Kelli Appamma And 2 Others vs Palavalasa Vishnumjurthy And 2 ...
2023 Latest Caselaw 2080 AP

      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                       M.A.C.M.A.No. 1748 of 2013
JUDGEMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.107 of 2004 on the file of the Motor

Accident Claims Tribunal-cum-I Additional District Judge at

Srikakulam. The appellants filed the appeal questioning the legal

validity of the order of the Tribunal.

2. Both the parties in the appeal will be referred to as they are

arrayed in the claim application.

3. The claim petitioners filed the petition under Section 166 of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.5,50,000/- for the loss of life of Kelli Simhachalam in a motor

vehicle accident which took place on 26.07.2002 at about 6.00 p.m.

at Malla Gowrishankar Cashew Factory Godown, Palasa,

Srikakulam District.

4. The brief averments in the petition filed by the petitioners are

as follows:

VGKR,J MACMA No.1748 of 2013

On 26.07.2002 at about 6.00 p.m. whene the deceased was

chit-chatting with others by sitting on a compound wall at the

premises of Malla Gowrishankar Cashew Factory Godown, the 1st

respondent, driver of a tractor bearing registration No.AP 30A 8439,

while parking the tractor, without observing the deceased, suddenly

reversed the tractor, as a result of which, the deceased was crushed

between the wall and the tractor and he sustained grievous injuries

and succumbed to injuries on the way to hospital. The 1st

respondent is driver, the 2nd respondent is owner and the 3rd

respondent is the insurer of the offending vehicle and hence, all the

respondents are jointly and severally liable to pay the compensation.

5. The 3rd respondent/Insurance company filed a counter by

denying the manner of accident.

6. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred involving the deceased Kelli Simhachalam, S/o Chinnavadu, and the Tractor bearing No.AP 30/A 8439, due to rash and negligent driving of the said Tractor by its driver?

VGKR,J MACMA No.1748 of 2013

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

3) To what relief?

7. During the course of enquiry, on behalf of the petitioners,

P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.4. On

behalf of the respondents, no oral or documentary evidence was

adduced.

8. Basing on the material available on record, the Tribunal came

to a conclusion that the accident was occurred due to rash and

negligent driving of the driver of the crime vehicle i.e., the 1st

respondent and accordingly, granted an amount of Rs.1,61,000/-

with interest at 7.5% p.a. against respondent No.3. Aggrieved

against the said order, the claim petitioners preferred the present

appeal for enhancement of compensation.

9. Heard arguments of learned counsel for the appellants and

learned standing counsel for the 3rd respondent/Insurance company.

10. The appellants pleaded that though the Tribunal considered

the earnings of the deceased as Rs.3,500/- p.m., it failed to take the

VGKR,J MACMA No.1748 of 2013

same into consideration for the purpose of computation of just

compensation.

11. Now, the points for determination are:

1) Whether the claim petitioners are entitled enhancement of

compensation as prayed for? and

2) Whether the order of the Tribunal needs any interference?

12. POINT Nos.1 & 2: The contention of the petitioners is that 1st

petitioner is mother, 2nd petitioner is father and 3rd petitioner is

younger brother of the deceased and the death of the deceased

occurred in a motor vehicle accident on 26.07.2002. Basing on the

material available on record, after considering the evidence of P.W.2

and after considering Ex.A.1-attested copy of first information report

and Ex.A.4-attested copy of charge sheet, the Tribunal came to a

conclusion that the accident was occurred due to rash and negligent

driving of the 1st respondent who is the driver of the crime vehicle.

The material on record also proves that the accident occurred due to

rash and negligent driving of the 1st respondent only. Therefore,

there is no need to interfere with the said finding given by the

VGKR,J MACMA No.1748 of 2013

Tribunal. The respondents also did not file any appeal against the

order of the Tribunal.

13. The deceased is an unmarried person and the claim was laid

by his parents and brother. As per the case of the petitioners, the

deceased used to work as a Proclain Operator and used to earn

Rs.3,500/- p.m. There is no dispute by other side. The learned

Tribunal also considered that the deceased was earning Rs.3,500/-

p.m. at the time of accident. Thus, the annual earnings of the

deceased is Rs.42,000/-. Here, the deceased was a bachelor and

he was aged 22 years at the time of accident. As per the decision of

the Hon'ble Supreme Court of India in Sarla Varma Vs. Delhi

Transport Corporation1, if the deceased is a bachelor, 50% of the

income has to be deducted towards personal expenses of the

deceased. Accordingly, having deducted 50% of the income,

Rs.21,000/- is available towards contribution to the family members

of the deceased. But, the Tribunal came to wrong conclusion that

the contribution to the family members of the deceased is Rs.1,000/-

p.m. and applied the multiplier "13" as per II Schedule by taking the

2009 (4) SCJ 91

VGKR,J MACMA No.1748 of 2013

age of the mother of the deceased, which is not sustainable under

law. As per the decision of the Hon'ble Supreme Court in Sarla

Varma case referred supra, the multiplier applicable to the age

group of the deceased is "18". So, Rs.3,78,000/- (Rs.21,000/- x 18)

is awarded towards contribution to the family members of the

deceased. Rs.5,000/- is also awarded towards funeral expenses of

the deceased. Thus, a total compensation of Rs.3,83,000/- is

awarded to the claim petitioners.

14. The Tribunal, on considering the oral evidence of the father of

the deceased, came to a conclusion that the 3rd petitioner is not a

dependent on the deceased, granted a claim of Rs.1,61,000/-.

Therefore, petitioner Nos.1 and 2 are entitled enhancement of

compensation of Rs.2,22,000/- (Rs.3,83,000/- minus Rs.1,61,000/-).

15. It is the case of the petitioners that the crime vehicle is insured

with the 3rd respondent/Insurance company and the policy is on

force. There is no dispute by the 3rd respondent/Insurance company

that the crime vehicle is insured with the Insurance company and

the driver of the crime vehicle is having valid driving licence by the

VGKR,J MACMA No.1748 of 2013

date of the accident. Moreover, the respondents did not choose to

adduce any evidence. Therefore, the 3rd respondent is liable to pay

the compensation with interest at 7.5% p.a. from the date of petition

till the date of deposit.

16. In the result, the appeal is partly allowed by directing the 3rd

respondent to deposit the enhanced compensation of Rs.2,22,000/-

with interest at 7.5% p.a. from the date of petition till the date of

deposit before the Tribunal within two (2) months from the date of

the judgment. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J 19th April, 2023 cbs

VGKR,J MACMA No.1748 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 1748 of 2013

19th April, 2023 cbs