Andhra Pradesh High Court - Amravati

Unknown vs Hon'Ble Sri Justice T. ... on 15 December, 2022

        HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

                   M.A.C.M.A. No.202 OF 2013

JUDGMENT:

1. Assailing the order dated 08.10.2012 in M.V.O.P. No.154 of 2010

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

I Additional District Judge, Chittoor, 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 Section 166 of the Motor

Vehicles Act, 1988, for compensation of Rs.15,00,000/- on

account of the death of A. Subramanyam Naidu, who is the

husband of the first claimant and the father of claimants 2 and

3, was in a motor vehicle accident that occurred on 14.02.2010.

The said A.Subramanyam Naidu will hereinafter be referred to as

"the deceased."

4. The claimant's case is that on 14.02.2010 at about 6.45 a.m.,

while the deceased was coming on a bicycle near the

Moravapatnam bus stop on the Chittoor-Piler Road, a parcel

lorry bearing No. A.P. 16/TV 4070 (hereinafter referred to as 'the

lorry'), driven by its driver at high speed in a rash and negligent

manner, came in the opposite direction towards the extreme

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right side of the road. It dashed him, due to which he fell on the

road, sustained injuries, and was immediately shifted to the

Government Hospital in Chittoor through 108 ambulance, where

he succumbed to his injuries.

5. The first respondent remained ex parte.

6. The second respondent filed its written statement contending

that the claimants have to prove the age, occupation, and

income of the deceased and the relationship of the claimants

with the deceased. It is also contended that the accident was not

caused by the rash and negligent driving of the lorry's driver,

which hit the deceased, but by the fact that the deceased

suddenly crossed the road with his bicycle without looking at the

traffic.

7. Based on the pleadings, the Tribunal framed appropriate issues.

To substantiate their claim, during the trial, P.Ws. 1 and 2 got

examined and marked Exs.A.1 to A.8 on behalf of the claimants.

No oral evidence was adduced; however, a copy of the policy was

marked as Ex.B.1 on behalf of the second respondent.

8. After appreciating the evidence on record, the Tribunal decided

that the accident happened because of the rash and negligent

driving of the offending vehicle's driver. The vehicle was insured

by the 2nd respondent, and the policy was in effect on the date of

the accident. The claimants are given compensation of Rs.

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4,00,000/-, which respondents 1 and 2 must pay with 7.5%

interest per year.

9. Heard the learned counsel on both sides.

10. Learned counsel for the claimants contends that the Tribunal

ought to consider the monthly earnings of the deceased at

Rs.15,000/- per month instead of Rs.4,285/- per month, ought

to have applied the multiplier 11, taking into consideration the

age of the deceased, 55 years, and ought to have awarded the

total compensation claimed Rs.15,00,000/- instead of awarding

Rs.4,00,000/-.

11. The Learned counsel for the second respondent supported the

findings and observations of the Tribunal.

12. The findings of the Tribunal regarding the manner of the

accident and the liability of the respondents have not been

disputed by either of the respondents by filing an appeal or cross-

objections. Hence, the said findings have attained finality.

Therefore, the only issue is whether the Tribunal has correctly

assessed the deceased's earnings. Based on Ex.A.3-postmortem

certificate and Ex.A.5-inquest report, the age of the deceased is

considered as 55 years on the date of the accident.

13. It is the consistent version of the claimants that the deceased

was hale and healthy, was maintaining ten milchy cows, and was

supplying 100 litres of milk daily to three dairy farms. In support

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of the said contention, P.Ws. 1 and 2 were examined and relied

on Ex.A.6- computerized statement of account of Heritage Foods

(India) Ltd., showing the name of the deceased as their

representative; Ex.A.7-computerized statement of account of

Taruni Dairy Products (P) Ltd., shows the name of the deceased;

and also Ex.A.8-computerised milk payment abstract of Sri Sai

Dairy Products, shows the name of the deceased.

14. Though the Appellant's counsel it contends that the Tribunal

has not considered the evidence adduced on behalf of the

claimants, a reading of the order shows that the Tribunal

discussed documentary evidence in detail, observing that except

the filing of Exs.A.6 to A.8-milk payment details of Heritage foods,

Taruni Dairy Products, and Sai Dairy Products for the supply of

milk, no one was examined to prove the earnings of the deceased

at Rs.1,00,000/- each from seasonal business and agriculture.

The Tribunal also noted that Ex.A.7-Milk billing centre-wise

report with centre code 226 managed by Subramanyam Naidu

does not clearly show that the deceased supplied milk to them. It

is also noted in Ex.A.8 vendor-wise milk billing extract that the

average monthly income from selling milk ranges from Rs.1,900/-

to Rs. 6,670/-, which contradicts the claimants' contention that

the deceased supplied 100 litres of milk to the dairy farms. By

considering the monthly income as reflected in Ex.A.8, i.e.,

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ranging from Rs.1,900/- to Rs.6,600/-, the Tribunal considered

the average monthly earnings of the deceased at Rs.4,285/-. The

Tribunal has given reasons why it has fixed Rs.4,285/- as the

deceased's monthly earnings. In view of the same, it cannot be

said that the Tribunal has not looked into the documents placed

by the claimants. However, following the principle laid down by

the Apex Court in National Insurance Company Limited v.

Panay Sethi 1 , 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 age of 50 to

60 years and self-employed or on a fixed salary, an addition of

10% of the established income should be the warrant. Hence, an

amount of Rs.4,713/-(4,285+428) can be considered towards the

monthly earnings, including the future prospectus of the

deceased. From which, an amount of Rs.1,571/- towards 1/3rd of

the personal and living expenses of the deceased, to be deducted

as the family members are 2 to 3, thereby the loss of monthly

earnings arrived at Rs.3,142/- (4,713 - 1,571).

15. In the grounds of appeal, it is further contended that the

Tribunal committed an error in applying the multiplier. From a

reading of the order, it appears that the Tribunal rightly applied

the multiplier '11' which is provided for the persons aged between

2017 ACJ 2700 SC

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51 and 55 years in Sarala Varma v. Delhi Transport

Corporation and others 2 . The loss of earnings arrived at

Rs.4,14,744/-(3,142 x 12 x 11).

16. Insofar as the conventional heads are 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:

"(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."

17. In Magma General Ins. Co. Ltd., v. Nanu Ram 3, at paragraph

8, the Hon'ble 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.

2009 ACJ 1298

2018 ACJ 2782

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

18. 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.4,14,744/-

          Towards funeral expenses            Rs. 16,500/-
          Loss of Estate                      Rs. 16,500/-
          spousal consortium                  Rs. 44,000/-
          Parental consortium                 Rs. 40,000/-
                                              ---------------------
                 Total:                        Rs.5,31,744/-
                                              ----------------------

19. Since the Tribunal has awarded a compensation amount of

Rs.1,00,000/- each of claimants 2 and 3, who are the major

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children of the deceased, this Court is inclined to award the

enhanced compensation with interest at 7.5% per annum to the

first claimant, who is the wife of the deceased.

20. As a result, the appeal is allowed in part without costs,

enhancing the compensation from an amount of Rs.4,00,000/- to

an amount of Rs.5,31,744/- (Rupees five lakhs, thirty one

thousand, seven hundred and forty-four only), with interest at

7.5% per annum as awarded by the Tribunal. The 2nd respondent

is directed to deposit the enhanced compensation amount,