Andhra Pradesh High Court - Amravati
The New India Assurance Co. Ltd., ... vs Syed Rahim, W.G.District And 3 Others on 18 December, 2023
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
Page 1 of 15 Dt: 18.12.2023
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
M.A.C.M.A.No.1225 OF 2012 & 2494 OF 2011
COMMON JUDGMENT:
The appeal in MACMA No.1225/2012 is preferred by the
appellants/claimants challenging the award dated 12.05.2009 passed
in M.V.O.P.No.506/2004 on the file of Motor Accidents Claims
Tribunal-cum-V Addl.District Judge (F.T.C.), Eluru, wherein the
Tribunal partly allowing the petition, awarded a compensation of
Rs.2,10,000/- with interest @ 7.5% p.a. from the date of petition, till
the date of realisation, for the death of Syed Akbar in a motor vehicle
accident.
2. The appeal in MACMA No.2494/2011 is preferred by the
3rd respondent/Insurance Company, challenging the award dated
12.05.2009 passed in M.V.O.P.No.506/2004 on the file of Motor
Accidents Claims Tribunal-cum-V Addl.District Judge (F.T.C.), Eluru.
3. For the sake of convenience, the parties are arrayed as parties
before the learned Tribunal.
4. As seen from the record, the claim petition was filed U/s.166 of
the Motor Vehicles Act, 1988 (for brevity "the Act") claiming
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
compensation of Rs.5,00,000/- on account of the death of Syed Akbar
in a motor vehicle accident that occurred on 28.11.2003.
5. The facts of the case would show that on 28.11.2003 the
deceased Syed Akbar was travelling on the motor cycle of Syed Abdul
Razaak as pillion rider in their return journey from Eluru to
Chinthalapudi; When the said motor cycle reached near Anjaneya
Swamy Temple on Eluru - Chinthalapudi road at about 11.30 p.m.,
the 1st respondent drove the tractor bearing No.AP 37 AF 1838, with
high speed, in a rash and negligent manner; dashed the motor cycle,
as a result, Syed Akbar and Syed Razaak sustained multiple injuries
and they were shifted to Global Hospital, Eluru; The Medical Officer
declared Syed Akbar died. The said accident was registered as FIR in
Cr.No.164/2003 of Pedapadu Police Station for the offence punishable
U/s.304-A, 337 of Indian Penal Code against the driver of offending
tractor; the deceased was aged about 20 years by the date of accident;
He used to work as employee in a company in Hyderabad and earning
Rs.3,600/- per month; The 1st respondent is the driver of offending
tractor, the 2nd respondent is the owner of the offending tractor and
the 3rd respondent is insurer of the offending tractor and all are jointly
and severally liable to pay compensation to the claimants.
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
6. Before the Tribunal, the 3rd respondent/Insurance Company
filed counter while traversing the material averments with regard to
proof of age, avocation, monthly earnings of the deceased, manner of
accident, rash and negligence on the part of the driver of the offending
vehicle, liability to pay compensation, contended that the driver of the
motor cycle was not having valid driving licence and he drove the
motor cycle in a rash and negligent manner and contributed to the
accident.; There was no rashness or negligence on the part of driver of
the offending tractor; The driver of offending tractor was not having
valid and effective driving licence by the date of accident; The claim is
excessive and the rate of interest is also excessive.
7. Before the learned Tribunal, the respondents No.1 and 2
remained exparte.
8. On the strength of the pleadings of both parties, the learned
Tribunal framed the following issues:
1. Whether the deceased Syed Akbar died in a motor vehicle
accident on 28.11.2003 due to rash and negligent driving of the
Tractor bearing No.AP 37 AF 1838 driven by the 1st respondent?
2. What is the age and income of the deceased?
3. Whether the petitioners are entitled to claim compensation? If
so, to what amount and from which of the respondents?
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
4. To what relief?
9. To substantiate their claim, the claimants examined P.Ws-1 to 3
and placed Exs.A-1 to A-6. No oral or documentary evidence was
adduced on behalf of the 3rd respondent; copy of insurance policy was
marked as Ex.B-1 with consent.
