Smt.Asha Bee 5 Ors vs Shashikant Sreerang Almale Anr
2022 Latest Caselaw 6961 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                M.A.C.M.A. No.1940 of 2014

JUDGMENT:

Not being satisfied with the quantum of compensation

awarded by the Chairman, Motor Accident Claims Tribunal-

cum-II Additional Chief Judge, City Civil Courts, Hyderabad

(for short "the Tribunal") in O.P. No.517 of 2010 dated

10.05.2013, 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. The claimants filed a petition under Section 163-A of the

Motor Vehicles Act, 1988 against the respondents 1 and 2,

claiming compensation of Rs.7,00,000/- for the death of one

Mohd. Rasool Khan (hereinafter referred to as "the deceased"),

who died in the accident that occurred on 08.10.2009.

According to the petitioners, on 08-10-2009 at about 4-00 p.m.

the deceased Mohd. Rasool Khan was proceeding in a jeep

bearing No. AP 22 E 4179 from Thandur side towards Mailwar

Village and when he reached Kodangal-Thandur road near

Srinivas Rice Mill, one lorry bearing No. MH 12 EQ 5457 being

driven by its driver came in a rash and negligent manner with

high speed and dashed the jeep, due to which, Rasool Khan

received grievous injuries and immediately he was shifted to

the Government Hospital, Thandur and from there while he

was being shifted to Osmania General Hospital for better

treatment, on the way he died. According to the claimants, the

deceased was doing business in selling papads and earning

Rs.5,000/- per month and used to contribute the same for the

welfare and maintenance of his family. Thus, the petitioners

are claiming compensation of Rs.7,00,000/- under various

heads.

4. Respondent No.1 remained ex parte; 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 accident took place due to the rash

and negligent driving of the jeep and that the claim is highly

excessive.

5. In view of the above pleadings, the Tribunal raised the

following issues:

1) Whether the death of Mohd. Rasool Khan was caused due to the accident arising out of the use of lorry bearing No. MH 12 EQ 5457?

2) Whether the petitioners are entitled for compensation, if so, to what amount and from whom?

3) To what relief?

6. In order to prove the issues, on behalf of the petitioners,

PWs.1 to 5 were examined and got marked Exs.A-1 to A-7. On

behalf of respondent No.2, no witnesses were examined,

however, copy of insurance policy was marked as Ex.B1.

7. On considering the oral and documentary evidence on

record, the Tribunal has awarded an amount of Rs.5,21,250/-

towards compensation to the appellants-claimants against the

respondent Nos.1 and 2 jointly and severally, along with costs

and interest @ 7.5% per annum from the date of petition till

the date of deposit.

8. 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.

9. The learned counsel for the appellants-claimants has

submitted that although the claimants established the fact

that the death of the deceased-Mohd. Rasool Khan was caused

in a motor accident, the Tribunal awarded meager amount.

10. 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 reasonable

compensation and the same needs no interference by this

Court.

11. Here it is pertinent to state that originally the claim

petition filed under Section 163-A of Motor Vehicles Act 1989.

But the tribunal considering the evidence available on record

decided the issue in favour of the petitioners. In Bhupati

Prameela and others vs. Superintendent of Police,

Vizianagaram and others1, the Division Bench of this Court held

as under:

" Thus it appears that it is the duty of the Courts to do justice to the parties and while doing justice, if the technicalities come in the way, much importance need not be given to these technicalities because, ultimately, justice has to be done to the parties. Moreover, when sub- section(4) of Section 166 of the Act envisages that the Tribunal shall treat

(2011) 10 SCC 756

any report of accidents forwarded to it under sub-section (6) of Section 158 of the Act as an application for compensation under the Act, there is nothing wrong in treating an application filed under Section 163-A of the Act as an application under Section 166 of the Act. In view of the above and considering the object of the Act, we are of the view that the petition filed under Section 163-A of the Act can be treated as an application under Section 166 of the Act."

In view of the above Judgment of the Division Bench of this

Court, the petition filed under Section 163-A of the Motor

Vehicles Act can be treated as an application under Section

166 of the Motor Vehicles Act and the Tribunal though framed

the issue under Section 163-A of Motor Vehicles Act rightly

came to the conclusion that the accident occurred due to the

rash and negligent driving of the lorry by its driver and

accordingly settled the issue in favour of the

appellants/petitioners.

12. Coming to the quantum of compensation, according to

the petitioners, the deceased was doing papads business and

getting Rs.5,000/- per month and contributing the same to his

family. In support of their contention, one Abdul Waheed was

examined as PW-3 who deposed that he and the deceased were

doing business in selling Papads and the deceased was getting

Rs.5,000/- per month. However, as the petitioners did not

produce any evidence except the evidence of PWs.1 and 3 to

prove the income of the deceased, the Tribunal had taken the

income of the deceased as Rs.3,750/- per month, which is very

less. Hence, this Court is inclined to take the income of the

deceased at Rs.4,500/- per month. Further, future prospectus

was not considered by the Tribunal. Thus, in light of the

principles laid down by the Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others2, the

claimant is entitled to future prospects @ 40% of his income,

since the deceased was aged 40 years. Then it comes to

Rs.6,300/- (4,500 + 1,800 = 6,300/-). 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 six in number. After deducting 1/4th

amount towards his personal and living expenses, the

contribution of the deceased to the family would be Rs.4,725/-

per month (6,300 - 1,575 = 4,725/-). Since the deceased was

40 years by the time of the accident, the appropriate multiplier

is '15' as per the decision reported in Sarla Verma v. Delhi

Transport Corporation (supra). Adopting multiplier '15', the

total loss of dependency would be Rs.4,725/- x 12 x 15 =

2017 ACJ 2700

2009 ACJ 1298 (SC)

Rs.8,50,500/-. In addition thereto, the claimants are also

entitled to Rs.77,000/- under the conventional heads as per

Pranay Sethi's (supra). Further the petitioner Nos.4 to 6 who are

the minor children are also entitled to filial consortium at Rs.40,000/-

each as per the Magma General Insurance Company Limited vs.

Nanu Ram Alias Chuhru Ram4. Thus, in all the claimants are

entitled to Rs.10,47,500/-.

13. With regard to the liability, the tribunal rightly held that

since the accident occurred due to the rash and negligent

driving of the driver of the offending lorry, which was insured

with the respondent No.2-Insurance Company and the policy

was in force as on the date of accident, respondent Nos.1 and

2 are jointly and severally liable to pay compensation.

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

compensation amount awarded by the Tribunal from

Rs.5,21,250/- to Rs.10,47,500/-. 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

and 2 jointly and severally. The amount shall be deposited

2018 Law Suit (SC) 904

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

of this order. The enhanced amount shall be apportioned in

the ratio as ordered by the Tribunal. The claimants shall pay

the deficit Court fee on the enhanced compensation, since the

initial claim was for Rs.7,00,000/-. 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.

____________________________ SMT.M.G.PRIYADARSINI,J 26.12.2022 pgp