THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.105 of 2021
JUDGMENT:
This appeal is filed by the appellant-insurance company challenging the judgment dated 10.12.2019 in MVOP.No.311 of 2017 passed by the XXVII Additional Chief Judge - cum - Chairman, Motor Accident Claims Tribunal, City Civil Court, Secunderabad, whereunder an award for a sum of Rs.15,98,000/- with interest at 7.5% per annum was granted in favour of the claimants and against the appellant and the respondents No.3 and 4 herein jointly and severally.
2. The parties are referred to as they were arrayed in the original petition before the tribunal below.
3. A petition was filed under Section 166 of the Motor Vehicles Act, 1983 and Rule 475 of the A.P. Motor Vehicles Rules, 1989 read with Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') by the claimants, the mother and father of the deceased, Vankudoth Nagaraju, claiming compensation of Rs.12,00,000/- together with interest at 18% per annum, for the death of the deceased in the road accident that took place on 17.07.2017.
4. On 17.07.2017 at about 6.30 AM, while the deceased was walking along with his friend from his house at Pakeer Tanda towards Pusugudem Thellavagu Cheruvu side, on the extreme left side of the road near Kommugudem Village, Mulakalapally Mandal, suddenly one Mahindra Bolero vehicle bearing registration No.TS 04 UA 0519 came in a rash and negligent manner in a high speed on the wrong side of the road and dashed the deceased from the opposite direction. As a result of which, the deceased fell down on the road and received severe injuries on the head and other parts of the body and died on 2 the spot. Cr.No.133 of 2017 was registered under Section 304-A IPC with Bhadradri Kothagudem Police Station against the driver of the offending vehicle.
5. In the claim petition, it was stated that the deceased was hale and hearty, aged 23 years at the time of the accident. He was working as Mason and earning Rs.15,000/- per month and contributing the same to the welfare of the family. Due to sudden death of the deceased, the claimants were put to mental shock and agony. The deceased was the only breadwinner of the family and the claimants did not have any other source of income and they are totally dependant on the income of the deceased. The deceased completed TTC course. Had he been alive, he would have become a teacher and drawn salary of Rs.30,000/- to Rs.40,000/- per month. The future hopes, earnings and prospects of the family were shattered down due to the death of the deceased. R1 is the driver of the vehicle, R2 is the owner of the vehicle and R3 is the insurance company. As such, all of them are jointly and severally liable to pay compensation amount to the claimants.
6. In the counter of the respondent No.2 therein, it was stated that the accident occurred due to the negligence of the deceased, there was no negligence on the part of the driver of the vehicle and the vehicle is insured with the respondent No.3 insurance company.
7. The respondent No.3/insurance company therein, in its counter, stated that for want of further and better particulars regarding insurance, it was unable to admit whether the vehicle was insured or not. As on the date of the accident, the driver of the vehicle has 'no relation in force'; the driver of the vehicle was not holding a valid and effective driving license at the time of the accident and he was not 3 qualified for holding or obtaining such driving license and he had not satisfied the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989. The respondent No.2 has wilfully and knowingly handed over the possession of the vehicle to the driver, who did not possess a valid and effective driving license. There was breach of terms and conditions of the insurance policy. The respondent No.1 alone is liable to play the compensation and the respondent No.3 has got no liability.
8. The claimant No.1 examined herself as P.W.1 and also examined P.W.2 on their behalf. Exs.A1 to A7 were marked on behalf of the claimants. The respondents examined R.Ws.1 and 2 and marked Exs.B1 to B4 and Exs.X1 and X2.
9. On consideration of oral and documentary evidence, the tribunal below awarded compensation of Rs.15,98,000/- along with interest at 7.5% per annum from the date of the petition till realization.
10. The tribunal below under issue No.1 viz. Whether the accident occurred due to the rash and negligent driving of Bolero Pickup bearing No.TS 04 US 0519?, held on the basis of evidence of P.W.2, who was the eyewitness to the accident, coupled with Exs.A1 to A5 that the accident occurred due to the rash and negligent driving of the respondent No.1. Insofar as compensation is concerned, under issue No.2 viz. Whether the petitioners are entitled for compensation and if so, from whom and what quantum of amount, the tribunal below, having considered the date of birth of the deceased as per Ex.A6, original SSC marks memo, concluded that the age of the deceased was 26 years as on the date of the accident.
