THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.1740 OF 2007
Date: 18.06.2014
Between:
1. Pathan Fathimunnisa Bee and others.
… Appellants And
1. G.Venkateswara Rao
2. K. Prameela Rani
3. The Oriental Insurance Company Limited, rep. by its Divisional Manager, Divisional Office, Guntur.
… Respondents THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.1740 OF 2007
JUDGMENT:
Not being satisfied with the quantum of compensation awarded in M.V.O.P.No.673 of 2004 on the file of the Motor Vehicle Accidents Claims Tribunal- cum-XI Addl. District & Sessions Judge, Guntur at Tenali (for short, 'the Tribunal), the claimants, who are the wife, children and parents of deceased Pathan Mahaboob Subhani, preferred the present appeal seeking enhancement of the same.
Heard the learned counsel for the appellants, the learned counsel for the respondents and perused the material available on record.
For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
The facts in issue are as under:
The claimants herein filed a petition under Section 140, 163-A of Motor Vehicles Act and Rules 455 and 476 of A.P.M.V. Rules claiming compensation of Rs.4,50,000/- for the death of one Pathan Mahaboob Subhani on 3.7.2004. It is stated that on the fateful day when the deceased was proceeding on his TVS Moped bearing No.AP 16 J 180 from B.P.C.L. Company to have his lunch, at about 3.00 p.m., a lorry bearing Regn. No.AP 37 U 5090, which was passing from Kondapalli to Mylavaram driven by its driver in a rash and negligent manner and hit the bike of the deceased from the back side. As a result of which, the deceased fell down on road and the said lorry ran over him. In respect of the above incident, a case in Crime No.330 of 2004 of Ibrahimpatnam P.S. came to be registered against the driver of crime vehicle for an offence punishable under Section 304-A of I.P.C. It is stated that the deceased was aged about 35 years, and hale and healthy at the time of the accident. He was working as Security Guard in BPCL which was situated at Kondapalli - Mylavaram Road, Krishna District. The deceased was drawing a salary of Rs.3,000/- per month towards his salary besides other allowances. As he was the only bread-winner for his entire family, the present application is filed under Section 163-A of the Motor Vehicles Act claiming compensation.
The 3rd respondent Insurance Company filed counter disputing the age, income, avocation of the deceased and also the manner in which the accident took place.
Basing on the above pleadings, the Tribunal below framed the following issues:
(1) Whether the accident occurred due to rash and negligent driving by the driver of lorry bearing No.AP 37 U 5090? ( OR ) Whether the accident occurred due to the negligent driving of the driver of the moped bearing No.AP 16 J 180 on which the deceased was travelling or the negligence of both the parties contributed to the accident?
(2) Whether the petitioner is entitled for compensation as prayed for?
(3) To what relief?
In support of the claimants, P.Ws.1 to 4 were examined and Exs.A-1 to A-12 documents were marked. No oral or documentary evidence has been 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 37 U 5090 and awarded compensation of Rs.3,65,184/- towards loss of dependancy, Rs.10,000/- towards funeral and transportation expenses, Rs.10,000/- for love and affection and Rs.15,000/- towards consortium, thus totalling to Rs.4,00,184/- with interest at 7.5% p.a. from the date of petition till the date of realization. The said finding has become final as the same is not challenged either by the Insurance Company or the owner of the vehicle.
Therefore, the only point that arises for consideration is whether the compensation of Rs.4,00,184/- awarded by the Tribunal is reasonable, just and fair.
The learned counsel for the appellant did not dispute the age and also the earnings of the deceased. His main argument is to the effect that the Tribunal did consider the future prospects of the deceased and erred in deducting one-third towards personal and living expenses of the deceased when there are more than three dependants.
Per contra, the learned counsel for the respondents submitted that the amount of compensation awarded by the Tribunal is just and reasonable and as such the same warrant no interference by this Court.
Coming to the deductions made towards personal living expenses, the Tribunal below deducted one-third towards his personal living expenses. As could be seen from the material available on record, the claimants, who are dependants of the deceased are his wife, two minor children and two aged parents. In view of the judgment of Sarla Verma v. DTC deductions to be made in a case where there are more than three dependants is one-fourth and not one-third as done by the Tribunal.
Further in Rajesh v. Rajbir Singh the Apex Court while dealing with an issue whether any additional income has to be added in case of persons who are self- employed or whether getting fixed salary (without provision for annual increments) came up was considered and held as under:
"Para 8. Since the Court in Santosh Devi v. National Insurance Co. Ltd. [(2012) 6 SCC 421] actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self- employed or persons with fixed wages, in case, the deceased victim of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
Para 9. In Sarla Verma case, it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
Since the age of the deceased in the present case was about 40 years at the time of accident and as he was employed with fixed salary, 30% of the income should be added to the income of the deceased while calculating the loss of earnings. Taking income of the deceased as Rs.2,853/-, adding 30% of the income to his income would making his earnings as Rs.3,708/-, deducting one-fourth towards his personal and living expenses the contribution of the deceased to the family would be Rs.2,781/-. Applying multiplier "16" in view of the judgment of the Apex Court in Sarla Verma’s case (1 supra), the total loss of dependancy would be Rs.2,781/- x 12 x 16 = Rs.5,33,952/-.
Since the amounts awarded towards funeral and transportation charges, loss of love and affection and loss of consortium are not challenged by the Insurance Company, the same are not disturbed though it is an application filed under Section 163-A of Motor Vehicles Act.
Since the present petition is filed under Section 163-A of the Motor Vehicles Act, the dependants of the deceased are not entitled to more than what has been awarded towards funeral and transportation expenses and also towards loss of love and affection and loss of estate. In all the claimants are entitled to Rs.5,33,952/- + Rs.10,000/- towards funeral and transportation expenses + Rs.10,000/- towards loss of love and affection + Rs.15,000/- towards loss of consortium. Thus, the claimants are entitled to a sum of Rs.5,68,952/- as compensation which is more than the amount originally claimed by the claimants. I n Nagappa v. Gurudayal Singh, the question as to whether the claimants are entitled to compensation in excess of what is claimed in the petition under Section 166 of the Motor Vehicles Act came up for consideration. The Apex Court held as under:
"Para 21. For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award “just” compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit the amendment to the claim petition.”
The said principle was followed in the later decision of the Apex Court in Oriental Insurance Company Limited v. Mohd. Nasir (2009) 6 SCC 280; Ningamma v. United India Insurance Company Limited (2009) 13 SCC 710 and also in Rajesh v. Rajbir Singh (2 supra).
As held by the Apex Court in Rajesh v. Rajbir Singh (2 supra), the Court should not succumb to niceties or technicalities in fixing the compensation. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/dependants should not face vagaries of life on account of the discontinuance of the income earned by the victim.
In view of the judgments referred above and also taking into consideration the application filed by the claimants with regard to enhancement of compensation, I am of the view that the claimants are entitled to more than what has been claimed by them.
For the reasons aforementioned, the Appeal is allowed in part. The compensation of Rs.4,00,184/- (Rupees Four lakhs and one hundred and eighty four only) as awarded by the Tribunal is enhanced to Rs.5,68,952/- which is rounded to Rs.5,69,000/- (Rupees Five lakhs and sixty nine thousand only) to be paid by the respondents 1 to 3 with joint and several liability. The enhanced amount will carry interest at 6% from the date of 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.18.06.2014 gbs