Andhra Pradesh High Court - Amravati

Aggrieved By The Order Dated ... vs National Insurance Co. Ltd. on 15 December, 2022

         HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                  M.A.C.M.A. No.1978 OF 2015


JUDGMENT:

1. Aggrieved by the order dated 30.06.2005 in M.V. O.P. No.416

of 2013 passed by the Chairman, Motor Accidents Claims

Tribunal-cum-District Judge, Anantapuram, the appellants,

who were the claimants in the M.V.O.P., have preferred this

appeal seeking enhancement of compensation.

2. For convenience, the parties will hereinafter be referred to as

they were arrayed in the M.V.O.P.

3. The claimants filed a petition under Sections 140 and 166 of

the Motor Vehicles Act, 1988, for compensation of

Rs.15,00,000/- on account of the death of Sake Chinna

Gampanna, who is the husband of the first claimant and the

father of claimants 2 and 3, in a motor vehicle accident that

occurred on 11.07.2013. Sake Chinna Gampanna will

hereinafter be referred to as "the deceased."

4. The claimant's case is that on 11.07.2013 at about 8.30 p.m.,

the deceased was proceeding in his motorcycle, bearing No.

A.P. 02 AF 4331, from Rapthadu to Kandukur on his work,

when he reached about 8.30 p.m. near Kandukur crossing,

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one A.P.S.R.T.C. bus coming from Ananthapuram to Hindupur

in high speed in a rash and negligent manner, dashed against

the motorcycle. As a result, the deceased sustained grievous

injuries and died on the spot.

5. The respondent-RTC Corporation, filed its counter, stating

that, on the date of the accident, the driver drove the bus

bearing No. AP 02 Z 0149 in a slow manner, but the deceased

on a motor cycle bearing No. AP 02 AF 4331 came in the

opposite direction rashly and negligently without observing the

bus, which was going in the opposite direction, and suddenly

took a turn without giving signals and dashed against the bus.

The accident occurred solely because of negligent driving on

the part of the rider of the motorcycle. Still, the concerned

police, without examining the passengers who were

eyewitnesses, foisted a false case against the driver of the

R.T.C. bus and prayed to dismiss the claim petition.

6. Based on the pleadings, the tribunal framed appropriate

issues. To substantiate their claim, during the trial, P.Ws. 1 to

3 got examined and marked Exs. A.1 to A.6, Exs. X.1 and X.2

on behalf of the claimants. No oral or documentary evidence

was adduced on behalf of the respondent.

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7. After appreciating the evidence on record, the tribunal

observed that the accident occurred due to the rash and

negligent driving of the driver of the R.T.C. bus of the

respondent corporation, awarded compensation to the

claimants of Rs. 12,01,200/- with interest @ 7.5% per annum.

Aggrieved by the same, the claimants have preferred this

appeal.

8. Heard the learned counsel for both parties.

9. Learned counsel for the appellants/ claimants contended that

the tribunal failed to award funeral expenses, loss of estate,

and loss of love and affection towards the children,

particularly in respect of claimants 2 and 3. The tribunal did

not consider the deceased's salary of Rs. 24,000/- per month.

10. Learned standing counsel for the respondent-RTC Corporation

and supported the findings and observations of the tribunal.

11. Upon hearing the arguments of both learned counsels, the

issue for consideration is whether the quantum of

compensation is just and reasonable or requires enhancement.

12. The first claimant was examined as P.Ws. 1 and 2. Claimants

2 and 3 are the daughters of the deceased. The relationship

between the claimants and the deceased is not in dispute. The

finding of the tribunal that the deceased died due to the

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injuries sustained in the accident, which was established by

Ex.A.2-certified copy of the postmortem examination report

and Ex.A.4-certified copy of the final report, is not in dispute.

