Andhra Pradesh High Court - Amravati

Smt D Aruna And Another vs G. Hari Kishore Reddy And 7 Others on 31 October, 2022

       HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO


                     MACMA. No.154 OF 2013


JUDGMENT:

1. Dissatisfied with the compensation awarded by the Chairman,

Motor Accidents Claims Tribunal-cum-III Additional District

Judge, Tirupati (for short 'the Tribunal') by an order dated

30.04.2011 in MVOP No.195 of 2007, the claimants have

preferred this appeal seeking enhancement of compensation.

2. The parties will be referred to as arrayed in the MV OP.

3. The claimants have filed a claim petition under Section 166 (1)

amount of Rs.20,00,000/- on account of the death of

D.Muniswami @ Muniswami Reddy (for short 'the deceased'),

who is the husband of 1st claimant and the father of 2nd

claimant, in the motor vehicle accident that occurred on

11.02.2007.

4. The claimant's case is that the deceased was hale and healthy

and was aged about 34 years as of the date of the accident. He

studied M.Com. And Diploma in Marketing from S.V. University

and worked as Marketing Executive in Kurnool Cylinders Private

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Limited Unit II, Hyderabad drawing a salary of Rs.10,000/- per

month. Apart from that, the deceased was running a transport

agency in the name and style of "S.V.R. Transport" and was

earning Rs.2,00,000/- from the said business. On 11.02.2007 at

about 3.30 PM, the deceased was a pillion rider, and one Prasad

Reddy was a rider of Splendor motor cycle bearing No. A.P. 03 L

0125 were coming on the Nellore-Chennai National Highway

road when they reached near Pandluru Agricultural Marketing

check post; at that time, the Scorpio bearing No. A.P. 26 L 5009,

coming from the Chennai side, was driven rashly and negligently

by its driver, lost control of the vehicle and dashed against the

deceased's motorcycle. Due to this, the rider of said motorcycle

died on the spot. The pillion rider Muniswamy died on the way to

the hospital after some time on the same day.

5. The first respondent filed a counter-denying the material

allegations made in the claim petition and further submitted that

there was no rash and negligent driving on the part of the driver

of the Scorpio. The accident occurred due to the negligent driving

of the driver of the splendour motorcycle.

6. The second respondent filed a counter and submitted that the

first respondent had not followed the rules and regulations

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under Section 5 of the Motor Vehicles Act. The first respondent's

driver did not have a valid driving licence at the time of the

accident. The alleged accident is said to have occurred at

Pendalur cross-road. The claimants failed to add the owner of

the motorcycle.

7. Respondents 3 to 6 filed a counter by submitting that after the

death of the deceased in the accident, none is there to look after

their welfare, and they are entitled to the compensation amount.

8. The 7th respondent remained ex-parte.

9. The 8th respondent filed a counter submitting that the driver of

the first respondent drove the Scorpio in a rash and negligent

manner without proper care and caution and dashed against the

motor cycle of the 7th respondent. Police also registered a case

against the driver of the first respondent and filed a charge

sheet.

10. Based on the pleadings, the Tribunal framed the appropriate

issues. During the trial, on behalf of the claimants, P.Ws.1 to 6

were examined, and marked Exs.A., 1 to A.21. On behalf of the

respondents, R.Ws.1 to 3 got examined and marked Exs.B.1 to

B.5. After considering the evidence on record, the Tribunal held

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that respondents 1 and 2 are liable to pay the compensation

amount of Rs.16,67,250/- with interest @ 6% per annum.

11. Heard the argument of learned counsel appearing for both the

parties.

12. The learned counsel appearing for the appellants/ claimants

contended that the Tribunal below committed a grave error in

granting compensation to respondents 5 and 6, the widow sisters

of the deceased. As per Section 6(8) of the Hindu Succession Act,

1956, the mother alone comes under the category of a class-I

heir, not the father or widow sister. The compensation awarded

by the Tribunal is meagre, and it is required to be enhanced.

13. Per contra, learned counsel for the respondents supported the

findings of the Tribunal.

14. Now the points that arise for consideration are whether the

Tribunal awarded just and reasonable compensation and

whether it requires enhancement .and whether the father and

sisters of the deceased cannot be treated as dependants.

