Telangana High Court

Yerragolla Sailu 2 Others vs B. Mallesh Another on 15 March, 2022

Bench: G Sri Devi

                HONOURABLE JUSTICE G. SRI DEVI

                     M.A.C.M.A. No.3332 of 2008

JUDGMENT:

Being not satisfied with the quantum of compensation

awarded in the judgment and decree, dated 10.02.2005 passed

in O.P.No.1540 of 2002 on the file of the Motor Accidents Claims

Tribunal (Fast Track Court), Nizamabad (for short "the

Tribunal"), the appellants/claimants preferred the present

appeal seeking enhancement of the compensation.

For the sake of convenience, the parties will be

hereinafter referred to as arrayed before the Tribunal.

The facts, in issue, are as under:

The claimants filed a petition under Section 166 of the

Motor Vehicles Act, 1988, claiming compensation of

Rs.3,00,000/- for the death of one Y.Mahender @ Mahesh

(hereinafter referred to as "the deceased"). It is stated that on

the intervening night of 22/23-09-2002 at 0.30 hours the

deceased, along with others, were traveling in an auto bearing

No.AP 23 U 609 from Dhaba Hotel, Ramayampet town side and

GSD, J Macma_3332_2008

on the way the driver of the auto drove the same at high speed

in rash and negligent manner and dashed against a stationed

lorry bearing No.AP 1 T 351, as a result of which, the driver of

the auto sustained grievous injuries and the deceased died on

the spot. On a complaint, a case in Crime No.92 of 2002 has

been registered against the driver of the Auto. It is also stated

that the deceased was aged about 24 years and was working as

auto driver and earning Rs.6,000/- per month. In view of the

sudden death of the deceased, the claimants lost their source of

income. As the accident occurred due to the rash and negligent

driving of the driver of the Auto, the claimants filed the above

O.P. against the respondents 1 and 2, who are the owner and

insurer of the said Auto, respectively.

Before the Tribunal, the 1st respondent remained ex

parte.

The 2nd respondent filed counter denying all the

averments made in the claim-petition, including the manner in

which the accident took place, age, avocation and earnings of

the deceased. It is also contended that the accident took place

GSD, J Macma_3332_2008

due to gross negligence on the part of the driver of the Lorry,

who parked the lorry on the road without parking lights and as

such the owner and insurer of the said lorry are necessary

parties and the claim-petition is bad for non-joinder of

necessary parties.

Basing on the above pleadings, the Tribunal framed the

following issues:

1) Whether the motor vehicle accident occurred due to the rash and negligent driving of the vehicle auto bearing No.AP 23 U 609 by its driver resulting in death of the deceased?

2) Whether the petitioners are entitled for compensation. If so, what amount and from which of the respondents?

3) To what relief?

During trial, on behalf of the claimants, P.Ws.1 and 2

were examined and Exs.A1 to A8 were marked. On behalf of the

respondents, no oral evidence was adduced but Ex.B1-policy was

marked with consent.

After analyzing the evidence available on record, the

Tribunal held that there was 50% negligence on the part of the

GSD, J Macma_3332_2008

driver of the Auto in which the deceased was traveling and 50%

negligence on the part of the driver of the stationed lorry, who

parked the lorry on the road, without parking indicators and

accordingly awarded an amount of Rs.1,85,000/- with interest @

9% per annum from the date of petition till the date of

realization to be paid by the respondents.

Learned Counsel for the claimants mainly submits that

though the charge sheet filed against the driver of the auto, in

which the deceased was traveling, but the Tribunal erred in

holding that there was 50% contributory negligence on the part

of the driver of the stationed lorry. It is further submitted that

the Tribunal ought to have taken the age of the deceased not

the age of his mother while determining the multiplier in view

of the law laid down by the Apex Court in Munna Lal Jain v.

Vipin Kumar Sharma and others1. It is further submitted that

though the deceased was getting Rs.6,000/- per month, the

Tribunal erred in fixing the income of the deceased at

Rs.3,000/- per month. It is further submitted that as per the

2015 (6) SCC 347

GSD, J Macma_3332_2008

principles laid down by the Apex Court in National Insurance

Company Limited Vs. Pranay Sethi and others2, the claimants

are also entitled to the future prospects. Therefore, it is

argued that the income of the deceased may be taken into

consideration reasonably for assessing loss of dependency and

prayed to enhance the same.

