HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No. 1818 of 2007
AND
M.A.C.M.A.No. 2152 of 2007
COMMON JUDGMENT:
As these appeals are against the self-same award, they are heard
together and are being disposed of by this common Judgment.
2. The M.A.C.M.A.No.1818 of 2007 has been filed by the
appellants/petitioners (for short 'the petitioners') seeking
enhancement of compensation and the M.A.C.M.A.No.2152 of 2007
has been filed by the appellant/insurer/2nd respondent (for short 'the
respondent') challenging the liability and quantum of compensation in the decree and award dated 28.06.2007 in O.P.No.76 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad.
3. Heard Sri. V. Atchuta Ram learned counsel for the petitioners and Sri. A.V.K.S. Prasad learned counsel for the respondent.
4. The petitioners are the parents of Sri A.Chandrashekar who died in the vehicular accident on 02.11.1998.
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5. For the sake of convenience, the parties are referred as per their array before the tribunal.
6. The case of the petitioners is that on 02.11.1998 at about 5.20 a.m. while Chandrashekar/deceased was proceeding along with his brother-in-law/A.Basvaraj in an auto bearing registration No.ABT- 6648 (for short 'the auto') to the MRF Factory, near the destination, one lorry came in the opposite direction in rash and negligent manner, dashed the auto and fled away. This accident resulted in his instantaneous death.
7. Thereupon, claiming loss of dependency, the petitioners filed the claim under Sections 163-A and 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act') seeking compensation of Rs.4,50,000/-. However, the Tribunal on considering the evidence, awarded Rs.50,000/- under no fault liability with interest and costs. Against the award, the petitioners preferred appeal vide CMA No.2693 of 2002 wherein vide orders dated 28.03.2007, this Court remanded the petition for fresh disposal by considering the claim as under Section 163 of the MV Act.
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8. Thereupon, after reconsideration, the tribunal passed the impugned award by observing that though the accident said to have occurred due to rash and negligent driving of the unknown lorry, the negligence on the part of the driver of the auto also cannot be excluded and awarded Rs.2,51,600/- as compensation with interest at 7.5% per annum.
9. In appeal, the petitioners contested that the tribunal had erroneously fixed the notional monthly income at Rs.2400/-, in spite of specific pleading and evidence of the PW-2 as to occupation and monthly income. Further the future prospects are not considered, the multiplier employed is inappropriate and meager amounts were awarded towards conventional heads. Thus, prayed for reconsideration and to award the just compensation.
10. In appeal, the 2nd respondent/insurer (hereinafter 'the insurer') would contend that the tribunal gave a perverse finding that the auto is also negligent which is neither the pleading nor proved by any evidence on record and even the police record does not indicate any negligent driving of the auto. Further the tribunal should have observed that the claim petition is under Section 163-A of the MV NTR,J 4 MACMA_1818_2007 & 2152_2007 Act would not come in aid in the absence of negligence on the part of the auto. Even otherwise, the auto shall be held liable only to the extent of its liability.
11. In these rival pleadings, the points arise for determination are:
i) Whether the tribunal is justified in fastening liability on the respondent to pay compensation?
ii) Whether the petitioners are entitled for enhancement of compensation?
12. The undisputed facts are that while Chandrashekar/deceased was proceeding in the auto, the accident occurred as the lorry hit the auto and it caused his death on the spot. It is also not in dispute that the deceased was third party to both the vehicles.
13. In regard to accident, the eyewitness/PW-2 in his evidence categorically stated that the accident was due to the rash and negligent driving of both the auto and the lorry and that if the auto driver had exercised diligent care, he could have averted the collision between the two vehicles. In cross examination, it is elicited that he lodged the police report/Ex.A-1 by mentioning that one unknown lorry driven in high speed, rashly and negligently, dashed their auto and he NTR,J 5 MACMA_1818_2007 & 2152_2007 did not state that the auto driver could have averted the accident, had he exercised the diligent care.
14. In this context, as the facts are clear that these two vehicles were involved in the accident and the deceased was travelling in one of them. The eye witness/P.W.2 has categorically spoken about the negligent driving on the part of driver of the auto. Merely, on the ground that the P.W.2 did not mention about the failure of due care by the driver of the auto in the first information stated, cannot be read as his testimony, cannot be brushed aside, moreso as he withstood the cross examination on this aspect.
15. Insofar as the third parties are concerned, the Hon'ble Supreme Court in T.O. Anthony v. Karvarnan and others1 held that the liability of composite negligence would make drivers, owners and the insurers of two vehicles jointly and severally liable. In such a case, the petitioners who are the dependants of the deceased/third party need not establish the extent of responsibility of each wrong doers separately nor it is necessary for the Court to determine the extent of liability of each wrong doer. Thus, the petitioners are entitled to sue 1 (2008) 3 SCC 748 NTR,J 6 MACMA_1818_2007 & 2152_2007 all or any of the vehicles for the loss and full amount of compensation as both the vehicles are jointly and severally liable for it. Thus, this court is of considered opinion that owing to the statutory duty to award just compensation, in the given circumstances adjudicating the claim petition under fault liability against one of the vehicles and assess the compensation is found appropriate.
