Andhra Pradesh High Court - Amravati

Chabattulla Ratna Kumari 3 Others vs Bhukya Somulu Another on 10 November, 2022

Bench: T Mallikarjuna Rao

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                                                 M.A.C.M.A. No.72 of 2012



       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                  M.A.C.M.A. No.72 OF 2012


JUDGMENT:

1. Aggrieved by the order dated 30.05.2011 in M.V.O.P. No.336 of

2010 passed by the Chairman, Motor Accidents Claims Tribunal-

cum-Principal District Judge, West Godavari at Eluru (for short

'the tribunal'), the claimants have preferred this appeal seeking

enhancement of quantum of compensation.

2. For convenience, the parties will be referred to per their

rankings in the M.V.O.P.

3. The claimants have filed a claim petition under Section 166 of

the Motor Vehicles Act, 1988, claiming a compensation amount

of Rs.6,00,000/-for the death of Chabattula Prasad/deceased.

He is the husband of the 1st claimant, the father of claimants 2

and 3 and the son of the 4th claimant.

4. The claimant's case is that on 10.03.2010 at about 1.45 P.M.,

when the deceased was proceeding opposite to Sri Kanaka Durga

Tiffin Centre on railway station road, Tanuku, a bus bearing

registration No. A.P. 10 Z 8134, hereinafter referred to as 'the

offending vehicle) of the 2nd respondent, driven by the 1st

respondent in a rash and negligent manner, dashed him from

M.A.C.M.A. No.72 of 2012

behind, due to which he fell on the road, and the offending

vehicle ran over him, for which he died on the spot.

5. The 1st respondent filed a Memo adopting the written statement

of the 2nd respondent.

6. The 2nd respondent filed a written statement contending that the

accident in question did not occur due to the negligence of the

offending vehicle's driver, and the same occurred due to the

deceased's negligence only.

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

During the trial, on behalf of the claimants, P.Ws.1 to 3 got

examined, marked Exs.A.1 to A.14. On behalf of the

respondents, no oral or documentary evidence was let in.

8. After appreciation of evidence on record, the Tribunal held that

the accident in question occurred due to rash and negligent

driving of the 1st respondent; awarded compensation of an

amount of Rs.2,86,000/- with interest at 7.5% per annum

against the respondents.

9. Heard the learned counsel for the parties.

10. Learned counsel for the claimants contended that the deceased

used to earn Rs.6,000/- per month as vendor-cum-seller in

railway, but the Tribunal erred in taking Rs.2,000/- per month.

M.A.C.M.A. No.72 of 2012

He further contends that the post-mortem examination certificate

indicates that the age of the deceased is 35 years. Still, the

Tribunal has taken the age of the deceased between 41 to 45

years without any basis. It also has not awarded compensation

under the heads of loss of consortium and loss of estate; the

Tribunal ought to have granted interest @ Rs.9% per annum

instead of 7.5% per annum and prayed to allow the appeal

enhancing the compensation to claimants.

11. Learned standing counsel for the A.P.S.R.T.C. supports the

findings and observations of the Tribunal.

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

accident, negligence of the 1st respondent, and the death of

Chabattula Prasad (deceased) due to injuries sustained in the

accident are not disputed either by filing an appeal or cross-

objection. Hence said findings have attained finality. Thus, it is

unnecessary to narrate the factual aspects of the case.

13. Now the point for determination is whether the compensation

fixed by the Tribunal is just and reasonable.

14. The relationship between the deceased and the claimants is not

disputed. To prove the occupation of the deceased, the claimants

relied on Ex.A.11-identity card of the deceased, Ex.A.14-register

M.A.C.M.A. No.72 of 2012

for vendors and other staff of licenced contractors, in which the

name of the deceased is mentioned as an employee of

Satyanarayana. The Tribunal observed that the claimants had

not placed any cogent material to prove the deceased's earnings.

It seems that the claimants got examined witnesses to establish

the earnings of the deceased, but the Tribunal, by giving its

reasons not inclined to accept the evidence of P.W.3. However,

the Tribunal fixed the earnings of the deceased at Rs.2,000/- per

month. The accident in question occurred on 10.03.2010. In the

absence of proof of the earnings, the Apex Court, in a case

between Lakshmi Devi and others vs Mohammad Tabber 1 ,

held that in today's world, even common labour can earn

Rs.100/- per day. Given the same, the Tribunal should not have

assessed the monthly income @ Rs.2,000/-, though the

claimants have placed clinching documentary evidence to

establish that the deceased was dealing with the business at the

railway plot form. Keeping in mind the principle laid down by the

Apex Court, this Court can assess the monthly earnings of the

deceased at Rs.3,000/-.

