A Devi, Visakhapatnam Anr vs Nadepana Yesu, Vizianagaram Dist ...
2022 Latest Caselaw 7412 AP

BVLNC,J                                            MACMA 1/2016
Page 1 of 12                                       Dt: 27.09.2022




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

                           MOTOR VEHICLE ACT

                CIVIL MISCELLANEOUS APPEAL No.1 OF 2016

JUDGMENT:

This appeal is preferred by the claimants challenging the

award dated 13.10.2015 passed in M.V.O.P.No.615/2014 on the file of

Motor Accidents Claims Tribunal-cum-Addl.District Judge,

Vizianagaram, wherein the Tribunal while allowing the petition partly,

awarded compensation of Rs.2,00,000/- with interest @ 10% P.A. from

the date of petition, till the date of realisation, for the death of minor

child Allada Naga Tanuj Kumar, aged 9 years, who is son of the

claimants.

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

r/w. Rule 455 of Motor Vehicle Rules, claiming compensation of

Rs.4,00,000/- on account of the death of minor child Allada Naga

Tanuj Kumar, aged 9 years, who died in a road accident occurred on

09.12.2013 while the deceased was on left side of road, the APSRTC BVLNC,J MACMA 1/2016 Page 2 of 12 Dt: 27.09.2022

Bus bearing No.AP 28 Z 1444 dashed against the child, caused his

instantaneous death.

4. The facts show that on 09.12.2013 when the deceased Allada

Naga Tanuj Kumar, aged 9 years on far left side of road at B.C.Colony

of Jami Village and at that time APSRTC Bus bearing No.AP 28 Z 1444

driven by the 1st respondent in a rash and negligent manner at high

speed without following traffic rules, coming from S.Kota village,

dashed against the said child, caused his instantaneous death. The

petitioners lost their only son and the future earnings of the deceased.

Basing on the report of the 1st petitioner, the Station House Officer,

Jami P.S. registered a case in Cr.No.175/2013 U/s.304-A of I.P.C.

against the driver of the said APSRTC Bus.

5. Before the Tribunal, the 3rd respondent herein, who is the 3rd

respondent in the petition, filed written statement denying the material

averments of the petition, denying rash and negligent on the part of

the 1st respondent/driver, and contended that the deceased suddenly

got down from the auto and crossed the road, while running away in

front of the bus and fell down, as a result, the said accident occurred.

There was no negligence on the part of the 1st respondent and he is

having valid driving licence. Hence, the respondents are not liable to

pay any compensation to the petitioners. The 2nd respondent adopted BVLNC,J MACMA 1/2016 Page 3 of 12 Dt: 27.09.2022

the written statement filed by the 3rd respondent. The 1st

respondent/driver of the offending bus was remained exparte.

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

framed the following issues:

1. Whether the 1st respondent drove the offending vehicle APSRTC Bus bearing No.AP28 Z 1444 in a rash and negligent manner and caused for the accident?

2. Whether the petitioners are entitled to compensation? If so, which respondents are liable to pay the compensation amount?

3. To what relief?

7. To substantiate their claim, the petitioners examined P.W-1 and

got marked Exs.A-1 to A-5. On behalf of 3rd respondent, R.W-1 was

examined and no documents were marked.

8. The Tribunal, taking into consideration the evidence of P.W-1

coupled with Exs.A-1 to A-5, held that the accident took place due to

rash and negligent driving of the driver of the APSRTC bus, and

further, taking into consideration of the evidence of P.W-1

corroborated by Exs.A-1 to A-5, awarded a compensation of

Rs.2,00,000/- with interest @ 10% P.A. from the date of petition, to the

date of realisation.

 BVLNC,J                                            MACMA 1/2016
Page 4 of 12                                       Dt: 27.09.2022

9. The plea of the APSRTC is that the driver of the APSRTC is not

responsible for the accident. It was pleaded that the accident had

occurred due to the negligence of the deceased.

10. The Tribunal considered the evidence on record, and based on

the contentions of both parties, held that the accident occurred due to

the rash and negligent driving of the 1st respondent/driver and caused

the instantaneous death of Allada Naga Tanuj Kumar, boy aged 9

years. I do not find any illegality or irregularity in the findings or

reasons recorded by the Tribunal on that issue.