10. The learned Tribunal, taking into consideration of the evidence
of P.Ws-1 to 3, coupled with Exs.A-1 to A-6, held that the accident
took place due to the rash and negligent driving of the driver of
offending tractor bearing No.AP 37 AF 1838, and further, taking into
consideration the evidence of P.Ws-1 to 3, corroborated by Exs.A-1 to
A-6, awarded a compensation of Rs.2,10,000/- with interest @ 7.5%
p.a. from the date of petition, till the date of realisation, against the
respondents No.1 and 2 jointly and severally, and directed the 3 rd
respondent/Insurance Company firstly to deposit the amount and
recover the same from the 2nd respondent later.
11. Sri B.V.Krishna Reddy, learned counsel for appellants/claimants
in MACMA No.1225/2012 would submit that the deceased was aged
20 years at the time of accident; he was working under P.W-3 at
Jeedimetla, Hyderabad, and receiving salary of Rs.3,600/- per month;
but the learned tribunal did not appreciate the evidence of P.W-3 and
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
fixed the income of deceased notionally at Rs.2,000/- per month which
is on lower side; and further, the claimants are entitled to
compensation under conventional heads as per judgments of Hon'ble
Apex Court in Sarla Verma's case, Praney Sethi's case and Magma
General Insurance Company Limited Case.
12. He would further submit that the learned Tribunal erroneously
fixed the multiplier '13', instead of fixing the multiplier basing on the
age of the deceased as 20 years at the time of accident, and therefore,
the multiplier be fixed as per judgment of Hon'ble Apex Court in Sarla
Verma's case as '18', and compensation has to be assessed
accordingly.
13. Sri Naresh Birapaneni, learned counsel for Insurance Company,
who is appellant in MACMA 2494/2011 would submit that the learned
Tribunal considering the evidence of P.W-3, observed that he did not
place any record to show that the deceased was working under him at
the relevant point in time, and in those circumstances, the learned
Tribunal ignored the evidence of P.W-3 and fixed the income notionally
at Rs.2,000/- per month, which is reasonable in the circumstances of
the case, and therefore, there are no grounds to interfere with the
finding of the learned Tribunal on that aspect.
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
14. He would further submit that the driver of the offending vehicle
had no driving licence at the time of accident, and in that view of the
matter, the Insurance Company is not liable to indemnify the owner of
the offending vehicle, and if the Court directs the Insurance Company
to pay the amount and it may be permitted to recover the same from
the owner of the offending vehicle.
15. In the light of the above contentions raised in both the appeals,
the points that would arise for consideration in both the appeals are as
under:
1. Whether the order and decree passed by the learned Tribunal
warrants interference of this Court?
2. To what relief?
16. POINT No.1:
The case of the claimants is that on 28.11.2003 the deceased
Syed Akbar was travelling on the motor cycle of Syed Abdul Razaak as
pillion rider in their return journey from Eluru to Chinthalapudi.
When the said motor cycle reached near Anjaneya Swamy Temple on
Eluru - Chinthalapudi road at about 11.30 p.m., the 1st respondent
drove his tractor bearing No.AP 37 AF 1838, with high speed, in a rash
and negligent manner and dashed against the motor cycle. As a result,
Syed Akbar and Syed Razaak sustained multiple injuries and they
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
were shifted to Global Hospital, Eluru. The Medical Officer declared
Syed Akbar died.
17. The claimants to establish the accident and that it was occurred
due to rash and negligence of the offending tractor No.AP 37 AF 1838,
examined P.Ws-1 and 2 and filed Exs.A-1 to A-6.
18. Basing on the said evidence, the leaned Tribunal held that the
accident was occurred due to rash and negligence of the driver of the
offending vehicle. P.W-2 is eye witness to the accident. His evidence
would establish that the accident was occurred due to rash and
negligence of the driver of the offending vehicle. His testimony before
the learned Tribunal was corroborated by the opinion of the police,
who filed police report (charge sheet). In those circumstances, which
probable the plea of the claimants that the accident was occurred due
to rash and negligence of the driver of the offending tractor, this Court
do not find any ground to interfere with the finding of the learned
Tribunal on that aspect.
