BVLNC,J MACMA 2231 of 2017
Page 1 of 15 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.2231 OF 2017
JUDGMENT:
This appeal is preferred by the Appellants/claimants, challenging the award dated 14.06.2017 passed in M.V.O.P.No.664/2012 on the file of Motor Accidents Claims Tribunal- cum-III Addl.District Judge, Ananthapuram, wherein the Tribunal partly allowed the petition, awarded a compensation of Rs.11,00,976/- with interest @ 7.5% p.a. from the date of petition, till the date of realisation to the petitioners/claimants, for the death of Shaik Abdul Khadar in a motor vehicle accident.
2. For the sake of convenience, the parties are arrayed as parties in the lower Court.
3. As seen from the record, originally the petitioner filed an application U/Ss.140 and 166 of the Motor Vehicles Act, 1988 (for brevity "the Act") claiming a compensation of Rs.16,00,000/- on account of the death of Shaik Abdul Khadar, husband of the 1st petitioner and father of the 2nd petitioner, in a motor vehicle accident that occurred on 03.04.2012.
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4. The facts show that 03.04.2012 the deceased Shaik Abdul Khadar was travelling in a car bearing No.AP 02 AF 2313 along with his family members from Kamalapuram to Nandyal after visiting the Mosque (Dhargh) at Kamalapuram, and when they reached near Chintakunta Cross on Kadapa - Kurnool road, NH-18, at about 03.00 p.m., the crime bus bearing No. AP 05 TT 1999 was driven in a rash and negligent manner by its driver came in the opposite direction and dashed the car. Due to the said impact, inmates of the car including the deceased received injuries. Immediately he was shifted to Government Hospital, Prodduturu, for treatment. Again he was shifted to Aswini Hospital, Prodduturu. Later he was shifted to UDAI Hospitals at Hyderabad for better treatment. Thereafter he was shifted to Medwin Hospital, Hyderabad, and was admitted as in-patient. He underwent operations and incurred heavy medical expenses and while undergoing treatment, the deceased died on 04.05.2012. On information, Duvvuru Police registered a case in Cr.No.49/2012 for the offence punishable U/Ss. 337, 338 and 304-A of Indian Penal Code against the driver of crime bus. The deceased was hale and healthy, aged 60 years at the time of accident. He was a pensioner, drawing pension of Rs.19,000/- per month. Due to the death of deceased, the claimants have lost their bead winner.
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5. Before the Tribunal, the 2nd respondent/Insurance Company, filed a written statement resisting, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the deceased, manner of accident, rash and negligence on the part of the driver of the offending vehicle, and liability to pay compensation, contended that there is no negligence on the part of driver of the bus, and driver of the car alone was responsible for the accident. The driver of the bus drove the same very slowly in a careful manner whereas the driver of car drove the same in a rash and negligent manner and caused the accident. The petitioners are not dependants on the income of deceased and they have got their own source of income. The compensation claimed is excessive.
6. The 4th respondent filed a counter denying the material averments of the petition, contended that the accident took place only due to the rash and negligent driving of the driver of the crime bus bearing No.AP 05 TT 1999, and that there was neither rashness nor negligence on part of the driver of the car bearing No.AP 02 AF 2313, as such, this respondent is not liable to pay any compensation. The deceased was travelling as a passenger in the car on the date of the accident, and that risk of passengers travelling in the car is not BVLNC,J MACMA 2231 of 2017 Page 4 of 15 Dt: 27.12.2022 covered by the insurance policy. The compensation claimed is highly excessive. The respondents No.1, 3, 5 and 6 remained exparte.
7. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
1. Whether the accident occurred due to rash and negligent driving of the driver of the bus bearing No.AP 05 TT 1999?
2. Whether the petitioners are entitled to compensation? If so, to what amount and from which respondent?
3. To what relief?
8. To substantiate their claim, the petitioners examined P.Ws-1 to 4 and got marked Exs.A-1 to A-12. Respondents No.2 and 4 did not adduce any oral evidence, but the 2nd respondent got marked a copy of the insurance policy as Ex.B-1 and 4th respondent got marked a copy of the award in O.P.612/2012 as Ex.B-2.
