Andhra Pradesh High Court - Amravati
G.Sarojini 4 Ors vs Gummidi Appanna 2 Ors on 4 November, 2022
BVLNC,J MACMA 49 of 2017
Page 1 of 20 Dt: 04.11.2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
M.A.C.M.A.No.49 OF 2017
Between:
1. G.Sarojini, W/o.Late Krishna,
Hindu, Aged 28 years, House wife,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
2. G.Aswini, D/o.Late Krishna,
Hindu, Aged 11 years, Student,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
3. G.Bhavani, D/o.Late Krishna,
Hindu, Aged 9 years, Student,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
(Appellants 2 and 3 are being minors,
Rep. by their mother and natural guardian
1st Appellant G.Sarojini).
4. G.Thoudu, S/o.Thatayya,
Hindu, Aged 55 years,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
5. G.Pentamma, W/o.G.Thoudu,
Hindu, Aged 53 years, House wife,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
....Appellants/ Claim Petitioners
Versus
BVLNC,J MACMA 49 of 2017
Page 2 of 20 Dt: 04.11.2022
1. Gummidi Appanna, S/o.Appala Swamy,
Hindu, Aged 31 years,
Driver of Tractor & Trailer AP 35 W 4877 & 9894,
R/o.Penubarthi Village, Gurla Mandal,
Vizianagaram District.
2. K.Srinivasa Rao, S/o.Appala Naidu,
Hindu, Aged 47 years,
Onwer of Tractor & Trailer AP 35 W 4877 & 9894,
R/o.D.No.4-36, B.C.Colony, Gurla Village & Mandal,
Vizianagaram District.
3. Reliance General Insurance Company Limited,
Rep. by its Manager, Visakhapatnam.
....Respondents/Respondents
DATE OF JUDGMENT PRONOUNCED : 04.11.2022
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Judgment? Yes/No
____________________________
B.V.L.N.CHAKRAVARTHI, J
BVLNC,J MACMA 49 of 2017
Page 3 of 20 Dt: 04.11.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ M.A.C.M.A.No.49 OF 2017
% 04.11.2022
# Between:
1. G.Sarojini, W/o.Late Krishna,
Hindu, Aged 28 years, House wife,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
2. G.Aswini, D/o.Late Krishna,
Hindu, Aged 11 years, Student,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
3. G.Bhavani, D/o.Late Krishna,
Hindu, Aged 9 years, Student,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
(Appellants 2 and 3 are being minors,
Rep. by their mother and natural guardian
1st Appellant G.Sarojini).
4. G.Thoudu, S/o.Thatayya,
Hindu, Aged 55 years,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
5. G.Pentamma, W/o.G.Thoudu,
Hindu, Aged 53 years, House wife,
R/o.DIET Colony, Nellimerla Village & Mandal,
Vizianagaram District.
....Appellants/ Claim Petitioners
Versus
BVLNC,J MACMA 49 of 2017
Page 4 of 20 Dt: 04.11.2022
1. Gummidi Appanna, S/o.Appala Swamy,
Hindu, Aged 31 years,
Driver of Tractor & Trailer AP 35 W 4877 & 9894,
R/o.Penubarthi Village, Gurla Mandal,
Vizianagaram District.
2. K.Srinivasa Rao, S/o.Appala Naidu,
Hindu, Aged 47 years,
Onwer of Tractor & Trailer AP 35 W 4877 & 9894,
R/o.D.No.4-36, B.C.Colony, Gurla Village & Mandal,
Vizianagaram District.
3. Reliance General Insurance Company Limited,
Rep. by its Manager, Visakhapatnam.
....Respondents/Respondents.
