Andhra Pradesh High Court - Amravati

The United India Insurance ... vs Sangala Venkata Ramudu And 2 ... on 17 November, 2022

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                  M.A.C.M.A. No.119 OF 2012


JUDGMENT:

1. Aggrieved by the order dated 04.03.2011 in M.V.O.P. No.142 of

2010 passed by the Chairman, Motor Accidents Claims Tribunal-

cum-IV Additional District Judge (F.T.C.), Anantapur, the United

India Insurance Company Limited, represented by its Divisional

Manager, Anantapur-2nd respondent herein has preferred this

appeal questioning the quantum of compensation.

2. For the sake of convenience, hereinafter, the parties will be

referred to as per their rankings in the M.V.O.P.

3. The claimants filed a claim petition under Section 163-A of the

Motor Vehicles Act, 1988 (for short 'the Act), claiming a

compensation amount of Rs.5,00,000/-for the death of their son

Sangala Ramu (hereinafter referred to as 'the deceased'). He died

in a motor vehicle accident that occurred on 22.11.2008.

4. The claimant's case is that on 22.11.2008, while the deceased

was proceeding on his bicycle towards Sapthagiri Circle from

Sainagar, and when he reached Baby hospital, the bus driver

bearing No. K.A. 20 8104 (hereinafter referred to as 'the

offending vehicle) drove the same rash and negligently at high

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speed, lost control over the same and dashed against the cyclist-

Sangala Ramu (deceased); thereby, he died on the spot.

5. The 1st respondent remained exparte.

6. The 2nd respondent filed a counter contending that the accident

was caused only due to the deceased's negligence; the driver of

the offending vehicle was not holding a valid driving licence at

the time of the accident.

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

During the trial, P.Ws.1 to 3 got examined and marked Exs.A.1

to A.5 on behalf of the claimants. R.Ws.1 and 2 got examined

and marked Exs.B.1 and B.2 on behalf of the 2nd respondent.

After appreciation of the oral and documentary evidence, the

Tribunal concluded that the accident occurred due to the rash

and negligent driving of the offending vehicle driver and granted

compensation of Rs.4,35,000/- to the claimants with interest at

7.5% per annum.

8. Heard the learned counsel for both parties.

9. Learned counsel for the 2nd respondent/appellant contends that

the deceased is an unmarried person, therefore, his contribution

of earnings to the welfare of the family members would be 50%,

but the Tribunal considered the contribution of the earnings at

1/3rd, which is contrary to the settled law. As per the averments

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made in the claim petition, the mother's age is 43 years. It is

further contended as per the Judgment of the Apex Court in

Sarla Verma v. Delhi Transport Corporation1 the appropriate

multiplier for the person's age group 41 to 45 years is '14', and

the Tribunal also erred in relying on the self-serving statement of

P.W.3 and considered the income at Rs.3,500/- per month,

which is highly excessive and as per the F.I.R., the alleged

accident occurred due to unknown vehicle. In the absence of any

material the insured vehicle was implicated in the case.

10. Per contra, learned counsel for the claimants supported the

findings and observations of the Tribunal.

11. Now point for consideration is, whether the accident occurred

due to negligence of the driver of the offending vehicle and

whether the quantum of the compensation amount awarded by

the Tribunal is just and reasonable.

12. The first claimant, the deceased's father, was examined as

P.W.1. In the evidence, he testified about the manner of the

accident. Since he is not an eyewitness to the accident, the

Tribunal has not considered the evidence regarding the manner

of the accident. However, the claimant got examined P.W.2-

U.Narayana deposed that when the deceased reached Baby

2009 ACJ 1298

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hospital, the offending vehicle, came from the Sapthagiri circle

side, driven by its driver in a rash and negligent manner at high

speed, lost control over the same, and dashed against the

deceased. The 2nd respondent got examined R.W.1-S.Srirama

Naik in support of its case. Admittedly, he is also not an

eyewitness to the accident in question. The 2nd respondent relied

on Ex.B.1-copy of policy and Ex.B.2-copy of Judgment in C.C.

No.78 of 2009. As seen from the Judgment in C.C. No.78 of 2009,

the Additional Judicial Magistrate of I Class, Anantapur, found

the driver of the offending vehicle not guilty of the offence under

section 304-A I.P.C. and acquitted. Simply because the case

against the driver of the offending vehicle ended in acquittal, it

cannot be said that the involvement of the offending vehicle in

the accident is not proved and cannot be said that the said

finding is binding on this Court. The learned Magistrate has

found that the prosecution miserably failed to prove the driver's

guilt of the offending vehicle beyond all reasonable doubt. In the

said criminal case, the prosecution is supposed to prove the case

beyond all reasonable doubt. The learned Magistrate also

observed that P.Ws.1 and 3 in the CC, eyewitnesses to the

accident, also did not say anything against the accused. As seen

from the Judgment in C.C. No.78 of 2009, at any stretch of the

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imagination, it cannot be concluded that the learned Magistrate

has not accepted the prosecution's case with regard to the

involvement of the offending vehicle in the accident. The

claimants filed the claim petition under Section 163-A of the

Motor Vehicles Act. Hence, this Court views that the claimants

need not prove the rash and negligent driving of the driver of the

offending vehicle. Still, it is sufficient to establish the involvement

of the offending vehicle in the accident. In this case, the

claimants examined P.W.2-U.Narayana claimed to be an

eyewitness to the accident. As seen from Ex.B.2-judgment in C.C.