9. The Tribunal, taking into consideration the evidence of P.Ws-1 to 4, coupled with Exs.A-1 to A-12, held that the accident took place due to the rash and negligent act driver of the crime bus bearing No. AP 05 TT 1999, and further taking into consideration the evidence of P.Ws-1 to 4, corroborated by Exs.A-1 to A-12, awarded a compensation of Rs.11,00,976/- with interest @ 7.5% p.a. from the date of petition, till BVLNC,J MACMA 2231 of 2017 Page 5 of 15 Dt: 27.12.2022 the date of realisation with proportionate costs, against respondents No.1, 2 and 5, by exonerating the liability against respondents No.3, 4 and 6.
10. The contention of the appellants/claimants is that the Tribunal ought to have applied multiplier '9' instead of '7' as on the date of death of the deceased, he was aged 59 years only as per service register, and that as per the revised pension, the deceased was entitled to Rs.32,080/- towards monthly pension, and therefore, the loss of earnings should have been calculated accordingly, and that the Tribunal erred in not awarding Rs.6,38,440/- towards medical expenses claimed and proved in the evidence of P.Ws-2 to 4 examined by the claimants, and therefore, the Tribunal failed to award just compensation to the claimants.
11. In the light of above contention of the appellant raised in the appeal, the points that would arise for consideration in the appeal are as under:
1. Whether the Tribunal failed to award just compensation to the claimants?
2. To what relief?
BVLNC,J MACMA 2231 of 2017 Page 6 of 15 Dt: 27.12.2022 12. POINT No.1:
That on 03.04.2012 at 03.00 p.m. the deceased along with his family members was travelling in a car from Kamalapuram to Nandyal and when they reached Chintakunta cross on Kadapa-Kurnool road, the bus bearing No. AP 05 TT 1999 coming in the opposite direction dashed the car due to the rash and negligent driving of the driver of the bus, and as a result, he sustained grievous injuries, and he was admitted in hospital and underwent treatment for one month, and while undergoing treatment, he succumbed to injuries and died on 01.05.2012. The deceased was aged about 60 years and he was a pensioner, drawing pension to a tune of Rs.19,285/- per month, and he contributed his pension to the family consisting of 1 st petitioner/wife and the 2nd petitioner/daughter, who were depending upon the income of the deceased, and the 1 st respondent, who is the owner of the bus, 2nd respondent is insurer and the 5th respondent is the driver of the bus. The 3rd respondent is the owner of the car, 4th respondent is insurer of the car and 6th respondent is driver of the car.
13. Respondents No.1, 3, 5 and 6 remained exparte before the Tribunal.
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14. The 2nd respondent, who is the insurer of the bus, opposed the claim and contended that the accident occurred due to the negligence of the driver of the car and that the driver of the bus drove the bus carefully and therefore, the accident occurred due to the rash driving of the car driver and further, the compensation amount claimed is excessive.
15. The 4th respondent who is insurer of the car opposed the claim, contending that the accident occurred due to the rash and negligent driving of the bus driver and not due to the negligence of the driver of the car driver and therefore, the 2nd respondent is liable to indemnify the compensation.
16. The claimants to prove their case has examined the 1st petitioner as P.W-1 and filed Exs.A-1 to A-12. No contra evidence was adduced by the 2nd respondent/Insurance Company or 4th respondent / Insurance Company. Nothing was elicited in the cross-examination of P.W-1 in support of the case of the 2nd respondent. The Tribunal in consideration of the evidence of P.W-1 i.e., 1st petitioner and wife of deceased, Ex.A-1 copy of FIR, Ex.A-2 copy of altered FIR, Ex.A-3 inquest report, Ex.A-4 post mortem, report and Ex.A-5 copy of police report (charge sheet) and Ex.A-6 copy of M.V.I. Report held that the accident occurred due to the rash and negligent driving of the driver of BVLNC,J MACMA 2231 of 2017 Page 8 of 15 Dt: 27.12.2022 the bus. In that view of the matter, there are no grounds to interfere with the findings of the Tribunal on this aspect.
