Andhra Pradesh High Court - Amravati
Judgment vs Delhi Transport Corporation And ... on 27 December, 2022
BVLNC,J MACMA 2231 of 2017
Page 1 of 15 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.2231 OF 2017
JUDGMENT:
This appeal is preferred by the Appellants/claimants,
challenging the award dated 14.06.2017 passed in
M.V.O.P.No.664/2012 on the file of Motor Accidents Claims Tribunal-
cum-III Addl.District Judge, Ananthapuram, wherein the Tribunal
partly allowed the petition, awarded a compensation of Rs.11,00,976/-
with interest @ 7.5% p.a. from the date of petition, till the date of
realisation to the petitioners/claimants, for the death of Shaik Abdul
Khadar in a motor vehicle accident.
2. For the sake of convenience, the parties are arrayed as parties in
the lower Court.
3. As seen from the record, originally the petitioner filed an
application U/Ss.140 and 166 of the Motor Vehicles Act, 1988 (for
brevity "the Act") claiming a compensation of Rs.16,00,000/- on
account of the death of Shaik Abdul Khadar, husband of the 1st
petitioner and father of the 2nd petitioner, in a motor vehicle accident
that occurred on 03.04.2012.
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4. The facts show that 03.04.2012 the deceased Shaik Abdul
Khadar was travelling in a car bearing No.AP 02 AF 2313 along with
his family members from Kamalapuram to Nandyal after visiting the
Mosque (Dhargh) at Kamalapuram, and when they reached near
Chintakunta Cross on Kadapa - Kurnool road, NH-18, at about 03.00
p.m., the crime bus bearing No. AP 05 TT 1999 was driven in a rash
and negligent manner by its driver came in the opposite direction and
dashed the car. Due to the said impact, inmates of the car including
the deceased received injuries. Immediately he was shifted to
Government Hospital, Prodduturu, for treatment. Again he was shifted
to Aswini Hospital, Prodduturu. Later he was shifted to UDAI Hospitals
at Hyderabad for better treatment. Thereafter he was shifted to
Medwin Hospital, Hyderabad, and was admitted as in-patient. He
underwent operations and incurred heavy medical expenses and while
undergoing treatment, the deceased died on 04.05.2012. On
information, Duvvuru Police registered a case in Cr.No.49/2012 for the
offence punishable U/Ss. 337, 338 and 304-A of Indian Penal Code
against the driver of crime bus. The deceased was hale and healthy,
aged 60 years at the time of accident. He was a pensioner, drawing
pension of Rs.19,000/- per month. Due to the death of deceased, the
claimants have lost their bead winner.
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5. Before the Tribunal, the 2nd respondent/Insurance Company,
filed a written statement resisting, while traversing the material
averments with regard to proof of age, avocation, monthly earnings of
the deceased, manner of accident, rash and negligence on the part of
the driver of the offending vehicle, and liability to pay compensation,
contended that there is no negligence on the part of driver of the bus,
and driver of the car alone was responsible for the accident. The driver
of the bus drove the same very slowly in a careful manner whereas the
driver of car drove the same in a rash and negligent manner and
caused the accident. The petitioners are not dependants on the income
of deceased and they have got their own source of income. The
compensation claimed is excessive.
6. The 4th respondent filed a counter denying the material
averments of the petition, contended that the accident took place only
due to the rash and negligent driving of the driver of the crime bus
bearing No.AP 05 TT 1999, and that there was neither rashness nor
negligence on part of the driver of the car bearing No.AP 02 AF 2313,
as such, this respondent is not liable to pay any compensation. The
deceased was travelling as a passenger in the car on the date of the
accident, and that risk of passengers travelling in the car is not
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covered by the insurance policy. The compensation claimed is highly
excessive. The respondents No.1, 3, 5 and 6 remained exparte.
7. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
1. Whether the accident occurred due to rash and negligent
driving of the driver of the bus bearing No.AP 05 TT 1999?
2. Whether the petitioners are entitled to compensation? If so, to
what amount and from which respondent?
