Andhra Pradesh High Court - Amravati
C M S G Insurance vs N.Venkateswarlu, Nellore Dist Two ... on 6 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1595 OF 2016
JUDGMENT:
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This M.A.C.M.A. is directed against the award, dated
12.01.2016 in M.V.OP.No.416 of 2014, on the file of IV
Additional District Judge-cum-Motor Accidents Claims Tribunal,
Nellore at Sri Potti Sriramulu, Nellore District (for short
"Tribunal"). The present appeal is filed by the appellant, who
was arrayed as second respondent in the above M.V.O.P.
2) The parties to this MACMA will hereinafter be
referred to as described before the learned Tribunal for the sake
of convenience.
3) The respondent Nos.1 and 2 herein in the capacity of
claimants in the above M.V.O.P.No.416 of 2014 as parents of
the deceased viz., Nallipogu Thirumalesu, laid a claim under
Section 166 of the Motor Vehicles Act, claiming compensation of
Rs.20,00,000/- on the ground that on 03.05.2014 the deceased
on account of rash and negligent act of the driver of Tipper
bearing No.A.P.26-TB-8861 ("offending vehicle" for short) met
with death.
4) The case of the claimants as set out in their claim
before the learned Tribunal is that Nallipogu Thirumalesu was
aged 23 years at the time of accident. He was the son of the
claimants. He was working as a seasonal worker in Tobacco
board and used to earn Rs.10,000/- per month for a period of
six months. For the rest of the period of six months, he used to
get income of Rs.10,000/- per month on Dish business (Cable
net). On 03.05.2014 afternoon he left his house to go to
Atmakur. At about 5-00 p.m., when he was returning to his
house on Motorcycle and when he reached near Petrol Bunk,
D.C. Palli Village, the driver of the offending vehicle driven the
vehicle in a rash and negligent manner in high speed and
dashed the motorcycle from its behind. On account of the said
accident, Thirumalesu fell down and received crush injuries and
died. The claimants, who are the parents of the deceased, lost
their affectionate family member and also earning member. A
case in Crime No.51 of 2014 of Marripadu Police Station under
Section 304-A of Indian Penal Code was registered and
investigated into. Therefore, the respondents are jointly and
severally liable to pay compensation claimed by the claimants.
5) The first respondent is the registered owner of the
offending vehicle, who filed counter before the learned Tribunal
contending in substance that the offending vehicle was validly
insured with the second respondent and claim against him is not
maintainable and is not liable to pay any compensation.
6) The second respondent/insurance company before
the learned Tribunal filed counter opposing the claim and the
contention in substance is that on the date of accident, the
driver of the offending vehicle, driven his vehicle in normal
speed. The deceased was proceeding on his motorcycle bearing
No.A.P.26-AH-1070. He suddenly slowed down the vehicle
without any signal, as such, the accident had occurred due to
the negligent act of the deceased. The owner and insurer of the
motorcycle are necessary parties and that the claim made by
the claimants is excessive. Hence, it is liable to be dismissed.
7) Basing on the pleadings, the learned Tribunal settled
the following issues:
(1) Whether the pleaded accident had occurred on account
of the rash and negligent driving of the driver of the
Tipper bearing Registration No.A.P.26-TB-8861 and
whether it is resulted the death of Nallipogu Thirumalesu?
(2) Whether the driver of the Tipper bearing Registration
No.A.P.26-TB-8861 possessed valid driving license or not
as on the date of material date of accident?
(3) Whether the claimants are entitled compensation, if
so, to what amount and from which of the respondent?
(4) To what relief?
8) The claimants before the learned Tribunal examined
P.W.1 to P.W.3 and got marked Ex.A.1 to A.7. The contesting
respondents did not let in any oral evidence, but the second
respondent got marked Ex.B.1, the insurance policy bearing
No.3379/00851733/000/01, with consent.
9) The learned Tribunal on hearing both sides and on
considering the oral as well as documentary evidence, answered
the issues as against the respondents and accordingly, awarded
a sum of Rs.10,84,000/- as compensation payable by the
respondents jointly and severally and with a direction to deposit
the said compensation and that claimants are entitled to
withdraw the amount at equal rights. The learned Tribunal
awarded the interest of 7.5% per annum from the date of
petition till the date of deposit. Felt aggrieved of the same, the
unsuccessful second respondent/insurance company in the
capacity of appellant filed the present appeal challenging the
award, dated 12.01.2016.
10) Now in deciding this MACMA, the points that arise
for consideration are as follows:
(1) Whether the award, dated 12.01.2016 in
M.V.O.P.No.416 of 2014, on the file of IV Additional
District Judge-cum-Motor Accidents Claims Tribunal,
Nellore at Sri Potti Sriramulu, Nellore District, is
sustainable under law and facts and whether there are any
grounds to interfere with the same?
(2) To what relief?
