HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
M.A.C.M.A. No.3868 OF 2009
JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. Durga Prasad Kotamraju, learned counsel for the
appellants and Mr. Srinivasa Rao Vutla, learned Standing Counsel
appearing on behalf of respondent No.2 - Insurer. Respondent No.1,
owner of the subject vehicle was set ex parte before the Tribunal.
2. Feeling aggrieved and dissatisfied with the order, dated 09.06.2008 in M.V.O.P. No.41 of 2006 passed by the Chairman, Motor Accident Claims Tribunal - cum - I Additional Chief Judge, City Civil Court, Secunderabad (for short 'Tribunal'), the appellants - claimants preferred the present appeal, whereby and whereunder, the Tribunal awarded an amount of Rs.4,60,000/- as compensation with interest @ 7.5% per annum thereon from the date of petition till deposit as against the claim of Rs.30,56,000/- claimed by them against the respondents jointly and severally.
3. The appellants herein filed the aforesaid MVOP No.41 of 2006 contending as follows:
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KL,J & SKS,J MACMA No.3868 of 2009
i) Appellant No.1 is the wife, appellant No.2 is the father and appellant No.3 is the unmarried sister of the deceased - Mohd. Akbar Khan alias Moin.
ii) On 06.12.2005, the deceased was going on his Yamaha Motorcycle bearing registration No.AP 12C 1128. When he reached Gulzar Tea Stall turning in Lalaguda, a lorry bearing registration No.MP 07 G3562 came in opposite direction on wrong side driven by its driver in a rash and negligent manner and dashed the motorcycle of the deceased. As a result, the deceased fell down and sustained severe injuries. He was shifted to Life Hospital, D.D. Colony, Hyderabad, where he was declared brought dead by the doctors.
iii) On the complaint lodged by the father-in-law of the deceased, Mr. Md. Ibrahim, the police of Lalaguda Police Station, registered a case in Crime No.201 of 2005 for the offence punishable under Section - 304A of IPC. On completion of investigation, the police laid the charge sheet against the accused therein.
iv) The deceased was working as Welder in Saudi Arabia (Madina) with M/s. Al-Hadada, and its proprietor is Mr. Turki, Madina Munawara, Kingdom of Saudi Arabia. The deceased was paid an amount of Rs.21,000/- per month i.e., 1800 Riyals by his 3 KL,J & SKS,J MACMA No.3868 of 2009 employer. The deceased is the only breadwinner of the family. Due to the sudden death of the deceased, the appellants suffered great shock and loss of their sole breadwinner. Appellant No.1, who is the wife of the deceased, is deprived of her conjugal happiness throughout life. Therefore, they have sought an amount of Rs.30,56,000/- as compensation against respondent Nos.1 and 2, who are owner and insurer of the crime vehicle and they are jointly and severally liable to pay the same.
4. Respondent No.2 filed its counter contending that the deceased died due to his own negligence. There is no negligence on the part of the driver of the crime vehicle. The subject insurance policy was expired on the mid-night of 05.12.2005, whereas the accident had taken place on 06.12.2005 at 7.15 P.M. and as such, respondent No.2 is not liable to pay compensation. The appellants failed to prove the accident, age and income of the deceased and, therefore, they are not entitled for compensation and Insurance Company is not liable to pay the same.
5. To prove the claim, the appellants herein have examined four (04) witnesses including appellant No.1, wife of the deceased as PW.1, eye-witness as PW.2, appellant No.2 as PW.3 and one Mr. 4 KL,J & SKS,J MACMA No.3868 of 2009 Hazrath Fakeer Syed Ismail Tanweer Mujtahed as PW.4 and got marked Exs.A1 to A15. Respondent No.2 did not examine any witness, however got marked Ex.B1 - attested copy of insurance policy.
6. On consideration of entire evidence, both oral and documentary, the learned Tribunal awarded an amount of Rs.4,60,000/- along with interest @ 7.5% per annum thereon from the date of petition till deposit as compensation against both the respondents jointly and severally. Feeling aggrieved by the same, the appellants preferred the present appeal seeking enhancement of compensation.