3. To what relief?
8. To substantiate their claim, the petitioners examined P.Ws-1 to
4 and got marked Exs.A-1 to A-12. Respondents No.2 and 4 did not
adduce any oral evidence, but the 2nd respondent got marked a copy of
the insurance policy as Ex.B-1 and 4th respondent got marked a copy
of the award in O.P.612/2012 as Ex.B-2.
9. The Tribunal, taking into consideration the evidence of P.Ws-1 to
4, coupled with Exs.A-1 to A-12, held that the accident took place due
to the rash and negligent act driver of the crime bus bearing No. AP 05
TT 1999, and further taking into consideration the evidence of P.Ws-1
to 4, corroborated by Exs.A-1 to A-12, awarded a compensation of
Rs.11,00,976/- with interest @ 7.5% p.a. from the date of petition, till
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the date of realisation with proportionate costs, against respondents
No.1, 2 and 5, by exonerating the liability against respondents No.3, 4
and 6.
10. The contention of the appellants/claimants is that the Tribunal
ought to have applied multiplier '9' instead of '7' as on the date of
death of the deceased, he was aged 59 years only as per service
register, and that as per the revised pension, the deceased was entitled
to Rs.32,080/- towards monthly pension, and therefore, the loss of
earnings should have been calculated accordingly, and that the
Tribunal erred in not awarding Rs.6,38,440/- towards medical
expenses claimed and proved in the evidence of P.Ws-2 to 4 examined
by the claimants, and therefore, the Tribunal failed to award just
compensation to the claimants.
11. In the light of above contention of the appellant raised in the
appeal, the points that would arise for consideration in the appeal are
as under:
1. Whether the Tribunal failed to award just compensation to the
claimants?
2. To what relief?
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12. POINT No.1:
That on 03.04.2012 at 03.00 p.m. the deceased along with his
family members was travelling in a car from Kamalapuram to Nandyal
and when they reached Chintakunta cross on Kadapa-Kurnool road,
the bus bearing No. AP 05 TT 1999 coming in the opposite direction
dashed the car due to the rash and negligent driving of the driver of
the bus, and as a result, he sustained grievous injuries, and he was
admitted in hospital and underwent treatment for one month, and
while undergoing treatment, he succumbed to injuries and died on
01.05.2012. The deceased was aged about 60 years and he was a
pensioner, drawing pension to a tune of Rs.19,285/- per month, and
he contributed his pension to the family consisting of 1 st
petitioner/wife and the 2nd petitioner/daughter, who were depending
upon the income of the deceased, and the 1 st respondent, who is the
owner of the bus, 2nd respondent is insurer and the 5th respondent is
the driver of the bus. The 3rd respondent is the owner of the car, 4th
respondent is insurer of the car and 6th respondent is driver of the car.
13. Respondents No.1, 3, 5 and 6 remained exparte before the
Tribunal.
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14. The 2nd respondent, who is the insurer of the bus, opposed the
claim and contended that the accident occurred due to the negligence
of the driver of the car and that the driver of the bus drove the bus
carefully and therefore, the accident occurred due to the rash driving
of the car driver and further, the compensation amount claimed is
excessive.
15. The 4th respondent who is insurer of the car opposed the claim,
contending that the accident occurred due to the rash and negligent
driving of the bus driver and not due to the negligence of the driver of
the car driver and therefore, the 2nd respondent is liable to indemnify
the compensation.
16. The claimants to prove their case has examined the 1st petitioner
as P.W-1 and filed Exs.A-1 to A-12. No contra evidence was adduced
by the 2nd respondent/Insurance Company or 4th respondent /
Insurance Company. Nothing was elicited in the cross-examination of
P.W-1 in support of the case of the 2nd respondent. The Tribunal in
consideration of the evidence of P.W-1 i.e., 1st petitioner and wife of
deceased, Ex.A-1 copy of FIR, Ex.A-2 copy of altered FIR, Ex.A-3
inquest report, Ex.A-4 post mortem, report and Ex.A-5 copy of police
report (charge sheet) and Ex.A-6 copy of M.V.I. Report held that the
accident occurred due to the rash and negligent driving of the driver of
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the bus. In that view of the matter, there are no grounds to interfere
with the findings of the Tribunal on this aspect.
