M/S. United India Insurance ... vs K. Malleswari Malleswaramm 6 Ots
2023 Latest Caselaw 1329 AP

                                                     M.A.C.M.A. No.1151 of 2012
                                     -1-

           HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                      MACMA.No.1151 OF 2012

JUDGMENT:

1. Aggrieved by the order dated 18.01.2012 in M.V.O.P. No.5 of 2011

passed by the Chairman, Motor Accidents Claims Tribunal -cum-

III Additional District Judge, Kurnool at Nandyal, (for short "the

tribunal"), the 2nd Respondent-United India Insurance Company

Limited, represented by its Branch Manager, Kurnool, preferred

this appeal questioning the correctness of the award.

2. For convenience's sake, the parties will hereinafter be referred to

as arrayed in the M.V.O.P.

3. The claimants have filed an application under Section 166 (c) of

the Motor Vehicles Act, 1988 (short "M.V.Act") claiming

compensation of Rs.10,00,000/- on account of the death of

K.Tirupathaiah (hereinafter referred to as 'the deceased'), who is

the husband of 1st claimant, father of claimants 2 to 4 and son of

claimants 5 and 6, in a motor vehicle accident that occurred on

06.12.2009.

4. The case of the claimants is that on 06.12.2009, while the

deceased, along with his friend, namely, Naga Pullaiah, were going

on their motorcycle bearing No.AP21-AB-3207 from Sirvel village

to Yerraguntla village, and when they reached near Government M.A.C.M.A. No.1151 of 2012

Junior College at Yerraguntla village, the driver of the tractor and

trailer bearing No.AP21-AB-3020/3021 (hereinafter referred to as

'the offending vehicle') drove the offending vehicle in a rash and

negligent manner and dashed against the deceased's motorcycle.

As a result, the deceased sustained multiple injuries and died on

the spot. On a complaint, a case in Cr. No.162/2009 under

sections 337, 304-A of I.P.C. of Sirvel Police Station was registered

against the offending vehicle's driver.

5. The 1st respondent, the owner of the offending vehicle, remained

ex parte.

6. The 2nd respondent filed its counter, denying the petition

averments and contended that the offending vehicle's driver never

drove the offending vehicle in a rash and negligent manner and

caused the accident and as the offending vehicle's driver does not

have a valid and effective driving licence at the time of the

accident. The compensation claimed is excessive.

7. Based on the pleadings, the Tribunal framed appropriate issues.

To substantiate the claim, on behalf of the claimants, PWs.1 to 3

got examined, Exs.A.1 to A.8, and Exs.X.1 and X.2 were marked.

On behalf of the respondents, no evidence was adduced and got

marked Ex.B1 policy.

M.A.C.M.A. No.1151 of 2012

8. After considering the evidence on record, the Tribunal held that

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

offending vehicle's driver, awarding the compensation of

Rs.9,45,144/- with interest at 6% per annum from the date of

petition till the date of realization against the respondents, making

them jointly and severally liable to pay the compensation and

dismissed the claim against the 5th claimant.

9. Heard both the learned counsels and perused the record.

10. Learned counsel for the appellant contends that the lower Court

committed an error in assessing the income at Rs.80,541/- for the

year 2008-09 only based on Ex.A7, whereas Ex.A2 shows that the

income of the deceased for the financial year 2006-07 was

Rs.48,647/-; the Tribunal wrongly deducted 1/4th towards

personal expenses of the deceased instead of 1/3rd and the

multiplier 16 is wrongly applied and failed to consider the parents

of the deceased were not dependents on the earnings of the

deceased.

11. Learned counsel for respondents/claimants has supported the

findings and order of the Tribunal.

12. Now the point for determination is:

Whether the quantum of compensation is fixed by the Tribunal just and reasonable, or it requires modification?

M.A.C.M.A. No.1151 of 2012

POINT:

13. There is no dispute regarding the case of the claimants that the

deceased died due to the injuries sustained in the accident, which

is established through the evidence of PW.1 and documents

Ex.A1-certified F.I.R, Ex.A.2-Certified copy of Inquest Report,

Ex.A.3-Certified copy of Postmortem certificate and Ex.A4-

Certified copy of Charge sheet. Though the insurance company

has filed the appeal, it has not assailed the finding of the Tribunal

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

the offending vehicle's driver. The finding of the Tribunal that the

2nd respondent has failed to prove that the offending vehicle's

driver did not have a valid and effective driving licence at the time

of the accident is not assailed by the appellant in the grounds of

appeal.

