Mathukumalli Parvathi Another vs The Apsrtc , Rep. By Its M.D 4 Others
2022 Latest Caselaw 9329 AP

                                                                           1
                                                              MACMA_559_2012
                                                                           &
                                                              MACMA_681_2012

           HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                       M.A.C.M.A. No.559 OF 2012

                                     &

                       M.A.C.M.A. No.681 OF 2012

COMMON JUDGMENT:


  1. Aggrieved by the order dated 21.11.2011 in M.V.O.P. No.208 of 2008

     passed by the Chairman, Motor Accidents Claims Tribunal-cum-

     Judge, Family Court, S.P.S.R. Nellore District; the claimants 1 and 4

     preferred M.A.C.M.A. No.559 of 2012 seeking enhancement of

     compensation and the respondent-Corporation preferred M.A.C.M.A.

No.681 of 2012 questioning the quantum of award passed by the

tribunal.

2. Since both the appeals preferred against the same order, this Court is

inclined to dispose of both appeals by a common judgment.

3. For convenience, hereinafter the parties will be referred to as per their

rankings in the M.V.O.P.

4. The claimants filed a claim petition under Section 166 of the Motor

Vehicles Act, 1988 read with Section 140 of the said Act claiming a

compensation amount of Rs.16,50,000/-, for the death of

Mathukumalli Venkata Narasimha Rao. The 1st claimant is the wife,

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and claimants 2 to 6 are the children of the deceased Mathukumalli

Venkata Narasimha Rao.

5. The claimant's case is that on 02.10.2007 at about 5.30 PM, the said

Mathukumalli Venkata Narasimha Rao, a pillion rider while travelling

on a motorcycle bearing No. A.P. Z 8 AD 2446, along with his friend

Gudluru Prakasa Rao, from their house in Janathapeta, on the

Udayagiri over the bridge, one R.T.C. bus of Kavali Depot bearing No.

A.P. 11 Z 1696, rashly and negligently driven by its driver, dashed the

motorcycle from its back. In the said accident, the rider of the said

two-wheeler received simple injuries all over his body, and its pillion

rider sustained grievous injuries and succumbed to death. The said

Mathukumalli Venkata Narasimha Rao will hereinafter be referred to

as 'the deceased'.

6. The respondent-Corporation filed a counter contending that while the

bus driver gave the horn, the motorcyclist gave the signal to pass the

motorcycle, and the bus driver was overtaking the motorcycle.

Suddenly the rider of the motorcycle came into the middle of the road;

in that process, the motorcycle hit on the rear back side tyre of the

bus, and the accident occurred due to rash and negligent driving of

the rider of the motorcycle.

7. Based on the pleadings, the tribunal framed appropriate issues. To

substantiate the case, on behalf of the claimants, P.Ws.1 and 2 got

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examined and marked Exs.A.1 to A.7. On behalf of the respondents,

R.W.1 got examined, but no documentary evidence was adduced.

8. Appreciating the oral and documentary evidence on record, the

tribunal held that there was rash and negligent driving on the bus

driver's part. It awarded a compensation of Rs.7,31,410/- with

interest at 7.5% per annum.

9. Heard the learned counsel in both appeals.

10. Learned counsel for the claimants contended that the tribunal was

not justified in taking into consideration of the monthly earnings of the

deceased Rs.11,279/-, ought to have considered the future prospectus

of the deceased, and ought to have seen that the claimants are a wife

and 5 children and thereby deduction of 1/3rd monthly income

towards personal and living expenses of the deceased is not justified

and the tribunal ought to have awarded consortium amount in the

light of the rulings of the Apex Court.

11. Learned standing counsel for the respondent-Corporation contended

that the claim petition is bad for non-joinder of necessary parties, the

motorcycle did not have a driving licence at the time of the accident,

and the deceased himself was responsible for the accident. It is further

contended that the tribunal failed to see that claimants 2 to 5 are

earning members, not dependent upon the deceased. The tribunal

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applied the wrong multiplier '8' by treating the age of the deceased as

55 years instead of 62 years, and the interest awarded by the tribunal

at 7.5% per annum is excessive.

12. Upon hearing the argument of both the counsel, the points for

consideration are,

I. Whether the accident occurred due to the contributory negligence of the deceased?

II. Whether the compensation and the rate of interest awarded by the tribunal just and reasonable or required to be modified?

