Rayavarapu Laxmi 2 Others vs Ukpparapalli Venkata Siva ...
2023 Latest Caselaw 4073 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 3166 of 2014

JUDGMENT:

Aggrieved by the award dated 16.05.2014 passed by the

Chairman, Motor Accident Claims Tribunal-cum-III Additional District

Judge, Vizianagaram, in M.V.O.P.No.443 of 2012, whereby the

Tribunal awarded a total compensation of Rs.5,28,000/- to the

petitioners as against their claim of Rs.8,00,000/-, this instant appeal

is preferred by the petitioners for enhancement of the compensation.

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

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

3. The claim petitioners filed the claim petition under Section

166 of the Motor Vehicles Act, 1988 read with Rule 455 of the

A.P.M.V. Rules, 1989 against the respondents praying the Tribunal

to award an amount of Rs.8,00,000/- towards compensation for the

death of Rayavarapu Venkata Musalinaidu, who is husband of 1 st

VGKR,J MACMA No.3166 of 2014

petitioner and father of petitioner Nos.2 and 3, in a motor vehicle

accident that occurred on 28.02.2012.

4. The brief averments of the claim petition are as follows:

On 27.02.2012 at about 11.00 p.m. the deceased as a

cleaner along with the driver of an oil tanker bearing registration

No.AP 31W 1577 were proceeding on the said oil tanker from Vizag

to Yanam with a load of diesel and when they reached opposite to

Sri Gopal Baba Ashramam, by-pass road, Pithapuram at about 5.00

a.m. on 28.02.2012, the driver of the oil tanker drove the same in a

rash and negligent manner at high speed and dashed the rear

portion of a tipper lorry bearing registration No.AP 5TT 9108, which

was stopped on the road margin, resulting in the instantaneous

death of the deceased. The S.H.O., Pithapuram Town P.S.

registered a case in crime No.36 of 2010 against the driver of the oil

tanker for the offence punishable under Section 304-A of IPC. The

1st respondent is driver, the 2nd respondent is owner and the 3rd

respondent is insurer of the offending oil tanker, hence, all the

respondents are liable to pay compensation to the petitioners.

VGKR,J MACMA No.3166 of 2014

5. Respondent Nos.1 and 2 were set ex parte. The 3rd

respondent/Insurance company filed a counter by denying the

manner of accident, age, avocation and income of the deceased. It

is pleaded that due to negligence of the driver of the tipper lorry, the

accident occurred, as he stopped the said vehicle suddenly and

without giving signals, the deceased was not working as a cleaner

under the 2nd respondent, the deceased is an unauthorized

passenger travelling in the goods vehicle against the conditions of

the policy, therefore, the Insurance company prays to dismiss the

petition.

6. Based on the above pleadings, the Tribunal framed the

following issues for trial:

1. Whether the motor vehicle accident took place on 28.02.2012 at about 5.00 hours near Gopal Baba Ashramam, Pithapuram, due to rash and negligent driving of the oil tanker bearing No.AP 31W 1577 by its driver resulting death of Rayavarapu Venkata Musalinaidu?

VGKR,J MACMA No.3166 of 2014

2. Whether the petitioners are entitled to any compensation? If so, what amount and from whom?

3. To what relief?

7. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.Ws.1 and 2 were examined and Exs.A.1 to A.4

were marked. On behalf of the 3rd respondent/Insurance company,

no oral evidence was adduced, but Ex.B.1 was got marked.

8. 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 because of rash

and negligent driving of the driver of the offending oil tanker and

accordingly, allowed the petition in part and awarded a sum of

Rs.5,28,000/- towards compensation to the claim petitioners with

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

petition till the date of payment against all the respondents. Being

aggrieved by the impugned award, the claim petitioners filed the

instant appeal for enhancement of the compensation.

VGKR,J MACMA No.3166 of 2014

9. Heard Sri G.Sainarayana Rao, learned counsel for the

appellants/petitioners, and Smt.V.Durga, learned counsel for the 3 rd

respondent/Insurance company and perused the record.

10. Now, the points for determination are:

1) Whether the claim petitioners are entitled enhancement of compensation as prayed for? and

2) Whether the order passed by the Tribunal needs any interference?

