Telangana High Court

Zaheera Bee And 3 Others, ... vs G. Laxmi, Bhongir Village And M ... on 10 November, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.2576 of 2008

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the award and decree, dated 25.04.2008, passed in

O.P.No.508 of 2006 on the file of the Special Judge for Economic

Offences-cum-VIII-Additional Metropolitan Sessions Judge-cum-

XXII-Additional Chief Judge, City Criminal Courts, Hyderabad, the

appellants/claimants preferred the present appeal seeking

enhancement of the compensation.

The facts, in issue, are as under:

The appellants filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.4,00,000/- for the death of

one Mohd. Sarvar (hereinafter referred to as "the deceased"), who

died in a road accident that occurred on 31.01.2006. It is stated that

on 31.01.2006 at about 2.00 P.M., while the deceased was proceeding

to vegetable market situated near telephone exchange on the main

road, Bongir Town, the Tractor bearing No.AP-36-T-6945 belonging

to the 1st respondent came from opposite direction at high speed in a

rash and negligent manner and swerved to his right side and as

such, the middle wheel of the tractor came into contact with the

deceased and he was rolled into middle portion of the trolley, as a

result of which, the deceased died on the spot. On a complaint, a

case in Crime No.19 of 2006 of Bhongir Police Station, was registered

against the driver of the Tractor-Trailer. Since the 1st respondent

being the owner of the vehicle and the 2nd respondent being insurer

of the vehicle, are jointly and severally liable to pay compensation.

The 1st respondent filed counter admitting the manner of the

accident and also the death of the deceased, but denied the age and

income of the deceased. It is also stated that the vehicle was insured

with the 2nd respondent, which is in force on the date of accident.

The 2nd respondent-Insurance company filed counter denying

all the material allegations of the petition and prayed to dismiss the

claim-petition.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident took place on 31.01.2006 at about 2.10 P.M. due to rash and negligent driving of Tractor bearing No.AP-36-T-6945, by its driver?

2) Whether the petitioners are entitled to compensation? If so, to what amount and from whom?

3) To what relief?

In support of their claim, the appellants examined PWs.1 to 3

and got marked Exs.A1 to A7. On behalf of the respondents, no oral

evidence was adduced, but Ex.B1-policy was marked.

After analyzing the evidence available on record, the Tribunal

held that the accident was result of rash and negligent driving of the

driver of the Tractor belonging to the 1st respondent and accordingly

awarded an amount of Rs.3,27,000/- as compensation to be paid by

the respondents. Challenging the quantum of compensation

awarded, the present appeal is filed by the appellants/claimants.

The main contention of the learned Counsel for the appellants

is that the judgment and decree of the Tribunal is contrary to law,

weight of evidence and probabilities of the case; that the Tribunal

ought to have awarded entire claim of Rs.4,00,000/- instead of

awarding Rs.3,27,000/-; that the tribunal has failed to observe that

the loss of expectancy is 70 years in India; that the Tribunal ought to

have awarded interest @ 12% per annum instead of awarding @ 6%

per annum, which is contrary to the judgment of the Apex Court;

and that the Tribunal also failed to observe that it is impossible to

equate human suffering and personal deprivation with money. It is

further submitted that as per the principles laid down by the Apex

Court in National Insurance Company Limited Vs. Pranay Sethi

and others1, the claimants are also entitled to the future prospects.

Therefore, it is argued that the income of the deceased may be taken

into consideration reasonably for assessing loss of dependency and

prayed to enhance the same.

Per contra, the learned Counsel for the Insurance Company

submits that income of the deceased has rightly been taken by the

Tribunal as Rs.3,000/- per month since no documentary evidence

has been produced by the appellants. On the point of future

2017 ACJ 2700

prospects, learned Counsel submits that the matter has been

considered by the Apex Court in National Insurance Company Limited

Vs. Pranay Sethi and others (supra) and as per that judgment, for the

age between 45 to 50 years 25% amount towards future prospects be

applicable. It is further submitted that the compensation under

conventional heads has also been rightly granted by the Tribunal

and the same need not be enhanced.

The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged either by the owner or insurer of the vehicle.