POINTS:

15. There is no serious dispute concerning the manner of the

accident. The Tribunal's finding regarding the rash and negligent

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aspect is not questioned by the respondents by filing appeals or

cross-objections. The said finding has attained finality. Thus, it is

unnecessary to narrate the facts about the accident. Given the

same, since this appeal is preferred seeking enhancement of the

compensation amount, this court is inclined to confine whether

the compensation amount granted by the Tribunal is just and

reasonable.

16. As already observed, the claimants contended that the father

and sister of the deceased are not the dependents on the

deceased's earnings. The Tribunal is not justified in granting

compensation to them.

17. While dealing with the provisions of Section 166 of the Motor

Vehicles Act, 1988 in Mont ford Brothers of St. Gabriel and

Another vs United India Insurance Co. Ltd.,1the Apex Court, at

paragraph 9, held that,

"9. The Act does not define the term "legal representative", but the Tribunal has noted in its judgment and order that clause (C) of Rule 2 of the Mizoram Motor Accident Claims Tribunal Rules, 1988, defines the term 'legal representative' as having the same meaning as assigned to it in

2014 ACJ 667 (S.C.)

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clause (11) of Section 2 of the Code of Civil Procedure, 1908, which is as follows:

"Section 2(11) 'legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves On the death of the party so suing or sued".

It is further held that,

Thus the law so elucidated is the word 'legal representative' as defined in Section 2(11) C.P.C. in the context of the claim petition under Section 166 of the Motor Vehicles Act, 1988 has to be construed liberally keeping in mind that it is a beneficial piece of legislation as well as social legislation. The whole object of the said legislation, particularly the provisions regarding compensation, is that every legal representative who suffers on account of the death of a person due to a motor vehicle accident must have a remedy for the realization of compensation. These provisions are in accordance with the first principles of law, i.e. every injury must have a remedy. Accordingly, if a family breadwinner is killed in a motor vehicle accident, all persons dependent upon the breadwinner are entitled to compensation.

18. By following the principles laid down by the Apex Court, It is to be

seen whether respondents 3 to 6 established that they are the

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dependants on the earnings of the deceased. Admittedly,

respondents 3 and 4 are the aged parents of the deceased and

respondents 5 and 6 are the widow sisters of the deceased. They

claim that they depended on the deceased's earnings, and he used

to look after their welfare.

19. The first claimant, as P.W.1 in the chief examination itself, stated

that respondents 3 and 4 are parents of the deceased and are also

legal heirs of the deceased husband. As pointed out by the

Tribunal, P.W.1 did not speak about any independent source of

income for the parents of the dead. No material was placed before

the court to show the independent source of the father's income.

On the other hand, P.W.1 herself admitted that respondents 3

and 4 depended upon her husband's income. As rightly observed

by the Tribunal, P.W.1 also did not state anything about the

source of income of respondents 5 and 6. However, she denied the

case of respondents 3 to 6 and that they are entitled to

compensation. Admittedly, respondents 5 and 6 are widow sisters

of the deceased. In those circumstances, the Tribunal accepted

the case of respondents 3 to 6, that they are dependents on the

deceased's earnings. The Tribunal awarded Rs.1,00,000/- each to

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respondents 5 and 6 and also awards Rs.3,00,000/- each to the

mother and father i.e. respondents 3 and 4, with interest thereon.

20. This court accepts the Tribunal's finding regarding the entitlement

of respondents 3 to 6 and the compensation amount awarded to

them. Because of the same, this court views that the

compensation amount awarded by the Tribunal to respondents 3

to 6 cannot be disturbed.

21. Coming to the consideration of the annual income of the deceased,

the Tribunal has considered Ex.A.20-income tax returns

submitted for the year 2005-06 and Ex.A.21-income tax returns

for the assessment year 2007-08. The Tribunal, by relying on

Exs.A.20 and A.21, concluded that the annual income of the

deceased by the date of his death was Rs.1,45,000/-. The

respondents have not disputed the said findings arrived at by the

Tribunal. According to the claimant's case, the deceased worked

as a marketing executive in Kurnool and drew a salary of

Rs.10,000/-per month. He was running S.V.R. transport within

Kurnool Municipal limits. The claimants have placed the

necessary documents in support of their case. Based on the

income tax returns submitted by the claimants, the Tribunal has

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arrived at the annual income of the deceased at Rs.1,45,000/-.

The respondent does not assail the said finding by filing an appeal

or cross-objections.

