Nampally Bhagalaxmi 5 Ors vs Md.Riyaz Pasha 3 Ors
2022 Latest Caselaw 319 Tel

          THE HONOURABLE JUSTICE G. SRI DEVI

                   M.A.C.M.A.No.1835 OF 2012

JUDGMENT:

This appeal is directed against the order dated

22.11.2011 in O.P.No.98 of 2010, on the file of the Chairperson,

Motor Accidents Claims Tribunal-cum-District Judge, Karimnagar

(for short 'the Tribunal'), wherein the claim of the appellants herein

was allowed-in-part, awarding compensation of Rs.9,87,224/- with

interest at 7.5% per annum from the date of the petition.

2. Heard the learned counsel for the appellants and the learned

counsel for respondent No.3-insurance company. Perused the record.

3. The appellants herein filed the claim application seeking

compensation of Rs.23 lakhs on account of death of the deceased

Nampally Narayana, who died in a motor vehicle accident that

occurred on 02.11.2009. Claimant No.1 is the wife, claimants 2 to 4

are the children and claimants 5 and 6 are the parents of the deceased.

According to the claimants, at the time of accident, the deceased

boarded auto bearing No.AP-15X-1339 at Sulthanabad in order to go

to Peddapally Electrical Sub-Divisional Office. When the auto

reached in front of MVI office at about 11:00 am, on the outskirts of

Rangampalli Village, an Eicher Van bearing No.AP-28X-0526, driven

by its driver in a rash and negligent manner, at high speed, dashed the

auto, as a result of which, the deceased sustained severe injuries and

he succumbed to the same on way to hospital. It is pleaded by the

claimants that the deceased was aged 38 years at the time of accident

and was drawing a gross salary of Rs.9,450/- per month and net salary

of Rs.7,557/- per month by working as Lineman Operator.

4. The first respondent-driver and second respondent-owner of the

Eicher Van remained ex parte before the Tribunal. The third

respondent-insurer filed a counter opposing the claim and denying

their liability to pay the compensation.

5. On the strength of the above pleadings, the Tribunal framed the

following issues for trial:

(i) Whether the accident occurred due to rash and negligent driving of the Eicher Van bearing No.AP 28X-0526?

             (ii)    Whether     the   petitioners   are   entitled    for
                     compensation, if so, to what amount and from
                     whom?
             (iii)   To what relief?

6. During enquiry, P.Ws.1 to 3 were examined and Exs.A-1 to

A-7 were marked on behalf of the claimants. No oral evidence was

adduced on behalf of the insurer, but copy of the insurance policy

was marked as Ex.B-1 with consent.

7. On a consideration of the evidence available on record, the

Tribunal held on issue No.1 that the accident occurred due to the rash

and negligent driving of the Eicher Van by its driver. On issue No.2,

the Tribunal held that the claimants are entitled for a total

compensation of Rs.9,87,224/-. Accordingly, an award was passed

for the said amount with interest at 7.5% per annum. Not satisfied

with the award, the claimants filed the present appeal seeking

enhancement of compensation.

8. The finding of the Tribunal that the accident occurred due to the

rash and negligent driving of the Eicher Van by its driver is not

challenged, as no appeal is filed by the insurer. The further finding

that the owner and insurer of the Eicher Van are jointly and severally

liable to pay the compensation is also not disputed.

9. The only question, which arises for consideration in this appeal,

is whether the claimants are entitled for any enhancement of

compensation and if so to what extent.

10. Though it is disputed by the claimants that the deceased was

aged 38 years, but it is borne out from the record and the evidence of

P.W.3, who is Junior Accounts Officer, that the deceased was aged

41 years at the time of accident and was working as Lineman

Operator, earning Rs.9,450/- per month and getting a net salary of

Rs.7,557/- per month. The Tribunal, after deducting 1/4th of the

income of the deceased towards personal expenses, estimated the loss

of dependency at Rs.5,668/- per month (Rs.7,557/- minus Rs.1889/-)

and Rs.68,016/- per annum. After applying the multiplier '14'

estimated the loss of dependency at Rs.9,52,224/- (Rs.68,016 x 14).