The short question that arises for consideration is "whether the

compensation awarded by the Tribunal is just and equitable"?

The Motor Vehicles Act is beneficial and welfare legislation.

The Court is duty-bound and entitled to award "just compensation",

irrespective of whether any plea in that behalf was raised by the

claimants. So far as income of the deceased is concerned, the

Tribunal has taken the monthly income of the deceased as Rs.3,000/

although the claimants had claimed an amount of Rs.6,000/- per

month. Since no documentary evidence has been placed on record to

prove the income, the Tribunal has taken the income of the deceased

at Rs.3,000/- per month.

So far as the future prospects are concerned, this point has

already been considered by the Apex Court in Pranay Sethi (Supra),

and it has been held that the benefit of future prospects cannot be

denied to a self-employed person. The Apex Court has further held

that where the deceased was below the age of 40 years, an addition

of 40% of the established income; where the deceased was between

40 to 50 years, an addition of 25% of the established income; and

where the deceased was between 50 to 60 years, an addition of 10%,

should be granted towards future prospects.

According to the appellants, since the age of deceased at the

time of death was 48 years, an addition of 25% of the established

income should be granted. Confronting this claim of the appellants,

learned Counsel for the 2nd respondent-Insurance Company has

contended that since the Apex Court in Pranay Sethi's case (supra)

has held that when the deceased was between 45 to 50 years, an

addition of 25% of the established income should be granted, the

appellants are entitled to get 25% of the established income only.

In Pranay Sethi's case (supra), the Apex Court, after dealing

with the issue of future prospect and other issues, has laid down the

following guidelines in determining the future prospects:

"In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a

coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.

(iii) 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 48 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.

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

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be

Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. (emphasis supplied)

After considering the evidence available on record, the

Tribunal held that the deceased was aged about 48 years at the time

of the accident. In view of the judgment of the Apex Court in Sarla

Verma v. Delhi Transport Corporation2, the suitable multiplier

would be '13'. If the income of the deceased at Rs.3,000/- per month

as fixed by the Tribunal is taken and if 25% of the income is added to

the actual income of the deceased towards future prospects, the total

income of the deceased would be Rs.3,750/- per month. After

deducting 1/3rd amount towards his personal and living expenses,

the contribution of the deceased would be Rs.2,500/- per month and

Rs.30,000/- per annum. Applying multiplier '13', the total loss of

dependency would be Rs.30,000/- x 13 = Rs.3,90,000/-. The tribunal

also awarded a sum of Rs.15,000/- under conventional heads. In

Pranay Sethi's case (supra), the Apex Court held that "the reasonable

figures on conventional heads, namely, loss of estate, loss of

consortium and funeral expenses should be Rs. 15,000/-, Rs.

40,000/- and Rs. 15,000/- respectively". In view of the law laid

down by the Apex Court in Pranay Sethi's case (supra), the appellants

are entitled to Rs.70,000/- under conventional heads. Thus, in all

the claimants are entitled to Rs.4,60,000/-.

At this stage, the learned counsel for the insurance company

submits that the claimants claimed only a sum of Rs.4,00,000/- as

2009 ACJ 1298 (SC)

compensation and the quantum of compensation which is now

awarded would go beyond the claim made, which is impermissible

under law. The learned Counsel for the claimants would submit

that the claimants filed I.A.No.1 of 2021 seeking enhancement of the

claim from Rs.4.00 lakhs to Rs.10.00 lakhs and the same is pending.

In Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another3, the Apex Court

while referring to Nagappa Vs. Gurudayal Singh4 held as under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident."

In view of the Judgments of the Apex Court referred to above,

the claimants are entitled to get more amount than what has been

claimed. Further the Motor Vehicles Act being a beneficial piece of

legislation, where the interest of the claimants is a paramount

consideration the Courts should always endeavour to extend the

benefit to the claimants to a just and reasonable extent.

Accordingly, the M.A.C.M.A. is allowed in part and the

compensation amount awarded by the Tribunal is hereby enhanced

from Rs.3,27,000/- to Rs.4,60,000/-. The enhanced amount will carry

(2011) 10 SCC 756

2003 ACJ 12 (SC)

interest at 7.5% p.a. from the date of award passed by the Tribunal