Hyderabad Metropolitan Water ... vs Ishrath Begum
2022 Latest Caselaw 6502 Tel

              THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                          MA.CMA.NO.1862 OF 2019

                                  JUDGMENT

Assailing the award and decree dated 26.11.2015 passed by the

Motor Accidents Tribunal - cum - III Additional Chief Judge City Civil

Court at Hyderabad in MVOP.No.600 of 2014, the Hyderabad

Metropolitan Water Supply and Sewerage Board, Khairatabad,

Hyderabad, represented by its Managing Director, (Board), which is the

owner of the crime vehicle, filed the present appeal.

2. The deceased is one Mohd Jameel Ahmed and the claimants are

his wife and children. The 1st respondent before the Tribunal is the

Board, and the 2nd respondent is the driver of the crime vehicle.

3. The case of the claimants is that on 08.12.2012 at about

12.30 p.m., while the deceased was proceeding on his scooter bearing

registration No. AP 10 C 4798 from Rethibowli towards Attapur and that

when he reached near pillar No.66, one DCM van bearing registration

No. AP 09B 3697 driven by its driver in a rash and negligent manner

dashed the scooter of the deceased from back side, as a result, he fell

down and suffered grievous injuries and succumbed to the injuries on

the way to Hospital. Police registered a case against the driver of the

vehicle and investigated into the crime.

4. The further case of the claimants is that prior to the accident,

the claimant was working as marble stone fitter and was earning an

amount of Rs.15,000/- per month and was contributing the entire

earnings to the claimants. That on account of the death of the deceased,

they lost their bread winner and suffered loss of dependency and other

amenities. With these averments, they filed claim petition under Section

166 of the Motor Vehicles Act, 1988, claiming compensation of

Rs.10,00,000/-.

5. The 1st respondent filed counter affidavit and denied the

manner of accident pleaded by the claimants, avocation and earnings of

the deceased and sought for dismissal of the claim petition.

6. The Tribunal considering the evidence of P.W.1, the wife of the

deceased, and also the evidence of P.W.2, who is an eye witness to the

accident, coupled with Exs.A-1 to A-5, held that the accident occurred

due to rash and negligent driving of the offending vehicle and it resulted

in the death of the deceased.

7. The Tribunal taking the income of the deceased as Rs.300/- per

day and Rs.9,000/- per month on an average, and by deducting 1/4th

towards personal expenses and by adding 30% towards future prospects

and as the deceased was found to be aged 40 years, applying the

multiplier of 15, awarded an amount of Rs.15,79,500/- towards loss of

dependency, Rs.1,00,000/- towards loss of consortium to the

1st claimant, Rs.1,00,000/- towards loss of love and affection to all the

claimants, Rs.25,000/- towards funeral expenses and transport charges,

and thus, in all, awarded an amount of Rs.18,04,500/- with interest at

the rate of 7.5 per cent per annum from the date of the claim petition till

the date of realization and passed orders with regard to apportionment of

compensation amount among the claimants and its deposit in

nationalized bank and withdrawal. The respondents 1 and 2, who are

the owner and the driver of the crime vehicle, were made jointly and

severally liable to pay the compensation under vicarious personal

liability.

8. As stated above, aggrieved by the award of the Tribunal, the

Board is before this court.

9. Sri T.Sudhakar Reddy, learned counsel appearing for the

appellant - Board submitted that in the claim petition at column No.15,

the number of the vehicle involved in the accident is mentioned as 'AP 09

V 3692', whereas in the FIR, the number of the vehicle is mentioned as

'AP 09 V 3697' and therefore there is discrepancy in the number of the

vehicle and in fact vehicle bearing No. AP 09 V 3692 does not belong to

the appellant and hence liability cannot be saddled against the appellant.

He further submits that though the claimants stated that the deceased

was a marble stone fitter, and was earning an amount of Rs.15,000/-,

have not adduced any evidence. But the Tribunal has taken his monthly

income as Rs.9,000/-, which is on higher side and in fact, the Apex

Court and also this court, have been taking the monthly income of a

daily wager at Rs.4,500/- and granting compensation. He submits that

as per the judgment of the Apex Court in NATIONAL INSURANCE CO.

LTD. vs. PRANAY SETHI1, future prospects can be added, if the

deceased is a permanent job holder or a self-employed, but in the present

case, the deceased does not fit into both the categories and hence no

future prospects can be granted. He submits that in this judgment, the

Apex Court awarded an amount of Rs.70,000/- under the conventional

heads, which include Rs.40,000/- to the wife of the deceased towards

loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/-

towards funeral charges. But in the present case the Tribunal awarded

an amount of Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/-

towards loss of love and affection and Rs.25,000/- towards funeral

expenses and transport charges. Hence, the amounts granted by the

Tribunal under these heads is much higher than the amounts awarded

by the Apex Court, and hence the same requires to be modified. With

these submissions, he sought to set aside the impugned award.