19. The claimants to establish the income of the deceased at the
time of accident examined P.W-3. The claimants in their petition
pleaded that the deceased was working at Hyderabad and earning
Rs.3,600/- per month at the time of accident. However, the claimants
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
in their petition did not plead that the deceased was working under
P.W-3 as Supervisor and earning Rs.3,600/- per month. It is true that
P.W-3 admitted before the learned Tribunal that he did not file any
documents showing that he deducted provident fund and other
deductions from the salary of the deceased at the relevant point in
time. In those circumstances, the learned Tribunal did not accept his
evidence and held that the there is no evidence to say that deceased
was working under P.W-3 as Supervisor and earning Rs.3,600/- per
month. However, the evidence of P.W-1 would show that the deceased
was working at Hyderabad at the time of accident. However, pleading
and evidence would show that he was working at Hyderabad.
Considering the place of work and other circumstances, the income of
the deceased can be fixed notionally at Rs.3,000/- per month, instead
of Rs.2,000/- per month fixed by the learned Tribunal.
20. The age of the deceased is 20 years at the time of accident. But
the learned Tribunal applied the multiplier basing on the age of
parents at '13'. In the light of judgment of Hon'ble Apex Court in Sarla
Verma's case, the age of the deceased be taken into consideration for
applying multiplier to arrive loss of dependency. Therefore, the proper
multiplier to be applied in this case is '18'. Hence, the loss of
dependency b recalculated accordingly.
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
21. Admittedly, the deceased was an unmarried person. Hence, half
of the income be deducted towards his personal expenses as per
judgment of Hon'ble Apex Court in the case of Sarla Verma and
another Vs. Delhi Road Transport Corporation and others 1. Thus,
the monthly income of the deceased will be Rs.3,000 - 1,500 =
Rs.1,500/- per month. The annual income of the deceased will be
Rs.1,500 x 12 = Rs.18,000/- per annum. Therefore, the loss of
dependency is Rs.18,000 x 18 = Rs.3,24,000/-.
22. The claimants are entitled to compensation towards future
prospects at 40% on Rs.3,24,000/- in view of the judgment of Hon'ble
Apex Court in the case of National Insurance Company Limited Vs.
Pranay Sethi and others2 on the established income, and aged below
40 years. The same comes to Rs.3,24,000x40/100 =Rs.1,29,600/-.
Therefore, the amount entitled by the claimants towards loss of future
prospects is Rs.1,29,600/-.
23. The claimants are entitled for Rs.15,000/- towards loss of estate
and Rs.15,000/- towards funeral expenses, total Rs.30,000/-, as per
2009 ACJ 1298
(2017) 16 SCC 680
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
the judgment of the Hon'ble Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and others,
24. The claimants are being the parents of unmarried son, are
entitled to filial consortium at Rs.40,000/- each, total Rs.80,000/- in
view of the judgment of the Hon'ble Apex Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram
and others3, wherein Pranay Sethi's case was also referred and
considered by the Hon'ble Apex Court for awarding filial consortium.
25. In the light of above discussion, the total compensation entitled
by the claimants would be Rs.3,24,000 + 1,29,600 + 1,10,000 =
Rs.5,63,600/- towards just compensation, instead of Rs.2,10,000/-,
awarded by the learned Tribunal. In that view of the matter, the
finding of the learned Tribunal warrants interference of this Court.
26. The claimants are entitled to interest on the compensation
amount of Rs.5,63,600/- as per section 171 of M.V.Act, 1988. The
learned Tribunal awarded interest at 7.5% p.a. from the date of
petition, till the date of realisation. Considering the date of accident
and prevailing rate of interest, this Court do not find any ground to
interfere with the rate of interest awarded by the Tribunal at 7.5% p.a.,
2018 ACJ 2782
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
from the date of petition, till the date of deposit, in view of the Apex
Court judgement in National Insurance Company Limited Vs.
