Andhra Pradesh High Court - Amravati

C.Ramachandramma, Died vs C.Sridhar Reddy on 21 August, 2024

                *HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                     AND
                 *HON'BLE SRI JUSTICE NYAPATHY VIJAY
                     +M.A.C.M.A. No.2703 OF 2017
                               % 21.08.2024


#1. C.Ramachandramma (died) and
    others

                                               ......Appellants/Claimants
And:
$1. C.Sridhar Reddy and others.
                                           ....Respondents/Respondents.


!Counsel for the appellant            : Sri S.V.Muni Reddy
^Counsel for the respondents          : Sri Gudi Srinivasulu

<Gist:
>Head Note:
? Cases referred:

   1. (2018) 6 SCC 765
   2. 2022 SCC OnLine SC 1338
   3. (2003) 7 SCC 484
   4. (2021) 11 SCC 780
   5. (2015) 1 SCC 539
   6. (2021) 6 SCC 188
   7. (2021) 2 SCC 166
                                      2
                                                                    (RNT,J& VN,J
                                                      M.A.C.M.A.NO.2703 OF 2017)

                HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                AND
                 HON'BLE SRI JUSTICE NYAPATHY VIJAY

                      M.A.C.M.A. No.2703 of 2017


1. C.Ramachandramma (died) and
    others

                                                    ......Appellants/Claimants
And:
1. C.Sridhar Reddy and others.
                                            ....Respondents/Respondents.



DATE OF JUDGMENT PRONOUNCED                  : 21.08.2024.


SUBMITTED FOR APPROVAL:

                THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                                     AND
                 THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
   1. Whether Reporters of Local newspapers may be
      Allowed to see the judgments?                Yes/No

   2. Whether the copies of judgment may be marked
      to Law Reporters/Journals?                             Yes/No

   3. Whether Your Lordships wish to see the fair
      Copy of the Judgment?
                                                              Yes/No



                                                      ___________________
                                                      RAVI NATH TILHARI, J



                                                       ___________________
                                                       NYAPATHY VIJAY,J
                                    3
                                                           (RNT,J& VN,J
                                             M.A.C.M.A.NO.2703
                                                           703 OF 2017)



APHC010893802017
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI                  [3470]
                          (Special Original Jurisdiction)

         WEDNESDAY ,THE TWENTY FIRST DAY OF AUGUST
              TWO THOUSAND AND TWENTY FOUR

                                PRESENT

        THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

         THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2703/2017

Between:

C.ramachandramma, (died) and Others               ...APPELLANT(S)

                                 AND

C Sridhar Reddy and Others                     ...RESPONDENT(S)

Counsel for the Appellant(S):

   1. S V MUNI REDDY

Counsel for the Respondent(S):

   1. GUDI SRINIVASU

   2. V L SURENDRA

   3.

The Court made the following:
                                         4
                                                                   (RNT,J& VN,J
                                                     M.A.C.M.A.NO.2703 OF 2017)

        THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

           THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2703/2017

JUDGMENT:

(per Ravi Nath Tilhari, J)

Heard Sri S.V.Muni Reddy, learned counsel for the

appellants/claimants and Sri Gudi Srinivas, learned counsel for

respondent No.3-ICICI Lombard Motor Insurance Company (in short

'Insurance Company).

2. The appellants/claimants are the legal representatives of the

deceased viz., Chiyyavaram Rajasekhar Reedy (hereinafter referred as

'deceased'). They filed M.V.O.P.No.714 of 2007 on the file of the Court of

the learned III Additional District Judge-cum-Chairman, Motor Accident

Claims Tribunal, Rajampet (in short 'the Tribunal) under Section 166 of

the Motor Vehicles Act 1988, (in short 'MVA Act'), claiming compensation

for the death of the deceased in a motor vehicle accident, which occurred

at about 1.00 pm., on 26.03.2007.

3. The case of the appellants was that the deceased was

travelling in a jeep, which was proceeding from Tirupathi to Kadapa in a

high speed, and when they reached Cherlapally village, a tractor

belonging to respondent No.2 was going in front of Mahindra Marshal

Jeep bearing No.AP 16 S 4428. Suddenly, a spade fell on the road from

the tractor and the driver stopped the tractor on the middle of the road to

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collect spade. The jeep driver dashed the tractor and thereby, the

accident took place. The jeep belonged to respondent No.1, the brother

of the deceased. The deceased died on the way to the hospital. The

complaint was preferred before the police. Cr.No.23 of 2007 was

registered against the driver of the 1st respondent. It is the further case of

the appellants that if the driver of respondent No.2 had taken

precautionary measures and ought not to have stopped suddenly the

tractor and spade ought not to have fallen on the road, accident ought not

to have occurred. There was clear negligence on the part of the driver of

the 2nd respondent. Negligence on the part of the driver of the 1st

respondent was alleged to be 25%, and of the driver of the 2nd

respondent as 75%. Respondent No.3 was the insurer of respondent

No.2, owner of tractor. The age of the deceased was said to be 53 years

at the time of the accident and his annual income as Rs.10,00,000/-. The

claim was made for Rs.50,00,000/-.