! Counsel for the Appellants : Sri V.Hemanth Kumar
^ Counsel for the
3rd Respondent : Sri V.Sreemannarayana
< Gist:
> Head Note:
? Cases referred:
1. 2013 ACJ 1403
2. 2009 ACJ 1298
3. (2017) 16 SCC 680
4. 2018 ACJ 2782
5. 2022 Livelaw (SC) 734
6. (2015) 7 SCC 2154
7. (2011) 14 SC 481
This Court made the following:
BVLNC,J MACMA 49 of 2017
Page 5 of 20 Dt: 04.11.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.49 OF 2017
JUDGMENT:
This appeal is preferred by the Appellants/claimants,
challenging the award dated 30.09.2016 passed in
M.V.O.P.No.533/2014 on the file of Motor Accidents Claims Tribunal-
cum-Spl.Judge for Trial of Cases under SCs & STs (P.O.A.) Act-cum-
Additional District Judge, Vizianagaram, wherein the Tribunal while
allowing the petition, awarded compensation of Rs.9,70,000/- with
interest @ 9% p.a. from the date of petition, till the date of realisation
to the petitioners/claimants, for the death of G.Krishna 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 petitioners filed an
application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")
claiming compensation of Rs.6,70,000/- on account of the death of
G.Krishna, who is the husband of the 1 st petitioner, father of
petitioners No.2 and 3 and son of petitioners No.4 and 5, in a motor
BVLNC,J MACMA 49 of 2017
Page 6 of 20 Dt: 04.11.2022
vehicle accident that occurred on 08.08.2013. The petitioners
subsequently enhanced the compensation to Rs.9,70,000/-.
4. The facts show that on 08.08.2013 at about 06.30 p.m., the
deceased G.Krishna left his house on a moped to purchase medicines
for his daughter, who was suffering from fever, and while he was
returning to his house, and reached near railway fly over of Nellimerla
village, the 1st respondent, who is the driver of tractor bearing No.P
35W 4877 and trailer bearing No.P35U 9894, drove his tractor and
trailer in a rash and negligent manner, at a high speed, while going
from Vizianagarm to Nellimerla, dashed against the deceased, as a
result, he fell down and sustained grievous injuries and died on the
spot. Police of Nellimerla registered a case in Cr.No.107/2013 for the
offence punishable U/s.304-A of Indian Penal Code against the 1st
respondent. The deceased was working as a mason, earning Rs.200/-
per day. The petitioners depended on the earnings of the deceased.
Due to death of the deceased, the petitioners lost their bread winner.
5. Before the Tribunal, the 1st respondent/driver of tractor filed a
counter denying the material averments of the petition, contending
that when his tractor and trailer reached near Nellimerla fly over on
the date of accident, he noticed one person coming on a moped from
the opposite direction, in the middle of the road, and he blew the horn,
BVLNC,J MACMA 49 of 2017
Page 7 of 20 Dt: 04.11.2022
and then the deceased unable to control the speed, dashed against the
tractor and trailer, and that there was no negligence on part of the
1st respondent. The 1st respondent was having a valid driving license
and the said vehicle was duly insured with the 3rd respondent under a
valid policy and if any compensation is payable, it is payable by the 3 rd
respondent, but not by the respondents No.1 and 2. The 2 nd
respondent adopted the counter filed by the 1st respondent.
6. The 3rd 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, and contended
that the 1st respondent was not holding a valid and effective driving
license and was not qualified to drive the vehicle, which amounts to a
breach of terms and conditions of the policy. The 3rd respondent was
not supplied with the required documents and particulars of the
accident either by the owner or by the police, which amounts to a
breach of terms and conditions of the policy and statutory violations.
The claim of the petitioners is high, exorbitant, including interest.
7. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
BVLNC,J MACMA 49 of 2017
Page 8 of 20 Dt: 04.11.2022
1. Whether the driver of the moped or the 1st respondent drove
the offending vehicle i.e., tractor and trailer No.AP 35W 4877 &
AP35U 9894 in a rash and negligent manner or whether both of
them contributed for the accident?
2. Whether the petitioners are entitled to compensation? If so,
which respondents are liable to pay the compensation amount?
3. To what relief?
8. To substantiate their claim, the petitioners examined P.Ws-1 and
2 and got marked Exs.A-1 to A-4. On behalf of the respondents, no
oral evidence is adduced, but Ex.B-1 copy of insurance policy was
marked by consent.
9. The Tribunal, taking into consideration the evidence of P.Ws-1
and 2, coupled with Exs.A-1 to A-4, held that the accident took place
due to the rash and negligent driving of the driver of the tractor and
trailer, and further, taking into consideration the evidence of P.Ws-1
and 2 corroborated by Exs.A-1 to A-4, awarded a compensation of
Rs.9,70,000/- with interest @ 9% p.a. from the date of petition, till the
date of realisation.
10. The plea of the 3rd respondent/Insurance Company is that the
1st respondent was not holding a valid and effective driving license and
BVLNC,J MACMA 49 of 2017
Page 9 of 20 Dt: 04.11.2022
not qualified to drive the vehicle, which amounts to a breach of the
terms and conditions of the policy.
