United India Insurance Company ... vs Upalapati Siva Kumari And 2 Others
2022 Latest Caselaw 9466 AP

              THE HON'BLE SRI JUSTICE M.GANGA RAO
                                   AND
               THE HON'BLE SRI JUSTICE V.SRINIVAS

          M.A.C.M.A.Nos.127 of 2010 and 2418 of 2013


COMMON JUDGMENT: (per Hon'ble Sri Justice V.Srinivas)

      These appeals are directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-District

Judge,   Guntur     (hereinafter    called    as   'the   Tribunal')     in

M.V.O.P.No.1189 of 2007 dated 30.03.2009.

2.    These appeals arising out of same accident and raising

common questions of law have been heard together and are being

decided by this common judgment.

3.    The facts concerned to these cases remain in short compass.

4.    In M.A.C.M.A.No.127 of 2010 the insurer of the Bus bearing

No.KA 17B 7374, belonging to the 3rd respondent herein, is the

appellant. The respondent Nos.1 and 2 are mother and paternal

grandfather of Vamsi Krishna (hereinafter called as 'the

deceased'). Respondent No.4 and 5 herein are the insured and

insurer of Tayota Quallis Vehicle bearing No.KA 04 AA 5400.

5. In M.A.C.M.A.No.2418 of 2013 the claimants are the

appellants for enhancement of compensation.

6. According to the claimants, in the petition before the

Tribunal, on 20.10.2006 at about 06.30 A.M., when the deceased

and some others were proceeding in the Tayota Quallis Vehicle

bearing No.KA 04 AA 5400 from Bangalore to Goa, on the way, near

Davangare, the bus bearing No.KA 17B 7374, being driven by its

driver at high speed and in a rash and negligent manner, came in

opposite direction towards wrong side and hit the said Tayota

Quallis Vehicle. As a result, the deceased and three others died on

the spot. By the time of accident the deceased was aged about 24

years and earning Rs.3,00,092/- per annum by working as Software

Engineer in Cognizant Technology Solutions India Private Limited,

Chennai. Being dependents, the claimants filed petition under M.V.

Act claiming compensation of Rs.40,00,000/- against insurer and

insured of both the vehicles.

7. Written statement was filed by the owner of the bus,

denying all the material allegations, stating that the bus was

validly insured; and that the accident occurred due to rash and

negligent driving of the Quallis vehicle and hence, he is not liable

to pay compensation.

8. Written statement was filed by the insurer of the bus,

denying all the material allegations, stating that the accident

occurred due to rash and negligent driving of the Quallis vehicle;

and that the claimants have to prove that the owner of the bus has

not violated the terms of the policy.

9. Written Statement was filed by the owner of the Tayota

Quallis vehicle, denying the material allegations, stating that the

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

violating the traffic rules towards wrong side and hit the Quallis

vehicle and hence, he is not liable to pay compensation.

10. Written statement was filed by the insurer of the Qualliz

vehicle, denying all the material allegations, stating that the

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

that police registered crime against the driver of the bus and filed

charge sheet.

11. The Tribunal settled the following issues for enquiry basing

on the material:

1.Whether the deceased died in the accident caused due to rash and negligent driving of the Bus bearing No.KA 17B 7374 and Qualis No.KA 04 AA 5400 by their drivers ?

2.Whether the petitioners are entitled for compensation? If so, what would be the just amount of compensation that the petitioners would be entitled to and against whom?

3.To what relief?

12. In the course of enquiry, on behalf of the claimants, PWs.1

to 4 were examined and Exs.A.1 to A.13 and X.1 were marked. On

behalf of the insurer of the bus, R.W.1 was examined, Exs.B.1 to

B.5 were marked. One J.Rahamtulla, R.T.A. official was examined

as R.W.2.

13. On the material, the Tribunal, having come to the conclusion

that the accident occurred due to the rash and negligent driving of

the bus by its driver, held that mother and paternal grandfather of

the deceased are entitled for the compensation of Rs.20,47,000/-,

with interest at 7% per annum from the date of petition till the

date of realization, for the death of the deceased in the accident

and the insured and insurer of the crime bus shall deposit the

compensation within 2 months from the date of order and that the

appellant/insurer is entitled to recover the compensation, in case

of payment if any, from the owner of the bus/insured, by filing

Execution Petition against him and that the petition against

insured and insurer of the Tayota Quallis vehicle is dismissed.

