Andhra Pradesh High Court - Amravati

S.Johny Basha Anr vs Sk.Karimullah Anr on 9 November, 2022

         HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                     MACMA No.172 OF 2012
JUDGMENT:

1. Aggrieved by the order dated 18.01.2007 in MVOP No.1090 of

2005 passed by the Chairman, Motor Accidents Claims Tribunal-

cum-II Additional District Judge, Guntur (for short 'the

Tribunal'), the claimants have preferred this appeal dissatisfied

with the compensation amount awarded by the Tribunal, seeking

enhancement of the compensation.

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

arrayed in the MV OP.

3. The claimants are the parents of the deceased. The deceased is

their only son. They filed a claim petition under Sections 163-A

and 166 of the Motor Vehicles Act,1988, claiming a

compensation amount of Rs.1,50,000/- for the death of their

son-Shaik Faruk, aged about eight (08) years (hereinafter

referred to as 'the deceased'), in a motor vehicle accident that

occurred on 10.08.2005 at approximately 04.00 PM near

Lanchester road, Guntur.

4. It is their case; the deceased was walking on the road to the

sweet shop on 10.08.2005 at 04.00 PM with his father, an auto

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bearing No.AP 7 X 2234 (hereinafter referred to as 'the offending

vehicle) being driven by its driver rashly and negligently hit the

deceased, causing grievous injuries all over the body, including

the head injury. Immediately, he was shifted to the Government

General Hospital, Guntur, for treatment, but he died while

undergoing treatment.

5. The first respondent remained exparte.

6. The second respondent filed its written statement disputing the

claim of the petitioners and the manner of the accident. The

driver of the offending vehicle had no valid driving licence at the

time of the accident.

7. Based on the pleadings, the Tribunal formulated appropriate

issues. During the trial, on behalf of the claimants, the first

claimant was examined as P.W.1 and marked Exs.A1 to A.4. No

oral or documentary evidence was let in on behalf of the

respondents.

8. After evaluating the evidence on record, the Tribunal held that

the accident occurred due to the rash and negligent driving of

the offending vehicle's driver. The Tribunal granted a

compensation amount of Rs.73,000/- with interest @ 6% per

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annum with proportionate costs from the date of the claim

petition till the date of realization.

9. The learned counsel for the claimants/ appellants contended

that the Tribunal granted only an amount of Rs.50,000/-

towards loss of dependency and that the Tribunal erred in

awarding only interest at 6% per annum.

10. Learned counsel for the respondents supported the findings and

observations of the Tribunal.

11. Now the points for determination are whether the compensation

amount fixed by the Tribunal is just and reasonable and whether

it requires enhancement.

12. As seen from the grounds of appeal and submissions made on

either side, the 2nd respondent/insurance company has not

disputed the manner of the accident or the finding of the

Tribunal regarding the negligence of the offending vehicle's driver,

not disputed the death of the deceased for the injuries sustained

in the accident and its liability to pay the compensation amount.

In view of the same, this Court is of the view that it is not

necessary to refer to the facts relating to the manner of an

accident.

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13. The findings of the Tribunal that the deceased was aged about

eight years at the time of the accident, hale and healthy, was

studying the second standard in Srinivasa Vidya Nikethan and is

the only son; not disputed. The Tribunal awarded an amount of

Rs.53,000/- under the head of loss of dependency. As the

deceased was a non-earning person at the time of the accident,

The Tribunal is supposed to have taken as notional income as

Rs.15,000/- per annum.

14. At this juncture, it is relevant to refer to the observations made

by the Hon'ble Apex Court in Rajendra Singh & Ors. vs National

Insurance Co.Ltd. & Ors1. As seen from the Judgment, in the

said case, the Tribunal assessed the notional income of the first

deceased and, after a one-fourth deduction towards personal

expenses, with a multiplier of seventeen, awarded compensation

without disturbing the said finding. In the said Judgment,

paragraph 13 held that the income of the minor child is incapable

of precise fixation and further observed that they find no reason

to interfere with the assessed notional income of the second

deceased.

2020 ACJ 2011

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15. Considering the grant of the future prospectus for the deceased

child aged about eight years, in R.K.Malik and others vs Kiran

Paul2, the Hon'ble Apex Court held, in paragraph 31, as follows:

"31. A forceful submission has been made by the learned Counsels appearing for the claimants- appellants that both the Tribunal and the High Court failed to consider the claims of the appellants concerning the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in the such submission that the Courts below have overlooked that aspect while granting compensation. It is well settled legal principle that in addition to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation."

16. In National Insurance Company Limited v. Pranay Sethi and

others3 it also observed that where the deceased was a bachelor,

and the claimants are the parents, the deduction follows a

different principle. In regard to a bachelor's, normally, 50% is

2009 ACJ 1924

(2017) 16 SCC 680

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deducted as personal and living expenses because it is assumed

that a bachelor would tend to spend more on himself. Further

observed that taking into consideration the cumulative factors,

namely, the passage of time, the changing society, escalation of

price, the change in the price index, the human attitude to follow

a particular pattern of life, etc., an addition of 40% of the

established income of the deceased towards future prospects.

17. By following the principles laid down by the Hon'ble Apex Court,

this Court considers that 50% of the notional income of the

deceased is to be deducted towards personal expenses and 40%

of the income to be added towards future prospectus. On

deduction of 50% of the annual income towards personal

expenses of the deceased, an amount of Rs.7,500/- can be

considered, and 40% of the annual income under the future head

prospects arrived at Rs.3,000/-, in total, this Court, thought the

annual income at Rs.10,500/- (Rs.7,500/- +3,000/-). The

Tribunal has applied the multiplier '15' to assess the loss of

dependency, which need not be disturbed, and it would come to

Rs.10,500/- x 15 = 1,57,500/-.

18. As seen in the Judgment of the Tribunal, the Tribunal has

awarded an amount of Rs.10,000/- towards loss of estate and

MACMA_172_2012

Rs.10,000/- towards funeral expenses. This Court views the

amount awarded under loss of estate can be modified as an

amount awarded under the filial consortium. Thus the claimants

are entitled to an amount of Rs.1,57,000 +20,000/- =

Rs.1,77,000/-.

19. The Hon'ble Apex Court, in a case between Nagappa Vs.

Gurudayal Singh4, observed that

"...the question was answered in the affirmative, holding that in the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, wherefrom the evidence brought on record, if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is it should be just compensation; that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. Such observations were made in light of the provisions contained in sections 166 (1) and (4), 158 (6) and 168 of the Motor Vehicles Act, 1988."

20. This view was after that reiterated by the Supreme Court in

Rajesh v. Rajbir Singh5, Sanjay Verma v. Haryana Roadways6,

2003 ACJ 12 (SC)

2013 ACJ 1403 (SC)

2014 ACJ 692 (SC)

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and Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar 7.

By following principles laid down in the said decision though the

claimants have claimed only an amount of Rs.1,50,000/-, this

Court is of the view that an amount of Rs.1,77,000/- can be

awarded in the light of the facts and circumstances of the case.

21. The learned counsel for the appellant mainly contended that the