Smt. B.Easwaramma vs P.M.Pramod
2021 Latest Caselaw 4321 Tel

              HON'BLE SRI JUSTICE P.NAVEEN RAO
                             AND
              HON'BLE SMT. JUSTICE P.SREE SUDHA

           MACMA Nos. 630 of 2015 AND 3003 of 2017

                         COMMON JUDGMENT
                       (per Justice P.Sree Sudha)


1.

Since both the appeals arise out of a common Award, they

are being disposed of by this common judgment.

2. The appellants herein filed OP.No.No.208 of 2007 on the file

of the Motor Vehicle Accidents Claims Tribunal-cum-X Additional

Chief Judge, City Civil Court at Hyderabad (for short, the Tribunal)

seeking compensation of Rs.60,00,000/- for the death of Bodepudi

Gopichand, who died in a road accident. The Tribunal, on

consideration of entire evidence on record, granted total

compensation of Rs.3,76,549/- together with interest @ 7.5% per

annum from the date of petition by its Award dated 29.11.2014.

Aggrieved by the same, the United India Insurance Company

Limited also filed MACMA No.630 of 2015, while the claimants filed

MACMA.No.3003 of 2017 seeking enhancement of compensation.

3. The claimants mainly contended that there was an error

apparent on the face of the Award in awarding the compensation.

Even as per the calculation, the loss of dependency ought to be

taken into consideration at Rs.30,18,588/- instead of

Rs.3,76,549/- as awarded by the Tribunal. Their further

contention is that as per Ex.A8, the income of the deceased was

established as he was drawing Rs.3,75,000/- per annum, which is

Rs.31,250/- per month, but the Tribunal took into consideration

meagre amount of Rs.19,730/- per month. They also examined

P.Ws.2 and 3 and filed Ex.A-12 offer letter of appointment which

confirms his annual gross pay at Rs.5,40,000/- apart from other

allowances. If the deceased would have survived, he would have

drawn Rs.8,11,728/- per annum. Apart from the same, the

Tribunal failed to evaluate the future prospects as per the

judgment of the Apex Court in NATIONAL INSURANCE CO. LTD.,

V/s. PRANAY SETHI1, as per which, the claimants are entitled

@ 50% on the income of the deceased. The claimants had also filed

written arguments along with case law.

4. In MACMA No.630 of 2015, the Insurance Company

contended that the deceased B.Gopichand was riding the motor

cycle bearing Registration No.KL4K 2923 in a rash and negligent

manner and the accident had occurred due to his self negligence

and that the Tribunal instead of dismissing the O.P. allowed it

erroneously. P.W.5 was not a witness in the charge sheet and Issue

Nos.1 and 2 were wrongly decided and that considering the age of

the deceased, the multiplier is to be taken as '9' as the first

claimant was aged about 57 years and that the deceased was a

bachelor, but the Tribunal wrongly applied '17' multiplier for

computing loss of dependency and that the liability fastened on the

first and second claimants for payment of Rs.3,76,549/- is

improper.

5. At the outset, from the perusal of the Award in Issue Nos.1

and 2, it is apparent that the Tribunal took the loss of income per

month at Rs.14,797.50 Ps., but inadvertently it did not take the

annual income in calculating the loss of dependency with the

2017 (16) SCC 680

appropriate multiplier. As such, there is error apparent on the face

of the record and the same had to be rectified by the claimants

themselves in the Tribunal by filing a review petition, to which

learned counsel for the claimants would submit that in the

meanwhile the Insurance Company preferred MACMA No.630 of

2015, and as such the review petition filed by them was dismissed.

6. Learned counsel for the Insurance Company would contend

that there was contributory negligence on the part of the deceased,

but the Tribunal failed to consider the same. A perusal of the

record would show that the Insurance Company had not taken the

plea of contributory negligence either in the counter and was not

elicited in the cross-examination of the material witnesses. It is the

duty of the Insurance Company to take such a plea and establish

the same by way of adducing evidence before the Tribunal, but the

Insurance Company only examined R.W.1 and failed to adduce

evidence regarding the contributory negligence. Now, at the stage

of appeal, is not entitled to take such a plea and accordingly this

Court finds that it is not tenable.