7. Mr. Durga Prasad Kotamraj, learned counsel for the appellants, would submit that though the appellants examined PWs.1 to 4 and filed Ex.A5-salary certificate in Arabic language, Ex.A6 - its translated copy, Ex.A7 - translated copy of VISA, Ex.A8 - original passport along with Visa and Ex.A9 - notarized copy air-ticket, to show that the deceased was earning 1800/- Riyals, which is equivalent to Rs.21,000/- per month as salary, the Tribunal did not consider the same and on the other hand considered the income of the deceased as Rs.3,000/- per month. Therefore, the said finding of the Tribunal is 5 KL,J & SKS,J MACMA No.3868 of 2009 erroneous. The Tribunal considered the multiplier as '18' which is contrary to the principle laid down by the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation 1. The Tribunal also did not grant other amounts, such as loss of consortium, damages to the clothes, transportation charges etc. Therefore, the appellants are entitled for the aforesaid amount of Rs.30,56,000/- as compensation.
8. On the other hand, Mr. Srinivasa Rao Vutluru, learned Standing Counsel appearing on behalf of respondent No.2, would contend that the appellants failed to examine the author of Ex.A5 - salary certificate and they have not filed any bank statement. Therefore, the Tribunal considering the entire evidence arrived at the monthly income of the deceased as Rs.3,000/- and accordingly granted Rs.4,60,000/- as compensation, and there is no error in it.
9. Basing on the aforesaid pleadings, the Tribunal framed the following issues:
i) Whether the accident occurred owing to the rash and negligent driving of Lorry No.MP 07 G 3562?
ii) Whether the petitioners are entitled to any compensation, if so, to what amount and against whom?
iii) To what relief? 1 . (2009) 6 SCC 121 6 KL,J & SKS,J MACMA No.3868 of 2009
10. On consideration of the entire evidence including Exs.A1 -
FIR, A2 - charge sheet and Ex.A3 - PME report and also deposition of PW.2, an eye-witness, the Tribunal came to the conclusion that the accident had occurred due to rash and negligent driving of the driver of the crime vehicle. There is no challenge to the said finding by respondent No.2 - Insurer and it attained finality.
11. In Ex.A8 - original passport, the date of birth of the deceased is mentioned as 14.04.1977. The date of accident is 06.12.2005. Therefore, as on the date of accident, the age of the deceased was 28 years, 7 months and 22 days. Thus, as per the decision in Sarla Verma1, the relevant multiplier for the age group of 26-30 years is '17'.
12. According to the appellants, the deceased was Welder and used to work in M/s. Al-Hadada, Kingdom of Saudi Arabia. He used to earn 1800/- Riyals per month, which is equivalent to Rs.21,000/- per month. In proof of the same, they have filed Ex.A5 - salary certificate in Arabic Language, Ex.A6 - its translated copy and Ex.A7
- translated copy of Visa and Ex.A8 - original passport along with Visa and also Ex.A9 - notarized copy of air ticket. However, they have not examined the author of Ex.A5 - salary certificate or any 7 KL,J & SKS,J MACMA No.3868 of 2009 authorized person of the employer of the deceased i.e., M/s. Al- Hadada, Kingdom of Saudi Arabia. However, according to them, the said Company is in Saudi Arabia and, therefore, the appellants are not in a position to examine them. They have also not filed copy of bank statement in proof of the deceased sending the money either to his father or to his wife. According to them, due to various reasons, the deceased did not open any account in Saudi Arabia, however, he used to send money from Saudi Arabia to his parents.
13. However, during cross-examination, PW.1, wife of the deceased, categorically admitted that her husband never informed her as to how much he used to send to India. But, her father-in-law told her that her deceased husband used to send Rs.21,000/- per month to her father-in-law. PW.3, father of the deceased also admitted that the deceased used to send the said money through relatives and family friends, who are working along with the deceased in Saudi Arabia. No account was opened in his name to receive money from his son. Considering the said aspects, the Tribunal arrived the monthly income of the deceased at Rs.3,000/-.