10. On the other hand, Sri Mohd Ismail, learned counsel

appearing for the respondents / claimants supporting the impugned

award, sought for dismissal of the claim petition.

(2017)16 SCC

11. Having regard to the facts and circumstances of the case and

the submissions of the learned counsel appearing for the parties, the

issue that arises for consideration is, whether the impugned award

warrants any interference?

12. In the present case, perusal of the claim petition shows that

the particulars given in the pro forma table in the column No.15, the

registered number of the crime vehicle is mentioned as ' AP 09 V 3692',

but where as in the accompanying affidavit the registered number of the

crime vehicle is mentioned as 'AP 09 V 3697'. In the report given by the

son of the deceased, based on which the FIR was registered, the number

of the crime vehicle is mentioned as 'AP 09 V 3697'. In Exs. A-1 to A-3

and A-5, which are the certified copies of FIR, charge sheet, inquest

report and MVI report, the registered number of the crime vehicle is

noted as ' AP 09 V 3697'. One Mr. Swamy, s/o Pochaiah, working as

General Manager of the appellant - Board was examined as R.W.1 and in

his cross-examination he has categorically admitted that a crime was

registered against their vehicle under Ex.A-1 FIR and charge sheet was

filed against their vehicle. He also admitted that respondent No.1 is the

owner of the crime vehicle under Ex.A-5. As noted above, the Tribunal

considering the evidence of P.W.2, who is an eye witness to the accident,

coupled with Exs.A-1 to A-5, recorded finding of fact that the accident

occurred due to the rash and negligent driving of the driver of the crime

vehicle bearing no. AP 09 V 3697 and that the deceased died in the said

accident, and the respondent No.1 being the owner and the

2nd respondent being the driver of the crime vehicle, were jointly and

severally liable to pay the compensation under vicarious personal

liability. Having regard to these facts and circumstances, the ground

taken by the counsel for the appellant cannot be countenanced and the

same is hereby rejected.

13. With regard to quantum, it is to be seen that the wife of the

deceased was examined as P.W.1, and she has categorically deposed that

the deceased is marble stone fitter and was earning an amount of

Rs.15,000/- per month. Even as per FIR and inquest, it is mentioned

that the deceased is a marble stone fitter. Further, the respondents

before the Tribunal have not led any rebuttal evidence in this regard.

Therefore, considering the deceased as a skilled mason, the Tribunal has

rightly taken his income as Rs.300/- per day, equal to Rs.9,000/- per

month on an average.

14. The deceased is a marble stone fitter and the Tribunal while

fixing his income has considered him as a skilled mason. Therefore, he

has to be considered as a self-employed. The contention of the counsel

for the appellant that the deceased cannot be considered as 'self-

employed', merits only for rejection.

15. In the charge sheet, Ex.A-2 the age of the deceased is

mentioned as 45 years, and in the post mortem report, his age is

mentioned as '40' years. Therefore, his age can be taken as above 40

years. As per the judgment of the Apex Court in Pranay Sethi's case, the

claimants are entitled to 30% of his income of the deceased as future

prospects. The Tribunal has rightly granted the same.

16. As per the judgment of the Apex Court in Pranay Sethi's case

(supra), under the conventional heads, the claimants are entitled to

Rs.70,000/- i.e., Rs.40,000/- to the 1st claimant who is the wife of the

deceased towards loss of consortium, Rs.15,000/- towards loss of estate

and Rs.15,000/- towards funeral expenses. Further, in view of the

judgment of the Apex Court in MAGMA GENERALA INSURANCE CO.

LTD v. NANU RAM2, the children of the deceased as entitled to parental

consortium. But in the present case, the Tribunal has not awarded any

amount under the parental consortium. Therefore, though the amounts

awarded under the other heads i.e., 'loss of consortium', 'loss of love and

affection' and 'funeral expenses and transport charges', is excessive, than

the amounts granted in the judgment of the Apex Court in Pranay Sethi's

case (supra), in view of not granting any amount under parental

consortium, and the difference being not much, this court is not inclined

to interfere with the quantum of compensation granted by the Tribunal.

Thus the issue framed is accordingly answered in favour of the

claimants.

(2018)18 SCC 130

17. For the foregoing reasons, I do not find any merit in the appeal

and the same is accordingly dismissed.

18. Interlocutory Applications pending, if any, shall stand closed.

No order as to costs.

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M.G.PRIYADARSINI,J DATE: 06--12--2022 AVS