Telangana High Court
Faimeeda Begum vs G Bhanumathi on 11 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.
1679 OF 2018
J U D G M E N T:
Dissatisfied and aggrieved with the quantum of compensation awarded in the Order and Decree dated 28.03.2017 (impugned Order) passed in Motor Vehicle Original Petition No.912 of 2015 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-XIV Additional District & Sessions Judge, Rangareddy District at LB Nagar (for short "the learned Tribunal"), appellants- petitioners preferred the present Appeal seeking enhancement of compensation amount.
02. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the learned Tribunal.
03. Brief facts of the case are that:
Petitioners Nos.1 to 6 filed a claim petition under Section 166 of the Motor Vehicle Act before the learned Tribunal, claiming compensation of Rs.15,00,000/- for the death of one Sri Mohammed Nayeemuddin (hereinafter 2 referred to as 'the deceased'), who died in a Motor Vehicle Accident that occurred on 01.11.2015. Petitioner No.1 is the wife, petitioner Nos.2 to 5 are children, petitioner No.6 is the father of the deceased.
04. According to petitioners, on 01.11.2015 at 05:45 AM., the deceased while proceedings towards Kukatpally from Yerragadda on his Activa bearing No. AP 28 AX 3400 reached near Laxmikala Theater and one Tanker bearing No. AP 37 TB 1395 which was driven in rash and negligent manner by its driver, hit the vehicle of the deceased from backside. Due to said accident, the deceased received grievous injuries and died on the spot. The Police registered a criminal case against the driver of said Tanker for the offence under Section 304-A of the Indian Penal Code.
05. As per petitioners, the deceased was hale and healthy and he was aged about 35 years at the time of accident and he was earning Rs.15,000/- per month by running Zam-Zam Pan Shop at Kukatpally and he used to contribute the same for the maintenance of his family. 3
06. Respondent No.1-owner and Respondent No.3- Driver remained exparte before the learned Tribunal.
07. Respondent No.2-Insurance company filed counter denying the negligence on the part of the driver of the crime vehicle and the manner of occurrence of the accident. Further contended that the deceased was also not holding any driving license and the Insurance Company has no liability to pay compensation and that there is contributory negligence on the part of the deceased. Further respondent No.2 denied the age, avocation and income of the deceased. The compensation claimed is out of proportions, excessive and exorbitant and prayed to dismiss the petition.
08. On the basis of the above pleadings, the following issues were settled:
i. Whether petitioners-claimants are entitled for compensation of Rs.15,00,000/- with costs and interest against respondent Nos.1 to 3 as prayed for?
ii. To what relief?4
09. Before the learned Tribunal, petitioners got examined petitioner No.1 as PW1 and got marked Exs.A1 to A6, eyewitness was examined as PW2 and to prove income of the deceased, PW3 was examined. On behalf of respondent No.2, no oral evidence was adduced but the copy of insurance policy was marked as Ex.B1.
10. Considering the claim of petitioners and counter affidavit filed by respondent No.2 and on evaluation of oral and documentary evidence available on record, the Tribunal partly allowed the Motor Vehicle Original Petition, awarding compensation of Rs.6,82,500/- along with interest @ 9 % per annum from the date of petition till the date of deposit, to be deposited by respondent Nos.1 to 3 jointly and severally.
11. Challenging the quantum of compensation, appellants-petitioners have filed this Motor Accident Civil Miscellaneous Appeal seeking enhancement of compensation amount.
12. Heard Sri E. Venugopal Reddy, learned counsel for appellants-petitioners and Sri V. Venkatarami Reddy, 5 learned counsel for respondent No.2-Insurance company. Perused the material available on record.
13. The contention of the learned counsel for appellants-petitioners is that though appellants proved their case by adducing cogent evidence apart from relying on the documents under Exs.A1 to A6, the learned Tribunal without considering the same, erroneously awarded meager amount towards compensation by taking monthly income of the deceased at the rate of Rs.4,500/- only instead of Rs.15,000/- per month and sought for enhancement of compensation amount.
14. On the other hand, learned counsel for respondent No.2-Insurance company has contended that the learned Tribunal has adequately granted the compensation and the same needs no interference by this Court.
15. Now the point for consideration is that:
Whether appellants-petitioners are entitled for enhancement of compensation amount in addition to the compensation amount granted vide impugned 6 Order and Decree dated 28.03.2017 by the learned Tribunal?
P O I N T:
16. This Court has perused the entire evidence and documents available on record.
17. PW1 who is the wife of the deceased reiterated the contents of the claim application and got marked Ex.A1 to A6 as she is not an eyewitness to the accident, she got examined PW2-eyewitness to the accident who deposed that he witnessed the accident while he was standing near Laxmikala Theater, Moosapet the driver of one Tanker bearing No. AP 37 TB 1395 driven in rash and negligent manner and dashed the vehicle of the deceased from backside and as a result, the deceased died on the spot.
18. Apart from oral evidence, petitioners have also relied upon documentary evidence marked under Exs.A1 to A6. Ex.A1-FIR discloses that a criminal case was registered by Police and took up investigation and during the course of investigation, inquest, postmortem examination were conducted and those reports were 7 marked as Exs.A3 and A5 respectively and the Police also collected Ex.A5-Motor Vehicle Inspector Report and after completion of investigation, Ex.A2-Charge sheet was filed against respondent No.3-driver of crime vehicle stating that the accident took place due to his rash and negligent driving. The copy of insurance policy was marked as Ex.B1 and that it is valid and in force as on the date of accident.
