Kurva Kashamma vs Asadulla Khan
2022 Latest Caselaw 5118 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                  M.A.C.M.A.No.2157 OF 2017
JUDGMENT:

This appeal is directed against the award dated 11.05.2017

in M.V.O.P.No.553 of 2014, on the file of the Motor Accidents

Claims Tribunal-cum-Family Court-VIII Additional District

and Sessions Judge, Mahabubnagar (for short 'the Tribunal),

wherein the said claim application filed by appellants herein

seeking compensation was allowed-in-part, awarding Rs.4,91,000/-

with interest at 9% per annum from the date of petition.

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

counsel for the respondents. Perused the material on record.

3. The appellants herein filed claim application seeking

compensation of Rs.6,00,000/- on account of death of the deceased

Kurva Arjunappa, who died in a motor vehicle accident that

occurred on 02.12.2014 at 08:30 p.m. According to the claimants,

on that day, the deceased and his villagers started from their village

Kondareddypalli in order to go to ACC cements office, Kodangal

by walk and when the deceased reached near Lahoti Colony Arch

at about 10:30 a.m., meanwhile, the driver of the tractor bearing

No.AP 28 AR 7504 with trolley No.AP 22 X 3136, driven by its

driver in a rash and negligent manner, came from Kodangal bus

stand towards Ravulapally village side and dashed the deceased, as

a result of which, the deceased received grievous injuries. He was

shifted to Government Civil Hospital, Kodangal for treatment and

later to Gandhi Hospital, Hyderabad and on the way, the deceased

succumbed to injuries. Police, Kodangal registered a case in

Cr.No.167 of 2014 under Section 304-A IPC against the driver of

the tractor. Claimant No.1 is the husband and claimant Nos.2 and 3

are the children of the deceased. According to the claimants, the

deceased was aged 48 years as on the date of accident and working

as Hamali at ACC cements godown at Pyalamaddi and earning

Rs.300/- per day and contributing the same to his family.

4. Respondent No.1 - owner of the tractor and respondent

No.2- insurer, filed counters opposing the claim and denying its

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 tractor by its driver. The said finding

had become final, as no appeal is preferred by the respondents

questioning the same. The Tribunal further held that the claimants

are entitled for a total compensation of Rs.4,91,000/-. Accordingly,

an award was passed for the said amount with interest at 9% per

annum. Not satisfied with the same, the claimants field the present

appeal seeking enhancement of compensation.

6. It is not disputed that the first claimant is the wife and

claimants 2 and 3 are the children of the deceased. According to

the claimants, the deceased was working as Hamali at ACC

Cements godown and earning Rs.300/- per day and was

contributing the same to his family. The claimants have not filed

any document to show that the deceased was earning Rs.300/- per

day. However, the Tribunal has considered the oral evidence on

record and fixed the monthly income at Rs.4,500/-. Though

learned counsel for the claimants would submit that the income of

the deceased should be fixed at Rs.300/- per day and at Rs.9,000/-

per month, as he was working as Hamali in ACC Cements.

Admittedly, the evidence on record discloses that there is no

document to prove the actual income of the deceased and the

claimants ought to have collected the remuneration register paid to

Hamalies in ACC cements to substantiate their contention,

however, they failed to do so. The Tribunal had rightly fixed

the income of the deceased at Rs.4,500/- per month, basing on

the oral evidence. The said fixation of income is either excessive

or unreasonable. The Tribunal, basing on the post-mortem

report-Ex.A-3, held that the age of the deceased was shown as

48 years and as per the claim petition, the age of the deceased is

shown as 45 years. The Tribunal had taken the age of the

deceased in between 46-50 years, but, however, applied the

multiplier '11'. The appropriate multiplier as per the decision of

the Hon'ble Apex Court in SARLA VARMA v. DELHI

TRANSPORT CORPORATION1, would be '13'. As there is no

proper documentary evidence about the exact age of the deceased,

the Tribunal rightly had taken into consideration Exs.A-3 and A-6

and applied the multiplier '11', as the deceased was in age group

of 46-50 years. As per the decision of the Hon'ble Apex Court in

NATIONAL INSURANCE COMPANY LIMITED v.

2009(6) SCC 121

PRANAY SETHI AND OTHERS2, if 25% is added towards

future prospects, the income of the deceased comes to Rs.5,625/-

per month (Rs.4,500 + Rs.1,125/-). After deducting one-third

towards personal expenses, the contribution of the deceased to the

family comes to Rs.3,750/- per annum (Rs.5,625/- - Rs.1,875/-)

and Rs.45,000/- per annum. If multiplier '13' is applied, the loss

of dependency of the claimants works out to Rs.5,85,000/-

(Rs.45,000/- x 13).

7. The Tribunal awarded Rs.50,000/- towards consortium,

Rs.25,000/- towards funeral expenses, Rs.10,000/- towards

transportation expenses and Rs.10,000/- towards love and

affection. The amounts awarded by the Tribunal under the

conventional head have to be modified in view of the decision of

the Hon'ble Apex Court in MAGMA GENERAL INSURANCE

COMPANY LIMITED v. NANU RAM @ CHUHRU RAM3'.

Accordingly, claimant No.1 is entitled for Rs.40,000/- towards loss

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

towards funeral expenses. The said quantified amounts under

2017 ACJ 2700 3 2018 Law Suit (SC) 904

conventional heads should be enhanced at the rate of 10% for a

span of every three years, as per the above decision. Thus, the

claimants are entitled for 20% enhancement i.e., Rs.84,000/-

(Rs.70,000/- + Rs.14,000/- i.e., 20% of Rs.70,000/-). So far as

awarding of compensation to claimants 2 and 3 under parental

consortium is concerned, learned counsel for the 2nd respondent-

insurer would submit that as per the decision of the Apex Court in

NEW INDIA ASSURANCE COMPANY LIMITED v. VINISH

JAIN AND OTHERS4, major sons are not entitled for any

compensation towards loss of love and affection. Thus, in all, the

claimants are entitled for a compensation of Rs.6,69,000/-

(Rs.5,85,000 + Rs.84,000/-).

8. On the above conclusions, the appeal is allowed. The award

of the Tribunal is modified by enhancing the compensation from

Rs.4,91,000/- to Rs.6,69,000/-. The enhanced amount shall carry

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

i.e., 11.05.2017 till realization, payable by respondents 1 and 2

jointly and severally. The claimants shall pay deficit court fee on

the enhanced compensation, since the claim is for Rs.6,00,000/-. 4 (2018) 3 SCC 619

If the deficit court fee is not paid as per Rule 475 of the M.V. Rules

before the Tribunal, the claimant is not entitled for execution of

Award in respect of enhanced compensation. The amount of

compensation shall be apportioned among the claimants in the ratio

as ordered by the Tribunal. There shall be no order as to costs.

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

_______________________ A.SANTHOSH REDDY, J 14.10.2022 Lrkm