11. The Tribunal considered the evidence on record, and based on
the contentions of both parties, held that the accident occurred due to
the rash and negligent driving of the 1st respondent/driver.
12. The Tribunal after considering the evidence of P.Ws-1 and 2
coupled with Exs.A-1 to A-4, awarded an amount of Rs.9,18,000/-
towards compensation; Rs.25,000/- towards funeral expenses;
Rs.1,00,000/- towards loss of consortium; Rs.1,00,000/- towards loss
of estate; and Rs.1,00,000/- towards loss of love and affection; total
comes to Rs.12,43,000/-, but as the petitioners restricted their claim
to Rs.9,70,000/-, the same was granted as compensation.
13. The contention of the appellants/claimants is that, the Tribunal
did not consider the judgments of the Hon'ble Apex Court in the case
of Nagappa Vs. Gurudayal reported in AIR 2003 SC 674 and
Ningamma Vs. United India Insurance Company, reported in 2019
(13) SCC 710, and restricted the claim to the extent claimed by the
appellants, though found that they are entitled to more than the
amount claimed by them, and therefore, the appellants/claimants are
BVLNC,J MACMA 49 of 2017
Page 10 of 20 Dt: 04.11.2022
entitled to just compensation, and their claim shall not be limited to
the amount claimed by them before the Tribunal.
14. The appellants/claimants filed the claim petition U/s.166 of
M.V.Act1988, claiming a compensation of Rs.9,70,000/- for the death
of G.Krishna, who is the husband of the 1st claimant, father of
claimants No.2 and 3 and son of claimants No.4 and 5 in the case.
15. The Tribunal after considering the case of the claimants, as well
as the Insurance Company, which was permitted to plead U/s.170 of
M.V.Act, held that the accident occurred due to the rash and negligent
driving of the 1st respondent, who is the driver of the tractor and
trailer, and as a result, the deceased died on the spot, and therefore,
the owner (2nd respondent) is vicariously liable for the acts of the driver
and the Insurance Company (3rd respondent) shall indemnify the
same, as Ex.B-1 insurance policy was in force, on the date of accident.
16. The contention of the appellants is that, the deceased was
working as a mason and earning Rs.200/- per day, and he was aged
29 years as on the date of accident, as seen from the post mortem
certificate, and the Tribunal has applied multiplier 17 as per judgment
of Hon'ble Apex Court in the case of Sarla Verma and another Vs.
Delhi Road Transport Corporation and others. The Tribunal, in its
BVLNC,J MACMA 49 of 2017
Page 11 of 20 Dt: 04.11.2022
order held that the claim of the petitioners is that the deceased was
earning Rs.200/- per day as mason is not supported by any credible
evidence, but the deceased may be earning Rs.4,000/- per month,
equivalent to Rs.48,000/- per annum. The Tribunal has applied the
principles laid down by the Hon'ble Apex Court in Rajesh Vs. Rajbhar
Singh and held that as the deceased is below 40 years, 50% is to be
added towards future prospectus to arrive at the earnings of the
deceased as contributions to his family.
17. The Tribunal added Rs.24,000/- considering his income as
Rs.48,000/- per annum and the Tribunal deducted ¼ of his income
towards his personal expenses, since dependants are more than 5
members and fixed his annual income at Rs.54,000/- and applied
multiplier 17 and arrived the compensation amount towards loss of
dependency at Rs.9,18,000/-.
18. The Tribunal also held that the claimants are entitled to
Rs.25,000/- towards funeral expenses; Rs.1,00,000/- towards loss of
consortium to 1st petitioner; Rs.1,00,000/- towards loss of estate and
Rs.1,00,000/- towards loss of love and affection, and accordingly
arrived at the total amount of compensation as Rs.12,43,000/-, and
further held that the victims are entitled to just compensation, but it
should be restricted to their claim of Rs.9,70,000/-, as it is quite
BVLNC,J MACMA 49 of 2017
Page 12 of 20 Dt: 04.11.2022
reasonable, and therefore, awarded Rs.9,70,000/- against respondents
1 to 3 as they are jointly and severally liable.
