The New India Assurance Company ... vs Shaik Hameed 4 Others
2022 Latest Caselaw 5005 Tel

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                  M.A.C.M.A.No.934 OF 2016
JUDGMENT:

This appeal is directed against the award dated 15.11.2010 in

O.P.No.80 of 2006, on the file of the Motor Accidents Claims

Tribunal-cum-III-Additional District Judge (FTC), Nizamabad

(for short 'the Tribunal), wherein the said claim application filed

by respondent Nos.1 and 2 herein seeking compensation was

allowed-in-part, awarding Rs.3,91,400/- with interest at 6% per

annum from the date of petition.

2. Heard both sides. Perused the material on record.

3. Respondent Nos.1 and 2 herein filed claim application

seeking compensation of Rs.5,00,000/- on account of death of the

deceased Sk.Ghouse in a motor vehicle accident that occurred on

10.04.2004 at about 04:45 p.m. According to the claimants, on

that day, the deceased was driving motor cycle bearing No. AP 15

TR B 4860 from Kamareddy towards Nizamabad on the side of the

road and when he reached Mallupet Village outskirts on Hyderabad

- Nagpur road on NH7, one Maruthi car bearing No. AP 9 AT 5369

driven by its driver in a rash and negligent manner at high speed

came in the opposite direction and dashed the motor cycle and the

deceased fell down and the front wheel of maruti car ran over the

deceased. As a result of the accident, the deceased received head

injuries, skull fracture and injuries to right hand, right leg and right

shoulder. He was shifted to Government Hospital, Kamareddy

where he died on the same day. Police, Sadashivnagar registered a

case in Cr.No.41 of 2004 against the owner of the maruti car.

According to the claimants, the deceased was a bachelor, aged 24

years and were dependant on the earnings of the deceased. He was

a cook and doing fruits and vegetable business, earning Rs.6,000/-

per month.

4. The appellant herein, who is insurer of maruti car and

respondent No.4, who is insurer of motor cycle, filed separate

written statements opposing the claim and denying their liability to

pay the compensation.

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

Tribunal held that the accident occurred due to the rash and

negligent driving of the maruti car by its driver. The Tribunal

further held that the claimant was entitled for a total compensation

of Rs.3,91,400/-. Accordingly, an award was passed for the said

amount with interest at 6% per annum. Aggrieved by the same, the

insurer of the maruti car filed the present appeal.

6. The learned counsel for the appellant-insurer would contend

that the Tribunal has not taken into consideration that the deceased

alone was responsible for the accident; that the Tribunal had

wrongly considered the age of the deceased while applying the

multiplier and it ought to have taken the age of the mother, as he

was a bachelor. The Tribunal ought to have deducted one half of

the income deceased towards personal expenses, instead of one

third, as he was a bachelor.

7. After careful consideration of the entire material on record,

the Tribunal had given a finding to the effect that the rider of

the motorcycle died in the accident due to the rash and

negligent driving of the maruti car by its driver. P.W.3, who is

eye-witness to the accident, categorically deposed that the accident

occurred due to rash and negligent driving of the maruti car only.

The appellant-insurer had not examined the driver of the maruti car

to prove that at time of accident, the deceased drove the motorcycle

in a rash and negligent manner and also to show that there was

no negligence on the part of the driver of the maruti car.

The Tribunal, basing on the oral and documentary evidence, held

that the accident occurred due to the rash and negligent driving of

the maruti car. Therefore, the contention of learned counsel for the

appellant that there was contributory negligence on the part of the

deceased while riding the motorcycle cannot be accepted.

8. The Tribunal had calculated the income of the deceased at

Rs.2400/- per month and after deducting one-third towards his

personal expenses, arrived at Rs.1,600/- per month and Rs.19,200/-

per annum (Rs.1,600/- x 12). After applying the multiplier '17',

awarded an amount of Rs.3,26,400/- (Rs.19,200/- x 17). Further,

in the case on hand, the notional income of the deceased was fixed

at Rs.2,400/- per month. It is true, as contended by learned counsel

for the appellant, that the deceased was a bachelor and 50% of the

actual income should be deducted towards personal expenses of the

deceased. If the same is taken into consideration, as per the

principle laid down by the Hon'ble Apex Court in SARLA

VARMA v. DELHI TRANSPORT CORPORATION1, it comes

to Rs.1,200/- (Rs.2,400 x 1/2) and Rs.14,400/- per annum. The

2009(6) SCC 121

deceased was aged 24 years at the time of accident and the

appropriate multiplier applicable, as per the above said decision, is

'18'. If is the same is applied, it comes to Rs.2,59,200/-

(Rs.14,400/- x 18) towards loss of dependency. If an additional

40% is added to the income of the deceased as per the decision of

the Hon'ble Apex Court in NATIONAL INSURANCE

COMPANY LIMITED v. PRANAY SETHI AND OTHERS2

towards future prospects, the same works out to Rs.3,62,880/-

(Rs.2,59,200/- + Rs.1,03,680/- i.e., 40% of Rs.2,59,200/-).

Respondents 1 and 2, who are the parents of the deceased, are

entitled to Rs.40,000/- each under the head parental consortium

as per the decision of the Hon'ble Apex Court in MAGMA

GENERAL INSURANCE COMPANY LTD. v. NANU RAM

ALIAS CHUHRU RAM AND OTHERS3 and Rs.15,000/-

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

Rs.5,000/- towards transportation expenses.

9. In the circumstances, the claimants are entitled for a

total compensation of Rs.4,77,880/- (Rs.3,62,880/- + Rs.80,000/- +

2017 ACJ 2700 3 (2018) 18 SCC 130

Rs.15,000/-, Rs.1,5000/- + Rs.5,000/-). However, the Tribunal

awarded Rs.3,91,400/-. In view of the decision of the RANJANA

PRAKASH AND OTHERS v. THE DIVISIONAL MANAGER

AND ANOTHER4, this court cannot increase the compensation in

an appeal filed by the owner/insurer. Undisputedly, the claimants

did not independently challenge the award of compensation. In an

appeal filed by the owner/insurer, the claimants will not be entitled

to seek enhancement of compensation by urging any new ground,

in the absence of any appeal or cross-objections. Therefore, in the

given facts and circumstances, the compensation awarded by the

Tribunal is just and reasonable and needs no interference.

10. In the result, the appeal is dismissed. There shall be no order

as to costs.

11. Pending miscellaneous petitions, if any, stand closed.

_______________________ A.SANTHOSH REDDY, J 11.10.2022 Lrkm

(2011) 14 SCC 639