19. As regards the manner of accident is concerned, the Tribunal after evaluating the evidence of PW2- eyewitness to the accident, coupled with the documentary evidence available on record, held that the accident occurred due to negligence on the part of respondent No.3. Therefore, this Court is not inclined to interfere with the said findings of the Tribunal which are based on appreciation of evidence in proper perspective. Thus, the only dispute in the present appeal is with regard to the quantum of compensation.
20. Petitioners have also got examined PW3 who deposed that the deceased was earning Rs.15,000/- per 8 month from his pan shop business and the said pan shop is located in the center. There is no documentary evidence filed to show the income of the deceased. Therefore, the trial Court has rightly considered the income of the deceased as Rs.4,500/- per month.
21. In so far as the quantum of compensation is concerned, the learned Tribunal by relying on Ex.A6-Pre University Certificate of the deceased considered the age of the deceased as 37 years and as there is no documentary evidence to show that the deceased was earning Rs.15,000/- per month, therefore, the learned Tribunal has taken income at the rate of Rs.4,500/- per month and after deducting 1/4th income towards personal expenses, ultimately the annual income of the deceased was fixed at Rs.40,500/- per annum. While calculating further compensation amount, the learned Tribunal has not awarded future prospects.
9
22. In Kirti and another v. Oriental Insurance Company Ltd 1 the Honourable Supreme Court of India held that:
"13. Third and most importantly, it is unfair on part of the respondent-insurer to contest grant of future prospects considering their submission before the High Court that such compensation ought not to be paid pending outcome of the National Insurance Company Limited Vs. Pranay Sethi and others 2. Nevertheless, the law on this point is no longer res integra, and stands crystalised, as is clear from the following extract of the aforecited Constitutional Bench Judgment:
"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."1
Civil Appeal Nos.1920 of 2021 [Arising out of Special Leave Petition(C) Nos.1872829 of 2018] 2 2017 ACJ 2700 10
23. In the above authority, it is made clear by the Honourable Supreme Court of India that if the deceased was self-employed, under the age of 40 years, an addition of 40% of established income can be awarded. In the case on hand, the established income of the deceased is Rs.4,500/- per month.
24. In view of the decision of the Honourable Apex Court in Pranay Sethi case (cited supra) 40% i.e., Rs.1,800/- towards future prospects can duly be added thereto, which comes to Rs.6,300/- (Rs.4,500/- + Rs.1,800/-). Hence, this Court is inclined to fix the annual income of the deceased at Rs.75,600/- (Rs.6,300x12). Since there are six dependents, after deducting 1/4th of the income (Rs.18,900/-) towards personal expenses of the deceased, as per the decision of the Honourable Apex Court in Smt.Sarla Varma v. Delhi Transport Corporation and another 3, the net annual contribution to the family comes to Rs.56,700/- (Rs.75,600/- - Rs.18,900/-).
3 2009 (6) SCC 121 11
25. As seen from the evidence, the deceased was 37 years at the time of fatal accident. Therefore, as per the decision of the Honourable Apex Court in Smt.Sarla Varma (supra), the appropriate multiplier is '15'. Thus, applying the multiplier '15' to the annual loss of dependency, which is already arrived at Rs.56,700/-, the total 'loss of dependency' comes to Rs.8,50,500/- (Rs.56,700/- x 15). As seen from the Order of the learned Tribunal, an amount of Rs.25,000/- was awarded towards funeral expenses, however, in view of Pranay Sethi's case, the said finding is set aside. This Court is of the considered opinion that petitioners are entitled to Rs.77,000/- under the conventional heads (Rs.70,000/- + 10% enhancement thereon). In addition thereof, petitioner Nos.2 to 5 who are minor children of the deceased and petitioner No.1 are entitled for Rs.40,000/- each i.e., Rs.1,60,000/- under the head of 'parental consortium' as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 4. Thus, in all, petitioners are entitled to 4 (2018) 18 SCC 130 12 compensation of Rs.10,87,500/- (Rupees Ten Lakhs Eighty Seven Thousand Five Hundred only).
26. In view of the above discussion, this Court is of the considered opinion that the compensation amount awarded by the Tribunal at Rs.6,82,500/- is at lower side and the same is enhanced to Rs.10,87,500/-. In so far as interest is concerned, the learned Tribunal has awarded interest at the rate of 9 percent per annum from the date of petition till the date of deposit. This Court by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 5 inclined to reduce the rate of interest awarded by the learned Tribunal to 7.5 percent per annum on entire compensation amount from the date of petition till the date of realization. As per the Orders dated 01.07.2022 passed by this Court after ordering I.A.No.1 of 2018 (condone delay petition) in M.A.C.M.A.No.1679 of 2018, petitioners- appellants are not entitled to claim interest for the delay condoned period of 297 days. The enhanced compensation amount along with interest, excluding the delay condoned 5 2013 ACJ 1403 = 2013 (4) ALT 35 13 period of 297 days, shall be deposited by respondents within a period of one month from the date of receipt of a copy of this Judgment. On such deposit, petitioners are entitled to withdraw the same without furnishing any security.
27. In the result, this Motor Accident Civil Miscellaneous Appeal is partly allowed enhancing the compensation amount awarded by the Tribunal from Rs.6,82,500/- to Rs.10,87,500/- along with interest at the rate of 7.5 percent per annum on entire compensation amount from the date of petition till the date of realization, excluding the delay condoned period of 297 days. There shall be no order as to costs.
As a sequel, the miscellaneous applications, if any, pending shall stand closed.
________________________________ JUSTICE M.G.PRIYADARSINI Date: 11-MAR-2024 KHRM