HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY M.A.C.M.A.Nos. 916 OF 2011 AND 3439 OF 2011 DATED 23RD JANUARY, 2014.
BETWEEN The Oriental Insurance Company Limited, Rep. by its Divisional Manager ……Appellant in MACMA.No. 916 of 2011 Respondent in MACMA.No. 3439 of 2011 And Smt. Jaivanti Porwal and ors ….Respondents in MACMA.No. 916 of 2011 Appellants in MACMA.No. 3439 of 2011.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY M.A.C.M.A.Nos. 916 OF 2011 AND 3439 OF 2011
COMMON JUDGMENT: ( per AM.J.)
As these appeals arise out of the one and the same Award are inter connected, they were heard together and are being disposed of by this common judgment.
These appeals are preferred against the Award dated 30.3.2010 made in MVOP.No. 456 of 2007 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-I Additional District and Sessions Judge, Ranga Reddy District. MACMA.No. 916 of 2011 is preferred by the Oriental Insurance Company Limited being aggrieved by the quantum of compensation; whereas MACMA.No. 3439 of 2011 is preferred by the claimants being aggrieved by the inadequacy or otherwise of the compensation awarded by the Tribunal.
For the sake of convenience, the parties herein will be referred to as ‘Insurance Company’ and ‘claimants’.
The aforesaid MVOP was filed by the claimants claiming compensation of Rs.11,00,000/- on account of the death of one Romit Porwal who died in a motor vehicle accident that occurred on 24.1.2007. The claimants who are mother and sister of the deceased Romit Porwal filed the claim petition averring that as on 24.01.2007 at about 4.20 P.M. while the deceased was proceeding on his motor cycle bearing registration No. AP 28 AT 2718 and when he reached Cyber Gateway, Madhapur, Hyderabad, the driver of the Tata Indica Car bearing No. AP 09 TV 2490 being driven in rash and negligent manner and at high speed, hit the said motor cycle, as a result of which, the deceased fell down and suffered fatal injuries. Immediately after the accident, the deceased Romit Porwal was shifted to Apollo Hospital, whereat, while undergoing treatment, he was succumbed to injuries on the next day at 5.20 AM. It was averred in the claim petition that the deceased was aged about 21 years as on the date of the accident and was earning Rs.20,000/- per month working as an Accountant in Jain Engineering Establishment. 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 vehicle (Tata Indica Car) remained ex parte. The Insurance Company contested the claim petition by filing a counter, wherein it denied all the averments of the claimants including the mode of accident and claim made by the claimants. It was further stated that the claim made by the claimants was excessive and exorbitant.
Based on the pleadings, the Tribunal framed as many as four issues and proceeded to adjudicate the claim petition. During the process of adjudication, in order to substantiate their claim, P.Ws.1 to 3 were examined and Exs. A.1 to A.11 were got marked on behalf of the claimants. On behalf of the Insurance Company, no evidence, either oral or documentary was adduced, however, insurance policy, Ex.B.1 was marked.
On a thorough scrutiny of the evidence brought on record, the Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the Tata Indica Car bearing No. AP 09 TV 2490 by its driver. Then proceeding to assess the compensation payable to the claimants, the Tribunal awarded a sum of Rs.11,00,000/- as claimed by the claimants initially and accordingly an Award was passed for the said amount, directing the owner of the crime vehicle and Insurance Company to pay the said amount with proportionate costs and interest at 7.5% per annum from the date of the petition till the date of realization, jointly and severally.
In these appeals, the learned Standing Counsel for the Insurance Company contended that the accident in question occurred due to the contributory negligence on the part of the deceased. He submitted that the Tribunal took the notional income of the deceased at higher level and even it erred in applying the appropriate multiplier while assessing the compensation. The learned Standing Counsel further submitted that even the interest awarded by the Tribunal was on higher level.
Per contra, the learned Counsel for the claimants contended that during the pendency of the OP, the claimants have enhanced the claim from Rs.11,00,000/- to Rs.18,00,000/- and the Tribunal though assessed the compensation payable to the claimants at Rs.18,00,000/-, however it erroneously restricted the same to the initial claim. He further submitted that the claimants are entitled to more compensation considering the salary, age etc of the deceased.
