Tummalapalli Vijaya Lakshmi ... vs Benjimen Denial Pratap Died 4 ...
2023 Latest Caselaw 4527 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                       M.A.C.M.A.No.440 of 2012

JUDGMENT:

Aggrieved by the award dated 19.09.2011 passed by the

Chairman, Motor Accident Claims Tribunal-cum-Principal District

Judge, East Godavari at Rajahmundry, in M.V.O.P.No.714 of 2009,

whereby the Tribunal awarded a total compensation of

Rs.7,00,320/- to the petitioners as against their claim of

Rs.20,00,000/-, this instant appeal is preferred by petitioner Nos.1

and 2 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 against the respondents

praying the Tribunal to award an amount of Rs.20,00,000/- towards

compensation for the death of T. Satyanarayana, who is husband of

VGKR,J MACMA No.440 of 2012

1st petitioner, father of 2nd petitioner and son of 3rd petitioner, in a

motor vehicle accident that occurred on 03.03.2009.

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

On 03.03.2009 at about 5.00 p.m. the deceased was

proceeding on his motor cycle from Pandalapaka towards

Ramachandrapuram slowly and cautiously on left side of the road

margin and stopped the motor cycle at Watermelon shop of

Talupulamma lova road, at that time, a lorry bearing registration

No.AP 5TU 0435 being driven by its driver in a rash and negligent

manner at high speed without blowing horn came in opposite

direction and dashed the motor cycle of the deceased and the lorry

wheels ran over the forehead of the deceased resulting in his

instantaneous death. The S.H.O., Rayavaram P.S. registered a

case in crime No.13 of 2009 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 lorry.

During pendency of the petition, the 1st respondent died, and being

VGKR,J MACMA No.440 of 2012

his wife, the 4th respondent was impleaded. Hence, all the

respondents are liable to pay compensation to the petitioners.

5. Respondent Nos.1, 2 and 4 were set ex parte. The 3rd

respondent/Insurance company filed a written statement by denying

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

It is pleaded that the accident occurred only due to negligence of the

deceased in riding his motor cycle, the driver of the offending lorry

was not holding valid and effective driving licence at the time of

accident and thereby, the 2nd respondent violated the conditions of

the policy, as such, the Insurance company is not liable to pay any

compensation.

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

following issues for trial:

1. Whether the accident was due to rash and negligent driving of lorry bearing No.AP 5TU 0435 by its driver the 1st respondent herein?

2. Whether the petitioners are entitled for compensation amount claimed? If so, from which of the respondents?

VGKR,J MACMA No.440 of 2012

3. To what relief?

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

the petitioners, P.Ws.1 to 3 were examined and Exs.A.1 to A.7 and

Exs.X.1 and X.2 were marked. On behalf of the 3rd

respondent/Insurance company, no oral or documentary evidence

was adduced.

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 lorry and

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

Rs.7,00,320/- 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 respondent Nos.2 to 4.

Being aggrieved by the impugned award, the claim petitioner Nos.1

and 2 filed the instant appeal for enhancement of the compensation.

VGKR,J MACMA No.440 of 2012

9. Heard learned counsels for both the parties 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: In order to prove the rash and

negligent driving of the driver of the offending lorry, the petitioners

relied on the evidence of P.Ws.1 and 2. P.W.1 is not an eye witness

to the accident, therefore, his evidence cannot be relied upon.

P.W.2 is an eye witness to the accident. As per his evidence, the

accident took place due to rash and negligent driving of the driver of

the offending lorry, which is well corroborated by Ex.A.1-first

information report and Ex.A.5 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 lorry. No appeal or cross-objections is filed

VGKR,J MACMA No.440 of 2012

by the 3rd respondent/Insurance company against the said finding.

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

the Tribunal.

12. Coming to the compensation, the petitioners filed Ex.A.7-SSC

certificate of the deceased issued by the Board of Secondary

Education which shows that the deceased was born on 01.10.1955

and the accident in question occurred on 03.03.2009, so, by the

date of death of the deceased, he was aged about 53 years five

months. Admittedly, the deceased was working as Assistant

Veterinary Officer in Animal Husbandry. As per Ex.A.6-salary

certificate, the gross salary of the deceased was Rs.23,137/- p.m..

After deducting the statutory deduction i.e., Rs.200/- towards

profession tax, the net salary of the deceased would come to

Rs.22,937/- i.e., Rs.2,75,244/- per annum. As the deceased was a

permanent employee and he was aged 53 years at the time of

accident, as per the decision of the Hon'ble Apex Court in National

VGKR,J MACMA No.440 of 2012

Insurance Company Limited Vs. Pranay Sethi1, 15% from out of

the annual income has to be added towards future prospects, and

accordingly, the annual income of the deceased is arrived at

Rs.3,16,530/- (Rs.2,75,244/- + Rs.41,286/-), from out of which, 20%

has to be deducted towards income tax. Having so deducted, an

amount of Rs.2,53,224/- (Rs.3,16,530/- - Rs.63,306/-) is available

towards annual contribution to the family members of the deceased.

The dependants on the deceased are three in number. As per the

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

Transport Corporation2, 1/3rd from out of the annual income has to

be deducted towards personal expenses of the deceased. If it is

deducted, the annual contribution to the family members of the

deceased is arrived at Rs.1,68,816/- (Rs.2,53,224/- - Rs.84,408/-).

As stated supra, the deceased was aged 53 years as on the date of

accident, the relevant multiplier applicable to the age group of the

deceased is "11", as per the judgment of the Hon'ble Supreme Court

2017 (16) SCC 680

2009 (4) SCJ 91

VGKR,J MACMA No.440 of 2012

in Sarla Varma case and the loss of dependency is arrived at

Rs.18,56,976/- (Rs.1,68,816/- x multiplier '11'). In addition to that,

an amount of Rs.30,000/- is awarded towards loss of consortium to

the 1st petitioner and Rs.10,000/- is awarded towards funeral

expenses of the deceased. In total, a sum of Rs.18,96,976/- is

awarded towards compensation to the petitioners.

13. The 3rd respondent/Insurance company in their written

statement admitted that the offending lorry of the 2nd respondent

was insured with their Insurance company under a valid policy and

the policy was also in force. Though the 3rd respondent contended

that the 1st respondent was not holding valid and effective driving

licence and thereby the 2nd respondent violated the terms and

conditions of the policy, but no evidence was adduced to

substantiate the said contention. Therefore, respondent Nos. 2 to 4

are liable to pay the compensation to the petitioners.

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

compensation of Rs.7,00,320/- awarded by the Tribunal to

VGKR,J MACMA No.440 of 2012

Rs.18,96,976/-. Respondent Nos.2 to 4 are directed to deposit the

enhanced compensation of Rs.11,96,656/- with interest at 6% 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

Rs.8,00,000/- with interest at 6% p.a. thereon, the 2nd petitioner,

who is son of the deceased, is entitled to withdraw Rs.2,26,656/-

with interest at 6% p.a. thereon, and the 3rd respondent/5th

respondent in the appeal, who is father of the deceased, is entitled

to withdraw Rs.1,30,000/- with interest at 6% p.a. thereon. No order

as to costs.

Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

______________________________ V.GOPALA KRISHNA RAO,J th 26 September, 2023 cbs

VGKR,J MACMA No.440 of 2012

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No.440 of 2012

26th September, 2023 cbs