Tata Aig General Insurance Co. ... vs M. Kalpana,
2022 Latest Caselaw 3959 Tel

             THE HON'BLE JUSTICE G. SRI DEVI
                              AND
      THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                    M.A.C.M.A.No.2290 of 2017

JUDGMENT: (Per Hon'ble Justice G. Sridevi)


      This appeal is filed under Section 173 of Motor Vehicles

Act, aggrieved by the order and decree, dated 15.06.2017

passed in M.V.O.P.No.148 of 2014 on the file of the Motor

Vehicles Accidents Claims Tribunal-cum-XII Additional Chief

Judge, City Civil Court, Secunderabad (for short "the Tribunal").


2.    For the sake of convenience, the parties will be hereinafter

referred to as arrayed before the Tribunal.


3.    Brief facts of the case are that the claimants filed a

petition under Section 166 of the Motor Vehicles Act, 1988

claiming compensation of Rs.55,00,000/- for the death of one

M.Ramesh (hereinafter referred to as "the deceased"), who died

in a motor vehicle accident. It is stated that on 25.10.2013 the

deceased went for morning walk at Thumukunta towards Bits

Pilani Road and while he was returning to home and reached

Gaddila X Roads, a Tata Venture bearing No.AP 28 BV 8927,

owned by respondent No. 1 and insured with respondent No. 2,

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being driven by its driver in a rash and negligent manner at

high speed dashed the deceased, due to which the deceased

sustained multiple injuries and he succumbed to injuries while

undergoing treatment in Vijaya Health Care Hospital,

Hyderabad. According to the claimants, the deceased was 42

years, doing lorry transport business, civil contractor and real

estate business and earning Rs.2,58,604/- per annum.

Therefore, they laid the claim against the respondents seeking

compensation of Rs.55.00 lakhs.

4. The respondent No. 1 remained ex parte and the

respondent No. 2 filed its counter denying the allegations in the

claim petition. The Tribunal considering the oral and

documentary evidence brought on record, allowed the O.P. in

part awarding a sum of Rs.40,49,950/- towards compensation

with interest at 7.5% per annum, to be paid by the respondents

jointly and severally. Challenging the same, the Insurance

Company filed the present appeal.

5. Heard and perused the record.

6. The learned Standing Counsel for the appellant submits

that P.W.1 informed the hospital authorities at the time of

GSD, J and JS, J Macma_2290_2017

admitting the deceased that the brother of the deceased

informed her that an unknown lorry hit the deceased, based on

which an F.I.R. was lodged, however, subsequently, the

offending vehicle i.e., Van was implicated in the case in order to

claim compensation. It is further submitted that the deceased

was doing lorry transport business and therefore, even in the

absence of the deceased, his family members can maintain the

business and at the most they have sustained only a

supervisory loss. Further, although the claimants have filed the

income tax returns of the deceased for the years 2008-09, 2009-

10, 2010-11 and 2011-12 under Exs.X2 to X5, the Tribunal

erred in taking the income of the deceased only basing on the

income tax returns of 2011-2012, instead average income

basing on those returns ought to have been taken. It is also

submitted that the Tribunal has taken the future prospects of

the deceased at 30%, however considering the age of the

deceased at 42 years only 25% ought to have been added to the

existing income of the deceased in view of the law laid down by

the Apex Court in National Insurance Company Limited Vs.

Pranay Sethi and others1. As regards the conventional heads,

2017 ACJ 2700

GSD, J and JS, J Macma_2290_2017

it is submitted that the Tribunal has awarded abnormal

amounts of Rs.4,75,000/- and in view of the judgment of the

judgment of the Apex Court in Pranay Sethi (supra) it should

be reduced to Rs.77,000/-. It is lastly contended that the

Tribunal has awarded interest at 9% which is on higher side

and it should be reduced to 6%.

7. Learned Counsel appearing for the claimants submits that

the Tribunal has awarded just compensation, which needs no

interference by this Court.