14. It is against the said order, these appeals are preferred by

the claimants and insurer of the Bus bearing No.KA 17B 7374.

15. Heard Sri Srinivasa Rao Vutla, learned counsel for the

appellant/insurer of the Bus, Sri Siva Prasad Reddy, Venati, learned

counsel for the insured of the Bus, Sri Sricharan Telaprolu, learned

counsel for the appellants/claimants.

16. Now, the following points arise for determination:

1. Whether there is any contributory negligent on the part of the driver of the Tayota Quallis Vehicle?

2. Whether the compensation awarded to the claimants is just compensation? and

3. To what relief ?

17. POINT No.1:

The documents placed on record goes to show that the

accident occurred due to rash and negligent driving of the driver

of the bus alone as per Ex.A.2 Charge Sheet. There is no dispute

that the accident, in question, occurred on 20.10.2006 at about

06.30 A.M., Near Davangare on N.H.4. At the time of accident, the

deceased and some other Engineers were proceedings in the

Quallis Vehicle from Bangalore to Goa in a four lane road i.e.,

N.H.4. The driver of the bus came in wrong lane in opposite

direction and hit the Quallis vehicle, which was proceeding in right

direction.

18. As per the evidence placed on record show that inspite of

number of opportunities given, the insured and insurer of the bus

did not choose to examine the driver of the bus, to come to the

conclusion that there is head-on collision or there is any

contributory negligence on the part of the driver of the Quallis

Vehicle, who died in the accident. Admittedly, the driver of the

crime bus ought not to have come in a wrong lane. Both lanes of

the road at the scene of accident same direction lanes. As per

record there is no evidence to show that the driver of the bus need

to come in the lane where the Quallis vehicle was proceeding. The

appellant/insurer and insured of the bus ought to have examined

the driver of the bus, who is best witness to depose about the

negligence on the part of the driver of Quallis Vehicle. On the

other hand, the insured suppressed the material before the

Tribunal by not examining the driver of the bus as a witness. More

so, there is no evidence placed on record to say that having seen

the bus in the opposite direction, the driver of the Quallis vehicle

did not stop his vehicle and failed to avoid the accident. The very

fact found from the record that the driver of the Quallis vehicle

died on the spot would go to show that the bus came in opposite

direction at high speed and hit the Quallis vehicle. It is a proved

fact, because the bus came in wrong lane, the accident occurred.

If at all there is fault on both the drivers of the vehicle, the

appellant/insurer and insured of the bus might have examined the

driver of the bus, who is best witness to speak what was really

happened and on whose fault the accident was occurred, but the

appellants did not do so. Moreover, the evidence placed by the

claimants i.e., P.Ws.2 and 3, who are said to be eye witnesses to

the incident, categorically shows that the accident occurred was

due to negligence on the part of the driver of the bus alone. Thus,

this point is answered against the appellant/insurer of the bus.

19. POINT NO.2:

The Tribunal accepted the evidence of P.W.4, who is

uninterested and competent person to speak about the income of

the deceased and the Tribunal has opined that there is no need to

P.W.4 being Senior Manager in Cognizant Technology Solutions

Private Limited, Bangalore, to give false evidence and to issue

documents like Exs.A.11 and A.12 Form 12-B(a) submitted by the

deceased to Income Tax Department and Salary Certificate. Based

on which, the Tribunal came to the conclusion that the deceased

was earning Rs.3,00,000/- per annum by the date of his death

working as Software Engineer in Cognizant Technology Solutions

Private Limited.

20. As can be seen from the evidence on record, the deceased

was a qualified Software Engineer and he was working in a reputed

Software Company. With experience, he would have got better

opportunities and earn more salary. He would have spent more

towards maintenance of his parents with passage of time. As per

the evidence of P.W.4 and Ex.P.12 salary certificate, the deceased

earning Rs.3,00,092/- per annum at the time of his death.

