1 RRN,J
MACMA No.2870 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2870 OF 2014
JUDGMENT:
This appeal is filed under Section 173 of the Motor Vehicles Act, aggrieved by the order and decree, dated 31.08.2013, passed in M.V.O.P.No.1055 of 2010 on the file of the Principal Motor Accident Claims Tribunal (for short "the Tribunal").
2. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the Tribunal.
3. Brief facts of the case are that the petitioners filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.4,00,000/- on account of the death of their son Enugu Raju (hereinafter referred to as 'deceased'.) It is stated that on 12.07.2009, the deceased boarded the Trailer of a Tractor bearing No.AP-20-Y-6538 and AP-20-Y T/R 6425 (offending vehicle) to bring diesel from Kampalli Village and on the way, between 3.00 and 4.00 p.m, 2 RRN,J M.A.C.M.A.No.2870 of 2014 when the offending vehicle reached the outskirts of Bheeliyanaik Thanda, a hamlet of Kampally, its driver has driven the same in a rash and negligent manner, at high speed and lost control over the steering of the Tractor, as a result of which, the offending vehicle overturned, due to which, the deceased sustained severe fracture injuries and died in the midway to hospital. The deceased was aged 21 years at the time of the accident, used to work as a labourer- cum-helper and earned Rs.5.000/- per month. Due to loss of dependency, the parents of the deceased filed the claim petition.
4. Respondent No.1 was set ex parte and respondent No.2 filed counter denying the allegations in the petition.
5. To prove their case, the petitioners got examined PWs.1 and 2 and marked Ex.A1 to A6. The 2nd respondent got examined RWs.1 and 2 and got marked Exs. B1 and B2. Ex. X1 and X2 are marked separately.
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6. On appreciation of the evidence on record, the Tribunal found that the petitioners were entitled to Rs.2,67,000/- towards compensation and only the 1st respondent/owner of the Tractor was made liable to pay the same. The 2nd respondent/Insurance Company was exonerated from liability on the grounds that the deceased was an unauthorised/gratuitous passenger and the vehicle in which he was commuting, was solely for the purpose of carrying goods, meaning thereby that the claim petition was allowed in part only against the 1st respondent and dismissed against the 2nd respondent. Aggrieved by the same, the present appeal is filed by the petitioners.
7. Heard learned Counsel for the petitioner and learned Counsel for the 2nd respondent/Insurance Company. There is no appearance on behalf of the 1st respondent. Perused the record.
8. Learned counsel for the petitioners submitted that the Tribunal erred in dismissing the claim petition against the 2nd respondent/Insurance Company. He further contended that 4 RRN,J M.A.C.M.A.No.2870 of 2014 the Tribunal ought to have at least ordered for 'pay and recovery' by the 2nd respondent instead of completely exempting the latter from liability. He also contended that the petitioners are entitled for just compensation and also compensation under the conventional heads as per the decision of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others1.
9. On the other hand, learned counsel for the 2nd respondent/Insurance Company submitted that the Tribunal was justified in dismissing the claim against the 2nd respondent and reiterated the stand taken before the Tribunal. He further contended that the present case is not a fit case where 'pay and recovery' can be ordered. Accordingly, prayed to dismiss the appeal.
10. Having considered the rival submissions of both parties, this Court is of the view that the Tribunal was justified in dismissing the claim petition against the 2nd respondent/Insurance Company as the deceased was an 1 (2017) 16 SCC 680.
5 RRN,J M.A.C.M.A.No.2870 of 2014 unauthorised/gratuitous passenger and the vehicle in which he was commuting, was solely for the purpose of carrying goods and the Tribunal has cautiously examined and discussed a number of judgments which supported the decision of the Tribunal.
11. Learned counsel for the petitioners relied upon the decision of the Hon'ble Supreme Court in Anu Bhanvara vs. IFFCO Tokio General Insurance Company2 wherein, even in the case of compensation awarded involving in injuries/death of a gratuitous passenger in a goods vehicle, the compensation was payable by the insurer and was at liberty to recover the same from the owner of the vehicle. After thoroughly going through the above decision, this Court is of the view that the same cannot be applied to the present case in view of the following observation of the Apex Court:
"11. ...... The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of 2 (2020) 20 SCC 632.
6 RRN,J M.A.C.M.A.No.2870 of 2014 this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case."
The facts in the present case differ with that of the above cited case. Hence, the argument of the petitioners cannot be considered and the appeal is liable to be dismissed against the 2nd respondent/Insurance Company.
12. This Court would now deal with the quantum of the awarded compensation. The petitioners were granted Rs.2,67,000/- and the same is interfered with in the following manner:
Head Amount arrived at by Amount arrived at the Tribunal by this Court Salary of deceased Rs.3,000/- p.m Rs.3,000/- p.m Annual income after Rs.18,000/- Rs.18,000/-
deducting 50% as (Rs.3,000 x 12 - 50%) (Rs.3,000 x 12 - 50%) deceased was a bachelor Future prospects Nil Rs.7,200/- (40% to be taken as per Pranay Sethi) Age Multiplier "14" (Mother's age "18" (As per Sarla taken as per Trilok Verma) Chandra) Loss of dependency Rs.2,52,000/- Rs.4,53,600/-
(18,000/- x 14) (Rs.25,200/- x 18)
excluding future including future
prospects. prospects
Loss of Estate Rs.10,000/- Rs.16,500/-
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M.A.C.M.A.No.2870 of 2014
(Rs.15,000/- + 10%
as per Pranay Sethi)
Funeral Expenses Rs.5,000/- Rs.16,500/-
(Rs.15,000/- + 10%
as per Pranay Sethi)
Loss of Filial Consortium Nil Rs.80,000/-
(Rs.40,000/- to each
petitioner as per
Nanu Ram alias
Chuhru Ram)
Total Rs.2,67,000/- Rs.5,66,600/-
13. Though the claimed amount is Rs.4,00,000/-, invoking the principle of just compensation, and in view of the law laid down by the Hon'ble Supreme Court in Rajesh vs. Rajbir Singh3, this Court is empowered to grant compensation beyond the claimed amount.
14. Accordingly, the M.A.C.M.A. is disposed of by enhancing the compensation amount from Rs.2,67,000/- to Rs.5,66,600/- (Rupees Five Lakh Sixty Six Thousand and six hundred Only) with interest at 7.5% p.a from the date of petition till the date of realization which is payable only by the 1st respondent/owner of the vehicle. This M.A.C.M.A is dismissed against the 2nd respondent/Insurance Company.
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MANU/SC/0480/2013
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M.A.C.M.A.No.2870 of 2014
The 1st respondent shall deposit the said compensation amount together with interest and costs within a period of two months from the date of receipt of a copy of this judgment. The petitioners are directed to pay the deficit court fee within one month from the date of receipt of a copy of this judgment. In respect of apportionment, the order of the Tribunal holds good. There shall be no order as to costs.
As a sequel of which, miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 1st day of March, 2023 BDR