THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.No.1140 OF 2019
JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Aggrieved by the order and decree dated 22.12.2014 in
O.P.No.164 of 2011 passed by the Chairman, Motor Accident
Claims Tribunal-cum-XIV Additional Chief Judge (Fast Track
Court), City Civil Courts, Hyderabad (for short 'the Tribunal') the
Reliance General Insurance Company Ltd., filed this appeal.
2. It is the contention of the appellant/Insurance company
that the Tribunal erred in holding that the appellant has to pay
compensation of Rs.3,60,000/- with interest @ 7.5% p.a., and
costs. The Tribunal erred in holding that the accident occurred
due to rash and negligent driving of the driver of the crime
vehicle. The Tribunal failed to appreciate that accident occurred
due to the involvement of Innova Car bearing No.AP 9 BX 324
and the Mini Bus bearing No.AP 9V 9670 in which the deceased
was travelling and therefore, ought to have atleast held that the
accident took place due to the contributory negligence of the
drivers of Innova car and Mini bus and apportioned the liability
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accordingly. It is further contended that the Tribunal erred in
awarding lump sum amount of Rs.2,50,000/- for pecuniary and
non pecuniary damages without specifying the heads under
which the compensation is awarded. It is also contended that
the deceased was 8 years old young boy, therefore, neither his
income is capable for assessment on estimated basis for
financial loss suffered by the parents and relied on the
judgment of the Hon'ble Supreme Court in New India
Assurance Co., Ltd., Vs Satender and others 1, wherein the
Apex Court reduced the compensation from Rs.4,45,000/- to
Rs.1,80,000/- and further relied on the judgment in Oriental
Insurance Co. Ltd., Vs Syed Ibrahim and others 2 wherein the
Tribunal awarded Rs.51,500/- which was enhanced to
Rs.1,52,000/- by the High Court, but maintained the Tribunal's
award. It is also contended that the Tribunal awarded
Rs.65,000/- for medical expenses, Rs.25,000/- for
transportation and Rs.20,000/- for loss of love and affection,
pain and suffering and mental agony. It is also contended that
the rate of interest awarded by the Tribunal is on high side and
therefore, prayed to set aside the order of Tribunal.
1 2007 ACJ 160
2 2007 ACJ 2816
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3. Heard Sri T.Mahender Rao, learned counsel appearing for
the appellant and Smt Annapurna Sreeram, learned counsel
representing Smt A.Chaya Devi, learned counsel appearing for
respondents 1 and 2.
4. Learned counsel for the appellant submits that the Tribunal without properly appreciating the evidence on record put negligence on the part of driver of the Mini bus bearing No.AP 9V 9670, though there is negligence on the part of driver of the Innova car. He also submitted that the amount awarded by the Tribunal is very high without there being any evidence on record and against the settled principles of law. The Tribunal awarded an amount of Rs.3,60,000/- which is on high side. Therefore, prayed the Court to set aside the award of the Tribunal.
5. On the other hand, learned counsel for the respondents supported the order of Tribunal.
6. The facts of the case before the Tribunal is that petitioners who are parents of the deceased K. Mahesh Babu, filed the above O.P., stating that on 07.11.2010 at about 11.00 hours when they were travelling in Mini bus bearing No.AP 9V 9670 from Hyderabad to Srisailam, when it reached near KL,J &SKS,J Macma_1140_2019 4 Debbaguda gate Culvert, the driver of Mini bus drove the same in a rash and negligent manner at high speed and dashed the Innova car, due to which K.Mahesh Babu sustained grievous injuries. Immediately, he was shifted to Yashoda Hospital, Hyderabad for treatment and while undergoing treatment, he died on 09.11.2010 at about 5.45 hours. Thereafter the dead body was shifted to Osmania General Hospital for post-mortem examination. The police of Kandukur Police Station registered case in Cr.No.184 of 2010 under Sections 337 and 304-A of IPC against the driver of Mini bus. It is further stated that the deceased was studying in 3rd class in Vidya Sree High School Jiyaguda, Hyderabad. The petitioners suffered mental agony, loss of love and affection and therefore, claimed compensation of Rs.3,50,000/-.
7. The respondent No.2 therein who is the appellant in this appeal, filed counter stating that the O.P, is not maintainable. The respondent is not aware of any criminal case registered by the police against the driver of Mini bus and further submitted that the accident took place due to the negligence on the part of driver of Innova car bearing No.AP 9 BX 324 and there is no negligence on the part of driver of Mini bus. He further submitted that the claim of petitioners is excessive and KL,J &SKS,J Macma_1140_2019 5 exorbitant. As such, they are not liable to pay any compensation. It is further submitted that the sketch of the scene of offence clearly shows that Innova car came in high speed and hit the Mini bus. Hence, there is negligence on the part of the driver of Innova car and they are liable to pay the compensation.
8. Basing on the evidence on record and after hearing both sides, the Tribunal awarded an amount of Rs.3,60,000/- to the petitioners.
9. To prove the case, on behalf of petitioners, Pws.1 to 3 were examined, Exs.A.1 to A.7 and Ex.X.1 are marked. On behalf of respondent No.2, none of the witness was examined, but Ex.B.1-policy was marked with consent.
10. Now, the points that arise for consideration is :
1. Whether the accident occurred due to the negligent driving of the driver of Mini bus and driver of the Innova car and there is contributory negligence on the part of the both the drivers ?
