THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA No. 3364 OF 2009 DATED:24-01-2014 Between:
Y. Raja Krishna Mohan and two others … Appellants And V. Gopi Chand and another … Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA No. 3364 OF 2009 JUDGMENT: (per the Hon’ble Sri Justice Ashutosh Mohunta) This appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred by the husband and sons of the deceased Y. Sree Rama against Award dated 08-05-2009 in O.P No. 937 of 2007 on the file of the learned IV Additional Metropolitan Sessions Judge – cum – XVIII Additional Chief Judge, Hyderabad, wherein the claim of the appellants – claimants was allowed in part awarding compensation of Rs.11,47,000/- with interest at 7.5% per annum from the date of filing of the petition till the date of realisation.
Briefly, the facts of the case are that on 29-01-2007 morning hours Sree Rama and her husband, the 1st appellant herein were proceeding on motor cycle as a pillion rider and rider of the motor cycle respectively from their residence to Rasoolpura towards Ministers Road, Secunderabad and when they reached opposite to Arya Tiffin Centre in Ministers Road at about 10.30 AM Tata Indigo Car bearing No.AP-7-M-7777 driven by its driver with high speed, rashly and negligently came from behind and dashed the motor cycle from backside as a result of which both of them fell down from the motor cycle and Sree Rama and the 1st appellant sustained fracture and grievous injuries and immediately both the injured were shifted to KIMS Hospital for treatment. It was stated that Sree Rama underwent various tests and operations and that an amount of Rs.15,00,000/- was spent and at last she died due to complications consequent to blunt injury to abdomen. According to the appellants-claimants, the accident took place due to negligent act of the driver of the Matador Car and the police also registered a case against the said car driver.
The claimants further stated that the deceased was aged 42 years and was earning Rs.5,000/- per month as Accountant and contributed the same to the family besides attending duties as a household wife. Due to the sudden demise of the deceased, the claimants not only lost their bread winner but also the 1st claimant lost his wife and the other claimants lost their mother and thereby their future is totally spoiled. They claimed compensation of Rs.25,00,000/- on account of the death of the deceased from the respondents who are the owner and insurer of the car.
Before the Tribunal, the 1st respondent, the owner of the car filed counter admitting the accident. It was stated that the accident occurred due to the contributory negligence on the part of the drivers of both the vehicles and as the driver of the car is having valid licence and the car was insured with the 2nd respondent, the decree may be passed against the 2nd respondent for the compensation, if any, to be granted to the claimants.
The 2nd respondent also filed counter denying the averments made in the claim petition and stating that the claim petition is not maintainable either on facts or under the law and the same is liable to be dismissed in limini. The 2nd respondent also denied with regard to the manner of the accident, the case of the claimants that an amount of Rs.15,00,000/- was spent for treatment and medicines and also with regard to the age and earnings of the deceased. It was also stated that since the 1st appellant who is the husband of the deceased is an employee and earning person, he is not dependant on the earnings of the deceased and that the claim made by the claimants is excessive.
On the basis of the aforesaid pleadings, the following issues were framed by the Tribunal:
“1. Whether the deceased died in the accident that took place due to rash and negligent driving of the driver of Tata Indigo Car bearing No. AP-7-M-7777?
2. Whether the petitioners are entitled for compensation? If so to what amount and from whom?
3. To what relief?”
During the pendency of trial, the 2nd respondent filed additional counter alleging that as on the date of the accident, the driver of the car was not having valid driving licence to drive the vehicle and thereby the terms and conditions of the insurance policy have been violated. Hence, it is not liable to pay any compensation. The 1st respondent also filed additional counter alleging that driver of the car was having valid driving licence as on the date of the accident and thereby the terms and condition of the insurance policy have not been violated. Hence, the 2nd respondent is liable to indemnify the liability of the 1st respondent, if any. The appellants – claimants also filed rejoinder in same lines as that of additional counter of the 1st respondent and requested the Court to grant compensation as prayed for against both the respondents.
During the enquiry, PWs 1 to 7 were examined and Exs.A-1 to A-22 and Exs.X-1 and X-2 were got marked on behalf of the claimants. On behalf of the Insurance Company, RWs 1 and 2 were examined and Exs.B-1 to B-8 were got marked.
After going through the entire evidence on record, the Tribunal held that the accident took place on account of the rash and negligent driving of the car by its driver. The Tribunal held that the oral evidence of PWs 1, 2, 5 and 7 on record coupled with the contents of Exs.A-1 to A-9 make it clear that the accident occurred due to the rash and negligent driving of the driver of the car. The Tribunal further held that the claimants are entitled to a total compensation of Rs.11,47,000/- and accordingly, an Award was passed for the said amount with interest at 7.5% per annum.
