Uppala Narasamma And 2 Others vs Md. Tajuddin And 5 Others
2021 Latest Caselaw 92 Tel

      THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

                 M.A.C.M.A. No.2030 OF 2010

JUDGMENT:

This appeal is filed by the appellants-claimants aggrieved

by the Award and Decree dated 22.06.2010 in M.V.O.P.No.473 of

2005 passed by the Motor Accident Claims Tribunal-cum-I-

Additional District Judge, Warangal (for short, the Tribunal).

2. The brief facts of the case are that appellant No.1 is the

wife and appellant Nos.2 and 3 are the minor children of the

deceased, Uppala Yellaiah. On 24.10.2004 the deceased and

appellant No.1 attended the funeral ceremony of their relative

and when they were returning to Palakurthy by boarding an

auto rickshaw bearing No.AP36W 0264 at about 7.000 PM., and

reached the outskirts of Kolukonda village, Devuruppula

Mandal, another auto bearing No.AP36V 9889 driven by its

driver, came in a rash and negligent manner with high speed in

opposite direction and dashed against the augo bearing

No.AP36W 0264. Due to which, the deceased fell down from the

auto and sustained severe injuries and died while undergoing

treatment on 26.10.2004. The claimants filed aforesaid MVOP

claiming compensation of Rs.5,25,000/- against respondent

No.1-driver-cum-owner, Respondent No.2 insurer of the

offending auto, respondent No.3 driver of the auto in which the

deceased was traveling at the time of accident, respondent No.4

owner, respondent No.5 insurer of the auto and respondent No.6

representative of respondent No.5, for the death of the deceased.

3. Before the Tribunal, respondent Nos.1, 3 to 5 remained

ex parte. Respondent No.2 filed its counter denying the

averments of the claim petition and contended that the amount

claimed is excessive and prayed to dismiss the claim petition.

4. After considering the oral and documentary evidence on

record, the Tribunal dismissed the claim of the appellants on the

ground that they failed to establish the accident took place on

account of the rash and negligent driving of the auto bearing

No.AP36V 9889 by its driver or due to the negligence on the part

of the driver of the auto bearing No.AP36W 0624 in which the

deceased was traveling; that there is delay in lodging the

complaint and no medical evidence has been produced to show

that the deceased was treated for the injuries sustained by him.

5. Sri S.Chalapathi Rao, learned counsel for the appellants,

submitted that the Tribunal ought to have seen that the

complainant is an illiterate person and that it is highly

improbable to remember the registration number of the auto,

which came in a rash and negligent manner and dashed against

the auto, in which the deceased was traveling. The Tribunal

misconceived the evidence placed by the appellants and drawn

adverse inference as the case sheet of the deceased was not

produced and erroneously held that as the F.I.R., was launched

after two days after the accident, it would be doubtful for the

cause of accident. The deceased was earning Rs.5,000/- per

month by doing mason work, therefore the appellants are entitle

for the loss of income by applying appropriate multiplier as per

Smt. Sarla Varma Vs. Delhi Transport Corporation1. He

further submitted that the appellants are also entitled to

addition of 40% on the income of the deceased towards future

prospects and Rs.70,000/- towards conventional charges, as per

the ratio laid down by the Hon'ble Supreme Court in National

Insurance Co. Ltd. Vs. Pranay Sethi2. He further submitted

that in view of the judgment of the Hon'ble Supreme Court in

Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias

Chuhru Ram & Others3, appellant Nos.2 and 3 are entitled to

Rs.50,000/- each, being the minor children of the deceased,

under the head parental consortium.

6. Sri Kota Subba Rao, learned counsel appearing for

respondent No.2, submitted that the tribunal passed a reasoned

award and it needs no interference.

7. Admittedly, the accident occurred with collusion of two

auto rickshaws, resulting death of the deceased. The

registration number of the auto in which the deceased was

traveling is AP36W 0264 and the auto which was driven in a

rash and negligent manner was AP36V 9889. The complainant

being an illiterate person has shown the offending vehicle

No.AP36W 0264 instead of AP36V 9889. In the inquest report,

the police have categorically indicated the vehicle No.AP36V

9889 as crime vehicle. Immediately after the accident, the

deceased was shifted to MGM Hospital, Warangal and he

underwent treatment in the said hospital and died thereafter

and there is delay of two days in lodging the F.I.R. When an

2009 (6) SCC 1211

2017(6) ALD 170 (SC)

2018 Law Suit (SC) 904

untoward accident occurred suddenly, any person would first

attend the medical assistance instead of running to the police

station for filing a complaint. The inquest report indicates the

correct vehicle numbers. Basing on the technical and trivial

grounds, the claim of appellants which is covered by a beneficial

legislation, cannot be compared with the provisions of strict civil

procedure code. On the ground of not filed the case sheet of the

deceased, it cannot be said that the accident has not taken

place. It is not the case of the respondents that the deceased

has not died because of the injuries sustained by him in the

accident. The oral and documentary evidence adduced on behalf

of the claimants, clinchingly proves that the accident occurred

due to the rash and negligent driving of the driver of the auto

bearing No.AP36V 9889. The driver of offending vehicle was

having valid driving licence and the said vehicle is covered with

insurance policy as on the date of accident, therefore, the

claimants are entitled for the compensation.

8. There is no dispute that the deceased was doing mason

work and therefore, the notional income of the deceased was

fixed at Rs.4,500/- per month, which comes to Rs.54,000/- per

annum. Since there are three dependants, 1/3rd of his income

should be deducted towards his personal expenditure as decided

by the Apex Court in Smt. Sarla Varma (Supra). Apart from the

same, the appellants are entitled to addition of 40% towards

future prospects, as per the decision of the Hon'ble Supreme

Court in Pranay Sethi (supra). Therefore, annual income of the

deceased comes to Rs.75,600/- (Rs.54,000 + Rs.21,600/- future

prospects). After deducting 1/3rd towards personal expenses, the

income of the deceased comes to Rs.50,400/- per annum. As

per Ex.A3 inquest report, the age of the deceased was 40 years

at the time of accident and the multiplier for the said age is '15'.

Hence, the compensation under the head 'loss of income' comes

to Rs.7,56,000/- (50,400/- x 15). The appellants are also

entitled to Rs.70,000/- towards conventional charges, as per

Pranay Sethi's case (supra). In the light of Nanu Ram's case

(supra), a sum of Rs.1,00,000/- (Rs.50,000/- X 2) is granted to

the appellants 2 and 3, being the minor children. Therefore, the

total compensation comes to Rs.9,26,000/-/- (Rs.7,56,000/- +

Rs.70,000/- + Rs.1,00,000/-).

9. In the result, the Motor Accident Civil Miscellaneous

Appeal is allowed by setting aside the Award and Decree dated

22.06.2010 in M.V.O.P.No.473 of 2005 passed by the Motor

Accident Claims Tribunal-cum-I-Additional District Judge,

Warangal, awarding compensation of Rs.9,26,000/-. The

amount shall carry interest @ 7.5% per annum from the date of

petition till realization. The appellants are directed to pay the

Court fee over and above the amount claimed by them.

Miscellaneous petitions pending, if any, shall stand closed. No

costs.

________________________ T.AMARNATH GOUD, J Date: 19.01.2021.

Shr

THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

M.A.C.M.A. No.2248 OF 2007

Date:08.01.2021.

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