Point No.1:
11) Sri K. Srinivasa Rao, learned counsel, representing
Sri Kota Subba Rao, learned counsel appearing for the appellant,
would contend that according to the grounds of appeal, the
contention of the appellant is that the Tribunal awarded
excessive compensation. Under the head loss of future
prospectus, the Tribunal wrongly considered 100% as future
prospectus. He would submit that insofar as the future prospects
are concerned and if the claimants are entitled for any future
prospects, it should be not more than 50%. On this count itself,
the award of the learned Tribunal is liable to be interfered with.
The claimants did not prove the income of the deceased
properly, but the Tribunal considered the lumpsum amount
towards monthly income. The Tribunal did not look into the fact
that the deceased was not working for the entire 12 months but
was working only for half of the year. Viewing from any angle,
the amount awarded by the Tribunal is excessive, as such, it is
liable to be interfered with.
12) Sri P. Siva Sai Dattatreya, learned counsel,
representing Sri V. Siva Prasad Reddy, learned counsel
appearing for the respondent Nos.1 and 2, would submit that
according to the case of the claimants, the deceased was
working as a seasonal worker and getting Rs.10,000/- per
month for a period of six months and for the rest of the period,
he was working as a worker in the Cable T.V. set up of P.W.3
and was earning around Rs.10,000/- per month. The claimants
examined P.W.3 to prove the income on Cable T.V. work and
further got marked the identity card to show that the deceased
was also working as a seasonal worker in the Tobacco board.
Overlooking this, the learned Tribunal considered the income of
Rs.5,000/- per month and awarded future prospects of
Rs.5,000/- per month and deducted half of the amount i.e.,
Rs.5,000/- per month toward personal expenses and only
considered Rs.5,000/- per month as net income of the
deceased. At any rate, the compensation that was awarded
according to the claimants was also on lesser side and however,
they did not file any appeal, as such, the amount awarded by
the Tribunal is not liable to be interfered with.
13) P.W.1 before the learned Tribunal is no other than
the mother of the deceased, who got filed chief examination
affidavit putting forth the facts in tune with the pleadings. P.W.2
was the witness to the occurrence. P.W.3 was one Revuru
Ramanareddy under whom the deceased was alleged to have
worked and earned Rs.10,000/- per month.
14) Insofar as findings of the learned Tribunal that the
accident occurred was due to rash and negligent act of the
driver of the offending vehicle is concerned, the findings of the
learned Tribunal are not under challenge in the present appeal.
The challenge is made to the award mainly on the ground that
the Tribunal awarded 100% of the future prospects. According
to the learned counsel for the appellant, it may be around 50%
but not 100%.
15) Keeping in view, now this Court has to look into as
to whether the compensation that was awarded by the learned
Tribunal in favour of the claimants was a reasonable basis.
There is no dispute that the deceased was working as a seasonal
worker in a Tobacco board. The contention of the appellant is
that the deceased was only a seasonal worker and he was not
working for the entire period. It is to be noted that even
according to the claimants, the deceased was working as a
seasonal worker only for six months. For the rest of the period
he was working as a worker in a Cable TV set up of P.W.3. It is
no doubt true that if the evidence of P.W.3 is considered with
reference to his answers in cross examination that he did not file
any document to show his business and further any document to
show the salary that was being paid to the deceased, his
evidence is not at all convincing. The appellant did not dispute
the factum of the deceased working for a period of six months in
Tobacco board. It is improbable to assume that for the rest of
the period, he would have remained idle. However, the fact
remained is that there was no definite proof as to the earnings
of the deceased. It is a case where the claimants made a
pleading that the deceased was earning Rs.10,000/- per month
for a period of six months as a seasonal worker in the Tobacco
board and further he was working as a worker in the Cable TV
set up of P.W.3 for the rest of the period and he was getting
Rs.10,000/- per month. Therefore, the claimants pleaded that
the deceased was earning Rs.20,000/- per month. Apart from
this, there is no dispute that according to Ex.A.5-Study-cum-
Conduct Certificate issued by Dr.S.R.J. Degree College,
Atmakur, the deceased studied first, second and third year
Degree. The claimants did not explain as to whether the
deceased passed the Degree examination and obtained a
graduate certificate. However, the fact remained is that the
deceased who was in the age group of 23 years younger in age
was getting some income. The learned Tribunal considered the
income of the deceased in lumpsum as that of Rs.5,000/- per
month. It is no doubt true that the learned Tribunal awarded
100% of the future prospects by relying upon the decisions in
(1) New India Assurance Company Limited vs. Gopali and
others1 and (2) Munnalal Jain and another vs. Vipin Kumar
Sharma and others2.
16) As seen from Gopali's case (1 supra), it is a case
where the deceased was working as a permanent employee i.e.,
Machine Operator in National Engineering Company, Jaipur. So,
he was a permanent employee. The learned Tribunal did not
look into the fact here that the deceased was not at all a
permanent employee.
