Vankudavath Thulasi Bai 4 Others vs G Venkateshwarlu 2 Others
2022 Latest Caselaw 6349 Tel

         HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                     M.A.C.M.A. No.4153 of 2014

JUDGMENT:

Not being satisfied with the quantum of compensation awarded by

the Judge, Family Court-cum-Additional District Judge, Mahabubnagar

in M.V.O.P. No.599 of 2009 dated 27.08.2014, the present appeal is

filed by the claimants.

2. For the sake of convenience, the parties have been referred to as

arrayed before the Tribunal.

3. According to the petitioners, on 5.10.2008 evening the deceased

Vankudavath Shanker Naik was proceeding on Hero puch moped from

Mahabubnagar to Hanwada and when he was proceeding in the limits of

Pallemoni colony, Hanwada Mandal at about 6-30 P.M., a Toofan

vehicle bearing No. AP.22.V.7841 came from Mahabubnagar side

proceeding towards Tandur side from back side being driven by its

driver in a rash and negligent manner at high speed and dashed against

the Hero puch moped, due to which the deceased fell down and

sustained severe injuries all over his body and then he was shifted to

Government Hospital, Mahabubnagar, while undergoing treatment he

succumbed to injuries. According to the claimants, the deceased was a

Ward boy in Government Headquarters Hospital, Mahabubnagar and

earning Rs.7,000/- per month and used to contribute the same to his

family. Thus, the petitioners are claiming compensation of

Rs.15,00,000/- under various heads.

4. Respondent No.1 filed counter denying the averments made in the

petition. It is further contended that he sold the vehicle to respondent

No.3 and after purchasing the vehicle, respondent No.3 took policy from

the respondent No.2 on his name and the policy was in force at the time

of alleged accident and prayed to dismiss the petition.

5. Respondent No.2 filed counter disputing the manner in which the

accident occurred, age, avocation and income of the deceased. It is

further contended that the driver of the Toofan was not having valid

driving license as on the date of accident and the claim is excessive.

6. Respondent No.3 remained ex parte.

7. In view of the above pleadings, the Tribunal raised the following

issues:

1) Whether the accident occurred on 5.10.2008 at about 6-30 p.m. in the limits of Pallemoni colony, Hanwada Mandal due to rash and negligent driving

of the driver of Toofan Vehicle bearing No. AP 22 V 7841?

2) Whether the driver of the offending vehicle was having valid driving license as on the date and time of the accident?

3) Whether the insurance policy was in force as on the date and time of the accident?

4) Whether the petitioners are entitled to claim compensation, if so, to what amount and whom?

3) To what relief?

8. In order to prove the issues, on behalf of the petitioners, PWs.1 to

4 were examined as PW.1 and got marked Exs.A-1 to A-6 and Ex.X1.

On behalf of respondent No.2, RWs.1 and 2 were examined and Exs.B1

to B8 were marked.

9. On considering the oral and documentary evidence on record, the

Tribunal has awarded an amount of Rs.8,46,000/- towards compensation

to the appellants-claimants against the respondent No.3, along with

proportionate costs and interest @ 7.5% per annum from the date of

petition till the date of deposit.

10. Since none appears for respondent No.2 in spite of service of

notice, this Court appointed Mr.Vutla Srinivasa Rao as the counsel for

respondent No.2.

11. Heard the learned counsel for the appellants-claimants and the

learned Standing Counsel for the second respondent-Insurance

Company. Perused the material available on record.

12. The learned counsel for the appellants-claimants has submitted

that the Tribunal erred in dismissing the claim petition as against the

respondent Nos.1 and 2 on flimsy grounds. Further, as per the decision

of the Apex Court in National Insurance Company Limited Vs. Pranay

Sethi and others1, the claimants are entitled to addition of 40% towards

future prospects to the established income of the deceased.

13. The learned Standing Counsel appearing on behalf of respondent

No.2-Insurance Company sought to sustain the impugned award of the

Tribunal contending that the Tribunal after considering all aspects has

awarded adequate compensation of Rs.8,46,000/- and the same needs no

interference by this Court.

