United India Ins Comp Ltd., Kadapa vs Meesala Subhashini 4 Others
2022 Latest Caselaw 7366 AP

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         THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI


                           M.A.C.M.A. No.206 OF 2016



JUDGMENT:

This appeal is preferred by the Insurance company

challenging the award dated 13.10.2015 passed in M.V.O.P.No.216 of

2012 on the file of Motor Accidents Claims Tribunal-cum-IV Addl.

District Judge, Kadapa, wherein the Tribunal while partly allowing the

petition, awarded compensation of Rs.18,43,000/- with interest @

7.5% p.a., from the date of petition till the date of deposit to the

petitioners for the death of the deceased Meesala Mahesh.

2. For the sake of convenience, the parties are arrayed as

referred in the lower Court.

3. As seen from the record, originally, the petitioners filed an

application U/s 166 of Motor Vehicles Act, 1988 (for brevity "the Act")

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

the deceased in a road accident occurred on 31.01.2011 at 7.30 p.m.,

near Gyrampalli Kaspa on Piler-Kalakada main road while the

deceased was driving his auto bearing No.AP 04 V 3077 to his village-

Madigapalli Village, H/o Ganugachintha, Rompicherla Mandal, which BVLNC MACMA 206 of 2016 Page 2 of 10 Dt: 26.09.2022

met with an accident at Gyrampalli cross under the jurisdiction of

K.V.Palli Police Station.

4. The facts of the case, in brief, are that on 21.04.2011 the

deceased left Piler in his auto bearing No.AP 04 V 3077 along with

passengers in order to go to his village and driving the auto on the left

side of the road and at about 7.30 p.m., when the auto reached near

Gyrampalli cross on Piler-Kalakada main road, one vehicle came in

opposite direction by focussing heavy lights and due to that heavy

illumination the auto of the deceased dashed to the 1st respondent‟s

Harvest vehicle bearing No.TN 54 Y 2746, which was stationed on the

middle of the road by its driver without taking proper precautions. On

account of the said impact, the auto was completely damaged, the

deceased sustained grievous injuries, lost conscious and other inmates

of the auto also sustained severe injuries. The deceased was shifted to

Government Hospital, Piler and at about 9.30 p.m., the deceased

succumbed to the injuries while undergoing treatment. On the report

of one Satyam Reddy, K.V.Palli Police registered FIR in Cr.No.15 of

2011 u/s 304 (A) of IPC against the driver of Harvest vehicle and

subsequently after completion of investigation filed charge sheet

against him.

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5. Before the Tribunal, the appellant, who is the 2nd

respondent in the claim petition, filed written statement resisting while

traversing the material averments with regard to proof of age,

avocation, monthly earnings of the deceased, manner of accident, rash

and negligence on the part of the driver of the harvesting vehicle and

liability to pay compensation and contended that there was no

negligence on the part of the driver of Harvest vehicle.

6. On the strength of the pleadings of both parties, the

Tribunal framed the following issues:

1. Whether the accident occurred due to rash and negligent driving of the driver of Harvester bearing No.TN 54 Y 2746 resulting the death of the deceased by name Meesala Mahesh on 31.01.2011?

2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom?

3. To what relief?

7. To substantiate their claim, the petitioners examined

P.Ws.1 and 2 and got marked Exs.A1 to A5. On behalf of 2nd

respondent, no witness was examined, but Ex.B1 policy copy was

marked.

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8. The Tribunal, taking into consideration the evidence of

P.Ws.1 and 2, coupled with Exs.A1 to A5 and Ex.B1, held that the

accident took place due to the negligent parking of the Harvest vehicle

by its driver, belongs to the 1st respondent and awarded a

compensation of Rs.18,43,000/- with interest @ 7.5% p.a., from the

date of petition till deposit with proportionate costs, fixing the liability

on both the respondents 1 and 2 jointly and severally.

9. The plea of the insurance company is that the accident

was not occurred due to the rash or negligent driving of Harvest

vehicle bearing No.TN 54Y 2746 by its driver.

10. The appellant-insurance company contended that the

Tribunal fixed the notional income of the deceased at Rs.8,000/- p.m.,

while giving a finding that there is no evidence to establish the income

of the deceased and that he was an earning member of the family and

therefore, fixing the notional income at Rs.8,000/- p.m., is on higher

side.

11. The learned counsel for the respondents-claimants

contended that the Tribunal considered the age of the deceased and

that he was a skilled person, fixed the notional income at Rs.8,000/-

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p.m., and therefore, there are no grounds to interfere with the findings

of the Tribunal.

