BVLNC MACMA 206 of 2016
Page 1 of 10 Dt: 26.09.2022
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A. No.206 OF 2016
JUDGMENT:
This appeal is preferred by the Insurance company challenging the award dated 13.10.2015 passed in M.V.O.P.No.216 of 2012 on the file of Motor Accidents Claims Tribunal-cum-IV Addl. District Judge, Kadapa, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.18,43,000/- with interest @ 7.5% p.a., from the date of petition till the date of deposit to the petitioners for the death of the deceased Meesala Mahesh.
2. For the sake of convenience, the parties are arrayed as referred in the lower Court.
3. As seen from the record, originally, the petitioners filed an application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.20,00,000/- on account of the death of the deceased in a road accident occurred on 31.01.2011 at 7.30 p.m., near Gyrampalli Kaspa on Piler-Kalakada main road while the deceased was driving his auto bearing No.AP 04 V 3077 to his village- Madigapalli Village, H/o Ganugachintha, Rompicherla Mandal, which BVLNC MACMA 206 of 2016 Page 2 of 10 Dt: 26.09.2022 met with an accident at Gyrampalli cross under the jurisdiction of K.V.Palli Police Station.
4. The facts of the case, in brief, are that on 21.04.2011 the deceased left Piler in his auto bearing No.AP 04 V 3077 along with passengers in order to go to his village and driving the auto on the left side of the road and at about 7.30 p.m., when the auto reached near Gyrampalli cross on Piler-Kalakada main road, one vehicle came in opposite direction by focussing heavy lights and due to that heavy illumination the auto of the deceased dashed to the 1st respondent‟s Harvest vehicle bearing No.TN 54 Y 2746, which was stationed on the middle of the road by its driver without taking proper precautions. On account of the said impact, the auto was completely damaged, the deceased sustained grievous injuries, lost conscious and other inmates of the auto also sustained severe injuries. The deceased was shifted to Government Hospital, Piler and at about 9.30 p.m., the deceased succumbed to the injuries while undergoing treatment. On the report of one Satyam Reddy, K.V.Palli Police registered FIR in Cr.No.15 of 2011 u/s 304 (A) of IPC against the driver of Harvest vehicle and subsequently after completion of investigation filed charge sheet against him.
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5. Before the Tribunal, the appellant, who is the 2nd respondent in the claim petition, filed 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 harvesting vehicle and liability to pay compensation and contended that there was no negligence on the part of the driver of Harvest vehicle.
6. 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 Harvester bearing No.TN 54 Y 2746 resulting the death of the deceased by name Meesala Mahesh on 31.01.2011?
2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom?
3. To what relief?
7. To substantiate their claim, the petitioners examined P.Ws.1 and 2 and got marked Exs.A1 to A5. On behalf of 2nd respondent, no witness was examined, but Ex.B1 policy copy was marked.
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8. The Tribunal, taking into consideration the evidence of P.Ws.1 and 2, coupled with Exs.A1 to A5 and Ex.B1, held that the accident took place due to the negligent parking of the Harvest vehicle by its driver, belongs to the 1st respondent and awarded a compensation of Rs.18,43,000/- with interest @ 7.5% p.a., from the date of petition till deposit with proportionate costs, fixing the liability on both the respondents 1 and 2 jointly and severally.
9. The plea of the insurance company is that the accident was not occurred due to the rash or negligent driving of Harvest vehicle bearing No.TN 54Y 2746 by its driver.
10. The appellant-insurance company contended that the Tribunal fixed the notional income of the deceased at Rs.8,000/- p.m., while giving a finding that there is no evidence to establish the income of the deceased and that he was an earning member of the family and therefore, fixing the notional income at Rs.8,000/- p.m., is on higher side.
11. The learned counsel for the respondents-claimants contended that the Tribunal considered the age of the deceased and that he was a skilled person, fixed the notional income at Rs.8,000/-
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p.m., and therefore, there are no grounds to interfere with the findings of the Tribunal.
12. The record shows that the Tribunal fixed the notional income at Rs.8,000/- while observing that there is no evidence to establish the income of the deceased and also that there is no evidence to show that the deceased was an earning member of the family, but the Tribunal held that considering the age of the deceased at 22 years and that he being a skilled person, fixed the notional income at Rs.8,000/- p.m.,
13. The learned counsel for the appellant-insurance company vehemently contended that the Tribunal failed to take notice of the law laid down by the Hon‟ble Apex Court and High Courts that in the absence of proof of evidence about the employment and income of a deceased, the notional income may be taken at Rs.4,500/- p.m., and should have fixed the monthly income of the deceased in the case on hand at Rs.4,500/- p.m., only instead of Rs.8,000/- p.m.,
14. The deceased in the case on hand was an auto driver and admittedly at the time of the accident he was driving the auto bearing No.AP 04V 3077 on 21.04.2011 indicating that the deceased was an auto driver. The claimants are the wife and minor child apart from the BVLNC MACMA 206 of 2016 Page 6 of 10 Dt: 26.09.2022 parents of the deceased. Therefore, the contention that the deceased was not an earning member of the family cannot be accepted.