21. While deciding the income of the deceased, it is keep in

mind, as per the ratio laid down in APEX Court judgment in

between Sunil Sarma and others vs. Bachitar Singh and others 1,

wherein it was held that:

"They are of the view that deductions made by the Tribunal on account of HRA and CCA and Medical allowance are done on incorrect basis and should have been taken into consideration in calculation of the income of the deceased. Further, deductions toward EPF, GIS should also not have been made in calculating the income of the deceased".

22. As per the Sarla Verma and Ors. v. Delhi Transport

Corporation and Anr2, decision where the annual income is in

taxable range, the income tax payable by the deceased should be

deducted from the gross income of the deceased for determining

actual income of the deceased. On perusal of Ex.A.12 Salary

certificate, the gross salary of the deceased is Rs.3,00,092/- per

annum. After deducting permissible deductions under Income Tax

Act i.e., Professional Tax Rs.2,400/- and Rs.6,468/- towards PF per

1 2011 ACJ 1441 (SC) 2 2009 ACJ 1298

annum, making total of all the deductions, it comes to Rs.8,868/-.

Thus, the net salary is Rs.2,91,224/- per annum (Rs.3,00,092 -

Rs.8,868).

23. The following tax rates are applicable as per the Income Tax Act during the relevant period i.e., 2006:

Income                       Tax Rate

Upto 100,000                  Nil

100,000 to 1,50,000      10% of the amount exceeding 100,000

                         Rs.5,000 + 20% of the amount exceeding
150,000 to 250,000
                         150,000

250,000 & above        Rs.25,000 + 30% of the amount exceeding
                       250,000

Accordingly, the income tax of the deceased would be

calculated as follows:

After deduction of Rs.1,00,000/- from the total income of

the deceased i.e. Rs.2,91,224/-, the taxable income would be

Rs.1,91,224/-. For the next Rs.50,000/-, the tax would be

Rs.5,000/-. On the remaining balance amount of Rs.1,41,224/-

(Rs.2,91,068/- (-) 1,00,000/- (-) 50,000/-), if the tax at 20% is

calculated, it would come to Rs.20,000/-. On the remaining

balance amount of Rs.41,224/- (Rs.2,91,068/- (-) 1,00,000/- - (-)

50,000/- (-) 1,00,000), if the tax at 30% is calculated, it would

come to Rs.37,367/-. Thus, the total income tax would come at

Rs.37,367/-(Rs.5,000/-+ Rs.20,000/- + Rs.12,367/-). Thus after

deducting the said amount of tax payable during the relevant year,

the actual income is determined at Rs.2,53,857/-(Rs.2,91,224/- -

37,367/-).

24. As per the decision of the constitution bench of the Apex

Court judgment reported in National Insurance Company Limited

Vs.Pranay Sethi and others3, the deductions towards personal

and living expenses of the deceased, held at Paragraph No.39 as

follows:

39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-

3 2017 (6) ALT 60 (SC)

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.

31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the

income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."

25. As per the Pranay Sethi case(referred supra), by fortifying

Sarla Verma case (referred supra), while determining the income,

an addition of 50% of actual salary to the income of the deceased

towards future prospects, where the deceased had a permanent

job and was below the age of 40 years, should be made. The

addition should be 30%, if the age of the deceased was between 40

to 50 years. In case the deceased was between the age of 50 to 60

years, the addition should be 15%. Actual salary should be read as

actual salary less tax.

26. In the present case as per the above said decision 50% of

actual salary shall have to be added to the income of the deceased

towards future prospects, as the victim is in the age group below

the age of 40 years. After adding 50% to the income of the

deceased towards future prospects his income is determined at

Rs.3,80,785/-(Rs.2,53,857/- + Rs.1,26,928/-).

27. In the case on hand, since the deceased is bachelor as per

the ratio laid in the above said APEX Court Judgment 50% is to be

deducted from the income of the deceased towards personal and

living expenses. Then the quantum is determined as Rs.1,90,392/-.

28. Regarding just compensation, in a decision of Hon'ble

Supreme Court between Sandeep Khanuja vs Atul Dande & Anr4,

at Paragraph Nos.11 and 12 held as follows :

11.........it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident.........

12......... While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier

4 2017 (3) SCC 315

method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be....... ....... there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.".......