11. On the basis of Exs.A1 to A3 it was recorded by the tribunal below that the deceased was working as Mason. However, a finding was recorded that the income of the deceased at Rs.15,000/-, 4 as claimed by the claimants was proved. The tribunal below noted that Mason work is a skilled work; taking into consideration that the deceased was a skilled worker, aged 26 years young and energetic, his income was determined at Rs.10,000/- per month. Applying the principle of law laid down by the Supreme Court in NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI [2017 (3) L.S 44 (SC)], the tribunal below added 40% to the income towards future prospects and determined his income at Rs.14,000/- per month; yearly income was worked out to Rs.1,68,000/- (Rs.14,000/- x 12 months); as per the judgment of the Supreme Court in SARLA VARMA v. DELHI TRANSPORT CORPORATION [III (2009) ACC 708 (SC)], ½ of the yearly income of the deceased was liable to be deducted towards personal expenses and his contribution to the family worked out to Rs.84,000/-; applying the multiplier '17' relevant to the age of the deceased, the loss of dependency was arrived at Rs.14,28,000/- (Rs.84,000/- x 17); a sum of Rs.15,000/- was awarded towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards consortium, a sum of Rs.1,00,000/- towards love and affection, thus, in total, a sum of Rs.15,98,000/- was awarded; as against the claim of Rs.12,00,000/-, the tribunal below awarded Rs.15,98,000/- following the judgement of the Supreme Court in NAGAPPA v. GURUDAYAL SINGH [2002 (8) SUPREME 497].
Regarding the liability of the respondent No.3, the tribunal below held that the respondent No.1, driver and the respondent No.2, owner, did not produce any driving license of the driver and that charge sheet was filed against the respondent No.1 under Sections 304-A, 337 IPC and Section 181 of the Act and the respondent No.2, owner of the vehicle, was charged under Section 3 read with Section 5 180 of the Act and thereby the respondent No.2 violated the terms of policy, as such, the respondent No.3 is not liable to compensate.
12. The respondent No.1 remained ex parte. The driving license was not produced by the respondent No.2. Thus, the respondent No.3/insurance company was excluded from payment of compensation. However, the respondent No.3 was directed to pay compensation and recover from the respondent Nos.1 and 2 as per the principle 'Pay and Recover'.
13. Mr. A. Rama Krishna Reddy, learned counsel for the appellant/insurance company, submitted that the notional income of the deceased ought to have been taken at Rs.4,500/- by following the decision of the Supreme Court in RAMCHANDRAPPA v. MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.1. The income of Rs.14,000/- fixed by the tribunal below is on the higher side; addition of income towards future prospects, as per the PRANAY SETHI's case (supra), would arise only if there is an established income but there is no established income in the instant case. The tribunal below could not have granted Rs.1,00,000/- towards love and affection, having granted Rs.70,000/- under the conventional heads. As held by the Supreme Court in THE NEW INDIAN ASSURANCE COMPANY LTD. v. SOMWATI [Civil Appeal No.3093 of 2020 arising out of SLP (C) No.2347 of 2019], the filial consortium was erroneously awarded by the tribunal below, as the said compensation would be granted only in case of minor children. In the absence of income proof, notional income ought to have been fixed at Rs.6,000/- by following the law laid down by the Supreme Court in several decisions. 1 AIR 2011 SC 2951 6
14. On the other hand, Mr. C. Mohan Prakash, learned counsel for the respondents No.1 and 2/claimants, submitted that the income of Rs.14,000/- per month fixed by the tribunal below is on the basis of skilled work of Mason done by the deceased and is reasonable. Even in the absence of any proof, the Supreme Court, other High Courts and this Court have determined the notional income for skilled worker. The deceased was very young, aged 26 years, and completed TTC course, as such, he was having good prospects of hike in the income in future. As per the Central Government Gazette notification dated 13.05.20210, the monthly minimum wages was fixed as Rs.8,000/-. He relied upon the following decisions in support of his contentions:
MRS. GYAN SUDHA MISRA v. V. GOPALA GOWDA2;
SHIVAKUMAR M. v. BMTC3; MAGMA GENERAL INSURANCE CO. LTD. v. NANU RAM4; TAHERA BEE @ MOHAMMED TAHEERA BEE v. APSRTC, HYD5; AFRIN BEGUM @ AFREEN v. PARVATHAM6;
DULANBEE MOHAMMED NIJAM RAMPURE v. RAMSINGH BUNDELA7 and NUNE SRINIVAS v. KAPA RAMAKRISHNA8.