7. There is no dispute regarding the age of the deceased as per

the driving licence filed by the claimants. The deceased was born

on 05.05.1976 and met with an accident on 28.05.2006 and thus

he was aged 30 years as on the date of death. In UNITED INDIA

INSURANCE COMPANY LIMITED V/s. SATINDER2, the Supreme

Court held that the principles for assessment of compensation in

cases of death as evolved by judicial dicta - The criteria which are

to be taken into consideration for assessing compensation in the

AIR 2020 SUPREME COURT 3076

case of death, are: (i) the age of the deceased at the time of his

death; (ii) the number of dependants left behind by the deceased;

and (iii) the income of the deceased at the time of his death. In

SARLA VERMA V/s. DELHI TRANSPORT CORPORATION3, it

was held that the age of the deceased must be the basis for

determining the multiplier even in case of a bachelor, and

therefore, the Tribunal rightly applied multiplier of '17'. Therefore,

the argument of the Insurance Company that multiplier '9' is

applicable instead of '17' is not sustainable.

8. The main contention raised by the Insurance Company is

with regard to income of the deceased. Relevant documents

regarding his income were filed by the claimants and they have

also examined the concerned H.R. and apart from that they filed

pay-slips of the deceased for the months of January and April,

2006. They have also filed appointment letter under Ex.A8. The

deceased was getting a gross salary of Rs.37,500/- per month.

After deducting Rs.11,518/-, the deceased was getting a net pay of

Rs.25,982/- per month in January, 2006 and Rs.26,422/- in the

month of April, and thus his average income can be taken.

Therefore, we feel it reasonable to take his income as Rs.26,000/-

per month. In fact, the deceased was offered a better package of

Rs.5,40,000/- per annum by SIEMENS company. The offer letter

was also issued to him and he accepted the same, but he could not

join in the said company as he met with an accident in the

meanwhile. The company stated that if he could not join in one

month, the offer letter is withdrawn. Therefore, the said income

2009 (6) SCC 121 = AIR 2009 SC 3104

package of Rs.5,40,000/- cannot be considered for calculating

compensation.

9. The deceased is entitled for 50% of future prospects. He was

also getting the performance allowance per annum in the present

posting to an extent of Rs.30,000/- per annum. Considering the

age, qualifications and the opportunity of better package given to

the deceased as on the date of accident, we feel it reasonable to

take 50% towards the future prospects. Therefore, the

compensation is to be calculated as follows:

10. Rs.26,000/- per month into 12 months is Rs.3,12,000/-.

After adding 50% towards future prospects i.e., Rs.1,56,000/-, the

annual incomes comes to Rs.4,68,000/- per annum.

11. As the parents and brother are depending on the deceased

and he was unmarried, 50% is to be deducted towards his

personal expenses, as such, loss of dependency comes to

Rs.3,12,000/- per annum. When it is multiplied with '17' the

compensation would come to Rs.53,04,000/-. The claimants are

parents of deceased entitled for Rs.15,000/- towards loss of estate

and Rs.15,000/- towards funeral expenses. They lost their grown

up son and hence, they are entitled for Rs.80,000/- as filial

consortium, and thus, the total compensation is arrived at

Rs.54,14,000/-. The claimants are also entitled for interest @ 7.5%

per annum from the date of Award till realisation.

12. The claimants are parents of the deceased and the third

claimant is brother. It is on record that the third claimant is

married and settled and as such he is not entitled for any

compensation. Therefore, the parents of the deceased are entitled

each half share in the compensation. Insurance Company is

directed to deposit the above said compensation within one month

from the date of receipt of a copy of the order. On such deposit, the

first and second claimants are permitted to withdraw the entire

amount.

13. Accordingly, MACMA No.630 of 2015 is dismissed and the

MACMA No.3003 of 2017 is partly allowed by enhancing the

compensation amount of Rs.3,76,549/- awarded by the Tribunal to

Rs.54,14,000/-. The claimants are also entitled for interest @ 7.5%

per annum from the date of Award till realisation. There shall be

no order as to costs.

14. Miscellaneous Petitions, if any, pending in this appeal shall

stand closed in the light of this final order.

___________________ P.NAVEEN RAO,J

___________________ P.SREE SUDHA, J 14th DECEMBER, 2021

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