15. Under the above facts and circumstances, it is clear that the Tribunal without any basis fixed the notional income of the deceased at Rs.8,000/- p.m., while holding that there is no evidence to prove the income of the deceased. Considering the facts of the case, I am of the considered opinion that an amount of Rs.4,500/- p.m., can be considered as notional income of the deceased as an auto driver in the year 2011 when the accident was occurred. Therefore, the annual income of the deceased will be at Rs.54,000/-, out of which 1/3rd shall be deducted towards the personal and living expenses of the deceased. So, the loss of dependency will come to Rs.36,000/-.
16. When coming to addition of income towards future prospects, the Hon‟ble Apex Court in National Insurance Company Limited vs. Pranay Sethi1 held that in case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the additional income where the deceased was below the age of 40 years. In the case on hand, the Tribunal fixed the age of the deceased at 22 years at the time of his death. Hence, 40% of the 1 (2017) 16 SCC 680.
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established income determined shall be added to the above amount of annual income, which will be Rs.14,400/-. So, the total annual loss of dependency will be at Rs.50,400/- and it shall be multiplied by „18‟ as per the judgment of the Hon‟ble Apex Court in Sarala Verma and others vs. Delhi Transport Corporation and another2. So, the compensation amount that would be awarded to the claimants comes to Rs.9,07,200/-. The amount towards conventional heads under loss of estate, consortium and funeral expenses should be at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively can be awarded to the claimants as per the judgment of the Hon‟ble Apex Court in Pranay Sethi's case. Hence, this amount shall be added to the above amount. Then the total compensation amount will be at Rs.9,77,200/-.
17. In the above facts and circumstances, I hold that the claimants are entitled to Rs.9,77,200/- only, but not Rs.18,43,000/- as awarded by the Tribunal, with interest at 7.5% p.a., from the date of petition till deposit and with proportionate costs.
18. Out of the above amount, the 2nd petitioner (minor) is entitled to Rs.6,45,000/- and the 3rd and 4th petitioners are each entitled to Rs.1,66,100/-. The amount of the 2nd petitioner shall be 2 2009 ACJ 1298.
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kept in fixed deposit in any Nationalised Bank till he attains the age of majority. The 3rd petitioner is entitled to withdraw the interest accrued on the fixed deposit amount of the 2nd petitioner once in a year which shall be used for the maintenance, education and other expenses of 2nd petitioner. After 2nd petitioner attained majority, he shall be entitled to withdraw the entire amount together with the accrued interest, if any. The 3rd and 4th petitioners are permitted to withdraw their entire compensation amounts including interest and costs awarded towards their share.
19. In the result, the Civil Miscellaneous Appeal is partly allowed by modifying the award passed on 13.10.2015 in M.V.O.P.No.216 of 2012 on the file of Motor Accidents Claims Tribunal-cum-IV Addl. District Court, Kadapa and awarding total compensation of Rs.9,77,200/- with interest at 7.5% p.a., from the date of petition till deposit and with proportionate costs.
Out of the above amount, the 2nd petitioner (minor) is entitled to Rs.6,45,000/- and the 3rd and 4th petitioners are each entitled to Rs.1,66,100/-.
The amount of the 2nd petitioner shall be kept in fixed deposit in any Nationalised Bank till he attains the age of majority. The 3rd petitioner is entitled to withdraw the interest accrued on the BVLNC MACMA 206 of 2016 Page 9 of 10 Dt: 26.09.2022 fixed deposit amount of the 2nd petitioner once in a year, which shall be used for the maintenance, education and other expenses of the 2nd petitioner. After 2nd petitioner attained majority, he shall be entitled to withdraw the entire amount together with the accrued interest, if any. The 3rd and 4th petitioners are permitted to withdraw their entire compensation amounts including interest and costs awarded towards their share.
Rest of the directions in the operative portion of order of the Tribunal are confirmed.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
26.09.2022
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BVLNC MACMA 206 of 2016
Page 10 of 10 Dt: 26.09.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.206 OF 2016
26th September, 2022
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