2. Whether the amount awarded by the Tribunal is excessive?
POINT NO.1 :
11. Before the Tribunal, Pw.1-father of the deceased was examined himself and he filed affidavit stating that on KL,J &SKS,J Macma_1140_2019 6 07.11.2010 at about 11.00 hours, when they were travelling in Mini bus bearing No.AP 09 V 9670 proceeding from Hyderabad to Srisailam, when they reached Debbaguda gate Culvert, the accident occurred due to the rash and negligent driving of the driver of Mini bus, dashed the Innova car, due to which his son Mahesh Babu sustained grievous injuries and immediately he was shifted to Yashoda Hospital, Hyderabad. In support of his contention he also filed Ex.A.1 certified copy of the FIR dated 07.11.2010, Ex.A.2 certified copy of inquest report dated 10.11.2010, Ex.A.3-certified copy of post mortem examination dated 10.11.2010, Ex.A.4-certified copy of motor vehicle inspector report dated 03.12.2010, Ex.A.5-certified copy of charge sheet dated 21.12.2010, Ex.A.6-Death summary issued by Yashoda Hospital, Hyderabad, Ex.A.7-Medical bills totaling to Rs.71,654/- and Ex.X.1-case sheet.
12. The Insurance Company did not adduce any evidence in support of its contention except filing Ex.B.1-policy with consent.
13. As seen from the record, Ex.A.1-FIR was issued immediately after the accident, Ex.A.5-charge sheet which is filed after investigation shows that the accident occurred due to the negligent driving of the driver of the Mini bus. Ex.A.2 KL,J &SKS,J Macma_1140_2019 7 certified copy of the inquest report shows that the deceased died in a motor vehicle accident involving crime vehicle and Ex.A.3 post mortem report shows that deceased died in the accident. Further petitioners also filed Ex.A.7 medical bills for Rs.71,654/- and also examined Pw.2-consultant surgeon at Yashoda Hospital. Pw.2 deposed that the deceased Mahesh Babu aged about 8 years was admitted in their hospital with unconscious and blunt injury on chest, abdomen with crush injury of both lower limbs, he was in shock, Blood pressure and pulse was not recordable and resestation, intubation done, and put him on ventilator, investigations done and suffered with severe head injury with RT, Tentorial collection and SAHCT Abdomen done. The deceased had liver Hematoma and RT side Pnemothoriax was present, fracture of both bones of legs and while undergoing treatment he died on 09.11.2010. Ex.A.10 is the case sheet of the patient and he opined that the patient died due to the injuries received in the accident.
14. The evidence on record shows that accident occurred due to the negligent driving of the driver of Mini bus, though appellant claims that there is contributory negligence on the part of driver of Innova Car, no eye witness was examined on its behalf to prove negligence on the part of driver of Innova car.
KL,J &SKS,J Macma_1140_2019 8 Even the driver of Mini bus was not examined to prove the accident alleging negligence on the part of driver of Innova car. Therefore, there is no illegality in the decision of the Tribunal attributing negligence on the part of driver of Mini bus. Accordingly, Point No.1 is answered.
POINT NO.2 :
15. The contention of learned counsel for the appellant is that the amount awarded by the Tribunal is exorbitant which is against principles of law.
16. According to respondents 1 and 2, the age of the deceased is 8 years as on the date of accident. With regard to this issue, the Hon'ble Supreme Court in Kishan Gopal and another Vs Lala and others 3 took the notional income at Rs.30,000/- p.a., and awarded an amount of Rs.2,10,000/- towards compensation for loss of love and affection of the deceased, which is a meagre amount. Per contra, learned counsel for the Insurance Company relied on the judgment of the Hon'ble Supreme Court in Manju Devi & another Vs Musafir Paswan 3 2014 (1) Supreme Court Cases 244 KL,J &SKS,J Macma_1140_2019 9 and another 4. According to the said judgment, notional income for non-earning person is Rs.15,000/- only and compensation awarded is excessive. Whereas in the latest judgment of the Hon'ble Supreme Court in Meena Devi Vs Munu Chand Mahto alias Nemchan Mahto and others 5, the claimants therein have claimed Rs.5,00,000/- for the death of the minor. In paragraph No.16, the Hon'ble Supreme Court held as under :
"16. Thus applying the ratio of the said judgments, looking to the age of the child in the present case i.e. 12 years, the principles laid down in Kishan Gopal [Kishan Gopal v. Lala, (2014) 1 SCC 244 : (2014) 1 SCC (Civ) 184 : (2014) 1 SCC (Cri) 241] are aptly applicable to the facts of the present case. As per the ocular statement of the mother of the deceased, it is clear that the deceased was a brilliant student and studying in a private school. Therefore, accepting the notional earning Rs 30,000 including future prospect and applying the multiplier of 15 in view of the decision of this Court in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the loss of dependency comes to Rs 4,50,000 and if we add Rs 50,000 in conventional heads, then the total sum of compensation comes to Rs.5,00,000. As per the judgment of MACT, lump sum compensation of Rs 1,50,000 has been awarded, while the High Court enhanced it to Rs 2,00,000 up to the value of the claim petition. In our view, the said amount of compensation is not just and reasonable looking to the computation made hereinabove. Hence, we determine the total compensation as Rs 5,00,000 and on reducing the amount as awarded by the High Court i.e. Rs 2,00,000, the enhanced amount comes to Rs 3,00,000."
17. In view of the said judgment, there is no illegality in awarding compensation of Rs.3,60,000/- which includes 4 2005 ACJ 99 5 (2023) 1 Supreme Court Cases 204 KL,J &SKS,J Macma_1140_2019 10 medical bills for Rs.71,654/- to the appellants/claimants for the death of their minor son. Accordingly, Point No.2 is answered.
18. IN THE RESULT, the appeal is dismissed. No order as to costs.
Miscellaneous applications, if any, pending in this M.A.C.M.A, shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date : 31.10.2023 Rds