15. There is no evidence on record regarding proof of income and also with regard to the nature of work done by the deceased at the time of the accident. A mason is a skilled person. However, while fixing the notional income, in the absence of any other proof, the Courts have to be guided by settled principles of law. No hard and fast rule can be laid down in that regard. The deceased was unmarried. The claimants and the deceased were residents of Pakeer Tanda, Pusugudem Village, Mulakalappali Mandal, Khammam District. It is 2 2014 (5) ALD 42 (SC) 3 (2017) 5 SCC 79 4 2018 ACJ 2782 5 2019 (4) ALD 505 6 2020 (6) ALD 619 7 2020 (6) ALD 81 8 2020 (5) ALD 453 7 difficult to accept the findings of the Court below in arriving at a notional income of Rs.10,000/- per month with 40% future prospects. The place of work is also an important factor that should have been considered by the Court below. The standard or minimum income being paid in a City will be higher compared to Towns. Similarly, the standard income in the Towns will be higher compared to standard income in the villages. Thus, applying the same standard of income to a worker in village, town or city would not be appropriate. The standard income in a city like Hyderabad for a skilled worker may be Rs.10,000/- but assessing the same income for the similar skilled worker in a village, will be on the higher side. The income in the village may be Rs.8,000/- or Rs.6,000/- or Rs.5,000/- per month. In the absence of proof as to the nature of work, employer and proof of number of working days, it would be unjust to fix the notional income of Rs.10,000/-.
16. Learned counsel for the respondent Nos.1 and 2/claimants relied on a gazette notification of minim wages fixed as Rs.8,000/- per month. However, that cannot be taken as a standard minimum wages in all circumstances. Moreover, the said gazette notification was not part of the evidence before the tribunal below. Hence, it cannot be relied upon by the claimants in this appeal.
17. Taking into consideration the decisions, referred to above, the notional income of the deceased is fixed at Rs.7,500/- per month with 40% future prospects, which works out to Rs.10,500/- viz. [(Rs.7,5000/- x 40% = Rs.3,000) + Rs.7,500/- = Rs.10,500/-] and annual income would work to Rs.1,26,000/-. After deducting 50% towards personal expenses, his contribution to the family would come to Rs.1,26,000/- - (Rs.1,26,000/- x 1/2 = Rs.63,000/-) = Rs.63,000/-. Applying the relevant multiplier '17' relevant to the age of the 8 deceased, the loss of dependency would come to Rs.63,000/- x 17 = Rs.10,71,000/-. The amounts of Rs.15,000/- each awarded under the head funeral expenses and loss of estate shall remain intact. The claimants are not entitled for Rs.1,00,000/- awarded towards love and affection and Rs.40,000/- awarded towards filial consortium as as held in SOMWATI's case (supra), since compensation was awarded under other heads. The compensation under the head filial consortium is awarded only in case of death of a child. The deceased was held to be 26 years, thus, the amount under the head filial consortium could not have been awarded. In all, the total compensation would come to Rs.10,71,000/- + Rs.15,000/- + Rs.15,000/- = Rs.11,01,000/-.
18. Hence, the claimants would be entitled to total compensation of Rs.11,01,000/- with proportionate costs. The award of the tribunal below is modified as indicated above. The award shall relate back to the date of decree and the compensation awarded shall carry the interest at the rate and from the date specified by the tribunal below.
In the result, the civil miscellaneous appeal is allowed in part. Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J September 9, 2021 DSK