The finding of the tribunal that the accident occurred due to

the rash and negligent driving of the R.T.C. bus driver is not

questioned by filing an appeal or cross-objection; thus, these

findings have attained finality. Therefore, it is unnecessary to

narrate the factual aspects in detail. A reading of the grounds

of appeal and the submissions made on behalf of the claimants

clearly shows that the claimants have disputed only the

quantum of compensation awarded by the tribunal. The main

contention of the claimants is that the gross salary of the

deceased, as seen from Ex.X.2-certified extract of cumulative

payments and recoveries register for the year 2013-14

pertaining to the deceased, which is equivalent to Ex.A.6-

provisional pay slip for May 2013, is Rs. 21,409/- including a

sum of Rs. 210/- towards family planning. As seen from the

tribunal's order, it is observed that the tribunal deducted an

amount of Rs.200/- in respect of the family planning allowance

and an amount of Rs.200/- for professional tax. A deduction of

Rs.2,045/- for the cooperative society loan on the ground that

the payment of these allowances would automatically cease on

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account of the deceased's death. The reason mentioned by the

tribunal for not considering the deductions for professional tax

and family planning cannot be found at fault. In the same

manner, the tribunal also did not consider the loan deduction

of Rs.2,045/- towards the debt cooperative society's debt. This

Court believes that the tribunal should have considered the

deduction amount towards the cooperative society's debt since

the family members are liable to discharge the said loan

amount. After the deduction of Rs.200/- towards professional

tax and Rs.200/- towards family planning from Rs.21,409/-, a

net salary of Rs.21,009/- can be considered. However, by

following the principle laid down by the Apex Court in National

Insurance Company Limited v. Panay Sethi1, it can safely be

held that the tribunal did not consider the future prospectus.

In Pranay Sethi's case, the Apex Court held that where the

deceased was between the ages of 50 and 60 and had a

permanent job, an addition of 15% of the established income

should be the warrant. Hence, an amount of Rs. 24,160/-

(21009+3151) can be considered towards the monthly

earnings, including the prospects of the deceased. Out of

which, an amount of Rs.8,053/- i.e., 1/3rd of the earnings

2017 ACJ 2700 SC

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towards personal and living expenses of the deceased, as if he

had been alive, is to be deducted. Then the contribution of

Rs.16,107/- (Rs.24,160-Rs.8,053) will be towards the family's

welfare.

13. A reading of the order, it seems that the tribunal considered

the age of the deceased as above 56 years on the date of the

accident and applied multiplier '8' as per the second schedule

of the Motor Vehicles Act. In Sarala Verma v. Delhi Transport

Corporation 2 the Apex Court provided the table of the

multiplier to be considered for the claims made under Section

166 of the Motor Vehicles Act. The multiplier for the persons

aged between 56 to 60 is provided as '9'. Hence, the loss of

dependency can arrive at an amount of Rs.17,39,556/-

(16,107 x 12 x 9).

14. Insofar as the award of compensation under conventional

heads is concerned, in Pranay Sethi's case, the Apex Court

has awarded a total sum of Rs.70,000/- under conventional

heads, namely, loss of estate, loss of consortium, and funeral

expenses. It was further held that the sum should be enhanced

at 10% every three years. It was held thus in Paragraph 61:

2009 ACJ 1298

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"(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 Res.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

15. In Magma General Ins. Co. Ltd., v. Nanu Ram 3 , 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. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.).

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 the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime.

2018 ACJ 2782

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Children are valued for their love, affection, companionship and their role in the family unit."

16. The judgment in Pranay Sethi's case was rendered in the

year 2017. Therefore, the claimants are entitled to a 10%

enhancement of conventional heads. In all, the claimants are

entitled to the compensation as detailed below:

Towards loss of dependency Rs.17,39,556/-

                    Towards funeral expenses             Rs.     16,500/-
                    Loss of Estate                       Rs.     16,500/-
                    spousal consortium                   Rs.     44,000/-
                    Parental consortium                  Rs.     40,000/-
                                                         ---------------------
                              Total:                      Rs.18,56,556/-
                                                         ----------------------

17.Towards parental consortium, this Court is inclined to award

an amount of Rs. 20,000/- to each claimant 2 and 3 since

they are majors and married daughters.

18. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental

Insurance Company Limited and another 4 the Apex Court

while referring to Nagappa v. Gurudayal Singh5 held as under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident."

(2011) 10 SCC 756

2003 A.C.J. 12 (SC) 274

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19. In Ramla vs National Insurance Co. Ltd.,6 the Apex Court held

no restriction to award compensation exceeding the amount

claimed. As such, given the principle laid down by the Apex

Court, the claimants are entitled to an amount of Rs.18,56,556/-

exceeding the claimed amount. However, the claimants shall pay

the requisite court fee over and above the compensation awarded.

20. Following the principles laid down by the Apex Court in a catena

of judgments, this Court can safely be concluded that the

claimants are entitled to get more amount than what has been