HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.2370 of 2008 and 802 of 2019
COMMON JUDGMENT:
These two appeals are being disposed of by this
common judgment since M.A.C.M.A.No.2370 of 2008 filed
by the United India Insurance Company Limited
challenging the quantum of compensation and
M.A.C.M.A.No.802 of 2019 filed by the claimants seeking
enhancement of compensation, are directed against the
very same award and decree, dated 19.06.2008 made in
O.P.No.1634 of 2006 on the file of the Special Judge for
Economic Offences-cum-VIII Additional Metropolitan
Sessions Judge-cum-XXII Additional Chief Judge,
Hyderabad (for short "the Tribunal").
2. For the sake of convenience, hereinafter the parties
will be referred to as per their array before the Tribunal.
3. The facts, in issue, are as under:
The claimants filed petition under Section 163-A of
the Motor Vehicles Act, 1988 against the respondent Nos.1
to 6, claiming compensation of Rs.5,00,000/- for the death 2 of one Mohd.Sabir (hereinafter referred to as "the deceased"), who died in the accident that occurred on 28.02.2006. According to the claimants, on 28-02-2006 at about 15-00 hours the deceased was proceeding on his cycle from Charminar towards Falaknuma and when he reached Engine bowli road, one APSRTC bus bearing No. AP 11 V 8861 came from his back side in rash and negligent manner with high speed and dashed the deceased from back side. Due to which the deceased fell down and came under the wheels of the bus and sustained grievous injuries. Immediately he was shifted to Osmania General Hospital, where he died. According to the claimants, the deceased was aged about 35 years and working as a shoe maker in Regal Foot Wear Manufacturer at Lad Bazar and drawing salary of Rs.4,500/- per month. Therefore, they filed the claim petition against the respondent Nos.1 to 4, who are the owner, insurer and hirer respectively seeking compensation of Rs.5,00,000/- under different heads.
3
4. Before the Tribunal, respondent Nos.1,3 and 4 remained ex parte; Respondent No.2 filed counter disputing the manner of accident, age, avocation and income of the deceased. It is further contended that the compensation claimed by the petitioners is very excessive and therefore, prays to dismiss the petition.
5. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident took place on 28-02-
2006 at about 15-00 hours due to rash and negligent driving of Bus bearing No. AP.11.V.8861 by its driver?
2. Whether the petitioners are entitled for compensation and if so, to what amount and from whom?
3. To what relief?
6. In order to prove the issues, PWs.1 to 3 were examined and Exs.A1 to A9 were marked on behalf of the petitioners. On behalf of the respondents, RW-1 was examined and Ex.B1 was marked.
7. After considering the oral and documentary evidence available on record, the Tribunal held that the accident 4 occurred due to the rash and negligent driving of the RTC bus bearing No. AP 11 V 8861 and awarded the total compensation of Rs.1,75,000/- to be paid by the respondent Nos.1 to 4 with proportionate costs and interest @ 6% per annum from the date of filing of the petition till realization. Challenging the same, the present Appeals are filed by the Insurance Company and the claimants respectively.
8. Heard both the learned counsel and perused the material available on record.
9. The main contention raised by the learned Standing Counsel for the respondent No.2-Insurance Company is that the Tribunal erred in fastening the liability on the appellant-Insurance Company by passing the award for Rs.1,75,000/- against both the owners, insurer and Andhra Pradesh State Road Transport Corporation and that since the offending vehicle was hired with Andhra Pradesh State Road Transport Corporation, they alone are liable to pay compensation and therefore, prays to exonerate them from paying the compensation. 5
10. Per contra, learned Counsel for the appellants has submitted that the Tribunal erred in taking the income of the deceased at Rs.15,000/- per annum without considering the fact that the deceased was a shoe maker and getting salary of Rs.4,500/- per month and not granted the compensation under the conventional heads.
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 without assigning any reason rightly framed issue under Section 166 of Motor Vehicles Act and decided the issue in favour of the petitioners. However, based on the evidence on record, the Court can consider Section 166 instead of Section 163-A of Motor Vehicles Act. 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 any report of accidents forwarded to it under 1 (2011) 10 SCC 756 6 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. Thus, the tribunal considering the evidence of PWs.1 and 2 coupled with the documentary evidence on record, has rightly held that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.
12. With regard to the quantum of compensation, the claimants through the evidence of PW-3 who is none other than the owner of Regal Footwear Manufacturer established that the deceased was a shoe maker and earning Rs.4,500/- per month. However, the Tribunal had taken the income of the deceased at Rs.15,000/- per annum, which is very less. Therefore, considering the age and avocation of the deceased, this Court is inclined to take the income of the deceased at Rs.4,500/-. Further the 7 claimants are entitled to 40% towards future prospects to the established income, as per the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others2. Therefore, future monthly income of the deceased comes to Rs.6,300/- (Rs.4,500/- + Rs.1,800/- being 40% thereof). From this, 1/5th is to be deducted towards personal and living expenses of the deceased following Sarla Verma v. Delhi Transport Corporation3 as the deceased left as many as eight persons as the dependants. Then the contribution of the deceased would be Rs.5,040/- (6,300 - 1,260 = 5,040) per month. 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.5,040/- x 12 x 15 = Rs.9,07,200/-. 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.2 to 2 2017 ACJ 2700 3 2009 ACJ 1298 (SC) 8 6 are also entitled to filial consortium at Rs.50,000/- each as per the Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram4. Thus, in all the claimants are entitled to Rs.12,34,200/-.
13. With regard to the liability, as stated above, the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, which was hired with respondent Nos.3 and 4-Corporation and insured with the respondent No.2-Insurance Company and the policy was in force as on the date of accident, respondent Nos.1 to 4 are jointly and severally liable to pay compensation.
14. With regard to the rate of interest, the Tribunal granted interest @ 6% per annum, which is very less. Therefore, the rate of interest is enhanced to 7.5% per annum.
15. Accordingly, M.A.C.M.A.No.2370 of 2008 filed by the Insurance Company is dismissed and M.A.C.M.A.No.802 of 2019 filed by the claimants is allowed by enhancing the compensation amount awarded by the Tribunal from 4 2018 Law Suit (SC) 904 9 Rs.1,75,000/- to Rs.12,34,200/-. The enhanced amount shall carry interest at 7.5% per annum from the date of petition till the date of realization, payable by respondent Nos.1 to 4 jointly and severally. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. The claimants shall pay the deficit court fee and on such deposit of court fee only, the claimants are entitled to withdraw the amount without furnishing any security. Time to deposit the compensation is one month from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________ M.G.PRIYADARSINI,J 22.11.2022 pgp