THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A No.2398 OF 2013
&
M.A.C.M.A No.38 OF 2014
COMMON JUDGMENT:
Both these Motor Accidents Civil Miscellaneous Appeals
are being disposed of by way of this Common Judgment as
both these appeals are directed against the Order and decree
dt.14.06.2013 in M.V.O.P No.1514 of 2011 passed by the
Chairman, Motor Vehicle Accidents Claims Tribunal-cum-XIII
Additional Chief Judge (Fast Track Court), City Civil Court,
Hyderabad (Hereinafter referred to as 'the Tribunal').
2. For convenience, the parties are hereinafter
referred to as they are arrayed before the Tribunal.
3. M.A.C.M.A No.2398 of 2013 is filed by the 2nd
respondent/Insurance Company challenging the legality of the
impugned order, and M.A.C.M.A No.38 of 2014 is filed by the appellants/petitioners challenging the quantum of the compensation.
4. Brief facts of the case are that the petitioners are parents of their deceased son namely B. Akhil (hereinafter 2 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014 referred to as "deceased"). They filed a claim petition claiming compensation of Rs.3,00,000/- on account of the death of their deceased son in a motor vehicle accident that occurred on 14.04.2011, stating that on that day at about 4.00 a.m., while the 1st petitioner, deceased and other family members and her relatives were returning to their native place in a Maruthi Omni Van bearing No.AP-25TV-1067 from Shamshabad Airport and when they reached near Ravi Horticulture Farm, Kallakal village of Toopran Mandal, at that time a lorry bearing No.AP-23T-3123 driven by its driver in a rash and negligent manner, dashed the Maruthi Van. As a result, S. Ramesh and S. Gangavva died on the spot and the deceased sustained grievous injuries. Immediately after the accident, the deceased was shifted to Government Hospital, Gajwel, and while undergoing treatment, he died about 6.30 a.m. on the same day. They further stated that the deceased was aged 15 years. Based on the complaint, the Police Toopran registered a case in Crime No.78 of 2011 under Sections 304-A and 337 IPC against the driver of the said Lorry. Hence, the claim petition.
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COMMON JUDGMENT IN
MACMA No.2398 of 2013 & 38 OF 2014
5. Respondent No.1 remained ex parte before the Tribunal. Respondent No. 2 filed a counter denying the averments of the petition and prayed to dismiss the petition.
6. On behalf of the petitioners, 1st petitioner herself was examined as PW.1 and got marked Exs.A1 to A6. On behalf of respondent No.2, RW.1 was examined and got marked Ex.B1 to B4.
7. On appreciating the material available on record, the Tribunal awarded Rs.1,75,000/- to the petitioners with interest @ 6% p.a. from the date of petition till the date of realisation. Aggrieved by the same, the present appeal M.A.C.M.A No.38 of 2014 is filed by the appellants/petitioners for enhancement of compensation.
Respondent No.2 filed M.A.C.M.A No.2398 of 2013 challenging the award passed by the Tribunal.
8. Heard both sides. Perused the record.
9. Learned counsel for the petitioner submitted that the Tribunal ought to have considered the earnings of the deceased at Rs.4,500/- as per the judgment of our Division 4 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014 Benchin Ramulamma Vs. Venkatesh Bus Union 1 and also as per Sarla Verma Vs. Delhi Transport Corporation 2 wherein the Hon'ble Apex Court considered the wages of the deceased at Rs.4,500/- per month in the absence of any proof. Accordingly, prayed to allow the appeal.
10. Per contra, learned counsel for respondent No.2 vehemently argued that the Tribunal failed to see that the accident that occurred was of hit and run and the FIR was registered against the unknown vehicle, but not the insured vehicle. He further contended that there is violation of conditions of policy and that there was contributory negligence. He further contended that the deceased was a minor and student, and the Tribunal erred in considering the deceased's income. He further contended that the Tribunal erred in making the deduction towards personal and living expenses at 1/3rd instead of 50%. He further contended that the Tribunal erred in not exonerating the Insurance Company from the liability. Accordingly, prayed to allow the appeal filed by it.
1 2009(6) ALD 684 DB 2 (2009) 6 SCC 121 5 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014
11. It is argued by the learned counsel for respondent No.2 that there was contributory negligence in occurring the accident. The Tribunal, while discussing the negligence aspect, observed that the petitioner filed Ex.A1/FIR, which shows that the direct witness to the accident gave a complaint to the police alleging that the accident occurred due to rash and negligent driving of the driver of the lorry. The petitioner also got filed Ex.A4/chargesheet, which shows that the Investigating Officer, who investigated the accident, filed chargesheet alleging that the accident occurred due to rash and negligent driving of the lorry bearing No.AP-23T-3123. Contravene the evidence of PW.1, Ex.A1 and Ex.A4 neither the owner nor the driver of the lorry had not put-forth any evidence. On considering the evidence of PW.1, Ex.A1 and A4, the Tribunal rightly came to the conclusion that the accident occurred due to rash and negligent driving of the driver of lorry bearing No.AP-23T-3123.
