THE HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI
M.A.C.M.A.Nos.3443 of 2011 and 1781 of 2012
COMMON JUDGMENT:
Aggrieved by the award dated 23.12.2010 in O.P.No.170 of
2009 passed by the Motor Vehicle Accident Claims Tribunal-cum-IX
Addl. District and Sessions Judge at Kamareddy, the insurance
company has filed MACMA No.3443 of 2011 questioning the
compensation and the claimants have filed MACMA No.1781 of 2012
seeking enhancement of the compensation.
2. Having heard Mr. A. Ramakrishna Reddy, learned counsel for
the insurance company and Mr. Azar Sravan Kumar, learned counsel
for the claimants, perused the entire material on record.
3. The claim petition was filed seeking compensation of
Rs.10,00,000/- and the court below has granted an amount of
Rs.6,18,000/-. It is submitted that the deceased was a driver as on
the date of accident and was earning an amount of Rs.10,000/- per
month. As per the claim petition, the deceased was aged 26 years. It
is stated that while the deceased was driving the Tata Sumo, the
offending car came at high speed in a rash and negligent manner and
dashed against the Tata Sumo, as a result of which, the deceased
received grievous injuries and died on the spot. The court below has
considered the monthly income of the deceased at Rs.4,500/- as
there is no evidence in that regard.
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MACMA_3443_2011 and
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4. Learned counsel appearing for the insurance company
submits that as per the claim petition, the deceased was aged 26
years as on the date of accident, but, however, the court below has
taken the age as 24 years. He submits that as the deceased was a
bachelor, half of the income has to be deducted towards personal
expenses, but, however, that exercise was also not done by the court
below.
5. According to the insurance company, there was contributory
negligence on the part of the deceased and they have also examined
RW1 who stated that Ex.B4 certified copy of scene of offence
panchanama shows that it is the deceased who was on the wrong
side of road, but, the court below has observed that on perusal of
Ex.B4 filed by the respondent shows that Tata Sumo was in the
middle of the road and offending car was also in the middle of the road and dashed against the Tata Sumo, thus, it supports the case of claimants.
6. Learned counsel for the insurance company submits that the evidence on record clearly shows that there was contributory negligence on the part of the deceased and the court below ought to have fixed the contributory negligence on the deceased.
7. Learned counsel for the claimants submits that the deceased was working as driver and the court below ought to have taken the LK, J MACMA_3443_2011 and 1781_2012 3 monthly income at Rs.10,000/- per month. It is submitted that as per the Post mortem report, his age was 24 years and the court below has rightly taken the age as 24 years. He submits that the compensation that was granted by the court below was not just and reasonable.
8. Then, coming to the contributory negligence, except filing the sketch of scene of offence, the insurance company has not adduced any other evidence. When the insurance company is claiming contributory negligence, the burden lies on them to prove the same. As they have failed to discharge the said burden, this court is not inclined to consider the submission of the learned counsel for the insurance company about the contributory negligence and the court below has rightly held that because of the rash and negligence driving of the driver of the offending vehicle, accident has taken place.
9. Then, coming to the age of the deceased, as per the Post mortem report, his age was 24 years and hence, the court below has rightly taken the age.
10. Coming to the income of the deceased, he was working as a driver and certified copy of his driving licence is marked as Ex.A7. As the accident has happened while he was driving, the court below ought to have taken at least Rs.6,000/- as his monthly income.
LK, J MACMA_3443_2011 and 1781_2012 4 Hence, this court is inclined to take the monthly income at Rs.6,000/-.
11. The Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Pranay Sethi1 held that while considering the compensation in cases of death, the future prospects of the self employed shall also be considered. Having regard to the age and occupation as self-employed, 40 percent of the income has to be included as future prospects. As per the decision of the Hon'ble Supreme Court in Smt.Sarla Varma v Delhi Transport Corporation2, 50% of the income has to be deducted towards personal expenses as the deceased was a bachelor. Therefore, the annual contribution of the deceased to the claimants comes to Rs.50,400/-. The relevant multiplier for the age of the deceased is '18'. Hence, the compensation under the head of loss of dependency comes to Rs.9,07,200/- (Rs.50,400/- X 18).
12. Further, under the conventional heads, the court below has granted meager amounts. Relying on the ratio of Pranay Sethi (supra), the claimants are granted Rs.33,000/- towards funeral expenses and loss of estate and Rs.44,000/- each to the 1st and 2nd claimants towards consortium.
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2017 (6) 170 (SC) 2 2009(6) SCC 121 LK, J MACMA_3443_2011 and 1781_2012 5
13. Therefore, the claimants are eligible for the compensation as below:
Head Compensation awarded
(1) Loss of dependency Rs.9,07,200
(2) Funeral expenses and Rs.33,000
Loss of Estate
(3) Loss of filial consortium Rs.88,000 for 1st and 2nd
appellants
(4) Legal expenses Rs.10,000
Total compensation awarded Rs.10,38,200/-
14. In the result, the Motor Accident Miscellaneous Appeal of the insurance company fails and the same is dismissed. However, the Motor Accident Miscellaneous Appeal of the claimants is allowed enhancing the compensation amount awarded by the court below from Rs.6,18,000/- to Rs.10,38,200/- as hereunder:
(a) The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization.
(b) The claimants shall pay the court fee on the enhanced amount of compensation.
(c) The insurance company shall deposit the amount within a period of (8) weeks from the date of receipt of copy of judgment. On such deposit, claimants are permitted to withdraw entire amount without furnishing the security.
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(d) Amounts shall be apportioned in terms of the ratio decided by the court below in the Award. Pending miscellaneous petitions, if any, shall stand closed.
___________________________ LALITHA KANNEGANTI, J Date: 18.04.2023 gvl