POINT No. I

13. To substantiate the claim, the 4th claimant, the son of the deceased,

was examined as P.W.1. In his evidence, P.W.1 narrated the manner of

an accident. P.W.2, the motorcycle's rider, testified that the deceased

was a pillion rider while going to Kavali town on his motorcycle bearing

No. A.P. Z 8 A 2446 from their house in Janathapet on 02.10.2007 at

about 5.30 PM on Udayagiri over the bridge the bus of Kavali depot

bearing No. AP II Z 1696, driven by its driver in a rash and negligent

manner, dashed the said motorcycle from their back. The evidence of

P.W.2 shows that he reported the accident to the police. Though P.W.2

was cross-examined at length, nothing was elicited to discredit his

testimony.

14. On the other hand, to prove the manner of the accident, the claimants

relied on Ex.A.1-attested copy of F.I.R. and Ex.A.5-attested copy of the

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charge sheet. The respondent corporation also got examined R.W.1

who was the conductor of the bus on the date of the accident. It is the

evidence of R.W.1 that the accident occurred due to the negligence of

the rider of the motorcycle. He further testified that he gave a report

against the rider of motorcycle rider about his negligent act. Though he

testified that he reported to Kavali town police, no evidence is produced

to show that he lodged a report. He further testified that he is not

having any evidence to show that he informed the occurrence of an

accident in the depot. Nothing on record to suggest that the police

examined him in the accident case. If the accident took place due to

the fault of the rider of motorcycle, the police would not have filed a

charge sheet against the driver of the R.T.C. bus. The material placed

on record also shows that the R.T.C. bus dashed the motorcycle from

its back side.

15. The contention of the respondent-Corporation regarding the non-

joinder of necessary parties is concerned, this Court views that since

the accident occurred due to the negligence of the R.T.C. bus driver,

the claimants did not implead the rider and insurer of the motorcycle

as parties to the proceedings.

16. The contention regarding the rider of the motorcycle is not having

driving licence. However the claimants filed Ex.A.7-driving licence of

the rider of the motorcycle. As such, the contention raised by the

respondent-Corporation has no merit. By taking into consideration

MACMA_559_2012 & MACMA_681_2012

these facts, the tribunal has come to a conclusion that the R.T.C. bus

driver is responsible for the accident, which cannot be found fault

with. Accordingly, the point is answered.

POINT No. II

17. The compensation under the head loss of dependency is concerned;

there is no dispute regarding the death of Mathukumalli Venkata

Narasimha Rao (deceased herein) due to the injuries sustained in the

accident. The 1st claimant is the wife, claimants 2 and 4 are the sons,

and claimants 3, 5 and 6 are the daughters of the deceased. The

relationship of the claimants with the deceased is not in dispute.

18. It is the case of the claimants that the deceased had worked as a

Junior Accounts Officer in A.P. Transco, Kavali. The respondent-

Corporation has contended that the tribunal wrongly considered the

age of the deceased as 55 years instead of 62 years. To prove the age of

the deceased, the claimants relied on Ex.A.3-pension certificate, which

shows the date of birth of the deceased as 1.10.1950 and the date of

accident as 02.10.2007. According to Ex.A.3, the deceased's age was

57 years one day. Hence, the contention raised by the respondent-

Corporation is not tenable. To prove the deceased's income, the

claimants relied on Ex.A.3-pension certificate, which shows that he

was drawing a pension of Rs.11,279/-. No contrary evidence was

adduced from the A.P. Transco disputing the pension amount as

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shown in Ex.A.3-pension certificate. Hence, the tribunal's findings

regarding the monthly earnings of the deceased at Rs.11,279/- cannot

be found fault with. The tribunal deducted 1/3rd of the earnings of the

deceased towards the personal and living expenses of the deceased.

The same is questioned by the claimants by contending that they are

the dependants 6 in number, and the tribunal is required to be

deducted 1/6th of the income towards the personal and living expenses

of the deceased. I have gone through the claim petition, wherein it is

mentioned that claimants 2 and 4 are sons aged 29 and 26 years, and

claimants 3, 5 and 6 are daughters aged 28, 23 and 20 years,

respectively. In the facts of the case, this Court views that the tribunal

is justified to consider the deduction of 1/3rd of the earnings as

personal and living expenses since all the children are majors. The

deceased's contribution of earnings to the family comes to Rs.7,520/-.

Regarding the award in respect of the future prospectus is concerned,

the tribunal did not award any amount towards the future prospectus.

In National Insurance Company Ltd. vs Pranay Sethi 1 the Apex

Court, at paragraph 61, held that,

(iii) When determining the income, an addition of 50% of the actual salary to the income of the deceased towards prospects, where the deceased had a permanent job and was below the age of 40, should be made. The addition should be 30% if the age of the deceased is between 40 to 50 years. If the deceased was between 50 to 60 years, the addition

(2017) 16 SCC 680

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should be 15%. Actual salary should be read as basic salary less tax.

