Andhra Pradesh High Court - Amravati
The New India Assurance Company Ltd., vs Battu Manasa Thulasamma 2 Others on 8 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1114 OF 2016
JUDGMENT:
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This Motor Accident Claims Miscellaneous Appeal is
directed against the award, dated 14.03.2013 in M.V.OP.No.295
of 2011, on the file of Motor Accidents Claims Tribunal-cum-
Family Court-cum-VI Additional District Judge, Kadapa
("Tribunal" for short). The present appeal is filed by the
appellant who was arrayed as second respondent/Insurance
Company in the aforesaid M.V.O.P.
2) The parties to this MACMA will hereinafter be
referred to as described before the Tribunal for the sake of
convenience.
3) The respondent Nos.1 and 2 herein were the
claimants in M.V.O.P.No.295 of 2011, who filed the claim under
Section 166 of Motor Vehicles Act, claiming compensation being
the legal heirs of one B. Venkata Prasad Babu (hereinafter will
be referred to as "deceased") in the motor vehicles accident that
took place on 07.09.2009 in which the Lorry bearing
Registration No.A.P-12-V-0224 ("offending lorry" for short) had
involved.
4) The case of the claimants, in brief, as set out in the
claim filed before the Tribunal is as follows:
(i) On 07.09.2009 the deceased was travelling as a pillion
rider from Malakpet to M.G. Bus Station (CBS), Hyderabad on
his uncle‟s Motorcycle bearing Registration No.A.P-11-N-3030,
driven by his uncle in a normal speed. The Motorcycle was
moving on the extreme left side of the road, observing traffic
rules and regulations. At about 7-00 a.m., they reached Saleem
Cross Roads on Malakpet to M.G. Bus Station. In the meantime,
the offending Lorry came from back side of the deceased, driven
by its driver in a rash and negligent manner at high speed
without blowing horn and dashed against the Motorcycle. In
view of the said accident, the deceased and his uncle received
serious injuries and the deceased died on the spot. The accident
was occurred due to rash and negligent driving of the driver of
the offending Lorry.
(ii) The deceased was aged about 35 years, hale and
healthy and well built body at the time of accident and he was
working as A.R. Police Constable in D.A.R. Station, Kurnool. He
was earning Rs.12,240/- per month towards his salary. He was
contributing the entire amount to the claimants who are only
legal heirs and dependants of the deceased. The deceased is
having 23 years of service and had prospect of becoming the
Inspector rank. He was also entitled to higher salary. Because
of untimely death, the claimants were denied the pleasure and
company of the deceased and they were deprived of their
maintenance. The deceased would have lived up to 90 years of
his age and would have contributed more amounts, if he had not
met with accident. The father of the deceased died after the
death of the deceased.
(iii) The first respondent is the owner of the offending
Lorry, which is insured with the second respondent. Hence, the
respondent Nos.1 and 2 are liable to pay compensation jointly
and severally. Hence, the claim for awarding a sum of
Rs.25,00,000/- towards compensation.
5) The first respondent-owner of the offending Lorry
remained exparte before the Tribunal.
6) The second respondent/Insurance Company got filed
a counter contending in substance that the claimants are put to
strict proof of the manner of the accident and the cause of
death. They have to prove that the offending Lorry in question
is covered with the insurance policy and that the driver had the
driving license. The accident was occurred due involvement of
two vehicles i.e., Hero Honda Motorcycle bearing Registration
No.A.P.-11-N-3030 on which the deceased was travelling and
the offending Lorry. Hence, it is just and necessary to add the
owner and insurance company of the Hero Honda Motorcycle as
parties. Otherwise, the O.P. is bad for non-joinder of proper
parties. The claimants have to prove the income of the deceased
by filing necessary and acceptable documents. The offending
Lorry is insured with the second respondent under valid policy
No.612800/31/08/02/00007918. It was in force from
17.11.2008 to 16.11.2009 subject to the terms and conditions.
The compensation claimed by the claimants is excessive and
exorbitant. The first respondent is not cooperating with the
second respondent to contest the case, as such, the second
respondent can be permitted to take available defences. Hence,
the petition is liable to be dismissed.
7) Basing on the above pleadings, the Tribunal settled
the following issues for trial:
(1) Whether the accident occurred was due to rash and
negligent driving of the driver of the Lorry bearing No.A.P-
12-V-0224, resulting into the death of deceased by name
B. Venkata Prasad Babu on 07.09.2009?
(2) Whether the claimants are entitled for compensation
and, if so, to what amount and from whom?
(3) To what relief?
