filed an application under Section 163A of the Motor Vehicles Act and Rules 455 and 476 of A.P.M.V. Rules claiming a compensation of Rs.4,00,000/- (Rupees Four lakhs only) in respect of death of Venkata Subba Rao in a road accident that took place on 21.08.2005. It is stated that on the fateful day the deceased along with K. Vijay Kumar were proceeding on motorcycle from Karampudi to Gogulapadu Village. At about 5.30 pm. when they reached Bommarajupallli village, a lorry bearing Regn. No.AP 7 T 1197 driven by its driver in a rash and negligent manner came from opposite side and dashed against the motorcycle. As a result of which, the deceased received multiple injuries and died while he was being taken to the Government Hospital, Vinukonda. It is stated that the deceased was about 20 years, working as an Attender in Hema Milk Dairy Factory and drawing a salary of Rs.2,800/- per month. The claimants who are entirely dependant on the earnings of the deceased lost their dependency and support. In respect of the above incident, a case in Crime No.27 of 2005 of Epuru P.S. was registered for the offence punishable under Section 304-A of I.P.C. Since the 1st respondent is the owner of the lorry and the said lorry was insured with the 2nd respondent, the claimants filed M.V.O.P.No.1008 of 2005 under Section 163A of the Motor Vehicles Act before the Motor Vehicles Accidents Claims Tribunal-cum- X-Additional District & Sessions Judge (FTC), Guntur, claiming compensation of Rs.4 lakhs.
The respondent No.1 owner of the vehicle remained ex parte before the Tribunal and also herein. The 2nd respondent Insurance company filed a written statement denying the manner in which the accident took place. According to them, the death of the deceased occurred due to rash and negligence of the rider of the motorcycle and that the driver of the crime vehicle was not at fault. They also disputed the age of the deceased as 20 years at the time of the accident and also the income of the deceased. It is further stated that the driver of the lorry was not a valid driving licence at the time of the accident and as such the Insurance company is not entitled to pay compensation.
Basing on the above pleadings, the Tribunal below framed the following issues:
(1) Whether the accident occurred due to rash and negligent driving of the driver of lorry bearing Registration No.AP 7 T 1197?
(2) Whether the petitioners are entitled to compensation and if so to what amount and against whom?
(3) To what relief?
In support of the claimants (appellants herein), P.Ws.1 & 2 were examined and Exs.A1 to A7 documents were marked. No oral or documentary evidence was adduced on behalf of the respondents. After considering the oral and documentary evidence available on record, the Tribunal below held that the accident took place due to rash and negligent driving of the lorry bearing No.AP 7T 1197 and awarded compensation of Rs.1,60,000/- for the death of the deceased, Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate, thus totalling to Rs.1,64,500/- with proportionate costs with interest at 7.5% p.a. from the date of petition till the date of realization. The said findings have become final as the same are challenged either by the Insurance Company or by the owner of the vehicle.
The only point that arises for consideration is whether the compensation of Rs.1,64,500/- awarded by the Tribunal is reasonable, just and fair.
As could be seen from the above, the claimants filed an application under Section 163A of the Motor Vehicles Act claiming compensation of Rs.4,00,000/- (Rupees four lakhs only) for the death of their son. The learned counsel for the appellants fairly submits that the Tribunal erred in fixing the income of the deceased at Rs.15,000/- per annum when there is positive evidence on record to show that he was earning Rs.2,800/- per month. It is true that the claimants could not lead any independent evidence showing the income of the deceased, but no objection was raised by the respondent counsel when Ex.A7 salary certificate of the deceased was marked through P.W.1. At the time of marking of the said document, the 2nd respondent- Insurance company did not raise any plea disputing the contents of the certificate. It is not in dispute that the deceased was aged about 20 years at the time of the accident and he was an able bodied person. The Tribunal below itself held that a person aged about 20 years with good health will not sit idle without doing any work and he would do something and earn some money if not Rs.27,360/- as claimed. Having said so, the Tribunal fixed the earning of the deceased at Rs.15,000/- as per the second schedule of the Motor Vehicles Act. This, in my view, appears to be incorrect. The salary certificate (Ex.A7) which is produced on record can be looked into for the purpose of fixing salary was marked as the genuinity or authenticity of the document was not objected to when the same was sought to be produced on record through P.W.1. Apart from that, the accident took place in the year 2005, definitely the deceased would have earned not less than Rs.100/- per day by doing a job of a labourer. Therefore the income of the deceased can be fixed at Rs.27,360/- per annum basing on Ex.A7. Deducting one-third towards personal living expenses, the contribution of the deceased family would be (Rs.27360/- x 1/3) Rs.18,240/-. Since the deceased was a bachelor and unmarried, age of mother has to be considered for fixing the multiplier in view of the judgment in P.V. Subba Rao v. Sunkari
Varahalamma
[1]
.
P.W.1 who is the mother of the deceased in her evidence deposed that she is aged about 39 years, whereas in the charge-sheet filed by the police her age was shown as 35 years. Hence the Tribunal below rightly held that the mother of the deceased would be 35 to 36 years and adopted the multiplier “16” as per the second schedule of the Motor Vehicles Act. Applying the said multiplier, the loss of earnings of the deceased would be at Rs.18,240/- x 16 = Rs.2,91,840/-. Having regard to the facts of the case, the Tribunal awarded Rs.2,000/- towards funeral expenses and Rs.2,500/- towards loss of estate to the legal heirs of the deceased, which needs no interference.
In the result, the Appeal is partly allowed by enhancing the compensation from Rs.1,64,500/- (Rupees One lakh sixty four thousand and five hundred only) to Rs.2,96,340/- (Rupees Two lakhs ninety six thousand three hundred and forty only) with proportionate costs to be paid jointly and severally by the respondents 1 & 2. The enhanced amount will carry interest of 6% p.a. from the date of claim petition till the date of realization. There will be no order as to costs.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
C. PRAVEEN KUMAR,J Dt.17.06.2014 gbs
[1] 2005 (5) ALD 175