12. The record shows that the Tribunal fixed the notional

income at Rs.8,000/- while observing that there is no evidence to

establish the income of the deceased and also that there is no evidence

to show that the deceased was an earning member of the family, but

the Tribunal held that considering the age of the deceased at 22 years

and that he being a skilled person, fixed the notional income at

Rs.8,000/- p.m.,

13. The learned counsel for the appellant-insurance company

vehemently contended that the Tribunal failed to take notice of the law

laid down by the Hon‟ble Apex Court and High Courts that in the

absence of proof of evidence about the employment and income of a

deceased, the notional income may be taken at Rs.4,500/- p.m., and

should have fixed the monthly income of the deceased in the case on

hand at Rs.4,500/- p.m., only instead of Rs.8,000/- p.m.,

14. The deceased in the case on hand was an auto driver and

admittedly at the time of the accident he was driving the auto bearing

No.AP 04V 3077 on 21.04.2011 indicating that the deceased was an

auto driver. The claimants are the wife and minor child apart from the BVLNC MACMA 206 of 2016 Page 6 of 10 Dt: 26.09.2022

parents of the deceased. Therefore, the contention that the deceased

was not an earning member of the family cannot be accepted.

15. Under the above facts and circumstances, it is clear that

the Tribunal without any basis fixed the notional income of the

deceased at Rs.8,000/- p.m., while holding that there is no evidence to

prove the income of the deceased. Considering the facts of the case, I

am of the considered opinion that an amount of Rs.4,500/- p.m., can

be considered as notional income of the deceased as an auto driver in

the year 2011 when the accident was occurred. Therefore, the annual

income of the deceased will be at Rs.54,000/-, out of which 1/3rd

shall be deducted towards the personal and living expenses of the

deceased. So, the loss of dependency will come to Rs.36,000/-.

16. When coming to addition of income towards future

prospects, the Hon‟ble Apex Court in National Insurance Company

Limited vs. Pranay Sethi1 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 additional income where the deceased was below

the age of 40 years. In the case on hand, the Tribunal fixed the age of

the deceased at 22 years at the time of his death. Hence, 40% of the

(2017) 16 SCC 680.

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established income determined shall be added to the above amount of

annual income, which will be Rs.14,400/-. So, the total annual loss of

dependency will be at Rs.50,400/- and it shall be multiplied by „18‟ as

per the judgment of the Hon‟ble Apex Court in Sarala Verma and

others vs. Delhi Transport Corporation and another2. So, the

compensation amount that would be awarded to the claimants comes

to Rs.9,07,200/-. The amount towards conventional heads under loss

of estate, consortium and funeral expenses should be at Rs.15,000/-,

Rs.40,000/- and Rs.15,000/- respectively can be awarded to the

claimants as per the judgment of the Hon‟ble Apex Court in Pranay

Sethi's case. Hence, this amount shall be added to the above amount.

Then the total compensation amount will be at Rs.9,77,200/-.

17. In the above facts and circumstances, I hold that the

claimants are entitled to Rs.9,77,200/- only, but not Rs.18,43,000/-

as awarded by the Tribunal, with interest at 7.5% p.a., from the date of

petition till deposit and with proportionate costs.

18. Out of the above amount, the 2nd petitioner (minor) is

entitled to Rs.6,45,000/- and the 3rd and 4th petitioners are each

entitled to Rs.1,66,100/-. The amount of the 2nd petitioner shall be

2009 ACJ 1298.

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kept in fixed deposit in any Nationalised Bank till he attains the age of

majority. The 3rd petitioner is entitled to withdraw the interest accrued

on the fixed deposit amount of the 2nd petitioner once in a year which

shall be used for the maintenance, education and other expenses of

2nd petitioner. After 2nd petitioner attained majority, he shall be

entitled to withdraw the entire amount together with the accrued

interest, if any. The 3rd and 4th petitioners are permitted to withdraw

their entire compensation amounts including interest and costs

awarded towards their share.

19. In the result, the Civil Miscellaneous Appeal is partly

allowed by modifying the award passed on 13.10.2015 in

M.V.O.P.No.216 of 2012 on the file of Motor Accidents Claims

Tribunal-cum-IV Addl. District Court, Kadapa and awarding total

compensation of Rs.9,77,200/- with interest at 7.5% p.a., from the

date of petition till deposit and with proportionate costs.

Out of the above amount, the 2nd petitioner (minor) is

entitled to Rs.6,45,000/- and the 3rd and 4th petitioners are each

entitled to Rs.1,66,100/-.

The amount of the 2nd petitioner shall be kept in fixed

deposit in any Nationalised Bank till he attains the age of majority.

The 3rd petitioner is entitled to withdraw the interest accrued on the BVLNC MACMA 206 of 2016 Page 9 of 10 Dt: 26.09.2022

fixed deposit amount of the 2nd petitioner once in a year, which shall

be used for the maintenance, education and other expenses of the 2nd

petitioner. After 2nd petitioner attained majority, he shall be entitled to

withdraw the entire amount together with the accrued interest, if any.

The 3rd and 4th petitioners are permitted to withdraw their entire

compensation amounts including interest and costs awarded towards

their share.

Rest of the directions in the operative portion of order of

the Tribunal are confirmed.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

                                            _____________________________
                                             B.V.L.N.CHAKRAVARTHI, J
26.09.2022
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            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                    M.A.C.M.A.No.206 OF 2016




                       26th September, 2022


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