Telangana High Court
Akula Savithri vs Gajjala Ganga Naveen on 28 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
No.3143 OF 2017
J U D G M E N T:
Dissatisfied and aggrieved with the quantum of compensation awarded in the Order and Decree dated 13.09.2017 (impugned Order) passed in Motor Vehicle Original Petition No.534 of 2013 by the learned Chairman, Motor Vehicle Accident Claims Tribunal-cum-I Additional District Judge at Nizamabad (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 and 2 filed a claim petition under Section 166 of the Motor Vehicle Act before the learned Tribunal, claiming compensation of Rs.20,00,000/- for the death of one Akula Gangadhar (hereinafter referred to as 'the deceased'), who died in a Motor Vehicle Accident that occurred 2 on 27.04.2013. Petitioner No.1 is the wife and petitioner No.2 is the son of the deceased.
04. According to petitioners, on 27.04.2013 at 4.20 PM., the deceased was travelling in auto bearingNo.AP 25X 6890 along with wife/1st petitioner from Navipet towards Nizamabad side andwhen they reached near Suresh Dhaba, Janakampet Village sivar, Yedpally Mandal, the driver of the auto drove it in a rash and negligent manner with high speed and dashed against one auto trolley No.AP 25W 1764 which was coming from opposite direction. Due to said accident, the auto completely damaged and the deceased sustained severe head injury and fracture injuries to the other parts of the body. Immediately, he was shifted to Government Head Quarters Hospital, Nizamabad and from there, he was shifted to Shashank Hospital and later, he was referred to Hyderabad, where he was admitted in Gandhi Hospital. During treatment, he died on 09.05.2013 due to fractures and injuries.
05. As per petitioners, the deceased was hale and healthy and he was aged about 58 years at the time of accident, he was a retired Railway Employee and also doing agriculture and 3 he was earning Rs.20,000/- per month and he used to contribute the same for the maintenance of his family. Respondent No.1 being the owner of the offending vehicle and respondent No.2 being the insurer of the offending vehicle are jointly and severally liable to pay the compensation.
06. Respondent No.1 filed written statement, denying the occurrence of the accident due to the rash and negligent driving of the driver of the auto. He also denied the alleged age and income of the deceased as on the date of accident. It is contended that the deceased was aged more than 65 years and was not an agriculturist. It is further contended that the policy was in force as on the date of accident and the driver was having a valid and effective driving license and therefore, respondent No.2 alone is liable to pay the compensation and the claim of compensation is excessive and exorbitant. Therefore, he prayed to dismiss the claim petition against him.
07. Respondent No.2-Insurance company filed written statement denying the age, income, manner of accident and the injuries sustained by the deceased. It is contended that the accident occurred due to the collusion of auto and auto trolly 4 and therefore, there was contributory negligence. The petition is bad for non-joinder of necessary parties. The owner of the vehicle has violated the terms and conditions of the policy as the driver has got boarded the passengers more than the capacity of the auto. Therefore, respondent No.2 Insurance Company is not liable to pay the compensation. 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 on 27-4-2013 at about 4.20 p.m near Suresh Diabe Jankampet village, accident occurred due to rash and negligent driving of auto bearing No AP 25-X 6890 by its driver? ii. Whether Akula Gangadhar received injuries in that accident and died of the injuries? iii. Whether the petitioners are entitled for compensation? If so, to what amount and from which respondent?
iv. To what relief?
09. Before the learned Tribunal, petitioners got examined PWs 1 to 3 and marked Exs.A1 to A7. On behalf of the 5 respondents, RWs 1 to 3 were examined and marked Exs.B1 to B3 and Exs.X1 to X3.
10. Considering the claim of petitioners and written statements filed by the respondents and on evaluation of oral and documentary evidence available on record, the Tribunal partly allowed the Motor Vehicle Original Petition, awarding compensation of Rs.3,37,000/- along with interest @ 7.5% per annum from the date of petition till the date of deposit, to be deposited by respondent Nos.1 and 2 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 P. Radhive Reddy, learned counsel for appellants-petitioners and Sri K. Ajay Kumar, learned counsel for respondent No.2-Insurance company. Perused the material available on record.
13. The main contention of the learned counsel for appellants-petitioners is that though appellants proved their case by adducing cogent evidence apart from relying on the 6 documents under Exs.A1 to A7, 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.20,000/- 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 Order and Decree dated 13.09.2017 by the learned Tribunal?