8) During the course of enquiry, on behalf of the
claimants, P.W.1 to P.3 were examined and Ex.A.1 to A.5 and
Ex.X.1 and Ex.X.2 were marked. The second respondent did not
examine any witnesses.
9) The Tribunal on hearing both sides and on
considering the oral as well as documentary evidence, answered
the issue Nos.1 and 2 in favour of the claimants and against the
contesting respondent and accordingly awarded a sum of
Rs.21,96,000/- as compensation to the claimants payable by the
respondent Nos.1 and 2 along with interest at 6% per annum
from the date of petition till the date of deposit and directing the
respondents to deposit the amount within one month and after
deposit, the second claimant can withdraw Rs.10,00,000/- with
interest thereon and the first claimant is entitled for the balance
amount with interest thereon and that the first claimant is
permitted to withdraw Rs.6,00,000/- and the second claimant is
permitted to withdraw Rs.5,00,000/- and the balance amount of
the claimants shall be kept in fixed deposit for a period of two
years and thereafter they can withdraw the same. Felt aggrieved
of the aforesaid award of the Tribunal, the unsuccessful second
respondent i.e., New India Assurance Company Limited in the
capacity of appellant filed the present MACMA.
10) Now in deciding this MACMA, the points that arise
for consideration are as follows:
(1) Whether the award, dated 14.03.2013 in
M.V.O.P.No.295 of 2011, on the file of Motor Accidents
Claims Tribunal-cum-Family Court-cum-VI Additional
District Judge, Kadapa, is sustainable under law and facts
and whether there are any grounds to interfere with the
same?
(2) To what relief?
Point Nos.1 and 2:
11) P.W.1 is no other than the first claimant i.e., the
wife of the deceased and she filed her chief examination affidavit
putting forth the facts in tune with the pleadings. Through her
examination, Ex.A.1 to Ex.A.5 are marked. Ex.A.1 is attested
copy of FIR in Crime No.309 of 2009 of Malakpet Police Station,
Hyderabad. Ex.A.2 is attested copy of Inquest Report. Ex.A.3 is
attested copy of postmortem certificate. Ex.A.4 is attested copy
of charge sheet. Ex.A.5 is pay slip issued by Kurnool District
Police. Further the claimants examined P.W.2, who is a direct
witness to the occurrence.
12) The chief examination of P.W.2 is that he knows the
deceased B. Venkata Prasad Babu. He knows the claimants, who
are legal heirs of the deceased. He witnessed the accident. On
07.09.2009 the deceased was travelling as a pillion rider from
Malakpet to M.G. Bus Station (CBS) on motorcycle bearing
Registration No.A.P-11-N-3030, driven by his uncle T.
Satyanarayana in a normal speed, on extreme left side of the
road, observing the traffic rules and regulations. At about 7-00
a.m., they reached Saleem Nagar Cross roads on Malakpet to
M.G. Bus Station. In the meantime, one Lorry bearing
Registration No.A.P-12-V00224 with a load of wood came from
back side of the deceased driven by its driver in a rash and
negligent manner and at high speed without blowing horn and
dashed against the said Motorcycle. As a result of which, both
the deceased and the said T. Satyanrayana fell down and the
said Lorry ran over the deceased and the deceased died on the
spot. The rider of the motorcycle also received injuries. He was
examined by the police.
13) P.W.3 was the Head Constable in A.R. Headquarters.
The claimants examined him to prove the salary of the
deceased. According to the evidence, their office received
summons for production of Service Register extract of late B.V.
Prasad Babu, P.C.1697. He is authorized by the Superintendent
of Police, Kurnool to attend the Court and to give evidence. The
authorization letter given to him is Ex.X.1. The attested copy of
Service Register extract is Ex.X.2. As per the Service Register of
B.V. Prasad Babu, his date of birth is 01.09.1970. As per the
endorsement of the proceedings, dated 22.09.2009, B.V. Prasad
Babu, ARPC.1697 died on 07.09.2009 due to motor vehicles
accident. The entry is made on 17.04.2010. As per the entry,
dated 04.02.2009, the basic pay of the deceased B.V. Prasad
Babu was Rs.7,570/- as on 01.12.2008. Ex.A.5 was issued by
their office.
14) Smt. A. Jayanthi, learned counsel appearing for the
appellant, would contend that the contention of the appellant as
per the grounds of appeal is that according to the evidence of
P.W.1 in cross examination, she is receiving Family Pension of
Rs.7,000/- per month and the Tribunal did not deduct such an
amount while computing the compensation and it is against the
judgment of the Hon‟ble Supreme Court in Bhakra Beas
Management Board vs. Kanta Aggarwal (smt.) and
others 1 where the Hon‟ble Supreme Court held that benefits
which the claimants received on account of the death have to be
duly considered while fixing the compensation. As the Tribunal
did not deduct the said amount which is contrary to the
judgment of the Hon‟ble Supreme court and if that amount is
deducted, the compensation that is payable to the claimants by
the respondent/appellant would comes to Rs.13,19,940/- only,
as such, granting of a sum of Rs.21,96,000/- is excessive. In
support of the contention, the learned counsel would rely upon
the above said decision which is reported in 2008(11) SCC 366.