11. POINT Nos.1 and 2 : The case of the petitioners is that on

27.02.2012 at about 11.00 p.m. the deceased as a cleaner along

with the driver of an oil tanker bearing registration No.AP 31W 1577

were proceeding on the said oil tanker from Vizag to Yanam with a

load of diesel and when they reached opposite to Sri Gopal Baba

Ashramam, by-pass road, Pithapuram at about 5.00 a.m. on

28.02.2012, the driver of the oil tanker drove the same in a rash and

negligent manner at high speed and dashed the rear portion of a

tipper lorry bearing registration No.AP 5TT 9108, which was stopped

VGKR,J MACMA No.3166 of 2014

on the road margin, resulting in the instantaneous death of the

deceased.

12. In order to prove the rash and negligent driving of the driver of

the offending oil tanker, the petitioners relied on the evidence of

P.Ws.1 and 2. No doubt, P.W.1 is not an eye witness to the

accident. As per the evidence of P.W.2, the accident in question

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

offending oil tanker, which is well corroborated by Ex.A.1-copy of

first information report and Ex.A.4-copy of charge sheet. On

appreciation of the entire evidence on record, the Tribunal came to

the conclusion that the accident occurred because of rash and

negligent driving of the driver of the offending oil tanker. Therefore,

there is no need to interfere with the said finding given by the

Tribunal.

13. Coming to the compensation, the dependents on the

deceased are the wife and the daughters of the deceased. Though

it is the case of the petitioners that the monthly income of the

deceased was Rs.10,000/-, they failed to prove the same. On

VGKR,J MACMA No.3166 of 2014

appreciation of the evidence on record, the Tribunal arrived the daily

income of the deceased at Rs.150/- i.e., Rs.4,500/- per month and

Rs.54,000/- per annum. No appeal or cross-objections is filed by the

respondents against the said finding. Evidently, the deceased was

aged about 48 years at the time of accident and the multiplier

applicable to the age group of the deceased is '13'. After deducting

1/3rd from out of annual income towards personal expenses of the

deceased and by applying the multiplier '13', the Tribunal awarded

Rs.4,68,000/- (Rs.36,000/- (Rs.54,000/- - Rs.18,000/-) x multiplier

'13') towards loss of dependency.

14. As seen from the material on record, the accident occurred in

the year 2012. In those days, an ordinary coolie can easily earn

Rs.150/- to Rs.200/- per day. Therefore, the monthly income of the

deceased is fixed as Rs.5,000/- i.e., Rs.60,000/- per annum. After

deducting 1/3rd from out of annual income towards personal

expenses of the deceased and by applying the multiplier '13', the

Tribunal awarded Rs.5,20,000/- (Rs.40,000/- (Rs.60,000/- -

VGKR,J MACMA No.3166 of 2014

Rs.20,000/-) x multiplier '13') towards loss of dependency to the

family members of the deceased.

15. Further, the Tribunal awarded compensation of Rs.60,000/-

under conventional heads i.e., Rs.50,000/- towards loss of

consortium and Rs.10,000/- towards funeral expenses of the

deceased. As per the decision of the Hon'ble Supreme Court in

National Insurance Company Limited Vs. Pranay Sethi 1 , the

maximum amount to be awarded under conventional heads is

Rs.70,000/- only. Therefore, an amount of Rs.15,000/- is awarded

towards loss of estate, Rs.40,000/- is awarded towards loss of

consortium to the 1st petitioner, and Rs.15,000/- is awarded towards

funeral expenses of the deceased.

16. In total, a sum of Rs.5,90,000/- is awarded towards

compensation to the petitioners.

17. Admittedly, the offending oil tanker of the 2nd respondent was

insured with the 3rd respondent/Insurance company under Ex.B.1-

2017 (16) SCC 680

VGKR,J MACMA No.3166 of 2014

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

On appreciation of the entire material on record, the Tribunal came

to the conclusion that respondent Nos.1 to 3 are jointly and severally

liable to pay the compensation to the petitioners. No appeal or

cross-objections is filed by the respondents against the said finding.

Therefore, there is no need to interfere with the said finding given by

the Tribunal.

18. In the result, the appeal is partly allowed enhancing the

compensation from Rs.5,28,000/- awarded by the Tribunal to

Rs.5,90,000/-. Respondent Nos.1 to 3 are directed to deposit the

enhanced compensation of Rs.62,000/- with interest at 7.5% p.a.

from the date of petition till the date of payment before the Tribunal

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

the 1st petitioner, who is wife of the deceased, is entitled to withdraw

the enhanced compensation amount along with interest accrued

thereon. No order as to costs.

VGKR,J MACMA No.3166 of 2014

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 6 September, 2023 cbs

VGKR,J MACMA No.3166 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 3166 of 2014

6th September, 2023 cbs