K Savithri, Srikakulam Dist 2 Others vs S Ramu, Visakhapatnam 2 Others
2024 Latest Caselaw 3728 AP

Andhra Pradesh High Court - Amravati

K Savithri, Srikakulam Dist 2 Others vs S Ramu, Visakhapatnam 2 Others on 1 May, 2024

APHC010880732016

                   IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
                                                                      3364
                            WEDNESDAY, THE FIRST DAY OF MAY
                            TWO THOUSAND AND TWENTY FOUR

                                   PRESENT

           THE HON'BLE SRI JUSTICE A V RAVINDRA BABU
 MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.1760 OF 2016

Between:
1. Kalivarapu Savitri,
   W/o.Late Prasada Rao,
   Aged 45 Years, Household Duties.

2. Kalivarapu Manmadha Rao,
   S/o. Prasada Rao, Aged 25 Years,
   (R-1 & R-2 are R/o.D.No.3-68,
   Chilakapalaem Junction,
   Etcherla Mandal, Srikakulam District).

3. Kalivarapu Laxmi,
   W/o.Kalivarapu Prasada Rao,
   Aged 20 Years, Household Duties,
   R/o.Adapaka Village, Laveru Mandal,
   Srikakulam District.                      ---       Appellants
                                             and
1. Saragada Ramu,
   S/o.Late Rambabu,
   Aged 48 Years, Driver of Car
   No.TN-07-AF-2656,
   R/o.Santhinagar, Kailasapuram,
   Visakhapatnam, Badge No.187081987,
   DC.No.DLRAPC-31498492009.

2. M. Sundari,
   W/o.Muruganandam,
   Aged 40 Years,
   R/o.D.No.16-30,
   Arimuthu Achari Street,
   Triplicane, Chennai, Tamilnadu State.

3. National Insurance Company Limited,
   Rep. By its Divisional Manager,
   Vellore, Tamilnadu State.                 ---       Respondents

The Court made the following Judgment:

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Challenge in this Motor Accidents Civil Miscellaneous Appeal is to the Order, dated 13.01.2016, in M.V.O.P. No.151 of 2014 on the file of Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Srikakulam (for short, 'the Tribunal') whereunder the Tribunal dealing with the claim of compensation sought by the claimants to a tune of Rs.9,36,000/- for the death of Kalivarapu Prasada Rao (hereinafter referred to as 'the deceased') in a motor vehicle accident occurred on 08.02.2011, awarded a sum of Rs.3,82,000/- towards compensation.

2. The parties to this Appeal will hereinafter be referred to as described before the Tribunal, for the sake of convenience.

3. The case of the claimants, in brief, according to the averments set out in the claim, before the Tribunal, is that first petitioner is the wife, second petitioner is the son and third petitioner is the daughter of the deceased. They are residing at Chilakapalem Junction in Etcherla Mandal. Third petitioner is residing at Adapaka village in Laveru Mandal of Srikakulam District. The deceased was living by doing tiffin and pakodi business at Chilakapalem Junction and used to earn the net income of Rs.9,000/- p.m. On 08.02.2011 after completion of business, he was proceeding on his moped bearing No.AP 30 H 9237 to go to Allinagaram on his personal work. He reached Allinagaram junction at about 11:00 a.m. The first respondent being the driver of the Car bearing No.TN 07 AF 2656 (hereinafter referred to as 'the offending vehicle') drove the same in a rash and negligent manner and dashed against the deceased from his behind at Allinagaram Junction on National Highway road,

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as a result of which he fell down on the road and sustained grievous head and other injuries and became un-conscious. After the accident, he was taken to RIMS General Hospital, Srikakulam for treatment. On the advice of Medical Officer, RIMS General Hospital, Srikakulam, the deceased was shifted to Surya Hospital, Visakhapatnam on 09.02.2011 for better treatment. The deceased underwent treatment as inpatient in Surya Hospital, Visakhapatnam from 09.02.2011 to 24.02.2011 and was discharged on 25.02.2011 and brought to his house. While he was taking treatment in his house on 28.03.2011, in consequence of the injuries received by him in the accident, he died. Originally, Etcherla Police registered a case in Crime No.28 of 2011 for the offence under Section 338 IPC and after death of the deceased the section of law was altered from Section 338 IPC to 304-A IPC. The concerned Police, after due investigation, filed charge sheet in C.C. No.407 of 2013 on the file of the Judicial Magistrate of First Class, Srikakulam. The deceased was the only earning member in their family and due to his death, the petitioners are facing much financial crisis. Hence, they are entitled to the compensation of Rs.9,36,000/-

