Telangana High Court

T.Bharathi vs T.Chandra Kanth And 2 Others on 22 October, 2021

Bench: N.Tukaramji

          HONOURABLE SRI JUSTICE N.TUKARAMJI

                        M.A.C.M.A. No.21 of 2015

JUDGMENT:

Aggrieved by the quantum awarded, the petitioners preferred

this Appeal against the decree and order dt.15-05-2014 in

M.V.O.P.No.423 of 2010 on the file of the Chairman, Motor

Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil

Court, Secunderabad.

2. The mother and brother of Sri T.Bharat, aged 20 years /

deceased, filed the petition under Section 166 of the Motor Vehicles

Act, 1988 (for short 'the Act') claiming compensation of

Rs.7,00,000/-.

3. The Tribunal after due enquiry awarded Rs.3,25,000/- with

interest @ 7.5% p.a. from the date of filing of the petition till date of

realization.

FACTS IN BRIEF

4. The Appellants/petitioners' case in brief is that on 06-07-2010

at about 11 a.m. while Bharat/deceased as rider was proceeding on a

motor cycle bearing registration No.AP-28-BM- 2528 and when he

reached near Kompally Railway bridge, a lorry bearing

No.AP-29U-3769 struck the motor cycle. As a result, he slumped and

died instantaneously.

::2::

GROUNDS OF APPEAL

5. The appellants/petitioners submits that the Tribunal erred in

assessing the monthly income of the deceased and failed to apply

appropriate multiplier and erroneously deducted 2/3rd of income

towards personal expenses.

6. The Insurer/2nd respondent submitted that there is no dispute as

to the liability and the Tribunal had properly considered the facts and

adequately awarded compensation, as such this appeal has no merit.

ASPECTS TO BE DETERMINED :

7. As the accident, death and liability of respondents are admitted,

the point remains for determination is the income, assessment of

factors of multiplicand, multiplier and the amount that can be

deducted towards personal expenses of the deceased and other heads.

For this, the facts to be reassessed are,

(A) INCOME OF THE DECEASED

8. With regard to the occupation of the deceased, the 1st appellant /

1st claimant as P.W.1 testified that the deceased was driver under one

Anantha Ramreddy at Suchitra Alwal and also used to do business in

purchase and sale of second hand furniture, thereby used to earn

monthly income more than Rs.8,000/-. The Tribunal had taken

Rs.2,500/- per month.

9. On record, the self serving pleading and the oral testimony of

1st petitioner as P.W.1 are only available to support the claim of ::3::

occupation. Though the onus is on the petitioner to establish the

same, neither the particulars nor any document is placed much less

any tenable material. In fact, two avocations are pleaded but at least

income specification is not given nor any driving license was filed.

10. In this position, in the absence of convincing evidence on the

aspect of income, a guess work is to be made. Having regard to the

place of residence, the income earning capacity at the age of deceased

and the probably daily wages at relevant time, and also the wages

fixed in employment generation schemes of the government and also

the aspect that the employment may not be available throughout the

month, the income of the deceased can be taken at Rs.3,500/- p.m. In

effect, the arrived income of the deceased shall be Rs.42,000/-.

(B) FUTURE PROSPECTS OF INCOME

11. The Honourable Supreme Court in National Insurance

Company Limited Vs. Pranay Sethi1 settled the law of future

prospects for non-permanent employees for the claims. Wherein it is

held that for the deceased who is self-employed or of fixed salary, the

future prospects to the income for the purpose of determination of

multiplicand would be just and towards future prospects for the

deceased who is below 40 years, taking 40% of the established

income would be reasonable.

(2017) 16 SCC 680 ::4::

12. Further, in Hem Raj Vs. Oriental Insurance Company

Limited and others2, the Apex Court held that the income

determined on guesswork or the income established on positive

evidence by the claimants will stand on same footing.

13. Hence, as the deceased was aged below 40 years, the future

prospects to the tune of 40% is taken, which comes to Rs.16,800/-.

