Telangana High Court

Yerukali Balamma, Mahabubnagar M ... vs Anupati Venkataiah, ... on 10 November, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.2044 of 2011

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the order and decree, dated 06.02.2009, passed in

O.P.No.187 of 2007 on the file of the Motor Accidents Claims

Tribunal (I-Additional District Judge), Mahabugnagar, 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

the Yerukali Pentaiah (hereinafter referred to as "the deceased"),

who died in a road accident that occurred on 11.03.2007 at about 6.00

P.M. while the deceased was proceeding to the village of his wife i.e.

Mallepally, and when he reached near Ananthareddipally village

sivar on P.W.D. road, due to rash and negligent driving of the

driver of Bajaj Pulsar bearing No.AP-28-A-5770, as a result of which

the deceased sustained injuries. The rider and pillion rider of the

motorcycle also received injuries. The deceased was shifted to the

Government Hospital, Parigi, for treatment, where he succumbed to

injuries. It is stated that prior to the accident, the deceased, who was

aged about 35 years, was hale and healthy and earning Rs.4,000/-

per month by doing basket making business. On account of death of

the deceased, the 1st appellant lost her husband, appellants 2 to 4 lost

their father and appellants 5 and 6 lost their son. 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.

Though the 1st respondent filed counter, it does not contain

the signature of the 1st respondent, but it contains the signature of

his Counsel, the Tribunal did not consider the said counter.

The 2nd respondent/Insurance company filed counter denying

the manner of accident, age, avocation and income. It is also

contended that the rider of the motorcycle was not holding a valid

driving licence and the compensation claimed is highly excessive

and prayed to dismiss the claim-petition.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the accident occurred on 11.03.2007 at about 8.00 P.M., near Ananthareddipally, on P.W.D. Road, due to rash and negligent driving of the offending Bajaj Motor cycle bearing No.AP-28-AT-5770 by its driver and whether it resulted in causing death of the deceased Yerukali Pentaiah?

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

3) To what relief?

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

and got marked Exs.A1 to A16. On behalf of the respondents,

R.Ws.1 and 2 were examined and Exs.B1 and B2 were marked.

After analyzing the evidence available on record, the Tribunal

held that the rider of the motorcycle was responsible for the accident

and accordingly awarded an amount of Rs.2,88,000/- 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 basket maker i.e., skilled worker. The income of

the deceased was assessed by the Tribunal as Rs.70/- per day and

Rs.2,100/- 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 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.

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

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

2017 ACJ 2700

Per contra, the learned Counsel for the Insurance Company

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

Tribunal as Rs.2,100/- 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 30 to 40 years, 40% amount towards future prospects be

applicable. It is further submitted that the compensation towards

funeral expenses and loss of consortium and other 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.2,100/

although the claimants had claimed an amount of Rs.4000/- per

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

substantiate the claim of Rs.4,000/- per month, 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 35 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 between the age of 35 to 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years. (emphasis supplied)

After considering the evidence available on record, the

Tribunal held that the deceased was aged about 35 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 '16'. If the income of the deceased at Rs.2,100/- 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.2,940/- per month and it was

rounded off to Rs.2,950/- per month. After deducting 1/3rd amount

towards his personal and living expenses, the contribution of the

deceased would be Rs.1,966/- per month and Rs.23,600/- per

annum. Applying multiplier '16' the total loss of dependency would