Andhra Pradesh High Court - Amravati

Pasam Masthanamma , Prakasam Dist And 2 ... vs Sudanagunta Sudhakara Rao, Prakasam ... on 3 October, 2024

APHC010044212017

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3367]
                          (Special Original Jurisdiction)

           THURSDAY ,THE THIRD DAY OF OCTOBER
             TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
                    NO: 486/2017

Between:
Pasam Masthanamma , Prakasam Dist And 2 ...APPELLANT(S)
Others and Others
                          AND
Sudanagunta Sudhakara Rao Prakasam Dist ...RESPONDENT(S)
And 2 Others and Others

Counsel for the Appellant(S):
  NUTHALAPATI KRISHNA MURTHY

Counsel for the Respondent(S):
  N RAMA KRISHNA

The Court made the following:

JUDGMENT:

This appeal is directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-

Principal District Judge, Prakasam at Ongole (hereinafter

called as 'the Tribunal') in M.V.O.P.No.295 of 2015 dated

02.12.2016.

2. The claimants, who are the wife and children of one

Pasam Subbarao (hereinafter referred to as "deceased")

respectively, are the appellants. Respondent Nos.1 to 3 are

the owner, driver and insurer of the Tipper Lorry bearing

No.AP 27 X 2799 (hereinafter referred to as "crime lorry").

3. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the tribunal.

4. The case of the claimants, in the petition before the

Tribunal is that:

i). On 15.10.2015 at about 06.00 a.m., while the

deceased proceeding on his TVS XL Moped bearing

No.AP 27 AR 8481 along with aluminum vessels to

sell the same in surrounding villages, when he

reached Akkacheruvu Village crossroad, the crime

lorry driven by the 2nd respondent in a rash and

negligent manner with high speed without blowing

horn, dashed the said moped and dragged it about

20 meters, resulted the left forehand of the deceased

was separated and he sustained severe injuries.

While shifting the deceased to the Government

Hospital, Ongole for treatment, he succumbed to

injuries.

ii). The deceased used to earn Rs.7,000/- to

Rs.8,000/- per month by selling Aluminum Vessels.

Being dependents, they claimed compensation of

Rs.9,00,000/- against the owner, driver and insurer

of the crime lorry.

5. The respondent No.3/insurer filed written statement

denying the averments in the petition and pleaded that there

is no rash and negligence on the part of the driver of the

crime lorry in causing the incident and the incident occurred

only due to the negligence on the part of the deceased; that

the compensation claimed by the claimants is excessive and

thereby, prayed to dismiss the petition.

6. The Tribunal settled the following issues for enquiry

basing on the material:

"1.Whether the death of the deceased Pasam Subba Rao had occurred due to the injuries received in the accident on 15.10.2015 at 07.45 A.M. caused by the

rash and negligent driving of the Lorry (Tipper) bearing No.AP 27 TX 2799, by its driver?

2.Whether there was any contributory negligence on the part of the deceased in riding the TVS XL bearing No.27 AR 8481?

3.Whether the petition is bad for non-joinder of necessary parties?

4.Whether the petitioners are entitled for compensation, if so to what amount and against whom? and

5.To what relief?"

7. During enquiry, on behalf of the claimants, PWs.1 to 3

were examined and Exs.A.1 to A.10 were marked. On behalf

of the 3rd respondent, none were examined, however, Ex.B.1

policy schedule was exhibited with consent.

8. On the material, the Tribunal, having come to the

conclusion that the accident occurred due to the rash and

negligent driving of the crime lorry by its driver, held that the

claimants are entitled for the compensation of Rs.5,78,000/-,

with interest at 7.5% per annum from the date of petition till

the date of realization against the respondent Nos.1 to 3, for

the death of the deceased in the accident.

9. It is against the said award; the present appeal was

preferred by the appellants/claimants.

10. Heard Sri Nuthalapati Krishna Murthy, learned counsel

for the appellants/claimants and Sri N.Rama Krishna,

learned counsel for the 3rd respondent/insurer.

11. Sri Nuthalapati Krishna Murthy, learned counsel for

the appellants/claimants submits that as per Ex.A.1 the age

of the deceased by the time of incident was 35 years, but the

tribunal failed to consider the same; that the Tribunal erred

in taking the income of the deceased as Rs.150/- per day

even the unskilled labour is getting more than Rs.300/- per

day, thereby, the claimants are entitled for compensation as

claimed before the Tribunal.

12. Sri N.Rama Krishna, learned counsel for the 3rd

respondent/insurer submits that the Tribunal after

considering the material on record rightly calculated the

compensation entitled by the claimants, thereby, there are no

valid grounds to interfere with the order of the Tribunal, as

such, prays to dismiss the appeal.

13. Now, the only point that arises for determination is

"whether the Tribunal granted just compensation as entitled

by the claimants?"

14. POINT:

It is not in dispute about the death of the deceased,

involvement of crime lorry in the incident, rash and

negligence on the part of the driver of the crime lorry in

causing the incident as well Ex.B.1 policy issued by the

insurer for the crime lorry is in force by the time of incident.