17. The claimants filed Exs.A-11 and A-12 copy of pension paper
order issued by the Asst.Treasury Officer, District Treasury Office,
Ananthapuram, dated 18.11.2010. It discloses that the deceased
retired on 30.06.2010 and worked as a Junior Lecturer in Hindi. As
per Ex.A-11, the Prl. Accountant General, A&E, A.P., Hyderabad, fixed
the pension of the deceased at Rs.19,285/- per month. The deceased
commuted an amount Rs.7,714/- of the pension amount, and the
reduced monthly pension after commutation was fixed at Rs.11,571/-
per month, against the same, he was eligible for dearness allowance
existing at that point in time @ Rs.6,934/- per month as per Ex.A-11.
He was also entitled to Rs.200/- towards medical allowance. So, the
total amount received by the deceased as pension is Rs.18,705/- as
per Ex.A-11. Ex.A-12 is the bank passbook relating to pension of the
deceased. It shows that he received an amount of Rs.17,549/- every
month, after certain deductions.
18. In light of Ex.A-11, it is established that the deceased was
eligible for Rs.18,705/- towards pension every month, after deducting
the commuted amount including dearness allowance and medical
allowance. Ex.A-11 further contained an endorsement that after death
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of the deceased, the 1st petitioner was awarded a family pension, and
she is entitled to Rs.11,571/- towards family pension. Therefore, the
loss of earnings due to death of deceased would be Rs.7,134/- per
month. The loss of annual income would be Rs.7,134 x 12 =
Rs.85,608/-. The age of the deceased as per pension book Ex.A-11 is
01.07.1952. He died on 01.05.2012. Therefore, his age on the date of
death is 59 years, 10 months. Hence, the multiplier to be applied is '9'
as per judgment of the Hon'ble Apex Court in Sarla Verma and
another Vs. Delhi Transport Corporation and others1, which would
be Rs.85,608 x 9 = Rs.7,70,472/-. Out of this amount, 1/3 shall be
deducted towards personal expenses of the deceased as per the above
judgment. Hence, the loss of earnings would be Rs.5,13,648/-. The
claimants are entitled to a loss of future earnings @ 10% only as per
the judgment of Hon'ble Apex Court in the case of National Insurance
Company Limited and Pranay Sethi and others2, since the deceased
is aged 59 years at the time of death, and the amount would be
Rs.51,364/-. Hence, the total amount of loss of earnings comes to
Rs.5,65,013/-. The appellants are also entitled for Rs.15,000/-
towards funeral expenses, Rs.15,000/- towards loss of estate and the
2009 ACJ 1298
(2017) 16 SCC 680
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1st petitioner is entitled to Rs.40,000/- towards loss of consortium as
per the judgment of Hon'ble Apex Court in Pranay Sethi's case, which
would come to Rs.5,65,013 + 70,000 = Rs.6,35,013/-.
19. The other contention of the appellants/claimants is that they
have incurred a sum of Rs.5,60,000/- towards medical expenditure,
transportation and attendant charges etc. The appellants/claimants in
support of their case filed Exs.A-7 and 9 and examined P.Ws-2 to 4
doctors.
20. The evidence of P.W-2 discloses that the deceased was admitted
in UDAI Clinic at Hyderabad on 03.04.2012, and he was treated there
for the injuries sustained by him in the accident and due to
complications, patient was sent to Medwin Hospitals on 12.04.2012
and Ex.A-7 is the discharge summary, and they also issued medical
bills covered by Ex.A-9 towards medical expenditure incurred for the
treatment in the hospital, and the patient was shifted in an ambulance
to the Medwin Hospitals, as he required ventilation.
21. P.W-3 is in charge of the Pharmacy at UDAI Hospitals. He
deposed that the bills under Ex.A-9 were issued by their hospital and
as per their records, the bills are genuine, and they care covered by the
discharge summary.
