Boddu Rama Kumari, Spsr Nellore ... vs U Srinivas, Nalgonda Dist Anr
2021 Latest Caselaw 2046 AP

     THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                                AND

          THE HON'BLE MS. JUSTICE J. UMADEVI

          M.A.C.M.A. Nos. 3362 of 2016 and 987 of 2017

COMMON JUDGMENT: (Per UDPR,J)

      On 25.11.2012 at about 10:30 AM while one Boddu Srinivasa

Rao working as police constable at Mangalagiri was proceeding on his

motor cycle bearing registration No.AP07 AD 7690 to attend

Bandobast duty at Sivalayam temple, Peddakakani Village           and

reached Kali Gardens on NH5 road, Namburu Village, a TATA Indica

car bearing registration No.AP24 AG 0126 being driven in a rash and

negligent manner and at high speed and without blowing horn came

behind his motor cycle and hit him and he fell down and sustained

grievous injuries and while undergoing treatment in Apollo Hospital,

Hyderabad, succumbed to injuries and died on 30.11.2012.          The

claimants who are his wife, minor children and aged parents filed

MVOP No.847/2012 before MACT-cum-I Additional District Judge,

Nellore claiming Rs.30,00,000/- as compensation against respondent

Nos.1 and 2 who are the owner and insurer of the offending car.

2. The 1st respondent remained ex-parte and 2nd respondent/

Insurance Company filed counter and opposed the claim petition. It

mainly contended that the car was validly insured with the 2nd

respondent Insurance Company; the driver of the car did not posses

valid and effective driving licence on the date of accident; the

deceased drove his vehicle in a rash and negligent manner and UDPR,J & JUD,J

contributed to the accident; the compensation was highly exorbitant

and thus prayed to dismiss the petition.

3. The lower tribunal framed following issues:

i) Whether the accident occurred due to rash and negligent driving of the driver of Tata Indica Car Bearing No. AP 24 AG 0126?

ii) Whether the petitioners are entitled for compensation ? If so, to what extent and amount ?

iii) To what relief?

4. During trial the PW 1 to 3 are examined and Ex.A1 to A4 and

X1 to X3 were marked on behalf of petitioners/claimants. Ex.B1 was

marked on behalf of respondent.

a) Lower tribunal basing on the evidence on record, awarded

Rs.26,85,900/- with interest @ 6% p.a against respondent Nos.1 and 2

under the following heads:

      (i)      Loss of dependency                            Rs.25,50,900/-
      (ii)     Loss of consortium to the 1st claimant        Rs.1,00,000/-
      (iii) Funeral expenses                                 Rs. 25,000/-
      (iv) Loss of estate                                    Rs.            5,000/-
      (v)      Transportation charges                        Rs.            5,000/-
                                 TOTAL                       Rs.26,85,900/-



b)    Challenging the above quantum of compensation awarded by

the lower tribunal, the 2nd respondent Insurance Company filed

M.A.C.M.A.No.3362 of 2016 and claimants also filed UDPR,J & JUD,J

M.A.C.M.A.No.987 of 2017 against 2nd respondent Insurance

Company.

c) It should be noted that in judgment dated 21.04.2016, the lower

tribunal did not give any finding on issue No.1. Therefore, a Division

Bench of this High Court in its order dated 18.01.2018 directed the

tribunal to render a specific finding with detailed reasons on issue

No.1 and submit to the appellate Court to decide the appeal.

Accordingly, the tribunal basing on the evidence on record, gave its

finding vide order dated 08.08.2018 on issue No.1 to the effect that

the accident in question was occurred due to rash and negligent

driving of the driver of the offending car bearing registration No.AP

24 AG 0126.

5. Heard arguments of Sri D. Ravi Kiran, learned counsel for

appellant/Insurance Company in M.A.C.M.A No.3362 of 2016 and

respondent in M.A.C.M.A.No.987 of 2017 and Sri K. Gopal, learned

counsel for appellants/claimants in M.A.C.M.A.No.987 of 2017 and

respondent Nos.1 to 5 in M.A.C.M.A.No.3362 of 2016.

a) The fulcrum of argument of learned counsel for

appellant/Insurance Company Sri D. Ravi Kiran is that the accident

was occurred due to contributory negligence of the deceased, thereby,

the two vehicles collided together. Hence, the lower tribunal ought to

have apportioned the responsibility between both the drivers.

However, it erroneously fixed the responsibility entirely on the car

driver. Nextly, learned counsel argued that the tribunal committed UDPR,J & JUD,J

grave error in adding 50% of the earnings of the deceased towards

future prospects. Since the deceased was in the age group of 40 to 50

years, the tribunal by following dictum in Sarla Verma and Ors Vs.

Delhi Transport Corporation and Ors1, should have added only 30%

of his earnings towards future prospects. In view of such mistake, the

compensation was drastically increased. He thus prayed to allow the

appeal and re-assess the compensation.

b) Per contra, Sri K. Gopal, learned counsel for claimants/

appellants in M.A.C.M.A.No.987 of 2017 firstly argued that having

regard to the oral and documentary evidence on record, the tribunal

has rightly held that the entire responsibility was with the car driver

and the contra argument of Insurance Company is untenable.

c) Nextly, regarding the quantum of compensation, while

opposing the contention of Insurance Company, learned counsel

argued that the tribunal has rightly taken 50% of the income towards

future prospects. He however carped the tribunal's decision to deduct

10% towards income tax. He argued that there was no need to deduct

any tax because the deceased was exempted from paying income tax.