14. It is apt to note that the Tribunal considered that the deceased was Welder, which is a skilled one. There is no challenge to 8 KL,J & SKS,J MACMA No.3868 of 2009 the said finding by respondent No.2. The appellants did not file any document to show that the deceased was a Welder and earning certain amount out of the said profession. They have also not examined any witness to substantiate that the deceased was earning an amount of Rs.21,000/- per month as a Welder. In the absence of the same, it is relevant to note that in Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited 2, the Apex Court had considered the monthly earning capacity of a Cooli at Rs.4,500/-. By considering the same, this Court is of the view that an amount of Rs.4,500/- per month would be reasonable amount to consider as monthly earning capacity of the deceased. The deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is between 2 and 3. In the present case, the dependent family members are three (03) in number, 1/3rd has to be deducted towards personal and living expenses of the deceased. Accordingly, when 1/3rd is deducted from the monthly earning capacity of Rs.4,500/-, it would work out to Rs.3,000/- (Rs.4,500/- - Rs.1,500/-) and the annual earnings would come to Rs.36,000/- and, therefore, the same is taken into 2 . (2011) 13 SCC 236 9 KL,J & SKS,J MACMA No.3868 of 2009 consideration as the loss of dependency to which the appellants herein are entitled to. When the relevant multiplier '17' is applied to the said annual earnings, it works out to Rs.6,12,000/- (i.e., Rs.36,000 x 17).
15. That apart, as per the principle held by the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi 3, an addition of 40% of the established income of the deceased should be added towards future prospectus since he is below the age of 40 years, and when the same is applied, it works out to Rs.2,44,800/- (40% of Rs.6,12,000/-) and, therefore, the same is also awarded to the appellants. Further, as per the principle held by the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram 4, the appellants are entitled for an amount of Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- towards spousal consortium to appellant No.1 and Rs.40,000/- each to appellant Nos.2 and 3 towards loss of filial consortium. The appellants are also entitled an amount of Rs.1,50,000/- towards loss of love and affection (Rs.50,000/- each). An amount of Rs.5,000/- is awarded towards transportation charges and also Rs.5,000/- towards damages to clothes. 3 . (2017) 16 SCC 680 4 . (2018) 18 SCC 130 10 KL,J & SKS,J MACMA No.3868 of 2009
16. As far as the rate of interest granted by the Tribunal, the same is in accordance with and, therefore, the same is maintained.
17. As discussed supra, both respondent Nos.1 and 2, owner and insurer of the crime vehicle, are jointly and severally liable to pay the compensation to the appellants.
18. In view of the above discussion, the appellants are entitled to Rs.11,66,800/- and rounding it off to Rs.11,67,000/- (Rupees Eleven Lakhs Sixty Seven Thousand Only) as compensation under the following heads:
i) Loss of dependency .. Rs. 6,12,000-00
ii) Future prospects at 40% .. Rs. 2,44,800-00
iii) Funeral expenses .. Rs. 15,000-00
iv) Loss of estate .. Rs. 15,000-00
v) Spousal Consortium .. Rs. 40,000-00
vi) Filial consortium .. Rs. 80,000-00
vii) Loss of love and affection .. Rs. 1,50,000-00
viii) Transportation Charges .. Rs. 5,000-00
ix) Damages to clothes .. Rs. 5,000-00
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Total .. Rs. 11,66,800-00
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Rounded off to Rs.11,67,000-00
19. In the result, the appeal filed by the appellants - claimants is allowed in part. Accordingly, the order and decree dated 09.06.2008 in M.V.O.P. No.41 of 2006 passed by the Tribunal are modified enhancing the compensation to Rs.11,67,000/- (Rupees 11 KL,J & SKS,J MACMA No.3868 of 2009 Eleven Lakhs Sixty Seven Thousand Only) from Rs.4,60,000/- (Rupees Four Lakhs and Sixty Thousand Only) with interest at the rate of 7.5% per annum thereon from the date of petition till realization. The compensation amount shall be apportioned among the appellants - claimants in the same proportion in which original compensation amounts were directed to be apportioned by the Tribunal. Respondent No.2 is directed to deposit the above said amount with interest and costs, after deducting the amount, if any, deposited earlier within one month from the date of receipt of certified copy of this judgment. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 31_October, 2023 Mgr