2008 ACJ 1488

M.A.C.M.A. No.72 of 2012

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

Tribunal, without any basis, considered the deceased would fall

under the age group of 41 to 45 years. Because of such a plea

taken by the claimants, I have carefully reviewed the material

placed on record. The claimants have mentioned the deceased's

age as 35 years only by the date of death. As rightly observed, the

claimants have not placed the date of birth certificate of the

deceased. In the absence of the same, usually, the tribunals

consider the age referred to in the post-mortem report. The

claimants have placed a post-mortem examination certificate-

Ex.A.3. However, the Tribunal has not accepted the age

mentioned in the post-mortem examination report-Ex.A.3, which

shows the age of the deceased is 35 years. The Tribunal has given

its reasons for not relying on the age indicated in the Ex A3

certificate; it observed that as per the age particulars of the 1st

claimant, as mentioned in the long cause title of the petition, he

was 33 years during the relevant period. In this case, the first

claimant is Rathna Kumari, the deceased's wife. It seems from

the said observations of the Tribunal that the age of the first

claimant is 33 years. Given the said finding, I have gone through

the petition averments wherein the age of the first claimant is

M.A.C.M.A. No.72 of 2012

shown as 33 years. The Tribunal observes that when such is the

position, the case of the claimants, that the deceased had 35

years only during the relevant period cannot be appreciated. The

accident occurred in 2010, and the claim petition was filed in

2010. But the Tribunal, relying on the age of the first claimant

shown in the petition, disbelieved the deceased's age. This Court

views that when the first claimant, the wife, was 33 years old, I

do not understand the difficulty for the Tribunal to accept the age

of the deceased as 35 years as of the date of the accident.

Without good reasons, the Tribunal disbelieved the claimants'

case regarding the age of the deceased; it does not stand for legal

scrutiny. At any stretch of the imagination, it can not hold that

when the wife's age is 33 years, as on the date of the accident,

the husband's age should not be 35 years.

16. Relying on the post-mortem examination report, this Court

considers the age of the deceased as 35 years at the time of the

accident.

17. Coming to the loss of earnings, while determining the income, in

case the deceased was self-employed or on a fixed salary, an

addition of 40% of the established income should be the warrant

where the deceased was below the age of 40 years, in view of the

M.A.C.M.A. No.72 of 2012

principle laid down by the Apex Court in National Insurance

Company Ltd., Vs. Pranay Sethi 2 . Hence, an amount of

Rs.1200/- (Rs.3,000/- x 40%) can be considered towards the

future prospectus, and the monthly earnings of the deceased

would arrive at Rs.4,200/- (3,000/- +1200/-). From which, one-

fourth of the amount should be deducted as held by the Tribunal

towards personal expenses of the deceased, where a number of

dependent family members are 4 to 6 in number, accordingly an

amount of Rs.1,050/- is to be deducted from the monthly

earnings of the deceased and the contribution of the earnings

towards the family members would arrive at Rs.3,150/-. Going by

the judgment of the Apex Court in Sarla Verma Vs. Delhi

Transport Corporation3 the relevant multiplier for the person's

age group of 31 to 35 years is '16', and as such, the loss of

earnings of the deceased would arrive at Rs.6,04,800/-

(3,150x12x16).

18. Coming to the consideration of funeral expenses, loss of estate

and loss of consortium, in Pranay Sethi's case (supra2), the

Hon'ble Apex Court held, in paragraph 61, that:

(2017) 16 SCC 680

2009 ACJ 1298

M.A.C.M.A. No.72 of 2012

"(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 Rs.15,000/- respectively. The aforesaid amounts should be enhanced at 10% every three years."

19. In Magma General Ins. Co. Ltd., v. Nanu Ram 4, 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.

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.

2013 ACJ 1403 (S.C.)

M.A.C.M.A. No.72 of 2012

The filial consortium is the right of parents to compensate in the case of the accidental death of a child. An accident leading to the end of a child causes great shock and agony to the parents and family of the deceased. The most incredible suffering for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and role in the family unit."

20. By following the principles laid down by the Apex Court in

Magma General Insurance Co. Ltd's case and Pranay Sethi's

case, this Court inclined to award an amount of Rs.16,500/-

towards funeral expenses and Rs.16,500/- towards loss of estate,

an amount of Rs.88,000/- (Rs.44,000/- each) towards parental

consortium and an amount of Rs.44,000/- towards spousal

consortium. In all, the claimants are entitled to the compensation

as detailed hereunder:-

             Towards loss of earnings               Rs. 6,04,800/-
             Towards funeral expenses               Rs. 16,500/-
             Loss of Estate                         Rs. 16,500/-
             Parental consortium                    Rs. 88,000/-
             Spousal consortium                     Rs. 44,000/-
                                             ------------------------------
             Total:                                 Rs. 7,69,800/-
                                             ------------------------------

21. The claimants filed their claim for an amount of Rs.6,00,000/-.

In Ramla vs National Insurance Co. Ltd.,5 the Apex Court held

that there is no restriction to award compensation exceeding the 5 CIVIL APPEAL NO.11495 OF 2018

M.A.C.M.A. No.72 of 2012

amount claimed, and as such, given the principle laid down by

the Apex Court, the claimants are entitled to an amount of

Rs.7,69,800/- exceeding the claimed amount. However, the

claimants shall pay the requisite court fee over and above the

compensation awarded.

22. The learned counsel for the claimants also contended that the

Tribunal had granted interest @ 7.5% per annum without

considering the prevailing bank rate of interest. The accident