Being not satisfied with the quantum of compensation granted by the Tribunal, the appellants - claimants filed the present appeal seeking enhancement.
Learned counsel for the appellants – claimants vehemently contended that the Tribunal had applied wrong multiplier and has also not granted any amount towards future prospects. He also contended that the deceased has undergone treatment for more than 45 days in KIMS Hosptial and the Tribunal without giving any credence to the medical bills granted only Rs.5,00,000/- towards medical expenditure. He further contended that the Tribunal had granted less compensation towards loss of consortium and loss of estate. Thus contending, he sought that the appeal be allowed.
On the other hand, learned Standing Counsel appearing for the Insurance Company contends that the compensation awarded by the Tribunal is reasonable and needs no interference.
Admittedly the Tribunal having thoroughly considered the evidence on record, recorded a finding that the accident in this case occurred due to the rash and negligent driving of the driver of the car. 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 negligence on the part of the driver of the lorry, no legitimate attempt was made to prove the same.
With regard to the question as to what should be the compensation awarded to the appellants, the appellants have claimed compensation of Rs.25,00,000/-. It has come in the evidence of PW 1 that the deceased was aged 42 years and was working as an Accountant in Vasundhara Pharma Distributors and was drawing monthly salary of Rs.5,000/- per month. In support of their case, the claimants got examined PW 6 who is one of the employees and filed Ex.A-19, salary certificate. Thus, the salary of the deceased was Rs.5,000/- per month as on the date of the accident. Keeping in view the fact that the was aged 42 years, as per the judgment of the
[1]
Supreme Court in Rajesh v. Rajbir Singh , 30% has to be added towards future prospects i.e., Rs.1,500/- giving a total of Rs.6,500/- per month or Rs.78,000/- per annum. If one-third is deducted towards personal and living expenses, contribution of the deceased to the claimants would be Rs.52,000/- per annum. In view of the judgment of the Supreme Court in Sarla Verma & others Vs. Delhi Transport
[2]
Corporation , as the deceased was 42 years of age, therefore
multiplier of ‘14’ would be applicable in the present case and hence, the total loss of dependency comes to Rs.7,28,000/-. Added to the aforesaid amount, Rs.1,00,000/- has to be awarded for loss of consortium to the husband, another sum of Rs.1,00,000/- towards loss of love and affection to the minor children and also a sum of Rs.25,000/- for funeral and transportation charges. Thus, the appellants – claimants are entitled to Rs.9,53,000/-.
The claimants have further averred that after the accident, the deceased was hospitalized in KIMS Hospital for treatment wherein she was treated as an inpatient and that she also underwent various tests and operations. It was also averred that an amount of Rs.15,00,000/- was spent for the treatment of the deceased. The claimants have therefore claimed a sum of Rs.15,00,000/- towards medical expenses. In support of the above claim towards treatment of the deceased, the claimants got examined PWs. 2, 3, 7 and 4 and marked Exs.A-7 to A-9.
PW 2 is the surgeon who deposed about the treatment of the deceased from 31-01-2007 to 11-03-2007. PW 7 is the doctor who treated the deceased for the first time. PW 3 is the Billing Manager and PW 4 is the proprietor of S.P. Drugs who deposed about the sale of Ambisome drug to the deceased and also spoke about Ex.A-9 bunch of bills to a tune of Rs.3,54,000/- Ex.A-8 is the outpatient bill for Rs.10,01,658/-.
We have gone through the evidence and also perused the medical bills and are of the concerned opinion that ends of justice would be met if a sum of Rs.9,00,000/- is awarded towards medical expenses of the deceased while she was in hospital.
In view of the aforesaid discussion, we partly allow this appeal and award compensation of Rs.18,53,000/- together with proportionate costs and interest at the rate of 7% per annum, which is jointly and severally liable to be paid by the respondents. Out of the said amount, the 1st appellant who is the husband of the deceased is held to be entitled to receive compensation of Rs.10,00,000/-. The two minor children are held entitled to receive the remaining compensation in equal shares. The share of the minor children shall be kept in fixed deposit in a nationalized bank till they attain majority. The 1st appellant is entitled to withdraw the annual interest accrued on the aforesaid amounts to meet the expenses of the minor children.
Miscellaneous applications, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J 24th January, 2014 ks
[1] 2013 ACJ 1403
[2] III (2009) ACC 708 (SC)