Shaik Kalesha And 2 Others vs B.Sreenivasa Rao And 5 Others
2023 Latest Caselaw 4248 AP

    IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                       M.A.C.M.A.No.2403 of 2012

Between:
1.Shaik Kalesha, S/o.late Khasim Saheb,
  aged about 31 years, Mason,
  R/o.Gummanampadu village,
  Santhanuthalapadu Mandal,
  Prakasam District and 2 others.                              ... Appellants

                                     And

1. B.Sreenivasa Rao, S/o.Sriramamurthy,
   aged 34 years, Driver of car, R/o.3-7-1/6,
   Narasaraopet Village and Mandal,
   Guntur District and 5 others.                              ... Respondents


DATE OF ORDER PRONOUNCED :                      14.09.2023

SUBMITTED FOR APPROVAL:

       HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO

1. Whether Reporters of Local Newspapers
   may be allowed to see the order?                 :        Yes/No

2. Whether the copy of order may be
   marked to Law Reporters/Journals?                 :       Yes/No

3. Whether His Lordship wish to
   see the fair copy of the order?                   :       Yes/No



                                           __________________________
                                            V.GOPALA KRISHNA RAO, J
                                       2                          VGKRJ
                                                     MACMA 2403 of 2012




      * HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO
                + M.A.C.M.A. No.2403 of 2012

                              % 14.09.2023

                      M.A.C.M.A. No.2403 of 2012 :

Between:
1.Shaik Kalesha, S/o.late Khasim Saheb,
  aged about 31 years, Mason,
  R/o.Gummanampadu village,
  Santhanuthalapadu Mandal,
  Prakasam District and 2 others.                       ... Appellants

                                   And

1. B.Sreenivasa Rao, S/o.Sriramamurthy,
   aged 34 years, Driver of car, R/o.3-7-1/6,
   Narasaraopet Village and Mandal,
   Guntur District and 5 others.                       ... Respondents



! Counsel for Appellants           : Sri Mekala Rama Murthy

^ Counsel for Respondent No.6 : Sri Maheswara Rao Kunchem

< Gist:

> Head Note:

? Cases referred:

AIR 2020 SC 434
This Court made the following:
                                     3                            VGKRJ
                                                     MACMA 2403 of 2012




     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                      M.A.C.M.A.No.2403 of 2012


JUDGMENT:

Aggrieved by the impugned order dated 19.03.2012 on the file

of Motor Accident Claims Tribunal -cum- V Additional District Judge

(Fast Track Court), Ongole, passed in M.V.O.P.No.368 of 2010,

whereby the Tribunal has partly allowed the claim against the

respondents 2 to 6, the instant appeal is preferred by the appellants/

claimants for enhancement of claim amount.

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 a Claim Petition under section 166 of

Motor Vehicles Act, 1988 against the respondents praying the

Tribunal to award an amount of Rs.4,00,000/- towards

compensation on account of death of deceased Shaik Khadar Bee

in a Motor Vehicle Accident occurred on 12.07.2007.

4. Facts germane to dispose of this appeal may be briefly stated

as follows:

                                     4                            VGKRJ
                                                     MACMA 2403 of 2012

Petitioners 1 and 2 are the sons and petitioner No.3 is

daughter of Smt Shaik Khadar Bee, hereinafter referred to as

'deceased'. The deceased and her husband went to Hyderabad to

their relatives house and when they were at Hyderabad, they heard

about the death of their relative by name Masthan Vali. On

12.07.2007 they engaged a car bearing No.AP9 TVA 0606 to go to

Gummanampadu village and when the car reached Dayyalagandi in

Nalgonda District, the driver of the car drove the same in a rash and

negligent manner, at the same time, a lorry bearing No.AP29TA

6317, which was coming in opposite direction, driven by its driver,

also came in a rash and negligent manner and dashed against each

other, as a result, the accident took place. The deceased and her

husband died on the spot itself. The driver of the car, who is shown

as respondent No.1 in this case, also died on the spot itself.

5. The respondents 2, 4 and 5 remained exparte. The

respondents 3 and 6 filed counters separately denying the claim of

the claimants and contended that the claimants are not entitled any

compensation and the third and sixth respondents are not liable to

pay any compensation to the claimants.

                                         5                            VGKRJ
                                                         MACMA 2403 of 2012

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

following issues:

i. Whether the death of the deceased Shaik Khadar Bee, W/o.Khasim Saheb is due to rash and negligent driving of Car bearing No.AP9 TVA 0606 and lorry bearing No.AP29 TA 6317 by their drivers? ii. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

iii. Whether the age and income of the deceased are correct?

iv. To what relief?

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

of the petitioners, PW1 and PW2 were examined and Ex.A1 to

Ex.A5 were marked. On behalf of respondents, RW1 was examined

and Ex.B1 and Ex.B2 were marked.

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

evidence on record and on appreciation of the same, the Tribunal

has given a finding that the accident was occurred due to rash and

negligent driving of drivers of both the offending vehicles and the 6 VGKRJ MACMA 2403 of 2012

Tribunal granted an amount of Rs.50,000/- to the claimants towards

compensation from the respondents 2 to 6. Aggrieved by the same,

the claimants filed the present appeal claiming the remaining

balance of compensation amount.

9. Heard Sri Mekala Rama Murthy, learned counsel for the

petitioners and Sri Maheswara Rao Kunchem, learned counsel for

respondent No.6.