Mannat Johal4.
27. The Hon'ble Apex Court in the case of Mona Baghel and others
Vs. Sajjan Singh Yadaav and others5, held that in the matter of
compensation, the amount actually due and payable is to be awarded
despite the claimant having sought for a lesser amount and the claim
petition being valued at a lesser value. The law is well settled that in
the matter of compensation, the amount actually due and payable is to
be awarded despite the claimant having sought for a lesser amount
and the claim petition being valued at a lesser value. Therefore, though
the claimant sought for a lesser amount, and the claim petition being
valued at lesser value for Rs.5,00,000/-, the amount actually due and
payable to be awarded is Rs.5,63,600/-. In that view of the matter, the
award passed by the learned Tribunal is liable to be set aside.
28. In view of the above judgment of the Hon'ble Apex Court
case, the Court shall award just compensation, even if it exceeds the
amount claimed by the claimants, subject to payment of court fee. In
2019 ACJ 1849 (SC)
2022 LiveLaw (SC) 734
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
that view of the matter, this Court is of the considered opinion that the
appellants are entitled to Rs.5,63,600/- towards just compensation.
29. In view of the contention of the Insurance Company that the
driver of the offending tractor bearing AP 37 AF 1838 was not having
valid driving licence at the time of accident, the tribunal ordered that
the Insurance Company shall first pay the compensation amount to
the claimants and can recover the same later from the owner of the
offending vehicle by filing necessary application in the same
proceedings.
30. Considering the facts and circumstances of the case, the appeal
filed by the claimants be allowed by setting aside the award and decree
passed by the learned Tribunal. Accordingly, the point is answered.
31. POINT No.2: To what relief?
In the light of finding on point No.1, the appeal in MACMA
1225/2012 is liable to be allowed, by setting aside the award and
decree dated 12.05.2009 passed in M.V.O.P.No.506/2004 on the file of
Motor Accidents Claims Tribunal-cum-V Addl.District Judge (F.T.C.),
Eluru, and the Appeal in MACMA 2494/2011 is liable to be dismissed.
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
32. In the result, the appeal in MACMA 2494/2011 is dismissed.
The appeal in MACMA 1225/2012 is allowed, by setting aside the
award and decree dated 12.05.2009 passed in M.V.O.P.No.506/2004
on the file of Motor Accidents Claims Tribunal-cum-V Addl.District
Judge (F.T.C.), Eluru, holding that the appellants/claimants are
entitled to a compensation of Rs.5,63,600/- (Rupees Five Lakhs, Sixty
Three Thousand and Six Hundred only) with interest @ 7.5% p.a. from
the date of petition, till the date of deposit, instead of Rs.2,10,000/- as
awarded by the learned Tribunal, against the respondents No.1 and 2
jointly and severally. There shall be no order as to costs.
33. The 3rd respondent/Insurance Company shall first pay the
compensation amount of Rs.5,63,600/- (Rupees Five Lakhs, Sixty
Three Thousand and Six Hundred only), along with accrued interest
thereon, within eight (08) weeks from the date of judgment, and can
recover the same later from the 2nd respondent by filing necessary
application in the same proceedings, as per law.
34. On such deposit, the Appellants/claimants being the parents of
the deceased are entitled to an amount of Rs.2,81,800/- (Rupees Two
Lakhs, Eight One Thousand and Eight Hundred only) each, and they
are permitted to withdraw the said amount along with accrued interest
thereon.
BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
35. The appellants/claimants are directed to pay the required court
fee before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989,
within one month from the date of receipt of certified copy of judgment.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_________________________________
B.V.L.N. CHAKRAVARTHI, J
18.12.2023
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BVLNC,J MACMA 1225 OF 2012 & 2494 OF 2011
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.1225 OF 2012 & 2494 OF 2011
18th December, 2023
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