Andhra Pradesh High Court - Amravati

Gavvala Yerra Mallappa 4 Ors vs K.Anji Babu Anr on 15 September, 2022

        HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO


                    M.A.C.M.A. No.180 OF 2012
JUDGMENT:

1. This appeal is filed by the claimants in M.V. O.P. No.24 of 2010

against the order dated 12.11.2010 passed by the Chairman,

Motor Accidents Claims Tribunal, Judge, Family Court-cum-

Additional District & Sessions Judge, Anantapur, (for short, 'the

tribunal'), wherein the tribunal awarded an amount of

Rs.2,32,000/- with interest at 7.5% per annum and costs,

seeking enhancement of compensation awarded by the tribunal.

2. For convenience sake, the parties will hereinafter be referred to

as they were arrayed in M.V.O.P.

3. The claimants filed claim petition seeking compensation for an

amount of Rs.3,50,000/- for the death of G.Mallikarjuna, who is

the son of claimants 1 and 2, brother of claimants 3 to 5, in a

motor accident that occurred on 21.03.2007 at about 3.15 PM

when himself along with one Obi Reddy were taking cup of tea

in front of Jayamma hotel near Kalluru by pass road on N.H. 7

standing on the extreme road margin, the truck bearing No.AP

27 U 5184 driven by its driver in a rash and negligent manner

dashed him and as such he sustained multiple injuries and died

on the spot.

MACMA No.180 of 2012

4. Respondent No.1 remained exparte. Respondent No.2 filed

counter contending that the truck driver had no valid driving

licence and it was known to the respondent No.1. It is violation

of policy conditions and as such respondent No.1 is only liable to

pay compensation and further contended that the claim is highly

excessive.

5. The tribunal, on considering the evidence on record, awarded an

amount of Rs.2,32,000/- with interest @ 7.5% per annum

payable by the respondents jointly and severally. Aggrieved by

the same, the claimants preferred this appeal seeking

enhancement of compensation on the ground that the tribunal

has not appreciated the claim of the appellants in its right

perspective and granted inadequate compensation.

6. Heard learned counsel for the claimants and the learned counsel

for the 2nd respondent.

7. Learned counsel for the claimants has submitted their case in

consonance with the averments made in the appeal.

8. Learned counsel for the 2nd respondent has contended that the

tribunal has passed award in accordance with law and the

compensation awarded by the tribunal is just and reasonable in

the facts and circumstances of the case.

MACMA No.180 of 2012

9. The 2nd respondent did not file any appeal or cross objections

aggrieved by the order passed by the tribunal and therefore, this

Court need not go into other aspects of the case except the issue

of enhancement of compensation awarded by the tribunal.

10. Now the point for consideration is, whether the compensation

awarded by the tribunal is just in the facts and circumstances of

the case or it requires enhancement?

POINT:

11. As seen from the averments of the claim petition, the claimants

filed their claim under Sections 140 and 166 of the Motor

Vehicles Act, 1988. It is averred in the petition that though the

petitioners are entitled to compensation of Rs.5,00,000/-, but

they restricted their claim to Rs.3,50,000/-. The relationship of

the claimants with the deceased as pleaded in the petition and as

deposed in the evidence is not in dispute. Before the tribunal, on

behalf of the claimants, the 1st claimant himself got examined as

P.W.1 and the eye witness of the accident and who lodged the

complaint was examined as P.W.2 to prove the accident in

question and also to prove about the death of the deceased in the

accident got marked Exs.A.1 to A.5. On behalf of the

respondents, no evidence was let in, but the copy of insurance

MACMA No.180 of 2012

policy was marked as Ex.B.1. After evaluation of the evidence

adduced by the parties, the tribunal has given a finding that the

death of the deceased was due to rash and negligent driving of

the truck by its driver and the said finding is supported by the

documents placed on record.

12. As far as the quantum of compensation, the tribunal has

observed that there is no dispute as regards the age of the

deceased and from the contents of Ex.A.2 inquest report and

Ex.A.3 post mortem certificate, the tribunal come to a conclusion

regarding the age of the deceased as 24 years. It is the version of

P.W.1 that the deceased was earning Rs.10,000/- per month, but

she has not placed any documentary evidence in support of the

said plea. Since the deceased is a bachelor, the tribunal has not

accepted the case of the petitioner that the petitioners 3 to 5 are

the dependents on the earnings of the deceased.

13. In Lakshmi Devi and others vs. Mohhammad Tabber 1 , the

Apex Court has laid down a principle that, in today's world, even

a common labour can very easily earn Rs.100/- per day. In view

of the principle laid down by the Apex Court, the tribunal ought

not to have assessed the monthly income @ Rs.2,500/-. As such

this Court is inclined to consider the annual income of the

2008 ACJ 1488

MACMA No.180 of 2012

deceased at Rs.36,000/-, out of which half of the monthly

earnings should be deducted towards personal expenses of the

deceased, then it comes to an amount of Rs.18000/-.

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

Apex Court held that 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. A reading of the order passed by the tribunal would

show that future prospectus is not awarded to the claimants. By

following the judgment of the Apex Court in Pranay Sethi's case,

this Court is of the view that the claimants are also entitled 40%

of their earnings towards future prospectus. Thus, an amount of

Rs.25,200/- towards annual income can be taken into

consideration. When the same is multiplied with the multiplier

'18', as per the law laid down by the Apex Court in Sarala Varma

vs. Delhi Transportation Corporation and others 3, the loss of

dependency works out to Rs.25,200/- x 18 = Rs.4,53,600/-. This

apart the claimants are entitled to an amount of Rs.16,500/- for

loss of estate and Rs.16,500/- for funeral expenses in view of the

law laid down by the Apex Court in Pranay Sethi's case. In all,

the claimants are entitled to the compensation as under:

2017 ACJ 2700 SC

2009 ACJ 1298

MACMA No.180 of 2012

Towards loss of dependency : Rs.4,53,600/- (Rs.25,200x 18) Towards loss of estate : Rs. 16,500/-

          Towards funeral expenses     : Rs. 16,500/-
                                     _________________
          Total                          Rs.4,86,600/-
                                      _________________

15. At this stage, it is relevant to note that the claimants clearly

stated that they are entitled to compensation Rs.5,00,000/-, but

they restricted their claim of Rs.3,50,000/-. They have not given

any reasons to restrict their claim. In United India Insurance

Co., Ltd., V. Kesarben Ravjibhai Dabasiya 4 at paragraph 14,

the Division Bench of Gujarat High Court held that,

"(14) at the first breath the contention may appear to be with substance, but on further scrutiny it appears that had the claimant been interested in full amount of compensation, he ought to have joined the driver and the owner of the car as party respondent in the claim petition and the insurance company also, if any of the car. Original claimants have consciously not joined the driver or owner of the car. Under the circumstances, it can be said that they abandoned the right qua the driver and owner of the car..."

16. In the absence of any reasons, this court cannot award more

compensation than they claimed, once they abandoned their

right to claim over and above Rs.3,50,000/-. The claimants have

not claimed the compensation though they were aware that they

are entitled to the claim for an amount of Rs.5,00,000/-. Since

the claimants themselves restricted their claim Rs.3,50,000/-

even though they are entitled to more compensation, this court is

F.A.No.1105 of 2003

MACMA No.180 of 2012

inclined to fix the compensation amount only to the extent of

their restricted claim.

17. In the result, this appeal is allowed, enhancing compensation