HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.No.461 of 2015
JUDGMENT:
Aggrieved by the order and decree, dated 06.02.2015 passed in M.V.O.P.No.99 of 201 on the file of the Motor Accidents Claims Tribunal (V Additional District Judge) at Kothagudem (for short "the Tribunal"), the appellants/claimants preferred the present appeal.
2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.7,00,000/- for the death of one Ballem Kanthaiah @ Kantha Rao (hereinafter referred to as "the deceased"), who died in a motor vehicle accident that took place on 19.05.2012. It is stated that on 19.05.2012 while the deceased was proceeding on his motor bike No.AP 20 M 1281 towards Enkoor and when he reached near Saibaba Temple Road, Julurupadu, the deceased hit the lorry bearing No.AP 16 TV 2147 which was parked in a wrong direction without any precautionary measures i.e., without any parking indicator lights, due to which the deceased 2 GSD, J Macma_461_2015 sustained multiple injuries on his head and other parts of the body. Immediately after the accident, the deceased was shifted to Government Area Hospital, where he succumbed to injuries. It is stated that prior to the accident, the deceased was hale and healthy; he was an agriculturist having Ac.5.00 of land and was earning Rs.1,50,000/- per annum by raising commercial crops like cotton and chilly. On account of death of the deceased, the claimants lost their source of income. The 1st respondent being the owner of the vehicle and the 2nd respondent being insurer of the Lorry are jointly and severally liable to pay compensation.
4. The 1st respondent remained ex parte. The 2nd respondent filed counter denying all the averments made in the claim-petition including the manner in which the accident took place, age, avocation and income of the deceased. It is also stated that there was no negligence on the part of the driver of the lorry. It is further contended that the insurance company is not liable to pay the compensation for non-joinder of necessary parties i.e., insured and insurer of the motor bike.
5. Basing on the above pleadings, the Tribunal framed the following issues:
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1) Whether the accident had occurred due to rash and negligent driving by the driver of Lorry bearing No.AP 16 TV 2147?
2) Whether the petitioners are entitled for compensation? If so, to what amount and from of which respondents?
3) To what relief?
6. During trial, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A3 were marked. On behalf of the respondents R.W.1 was examined and Ex.B1 was marked.
7. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the negligent act of the driver of the Lorry and awarded total compensation of Rs.5,21,000/- with interest @ 7.5% per annum payable the 1st respondent only while dismissing the claim against the Insurance Company. Dissatisfied with the quantum of compensation and also exonerating the Insurance Company from its liability, the claimants filed the present appeal, seeking enhancement of the same.
8. Heard both sides and perused the record.
9. Learned Counsel for the claimants would submit that the Tribunal erred in exonerating the Insurance Company from its 4 GSD, J Macma_461_2015 liability. It is also submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are also entitled to the future prospects and also Rs.77,000/- under conventional heads.
10. Learned Standing Counsel for the Insurance Company would submit that the accident occurred only due to the negligence of the deceased.
11. Insofar as the manner in which the accident took place is concerned, a perusal of the impugned judgment would show that the Tribunal has framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by the driver of the Lorry bearing No.AP 16 TV 2147, to which the Tribunal after considering the evidence of P.W.2 coupled with the documentary evidence, has categorically observed that the accident has occurred due to the rash and negligent act of the driver of the Lorry and has answered in favour of the claimants and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to 1 2017 ACJ 2700 5 GSD, J Macma_461_2015 the rash and negligent driving of the driver of lorry bearing No.AP 16 TV 2147.
12. Insofar as the quantum of compensation is concerned, it is not in dispute that the deceased was an agriculturist. In Latha Wadhwa vs. State of Bihar2 the Apex Court held that even there is no proof of income and earnings, the income can be reasonably estimated. Since the deceased was aged about 36 years and he was able bodied person and as per the material available on record, the deceased was an agriculturist, this Court inclined to take the income of the deceased at Rs.4,500/- per month. Apart from the same, the claimants are entitled to addition of 40% towards future prospects, as per the decision of the Hon'ble Supreme Court in Pranay Sethi (supra). Therefore, monthly income of the deceased comes to Rs.6,300/- (Rs.4,500/- + Rs.1800/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation3 as the dependents are four in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be 2 (2001) 8 SCC 197 3 2009 ACJ 1298 (SC) 6 GSD, J Macma_461_2015 Rs.4,725/- per month. As per Ex.A4-P.M.E. Report, the deceased was aged about 36 years at the time of the accident, the appropriate multiplier is '15' as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier '15', the total loss of dependency would be Rs.4,725/- x 12 x 15 = Rs.8,50,500.00. The claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's case (1 supra). Thus, in all the claimants are entitled to Rs.9,27,500/-.
13. Coming to the aspect of liability of payment of compensation, the contention of the learned Standing Counsel for the Insurance Company is that the driver of the Lorry was not having valid driving licence at the time of the accident. As seen from the material available on record the Insurance Company neither examined the driver of the Lorry nor produced the driving licence of the driver of the Lorry. Apart from that, the accident occurred due to the negligent act of the driver of the lorry in parking the vehicle in the middle of the road without taking any precautions. Therefore, the Tribunal ought not to have exonerated the insurance company from its liability to pay the compensation as the Insurance Company failed to examine the driver of the lorry 7 GSD, J Macma_461_2015 or produce the driving licence of the driver of the offending vehicle.
14. At this stage, the learned Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.7,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
15. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another4, the Apex Court while referring to Nagappa Vs. Gurudayal Singh5 held as under:
"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident."
16. In view of the Judgments of the Apex Court referred to above, the claimants are entitled to get more amount than what 4 (2011) 10 SCC 756 5 2003 ACJ 12 (SC) 8 GSD, J Macma_461_2015 has been claimed. Further, the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimants is a paramount consideration the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent.
17. Accordingly, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.5,21,000/- to Rs.9,27,500/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of the order passed by the Tribunal till the date of realisation. Both the respondents are jointly and severally liable to pay the said compensation. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. However, the claimants are directed to pay Deficit Court Fee on the enhanced amount. There shall be no order as to costs.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_________________ JUSTICE G. SRI DEVI 26.08.2022 gkv