Telangana High Court

Dongara Nagamani And 4 Others vs N. Illamma And Another on 10 November, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.3611 of 2008

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the order and decree, dated 04.07.2008, passed in

O.P.No.446 of 2005 on the file of the VII-Additional Metropolitan

Sessions Judge-cum-XXI-Additional Chief Judge, 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.6,00,000/- for the death of

one Dongara Saidulu (hereinafter referred to as "the deceased"),

who died in a road accident that occurred on 19.08.2005. It is stated

that on 19.08.2005 while the deceased and his friend Ch.Srinivas

were proceeding on his motor bike bearing No.AP-24-K-4526 from

Nakrekal towards Nalgonda, the Tata Sumo bearing No.AP-28-V-

102 belonging to the 1st respondent came from opposite direction at

high speed in a rash and negligent manner and swerved to right side

crossing the middle line and grazed the right side of bike and as

such the deceased sustained head injury and his friend also

sustained injuries. The deceased was shifted to the Government

Hospital, Nakrekal, for treatment and while undergoing treatment,

the deceased succumbed to injuries. On a complaint, a case in Crime

No.84 of 2005 of Kattangur Police Station, was registered against the

driver of the Tata Sumo Vehicle. 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.

Respondent Nos.1 and 2 filed their counters denying all the

material allegations in the petition and prayed to dismiss the

petition.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident resulting in death of Dongara Saidulu occurred owing to the rash and negligent driving of the driver of Tata Sumo bearing No. AP 28 V 102?

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

3) To what relief?

In support of their claim, the appellants examined P.Ws.1 to 4

and got marked Exs.A1 to A12. On behalf of the respondents, no

oral evidence was adduced but Ex.B1-copy of 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 Tata Sumo vehicle belonging to the 1st respondent and

accordingly awarded an amount of Rs.4,67,000/- 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 Tribunal has not taken into consideration the occupation

of the deceased as teacher. The income of the deceased was assessed

by the Tribunal as Rs.100/- per day and Rs.3,000/- per month,

which is not even minimum wages earned by a labourer. 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 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.

In spite of service of notice, there is no representation on

behalf of the 1st respondent/owner of the crime vehicle.

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

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 25 to 30 years, 40% amount towards future prospects be

applicable. It is further submitted that the compensation under

2017 ACJ 2700

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/

though the claimants had claimed an amount of Rs.7,000/- per

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

Ex.A12-salary certificate, the Tribunal has not accepted the same.

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 29 years, an addition of 40% 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 below the age of 40 years, an

addition of 40% of the established income should be granted, the

appellants are entitled to get 40% 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 29 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 '18'. If the income of the deceased at Rs.3,000/- per month

as fixed by the Tribunal is taken and if 40% of the income is added to

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

income of the deceased would be Rs.4,200/- per month. After

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

the contribution of the deceased would be Rs.2,800/- per month and

Rs.33,600/- per annum. Applying multiplier '18' the total loss of

dependency would be Rs.33,600/- x 18 = Rs.6,04,800/-. The tribunal

also awarded a sum of Rs.35,000/- 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.6,74,800/-.

At this stage, the learned counsel for the Insurance company

submits that the claimants claimed only a sum of Rs.6,00,000/- as

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 appellantgs/claimants

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

2009 ACJ 1298 (SC)

enhancement of the claim from Rs.6.00 lakhs to Rs.14.00 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 appeal is allowed in part and the

compensation amount awarded by the Tribunal is hereby enhanced

from Rs.4,67,000/- to Rs.6,74,800/-. The enhanced amount will carry

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

i.e. 04.07.2008 till the date of realization, payable by respondents 1

and 2 jointly and severally. The enhanced amount shall be