12. The Tribunal further observed that respondent No.2 got examined its Legal Officer as RW.1 and he stated that the driver of the lorry bearing No.AP-23T-3123 did not have a valid driving license and the M.V. Inspector imposed fine vide VCR No.0247299/29/4/2011. The respondent No.2 got filed 6 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014 Ex.B5/VCR issue by RTA, Ranga Reddy which shows that on 29.03.2011, the MVI inspected the vehicle and imposed a penalty. It is to be noted that the accident occurred on 14.04.2011. Therefore, the VCR issued by the RTA dt.29.05.2011 for the inspection dt.29.03.2011 is not relevant to the accident period. Hence, the Tribunal rightly came to the conclusion that the respondent No.2 failed to prove that by the time of accident, the vehicle did not have a fitness certificate. Ex.B1/copy of policy shows that the crime vehicle was duly insured with respondent No.2 and the policy was in force by the time of the accident. Therefore, respondents are jointly and severally liable to pay compensation to the petitioner.
13. At this juncture, it is relevant to mention here that in view of the law laid down by the Hon'ble Supreme Court in Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto 3 wherein the Hon'ble Apex Court held as under:
11. Recently in the case of Kurvan Ansari @ Kurvan Ali & another vs. Shyam Kishore Murmu and another (2022) 1 SCC 317, wherein a child aged about 7 years died in a road accident took place on 6.9.2004, this Court taking notional income as Rs. 25,000/-, applying the multiplier of 15, calculated the loss of dependency as Rs.
3
2022 LiveLaw(SC) 841
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COMMON JUDGMENT IN
MACMA No.2398 of 2013 & 38 OF 2014
3,75,000/- and adding Rs. 55,000/- in conventional heads, awarded Rs. 4,70,000/-.
12. In view of the foregoing decisions, it is apparent that in the cases of child death, the notional income of Rs. 15,000/- as specified in the IInd Schedule of M.V. Act has been enhanced on account of devaluation of money and value of rupee coming down from the date on which the IInd Schedule of M.V. Act was introduced and the said notional income was treated as Rs. 30,000/- in the case of Kishan Gopal (supra) and Rs. 25,000/- in Kurvan Ansari (supra) in age group of 10 and 7 years respectively.
14. At this stage, it is necessary to clarify that as per the decision of a Three-Judge Bench of this Court in Nagappa vs. Gurdayal Singh and others (2003) 2 SCC 274, it was observed that under the MV Act, there is no restriction that the Tribunal/Court cannot award compensation exceeding the amount so claimed. The Tribunal/Court ought to award 'just' compensation which is reasonable in the facts relying upon the evidence produced on record. Therefore, less valuation, if any, made in the Claim Petition would not be impediment to award just compensation exceeding the claimed amount.
15. Accordingly, this appeal is allowed. The amount of compensation, as awarded by the High Court is enhanced by Rs. 3,00,000/-, in addition. The total amount of compensation would be Rs. 5,00,000/-. The enhanced amount shall carry interest @ 7% p.a. from the date of Claim Petition till realization. The due amount be 8 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014 paid by the respondent No. 4 - United India Insurance Company within a period of four weeks from today. The learned counsel for respondent No.2 has also conceded the ratio laid in the above judgment.
14. Since there is no conflict as regards the ratio laid down by the Hon'ble Supreme Court in Meena Devi (Supra), this Court is inclined to allow the appeal by awarding Rs.5,00,000/- (Rs. Five lakh only) with interest @ 7% p.a. on the enhanced amount from the date of petition till realisation.
15. Accordingly, the M.A.C.M.A No.38 of 2014 filed by the appellants/petitioners is allowed. The compensation amount awarded by the Tribunal is enhanced from Rs.1,75,000/- to Rs.5,00,000/- (Rs. Five lakhs only) with costs and interest @7% p.a. on the enhanced amount from the date of petition till the date of realisation. Respondents are directed to deposit the said amount with costs and interest after deducting the amount, if any, already deposited within two months from receipt of a copy of this judgment. On such deposit, the petitioners are permitted to withdraw the same in accordance with the apportionment made by the Tribunal subject to payment of the deficit Court fee within two months 9 RRN,J COMMON JUDGMENT IN MACMA No.2398 of 2013 & 38 OF 2014 from receipt of a copy of this judgment. There shall be no order as to costs.
M.A.C.M.A. No.2398 of 2013 In view of allowing M.A.C.M.A. No.38 of 2014, the M.A.C.M.A No.2398 of 2013 filed by the Insurance Company, is hereby dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 7th day of November, 2023 BDR