Patnana Santhamma 3 Ors vs Jannela Prabhakara Rao Anr
2022 Latest Caselaw 7801 AP

           HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO


                       MACMA.No.462 OF 2012

JUDGMENT :

1. Aggrieved by the award dated 02.12.2011 in MVOP.No.164 of 2010 passed by the Chairman, Motor Accident Claims Tribunal - Cum - Principal District Judge, Srikakulam (for short 'the Tribunal'), the claimants preferred this appeal seeking enhancement of compensation amount.

2. For convenience's sake, hereinafter, the parties will be referred to as arrayed in MVOP.No.164 of 2010.

3. The pleadings of both parties and evidence adduced on behalf of both sides show the following facts, either admitted or undisputed. The 1st petitioner is the wife, petitioners 2 and 3 are the sons, and the 4th petitioner is the daughter of the deceased. The 1st respondent is the owner of the bus bearing No.AP03U1479, (hereinafter referred to as offending vehicle), the 2nd respondent is the insurer of the 1st respondent vide policy No.550702/31/07/6700001453, valid from 22.01.2008 to 21.01.2009. There is no dispute that the accident occurred on 28.10.2008 involving the offending bus of the 1st respondent, and the deceased died of injuries sustained in the accident.

4. The petitioners claim under Sec.166 of Motor Vehicles At, 1988, compensation of Rs.5,00,000/- with costs. The claimant's case is that on 28.10.2008, P.Neelaiah boarded the bus and got down at Baruva Junction road at about 06.30 PM; he was walking on the left side road margin to go to Baruva village. The 1st respondent's driver M.Ramakrishna drove the bus suddenly at high speed in a

MACMA.No.462 OF 2012

rash and negligent manner and dashed against Neelaiah. As a result, he fell, and the left front wheel of the bus ran over him; thereby, he sustained multiple fracture injuries and was shifted to Government Hospital, Sompeta, and further took him to M.K.C.G.Hospital, Berhampur, for treatment. While undergoing treatment, he succumbed to injuries on 29.10.2008 at about 00.20 hours in the hospital. Police registered the case against the 1st respondent and filed a charge sheet i

5. The 1st respondent remained exparte. The 2nd respondent filed a counter by contending that there was no negligence on the driver of the offending vehicle; he did not have a valid and effective driving license at the time of the accident. The accident occurred due to the deceased negligence, the compensation claimed is excessive.

6. Based on the pleadings, the Tribunal framed the relevant issues. Before the Tribunal on behalf of petitioners, PWs.1 and 2 got examined, marked.A1 to A3. On behalf of the 2nd respondent denoted copy of insurance policy as Ex.B1.

7. After considering the evidence on record, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle, and both the respondents are jointly and severally liable to pay the compensation amount.

8. Heard the arguments of learned counsel for the appellant and respondents and perused the record.

9. The learned counsel for appellants contended that the Tribunal committed a severe error in awarding abysmally less compensation without considering the material available on record. Per contra, the

MACMA.No.462 OF 2012

learned counsel for the respondent supported the findings and observations of the learned Tribunal.

10. Now the point for determination is whether the compensation amount awarded by the Tribunal is just and reasonable and it requires enhancement.

11. After reading the evidence on record, this court believes that there is no serious dispute about the death of the deceased due to injuries sustained in the accident. After considering the appeal grounds and submissions made on behalf of both sides, it can see there is no dispute about the occurrence of the accident and the liability of the respondent to pay the compensation amount. As the respondent has not preferred any appeal or cross-objections questioning the findings or observations made by the learned Tribunal, the said findings became final. Both counsels addressed their arguments only on the quantum of compensation, and given this admitted position, it is unnecessary to narrate the factual aspects of the case in detail.

12. It is the case of the petitioners that the deceased was a mason also cultivating the lands and earning Rs.5,000/- per month. After considering the material placed before it, the Tribunal has taken the actual income of the deceased at Rs.15,000/- per year. The petitioners have not put any documentary evidence before the Tribunal showing the deceased's earnings. The accident in question occurred on 28.10.2008. Since there is no documentary proof of his income the minimum wages of even unskilled workers during 2008 can be taken as Rs.3,000/- per month, as the earnings of the deceased. In a decision reported between National Insurance

MACMA.No.462 OF 2012

Company vs Paranay seti1 held that in case the deceased was self- employed, an addition of 10% of the established income should be the warrant where the deceased was between the age of 50 and 60 years. In view of the same, the annual earnings of the deceased, including a future prospectus, can be assessed at Rs.3,000/+ 10% = Rs.3,300

13. . The Tribunal, after considering the various documents submitted by petitioners at para No.11 of the order, fixed the age of the deceased as 55 years. In the case of "Sarala Varma and others Vs. Delhi Corporation and another"2, the appropriate multiplier applicable to the age group of 51 to 55 as 11 .where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd), where the number of dependant family members is 2 to 3 and one - fourth (1/4th) where the number of dependant family members is 4 to 6; and one - fifth (1/5th ) where the number of dependant family members is 6.

