Madiga Orugallu Hanumanthu 3 ... vs T. Subbarathnamma Another
2021 Latest Caselaw 4999 AP

       HON'BLE SRI JUSTICE NINALA JAYASURYA

                    M.A.C.M.A.No.556 of 2006

JUDGMENT:

This is an appeal filed by the claimants, aggrieved by the

order and decree dated 23.07.2003 passed by the Chairman, Motor

Accident Claims Tribunal-cum-II Additional District Judge,

Kurnool (herein after referred to as „the Claims Tribunal‟) in

M.V.O.P.No.499 of 2001 wherein the claim of the claimants was

rejected.

2. Heard Mr. C. Prakash Reddy, learned counsel for the

appellants/claimants, and Smt. A. Jayanthi, learned Standing

Counsel for the 2nd respondent-Insurance Company.

3. Appellant Nos.1 and 2 are the parents, the 3rd appellant is the

sister and the 4th appellant is the brother of one Madiga Orugallu

Sivakrishna. On 01.01.1999 the said Sivakrishna and another while

travelling on a motor cycle bearing registration No.AP 21 2745

dashed against an oil tanker bearing No. KA 01A 1255 near

Nandyal Check Post, Kurnool, which was parked on the road

without parking lights and blinkers on, as a result of which, the said

Sivakrishna sustained grievous injuries and died on the spot. The

appellants filed the above said O.P. claiming a compensation of

Rs.1,50,000/- inter alia stating that the deceased was aged about 22

years and earning Rs.3,000/- p.m. by running a laundry shop.

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4. The Claims Tribunal, on contest of the matter by the 2nd

respondent-Insurance Company and on considering the material on

record, came to the conclusion that the accident occurred because of

rash and negligent driving of the motor cycle and dismissed the

claim petition holding that the respondents are not liable to pay

compensation. Aggrieved by the said order and decree, the present

appeal came to be filed.

5. Learned counsel for the appellants/claimants inter alia

submits that the findings recorded by the Claims Tribunal are not

sustainable, since the evidence adduced by the claimants was not

properly appreciated. He further submits that in another case i.e.,

M.V.O.P.No.818 of 1999 arising out of the same accident, the

Claims Tribunal had come to a conclusion that the accident was due

to contributory negligence of both the driver of the oil tanker as well

as the deceased and apportioned the same at 50:50. Learned counsel

further submits that in the present case, the Claims Tribunal ought to

have fixed the contributory negligence and determined the

compensation. He also submits that the order passed by the Claims

Tribunal in O.P.No.818 of 1999 dated 24.01.2003 was confirmed by

this Court in the appeal filed by the 2nd respondent-Insurance

Company in C.M.A.No.2288 of 2003 vide judgment dated

10.10.2007. In view of confirmation of the order of the Claims

Tribunal determining the negligence as 50:50, the same would be

applicable to the present case and accordingly, he submits that

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appropriate compensation may be determined and the negligence

may be apportioned at 50:50.

6. This Court has perused the judgment passed in

C.M.A.No.2288 of 2003 dated 10.10.2007 and it is not in dispute

that the said judgment came to be passed in respect of the appeal

filed against the award in the O.P. arising out of the same accident.

The learned Judge of the erstwhile High Court of Andhra Pradesh at

Hyderabad dismissed the appeal on the ground that necessary

permission under Section 170 of the M.V. Act was not obtained. By

virtue of the same, the order of the Claims Tribunal in

M.V.O.P.No.818 of 1999, wherein a decree in favour of the

claimants was passed awarding compensation by apportioning the

negligence at 50:50, became final. Keeping in view the above said

undisputed position, this Court is inclined to determine the

compensation in the present case.

7. As per the averments made in the claim petition, the deceased

was earning Rs.3,000/- p.m. by doing laundry business. The

appellants/claimants are not expected to adduce any documentary

evidence to substantiate their claim. The monthly wage during the

relevant period would be not less than Rs.75/- per day. Therefore,

this Court deems it appropriate to take the monthly income of the

deceased at Rs.2,250/- which would be reasonable. Applying the

principle in National Insurance Company Limited Vs. Pranay

Sethi, reported in 2017 (16) SCC 680, considering the age of the

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deceased, 40% of the income has to be taken into consideration

towards future prospects. The deceased being unmarried and aged

about 22 years, the applicable multiplier would be "18" in terms of

the judgment in Sarla Varma Vs. Delhi Transport Corporation,

reported in 2009 (6) SCC 121. Accordingly, the loss of dependency

is arrived at as follows:

Monthly income of the deceased + 40% of the monthly income towards future prospects (i.e.Rs.2,250/- - Rs.900/-) Rs.3,150/-

Total income of the deceased per month after deducting 50% personal expenses Rs.1,575/-

Total loss of future dependency Rs.3,40,200/- (Rs.1,575/- x 18 x 12)

8. Further, in the light of the fact that in respect of the same

accident, the orders of the Claims Tribunal apportioning the

negligence on the part of the driver of the tanker and the motor

cyclist were confirmed in C.M.A.No.2288 of 2003 dated

10.10.2007, this Court is inclined to apportion the negligence at

50:50. Accordingly, the claimants are entitled to Rs.1,70,100/-.

9. Further, the claimants, in the light of the principle laid down

in the judgment of the Hon‟ble Supreme Court in Pranay Sethi's

case, are entitled to the amounts under the conventional heads and

accordingly, a sum of Rs.15,000/- towards loss of estate and a sum

of Rs.15,000/- towards funeral expenses are awarded.

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10. In the light of the judgment of the Hon‟ble Supreme Court in

Magma General Insurance Company Limited Vs. Nanu Ram @

Chuhru Ram, reported in 2018 Law Suit (SC) 904, a sum of

Rs.40,000/- is awarded to the parents and Rs.40,000/- to the siblings

of the deceased towards filial consortium.

11. Thus, in all, the claimants are entitled for a compensation of

Rs.2,80,100/-.

12. Though the claimants claimed Rs.1,50,000/- towards

compensation, as per the judgment of the Hon‟ble Supreme Court in

Ramla Vs. National Insurance Company Limited, reported in 2019

(2) SCC 192, just and reasonable compensation can be awarded.

However, the claimants shall pay the requisite Court fee in respect

of the amount awarded over and above the compensation claimed.

13. In the result, the M.A.C.M.A. is allowed and the order and

decree dated 23.07.2003 passed by the Chairman, Motor Accident

Claims Tribunal-cum-II Additional District Judge, Kurnool, in

M.V.O.P.No.499 of 2001 are set aside. The appellants/claimants

are entitled to Rs.2,80,100/- with proportionate costs and interest @

7.5% p.a. from the date of original petition till the date of realization

jointly and severally against the respondents. The 2nd respondent-

Insurance Company shall deposit the amount of compensation

together with interest, within a period of eight (8) weeks from the

date of receipt of a copy of this order. On such deposit, the

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appellants/claimants are permitted to withdraw the amount, as per

their entitlement, in accordance with law. No order as to costs in

the appeal.

14. Consequently, miscellaneous petitions, if any, pending in the

appeal shall stand disposed of.

_______________________ NINALA JAYASURYA, J December, 2021 cbs

NJS, J MACMA_556_2006

HON‟BLE SRI JUSTICE NINALA JAYASURYA

M.A.C.M.A.No. 556 of 2006

December, 2021

cbs