4. The 1st respondent remained exparte.

5. The 2nd respondent owner of the tractor, filed written

statement and denied rash and negligence on the part of his driver.

6. The 3rd respondent-Insurance Company also denied that the

driver of the tractor was rash and negligent at the time of the accident. In

fact, the accident occurred only due to rash and negligent driving of the

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driver of respondent No.1. The other averments in the claim petition were

also denied inter-alia submitting that the appellants be put to strict proof

of their case.

7. The Tribunal framed the following issues :-

1. Whether death of the deceased Chiyyavaram Rajasekhar Reddy son of Jayarami Reddy died owing to rash and negligent driving of the drivers of Mahendra Marsha Jeep bearing No.AP16 S 4428 owned by respondent No.1 and tractor bearing No.AP 04 V 4157 belonging to Respondent No.2 on 26.03.2007 at about 1.00 pm., near Cherlapally near Vontimitta on Rajampet-Kadapa main road ?

2. Whether respondents 1 to 3 are jointly and severally liable for the compensation claimed by the petitioners ?

3. Whether the petitioners 1 to 4 are entitled for compensation as claimed by them ?

4. To what relief ?

8. On behalf of the claimants, the 2nd claimant examined

herself as P.W.1 and the other witnesses were examined as P.Ws.2 to 5,

Exs.A1 to A11 were also marked. On behalf of the respondents, the

Manager of ICICI Lombard General Insurance Company Limited,

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Hyderabad was examined as R.W.1. A copy of the insurance policywas

marked as Ex.B1.

9. The Tribunal recorded the finding that the drivers of the

tractor as well as the jeep were responsible for the accident. They were

rash and negligent to the extent of 50 % each, thereby partly allowed the

claim, vide award, dated 30.06.2017, and granted total compensation of

Rs.16,20,000/- by fixing the liability on respondent Nos.1 & 2 jointly and

severally.

10. On the point of quantum of compensation, the Tribunal

determined the income of the deceased as Rs.15,000/- per month. The

agricultural income of the deceased videEx.A10-Attested copy of

agriculture income certificate, dated 24.03.2007 was not added to his

income, observing the reason, in the absence of any payment of income

tax to that effect. Nothing was awarded towards the future prospects,

observing he was a business man. The Tribunal further recorded that the

claimants failed to establish that the deceased was the business partner

of 28% share in M/s.SSRR Constructions. Ex.A9 attested copy of

partnership deed issued by the Chartered accountant, dated 18.08.2005,

was not relied on as the attestation did not show as to who had attested

the said partnership deed. The genuinity of Ex.A9 was not accepted for

want of proper attestation. The age of the deceased was considered as

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53 years. Taking the annual income as Rs.1,80,000/-, after deducting ¼

towards personal expenses of the deceased and applying the multiplier

of 11, the total dependency was assessed as Rs.14,85,000/-. To the said

amount, a sum of Rs.1,00,000/- towards loss of Consortium, Rs.25,000/-

towards loss of Estate, Rs.5,000/- towards funeral expenses and

Rs.5,000/- towards transport charges were added. Thus, the total

compensation was awarded by the Tribunal came to a sum of

Rs.16,20,000/-. The Tribunal awarded interest @ 7.5 % per annum from

the date of petition till the date of realization.

11. The respondent No.3-Insurance Company has not

challenged the award.

12. The appeal has been filed by the claimants seeking

enhancement of the compensation amount awarded by the Tribunal.

13. Learned counsel for the appellants submits that the Tribunal

erred in holding the contributory negligence on the part of the driver of

the jeep also, as 50%. He submitted that the negligence was more onthe

part of the driver of the tractor, which suddenly stopped on the road to

collect spade. The contributory negligence in any case of the jeep driver

could not be more than 25%. Consequently, the contributory negligence

of tractor driver should be 75%.

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14. Learned counsel for the claimants further submitted that the

agricultural income should have been taken into account. Not adding

such income on the reason assigned is unjustified. The claimants are

entitled for supervisory charges. He further submitted that future

prospects should also be added and under the conventional heads, the

amount awarded is less. The compensation awarded, as such does not

reflect the just compensation.

