M/S Cholamandalam M.S. General ... vs Smt. Vankudoth Sali
2021 Latest Caselaw 2560 Tel

         THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                       MACMA.No.105 of 2021
JUDGMENT:

This appeal is filed by the appellant-insurance company

challenging the judgment dated 10.12.2019 in MVOP.No.311 of 2017

passed by the XXVII Additional Chief Judge - cum - Chairman, Motor

Accident Claims Tribunal, City Civil Court, Secunderabad, whereunder

an award for a sum of Rs.15,98,000/- with interest at 7.5% per

annum was granted in favour of the claimants and against the

appellant and the respondents No.3 and 4 herein jointly and severally.

2. The parties are referred to as they were arrayed in the original

petition before the tribunal below.

3. A petition was filed under Section 166 of the Motor Vehicles Act,

1983 and Rule 475 of the A.P. Motor Vehicles Rules, 1989 read with

Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act') by the

claimants, the mother and father of the deceased, Vankudoth

Nagaraju, claiming compensation of Rs.12,00,000/- together with

interest at 18% per annum, for the death of the deceased in the road

accident that took place on 17.07.2017.

4. On 17.07.2017 at about 6.30 AM, while the deceased was

walking along with his friend from his house at Pakeer Tanda towards

Pusugudem Thellavagu Cheruvu side, on the extreme left side of the

road near Kommugudem Village, Mulakalapally Mandal, suddenly one

Mahindra Bolero vehicle bearing registration No.TS 04 UA 0519 came

in a rash and negligent manner in a high speed on the wrong side of

the road and dashed the deceased from the opposite direction. As a

result of which, the deceased fell down on the road and received

severe injuries on the head and other parts of the body and died on

the spot. Cr.No.133 of 2017 was registered under Section 304-A IPC

with Bhadradri Kothagudem Police Station against the driver of the

offending vehicle.

5. In the claim petition, it was stated that the deceased was hale

and hearty, aged 23 years at the time of the accident. He was working

as Mason and earning Rs.15,000/- per month and contributing the

same to the welfare of the family. Due to sudden death of the

deceased, the claimants were put to mental shock and agony.

The deceased was the only breadwinner of the family and the

claimants did not have any other source of income and they are totally

dependant on the income of the deceased. The deceased completed

TTC course. Had he been alive, he would have become a teacher and

drawn salary of Rs.30,000/- to Rs.40,000/- per month. The future

hopes, earnings and prospects of the family were shattered down due

to the death of the deceased. R1 is the driver of the vehicle, R2 is the

owner of the vehicle and R3 is the insurance company. As such, all of

them are jointly and severally liable to pay compensation amount to

the claimants.

6. In the counter of the respondent No.2 therein, it was stated that

the accident occurred due to the negligence of the deceased, there

was no negligence on the part of the driver of the vehicle and the

vehicle is insured with the respondent No.3 insurance company.

7. The respondent No.3/insurance company therein, in its counter,

stated that for want of further and better particulars regarding

insurance, it was unable to admit whether the vehicle was insured or

not. As on the date of the accident, the driver of the vehicle has

'no relation in force'; the driver of the vehicle was not holding a valid

and effective driving license at the time of the accident and he was not

qualified for holding or obtaining such driving license and he had not

satisfied the requirements of Rule 3 of the Central Motor Vehicles

Rules, 1989. The respondent No.2 has wilfully and knowingly handed

over the possession of the vehicle to the driver, who did not possess a

valid and effective driving license. There was breach of terms and

conditions of the insurance policy. The respondent No.1 alone is liable

to play the compensation and the respondent No.3 has got no liability.

8. The claimant No.1 examined herself as P.W.1 and also

examined P.W.2 on their behalf. Exs.A1 to A7 were marked on behalf

of the claimants. The respondents examined R.Ws.1 and 2 and marked

Exs.B1 to B4 and Exs.X1 and X2.

9. On consideration of oral and documentary evidence, the tribunal

below awarded compensation of Rs.15,98,000/- along with interest at

7.5% per annum from the date of the petition till realization.