17. The claimants filed Exs.A-11 and A-12 copy of pension paper order issued by the Asst.Treasury Officer, District Treasury Office, Ananthapuram, dated 18.11.2010. It discloses that the deceased retired on 30.06.2010 and worked as a Junior Lecturer in Hindi. As per Ex.A-11, the Prl. Accountant General, A&E, A.P., Hyderabad, fixed the pension of the deceased at Rs.19,285/- per month. The deceased commuted an amount Rs.7,714/- of the pension amount, and the reduced monthly pension after commutation was fixed at Rs.11,571/- per month, against the same, he was eligible for dearness allowance existing at that point in time @ Rs.6,934/- per month as per Ex.A-11. He was also entitled to Rs.200/- towards medical allowance. So, the total amount received by the deceased as pension is Rs.18,705/- as per Ex.A-11. Ex.A-12 is the bank passbook relating to pension of the deceased. It shows that he received an amount of Rs.17,549/- every month, after certain deductions.
18. In light of Ex.A-11, it is established that the deceased was eligible for Rs.18,705/- towards pension every month, after deducting the commuted amount including dearness allowance and medical allowance. Ex.A-11 further contained an endorsement that after death BVLNC,J MACMA 2231 of 2017 Page 9 of 15 Dt: 27.12.2022 of the deceased, the 1st petitioner was awarded a family pension, and she is entitled to Rs.11,571/- towards family pension. Therefore, the loss of earnings due to death of deceased would be Rs.7,134/- per month. The loss of annual income would be Rs.7,134 x 12 = Rs.85,608/-. The age of the deceased as per pension book Ex.A-11 is 01.07.1952. He died on 01.05.2012. Therefore, his age on the date of death is 59 years, 10 months. Hence, the multiplier to be applied is '9' as per judgment of the Hon'ble Apex Court in Sarla Verma and another Vs. Delhi Transport Corporation and others1, which would be Rs.85,608 x 9 = Rs.7,70,472/-. Out of this amount, 1/3 shall be deducted towards personal expenses of the deceased as per the above judgment. Hence, the loss of earnings would be Rs.5,13,648/-. The claimants are entitled to a loss of future earnings @ 10% only as per the judgment of Hon'ble Apex Court in the case of National Insurance Company Limited and Pranay Sethi and others2, since the deceased is aged 59 years at the time of death, and the amount would be Rs.51,364/-. Hence, the total amount of loss of earnings comes to Rs.5,65,013/-. The appellants are also entitled for Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and the 1 2009 ACJ 1298 2 (2017) 16 SCC 680 BVLNC,J MACMA 2231 of 2017 Page 10 of 15 Dt: 27.12.2022 1st petitioner is entitled to Rs.40,000/- towards loss of consortium as per the judgment of Hon'ble Apex Court in Pranay Sethi's case, which would come to Rs.5,65,013 + 70,000 = Rs.6,35,013/-.
19. The other contention of the appellants/claimants is that they have incurred a sum of Rs.5,60,000/- towards medical expenditure, transportation and attendant charges etc. The appellants/claimants in support of their case filed Exs.A-7 and 9 and examined P.Ws-2 to 4 doctors.
20. The evidence of P.W-2 discloses that the deceased was admitted in UDAI Clinic at Hyderabad on 03.04.2012, and he was treated there for the injuries sustained by him in the accident and due to complications, patient was sent to Medwin Hospitals on 12.04.2012 and Ex.A-7 is the discharge summary, and they also issued medical bills covered by Ex.A-9 towards medical expenditure incurred for the treatment in the hospital, and the patient was shifted in an ambulance to the Medwin Hospitals, as he required ventilation.
21. P.W-3 is in charge of the Pharmacy at UDAI Hospitals. He deposed that the bills under Ex.A-9 were issued by their hospital and as per their records, the bills are genuine, and they care covered by the discharge summary.