Per contra, the learned Counsel for the Insurance

Company submits that the income of the deceased has rightly

been taken by the Tribunal as Rs.3,000/- per month since no

documents have been produced to prove the income of the

deceased. It is further submitted that since the deceased was a

bachelor, the Tribunal erred in deducting 1/3rd towards personal

and living expenses of the deceased instead of 50%. On the

point of future prospects, learned Counsel submits that the

matter has been considered by the Apex Court in National

Insurance Company Limited Vs. Pranay Sethi and others (2

supra) and as per that judgment, the claimants are entitled 40%

2017 ACJ 2700

GSD, J Macma_3332_2008

amount towards future prospects. It is further submitted that

the compensation towards non-pecuniary damages has been

rightly granted by the Tribunal and the same need not be

enhanced. It is also submitted that the Tribunal has rightly

fixed 50% contributory negligence on the part of the driver of

the lorry, which was stationed on the road without indicators,

which needs no interference.

Insofar as the contributory negligence is concerned,

admittedly Ex.A3-charge sheet has been laid against the driver

of the Auto, alleging that the accident occurred due to rash and

negligent driving of the driver of the auto, but from a perusal of

the F.I.R. it is clear that the driver of the lorry did not take

precautions by switching on the rear lights or place boulders

etc. indicating the stationed lorry. The contents of the F.I.R.

also discloses that the lorry was stationed in the middle of the

road, so, the Tribunal in paragraph No.9 has categorically held

that the drivers of both the auto and the lorry were at

contributory negligence resulting in this accident and answered

the issue No.1 holding that the accident occurred due to rash

GSD, J Macma_3332_2008

and negligent driving of the driver of the auto bearing No. AP 23

U 609 and due to negligent act of the driver of the lorry No. AP

1 T 351 in parking the lorry in the middle of the road without

any indications, and hence, the said finding is found to be

proper and correct. Therefore this Court does not call for any

interference on this aspect.

Insofar as the quantum of compensation is concerned,

though the claimants claimed that the deceased was an auto

driver and was earning Rs.6,000/- per month but no proof of

income has been filed. In Latha Wadhwa vs. State of Bihar3

the Apex Court held that even there is no proof of income and

earnings, it can be reasonably estimated minimum at Rs.3,000/-

per month for any non-earning member. As per Ex.A7-diriving

licence, the deceased was a driver and he was authorized to

drive auto rickshaw. Therefore, this Court is inclined to take

the income of the deceased as Rs.4,000/- per month. Apart

from the same, the claimants are entitled to addition of 40%

towards future prospects, as per the decision of the Supreme

(2001) 8 SCC 197

GSD, J Macma_3332_2008

Court in Pranay Sethi (2 supra). Therefore, monthly income of

the deceased comes to Rs.5,600/- (Rs.4,000/- + Rs.1600/-).

Since the deceased was a bachelor, his personal living expenses

shall be 50% of the said amount, i.e., Rs.2,800/- per month. In

view of the decision of the Apex Court in Munna Lal Jain v.

Vipin Kumar Sharma and others (1 supra) when the deceased

was a bachelor, the age of the deceased has to be considered

while determining the multiplier and not the age of the mother.

Since the age of the deceased was 27 years at the time of the

accident, the appropriate multiplier is '17' as per the decision

reported in Sarla Verma v. Delhi Transport Corporation4.

Adopting multiplier 17, his total loss of earnings would be

Rs.2,800/- x 12 x 17, which comes to Rs.5,71,200/-. The

claimants are also entitled to Rs.33,000/- towards loss of estate

and funeral expenses, as per Pranay Sethi's case (2 supra).

Thus, in all the claimants are entitled to Rs.6,04,200/-. Since

the claimants did not implead the owner and insurer of the

Lorry and that there was a contributory negligence of 50% on

2009 ACJ 1298 (SC)

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the part of the driver of the lorry, the claimants are entitled to

a sum of Rs.3,02,100/- towards 50% of the compensation.

At this stage, the learned Counsel for the Insurance

company submits that the claimants claimed only a sum of

Rs.3,00,000/- as compensation and the quantum of

compensation which is now awarded would go beyond the claim

made which is impermissible under law.

In Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another5, the Apex

Court while referring to Nagappa Vs. Gurudayal Singh6 held as

under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident."

In view of the Judgments of the Apex Court referred to

above, the claimants are entitled to get more amount than what

(2011) 10 SCC 756

2003 ACJ 12 (SC)

GSD, J Macma_3332_2008

has been claimed. Further, the Motor Vehicles Act being a

beneficial piece of legislation, where the interest of the

claimants is a paramount consideration the Courts should always

endeavour to extend the benefit to the claimants to a just and

reasonable extent.

Accordingly, the M.A.C.M.A. is allowed in part. The

compensation amount awarded by the Tribunal is hereby