4. First and second respondents/driver and owner of the offending vehicle remained ex parte.

5. Third respondent/insurer of the offending vehicle got filed a counter denying the contentions of the petitioners and further contending that the petitioners have to prove that the first respondent had a valid and effective driving license to drive the offending vehicle. Second respondent handed over the offending

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vehicle to the first respondent in violation of the terms and conditions of the insurance policy. Compensation claimed is excessive.

6. Third respondent/insurer got filed an additional counter contending in substance that the accident was occurred on account of the rash and negligent act of the deceased while riding his motorcycle on the National Highway without proper care as such the Petition is liable to be dismissed.

7. The Tribunal, on the basis of the aforesaid pleadings, settled the following issues for trial:

1. Whether the deceased-Kalivarapu Prasada Rao, S/o.Late Sanjeeva Rao died on account of the injuries sustained by him in the motor vehicle accident that took place on 08.02.2011 at about 11:00 a.m. on N.H.16 Road, near Allinagaram junction of Etcherla Mandal in Srikakulam District? If so, whether the accident took place due to the rash and negligent driving of the car bearing No.TN-07-AF-2656 by its driver?

2. Whether the petitioners are entitled to claim any compensation for the death of the deceased-Kalivarapu Prasada Rao, S/o.Late Sanjeeva Rao? If so, to what amount and from whom?

3. To what relief?

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8. During the course of trial on behalf of the petitioners before the Tribunal, PWs.1 and PW.2 were examined and Exs.A-1 to A-4 were marked. On behalf of the contesting third respondent/insurer, none were examined and no documents were marked.

9. The Tribunal, on hearing both sides and after considering the oral and documentary evidence on record, answered the issues in favour of the claimants and awarded compensation of Rs.3,82,000/- and apportioned Rs.2,32,000/- in favour of the first petitioner/wife; Rs.1,00,000/- in favour of to the 2nd petitioner/son and Rs.50,000/- in favour of the third petitioner/daughter.

10. The appellants/claimants, feeling that the compensation awarded by the Tribunal is not at all just and reasonable, filed the present Appeal.

11. As against the findings of the Tribunal that the accident was occurred due to rash and negligent driving made by the driver of the offending vehicle i.e., by the first respondent, there is no cross- objection or cross-appeal filed by the respondents. So, the scope of the present Appeal is very limited.

12. Now in deciding the present Appeal, the simple question that falls for consideration is:

Whether the order of the Tribunal, dated 13.01.2016, in M.V.O.P. No.151 of 2014, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge, Srikakulam is sustainable under law and facts

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and whether there are any grounds to interfere with the same?

POINT:

13. Sri Aravala Rama Rao, learned counsel for the appellants/claimants, would contend that the deceased was self employed. Even in the charge sheet it was averred that the deceased was doing pakodi (eatables) business. The Tribunal considering the monthly income of the deceased as Rs.3,000/- and deducted 1/3rd of the same towards his personal expenses. The contention of the appellants/claimants is that the deceased was earning net income of Rs.9,000/- p.m. He would submit this Court may consider the monthly income of the deceased from Rs.5,000/- pm. to Rs.7,000/- p.m.

14. Smt. S.A.V. Ratnam, learned counsel for the third respondent/insurer, would contend that as there was no proof regarding the income of the deceased, the Tribunal considered the income of the deceased as Rs.3,000/- p.m. and accordingly awarded reasonable compensation in the facts and circumstances of the case.

15. PW.1 was no other than the first claimant who put forth the facts in tune with the pleadings and through her examination, Exs. A-1 to A-4 were marked. Petitioner examined PW.2, direct witness to the occurrence, to speak of the accident. As there was no cross- objection or cross-appeal with regard to the rash and negligent act

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against the first respondent/driver of the offending vehicle, which is held to be proved, the evidence of PW.1 and PW.2 in this regard need not be extracted here.