10. The tribunal below under issue No.1 viz. Whether the accident

occurred due to the rash and negligent driving of Bolero Pickup bearing

No.TS 04 US 0519?, held on the basis of evidence of P.W.2,

who was the eyewitness to the accident, coupled with Exs.A1 to A5

that the accident occurred due to the rash and negligent driving of the

respondent No.1. Insofar as compensation is concerned, under issue

No.2 viz. Whether the petitioners are entitled for compensation and if

so, from whom and what quantum of amount, the tribunal below,

having considered the date of birth of the deceased as per Ex.A6,

original SSC marks memo, concluded that the age of the deceased was

26 years as on the date of the accident.

11. On the basis of Exs.A1 to A3 it was recorded by the tribunal

below that the deceased was working as Mason. However, a finding

was recorded that the income of the deceased at Rs.15,000/-,

as claimed by the claimants was proved. The tribunal below noted that

Mason work is a skilled work; taking into consideration that the

deceased was a skilled worker, aged 26 years young and energetic,

his income was determined at Rs.10,000/- per month. Applying the

principle of law laid down by the Supreme Court in NATIONAL

INSURANCE COMPANY LIMITED v. PRANAY SETHI [2017 (3) L.S

44 (SC)], the tribunal below added 40% to the income towards future

prospects and determined his income at Rs.14,000/- per month;

yearly income was worked out to Rs.1,68,000/- (Rs.14,000/- x 12

months); as per the judgment of the Supreme Court in SARLA

VARMA v. DELHI TRANSPORT CORPORATION [III (2009) ACC 708

(SC)], ½ of the yearly income of the deceased was liable to be

deducted towards personal expenses and his contribution to the family

worked out to Rs.84,000/-; applying the multiplier '17' relevant to the

age of the deceased, the loss of dependency was arrived at

Rs.14,28,000/- (Rs.84,000/- x 17); a sum of Rs.15,000/- was

awarded towards funeral expenses, Rs.15,000/- towards loss of estate

and Rs.40,000/- towards consortium, a sum of Rs.1,00,000/- towards

love and affection, thus, in total, a sum of Rs.15,98,000/- was

awarded; as against the claim of Rs.12,00,000/-, the tribunal below

awarded Rs.15,98,000/- following the judgement of the Supreme

Court in NAGAPPA v. GURUDAYAL SINGH [2002 (8) SUPREME

497].

Regarding the liability of the respondent No.3, the tribunal

below held that the respondent No.1, driver and the respondent No.2,

owner, did not produce any driving license of the driver and that

charge sheet was filed against the respondent No.1 under Sections

304-A, 337 IPC and Section 181 of the Act and the respondent No.2,

owner of the vehicle, was charged under Section 3 read with Section

180 of the Act and thereby the respondent No.2 violated the terms of

policy, as such, the respondent No.3 is not liable to compensate.

12. The respondent No.1 remained ex parte. The driving license

was not produced by the respondent No.2. Thus, the respondent

No.3/insurance company was excluded from payment of

compensation. However, the respondent No.3 was directed to pay

compensation and recover from the respondent Nos.1 and 2 as per the

principle 'Pay and Recover'.

13. Mr. A. Rama Krishna Reddy, learned counsel for the

appellant/insurance company, submitted that the notional income of

the deceased ought to have been taken at Rs.4,500/- by following the

decision of the Supreme Court in RAMCHANDRAPPA v. MANAGER,

ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD.1. The income

of Rs.14,000/- fixed by the tribunal below is on the higher side;

addition of income towards future prospects, as per the PRANAY

SETHI's case (supra), would arise only if there is an established

income but there is no established income in the instant case. The

tribunal below could not have granted Rs.1,00,000/- towards love and

affection, having granted Rs.70,000/- under the conventional heads.

As held by the Supreme Court in THE NEW INDIAN ASSURANCE

COMPANY LTD. v. SOMWATI [Civil Appeal No.3093 of 2020 arising

out of SLP (C) No.2347 of 2019], the filial consortium was erroneously

awarded by the tribunal below, as the said compensation would be

granted only in case of minor children. In the absence of income proof,

notional income ought to have been fixed at Rs.6,000/- by following

the law laid down by the Supreme Court in several decisions.

AIR 2011 SC 2951

14. On the other hand, Mr. C. Mohan Prakash, learned counsel for

the respondents No.1 and 2/claimants, submitted that the income of

Rs.14,000/- per month fixed by the tribunal below is on the basis of

skilled work of Mason done by the deceased and is reasonable. Even in

the absence of any proof, the Supreme Court, other High Courts and

this Court have determined the notional income for skilled worker.