14. The claim of appellants is that T.Bharat/deceased was aged

about 20 years by the date of accident. The appellants did not file any

document to prove the age of deceased. The First Information

Report/Ex.A-1, final report Ex.A-2 and Post Mortem Report Ex.A-4

showed the age of the deceased as 19 years. The Tribunal has taken

the age of the deceased as 20 years. As the material on record is

showing the age of the deceased as 19 years on the date of accident,

the same age can safely be taken into account.

15. For the claim petition under Section 166 of the Act, the

multiplier for the age group of 15-20 as per the authority of Sarla

Verma & Ors Vs Delhi Transport Corp. & Anr 3 is 18.

16. But, the Tribunal chose the multiplier of 15 for calculation

which is unsustainable, and is liable to be modified.

(2018) 5 SCC 654

ACJ 2013 Page 1409 ::5::

(D)CALCULATION

17. Out of the total income i.e., annual income and future

prospects, as the deceased was bachelor, half of the income shall be

deducted towards personal consumption. Therefore the net annual

contribution of the deceased to the family would come to Rs.29,400/-

(Rs.42,000 + 16,800 / 2). If this amount is multiplied with the

relevant multiplier, the total comes to Rs.5,29,200/- and this amount

shall be granted towards the head of loss of dependency.

18. Besides the above amount, the petitioners are entitled to

compensation under conventional heads, viz., loss of estate,

consortium and funeral charges, as per the authority in Pranay Sethi

(1 supra).

19. Further, the Hon'ble Supreme Court, reiterating the

comprehensive interpretation to 'consortium' given in the authority of

Magma General Insurance co. Ltd. vs. Nanu Ram & ors.4, in the

decision between United India Insurance Co. Ltd. vs. Satinder

Kaur @ Satwinder Kaur and others5 fortified that the amounts for

loss of consortium shall be awarded to the child who lose the care and

protection of their parents as 'parental consortium' and to the parents,

'filial consortium' for the loss of their grown-up children, to

compensate their agony, love and affection, care and companionship

of deceased children.

(2018) 18 SCC 130

Civil Appeal No.2705 of 2020, dt.30.06.2020 ::6::

20. Actually, the 1st appellant / 1st claimant is entitled for filial

consortium.

21. The 1st appellant / 1st claimant, being mother, be considered as

dependent and legal heir. The 2nd appellant / 2nd claimant, who is

brother of the deceased, has claimed dependency. Though it is

elicited in cross-examination of P.W.1, that her 2nd son / 2nd petitioner

was working and earning a meager sum as monthly income, the

claimed dependency on his elder brother / deceased cannot be ruled

out. Thus, the entitlement of petitioner for compensation can be

concluded.

22. The amounts that can be awarded to 1st appellant / 1st claimant

is as follows :

The amounts granted under these heads as follows:

       (1) Loss of dependency             :    Rs.5,29,200/-
       (2) Loss of estate                 :    Rs.15,000/-
       (3) Filial consortium              :    Rs.40,000/-
       (4) Funeral Expenses               :Rs.15,000/-.
                                           ----------------
                    Total            :     Rs.5,99,200/-
                                           ----------------
                 st            st

23. Thus the 1 appellant / 1 claimant is entitled to compensation

Rs.5,29,200/- + Rs.70,000/- = Rs.5,99,200/-.

CONCLUSION

24. The Appeal is allowed in the following terms, viz., ::7::

(i) the 1st appellant / 1st petitioner is entitled to the

compensation of Rs.5,99,200/-, and respondent Nos.1 and 2 are jointly

and severally liable to pay the said amount with interest @ 7.5% p.a.,

from the date of O.P. till date of realization;

(ii) out of the awarded compensation the 1st appellant / 1st

petitioner is granted Rs.4,00,000/- and the 2nd appellant / 2nd

petitioner is awarded Rs.1,99,200/- with proportionate interest and

costs;