He further argued that the tribunal ought to have awarded

compensation under separate heads for loss of love and affection

towards parents and children of the deceased. In this regard he relied

2009ACJ1298 = MANU/SC/0606/2009 UDPR,J & JUD,J

upon the judgment in The New India Assurance Company Limited

and Ors Vs. Somwati and Ors.2

Heard.

6. Points for consideration in both the appeals are:

(i) Whether the tribunal was right in holding that the car driver

was entirely responsible for the accident?

(ii) Whether the compensation awarded by the tribunal is

factually and legally correct or requires re-consideration?

POINT

(i) As already sated supra, when the tribunal failed to give its

finding on issue No.1 framed by it, this Court vide its order dated

18.01.2018 directed the tribunal to render a specific finding on issue

No.1 and transmit to this Court. The tribunal obliged the same and

recorded its specific finding on issue No.1 holding that the car driver

was responsible for the accident vide its order dated 08.08.2018.

We perused the aforesaid finding. The tribunal having regard

to the oral evidence of PW2 eye-witness, who is having a shop near

the accident spot i.e. Kali Gardens on NH5 road, Namburu Village

and also considering the documentary evidence such as Ex.A1 FIR

and A4 - Charge Sheet, whereunder car driver was charge-sheeted by

the Investigating Officer, held that car deriver was entirely responsible

for the accident. The facts would disclose that offending car went

2020ACJ2321 = MANU/SC/0674/2020 UDPR,J & JUD,J

behind the motor cycle at high speed and without blowing horn and

dashed the motor cycle. This fact which is undisputed would manifest

that the car driver was responsible for the accident. As observed by

the tribunal, the car driver was not examined to explain under what

circumstance, he happened to dash the front going motor cycle and

whether the motor cycle suddenly appeared in front of the car etc.,

facts. Therefore, considering the evidence on record, the tribunal has

rightly held that the car driver was responsible for the accident. We

see no reason to disagree with the said finding. This point is answered

accordingly.

(ii) Point No.2 is concerned, as already stated supra, both the

Insurance Company as well as claimants have challenged the quantum

of compensation. The prime contention of the Insurance Company is

that the tribunal ought to have taken 30% of the income of the

deceased towards his future prospects instead of 50%. In this regard,

a perusal of the judgment of the tribunal shows that having regard to

the fact that as per Ex.X2 Service Register, the date of birth of the

deceased was 01.07.1973 and by the date of his death on 30.11.2012,

he was aged 39 years and 3 months and thus below 40 years, the

tribunal added 50% to the actual income of the deceased towards

future prospects by following the judgment in Sarla Vermai's case

(Supra 1). Then, taking the net salary of the deceased as Rs.13,997/-

(vide Ex.X1) and adding 50% of future prospects, the tribunal arrived

that the gross annual income of the deceased at Rs.2,51,940/-

UDPR,J & JUD,J

[(13,997+6,998) X 12 = 2,51,940]. From the gross annual income, it

deducted 10% towards income tax and thus arrived the net income at

Rs.2,26,746/-. In Sarla Verma's case (Supra 1), it was observed by

the Hon'ble Apex Court that 50% of the actual salary has to be added

where the deceased had a permanent job and was below 40 years. In

that view, we do not find any flaw in the calculation of the tribunal as

narrated supra and consequently we cannot countenance the argument

of learned counsel for Insurance Company.

7. Then, regarding the argument of learned counsel for claimants

that not only the wife but the parents and minor children of the

deceased are also entitled to compensation for loss of filial consortium

and parental consortium is concerned, in The New India Assurance

Company Limited and Ors Vs. Somwati and Ors case (Supra 2) while

referring judgment in Magma General Insurance Co Ltd. Vs. Nanu

Ram and Ors3, Hon'ble Apex Court held that like spousal consortium

and parental consortium, filial consortium is also payable. In the

instant case, the lower tribunal granted only spousal consortium. In

that view, we deem it appropriate to award Rs.10,000/- each towards

parental consortium and filial consortium. In that view, the total

compensation is enhanced from Rs.26,85,900/- to 27,05,900/-.

8. In the result, the M.A.C.M.A No.3362 of 2016 filed by the

Insurance Company is dismissed and M.A.C.M.A No.987 of 2017

filed by the petitioners/claimants is partly allowed and compensation

2018ACJ2782 = MANU/SC/1012/2018 UDPR,J & JUD,J

of Rs.26,85,900/- awarded by the lower tribunal is enhanced to

Rs.27,05,900/- with interest @ 6% p.a from the date of petition till the

date of realization and costs. The respondents are directed to deposit

compensation within two months from the date of receipt of a copy of

this order failing which, the petitioners can take out execution against

the respondents. No costs.

As a sequel, interlocutory applications, if any pending, shall stand

closed.

_________________________ U. DURGA PRASAD RAO, J

________________ J. UMADEVI, J st 21 June, 2021 krk UDPR,J & JUD,J

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE MS. JUSTICE J. UMADEVI

M.A.C.M.A. Nos. 3362 of 2016 and 987 of 2017

21st June, 2021 krk