19. The Tribunal fixed the income of the deceased as Rs.4,000/- per
month and thereby the annual income was fixed at Rs.48,000/- and
the Tribunal considered his age as 29 years and added 50% of
earnings towards loss of future earnings as per the judgment of the
Hon'ble Apex Court in the case of Rajesh Vs. Rajbhar Singh1 and
arrived at Rs.48,000 + Rs.24,000 = Rs.72,000/- and deducted 1/4 th of
the earnings of the deceased as per the Judgment of the Hon'ble Apex
Court in the case of Sarla Verma and others Vs. Delhi Transport
Corporation and another2 and arrived at Rs.72,000 - Rs.18,000 =
Rs.54,000/- and applied multiplier 17 as per the judgment of the
Hon'ble Apex Court in Sarla Vermma's case, which comes to
Rs.9,18,000/-.
20. The Hon'ble Apex Court in the case of National Insurance
Company Limited and Pranay Sethi and others3, held that in the
case of persons having fixed income, loss of future earnings can be
considered @ 40%, if the deceased is below the age of 40 years, and
2013 ACJ 1403
2009 ACJ 1298
(2017) 16 SCC 680
BVLNC,J MACMA 49 of 2017
Page 13 of 20 Dt: 04.11.2022
therefore, the fixation of loss of future earnings @ 50% by the Tribunal
has to be modified accordingly.
21. Further, as per judgment of the Hon'ble Apex Court in Pranay
Sethi's case, funeral expenses can be granted at Rs.15,000/-, loss of
consortium at Rs.40,000/-, loss of estate at Rs.15,000/- and the
enhancement should be at the rate of 10% in every three years.
Therefore, the earnings of the deceased comes to Rs.48,000 +
Rs.19,200 = Rs.67,200/- and after deducting 1/4 towards personal
expenses, it comes to Rs.67,200 - 16,800 = Rs.50,400/-, and after
applying multiplier 17 as per the Judgment of Hon'ble Apex Court in
Sarla Verma's case, it comes to Rs.50,400 x 17 = Rs.8,56,800/-.
After enhancement of 10%, the claimants are entitled to Rs.16,500/-
towards funeral expenses; Rs.44,000/- towards loss of consortium to
the 1st petitioner; Rs.16,500/- towards loss of estate.
22. The Hon'ble Apex Court in the case of Magma General
Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and
others4 held in para 8.7 as follows:
"A Constitution Bench of this Court in Pranay Sethi (supra) dealt
with the various heads under which compensation is to be
2018 ACJ 2782
BVLNC,J MACMA 49 of 2017
Page 14 of 20 Dt: 04.11.2022
awarded in a death case. One of these heads is 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 relation with the deceased spouse. 3 Spousal consortium is
generally defined as rights pertaining to the relationship of a
husband−wife which allows compensation to the surviving spouse
for loss of company, society, co−
operation, affection, and aid of the other in every conjugal relation.
4 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. Filial consortium is the
right of the parents to compensation in the case of an accidental
death of a child. An accident leading to the death of a child
causes great shock and agony to the parents and 3 Rajesh and
Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54
4 BLACK'S LAW DICTIONARY (5 the d. 1979)
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.
BVLNC,J MACMA 49 of 2017
Page 15 of 20 Dt: 04.11.2022
Consortium is a special prism reflecting changing norms about the
status and worth of actual relationships. Modern jurisdictions
world−over have recognized that the value of a childs consortium
far exceeds the economic value of the compensation awarded in
the case of the death of a child. Most jurisdictions therefore permit
parents to be awarded compensation under loss of consortium on
the death of a child. The amount awarded to the parents is a
compensation for loss of the love, affection, care and
companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at
providing relief to the victims or their families, in cases of genuine
claims. In case where a parent has lost their minor child, or
unmarried son or daughter, the parents are entitled to be
awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents
in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count5.
However, there was no clarity with 5 Rajasthan High Court in
Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors
2017 (4) RLW 3368 (Raj);
Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep
Kumar & 6 Ors. respect to the principles on which compensation
could be awarded on loss of Filial Consortium.
BVLNC,J MACMA 49 of 2017
Page 16 of 20 Dt: 04.11.2022
The amount of compensation to be awarded as consortium will be
governed by the principles of awarding compensation under Loss
of Consortium as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award the father
and the sister of the deceased, an amount of Rs.40,000 each for
loss of Filial Consortium."