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22. P.W-4 is the doctor from Medwin Hospital. He deposed that the
deceased was admitted in their hospital in April, 2012 and he was
treated there and he died on 04.05.2012, and Ex.A-10 X-rays belong to
the deceased, and Ex.A-8 is the death summary belonging to the
deceased.
23. Therefore, the above evidence of the doctors establish that the
deceased was treated in UDAI Hospital as well as in Medwin Hospital,
and he died on 04.05.2012, and expenditure was incurred for his
treatment, and accordingly, Udai Hospitals issued Ex.A-9 bills. The
appellants/claimants made a claim for Rs.5,60,000/- towards medical
expenditure, transportation and attendant charges of the deceased.
The Tribunal in its order has awarded a sum of Rs.4,29,000/- only on
the ground that the claimants claimed a sum of Rs.6,38,640/- and it
is highly excessive. The Tribunal did not give any reason as to how it
arrived the amount at Rs.4,29,000/- only, when Ex.A-9 discloses an
amount of Rs.5,53,084/-. The claimants in order to prove Ex.A-9 have
examined P.W-2 and P.W-3. Nothing was elicited in the cross-
examination of P.W-2 and P.W-3 by the Insurance Company, except
giving suggestions that they are not genuine bills. In that view of the
matter, the order of the Tribunal requires interference by this Court.
The claimants are entitled to Rs.5,53,084/-, instead of Rs.4,29,000/-
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under the head of medical expenses, transportation and attendant
charges etc.
24. The Tribunal awarded interest at 7.5% p.a. from the date of
petition, till the date of realisation. I do not find any ground to interfere
with the rate of interest awarded by the Tribunal at 7.5% p.a., from the
date of petition, till the date of realisation, in view of the Ho'ble Apex
Court judgement in the case of National Insurance Company Limited
Vs. Mannat Johal3.
25. Therefore, the total amount of compensation entitled by the
claimants is Rs.6,38,460 + 5,53,084 = Rs.11,91,544/-. This is the
amount entitled by the claimants towards just compensation. The
Tribunal awarded Rs.11,00,097/- only. Therefore, the order of the
Tribunal is liable to be modified. Accordingly, this point is answered.
26. POINT No.2: To what relief?
In light of the finding on point No.1, the order passed by the
Tribunal has to be modified partly.
27. In the result, the appeal is partly allowed, modifying the award
dated 14.06.2017 passed in M.V.O.P.No.664/2012 on the file of Motor
2019 ACJ 1849 (SC)
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Accidents Claims Tribunal-cum-III Addl. District Judge,
Ananthapuram. It is held that the appellants/claimants are entitled to
a compensation of Rs.11,91,544/- (Rupees Eleven Lakhs, Ninety One
Thousand, Five Hundred and Forty Four only), instead of
Rs.11,00,097/-, with interest @ 7.5% p.a. from the date petition till
the date of realisation, against respondents 1, 2 and 5 only with joint
and several liability. Respondents 3, 4 and 6 are exonerated from the
liability. There shall be no order as to costs.
28. The 2nd respondent/Insurance Company is directed to the
deposit the compensation amount of Rs.11,91,544/- (Rupees Eleven
Lakhs, Ninety One Thousand, Five Hundred and Forty Four only) with
accrued interest thereon, within one month from the date of judgment.
The amount already deposited shall be deducted from the amount to
be deducted.
29. On such deposit, the 1st Appellant/1st claimant being the wife of
the deceased, is entitled to an amount of Rs.8,91,544/- (Rupees Eight
Lakhs Ninety One Thousand Five Hundred and Forty Four only) and
she is permitted to withdraw Rs.8,91,544/- (Rupees Eight Lakhs
Ninety One Thousand Five Hundred and Forty Four only) along with
the accrued interest thereon. The 2nd Appellant/2nd claimant, being the
daughter of the deceased, is entitled to an amount of Rs.3,00,000/-
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(Rupees Three Lakhs only), and she is permitted to withdraw
Rs.3,00,000/- (Rupees Three Lakhs only), along with accrued interest
thereon.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_________________________________
B.V.L.N.CHAKRAVARTHI, J
27.12.2022
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HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.2231 OF 2017
27th December, 2022
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