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22. P.W-4 is the doctor from Medwin Hospital. He deposed that the deceased was admitted in their hospital in April, 2012 and he was treated there and he died on 04.05.2012, and Ex.A-10 X-rays belong to the deceased, and Ex.A-8 is the death summary belonging to the deceased.
23. Therefore, the above evidence of the doctors establish that the deceased was treated in UDAI Hospital as well as in Medwin Hospital, and he died on 04.05.2012, and expenditure was incurred for his treatment, and accordingly, Udai Hospitals issued Ex.A-9 bills. The appellants/claimants made a claim for Rs.5,60,000/- towards medical expenditure, transportation and attendant charges of the deceased. The Tribunal in its order has awarded a sum of Rs.4,29,000/- only on the ground that the claimants claimed a sum of Rs.6,38,640/- and it is highly excessive. The Tribunal did not give any reason as to how it arrived the amount at Rs.4,29,000/- only, when Ex.A-9 discloses an amount of Rs.5,53,084/-. The claimants in order to prove Ex.A-9 have examined P.W-2 and P.W-3. Nothing was elicited in the cross- examination of P.W-2 and P.W-3 by the Insurance Company, except giving suggestions that they are not genuine bills. In that view of the matter, the order of the Tribunal requires interference by this Court. The claimants are entitled to Rs.5,53,084/-, instead of Rs.4,29,000/-
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under the head of medical expenses, transportation and attendant charges etc.
24. The Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of realisation. I do not find any ground to interfere with the rate of interest awarded by the Tribunal at 7.5% p.a., from the date of petition, till the date of realisation, in view of the Ho'ble Apex Court judgement in the case of National Insurance Company Limited Vs. Mannat Johal3.
25. Therefore, the total amount of compensation entitled by the claimants is Rs.6,38,460 + 5,53,084 = Rs.11,91,544/-. This is the amount entitled by the claimants towards just compensation. The Tribunal awarded Rs.11,00,097/- only. Therefore, the order of the Tribunal is liable to be modified. Accordingly, this point is answered.
26. POINT No.2: To what relief?
In light of the finding on point No.1, the order passed by the Tribunal has to be modified partly.
27. In the result, the appeal is partly allowed, modifying the award dated 14.06.2017 passed in M.V.O.P.No.664/2012 on the file of Motor 3 2019 ACJ 1849 (SC) BVLNC,J MACMA 2231 of 2017 Page 13 of 15 Dt: 27.12.2022 Accidents Claims Tribunal-cum-III Addl. District Judge, Ananthapuram. It is held that the appellants/claimants are entitled to a compensation of Rs.11,91,544/- (Rupees Eleven Lakhs, Ninety One Thousand, Five Hundred and Forty Four only), instead of Rs.11,00,097/-, with interest @ 7.5% p.a. from the date petition till the date of realisation, against respondents 1, 2 and 5 only with joint and several liability. Respondents 3, 4 and 6 are exonerated from the liability. There shall be no order as to costs.
28. The 2nd respondent/Insurance Company is directed to the deposit the compensation amount of Rs.11,91,544/- (Rupees Eleven Lakhs, Ninety One Thousand, Five Hundred and Forty Four only) with accrued interest thereon, within one month from the date of judgment. The amount already deposited shall be deducted from the amount to be deducted.
29. On such deposit, the 1st Appellant/1st claimant being the wife of the deceased, is entitled to an amount of Rs.8,91,544/- (Rupees Eight Lakhs Ninety One Thousand Five Hundred and Forty Four only) and she is permitted to withdraw Rs.8,91,544/- (Rupees Eight Lakhs Ninety One Thousand Five Hundred and Forty Four only) along with the accrued interest thereon. The 2nd Appellant/2nd claimant, being the daughter of the deceased, is entitled to an amount of Rs.3,00,000/-
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(Rupees Three Lakhs only), and she is permitted to withdraw Rs.3,00,000/- (Rupees Three Lakhs only), along with accrued interest thereon.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
27.12.2022
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BVLNC,J MACMA 2231 of 2017
Page 15 of 15 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.2231 OF 2017
27th December, 2022
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