14. The finding of the Tribunal that the 1st respondent is the owner of

the offending vehicle and the 2nd respondent as its insurer under

Ex.B1-Insurance policy, which was in force as of the date of the

accident, are not assailed by the appellant. The findings above of

the Tribunal attained finality. Since the appellant-Insurance

company has not questioned the correctness of the above said

finding, despite the finding of the Tribunal, this Court views that

the evidence relating to those aspects need not be referred to and

discussed in this order. As already observed, the only dispute M.A.C.M.A. No.1151 of 2012

raised by the insurance company is with regard to the quantum of

compensation.

15. As seen from the order of the Tribunal, the Tribunal fixed the age

of the deceased at the time of the accident as 35 years. The

claimants have not filed any documents showing the proof of age

of the deceased at the time of the accident. In the absence of such

evidence, the Tribunal relied on Ex.A2 and Ex.A3 and rightly

assessed the age of the deceased as 35 years.

16. As per Sarla Verma and Ors., Vs. Delhi Transport Corporation and

Ors.1, the multiplier applicable for the age group of 31-35 years is

'16'. The Tribunal rightly fixed the multiplier '16' to assess the loss

of dependency.

17. It is the submission of the appellant-insurance company that as

per Ex.A7, the deceased was getting income of Rs.77,511/- per

annum as of the date of the accident, and the Tribunal fixed the

earnings by relying on Ex.A7 document, but it ignored the Ex.X2

which shows that the deceased got an amount of Rs.44,647/-

towards his commission. This Court finds force in the submission

of the appellant that as there is a fluctuation of the income of the

deceased; the Tribunal ought to have taken the average income of

the deceased. Considering the force in the said submission, this

2009 ACJ 1298 M.A.C.M.A. No.1151 of 2012

Court views that the Tribunal was supposed to have accepted the

average income of the deceased, i.e., Rs.61,079/- (Rs. 1,22,158/-

(÷) 2).

18. The other contention is that regarding the deduction of 1/4th

earnings of the deceased towards personal expenses, this Court

views that the Tribunal is justified in 1/4th earnings of the

deceased as considering the strength of the dependents of the

deceased, i.e., wife, three children, parents.

19. In National Insurance Company Limited Vs. Pranay Sethi and

others2, the Apex Court observed that if the deceased was self-

employed or on a fixed salary, an addition of 40% of the

established income should be the warrant where the deceased was

below the age of 40 years. An addition of 25% where the deceased

was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be

regarded as the necessary computation method. The established

income means the income minus the tax component.

20. By following the observations made in the above-referred decision,

this Court assessed the annual earnings, including prospects of

the deceased, would be at Rs. 85,510/- (Rs.61,079/- (+) 40% of

Rs.61,079/-). If 1/4th of the income is deducted towards the

(2017) 16 SCC 680 M.A.C.M.A. No.1151 of 2012

personal earnings of the deceased, it will come to Rs.64,132/-

towards the contribution of the family of the deceased. If it is

multiplied with the multiplier '16' to assess the loss of dependency

and if the amounts covered under the conventional heads are

awarded, it can be held unhesitantly that the compensation that

can be awarded will be more than the compensation awarded by

the tribunal. As such, it cannot be said that the tribunal has

awarded the more compensation amount unreasonably.

21. The claimants have not preferred any appeal against the quantum

of compensation fixed by the Tribunal. Hence, I don't find any

substance in the appeal; the appeal is devoid of merits and liable

to be dismissed.

22. As a result, the appeal is dismissed without costs, and the Order

and Decree passed by the Tribunal dated 18.01.2012 in

M.V.O.P.No.5 of 2011 is hereby confirmed.

23. Miscellaneous petitions pending, if any, in this appeal shall stand

closed.

____________________________ T. MALLIKARJUNA RAO, J

Date:09.03.2023 SAK M.A.C.M.A. No.1151 of 2012

HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

MACMA.No.1151 OF 2012

Date:09.03.2023

SAK