P O I N T:
16. This Court has perused the entire evidence and documents available on record.
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17. PW1 who is the wife of the deceased as well as eye witness to the incident reiterated the contents of the claim application and got marked Ex.A1 to A7.
18. The petitioners got examined PW2 in support of their case. PW2 stated that as on the date of accident, the deceased was a retired Railway employee, aged 58 years and was hale and healthy drawing an amount of Rs.20,000/- per month as pension. He further stated that the deceased was doing agriculture by raising commercial crops like vegetables, turmeric, etc., and was earning an amount of Rs.10,000/- per month, in total he was getting Rs.30,000/- per month and contributing his entire income to his family members and that the petitioners are the legal heirs of the deceased. In the cross examination, he stated that the deceased was his neighbor and has not brought any land record pertaining to his land and he cannot give the survey numbers of the land held by the deceased and the deceased worked on contract basis in the Railway Department and he do not know the quantum of payment made by the Department to the deceased and he do not know the income, which the deceased was getting from his land. He denied the other suggestions put to him. Though 8 PWs 1 and 2 were cross examined at length, nothing worth was elicited to dis-believe their evidence.
19. Apart from the oral evidence, the claim petitioners have also relied upon documentary evidence marked under Exs.A1 to A7. 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 marked as Exs.A3 and A4 respectively and after completion of investigation, Ex.A2- Charge sheet was filed against respondent No.1-owner-cum- driver of the auto stating that the accident took place due to his rash and negligent driving. Ex-A3/Inquest report discloses that the deceased used to work in Railways as on the date of accident met with the accident and succumbed to injuries while undergoing treatment. Ex.A4/Postmortem Report discloses that the cause of death is due to head injury. Ex.A5 is CT scan. Ex.A6/Death summary discloses the treatment undergone by the deceased. Ex.A7 is the copy of insurance policy, which is valid and in force as on the date of accident. 9
20. Coming to the evidence of respondents, RW1, the owner of the offending vehicle deposed that no accident had happened on 27.04.2013 with his auto at Janakampet village sivar and the deceased Akula Gangadhar has not died in the alleged accident and the petitioners falsely got registered a case against him with collusion of the police to get compensation. He has filed his driving license extracts under Exs.B1 and B2 and insurance policy of the vehicle under Ex.B3. As per Ex.B1, he was holding learners license for the period from 16.03.2013 to 15.09.2019 and his auto has insurance coverage with respondent No.2. He further deposed that the police filed charge sheet against him alleging that he was responsible for the accident and he denied the other suggestions put to him. In the cross examination by respondent No.2, he admitted that no passenger was travelling in his auto at the time of accident and denied the suggestion that at the time of accident, five passengers were travelling and the accident occurred due to his negligent driving and has not displayed 'L' Board on his auto and that one Sudarshan, who was holding the driving license was not sitting in the auto which he was driving the auto.
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21. RW2, Legal Executive of Insurance Company deposed that the driver was not holding a valid driving license on the date of accident and the auto is a passenger carrying commercial vehicle. He further deposed that neither the driver has put 'L' Board nor there was a person who is having a permanent driving license sitting beside him. He further deposed that there were more than four persons travelling at the time of accident though the seating capacity of the auto is four and that the accident occurred due to the collusion of auto and auto trolley and there was negligence on the part of the driver of the auto trolley and therefore, there was contributory negligence on the part of the driver of the trolley. In the cross examination, he admitted that the Insurance Policy was in force as on the date of accident and the driver of the offending vehicle was having only Learner's License. He further admitted that the connected matter was settled before the Lok Adalath as compromised and only the 1st petitioner in this case is sole petitioner and injured. He denied the other suggestions put to him.
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22. RW3 is Junior Assistant in RTA, Nizamabad. He deposed that as per Ex.X2, B-Register Extract, the present owner of the vehicle is one Rafi Bin Shafi and in the year 2013, respondent No.1 was owner of the vehicle. He further deposed that as per the driving license/Ex.X3, the holder of the same can drive a motorcycle with gear, LMV non-transport and auto rickshaw non-transport. In the cross examination, he stated that there is no difference of mechanism skills of driving between transport and non-transport auto rickshaw and the person holding learning license can drive any type of auto and after considering learning license/Ex.B1 and on testing, driving license under Ex.X3/B2 was issued.