10. Now, the points for consideration are:

1. Whether the Order of Tribunal needs any interference?

2. Whether the claimants/ appellants are entitled for enhancement of compensation as prayed for?

11. POINT Nos.1 and 2:-

In order to prove the rash and negligent driving of the drivers

of the offending vehicles, the claimants relied on the evidence of

PW1 and PW2 and Ex.A1 to Ex.A5. PW1 is the first petitioner. He

is not an eye-witness to the accident. PW2 is an eye-witness to the

accident. As per his evidence, he was travelling in the car at the

time of accident and due to the rash and negligent driving of the 7 VGKRJ MACMA 2403 of 2012

drivers of both the vehicles, the accident took place and the

deceased and her husband died at the spot itself. On appreciation

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

that the accident in question occurred due to rash and negligent

driving of the drivers of the both the vehicles. I do not find any legal

flaw or infirmity in the said finding given by the Tribunal.

12. As per the case of the petitioners, the deceased used to earn

Rs.5,000/- per month by doing coolie work and the first petitioner is

the son of the deceased, aged about 29 years, second petitioner is

another son of the deceased, aged about 28 years, third petitioner is

the daughter of the deceased, aged about 27 years. The contention

of the claimants is that they are the dependents on the deceased,

because of the death of the deceased, they deprived the income of

the deceased. The contention of the respondents is that the

petitioners 1 and 2 are the married sons, petitioner No.3 is the

married daughter and they are not the dependents on the deceased.

It is not in dispute that the petitioners are the children of the

deceased and they are legal representatives of the deceased. The

law is well settled that it is undeniable that a person claiming to 8 VGKRJ MACMA 2403 of 2012

be a legal representative as the locus to maintain an application

for compensation under Section 166 of the Act. As per Section

166 (5) (3) of the Motor Vehicles Act, where death as resulted

from the accident, by all are any of the L.Rs of the deceased

can file a claim application for claiming compensation for the

death of the deceased. But the Tribunal by recording reasons

held that since the claimants are not the dependents on the

deceased, they are entitled for Rs.50,000/- only under Section

140 of the Motor Vehicles Act.

The law is well settled by the Apex Court in National

Insurance Company Limited Vs. Birender and others1 decided

on 13.01.2020 that the legal representatives of the deceased

have a right to apply for compensation. Having said that, it

must necessarily follow that even the major married and

earnings sons of the deceased being Legal Representatives

have a right to apply for compensation and it would be the

bounden duty of the Tribunal to consider application

irrespective of the fact whether the concerned legal

AIR 2020 SC 434 9 VGKRJ MACMA 2403 of 2012

representative was fully dependent on the deceased and not to

limit the claim towards conventional heads only.

This Court also cannot make any discrimination whether

they are the married sons or married daughters and hence very

contention of the Insurance Company that the married

daughters of the deceased are not entitled for compensation

cannot be accepted and the Court has to take note of rationale

behind in coming to the conclusion of even married sons and

major sons are eligible to claim compensation and hence the

married daughters also entitled for compensation on all the

heads and not to limit only for conventional heads.

13. As per the case of the petitioners, the deceased used to earn

Rs.5,000/- per month. In order to prove the monthly income of the

deceased, no oral or documentary evidence is produced by the

claimants. The accident in question was occurred in the year, 2007.

In those days, an ordinary coolie, aged about 51 to 55 years, can

easily earn Rs.2,000/- per month, i.e., Rs.24,000/- per annum. The

dependents on the deceased are three in number. As per the

decision of Sarla Verma's case, 1/3rd income has to be deducted 10 VGKRJ MACMA 2403 of 2012

towards personal expenses of the deceased. If 1/3rd income is

deducted, the net income available to the dependents on the

deceased is Rs.16,000/- (24,000 - 8,000) per annum. Since the

deceased was aged in between 51 to 55 years, the relevant

multiplier applicable to the age group of the deceased is 11.

Accordingly, an amount of Rs.1,76,000/- (16,000 x 11) is awarded to

the claimants towards loss of dependency. In addition to that the

claimants also entitled an amount of Rs.20,000/- towards loss of

estate and an amount of Rs.10,000/- towards funeral expenses of

the deceased. In total, the appellants/ claimants are entitled an

amount of Rs.2,06,000/- towards compensation. Accordingly, the

claimants are entitled an amount of Rs.1,56,000/- towards enhanced

compensation. Since the accident was occurred because of rash

and negligent driving of drivers of both the vehicles, respondents 2

and 3 has to deposit 50% of enhanced compensation and

respondents 5 and 6 shall deposit remaining 50% of enhanced

compensation.

14. In the result, this appeal is partly allowed, modifying the order

dated 19.03.2012 passed in MVOP No.368/2010 on the file of the 11 VGKRJ MACMA 2403 of 2012

Motor Accident Claims Tribunal-cum- V Additional District Judge

(Fast Track Court), Ongole, consequently the claim amount is

enhanced from Rs.50,000/- to Rs.2,06,000/-. The appellants/

claimants are entitled the enhanced compensation of Rs.1,56,000/-

with interest @6% p.a. from the date of petition, till the date of

realization. The respondents 2 and 3 has to deposit 50% of

enhanced compensation amount and respondents 5 and 6 shall

deposit the remaining 50% of enhanced compensation amount with

interest as ordered above, before the Tribunal within two months

from the date of this judgment. After depositing the enhanced

compensation amount, the claimants are entitled to withdraw their

share of enhanced compensation amount along with accrued

interest thereon equally. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

________________________________ V.GOPALA KRISHNA RAO, J Dated: 14.09.2023.

Note: L.R. copy to be marked b/o.

       sj
                           12                          VGKRJ
                                          MACMA 2403 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.2403 of 2012

14.09.2023

sj