11. The Tribunal after considering the evidence of P.W-1 coupled

with Exs.A-1 to A-5, awarded an amount of Rs.2,00,000/- towards

compensation payable by the respondents No.2 and 3.

12. As seen from the record, the appellant/APSRTC examined the

driver of the said bus as R.W-1 before the Tribunal, in support of the

pleas taken by the APSRTC in the written statement.

13. The contention of the Appellants/claimants, who are the mother

and father respectively of the deceased is that, the Tribunal failed to

observe that the deceased was a minor child and his age was 9 years

at the time of accident and the Tribunal did not observe all the facts

and events, and awarded a meagre compensation of Rs.2,00,000/-

 BVLNC,J                                           MACMA 1/2016
Page 5 of 12                                      Dt: 27.09.2022

only and further the Tribunal failed to observe Exs.A-1 to A-5 which

are supporting the case of the claimants and that the respondents did

not produce a single piece of evidence. To support their contention

and the award of the Tribunal is against the judgment of the Hon'ble

Apex Court and the Tribunal did not grant future prospectus of the

deceased child.

14. The learned counsel for the Appellants/claimants vehemently

argued that the Hon'ble Apex Court in Kishan Gopal and another Vs.

Lala and others1 held that the legal principle laid down in Lata

Wadhwa2 case with all force is applicable to the facts and

circumstances of the case in hand, having regard to the fact that the

deceased was 10 years old and held that "it would be just and

reasonable to take his notional income at Rs.30,000/- per annum and

further taking the young age of the parents, applied multiplier of 15 and

awarded compensation accordingly with interest at 9% P.A." by

applying the law laid down in MCD Vs. Uphaar Tragedy Victims

Association3.

    (2014) 1 Supreme Court Cases 244

    (2001) 8 SCC 197

    (2011) 14 SCC 481
 BVLNC,J                                           MACMA 1/2016
Page 6 of 12                                      Dt: 27.09.2022

15. The learned counsel for the respondents opposed the arguments

submitted by the learned counsel for Appellants and submitted that

the Tribunal considered all the facts and circumstances and applied

the law correctly and awarded compensation of Rs.2,00,000/- and

there are no grounds to interfere with the award passed by the

Tribunal.

16. The contention of the claimants is that on 09.12.2013 their son,

who was aged about 9 years was walking on the left side of the road at

B.C. Colony of Jami Village, at about 09.00 a.m. and while so, the 1st

respondent drove the APSRTC bus in a rash or negligent manner

without following the traffic rules and dashed the deceased, as a

result, he died on the spot and police registered a case against the

driver for the offence punishable U/s.304-A of the Indian Penal Code

and investigated and laid police report (charge sheet).

17. It is an admitted fact that the driver of the APSRTC Bus did not

contest the case before the Tribunal and remained exparte. The

Tribunal considering the evidence of the mother of the deceased, who

was examined as P.W-1, Exs.A-1 to A-4 i.e., copies of FIR, post mortem

certificate, MVI Report and police report (charge sheet) held that the

accident was occurred due to the rash or negligent act of the driver of

the APSRTC bus and did not believe the evidence of the driver of the BVLNC,J MACMA 1/2016 Page 7 of 12 Dt: 27.09.2022

bus, who was examined as R.W-1 by the APSRTC i.e., respondents

No.2 and 3 in the case.

18. The Tribunal awarded an amount of Rs.2,00,000/- relying on

the judgment of the Hon'ble Apex Court in Kishan Gopal and another

Vs. Lala and others, wherein it was held at para 18 as follows:

"Having regard to the environment from which the children referred to in that case were brought up, their parents being reasonably well-placed officials of TISCO, it was directed that the compensation amount for the children between the age group of 5 and 10 years should be three times. In other words, it should be Rs.1,50,000/- to which under the conventional heads a sum of Rs.50,000/- should be added and thus, the total amount in each case would be Rs.2,00,000/-".