14. With regard to the manner of accident, there is no dispute.

However, after evaluating the evidence of PWs.1 to 3 coupled with the

documentary evidence available on record, the Tribunal held that the

accident took place due to the rash and negligent driving of the driver of

2017 ACJ 2700

the Toofan vehicle bearing No. AP 22 V 7841 which resulted the death

of the deceased-Vankudavath Shanker Naik.

15. Coming to the quantum of compensation, according to the

evidence of PW-1, the deceased was a Ward boy in Government

Headquarters Hospital, Mahabubnagar and earning Rs.7,000/- per month

and used to contribute the same to his family. Ex.A6 salary certificate

of the deceased shows that the gross salary is Rs.6,678/- and net salary

is Rs.5,683/-. Therefore, after deducting Rs.80/- towards professional

tax, his salary comes to Rs.6,598/-. Further, in light of the principles

laid down by the Apex Court in National Insurance Company Limited

Vs. Pranay Sethi and others2, the claimants are entitled to future

prospects @ 50% of his income, since the deceased was aged 31 years.

Then it comes to Rs.9,897/- (6598 + 3299 = 9897/-). From this, 1/4th is

to be deducted towards personal expenses of the deceased following

Sarla Verma v. Delhi Transport Corporation3 as the dependents are

five in number. After deducting 1/4th amount towards his personal and

living expenses, the contribution of the deceased to the family would be

Rs.7,423/- per month (9,897 - 2,474 = 7,423/-). Since the deceased

2017 ACJ 2700

2009 ACJ 1298 (SC)

was 31 years by the time of the accident, the appropriate multiplier is

'16' as per the decision reported in Sarla Verma v. Delhi Transport

Corporation (supra). Adopting multiplier '16', the total loss of

dependency would be Rs.7423/- x 12 x 16 = Rs.14,25,216/-. In

addition thereto, the claimants are also entitled to Rs.77,000/- under the

conventional heads as per Pranay Sethi's (supra). As per the decision

reported in Magma General Insurance Company Limited v. Nanu

Ram @ Chuhru Ram and others4, the petitioner Nos.2 and 3 are

entitled to filial consortium @ Rs.40,000/- each. Thus, in all the

claimants are entitled to Rs.15,82,216/-.

16. Coming to the aspect of liability of payment of compensation,

R.W.2, Junior Assistant, R.T.A., Mahabubnagar deposed that he brought

the extract of driving license of respondent No.3 and his license was

L.M.V. with non-transport and valid up to 2011 and that as on the date

of accident, the driver did not possess valid transport license.

Admittedly, the Tata Ace is a commercial transport vehicle.

(2018) 18 SCC 130

17. In Mukund Dewangan vs. Oriental Insurance Company Limited

and others5, the Apex Court held that "the mere fact that the driver who

possessed a licence to drive the light motor vehicle did not possess a

licence to drive heavy transport vehicle by itself would not be sufficient

to hold that the insurance company would be absolved of its liability to

pay compensation".

18. In view of the principles laid down by the Apex Court in the

judgment referred to above, this Court finds that the Tribunal erred in

exonerating the Insurance Company to pay the compensation amount as

awarded by the Tribunal and the Insurance Company is liable to pay the

compensation awarded by the Tribunal.

19. In the result, the M.A.C.M.A. is allowed by enhancing the

compensation amount awarded by the Tribunal from Rs.8,46,000/- to

Rs.15,82,216/-. The enhanced amount shall carry interest at 7.5% p.a.

from the date of petition till the date of realization, to be payable by the

respondent Nos.1 to 3 jointly and severally. The amount shall be

deposited within a period of one month from the date of receipt of a

copy of this order. The claimants shall pay deficit Court fee on the

(2016) 4 SCC 298

enhanced compensation, since the initial claim was for Rs.15,00,000/-.

On such payment of court fee only, the claimants are entitled to

withdraw the amount. There shall be no order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

_______________________ M.G.PRIYADARSINI,J

02.12.2022 pgp