22. In National Insurance Company Limited v. Panay Sethi 2 the

Apex Court held that if 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.

23. The claimants have produced the deceased's.A.7-SSC certificate.

As per the said certificate, the deceased date of birth is

02.01.1972. The accident took place on 11.02.2017. Based on the

same, the Tribunal observed that the deceased completed 35

years. Thus, the claimant's contention that the deceased 's age as

of the accident is 34 years is not correct, and thereby the

multiplier applicable for the age group of 36 to 40 years is '15'.

The Tribunal considered the age of the deceased as 36 years

based on the date of birth certificate, which is relied on by the

claimants; now, it is not open to the claimants to dispute the

correctness of the age shown in the S.S.C. certificate.

2017 ACJ 2700 SC

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24. In Oriental Insurance Co., Ltd., Vs. Premlatha Shukla and

others3, in paragraph 13, it is observed as follows:-

"....once a part of the contents of the documents admitted in evidence, the party bringing the same on record cannot be permitted to turn around and contend that the rest of contents thereof had not been proved.

25. The claimants relied on Ex.A.7-SSC certificate to prove the

deceased's date of birth. By following the principle laid down by

the Apex Court in Oriental Insurance Company Limited referred

supra3, once a part of the document is relied upon by the

claimants, it cannot say that the learned Tribunal has committed

any illegality in relying upon the contents of the documents, i.e.,

Ex.A.7.

26. In Sarla Verma v. Delhi Transport Corporation4 the Apex Court

held that where the deceased was married, the deduction towards

personal and living expenses of the deceased should be one-fourth

(1/4th), where the number of dependant family members is 4 to 6.

In the case on hand, the annual earnings of the deceased come to

2007 (4) A.L.D. 85 S.C.

2009 ACJ 1298

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Rs.2,03,000/-(Rs.1,45,000 x 40%= 58,000/-), out of which 1/4th

earnings of the deceased (Rs.50,750/-) should be deducted

towards personal expenses .it comes to Rs.1,52,250/- (2,03,000/-

(-) 50,750/-) The same is multiplied with the appropriate

multiplier '15', which is for the person's age group between 36 to

40 years. The loss of dependency arrived at Rs.22,83,750/-

(Rs.1,52,250/- x 15).

27. As far as the conventional heads are concerned, in Pranay Sethi's

case, the Apex Court has awarded a total sum of Rs.70,000/-

under conventional heads, namely, loss of estate, loss of

consortium and funeral expenses. It further held that said sum

should be enhanced at 10% every three years. It had thus in

paragraph 61:

"(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 Res.15,000/- respectively. The amounts as mentioned above should be enhanced at the rate of 10% every three years."

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28. In Magma General Ins. Co. Ltd., v. Nanu Ram 5, 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 the claimant raised any plea on that behalf (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. For 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.

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.

52018 ACJ 2782

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The greatest agony 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."

29. The judgment in Pranay Sethi's case was rendered in the year

2017. Therefore, the claimants are entitled to a 10%

enhancement. Thus, the claimants are entitled to a sum of

Rs.16,500/- under the head of loss of estate, Rs.16,500/-

towards funeral expenses, Rs.44,000/- towards spousal

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

consortium.

30.In all, the claimants are entitled to the compensation detailed

as under:

       Loss of dependency           Rs.22,83,750/-
       Loss of estate               Rs.     16,500/-
       Funeral expenses             Rs.     16,500/-
       Loss of spousal consortium Rs.       44,000/-
       Loss of parental consortium Rs.      44,000/-
                             -----------------------------
                   Total:           Rs.24,04,750/-
                              ------------------------------

31. The claimants are entitled to compensation beyond the

compensation they claimed. While dealing with similar

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circumstances, in Nagappa Vs. Gurudayal Singh 6 ,the Apex

Court 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."

32. The same was after that reiterated in Rajesh v. Rajbir Singh7, in

Sanjay Verma v. Haryana Roadways 8 and Jitendra

Khimshankar Trivedi v. Kasam Daud Kumbhar 9. By following

the principles laid down in the said decisions though the

claimants have claimed only an amount of Rs.20,00,000/-, this

court is of the view that an amount of Rs.24,04,750/- can be

awarded in the facts of the case.

2003 A.C.J. 12 (S.C.)

2013 ACJ 1403 (S.C.)

2014 ACJ 692 (S.C.) 92015 ACJ 708 (S.C.).

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