19. The Tribunal held that the above observation of the Hon'ble Apex

Court applies to this case and awarded an amount of Rs.1,50,000/- for

the death of the deceased, besides Rs.50,000/- towards conventional

heads and held that the claim of Rs.4,00,000/- is exorbitant.

20. The Hon'ble Apex Court in Kishan Gopal and another Vs. Lala

and others held in para 38, 39 and 40 as follows:

 BVLNC,J                                             MACMA 1/2016
Page 8 of 12                                        Dt: 27.09.2022

"In our considered view, the aforesaid legal principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and circumstances of the case in hand having regard to the fact that the deceased was 10 years' old, who was assisting the appellants in their agricultural occupation which is an undisputed fact. We have also considered the fact that the rupee value has come down drastically from the year 1994, when the notional income of the non- earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the deceased boy, had he been alive would have certainly contributed substantially to the family of the appellants by working hard."

"In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000/- and further taking the young age of the parents, namely the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in the case of Sarla Verma v. Delhi Transport Corporation, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/- under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas, which is referred to in Lata Wadhwa's case and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000/- under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants."

 BVLNC,J                                            MACMA 1/2016
Page 9 of 12                                       Dt: 27.09.2022

"The said amount will carry interest at the rate of 9% p.a. by applying the law laid down in the case of Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy, for the reason that the Insurance Company has been contesting the claim of the appellants from 1992-2013 without settling their legitimate claim for nearly about 21 years, if the Insurance Company had awarded and paid just and reasonable compensation to the appellants the same could have been either invested or kept in the fixed deposit, then the amount could have earned five times more than what is awarded today in this appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the appellants is legally justified."

21. The Tribunal did not follow the above observations of the Hon'ble

Apex Court, as rightly contended by the learned counsel for

Appellants. The deceased was aged around 9 years at the time of

death. The age of the mother was 30 years and age of the father was

35 years at the time of death of deceased.

22. The Hon'ble Apex Court in Kishan Gopal and another Vs. Lala

and others case, in similar circumstances has applied multiplier of 15

to the multiplicand, considering the notional income of the deceased at

Rs.30,000/- P.A. The deceased was aged around 9 years at the time of

death in the case on hand. Even if the notional income is considered BVLNC,J MACMA 1/2016 Page 10 of 12 Dt: 27.09.2022

on the lower side at Rs.24,000/- P.A., it comes to Rs.24,000 x 15 =

Rs.3,60,000/-. The other amounts awarded under the conventional

heads at Rs.50,000/- need not be changed. Then the total amount of

compensation awarded to the claimants is Rs.3,60,000 + 50,000 =

Rs.4,10,000/-. The claim was made for Rs.4,00,000/-. Therefore, the

compensation awarded to the claimants is restricted to Rs.4,00,000/-.

23. In that view of the matter, I find the Tribunal is erred in

awarding Rs.2,00,000/- only to the claimants, towards compensation,

though the claimants made claim for Rs.4,00,000/-.

24. In view of the above discussion, I am of the considered opinion

that it is a fit case to set aside the award passed by the Tribunal.

25. In the result, the Appeal is allowed, by setting aside the Award

dated 13.10.2015 passed in M.V.O.P.No.161/2012 on the file of Motor

Accidents Claims Tribunal-cum-II Additional District Court,

Madanapalle, and awarded compensation of Rs.4,00,000/- to the

Appellants/claimants with interest @ 7.5% P.A. from the date of

petition, till the date of realisation. Out of the compensation amount

of Rs.4,00,000/-, the 1st petitioner being the mother of the deceased is

entitled for Rs.2,50,000/- and she is permitted to withdraw the same

with accrued interest thereon, and the 2nd petitioner being the father of BVLNC,J MACMA 1/2016 Page 11 of 12 Dt: 27.09.2022

the deceased is entitled for Rs.1,50,000/- and he is permitted to

withdraw the same with accrued interest thereon. There shall be no

order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                        _____________________________
                                         B.V.L.N.CHAKRAVARTHI, J
27.09.2022
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 BVLNC,J                                       MACMA 1/2016
Page 12 of 12                                  Dt: 27.09.2022




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




                     M.A.C.M.A.No.1 OF 2016




                       27th September, 2022


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