HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.1940 of 2014
JUDGMENT:
Not being satisfied with the quantum of compensation awarded by the Chairman, Motor Accident Claims Tribunal- cum-II Additional Chief Judge, City Civil Courts, Hyderabad (for short "the Tribunal") in O.P. No.517 of 2010 dated 10.05.2013, the present appeal is filed by the claimants.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. The claimants filed a petition under Section 163-A of the Motor Vehicles Act, 1988 against the respondents 1 and 2, claiming compensation of Rs.7,00,000/- for the death of one Mohd. Rasool Khan (hereinafter referred to as "the deceased"), who died in the accident that occurred on 08.10.2009. According to the petitioners, on 08-10-2009 at about 4-00 p.m. the deceased Mohd. Rasool Khan was proceeding in a jeep bearing No. AP 22 E 4179 from Thandur side towards Mailwar Village and when he reached Kodangal-Thandur road near Srinivas Rice Mill, one lorry bearing No. MH 12 EQ 5457 being 2 driven by its driver came in a rash and negligent manner with high speed and dashed the jeep, due to which, Rasool Khan received grievous injuries and immediately he was shifted to the Government Hospital, Thandur and from there while he was being shifted to Osmania General Hospital for better treatment, on the way he died. According to the claimants, the deceased was doing business in selling papads and earning Rs.5,000/- per month and used to contribute the same for the welfare and maintenance of his family. Thus, the petitioners are claiming compensation of Rs.7,00,000/- under various heads.
4. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner in which the accident occurred, age, avocation and income of the deceased. It is further contended that the accident took place due to the rash and negligent driving of the jeep and that the claim is highly excessive.
5. In view of the above pleadings, the Tribunal raised the following issues:
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1) Whether the death of Mohd. Rasool Khan was caused due to the accident arising out of the use of lorry bearing No. MH 12 EQ 5457?
2) Whether the petitioners are entitled for compensation, if so, to what amount and from whom?
3) To what relief?
6. In order to prove the issues, on behalf of the petitioners, PWs.1 to 5 were examined and got marked Exs.A-1 to A-7. On behalf of respondent No.2, no witnesses were examined, however, copy of insurance policy was marked as Ex.B1.
7. On considering the oral and documentary evidence on record, the Tribunal has awarded an amount of Rs.5,21,250/- towards compensation to the appellants-claimants against the respondent Nos.1 and 2 jointly and severally, along with costs and interest @ 7.5% per annum from the date of petition till the date of deposit.
8. Heard the learned counsel for the appellants-claimants and the learned Standing Counsel for the second respondent- Insurance Company. Perused the material available on record. 4
9. The learned counsel for the appellants-claimants has submitted that although the claimants established the fact that the death of the deceased-Mohd. Rasool Khan was caused in a motor accident, the Tribunal awarded meager amount.
10. The learned Standing Counsel appearing on behalf of respondent No.2-Insurance Company sought to sustain the impugned award of the Tribunal contending that the Tribunal after considering all aspects has awarded reasonable compensation and the same needs no interference by this Court.
11. Here it is pertinent to state that originally the claim petition filed under Section 163-A of Motor Vehicles Act 1989. But the tribunal considering the evidence available on record decided the issue in favour of the petitioners. In Bhupati Prameela and others vs. Superintendent of Police, Vizianagaram and others1, the Division Bench of this Court held as under:
" Thus it appears that it is the duty of the Courts to do justice to the parties and while doing justice, if the technicalities come in the way, much importance need not be given to these technicalities because, ultimately, justice has to be done to the parties. Moreover, when sub- section(4) of Section 166 of the Act envisages that the Tribunal shall treat 1 (2011) 10 SCC 756 5 any report of accidents forwarded to it under sub-section (6) of Section 158 of the Act as an application for compensation under the Act, there is nothing wrong in treating an application filed under Section 163-A of the Act as an application under Section 166 of the Act. In view of the above and considering the object of the Act, we are of the view that the petition filed under Section 163-A of the Act can be treated as an application under Section 166 of the Act."
In view of the above Judgment of the Division Bench of this Court, the petition filed under Section 163-A of the Motor Vehicles Act can be treated as an application under Section 166 of the Motor Vehicles Act and the Tribunal though framed the issue under Section 163-A of Motor Vehicles Act rightly came to the conclusion that the accident occurred due to the rash and negligent driving of the lorry by its driver and accordingly settled the issue in favour of the appellants/petitioners.
12. Coming to the quantum of compensation, according to the petitioners, the deceased was doing papads business and getting Rs.5,000/- per month and contributing the same to his family. In support of their contention, one Abdul Waheed was examined as PW-3 who deposed that he and the deceased were doing business in selling Papads and the deceased was getting Rs.5,000/- per month. However, as the petitioners did not produce any evidence except the evidence of PWs.1 and 3 to 6 prove the income of the deceased, the Tribunal had taken the income of the deceased as Rs.3,750/- per month, which is very less. Hence, this Court is inclined to take the income of the deceased at Rs.4,500/- per month. Further, future prospectus was not considered by the Tribunal. Thus, in light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others2, the claimant is entitled to future prospects @ 40% of his income, since the deceased was aged 40 years. Then it comes to Rs.6,300/- (4,500 + 1,800 = 6,300/-). 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 six in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.4,725/- per month (6,300 - 1,575 = 4,725/-). Since the deceased was 40 years by 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 = 2 2017 ACJ 2700 3 2009 ACJ 1298 (SC) 7 Rs.8,50,500/-. In addition thereto, the claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's (supra). Further the petitioner Nos.4 to 6 who are the minor children are also entitled to filial consortium at Rs.40,000/- each as per the Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram4. Thus, in all the claimants are entitled to Rs.10,47,500/-.
13. With regard to the liability, the tribunal rightly held that since the accident occurred due to the rash and negligent driving of the driver of the offending lorry, which was insured with the respondent No.2-Insurance Company and the policy was in force as on the date of accident, respondent Nos.1 and 2 are jointly and severally liable to pay compensation.
14. In the result, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.5,21,250/- to Rs.10,47,500/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization, to be payable by the respondent Nos.1 and 2 jointly and severally. The amount shall be deposited 4 2018 Law Suit (SC) 904 8 within a period of one month from the date of receipt of a copy of this order. The enhanced amount shall be apportioned in the ratio as ordered by the Tribunal. The claimants shall pay the deficit Court fee on the enhanced compensation, since the initial claim was for Rs.7,00,000/-. On such payment of court fee only, the claimants are entitled to withdraw the amount. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________________ SMT.M.G.PRIYADARSINI,J 26.12.2022 pgp