23. PW3 is the Junior Engineer who appeared before the Court through summons. He deposed that the deceased worked as Keyman in South Central Railway, Umri and for the last time, the deceased had drawn the net salary of Rs.17,624/- for the month December, 2012. Though him, Ex.X1 salary certificate of the deceased was marked, wherein, his date of birth is mentioned as 01.08.1960, date of appointment as 24.08.1984. He further admitted that the left over service of deceased is seven years. He further stated that 12 that he cannot say whether the deceased was in service as on the date of accident or not and denied the other suggestions put to him. Though he was cross examined at length, nothing worth was elicited to dis-believe his evidence.
24. It is pertinent to state that there is no dispute regarding the manner of accident, injuries sustained by the deceased and death of the deceased while undergoing treatment. Therefore, the learned Tribunal after considering all the aspects has answered the issue Nos.1 and 2 in favour of the petitioners and hence, 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.
25. Now coming to the compensation amount, as per the claim petitioners, the deceased was a Railway employee-cum- agriculturist and was earning an amount of Rs.30,000/- per month. However, they have relied upon Ex.X1/salary certificate, which was marked through PW3 and contended that the said salary certificate shows the net income of 13 deceased at Rs.17,624/-, the learned Tribunal has not considered the said salary certificate and erred in finding that no documentary evidence is filed to show that the deceased was in service as on the date of accident. A perusal of record discloses that PW3, who is the Junior Engineer, Umri has categorically deposed about the employment of the deceased in the Railways. Considering that he has neither brought the authorization letter in writing nor brought the original record on the basis of which Ex.X1 was issued, the learned Tribunal has taken income at the rate of Rs.4,500/- per month. However, considering the occupation of the deceased which is not disputed, this Court is inclined to take into consideration the income at the rate of Rs.8,000/- per month. While calculating further compensation amount, the learned Tribunal has not awarded future prospects.
26. In Kirti and another v. Oriental Insurance Company Ltd 1 the Honourable Supreme Court of India held that:
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Civil Appeal Nos.1920 of 2021 [Arising out of Special Leave Petition(C) Nos.1872829 of 2018] 14 "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."
27. 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 60 years, an addition of 10% of established income can 2 2017 ACJ 2700 15 be awarded. In the case on hand, the established income of the deceased is Rs.8,000/- per month.
28. In view of the decision of the Honourable Apex Court in Pranay Sethi case (cited supra) 10% i.e., Rs.800/- towards future prospects can duly be added thereto, which comes to Rs.8,800/- (Rs.8,000/- + Rs.800/-). Hence, this Court is inclined to fix the annual income of the deceased at Rs.1,05,600/- (Rs.8,800x12). Since there are two dependents, after deducting 1/3rd of the income (Rs.35,200/-) 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.70,400/- (Rs.1,05,600/- minus Rs.35,200/-).
29. Based on the inquest and Post mortem examination report, the learned Tribunal has taken the age of the deceased as 60 years, however, erred in applying the multiplier of '7' while computing the compensation. Therefore, as per the decision of the Honourable Apex Court in Smt.Sarla Varma (supra), the 3 2009 (6) SCC 121 16 appropriate multiplier is '9'. Thus, applying the multiplier '9' to the annual loss of dependency, which is already arrived at Rs.70,400/-, the total 'loss of dependency' comes to Rs.6,33,600/- (Rs.70,400/- x 9). As seen from the Order of the learned Tribunal, an amount of Rs.25,000/- was awarded towards funeral expenses, Rs.30,000/- towards loss of love and affection and loss of consortium, Rs.20,000/- towards loss of estate and Rs.10,000/- towards transportation and this Court is not inclined to interfere with the said findings. Thus, in all, petitioners are entitled to compensation of Rs.7,18,600/- (Rupees Seven Lakhs Eighteen Thousand Six Hundred only).
30. In view of the above discussion, this Court is of the considered opinion that the compensation amount awarded by the Tribunal at Rs.3,37,000/- is at lower side and the same is enhanced to Rs.7,18,600/-. In so far as interest is concerned, the learned Tribunal has rightly awarded interest at the rate of 7.5 percent per annum from the date of petition till the date of deposit and the same rate of interest is applicable on the enhanced compensation amount from the date of petition till the date of realization. The enhanced 17 compensation amount along with interest, 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.
31. In the result, this Motor Accident Civil Miscellaneous Appeal is partly allowed enhancing the compensation amount awarded by the Tribunal from Rs.3,37,000/- to Rs.7,18,600/- along with interest at the rate of 7.5 percent per annum from the date of petition till the date of realization. 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: 28-MAR-2024 gvl