15. Learned counsel for respondent No.3-Insurance Company

submitted that the jeep belonged to respondent No.1, who was the

brother of the deceased. Any FIR or complaint was not lodged against

the driver or owner of the jeep. The driver of the tractor was examined by

the claimants as P.W.3. There was collusion between the claimants and

the driver of the tractor. The plea of the driver of the tractor that he

stopped the tractor on the middle of the road to collect spade, is an

afterthought. He submitted that though there was no negligence on the

part of the driver of the tractor as per the version of the 3rd respondent,

but the insurance company has not filed any appeal. There is nothing to

indicate that the percentage of the contributory negligence would be 75

% on the part of the driver of the tractor. He further submitted that the

finding has been recorded that the jeep driver was also rash and

negligent in driving his vehicle. If he had maintained a sufficient distance

from the tractor and was not in such a high speed, the accident could

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have been avoided. In the circumstances, the submission is that the

finding on the point of contributory negligence on the part of both the

drivers to the extent of 50% each, deserves no interference. He relied

upon the judgment of the Hon'ble Apex Court in Nishan Singh and

Others V. Oriental Insurance Company Limited and Others 1 , to

contend that 'sufficient distance' would mean at least a safe distance of

two or three seconds gap in ideal conditions to avert collision and allow

the following driver to respond.

16. Learned counsel for respondent No.3 further submitted that

the appellants did not file Income Tax returns to determine the income.

The finding on income is perfectly justified and the compensation

awarded cannot be said to be not a just and fair compensation.

17. We have considered the submissions advanced by the

learned counsels for the parties and have perused the material on record.

18. The points for determination arising in the appeal are as

follows:

"1. Whether the contributory negligence of the driver of the tractor, so also of the jeep, as determined by the Tribunal as 50% each, calls for any interference ?

(2018) 6 SCC 765

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2. Whether the compensation awarded is a just and fair compensation or is it on the lower side, which deserves enhancement in the light of the submissions advanced ?"

POINT No.1 :

19. The Tribunal has recorded finding based on the evidence on

record that there was contributory negligence on the part of the driver of

the tractor as also the jeep, in which the deceased was travelling.

Learned counsel for the appellants has not challenged the finding on the

contributory negligence, which has been attributed to the drivers of both

the vehicles. The only challenge is to the extent of contributory

negligence. So, we shall proceed with that there was contributory

negligence on the part of the driver of the jeep as well.

20. So far as the extent i.e., percentage of contributory

negligence is concerned, there is no criteria to determine. Learned

counsel for the appellants drew our attention to the Paragraph No.-12 of

the award, where the Tribunal has mentioned that the driver of the tractor

was also negligent and rash by way of not taking any precautionary

measures. The spade fell down and he suddenly stopped the vehicle. In

our view, the same only shows the negligence on the part of the driver of

the tractor. But, that could not determine the extent of his negligence.

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With respect to the driver of the jeep also, there is evidence of P.W.4 that

the jeep hit the tractor from behind. The jeep driver was also negligent

as it is evident from the evidence of the claimants/appellants that he was

also driving at high speed, lost control and dashed against the tractor on

the rear side. Further, it has also come on record that the jeep belonged

to the brother of the deceased and P.W.2 is the driver of the jeep. The

claimants even examined the driver of the tractor as their witness i.e.,

P.W.4. The Tribunal on consideration of evidence recorded findings,

based on the appreciation of oral and documentary evidence. Therefore,

we do not find any reason to interfere with such findings in the exercise of

the 1st appellate jurisdiction. The view taken by the Tribunal was that

both the drivers were equally responsible to the extent of 50%

contributory negligence, which is the possible view, with which this Court

in the exercise of appellate jurisdiction, and that too, in the absence of

any evidence shown to us to determine the contributory negligence of the

deriver of jeep as 25% and the driver of the tractor as 75%, finds no

reason to interfere. We, therefore, on point No.1 do not interfere with the

finding on contributory negligence to the extent of 50% each on the part

of both the drivers and maintain the same finding.

POINT No.2 :

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21. So far as the compensation amount is concerned, the age

of the deceased, his income, the ¼ deduction and the multiplier of 11 are

not disputed. There is no challenge on those aspects.

22. The things that are to be determined by this Court are the

agriculture income, and in view thereof, the supervisory charges and

grant of future prospects.

23. On the point of agricultural income, the Tribunal did not

believe Ex.A10-Attested copy of agriculture income Certificate, dated

24.03.2007, observing that Ex.A10 could not be relied upon in the

absence of any payment of Income Tax to that effect. The reason as

assigned, in our view, is not sustainable to disbelieve Ex.A10. The

agricultural income is not subject to income tax. Consequently, even if

Income Tax returns were not filed or there was no proof of payment of

income tax, in the presence of P.W.1 to prove that the deceased had the

agricultural income and in the absence of any contrary evidence, the

agricultural income ought to have been taken into consideration for grant

of supervisory charges.