23. In the case on hand C-1 is the wife of the deceased, and she is
entitled to Rs.40,000/- towards consortium as per the above judgment
of the Hon'ble Apex Court, C-2 and C-3 are minor daughters of
deceased, and C-4 and C-5 are parents of the deceased. In view of the
above judgment of the Hon'ble Apex Court, C-2 and C-3 are also
entitled to parental consortium at Rs.40,000/- each and the
enhancement should be @ 10% in every three years, as the Hon'ble
Apex Court delivered the judgment in Pranay Sethi's case on
31-10-2017. Therefore, the claimants are entitled enhancement
@ 10% under the heads of loss of estate, loss of consortium and
funeral expenses. The total compensation that the claimants are
entitled to comes to Rs.8,56,800 + 16,500 + 16,500 + 44,000 + 44,000
+ 44,000 = Rs.10,21,800/-. The total compensation claimed by the
claimants is Rs.9,70,000/-. The Appellants/claimants are in fact
entitled to Rs.10,21,800/- as just compensation, but not
BVLNC,J MACMA 49 of 2017
Page 17 of 20 Dt: 04.11.2022
Rs.12,43,000/- as held by the Tribunal in its order. But the claim was
made only for Rs.9,70,000/-.
24. The Hon'ble Apex Court in the case of Mona Baghel and others
Vs. Sajjan Singh Yadaav and others5, held that in the matter of
compensation, the amount actually due and payable is to be awarded
despite the claimants having had sought for a lesser amount and the
claim petition being valued at a lesser value. The law is well settled
that in the matter of compensation, the amount actually due and
payable is to be awarded despite the claimants having had sought for a
lesser amount and the claim petition being valued at a lesser value.
Therefore, though the claimants sought for a lesser amount, and the
claim petition being valued at lesser value for Rs.9,70,000/-, the
amount actually due and payable is to be awarded is Rs.10,21,800/-.
In that view of the matter, the award passed by the Tribunal is liable to
be modified.
25. The Tribunal awarded interest at 9% p.a. from the date of
presentation of petition, till the date of deposit. The accident occurred
in the year 2013 and the Appellant/Insurance Company without
admitting for just, fair and reasonable compensation has been
2022 LiveLaw (SC) 734
BVLNC,J MACMA 49 of 2017
Page 18 of 20 Dt: 04.11.2022
dragging the matter for the last 9 years. In view of the judgment of the
Hon'ble Apex Court in the case of Jakir Hussein Vs. Sabir6 which
referred another judgment of the Hon'ble Apex Court in Municipal
Corporation of Delhi Vs. Association of Victims of Uphaar
Tragedy7 granted interest @ 9% p.a., and therefore, it is not exorbitant
and excessive. In that view of the matter, I do not find any ground to
interfere with the rate of interest awarded by the Tribunal at 9% p.a.
from the date of petition, till the date of deposit of compensation
amount.
26. In the result, the appeal is partly allowed, the impugned order is
set aside, and it is held that the appellants/claimants are entitled to a
total compensation of Rs.10,21,800/-, with interest @ 9% p.a. from the
date of filing of claim petition, till the date of actual payment. There
shall be no order as to costs.
The 3rd respondent/Insurance Company is directed to deposit
the entire compensation amount of Rs.10,21,800/- along with accrued
interest thereon, within one month from the date of judgment.
(2015) 7 SCC 2154
(2011) 14 SC 481
BVLNC,J MACMA 49 of 2017
Page 19 of 20 Dt: 04.11.2022
On such deposit, the 1st Appellant/1st claimant being the wife of
deceased, is entitled to an amount of Rs.5,70,000/- and she is
permitted to withdraw Rs.5,70,000/- along with the accrued interest
thereon. The Appellants No.2 and 3/claimants No.2 and 3, being the
minor daughters of the deceased, are entitled to an amount of
Rs.1,50,000/- each, and the said amount of Rs.1,50,000/- each, shall
be deposited in any nationalised bank, till the Appellants No.2 and 3
attain majority, and after attaining majority, the Appellants No.2 and 3
are permitted to withdraw Rs.1,50,000/- each along with the accrued
interest thereon. The Appellants No.4 and 5/claimants No.4 and 5,
being father and mother of the deceased are entitled to an amount of
Rs.75,900/- each, and they are permitted to withdraw Rs.75,900/-
each, along with the accrued interest thereon. The
Appellants/claimants are directed to pay the deficit court fee before
the Tribunal as per Rule 475 (2) of A.P.M.V.Rules 1989, within one
month from the date of receipt of certified copy of the judgment.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_________________________________
B.V.L.N.CHAKRAVARTHI, J
04.11.2022
psk
BVLNC,J MACMA 49 of 2017
Page 20 of 20 Dt: 04.11.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.49 OF 2017
Note: Mark L.R.Copy.
psk
4th November, 2022
psk