She would further rely upon the decisions in Vimal Kanwar
and others vs. Kishore Dan and others 2 and National
2008 ACJ 2372
(2013) 7 Supreme Court Cases 476
Insurance Company Limited vs. Rekhaben and others3 to
contend that the amounts that are being received by the first
claimant are liable to be deducted while awarding the
compensation.
15) Sri D. Kodandarami Reddy, learned counsel
appearing for the respondent Nos.1 and 2/claimants, would
contend that it is not a case where the first claimant was given
any compassionate appointment. The Hon‟ble Supreme Court in
Rekhaben's case (3 supra) distinguished in Kanta Aggarwal's
case (1 supra) and further the decision cited by the learned
counsel for the appellant are of no use to the appellant. The
decision in Vimal Kanwar's case (2 supra) and Rekhaben's case
(3 supra) will go against the contention of the appellant and
further Rekhaben's case (3 supra) would give clarity to nullify
the contention of the appellant by relying upon Kanta Aggarwal's
case (1 supra). He would further submit that in fact the last pay
drawn of the deceased was not considered by the Tribunal and
when the date of accident was on 07.09.2009 salary of the
deceased in September, 2008 alone was considered and this
Court has every power to enhance the compensation. The
compensation that is awarded to the claimants is liable to be
revised by enhancing the compensation. Though there is no
(2017) 13 Supreme Court Cases 547
cross objections, this Court has got power to do so and in
support of his contentions, he would rely upon the judgment of
this Court (DB) in MACMA No.945 of 2013.
16) According to the cross examination of P.W.1, she
was not a witness to the occurrence. P.W.2 was the direct
witness to the occurrence. The Tribunal on considering the
evidence of P.W.2, the direct witness, coupled with Ex.A.1-
attested copy of FIR, Ex.A.2-atested copy of Inquest Report,
Ex.A.3-attested copy of Postmortem Certificate and Ex.A.4-
attested copy of the charge sheet, came to a conclusion that the
accident occurred was due to rash and negligent driving of the
driver of the offending Lorry i.e., first respondent vehicle. The
finding the fact recorded by the Tribunal is not under challenge
in the grounds of appeal. As pointed out, the whole contention
of the appellant revolves around the fact that as the first
claimant is receiving pension of Rs.7,000/-, that amount is to be
deducted while computing the compensation and in support of
such a contention, the appellant would rely upon three
decisions. It is the quantum of compensation that was awarded
in favour of the claimants which is in dispute. Therefore, the
scope of the appeal is limited one.
17) Firstly, I would like to deal with the citations relied
upon by the learned counsel for the appellant. The decision in
Kanta Aggarwal's case (1 supra) was a case where when the
deceased met with death in a motor vehicles accident. The
owner of the vehicle who was an employer provided
compassionate appointment to the wife and when a claim was
laid before the Tribunal, the Tribunal awarded compensation.
When the matter was canvassed before the High Court, the High
Court dismissed the appeal. When the matter was canvassed
before the Hon‟ble Supreme Court, the Hon‟ble Supreme Court
made a finding that where the employer insures his employee,
as against injury or death arisen out of an accident, any amount
received out of such insurance on the happening of such incident
may be an amount liable for deduction. It is basing on this
citation, the appellant would seeks to deduct the so-called
pension being received from the compensation.
18) It is to be noted that even in the decision cited by
the learned counsel for the appellant in Rekhaben's case (3
supra), the question that arise before the Hon‟ble Supreme
Court is whether any pecuniary advantages received from other
source by reason of victim‟s death i.e., salary receivable by the
dependant claimant upon compassionate appoitnment due to
victim‟s death is liable to be deducted. The Hon‟ble Supreme
Court in Rekhaben's case (3 supra) when Kanta Aggarwal's case
(1 supra) was brought to the notice held that the above said
decision is distinguishable because the tortfeasor offered
employment on compassionate grounds to the wife of the
deceased, as such, the case in Kanta Aggarwal's case (1 supra)
is distinguishable to the case on hand.
19) Coming to the present case on hand, it is not a case
where the first claimant was provided with any compassionate
appointment. It is never the case of the second respondent that
the first claimant is receiving any amount under the head of
compassionate appointment. It is not a case where the first
respondent provided any compassionate appointment.