17) Turning to another decision in Munnalal Jain's case
(2 supra), the deceased was self-employed Pandit. In the above
said decision, the Hon'ble Supreme Court considered to allow
the future prospects for 50%.
18) As evident from the award of the learned Tribunal,
the learned Tribunal awarded 100% of Rs.5,000/- per month as
that of future prospects. In my considered view, the awarding
of compensation at the rate of Rs.5,000/- per month was not on
reasonable basis and further awarding future prospects 100%
was also not on reasonable basis and it was on excessive lines.
It is to be noted that though there is no cross appeal filed by the
Tribunal, but, when to the naked eye, it is clear that the learned
Tribunal considered the income of the deceased on the lesser
side, but awarded future prospects on higher side, this Court is
2012 ACJ 3131
2015 ACJ 1985
not prevented from deciding the reasonableness under the
heads of compensation. The death of the deceased was in the
year 2014. Though the claimants were not able to prove the
income of the deceased with certainty, but considering the
period of accident i.e., in the year 2014 and considering the fact
that even a person, who was working on manual labour, would
have earned around Rs.6,000/- to Rs.6,500/- per month, the
learned Tribunal ought to have awarded and ought to have
considered the monthly income of the deceased as that of
Rs.6,500/- per month which is on reasonable basis. Hence, this
Court is inclined to consider the income of the deceased as that
of Rs.6,500/-.
19) There is no dispute that in view of the decision in
Sarla Verma and others vs. Delhi Transport Corporation
and others 3 when the deceased was a bachelor, 50% of the
amount has to be deducted towards his personal expenses and
the rest of 50% is to be considered towards contribution to the
family. If that is done, the monthly income of the deceased
after deducting personal expenses of 50% is to be considered as
Rs.3,250/-. Even according to the learned counsel for the
appellant, the amount towards future prospects can be 50%
because the deceased was in the age of 23 years i.e., less than
AIR 2009 SC 3104
the age of 50 years. The appellant did not contend that the
claimants were not entitled to future prospects. Their grievance
is that the learned Tribunal awarded excessive amount under
this head.
20) It is to be noted that in view of the judgment in
National Insurance Company Limited vs. Pranay Sethi and
others4, the future prospects where the deceased was on fixed
salary or the self-employed was 40% if the deceased was below
the age of 40 years. Here the deceased was in the age group of
23 years. The learned Tribunal considered the income of the
deceased on fixed basis as that of Rs.5,000/- which is interfered
with by this Court as above. Here the income of the deceased
as fixed by this Court is Rs.3,250/- after deducting the personal
expenses of 50%. So, 40% of the future prospectus out of
Rs.3,250/- would come to Rs.1,300/-. So, Rs.1,300/- +
Rs.3,250/- = Rs.4,550/-. Therefore, the annual income is to be
considered as Rs.4,550/- x 12 = Rs.54,600/-. There is no
dispute that in view of the decision in Sarla Verma's case (3
supra), the proper multiplier for the age group of 23 years is 18.
If the multiplier of 18 is applied to Rs.54,600/-, the loss of
earnings which would have been contributed towards family of
the claimants by the deceased is Rs.9,82,800/-.
AIR 2017 SC 5157
21) It is to be noted that the learned Tribunal awarded a
sum of Rs.2,000/- + Rs.2,000/- towards funeral expenses and
transport charges. The Hon'ble Supreme Court in Constitutional
Bench decision in Pranay Sethi's case (4 supra) standardized the
amounts under the heads of funeral expenses and loss of estate
as that of Rs.15,000/- + Rs.15,00/-. In this case the period of
accident was in the year 2014. The Hon'ble Supreme Court in
Harpreet Kaur and others vs. Mohinder Yadav and others5
decided the matter pertaining to the original claim of 2005 and
appeal of 2007. The Hon'ble Supreme Court delivered the
judgment on 15.12.2022 applying the benefit of Pranay Sethi's
case (4 supra) judgment, even to the accident that was occurred
in the year 2004. Considering the same, this Court is of the
considered view that the claimants being the parents of the
deceased are entitled to Rs.15,000/- + Rs.15,000/- towards loss
of estate and funeral expenses. If this amount of Rs.30,000/- is
added to Rs.9,82,800/-, it would amount to Rs.10,12,800/-.
Hence, the award needs to be interfered with reducing the
quantum of compensation from that of Rs.10,83,000/- to
Rs.10,12,800/-.
AIR 2023 SC 111
22) Having regard to the overall facts and
circumstances, this Court is of the considered view that this
MACMA is liable to be allowed in part.
Point No.2:
23) In the result, the MACMA is allowed in part reducing
the quantum of compensation to Rs.10,12,800/- from that of
Rs.10,83,000/-. The rest of the MACMA shall stand dismissed
confirming the other aspects of the award in the learned
Tribunal. There shall be no order as to costs.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.06.12.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date: 06.12.2023
PGR
