The vs Delhi
2023 Latest Caselaw 3445 AP

      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                     M.A.C.M.A.No. 3714 of 2012
JUDGEMENT:

The appellant is 2nd respondent and the respondents are

claimants and 1st respondent in M.V.O.P.No.711 of 2010 on the file

of the Chairman, Motor Accident Claims Tribunal-cum-I Additional

District Judge, Anantapur. The appellant filed the appeal questioning

the legal validity of the order of the Tribunal.

2. For the sake of convenience, both the parties in the appeal will

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

3. The claimants filed the petition under Sections 140 and 166 of

the Motor Vehicles Act, 1988 claiming compensation of

Rs.10,00,000/- for the death of Nettam Ramesh, who is husband of

1st claimant, father of claimant Nos.2 and 3 and son of claimant

Nos.4 & 5, in a motor vehicle accident which took place on

26.04.2008.

VGKR,J MACMA No.3714 of 2012

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

as follows:

On 26.04.2008 the deceased went to the open ground for

nature calls and at about 10.30 p.m. when he was returning home

on the extreme left of the road, a lorry bearing registration No.AP

02W 3398 came from Tadipatri side towards Bathalapalli and

dashed the deceased resulting in his instantaneous death. The

Narpala P.S. registered a case for the offence under Section 304-A

of IPC as a hit and run case. 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 the compensation

to the claimants.

5. The 1st respondent was set ex parte.

6. The 2nd respondent/Insurance company filed a counter by

denying the manner of accident, age, income and occupation of the

deceased. It is pleaded that the driver of the lorry was not holding

valid driving licence at the time of accident and he was not qualified

VGKR,J MACMA No.3714 of 2012

for holding or possessing such driving licence, as such, the

Insurance company is not liable to pay any compensation.

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

following issues were settled for trial by the Tribunal:

1) Whether the accident occurred due to rash and negligent driving of the driver of Eicher lorry bearing No.AP 02W 3398 and caused the death of the deceased Nettam Ramesh?

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

3) To what relief?

8. During the course of enquiry, on behalf of the claimants,

P.Ws.1 to 4 were examined and Exs.A.1 to A.7 were marked. On

behalf of the 2nd respondent/Insurance company, R.W.1 was

examined and Exs.B.1 and B.2 were marked.

9. At the culmination of the enquiry, after considering the

evidence on record and on appreciation of the same, 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,

VGKR,J MACMA No.3714 of 2012

partly allowed the claim petition and granted a sum of Rs.8,89,000/-

towards compensation to the claimants. Being aggrieved by the

impugned award, the 2nd respondent/Insurance company has

preferred the present appeal.

10. Heard learned counsels for both parties and perused the

record.

11. The ground, on which the present appeal is preferred by the

appellant/Insurance company, is that the Tribunal erred in fixing the

monthly income of the deceased as Rs.6,000/- p.m.

12. Now, the point for determination is:

Whether the order of the Tribunal needs any interference?

13. POINT: In order to establish that the accident occurred due

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

claimants examined P.Ws.1 and 2. P.W.1 is not an eye witness to

the accident, therefore, her evidence cannot be relied upon. P.W.2

is said to be an eye witness to the accident. In his chief-examination

VGKR,J MACMA No.3714 of 2012

he deposed that he had worked as a cleaner on the offending lorry,

on 26.04.2008 while he was proceeding on the lorry as a cleaner

and Surya narayana was driver of the vehicle, when they reached

near the hayrick yards of Talari Hanumanthu and Poojari

Adinarayana of Tadipatri-Bathalapalli road, the driver of the lorry

drove the same at high speed and dashed against the deceased

Ramesh who was answering the nature calls. The claimants also

relied on Ex.A.2-certified copy of charge sheet, Ex.A.3-certified copy

of inquest report and Ex.A.4-certified copy of post-mortem report.

Ex.A.2 reveals the involvement of the driver of the lorry and his

negligence in causing the accident. Exs.A.3 and A.4 also show the

death of the deceased in the accident. The Evidence of P.W.2

coupled with Exs.A.2 to A.4 clearly proves that the accident

occurred due to rash and negligent driving of the driver of the

offending lorry and in the said accident, the deceased died on the

spot. On appreciation of the evidence on record, the Tribunal also

gave the same finding in its order. Therefore, there is no need to

interfere with the said finding given by the Tribunal.

VGKR,J MACMA No.3714 of 2012

14. The Tribunal arrived the monthly income of the deceased at

Rs.6,000/- p.m. Absolutely, there is no material evidence on record

to show that the deceased used to earn Rs.6,000/- p.m. The

accident occurred in the year 2008. In those days, an ordinary

coolie can easily earn Rs.150/- per day. Therefore, the monthly

income of the deceased is taken by this Court as Rs.4,500/- i.e.,

54,000/- p.a.. The dependants on the deceased are five in number.

So, 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.40,500/- (Rs.54,000/- - Rs.13,500/-). As per Ex.A.1-F.I.R., the

age of the deceased was 32 years, but as per Ex.A.3-inquest report,

the deceased was aged 33 years and as per Ex.A.4-post-mortem

report, the age of the deceased was 30 years. Therefore, the age of

the deceased is taken as 32 years. The relevant multiplier

applicable to the age group of the deceased is "16", as per the

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

VGKR,J MACMA No.3714 of 2012

Transport Corporation1 and the loss of dependency is arrived at

Rs.6,48,000/- (Rs.40,500/- x 16). On appreciation of the entire

evidence on record, the Tribunal awarded Rs.10,000/- towards loss

of consortium to the 1st claimant, Rs.10,000/- towards loss of estate

and Rs.5,000/- towards funeral expenses of the deceased. Since no

appeal was filed by the claimants against the said finding, there is

no need to interfere with the quantum of compensation awarded by

the Tribunal under these three heads. In total, a sum of

Rs.6,73,000/- is awarded towards compensation to the claimants.

15. In its counter, the 2nd respondent clearly admitted about the

insurance policy under Ex.B.1 with regard to the vehicle involved in

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

accident. Based on the same, the Tribunal rightly held that both the

respondents are jointly and severally liable to pay the compensation

to the claimants. Therefore, there is no need to interfere with the

said finding given by the Tribunal.

2009 (4) SCJ 91

VGKR,J MACMA No.3714 of 2012

16. In the result, the appeal is partly allowed. The order dated

06.07.2012 passed by the Tribunal in M.V.O.P.No.711 of 2010 is

modified by reducing the compensation of Rs.8,89,000/- awarded by

the Tribunal to Rs.6,73,000/-. The 1st claimant is entitled to

Rs.2,00,000/-, The 2nd claimant is entitled to Rs.1,50,000/-, the 3rd

claimant is entitled to Rs.2,23,000/- and claimant Nos.4 and 5 are

entitled to Rs.50,000/- each. The 2nd respondent/Insurance

Company is directed to deposit the entire compensation, with

proportionate costs and interest at 7.5% p.a. from the date of

petition till the date of payment as awarded by the Tribunal, before

the Tribunal, within two months from the date of this judgment. On

such deposit, claimant Nos.1, 4 and 5 are entitled to withdraw their

respective shares of compensation amount along with proportionate

costs and interest. The shares of claimant Nos.2 and 3 along with

proportionate costs and interest shall be kept in a fixed deposit in

any Nationalised Bank till they attain majority and on attaining

majority, they are entitled to withdraw the same. No order as to

costs.

VGKR,J MACMA No.3714 of 2012

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 14 July, 2023 cbs

VGKR,J MACMA No.3714 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 3714 of 2012

14th July, 2023 cbs