16. Coming to the income attributed against the deceased by the claimants, their contention is that the deceased was doing tiffin and pakodi business at Chilakapalem junction in Srikakulam District. Though the contesting respondent denied the evidence of PW.1 in this regard but the Tribunal looked into Ex.A-1 - FIR and Ex.A-2 - charge sheet, which revealed that the deceased was doing pakodi business at Chilakapalem junction. So, even according to the findings recorded by the Tribunal, the deceased was running pakodi cart at the Chilakapalem junction. It is to be noted that the accident was happened in the year 2011. In 2011, even a person who was doing manual labour could easily earn as Rs.150/- per day, thereby Rs.4,500/- p.m. when the deceased was running a pakodi cart at Chilakapalem Junction, it cannot be held that he was getting the only income of Rs.3,000/- p.m. The Tribunal did not look into the ground situation properly. The deceased was admittedly a self employed person. It was very difficult for the deceased to sustain his earnings by running a pakodi cart just by getting Rs.100/- per day. Hence, in view of the facts and circumstances, the evidence on record warrants this Court to consider the income of the deceased as Rs.150./- per day, thereby Rs.4,500/- p.m. As the family members of the deceased are 3 in number in view of the decision of the Hon'ble Apex Court in Sarla Verma and others v. Delhi Road

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Transport Corporation and another1, 1/3rd of his income has to be deducted towards his personal expenses, thereby the income which the deceased would have contributed to his family comes to Rs.3,000/- p.m., thereby Rs.36,000/- p.a. There is also no dispute about the age of the deceased as 47 years at the time of his death. In view of the decision of the Hon'ble Apex Court in Sarla Verma (2nd supra), the appropriate multiplier applicable to the deceased is

13. So, the multiplicand is to be arrived at is Rs.36,000/- x 13 = Rs.4,68,000/-. It is to be noted that in view of the decision of the Hon'ble Apex Court in Pranay Sethi (1st supra), the claimants are entitled to claim an amount of Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively under the conventional heads i.e., towards consortium, loss of estate and funeral expenses which amounts to Rs.70,000/-. The Tribunal under the aforesaid three heads awarded compensation of Rs.30,000/-, Rs.20,000/- and Rs.20,000/- respectively. Further, in view of the decision of the Hon'ble Apex Court in Pranay Sethi (1st supra), the claimants are entitled to 25% towards future prospects of the deceased since he is a self employed person. The Hon'ble Apex Court in Pranay Sethi (1st supra), held as follows at Para No.61 (iv):

"(iv) 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

AIR (2009) SC 3104

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necessary method of computation. The established income means the income minus the tax component".

17. Hence, 25% of Rs.4,68,000/- comes to Rs.1,17,000/-. So the multiplicand including the future prospects of 25% would be Rs.5,85,000/-. Further, in view of the decision of the Hon'ble Apex Court in Pranay Sethi (1st supra), the amount of compensation to be awarded under the conventional heads is Rs.70,000/-. The first petitioner is no other than the wife of the deceased as such she is entitled to the amount of Rs.70,000/- to be awarded under the conventional heads. So, the total compensation which the claimants are entitled is Rs.6,55,000/-.

18. In the result, the Motor Accidents Civil Miscellaneous Appeal is allowed in part enhancing the compensation awarded by the Tribunal from Rs.3,82,000/- to that of Rs.6,55,000/- with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit by directing all the respondents jointly and severally to deposit the total compensation amount within one month from this date. The compensation amount of Rs.6,55,000/- is to be apportioned as Rs.4,00,000/- to the first petitioner/wife; Rs.1,50,000/- to the second petitioner/son and Rs.1,05,000/- to the third petitioner/daughter of the deceased respectively. On such deposit, the petitioners are at liberty to withdraw the entire amount. No order as to costs.

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Consequently, Miscellaneous Applications pending, if any, shall stand closed.

___________________________ JUSTICE A.V.RAVINDRA BABU Date: 01.05.2024 DSH