29. The appropriate multiplier applicable to the age of the

deceased i.e., 24 years is 18. The total loss of dependency is

determined at Rs.34,27,056/- (Rs.1,90,392/- x 18). Apart from

that as per the decision of the constitution bench of the Apex

Court judgment reported in National Insurance Company Limited

Vs.Pranay Sethi and others 2017 (6) ALT 60 (SC) an amount

Rs.15,000/- towards funeral expenses and Rs.15,000/- towards

love and affection are awarded. In-total the claim petitioner are

entitled compensation of Rs.34,57,056/-.

30. A brief exposition of the calculation made to arrive at the

compensation is set out infra:

S.No.    Heads                        Calculation

1        The annual income of the Rs.2,53,857/- per annum
         deceased after deduction
         of Income Tax

2        50% of above(1) to be (Rs.2,53,857/- + Rs.1,26,928/-)
         added as future prospects Rs.3,80,785/-

3        50% to be deducted as Rs.1,90,392/-.
         personal  expenses of
         deceased.

4        Compensation arrived at (Rs.1,90,392/-         x       18)
         on      application  of
         multiplier 18.          Rs.34,27,056/-

5        Loss of estate               Rs.15,000/-

6        Funeral expenses             Rs.15,000/-

         Total     compensation Rs.34,57,056/-
         awarded(Rows 4+5+6)

31. Further it is settled law that under the provisions of the

Motor Vehicle Act, 1988, there is no restriction that compensation

could be awarded only up to the amount claimed by the claimant.

In an appropriate case where from the evidence brought on

record, if Tribunal consider that claimant is entitled to get more

compensation than claimed, the Tribunal may pass such award. In

an appropriate case where from the evidence brought on record if

Tribunal considers that claimant is entitled to get more

compensation than claimed, the Tribunal may pass such award.

There is no embargo to award compensation more than that

claimed by the claimant. Rather it is obligatory for the Tribunal

and Court to award "just Compensation", even if it is in the excess

of the amount claimed. This settled position is followed from the

decision of the Supreme Court reported in Nagappa v. Gurudayal

Singh and others5.

32. Therefore, in view of the forgoing discussion, we are of the

opinion that the award passed by the Tribunal warrants

interference by enhancing the compensation from

5 (2003) 2 SCC 274

Rs.20,47,000/- to Rs.34,57,056/-. Thus, this appoint is answered

in favour of appellants/claimants.

33. POINT No.3:

In view of the findings on point Nos.1 and 2, the order passed

by the Tribunal warrants interference regarding quantum of

compensation only and with regard to the remaining aspects there

is no need to disturb the well articulated order passed by the

Tribunal. As such, the appeal filed by the insurer of the Bus is

liable to be dismissed and the appeal filed by the claimants is

liable to be allowed.

34. In the result, the M.A.C.M.A.No.127 of 2010 is dismissed.

There shall be no order as to costs.

35. The M.A.C.M.A.No.2418 of 2013 is allowed enhancing the

compensation from Rs.20,47,000/- to Rs.34,57,056/- with interest

at 7% per annum, with proportionate costs from the date of

petition till the date of realization against respondent Nos.1 and

2(insured and insurer of the Crime Bus). The respondent No.2 shall

deposit the compensation amount within two months from the

date of this judgment and then the 2nd respondent is entitled to

recover the same from the 1st respondent by filing Execution

Petition against him. Rest of the directions given by the Tribunal

with regard to the apportionment of the compensation between

the claimant/parents, their entitlement in withdrawing the

amount and dismissal of the petition against other respondents

i.e., owner and insured of the Quallis vehicle, shall remain

unaltered.

36. The impugned order of the Tribunal stands modified to the

aforesaid extent and in the terms and directions as above.

37. Interim orders granted earlier if any, stand vacated.

38. Miscellaneous petitions pending if any, stand closed.

________________ M.GANGA RAO, J

____________ V.SRINIVAS, J Date:08.12.2022 krs

THE HON'BLE SRI JUSTICE M.GANGA RAO AND THE HON'BLE SRI JUSTICE V.SRINIVAS

M.A.C.M.A.Nos. 127 of 2010 and 2418 of 2013

DATE: 08.12.2022

krs