* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.267 of 2009
%01.09.2014
Between:
United India Insurance Co. Ltd.
Rep. by its Divisional Manager, Hyderabad and another. ...
Appellants AND M. Nageshwar Rao and others. ….
Respondents ! Counsel for Appellants : Sri N. Mohan Krishna ^ Counsel for Respondent Nos.1 to 3: Sri A. Raghu Rama Aurava ^ Counsel for Respondent No.5 : Sri Mohd. Abdul Samad < Gist:
> Head Note:
? Cases referred:
1. 2009 ACJ 1298 (SC)
HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.267 of 2009
JUDGMENT:
Aggrieved by the Award dated 06.12.2007 in M.V.O.P.No.1342 of 2005 passed by the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Warangal (for short ‘the Tribunal’), the United India Insurance Company Limited preferred the instant appeal.
2) The factual matrix of the case is thus:
a) Claimants 1 to 3, who are the father, mother and sister of the deceased—Balaraju, filed M.V.O.P.No.1342 of 2005 on the pleas that on 08.06.2005 when the deceased along with o n e M.Chandraiah was proceeding on motorcycle bearing No.AAY 1902 and when they reached near Keshavapuatnam Sreemannarayana Kirana Shop on Hanamkonda—Hyderabad High Way in Pembarthy village, one lorry bearing No.AHT 8968 being driven by its driver (R1) at high speed and in a rash and negligent manner came behind and dashed the motorcycle and thereby the deceased received head injury and died on the spot. They further pleaded that the accident was occurred due to the fault of lorry driver and due to the sudden demise of the deceased, they lost their fender and became destitutes. On these pleas, they claimed Rs.5,00,000/- as compensation under different heads against respondent Nos.1 to 4, who are the driver, owner and insurer of the offending lorry respectively.
b) Respondents 1 and 3 remained ex parte. Respondent No.2 though appeared through his counsel but did not choose to file any counter.
c) Fourth respondent/Insurance Company filed counter and denied all the material averments made in the petition and urged to put the claimants in strict proof of the same. R4 pleaded that the accident was occurred due to the fault of the deceased himself but not lorry driver. Finally, it denied the age, avocation, income of the deceased and contended that the claim was excessive, exorbitant and prayed for dismissal of the O.P.
d) During trial, PWs.1 and 2 were examined and Exs.A1 to A 1 7 were marked on behalf of the claimants. No oral or documentary evidence was placed on behalf of respondents.
e) A perusal of the award would show that issue No.1 is concerned, believing the eye-witness evidence of PW2 and Ex.A1—F.I.R; Ex.A2—Inquest Report and Ex.A5—Charge sheet, the Tribunal held that the lorry driver was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal awarded Rs.3,62,000/- with proportionate costs and simple interest at 7.5% p.a. from the date of O.P. till the date of realization to the claimants against respondents 1 to 4 as below:
Loss of dependency Rs.3,60,000/-
Funeral expenses Rs. 2,000/-
Total Rs.3,62,000/-
Hence the appeal by the United India Insurance Company Limited.
3) Heard arguments of Sri N.Mohana Krishna, learned counsel for appellant/Insurance Company, Sri Alluri Raghu Rama Aurava, learned counsel for respondent Nos.1 to 3/claimants and Sri Mohd. Abdul Samad for respondent No.5. Though notice to respondent No.4 was served, no representation on his behalf, hence treated as heard.
4) The parties in the appeal are referred to as they stood before the Tribunal.
5) Learned counsel for appellants/Insurance Company directed his arguments mainly attacking quantum of compensation. He argued that fixing notional income of the deceased at Rs.3,000/- per month, the Tribunal deducted only 1/3rd towards the personal expenses of the deceased which is not correct in view of ruling of Ap e x Court in the decision reported in Smt. Sarla Verma and Others. v. Delhi Transport
[1]
Corporation and another . Learned counsel argued that as per the said decision, in case of a bachelor like the present one, 50% has to be deducted towards personal and living expenses of the said bachelor. Learned counsel thus prayed that compensation may be reassessed in the light of aforesaid decision.
6) Per contra, while supporting the award learned counsel for respondents/claimants argued that deceased was the only son of their parents and his parents and minor sister were totally dependent on his earnings as the deceased was earning Rs.3,000/- per month by conducting Hindi tuitions and karate classes. In view of multiple number of dependents the Tribunal was right in deducting only 1/3rd towards the personal expenditure of the deceased. He submitted that by the time the award was passed the ruling in Smt. Sarla Verma’s case (1 supra) was not pronounced and therefore, though the said ruling is applicable in pending appeals the same may not be applied to the disadvantage of claimants.
7) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs interference.”
8 a) POINT: Accident, involvement of motorcycle bearing No.AAY 1902 and lorry bearing No.AHT 8968 and death of deceased are not in dispute. As stated supra, the appellants are mainly challenging the quantum of compensation. The Tribunal going by the evidence on record fixed notional income of the deceased at Rs.3,000/- and deducted 1/3rd towards his personal expenditure and multiplied the balance amount with multiplier ‘15’. The said deduction of 1/3rd is now the bone of contention.
b) In this context, in Smt.Sarla Verma’s case (1 supra) the Supreme Court observed thus:
“15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.”
A perusal of above judgment would no doubt show that in case of bachelor, 50% of his earnings have to be generally deducted towards personal and living expenses. However, this rule is not an insurmountable. When the dependents are more the deduction can be lessened to 1/3rd. Therefore, the facts and evidence in the present case have to be perused to know about the dependents of the deceased.
c) PW1, the father of the deceased deposed in paras-5 and 7 of his chief examination to the effect that the deceased was running Hindi tuitions in his home and also taking karate classes and earning Rs.3,000/- per month and the petitioners are completely dependent on his earnings. This part of his evidence was not challenged in the cross-examination. Therefore, it is clear that there are three dependents on the deceased one of which is the minor sister whose education and marriage would have been the responsibility of the deceased had he not met with abrupt death. In these circumstances, it is not apt to apply 50% deduction in a rigid application of Sarla Verma (1 supra). Therefore, I find no justification in the argument of the appellants.
9) In the result, I find no merits in the appeal and the same is accordingly dismissed by confirming the award passed by the Tribunal in M.V.O.P. No.1342 of 2005. No costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 01.09.2014
Note: L.R Copy to be marked: Yes/ No
Murthy
[1] 2009 ACJ 1298