(iv) If the deceased was self-employed or on a fixed salary, an additional 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 computation method. The established income means the income minus the tax component.

19. Here, in this case, the deceased had obtained voluntary retirement

from the services at A.P. Transco. Hence, the deceased can be

considered self-employed, and as such, this Court views that an

addition of 10% of the established income should be the warrant

towards future prospectus. The income, including a future prospectus,

arrives at Rs.8,272/-(7,520+ 752). Regarding the application multiplier

concerned, the tribunal applied the multiplier '8' for persons above 55

years but not exceeding 60 years as provided in the second schedule of

M.V.Act, which would be applicable for the claims under Section 163-A

of the Motor Vehicles Act. In the light of guidelines laid down by the

Apex Court in Sarala Varma v. Delhi Transport Corporation 2 ,this

Court views that the appropriate multiplier for the person's age group,

56 to 60 years, is '9' and thereby, the loss of earnings of the deceased

would arrive at Rs.8,93,376/- (8,272x12x9).

20. Coming to the consideration of funeral expenses, loss of estate and

2009 ACJ 1298

MACMA_559_2012 & MACMA_681_2012

loss of consortium, in Pranay Sethi's casereferred to supra, the Apex

Court held, in paragraph 61, that:

"(viii) Reasonable figures under conventional heads, namely, loss of estate, loss of consortium and funeral expenses, should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at 10% every three years."

21. In Magma General Ins. Co. Ltd., v. Nanu Ram3, at paragraph 8, the

Apex Court held that:

"(8.6)...the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant. ....

(8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium. In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. Concerning a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.).

2013 ACJ 1403 (S.C.)

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The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training.

The filial consortium is the right of parents to compensate in the case of the accidental death of a child. An accident leading to the end of a child causes great shock and agony to the parents and family of the deceased. The most incredible suffering for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and role in the family unit."

22. By following the principles laid down by the Apex Court in Pranay

Sethi's case and Magma General Insurance Co. Ltd's casereferred to

supra, this Court inclined to award the compensation as detailed

hereunder:-

Towards loss of dependency Rs. 8,93,376/-

         Towards funeral expenses               Rs. 16,500/-
         Towards Loss of Estate                 Rs. 16,500/-
         Spousal consortium                     Rs. 44,000/-
         Filial consortium                      Rs.1,00,000/-(each 20,000/-)
                                                -------------------------
                  Total:                         Rs.10,70,376/-
                                               -------------------------

23. The learned counsel for the respondent-Corporation mainly contended

that the tribunal had granted interest @ 7.5% per annum, and the rate

of interest granted by the tribunal is excessive, and it is to be scaled

down to 6% p.a.

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24. The learned counsel for the respondent-Corporation has not placed

any evidence before the Court to show the prevailing rate of interest as

of the date of the accident. In United India Insurance Co. Ltd. vs

Satinder Kaur4 the Apex Court held that the tribunal allowed 9% p.a.

from filing the claim petition. However, the High Court reduced the

interest rate to 7.5% p.a. The Apex Court has observed that they deem

it appropriate to direct the interest @ 12% p.a. to be paid on the total

compensation awarded.

25. By following the principle laid down by the Apex Court, this Court

believes that granting the rate of interest depends on the facts and

circumstances of the case. The tribunal, at its discretion, granted 7.5%

p.a. after considering the entire material on record; this Court views

that the interest need not be scaled down, as the tribunal has

exercised its discretion in an appropriate way.

26. In view of the aforesaid discussion, the appeal in M.A.C.M.A. No.559

of 2012 is allowed in part to enhance the compensation from an

amount of Rs.7,31,410/- to an amount of Rs.10,70,376/- (Rupees ten

lakhs, seventy thousand, three hundred and seventy-six only) with

interest at 7.5% per annum as awarded by the tribunal. The 1st

claimant, the deceased's wife, is entitled to the enhanced

compensation with accrued interest on the enhanced compensation

2020 ACJ 2131

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amount and is permitted to withdraw her share. The respondent-

Corporation is directed to deposit the enhanced compensation amount

within two months of receiving a copy of this order.

27. The appeal in M.A.C.M.A. No.681 of 2012 preferred by the

respondent-Corporation is devoid of merits, and the appeal deserves to

be dismissed. Accordingly, the appeal is dismissed.

28. There shall be no order as to costs in both appeals.

29. Miscellaneous Petitions, if any, pending in these appeals shall stand

closed.

------------------------------------- T. MALLIKARJUNA RAO, J.

Dt. .12.2022 BV