We have carefully perused the material available on record.
In order to adjudicate the issue as to who was at fault for the cause of the accident, it is necessary to delve into the evidence brought on record in regard thereto. P.W.1, mother of the deceased deposed in her evidence in replica to the averments made in the claim petition. However, she was not an eye witness to the accident. P.W.2, who was cited as an eye witness to the accident, deposed that on 24.1.2007 at about 4.20 PM while he was standing at Cyber Gate, the deceased was proceeding on his motorcycle and when the motor cycle reached the Cyber Gateway, the driver of Tata Indica Car bearing No. AP 09 TV 2490 came at high speed in rash and negligent manner , hit the motor cycle from its behind and due to the sudden impact, the deceased fell down and sustained fatal injuries. To discredit the evidence of P.W.2, neither the owner of the crime vehicle nor the Insurance Company adduced any evidence. Further, even when the said witness was cross examined, nothing adverse was elicited. More over, it came to light that the averments made by P.W.2 corroborated the contents in documents marked at Exs.A.1 to 6, which are the certified copies of FIR, crime details, inquest proceedings, post-mortem report, MVI report, and Charge sheet. Further, there was no evidence to disbelieve the evidence of P.W.2 nor was there any evidence to prove the contributory negligence on the part of the drivers of both the vehicles. Thus, the Tribunal meticulously considering the evidence brought on record recorded a finding that the accident occurred due to the rash and negligent driving of the offending car by its driver.
Admittedly the Tribunal having meticulously considered the evidence on record, recorded the finding that the accident in this case was occurred solely on account of rash and negligent driving of the offending car by its driver. 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 rash and negligence on the part of the driver in driving car, no legitimate attempt was made to prove the same.
Coming to the assessment of compensation, it is to be seen that it has come in the evidence that the deceased was earning Rs.20,000/- working as an Accountant with Jain Engineering Establishment. After deducting Rs.200/- towards professional tax, the deceased was used to receive the salary of Rs.19,800/- per month. In support of this, P.W.3 produced a copy of salary certificate, Ex.A.9, and relevant salary register extract, Ex.A.11. Besides this, P.W.3, who joined the Jain Engineering Establishment after the death of the deceased and who has no knowledge about the deceased, deposed in unequivocal terms supporting the salary of the deceased. There being no contra evidence in regard there to, it was demonstrably established by the claimants with regard to the salary of the deceased that the deceased was receiving Rs.19,800/- per month. 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.29,700/-
. 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.14,850/-. 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 21 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.32,07,600/- (14,850 x 18 x 12). Added to the same, award of Rs.25,000/- towards funeral expenses is just and appropriate. Thus, in all, the appellants are entitled to a total compensation of Rs.32,32,600/-.
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 claimants are entitled to interest at 7% per annum.
It is to be seen that even as per the amended claim, the claimants have claimed Rs.18,00,000/-. Even though the claimants have claimed only Rs.18,00,000/-, they are entitled to the aforestated amount since Section 168 empowers the Claims Tribunal to ‘make an award determining the amount of compensation which appears to it to be just’. The only requirement for determining the compensation is that it must be ‘just’. There is no other limitation or restriction on its power for awarding just compensation (see Nagappa v. Gurudayal Singh: 2003 ACJ 12 (SC). Further, in Rajesh’s case (1 supra), the Supreme Court held that the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim.
In the result, the claimants are entitled to receive the compensation of Rs.32,32,600/- with proportionate casts and interest at 7% from the date of the petitioner till realization. The owner of the Tata Indica offending vehicle and Insurance Company are liable to pay the said amount jointly and severally. Out of the aforesaid total compensation, the first claimant, who is the mother of the deceased is held to entitle to receive Rs.20,32,600/- and the second claimant, who is the sister, is held to entitle to receive Rs.12,00,000/-
For the foregoing discussion and in the result, MACMA.No.916 of 2011 filed by the Insurance Company is allowed in part reducing the rate of interest from 7.5.% per annum to 7% per annum and MACMA.NO.3439 of 2011 is allowed. 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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