The deceased was very young, aged 26 years, and completed TTC

course, as such, he was having good prospects of hike in the income in

future. As per the Central Government Gazette notification dated

13.05.20210, the monthly minimum wages was fixed as Rs.8,000/-.

He relied upon the following decisions in support of his contentions:

MRS. GYAN SUDHA MISRA v. V. GOPALA GOWDA2;

SHIVAKUMAR M. v. BMTC3; MAGMA GENERAL INSURANCE CO.

LTD. v. NANU RAM4; TAHERA BEE @ MOHAMMED TAHEERA BEE

v. APSRTC, HYD5; AFRIN BEGUM @ AFREEN v. PARVATHAM6;

DULANBEE MOHAMMED NIJAM RAMPURE v. RAMSINGH

BUNDELA7 and NUNE SRINIVAS v. KAPA RAMAKRISHNA8.

15. There is no evidence on record regarding proof of income and

also with regard to the nature of work done by the deceased at the

time of the accident. A mason is a skilled person. However, while fixing

the notional income, in the absence of any other proof, the Courts

have to be guided by settled principles of law. No hard and fast rule

can be laid down in that regard. The deceased was unmarried.

The claimants and the deceased were residents of Pakeer Tanda,

Pusugudem Village, Mulakalappali Mandal, Khammam District. It is

2014 (5) ALD 42 (SC)

(2017) 5 SCC 79

2018 ACJ 2782

2019 (4) ALD 505

2020 (6) ALD 619

2020 (6) ALD 81

2020 (5) ALD 453

difficult to accept the findings of the Court below in arriving at a

notional income of Rs.10,000/- per month with 40% future prospects.

The place of work is also an important factor that should have been

considered by the Court below. The standard or minimum income

being paid in a City will be higher compared to Towns. Similarly,

the standard income in the Towns will be higher compared to standard

income in the villages. Thus, applying the same standard of income to

a worker in village, town or city would not be appropriate.

The standard income in a city like Hyderabad for a skilled worker may

be Rs.10,000/- but assessing the same income for the similar skilled

worker in a village, will be on the higher side. The income in the village

may be Rs.8,000/- or Rs.6,000/- or Rs.5,000/- per month. In the

absence of proof as to the nature of work, employer and proof of

number of working days, it would be unjust to fix the notional income

of Rs.10,000/-.

16. Learned counsel for the respondent Nos.1 and 2/claimants relied

on a gazette notification of minim wages fixed as Rs.8,000/- per

month. However, that cannot be taken as a standard minimum wages

in all circumstances. Moreover, the said gazette notification was not

part of the evidence before the tribunal below. Hence, it cannot be

relied upon by the claimants in this appeal.

17. Taking into consideration the decisions, referred to above, the

notional income of the deceased is fixed at Rs.7,500/- per month with

40% future prospects, which works out to Rs.10,500/- viz.

[(Rs.7,5000/- x 40% = Rs.3,000) + Rs.7,500/- = Rs.10,500/-] and

annual income would work to Rs.1,26,000/-. After deducting 50%

towards personal expenses, his contribution to the family would come

to Rs.1,26,000/- - (Rs.1,26,000/- x 1/2 = Rs.63,000/-) = Rs.63,000/-.

Applying the relevant multiplier '17' relevant to the age of the

deceased, the loss of dependency would come to Rs.63,000/- x 17 =

Rs.10,71,000/-. The amounts of Rs.15,000/- each awarded under the

head funeral expenses and loss of estate shall remain intact.

The claimants are not entitled for Rs.1,00,000/- awarded towards love

and affection and Rs.40,000/- awarded towards filial consortium as

as held in SOMWATI's case (supra), since compensation was awarded

under other heads. The compensation under the head filial consortium

is awarded only in case of death of a child. The deceased was held to

be 26 years, thus, the amount under the head filial consortium could

not have been awarded. In all, the total compensation would come to

Rs.10,71,000/- + Rs.15,000/- + Rs.15,000/- = Rs.11,01,000/-.

18. Hence, the claimants would be entitled to total compensation of

Rs.11,01,000/- with proportionate costs. The award of the tribunal

below is modified as indicated above. The award shall relate back to

the date of decree and the compensation awarded shall carry the

interest at the rate and from the date specified by the tribunal below.

In the result, the civil miscellaneous appeal is allowed in part.

Pending miscellaneous applications, if any, shall stand closed.

There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J September 9, 2021 DSK