14. After deducting 1/4th amount, the net income of the deceased, which can contribute to the family, arrived at Rs.3,300 - 825= 2475/- and when multiplied by 12, the net annual contribution of the deceased was at Rs.29,700/- and so when multiplied with an appropriate multiplier, i.e., 11 total loss of contribution was to be Rs.29,700 X 11 = Rs.3,26,700/-.

15. In Magna General Ins. Co.Ltd., V.Nanu Rm3, the Apex Court held that: "The Motor Vehicles Act is a beneficial and welfare legislation The is duty-bound and entitled to award 'just compensation, in

2017 ACJ 270

2009 ACJ 1298

2018 ACJ 2782 (SC)

MACMA.No.462 OF 2012

respective of whether any plea in that behalf was raised by the claimant. A constitution Bench of this court in Pranay Sethi 2017 ACJ 2700 (SC) 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.

16. 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 for the deceased, which is a loss of his family. For a spouse, it would include sexual relations with the deceased spouse [Rajesh v. Rajbir Singh4]. 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.

17. The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The most incredible 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.

18. In Pranay Sethi, the Hon'ble Supreme Court has awarded a total sum of Rs.70,000/- under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at the rate of 10 per cent every three years. It was held thus in para 61: "(viii) Reasonable figures under conventional heads, namely loss of estate, loss of consortium and

2013 ACJ 1403 (SC)

MACMA.No.462 OF 2012

funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforementioned amounts should be enhanced at the rate of 10 per cent in every three years". The Judgment in Pranay Sethi was rendered in the year 2017. Therefore, the claimants are entitled to a 10 per cent enhancement. Thus, a sum of Rs.16,500/- each is awarded towards loss of estate and funeral expenses.

Thus the appellants are entitled to compensation as under

i. Towards loss of dependency: Rs.3,26,700/-

ii. Loss of estate                  : Rs.16,500/-
iii. Funeral expenses               : Rs.16,500/-
iv. Loss of spousal consortium      : Rs.44,000/-
v. Loss of parental consortium
    to three children considering
    their different ages            : Rs.96,300/-
        Total                       : Rs.5,00,000/-

19. The Tribunal awarded the interest amount at 8% per annum. The respondent's counsel contended that the interest granted is excessive and on the higher side, and the interest is to be scaled down. No material is placed to show that the interest awarded is not on par with the guidelines of RBI on the date of occurrence. The respondents have not placed evidence regarding the prevailing rate of interest as of the date of the accident. In a decision reported by United India Insurance co. Ltd. Vs Satinder Kaur and others 2020 ACJ 2131, the Tribunal allowed interest at 9% per annum and the High Court reduced the rate to 7.5% per annum, and the Hon'ble Apex Court observed it appropriate to direct the interest at the rate of 12% per annum be paid on the total compensation awarded. The

MACMA.No.462 OF 2012

granting of interest depends on the facts and circumstances of the case. It cannot say that the rate of interest cannot be surpassed by more than 7.5% per annum. Based on the case facts, the Tribunal awarded the interest at the rate of 8% per annum. As such, I am not inclined to interfere with the rate of interest awarded by the Tribunal.

20. Accordingly, the claimants shall be entitled to a principal sum of Rs.5,00,000/- together with interest at 8% per annum to be calculated from the filing of the claim petition till the date of payment.

21. Resultantly the appeal is allowed without costs by fixing the compensation amount of Rs.5,00,000/- by enhancing from Rs.1,70,000/- with interest at the rate of 8% as awarded by the Tribunal. The insurance company is directed to deposit the balance compensation amount within one month from the date of this order. In all other aspects, the order passed by the Tribunal is unaltered. The petitioners are entitled to an enhanced compensation amount in the same proportion as the Tribunal apportioned the compensation amount among them. The petitioners are entitled to withdraw the compensation amount on deposit by filing a proper application before the Tribunal.

22. Miscellaneous petitions, if any, are pending shall stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO Date :13.10.2022.

BV/KGM

MACMA.No.462 OF 2012

HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

MACMA.No.462 OF 2012 Date :13.10.2022

BV/KGM