No.78 of 2009, Narayana is not examined as a witness. After

reading the evidence of P.W.2, it cannot be said that his evidence

is disproved with regard to witnessing the accident. The inquest

report and post-mortem examination report also show the death

of the deceased due to the injuries sustained in the accident.

After considering the entire evidence on record, the Tribunal has

come to an opinion that due to the rash and negligent driving of

the driver of the offending vehicle, the death of the deceased

occurred. Though the Tribunal has given a finding regarding the

rash and negligent driving of the driver of the offending vehicle,

as it is a petition filed under Section 163-A, it is sufficient to

prove the involvement of the offending vehicle in question.

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13. In a proceeding under the M.V.Act, where the procedure is a

summary procedure, there is no need to go by strict rules of

pleading or evidence. The document having some probative value,

the genuineness of which is not in doubt, can be looked into by

the Tribunal for getting preponderance of probable versions. The

preponderance of probabilities is the touchstone for concluding

rashness and negligence, as well as the accident's mode and

manner of happening. As such, it is now well settled that even

F.I.R. or Police Papers, when made part of a claim petition, can

be looked into for giving a finding in respect of the happening of

the accident.

14. The Tribunal has accepted the claimants' case regarding the

manner of the accident and also accepted the observations made

by the Investigating Officer in the charge sheet making the driver

of the offending vehicle responsible for the accident. As observed,

the charge sheet contents also support the claimants' case

regarding the manner of the accident.

15. The reading of the documents placed before the Tribunal clearly

shows that the accident occurred due to rash and negligent

driving of the driver of the offending vehicle. When the 2 nd

respondent contends that the accident happened differently, it is

to place necessary evidence before the Tribunal based on which

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the Tribunal expected to give its conclusion. Upon careful reading

of the material on record, this Court is of the view that the

Tribunal has correctly appreciated the evidence on record and the

finding of the Tribunal that the accident occurred due to rash

and negligent driving of the offending vehicle holds good.

16. Regarding the quantum of compensation, admittedly, the

deceased was 20 years old at the time of the accident. Based on

the documentary evidence viz., Ex.A.2-Inquest report and Ex.A.3-

Post Mortem Examination Report, the Tribunal considered the

age of the deceased as 20 years. Admittedly, the deceased was an

unmarried person. The Tribunal considered the age of the mother

for the application of the multiplier. In the claim petition, it is

averred that the age of the 2nd claimant is '45' years and further

averred regarding the earnings of the deceased at Rs.5,000/- by

working as Sales Manager. The Tribunal considered the age of

the mother and the monthly earnings of the deceased at

Rs.3,500/- and applied a multiplier '15'.

17. In the case of R.K.Malik v. Kiran Pal2, the Apex Court held, in

paragraph 32, that denying compensation towards prospects

seems unjustified. Accordingly, the Apex Court awarded

compensation for prospects in a claim under section 163-A of

2009 A.C.J. 1924 (S.C.)

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the MV Act, 1988. Following the same, this Court assessed the

annual earnings of the deceased at Rs.40,000/- and assessed

the future prospectus at 30%. In all, the annual earnings arrived

at Rs.52,000/-.

18. It is the further contention of the 2nd respondent that the

Tribunal deducted 1/3rd earnings of the deceased towards his

expenses. But the deceased happened to be a bachelor, and 50%

of income must be deducted towards personal expenses. Hence,

after the deduction of half of the annual income of the deceased

towards his expenses, an amount of Rs.26,000/- would have

arrived for the contribution to the family.

19. It is further contention of the 2nd respondent that the Tribunal

ought to take into consideration the age of the deceased instead

of the mother.

20. While dealing with similar circumstances, a three-Judge bench

of the Hon'ble Apex Court, in Royal Sundaram Alliance vs

Mandala Yadagari Goud3 by referring to the principles laid down

in Sube Singh v. Shyam Singh4 and Reshma Kumari v. Madan

Mohan 5 The view was categorically taken that the age of the

deceased and not the parents' age would be the factor to take the

2019 ACJ 1644

2018 ACJ 737 (S.C.)

2013 ACJ 1253 (S.C.)

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multiplier to be applied. The relevant portion of the Judgment, in

paragraphs 11 to 13, is extracted hereunder:

"11.....the loss of dependency is thus stated to be based on: (i) additions/ deductions to be made for arriving at the income; (ii) the deductions to be made towards personal and living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. It is the third aspect of significance, and Reshma Kumari (supra) categorically states that it does not want to re-visit the law settled in Sarla Verma on this behalf. 12 The Constitution Bench in National Insurance Company Ltd., V. Pranay Sethi 2017 ACJ 2700 (S.C.) has also been referred to in Sube Singh v. Shyam Singh 2018 ACJ 737 (S.C.).

13.....there is no need to take up this issue settled by the aforesaid judgments of the three-Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents."

21. By following the principles laid down by the Apex Court in Royal

Sundaram's case (supra3), Sube Singh's case (supra4), and

Reshma Kumari's case (supra5), this Court is of the view that the

Tribunal ought to consider the age of the deceased to apply the

multiplier '16' which is specified for the person's age group of 15

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to 20 years as specified in the II Schedule of the MV Act in

determining the loss of earnings of the deceased. The loss of

dependency comes to Rs.4,16,000/- (26,000x 16). The Tribunal

awarded an amount of Rs.4,20,000/- under the head of loss of

dependency and Rs.10,000/- towards loss of estate, and

Rs.5,000/- towards funeral expenses, which cannot be said to be