Maddina Sumathi vs Viswabharathi Educational ...
2022 Latest Caselaw 8817 AP

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                      M.A.C.M.A. No.27 OF 2012


JUDGMENT:

1. Aggrieved by the order dated 12.09.2011 in M.V.O.P. No.239 of

2008 passed by the Chairman, Motor Accidents Claims Tribunal-

cum-I Additional District Judge, Nellore (for short 'the tribunal'),

the claimant preferred this appeal seeking enhancement of

quantum of compensation.

2. For the sake of convenience, hereinafter the partieswill be

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

3. The claimant filed a petition under Section 166 of the Motor

Vehicles Act, 1988, for a compensation amount of Rs.3,00,000/-

for the death of Maddina Rajeswari, who is the claimant's

daughter. The said Rajeswari died in a motor vehicle accident

that occurred on 13.06.2007. She will be referred to as 'the

deceased. Her daughter was aged about seven years by the date

of the accident.

4. The claimant's case is that she joined her daughter in

Viswabharati School, Gudur, on 12.06.2007. On 13.06.2007,

she sent her daughter (deceased herein) to the school in a school

van bearing No. A.P. 07 T 3932 (hereinafter referred to as 'the

M.A.C.M.A. No.27 of 2012

offending vehicle), and then she went to Engineering College

where she works as a cook. She returned home in the evening

and found her daughter lying unconscious. On enquiry, she

learnt that while her daughter was in the foot-board, the driver

moved the offending vehicle, thereby she fell down and the head

fell on the stone and she rolled into a side canal. The claimant

took her daughter to Bollineni super specialty hospital. From

there, she was discharged and brought back to Gudur to admit

her to Government Hospital; the deceased passed away.

5. The 1st respondent filed a written statement contending that the

offending vehicle owned by the 1st respondent insured with the

2nd respondent; there is no rashness or negligence on the part of

the offending vehicle's driver, the accident occurred due to the

rashness and negligence on the part of the deceased herself.

6. The 2nd respondent filed its written statement contending that

the driver of the offending vehicle is not having a valid and

effective driving licence to drive the school bus and the deceased

while playing in the school fell on the ground and her head hit

on the stone, and thereby she received a head injury and died

while undergoing treatment. The 2nd respondent also filed an

additional written statement contending that at the time of the

M.A.C.M.A. No.27 of 2012

accident, one B.Srinivasulu was driving the offending vehicle.

The Additional Licencing Authority, Nellore, issued a driving

licence. It is further contended that as per the driving licence,

the driver is authorized to drive a light motor vehicle of non-

transport only, and the school bus is a passenger-carrying

vehicle; hence the 2nd respondent is not liable to pay the

compensation amount.

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

prove the claimant's case, during the trial, P.Ws.1 and 2 got

examined and marked Exs.A.1 to A.5. On behalf of the 2 nd

respondent, R.W.1 got examined and marked Exs.B.1 to B.3.

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

that the accident in question occurred due to the rash and

negligent driving of the driver of the offending vehicle's driver. It

awarded compensation of Rs.1,00,000/- with interest at 7% per

annum against the respondents.

9. Heard the learned counsel for both parties.

10. Learned counsel for the claimant contends that the Tribunal

failed to appreciate the evidence on record and has given an

incorrect finding that the deceased had just started attending

school. The claimant will depend upon her daughter after the

M.A.C.M.A. No.27 of 2012

deceased attains majority; hence she is entitled to compensation.

He further contends that the Tribunal has taken into

consideration that the deceased was not earning anything and

failed to appreciate the fact that the claimant is a widow and no

one is left for her except the deceased to take care of her in future

because of her daughter's death she became orphan. It cannot be

compensable in any way. The Tribunal is incorrect in awarding

only Rs.1,00,000/- instead of Rs.3,00,000/- and prayed to allow

the appeal.

11. Learned counsel for the respondents supported the findings and

observations of the Tribunal and prayed to dismiss the appeal.

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

disputed. The claimant relied on Ex.A.1-attested copy of F.I.R.

and Ex.A.5-attested copy of the charge sheet to show the

involvement of the offending bus in the accident. The claimant

relied on Ex.A.2-photostat copy of the postmortem examination

report to show that the deceased's death occurred due to the

injuries sustained in the accident. The Tribunal's finding

regarding the manner of the accident, negligence of the driver

and caretaker of the offending vehicle, death of the daughter of

the claimant (deceased) due to injuries sustained in the accident

M.A.C.M.A. No.27 of 2012

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. Admittedly, the deceased was about 7 years as of the date of the

accident. One day before the accident, the claimant admitted her

daughter (deceased) into school one day before the accident. As

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

accident, the Tribunal should have considered the notional

income as Rs.15,000/- per annum.

15. 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. & Ors 1. As seen from the judgment, in the

said case, Tribunal assessed the notional income of the minor

child. However, the Tribunal deducted 50% towards personal

expenditure. Without disturbing the said finding, the Hon'ble

Apex Court observed, in paragraph 13, held that the income of

the minor child is incapable of precise fixation and observed

further that they find no reason to interfere with the assessed

2020 ACJ 2211

M.A.C.M.A. No.27 of 2012

notional income of the second deceased. Considering the grant of

the future prospectus for the deceased child aged about ten

years, in R.K.Malik and others vs Kiran Paul 2, 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 of the matter 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 Ltd. Vs Pranay Sethi 3 the

Apex Court held 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, usually, 50% is deducted as

2009 A.C.J. 1924

(2017) 16 SCC 680

M.A.C.M.A. No.27 of 2012

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

in Rajendra Singh's case (Supra1), R.K.Malik's case (Supra2)

and Pranay Sethi's case (Supra3), this Court considers that 50%

of the income 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; it would come to

Rs.10,500/- x 15 = 1,57,500/-. The claimant is also entitled to

an amount of Rs.16,500/-towards funeral expenses and an

M.A.C.M.A. No.27 of 2012

amount of Rs.44,000/-towards Parental consortium. The

claimants are entitled to Rs.2,18,000/- (1,57,500+16,500+

44,000).

18. The learned counsel for the claimant also contended that the

Tribunal had granted interest @ 7% per annum without

considering the prevailing bank rate of interest. The accident

occurred in 2007, and the overall bank interest rate was more

than 12% per annum at that time and requested the Court to

grant reasonable interest.

19. The granting of rate of interest depends on the facts of the case

and prevailing bank rate of interest. There is no material placed

before the Court showing the prevailing bank rate of interest as

on the date of accident as such; it can not hold that awarding the

interest rate at 7% per annum is not just and reasonable as the

tribunal, at its discretion granted such rate of interest in the

facts of the case. There is nothing to show that tribunal has not

exercised its jurisdiction and no interference needs to be

required.

20. Accordingly, the appeal is partly allowed, enhancing the

compensation amount from Rs.1,00,000/- to Rs.2,18,000/-

M.A.C.M.A. No.27 of 2012

(Rupees two lakh eighteen thousand only) with interest at 7% per

annum from the date of the claim petition till the date of

realization. There shall be no order as to costs. The respondents

shall deposit the compensation within two months of receiving a

copy of this order.

21. Miscellaneous Petitions, if any, pending in this appeal shall

stand closed.

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T. MALLIKARJUNA RAO, J

Dt.17.11.2022 BV