THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
M.A.C.M.A.No.934 OF 2016
JUDGMENT:
This appeal is directed against the award dated 15.11.2010 in O.P.No.80 of 2006, on the file of the Motor Accidents Claims Tribunal-cum-III-Additional District Judge (FTC), Nizamabad (for short 'the Tribunal), wherein the said claim application filed by respondent Nos.1 and 2 herein seeking compensation was allowed-in-part, awarding Rs.3,91,400/- with interest at 6% per annum from the date of petition.
2. Heard both sides. Perused the material on record.
3. Respondent Nos.1 and 2 herein filed claim application seeking compensation of Rs.5,00,000/- on account of death of the deceased Sk.Ghouse in a motor vehicle accident that occurred on 10.04.2004 at about 04:45 p.m. According to the claimants, on that day, the deceased was driving motor cycle bearing No. AP 15 TR B 4860 from Kamareddy towards Nizamabad on the side of the road and when he reached Mallupet Village outskirts on Hyderabad
- Nagpur road on NH7, one Maruthi car bearing No. AP 9 AT 5369 driven by its driver in a rash and negligent manner at high speed 2 came in the opposite direction and dashed the motor cycle and the deceased fell down and the front wheel of maruti car ran over the deceased. As a result of the accident, the deceased received head injuries, skull fracture and injuries to right hand, right leg and right shoulder. He was shifted to Government Hospital, Kamareddy where he died on the same day. Police, Sadashivnagar registered a case in Cr.No.41 of 2004 against the owner of the maruti car. According to the claimants, the deceased was a bachelor, aged 24 years and were dependant on the earnings of the deceased. He was a cook and doing fruits and vegetable business, earning Rs.6,000/- per month.
4. The appellant herein, who is insurer of maruti car and respondent No.4, who is insurer of motor cycle, filed separate written statements opposing the claim and denying their liability to pay the compensation.
5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the maruti car by its driver. The Tribunal further held that the claimant was entitled for a total compensation 3 of Rs.3,91,400/-. Accordingly, an award was passed for the said amount with interest at 6% per annum. Aggrieved by the same, the insurer of the maruti car filed the present appeal.
6. The learned counsel for the appellant-insurer would contend that the Tribunal has not taken into consideration that the deceased alone was responsible for the accident; that the Tribunal had wrongly considered the age of the deceased while applying the multiplier and it ought to have taken the age of the mother, as he was a bachelor. The Tribunal ought to have deducted one half of the income deceased towards personal expenses, instead of one third, as he was a bachelor.
7. After careful consideration of the entire material on record, the Tribunal had given a finding to the effect that the rider of the motorcycle died in the accident due to the rash and negligent driving of the maruti car by its driver. P.W.3, who is eye-witness to the accident, categorically deposed that the accident occurred due to rash and negligent driving of the maruti car only. The appellant-insurer had not examined the driver of the maruti car to prove that at time of accident, the deceased drove the motorcycle in a rash and negligent manner and also to show that there was 4 no negligence on the part of the driver of the maruti car. The Tribunal, basing on the oral and documentary evidence, held that the accident occurred due to the rash and negligent driving of the maruti car. Therefore, the contention of learned counsel for the appellant that there was contributory negligence on the part of the deceased while riding the motorcycle cannot be accepted.
8. The Tribunal had calculated the income of the deceased at Rs.2400/- per month and after deducting one-third towards his personal expenses, arrived at Rs.1,600/- per month and Rs.19,200/- per annum (Rs.1,600/- x 12). After applying the multiplier '17', awarded an amount of Rs.3,26,400/- (Rs.19,200/- x 17). Further, in the case on hand, the notional income of the deceased was fixed at Rs.2,400/- per month. It is true, as contended by learned counsel for the appellant, that the deceased was a bachelor and 50% of the actual income should be deducted towards personal expenses of the deceased. If the same is taken into consideration, as per the principle laid down by the Hon'ble Apex Court in SARLA VARMA v. DELHI TRANSPORT CORPORATION1, it comes to Rs.1,200/- (Rs.2,400 x 1/2) and Rs.14,400/- per annum. The 1 2009(6) SCC 121 5 deceased was aged 24 years at the time of accident and the appropriate multiplier applicable, as per the above said decision, is '18'. If is the same is applied, it comes to Rs.2,59,200/- (Rs.14,400/- x 18) towards loss of dependency. If an additional 40% is added to the income of the deceased as per the decision of the Hon'ble Apex Court in NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS2 towards future prospects, the same works out to Rs.3,62,880/- (Rs.2,59,200/- + Rs.1,03,680/- i.e., 40% of Rs.2,59,200/-). Respondents 1 and 2, who are the parents of the deceased, are entitled to Rs.40,000/- each under the head parental consortium as per the decision of the Hon'ble Apex Court in MAGMA GENERAL INSURANCE COMPANY LTD. v. NANU RAM ALIAS CHUHRU RAM AND OTHERS3 and Rs.15,000/-
towards loss of estate, Rs.15,000/- towards funeral expenses and Rs.5,000/- towards transportation expenses.
9. In the circumstances, the claimants are entitled for a total compensation of Rs.4,77,880/- (Rs.3,62,880/- + Rs.80,000/- + 2 2017 ACJ 2700 3 (2018) 18 SCC 130 6 Rs.15,000/-, Rs.1,5000/- + Rs.5,000/-). However, the Tribunal awarded Rs.3,91,400/-. In view of the decision of the RANJANA PRAKASH AND OTHERS v. THE DIVISIONAL MANAGER AND ANOTHER4, this court cannot increase the compensation in an appeal filed by the owner/insurer. Undisputedly, the claimants did not independently challenge the award of compensation. In an appeal filed by the owner/insurer, the claimants will not be entitled to seek enhancement of compensation by urging any new ground, in the absence of any appeal or cross-objections. Therefore, in the given facts and circumstances, the compensation awarded by the Tribunal is just and reasonable and needs no interference.
10. In the result, the appeal is dismissed. There shall be no order as to costs.
11. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 11.10.2022 Lrkm 4 (2011) 14 SCC 639