16. In regard to compensation, the 1st petitioner as PW-1 deposed that his son/deceased aged 25 years and as the security guard in MRF Factory used to earn Rs.3,000/- per month as salary. No independent document is placed to prove the age. However, having regard to the entries in inquest report/Ex.A-2, post mortem report/Ex.A-3, the age of the deceased can be believed at 25 years. To prove the occupation and income, apart from the assertion of 1st petitioner as PW-1 and examined the PW-2, who deposed that the deceased was also working along with him as security guard in MRF Factory on a monthly salary of Rs.3,000/- and while proceeding to attend shift duty, the accident occurred. To substantiate the salary certificate/Ex.A-9 of the deceased was also placed on record. In cross examination except the suggestions of denials, no material has NTR,J 7 MACMA_1818_2007 & 2152_2007 been placed to consider otherwise. In addition, having regard to the probable earning capacity at the age of the deceased and the wages of manual labour at relevant time, the claim of monthly income of Rs.3,000/- is found reasonable. Accordingly, the monthly income of the deceased is taken at Rs.3,000/-.
17. The Hon'ble Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi and others.2 held that while computing the loss of dependency the future prospects of income of a self-employed or on a fixed salary shall also be included. As the deceased was below 40 years of age by the date of accident, 40% of the income shall be added towards future prospects. Further, as per the directions, in the authority of Sarla Verma & others v. Delhi Transport Corporation and another3, as the deceased was a bachelor, 50% of the income shall be deducted towards personal expenses. Thus, the annual contribution of the deceased to the petitioners would be Rs.25,200/-. Multiplying this value with the relevant multiplier prescribed to the age of deceased i.e. 18, the total 2 (2017) 16 SCC 860 3 (2009) 6 SCC 121 NTR,J 8 MACMA_1818_2007 & 2152_2007 would come to Rs.4,53,600/-. The petitioners are entitled to this amount under the head 'Loss of Dependency'.
18. In addition, the petitioners are also entitled for compensation under 'conventional heads' as prescribed in the dictum of Pranay Sethi (1 supra), i.e., Rs.15,000/- for funeral expenditure and Rs.15,000/- towards loss of Estate.
19. Further, the Hon'ble Supreme Court, by reiterating the comprehensive interpretation of 'consortium' given in the authority of Magma General Insurance co. Ltd. vs. Nanu Ram & ors.4 and in the authority between United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and others5 fortified that the amounts for loss of consortium shall be awarded to the parents 'filial consortium'. On this account Rs.40,000/- each is awarded to 1st and 2nd petitioners.
20. Therefore, the petitioners are eligible for the compensation in the following terms, viz., :
(i) Loss of dependency : Rs. 4,53,600/- 4 (2018) 18 SCC 130 5 (2020) 9 SCC 644 NTR,J 9 MACMA_1818_2007 & 2152_2007 (ii) Funeral expenses : Rs. 15,000/- (iii) Loss of estate : Rs. 15,000/- (iv) Filial Consortium to 1st & 2nd petitioners : Rs. 80,000/- --------------------------------- TOTAL: Rs. 5,63,600/- -------------------------------
20. The Section 168 of the Motor Vehicles Act casts statutory duty on the Court to award just and reasonable compensation. Further the Hon'ble Apex Court in Nagappa vs. Gurudayal Singh & others6, reinforced the power of the Courts in awarding reasonable compensation, even if it is higher than the claimed. Accordingly, the above arrived amount is awarded to the petitioners as just and reasonable compensation.
21. Resultantly, M.A.C.M.A.No.1818 of 2007 filed by the petitioners is allowed and the award is modified, as under:
(i) the petitioners are awarded compensation of Rs.5,63,600/- (Rupees five lakhs sixty three thousand and six hundred only) with interest at 7.5% per annum from the date of petition till realization;
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(2003) 2 SCC 274
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(ii) the 1st and 2nd respondents are jointly and severally liable
to pay the compensation;
(iii) the respondents are directed to deposit the awarded amount with interest within one (1) month from the date of receipt of a copy of this common judgment;
iv) on deposit of the enhanced amount with interest, the petitioners are permitted to withdraw entire amounts as apportioned by the Tribunal in the Award.
22. In the result, M.A.C.M.A.No.2152 of 2007 filed by the insurer/2nd respondent stands dismissed. There shall be no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
________________ N. TUKARAMJI, J Date:09.11.2022 ccm