Unknown vs Pranay
2023 Latest Caselaw 3935 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

              M.A.C.M.A.Nos. 1944 and 2738 of 2013


COMMON JUDGMENT:


      M.A.C.M.A.No.1944 of 2013 is filed by the petitioners and

M.A.C.M.A.No.2738 of 2013 is filed by the 2nd respondent/Insurance

company in M.V.O.P.No.1079 of 2009 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-III Additional District Judge,

Nellore.


2.    Since both the appeals arose from out of one decree and order

passed in M.V.O.P.No.1079 of 2009, they are heard together and are

being disposed of by this common judgment.


3.    For the sake of convenience, both the parties in the appeals will

be referred to as they are arrayed in the claim petition.


4.    The claim petitioner filed the petition under Section 166 of the

Motor Vehicles Act, 1988 against the respondents claiming
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                                                  MACMA.Nos.1944 & 2738 of 2013




compensation of Rs.25,00,000/- for the death of Mekala Krishnaiah,

who is husband of 1st petitioner, father of 2nd petitioner and son of

petitioner Nos.3 and 4, in a road accident that took place on

17.08.2009.


5.    Facts

germane to dispose of the appeals may briefly be stated

as follows:

On 17.08.2009 the deceased went to Steel Factory at

Ankulapatur village in Chillakuru Mandal for purpose of employment

of the 1st petitioner. While he was returning to Gudur on a motor cycle

driven by one Servepalli Mahendrakumar as a pillion rider and when

the said motor cycle was proceeding near Thikkavaram village turning,

Chillakuru Mandal at about 11.00 a.m., a lorry bearing registration

No.AP 26X 5899 being driven by its driver in a rash and negligent

manner came in opposite direction and dashed against the motor

cycle of the deceased, due to the impact, the deceased sustained

grievous head injury and died on the spot. The police, Chillakur P.S.

registered a case in crime No.173 of 2009 against the driver of the

VGKR,J MACMA.Nos.1944 & 2738 of 2013

lorry for the offence punishable under Section 304-A of IPC. The 1st

respondent is owner and the 2nd respondent is insurer of the offending

lorry, hence, both the respondents are jointly and severally liable to

pay compensation to the petitioners.

6. The 1st respondent was set ex parte. The 2nd respondent filed a

counter by denying the manner of accident, age, avocation and

income of the deceased. It is pleaded that the accident occurred due

to negligent riding of the rider of the motor cycle, there was

contributory negligence on the part of the rider of the motor cycle and

the driver of the lorry, as such, the Insurance company is not liable to

pay any compensation.

7. Based on the above pleadings, the following issues were

framed for trial by the Tribunal:

1) Whether the accident had occurred at 11.00 a.m. on 17.08.2009 on Gudur-Varagali road at Thikkavaram village, Chillakuru Mandal and was due to rash and negligent driving of the driver of lorry bearing No.AP 26X 5899 and whether it resulted the death of the deceased Mekala Krishnaiah?

VGKR,J MACMA.Nos.1944 & 2738 of 2013

2) Whether the claimants are entitled for compensation? If so, to what amount and from which of the respondents?

3) To what relief?

8. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.11 were

marked. On behalf of the 2nd respondent, R.Ws.1 to 3 were examined

and Ex.B.1 was marked.

9. At the culmination of the enquiry, based on the material on

record, the Tribunal came to the conclusion that the accident occurred

due to rash and negligent driving of the driver of the offending lorry

and accordingly, allowed the petition in part and granted a total

compensation of Rs.10,89,500/- with proportionate costs and interest

at 7.5% p.a. against both the respondents. Aggrieved against the

said order, the claim petitioners filed M.A.C.M.A.No.1944 of 2013 for

enhancement of compensation, while the 2nd respondent/Insurance

Company filed M.A.C.M.A.No.2738 of 2013 questioning the legal

validity of the order of the Tribunal.

VGKR,J MACMA.Nos.1944 & 2738 of 2013

10. Heard the learned counsels for both the parties and perused the

record.

11. Now, the points for determination are:

1) Whether the claim petitioners are entitled for enhancement of compensation as prayed for? and

2) Whether the order of the Tribunal needs any interference, if so, to what extent?

12. POINT Nos.1 & 2: In order to prove the rash and negligent

driving of the driver of the offending lorry, the petitioners relied on the

evidence of P.Ws.1 and 2. P.W.1 is none other than the wife of the

deceased and 1st petitioner herein. P.W.1 reiterated the contents of

the claim petition in her chief-examination affidavit. P.W.2 is an eye

witness to the accident. According to P.W.2, the accident occurred

due to rash and negligent driving of the driver of the offending lorry.