It is also an undisputed fact that the insurer of the crime

lorry did not prefer any appeal against the award passed by

the Tribunal.

15. The only contention of the learned counsel for the

appellants/claimants is that the Tribunal erred in calculating

the compensation entitled by the compensation.

16. To prove the income of the deceased as claimed, the

claimants examined P.W.3, who is close relative of deceased,

in support of the testimony of P.W.1. He (P.W.3) testified that

the deceased used to sell aluminum vessels in and around

Darsi areas and used to earn an amount of Rs.7,000/- to

Rs.8,000/- per month and contributing the same for the

family members. But the Tribunal taken the income of the

deceased as Rs.150/- per day. It is not in dispute that by the

time of incident, the deceased used to sell aluminum vessels

in nearby villages and getting income. Thereby, in view of the

above circumstance, this Court can fix the notional income of

the deceased as Rs.300/- per day. Thereby, the actual

income of the deceased is determined at Rs.1,08,000/- per

annum.

17. Coming to the age of the deceased by the time of

incident is concerned, the claimants pleaded that by the time

of incident the deceased was aged 35 years as per Ex.A.1

Aadhar card. But, on perusal of Exs.A.2, A.5 and A.6 F.I.R.,

Inquest report and Postmortem report respectively, which are

also produced and relied upon by the claimants, it is

categorical that the deceased was aged 48 years by the time

of incident. Thereby, the Tribunal basing on the above said

material, rightly arrived the conclusion regarding age of the

deceased by the time of incident as 48 years.

18. As per the decision of the Constitution Bench of the

Apex Court in National Insurance Company Limited v.

Pranay Sethi1, the deductions towards personal and living

expenses of the deceased, held at Paragraph No.39 as follows:

39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, Sarla Verma lays down: -

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised

1 (2017) 16 SCC 680

deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

19. As per the Pranay Sethi case (referred supra), at para

59.4. it is held " 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."

(emphasis supplied)

20. In the present case, as per the above-mentioned

decision, 25% of actual income has to be added to the income

of the deceased towards future prospects since the deceased

is in the age group of 46 to 50 years. After adding 25% to the

income of the deceased towards future prospects his income

is determined at Rs.1,35,000/-(Rs.1,08,000/- + Rs.27,000/-).

21. In the case on hand, the deceased was married, he had

wife and two children, thereby the deduction towards

personal and living expenses of the deceased should be 1/3

from the income of the deceased. Then the quantum is

determined as Rs.90,000/-.

22. Regarding just compensation, in a decision of Hon'ble

Supreme Court between Sandeep Khanuja vs Atul Dande

& Anr2, at Paragraph Nos.11 and 12 held as follows :

11.........it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident.........

12......... While applying the multiplier method, future prospects on advancement in life and career are

2 2017 (3) SCC 315

taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be.......

....... there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.".......

23. In the present case, the appropriate multiplier

applicable to the age ground of the deceased i.e., between 46

to 50 years is 13. The total loss of dependency is determined

at Rs.11,70,000/- (Rs.90,000/- x 13). Apart from that, as

per the Pranay Sethi case (referred to supra) as well New

India Assurance Company Limited v. Somwati3, an

amount of Rs.1,20,000/- towards spousal and parental

consortium, an amount Rs.15,000/- towards funeral

expenses and Rs.15,000/- towards love and affection are

awarded. In total the claimants are entitled to compensation

of Rs.13,20,000/-. The remaining heads as claimed and

awarded by the Tribunal are not applicable to the present

case on hand, in view of the above pronouncement of Hon'ble

Supreme Court.

24. A brief exposition of the calculation made to arrive at

the compensation is set out infra:

  S.No. Heads                           Calculation

  1       The annual income of the Rs.1,08,000/- per annum
          deceased.



3 (2020) 9 SCC 644





 2      25% of above(1) to be (Rs.1,08,000/-               +
        added     as    future
        prospects              Rs.27,000/-)

                                  Rs.1,35,000/-


 3      1/3rd to be deducted as Rs.90,000/-.
        personal   expenses  of
        deceased.

 4      Compensation arrived at (Rs.90,000/-   x          13)
        on      application  of
        multiplier 13.          Rs.11,70,000/-

 5      Loss of spousal and Rs.1,20,000/-
        parental consortium

        (wife and two children)

 6      Loss of estate            Rs.15,000/-

 7      Funeral expenses          Rs.15,000/-

        Total    compensation Rs.13,20,000/-
        awarded(Rows 4+5+6+7)

25. Having regard to the above discussion, this Court is of

the considered opinion that the order of the tribunal can be

modified to the extent of enhancing the compensation from

Rs.5,78,000/- to Rs.13,20,000/- only. It is needless to say,

in view of the above discussion, the other findings arrived by

the Tribunal shall remain unaltered. Thus, this point is

answered accordingly.

26. In the result, M.A.C.M.A. is allowed to enhance the

compensation from Rs.5,78,000/- to Rs.13,20,000/- with

interest at 7.5% per annum, with proportionate costs, from

the date of petition till the date of realization against the

respondent Nos.1 to 3. Respondent No.3/insurer shall deposit