8. The first contention of the learned Counsel for the

appellant is that the version of P.W.1 is that one unknown lorry

hit the deceased, but the present vehicle is the Van but not

Lorry and therefore, the present vehicle is implicated to claim

compensation. In this regard, it is to be seen that P.W.1 is

hearsay witness but not an eye witness to the accident. In fact,

P.W.2, an eye witness to the accident, has categorically deposed

that the Tata Venture bearing No.AP 28 BV 8927 came in rash

and negligent manner at high speed on wrong side and dashed

against the deceased. Even though P.W.2 was cross-examined

at length nothing contra, to disbelieve his evidence, in this

regard, is elicited by the Insurance Company. Further, no

GSD, J and JS, J Macma_2290_2017

evidence is adduced by the Insurance Company to support their

version. Therefore, the findings of the Tribunal in this regard

need no interference.

9. With regard to the second contention of the learned

Standing Counsel for the appellant that basing on Exs.X2 to X5,

average income shown therein ought to have been taken but not

Ex.X5 i.e., the I.T. Returns for the year 2011-2012, it is to be

seen that the version of the claimants is that the deceased was

not only doing lorry transport business but also a civil

contractor and doing real estate business. Such being the case,

the Tribunal has rightly fixed the income of the deceased at

Rs.2,58,604/- per annum basing on Ex.X5.

10. As regards the future prospects is concerned, admittedly,

the deceased was 42 years and was self-employed. Therefore,

as rightly contended by the learned Standing Counsel for the

appellant, only 25% future prospects to the established income

of the deceased is to be added but not 30%. Thus, by adding

25% to the established income of the deceased, the future loss

of annual income comes to Rs.3,23,255/- (Rs.2,58,604/- +

Rs.64,651/- being 25%). Therefore, after deducting 1/4th from

the annual income of the deceased towards living and personal

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expenses, the net annual contribution to the family comes to

Rs.2,42,441/-. Since the deceased was 42 years, by applying

multiplier '14' thereto, the total loss of contribution to the family

comes to Rs.2,42,441/- x 14 = 33,94,174/-. Thus, under this

head, the amount of Rs.35,29,946/- awarded by the tribunal is

reduced to Rs.33,94,174/-.

11. As regard the conventional heads is concerned, as per the

law laid down by the Apex Court in Pranay Sethi (supra), the

claimants are entitled to only Rs.77,000/- towards loss of

consortium, loss of estate and funeral expenses, therefore, the

amount of Rs.4,75,000/- awarded by the Tribunal towards loss

of consortium, loss of love and affection to the children and

mother, loss of estate and funeral expenses is hereby reduced to

Rs.77,000/- only. Thus, the compensation amount of

Rs.40,49,950/- awarded by the Tribunal is hereby reduced

Rs.34,71,174/-.

12. Insofar as the interest awarded by the Tribunal is

concerned, as per the decision of the Apex Court in Rajesh and

others v. Rajbir Singh and others2 the claimants are entitled

2 2013 ACJ 1403 = 2013 (4) ALT 35

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

realization. Hence the interest granted by the Tribunal @ 9%

per annum is reduced to 7.5% per annum on Rs.34,71,174/-

from the date of petition till the date of realization.

13. Accordingly, the M.A.C.M.A. is partly allowed and the

compensation awarded by the Tribunal is reduced from

Rs.40,49,950/- to Rs.34,71,174/-, which shall carry interest at

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

realization. The said amount shall be apportioned in the ratio

as ordered by the Tribunal. The appellant shall deposit the said

compensation amount together with interest and costs after

giving due credit to the amount already deposited, within a

period of two months from the date of receipt of a copy of this

judgment. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________ G. SRI DEVI, J

___________________________ SMT. JUVVADI SRIDEVI, J 29.07.2022 tsr

GSD, J and JS, J Macma_2290_2017

THE HON'BLE JUSTICE G. SRI DEVI AND THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

M.A.C.M.A.No. 2290 of 2017 Date: 29.07.2022