Nothing was elicited from the cross-examination of P.Ws.1 and 2 and

the suggestions put to them were also denied. Though the 2 nd

respondent examined P.Ws.1 and 2 to prove that the accident did not

VGKR,J MACMA.Nos.1944 & 2738 of 2013

occur due to negligence of the driver of the offending lorry and there

is contributory negligence on the part of both the drivers of the motor

cycle and the lorry, their evidence is not helpful because R.W.2 is not

an eye witness to the accident and R.W.1 deposed in his cross-

examination that he did not see the motor cycle and he did not give

any report to the police about the accident and admitted that the

police registered a case against him in connection with the accident

in question. The petitioners also relied on Exs.A.1-attested copy of

first information report and Ex.A.4-attested copy of charge sheet,

which go to show that the police registered a case against the driver

of the offending lorry and after completion of investigation, the police

laid a charge sheet against the driver of the offending lorry. The

evidence of P.Ws.1 and 2 coupled with Exs.A.1 and A.4 clearly

proves that the accident occurred due to rash and negligent driving of

the driver of the offending lorry. On considering the entire material on

record, the Tribunal also came to the same conclusion. Therefore,

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

VGKR,J MACMA.Nos.1944 & 2738 of 2013

13. The accident occurred in the year 2009. It is the case of the

petitioners that the deceased was aged 40 years at the time of

accident which is supported by Ex.A.3-attested copy of Post Mortem

Report. On considering Exs.A.5 to A.11, the Tribunal rightly arrived

the monthly income of the deceased at Rs.8,000/- i.e. Rs.96,000/-

and awarded an amount of Rs.10,80,000/- towards loss of

dependency. But, the Tribunal failed to consider the fact that the

deceased was practicing as an Advocate since 2001 which is

supported by Exs.A.5 and A.6. As per the decision of the Hon'ble

Apex Court in National Insurance Company Limited Vs. Pranay

Sethi 1 , 25% from out of annual income has to be added towards

future prospects, since the deceased was aged 40 years and

accordingly, the annual income of the deceased is arrived at

Rs.1,20,000/- (Rs.96,000/- + Rs.24,000/-). The dependents on the

deceased are four in number. So, as per the judgment of the Hon'ble

2017 (16) SCC 680

VGKR,J MACMA.Nos.1944 & 2738 of 2013

Supreme Court in Sarla Varma Vs. Delhi Transport Corporation2,

1/4th from out of the annual income has to be deducted towards

personal expenses of the deceased. Having deducted as such, the

annual contribution to the family members of the deceased is arrived

at Rs.90,000/- (Rs.1,20,000/- - Rs.30,000/-). As stated supra, the

deceased was aged 40 years as on the date of accident and the

relevant multiplier applicable to the age group of the deceased is "15",

as per Sarla Varma case (2 supra) and the loss of dependency is

arrived at Rs.13,50,000/- (Rs.90,000/- x 15).

14. Further, the Tribunal awarded compensation of Rs.9,500/-

under conventional heads i.e., Rs.5,000/- towards loss of consortium

to the 1st petitioner, Rs.2,500/- towards loss of estate and Rs.2,000/-

towards funeral expenses of the deceased. As per Pranay Sethi case

(1 supra), the maximum amount to be awarded under conventional

heads is Rs.70,000/- only. In view of the same, the amounts awarded

2009 (4) SCJ 91

VGKR,J MACMA.Nos.1944 & 2738 of 2013

by the Tribunal under conventional heads are very low. Therefore,

an amount of Rs.15,000/- is awarded towards loss of estate,

Rs.40,000/- is awarded towards loss of consortium to the 1st petitioner

and Rs.15,000/- is awarded towards funeral expenses of the

deceased.

15. In total, a sum of Rs.14,20,000/- is awarded towards

compensation to the petitioners.

16. The Tribunal in its order held that the 1st respondent insured the

offending lorry with the 2nd respondent under Ex.B.1-policy and the

policy was also in force as on the date of accident and the driver of

the offending lorry is working under the employment of the 1st

respondent, therefore, both the respondents are jointly and severally

liable to pay the compensation to the petitioners. There is no legal

flaw or infirmity in the said finding given by the Tribunal.

VGKR,J MACMA.Nos.1944 & 2738 of 2013

17. In the result, M.A.C.M.A.No.2738 of 2013 filed by the 2nd

respondent/Insurance company is dismissed and

M.A.C.M.A.No.1944 of 2013 filed by the petitioners is partly allowed

enhancing the compensation of Rs.10,89,500/- awarded by the

Tribunal to Rs.14,20,000/-. Respondent Nos.1 and 2 are directed to

deposit the enhanced compensation amount of Rs.3,30,500/- with

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

before the Tribunal within two months from the date of this judgment.

On such deposit, the 1st petitioner is entitled to withdraw Rs.2,30,500/-

along with interest thereon and petitioner Nos.3 and 4 are entitled to

withdraw Rs.50,000/- each along with interest thereon. No order as to

costs in both the appeals.

Miscellaneous petitions, if any, pending in the appeals shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J st 31 August, 2023 cbs

VGKR,J MACMA.Nos.1944 & 2738 of 2013

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.Nos.1944 and 2738 of 2013

31st August, 2023 cbs