Therefore, Kanta Aggarwal's case (1 supra) is misquoted to the
present situation. The proposition in Rekhaben's case (3 supra)
is very clear that when the tortfeasor has not provided any
amount to the victim‟s family financial benefit of compassionate
appointment is not liable to be deducted. Hence, by relying upon
Kanta Aggarwal's case (1 supra) or Rekhaben's case (3 supra),
the appellant cannot support its contentions in anyway.
20) Turning to another decision cited by the learned
counsel for the appellant in Vimal Kanwar's case (2 supra), the
Hon‟ble Supreme Court clearly held that amounts such as
Provident Fund, Pension and Life Insurance received by the
claimants on account of the victim‟s death do not come within
the periphery of the Motor Vehicles Act to be termed as
„pecuniary advantage‟ liable for deduction.
21) It is no doubt true that the first claimant is receiving
pension. The observations of the Hon‟ble Supreme Court in
Vimal Kanwar's case (2 supra) are as follows:
18. The first issue is "whether provident fund, pension and
insurance receivable by the claimants come within the periphery
of the Motor Vehicles Act to be termed as „pecuniary advantage‟
liable for deduction".
19. The aforesaid issue fell for consideration before this Court
in Helen C. Rebello v. Maharashtra SRTC4. In the said case, this
Court held that provident fund, pension, insurance and similarly
any cash, bank balance, shares, fixed deposits, etc., are all a
"pecuniary advantage" receivable by the heirs on account of
one‟s death but all these have no correlation with the amount
receivable under a statue occasioned only on account of
accidental death. Such an amount will not come within the
periphery of the Motor Vehicles Act to be termed as "pecuniary
advantage" liable for deduction".
Hence, the contention canvassed vehemently in the
grounds of appeal deserves no merits at all.
22) Now coming to the income of the deceased as
evident from the evidence let in, the last pay drawn was not
brought to the notice of the Tribunal. When the deceased died
in September, 2009, pay slip of September, 2008 could only be
filed. There is no dispute about the fact that the gross salary of
3 (1999) 1 SCC 90: 1999 SCC (Cri) 197
the deceased as on September, 2008 is Rs.12,331/- per month.
After deducting non-governmental deductions and profession
tax, the net salary was Rs.12,000/- per month. There is no
dispute that the deceased was a permanent government
employee who was drawing salary with certain scale which was
with annual increments. As the deceased was below the age of
40 years, the Tribunal taken into consideration 50% of the net
salary towards future prospectus, as such, added Rs.6,000/- to
Rs.12,000/-. Out of Rs.18,000/- towards the personal expenses
of the deceased because there are only two dependants,
Tribunal deducted 1/3rd of the total amount. Hence, the net
contribution to the family would be Rs.12,000/- per month, as
such, it comes to Rs.1,44,00/- per year. The proper multiplier
for the age group of the deceased is 15, as such, the Tribunal
calculated the net contribution of Rs.1,44,000/- x 15 and arrived
at the figure Rs.21,60,000/-. Further the Tribunal awarded
Rs.15,000/- towards loss of estate, Rs.3,000/- towards
transportation, Rs.3,000/- towards funeral expenses and
Rs.15,000/- towards loss of consortium. So, the Tribunal totally
awarded a sum of Rs.21,96,000/-. The net drawings of the
deceased as above are not in dispute. As the contention of the
appellant that pension that is being drawn by the first claimant
is liable to be deducted is rejected, now there remains no
tenable contention on the part of the appellant to interfere with
the award of the Tribunal.
23) As pointed out, a contention is canvassed on behalf
of the claimants that only the pay slip of September, 2008 could
be filed before the Tribunal and pay slip of September, 2009 i.e.,
the period of death of the deceased could not be filed and that
this Court has power to enhance the compensation. It is no
doubt true that by virtue of various judgments and settled legal
position, which is also dealt with in M.A.C.M.A.No.945 of 2013,
the Court has power to enhance the compensation though there
is no prayer, but there should be some basis for the claimants to
make such a contention. When the claimants could only rely
upon Ex.A.5, now they cannot canvass the contention that they
are entitled more compensation. Without any basis, the
contention of the claimants to enhance the compensation
deserves no merits.
24) Having regard to the overall facts and
circumstances, absolutely, there are no merits in the grounds of
appeal, as such, MACMA is liable to be dismissed. The
compensation that was awarded in favour of the claimants by
the Tribunal is just and reasonable which is not liable to be
interfered with.
25) In the result, the MACMA is dismissed. There shall
be no order as to costs.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.08.12.2023.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date: 08.12.2023
PGR