The Tribunal further awarded an amount of Rs.15,000/- towards loss

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

Rs.5,000/- towards transportation and funeral expenses, making up a

total compensation of Rs.9,87,224/-.

11. The learned counsel for the appellants contends that the

Tribunal had erroneously taken the salary of the deceased at

Rs.7,557/-, instead ought to have taken Rs.9,364/- (Rs.9459/- minus

Rs.80/- professional tax). The learned counsel further contends that as

per the judgment of the Apex Court in NATIONAL INSURANCE

COMPANY LIMITED v. PRANAY SETHI AND OTHERS1, an

addition of 30% of the income should be made where the deceased

had permanent job and was in between the age group of 40 to 50

years. If there are six dependants, one-fifth has to be deducted from

the annual income of the deceased. The Tribunal had erroneously

applied multiplier '14' instead of '15' since the deceased was aged

41 years at the time of accident. Further, the amounts awarded under

the conventional heads are very low. He finally prayed for

enhancement of compensation.

12. The learned counsel for respondent No.3-insurance company,

on the other hand, contends that the multiplier '14' applied by the

Tribunal is just and proper. After considering the material on record,

both oral and documentary, the Tribunal had arrived at correct

compensation, which is just and reasonable and needs no interference.

13. According to the claimants, the deceased was aged 38 years at

the time of the accident and was drawing a salary of Rs.7,557/-. It is

borne out from the record that the deceased was drawing a salary of

Rs.9,364/- per month (Rs.9459/- minus Rs.80/- professional tax).

month. If 30% is added as future prospects to the income of the

2017 ACJ 2700

deceased, who had permanent job and was in between the

age group of 40 to 50 years, the same comes to Rs.2,809/- (Rs.9364/-

plus 30% of Rs.9364/-). The total monthly income comes to

Rs.12,173/- (Rs.9,364/- plus Rs.2,809/-) and Rs.1,46,076/- per annum.

As the deceased had six dependents, one fourth of the income

has to be deducted towards personal expenses. Applying the same, it

comes to Rs.1,09,557/- (Rs.1,46,076/- minus Rs.39,519/- (1/4th of

Rs.1,46,076/-)). The appropriate multiplier applicable to the age of the

deceased would be '14' as per judgment of the Apex Court in SARLA

VARMA v. DELHI TRANSPORT CORPORATION2. Thus, the

loss of dependency works out to Rs.15,33,798/-. An amount of

Rs.40,000/- is awarded, as against Rs.15,000/- awarded by the

Tribunal, towards loss of consortium to claimant No.1. Further, an

amount of Rs.1,20,000/- is awarded to claimants 2 to 4, who are

children of the deceased, as against Rs.15,000/- awarded by the

Tribunal, towards loss of estate. An amount of Rs.80,000/- is

awarded to claimants 5 and 6 towards parental consortium and a

further sum of Rs.30,000/- is awarded towards transportation and

funeral expenses, as against Rs.5,000/- awarded by the Tribunal,

under the said head. Thus, in all the claimants are entitled to

Rs.18,03,798/- as compensation.

14. In the circumstances, the impugned award of the Tribunal is

modified accordingly.

2009(6) SCC 121

15. In the result, the M.A.C.M.A is allowed-in-part by enhancing

the compensation awarded by the Tribunal from Rs.9,87,224/- to

Rs.18,03,798/-. The enhanced amount shall be apportioned among

the claimants in the same proportion in which original compensation

amounts were directed by the Tribunal. The enhanced amount shall

carry interest at 7.5% p.a. from the date of award passed by the

Tribunal till the date of realization. There shall be no order as to

costs.

Pending miscellaneous applications, if any, shall stand closed.

____________________ JUSTICE G.SRI DEVI Date: 31.01.2022 Lrkm