24. The Hon'ble Apex Court in K. Ramya and Others. Vs.

National Insurance Co. Ltd2., observed that,

2022 SCC OnLine SC 1338

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"21. Now, the sole issue which remains before this court is whether the entire amount under 'Income from House Property and Agricultural Land' should be deducted or not. In this respect, we are guided by the observations of this court in State of Haryana v. Jasbir Kaur3 wherein it was noted that

8. x-x-x-x

The land possessed by the deceased still remains with his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered.

(Emphasis Applied)

22. In our opinion, the abovementioned observations, though made in the context of agricultural land, would also be applicable to rent received from leased out properties as the loss of dependency arises mainly out of loss of management capacity or efficiency. As a rule of prudence, computation of any individual's managerial skills should lie between 10 to 15 per cent of the total rental income but the acceptable range can be increased in light of specific circumstances. The appropriate approach, therefore, is to determine the value of managerial skills along with any other factual considerations".

25. Accordingly, we award the supervisory charges @ 15% on

the agricultural income of Rs.5,00,000/- based on Ex.A10 i.e.,

Rs.75,000/-

(2003) 7 SCC 484

(RNT,J& VN,J M.A.C.M.A.NO.2703 OF 2017)

26. As discussed above, the future prospects have been denied

on the ground of age and occupation of the deceased. In the case of

National Insurance Company Limited Vs. Pranay Sethi and Others,

on the point of future prospects, the Hon'ble Apex Court has held as

under :

"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case 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 method of computation. The established income means the income minus the tax component."

27. We are of the view that in view of the Pranay Sethi

judgment, the claimants are entitled for the future prospects @10%, in

(RNT,J& VN,J M.A.C.M.A.NO.2703 OF 2017)

addition, on total income including the agricultural income. Accordingly,

we grant the same.

28. Additionally, the claimants are entitled for an amount of

Rs.48,000/- to each of the claimants being Rs.1,92,000/- for loss of

Consortium, towards funeral expenses Rs. 18,000/- and towards loss of

estate Rs.18,000/-, in view of a three-Judge Bench of the Hon'ble Apex

Court in United India Insurance Co. Ltd. vs. Satinder Kaur @

Satwinder Kaur and Ors 4 ., after considering Pranay Sethi (Supra),

observed that the aforesaid conventional heads are to be revised every

three years @ 10%. Accordingly, the three Conventional Heads are

increased by 20%.

29. Thus considered, the claimants/appellants are entitled in

total to the following amount of compensation.

                             Head                     Compensation Awarded
S. No.

    1.                 Net Annual Income                    Rs. 1,80,000/-

    2.         Supervisory charges on Agricultural             75,000/-
                        Income @15%                  (i.e., 15% of Rs. 5,00,000/-)

    3.                  Future Prospects                      Rs. 25,500/-
                                                      (i.e., 10% of the income)
                                                        Total = Rs. 2,80,500/-

    4.            Deduction towards personal                 Rs.70,125/-
                         expenditure
                          (i.e.1/4th )



    (2021) 11 SCC 780

                                                                      (RNT,J& VN,J
                                                        M.A.C.M.A.NO.2703 OF 2017)


    5.                     Total income                        Rs. 2,10,375/-

6. Multiplier of 11 at the age of 53 years 11 x 2,10,375/- = Rs.23,14,125/-

i.e.

7. Conventional Heads:

               i)       Loss of Consortium                     Rs. 1,92,000/-
                                                             (Rs. 48,000/- x 4)

               ii)      Loss of Estate                          Rs. 18,000/-

               iii)     Funeral expenses                        Rs. 18,000/-

    8.                 Total Compensation                     Rs. 25,42,125/-

30. The Tribunal granted interest at the rate of @ 7.5% p.a. In

Kumari Kiran vs. Sajjan Singh and others,5 the Hon'ble Apex Court set

aside the judgment of the Tribunal therein awarding interest @ 6% as

also the judgment of the High Court awarding interest @7.5% and

awarded interest @ 9% p.a. from the date of the claim petition. In Rahul

Sharma & Another vs. National Insurance Company Limited and

Others,6the Hon'ble Apex Court awarded @ 9% interest p.a. from the

date of the claim petition. Also, in Kirthi and another vs. Oriental

Insurance Company Limited, 7 the Apex Court allowed interest

@ 9% p.a.

31. Accordingly, on the aforesaid amount the claimants are

granted interest @ 9 % p.a. from the date of the claim petition