The Oriental Insurance Company ... vs Smt. Bhukya Lalitha 3 Others
2022 Latest Caselaw 5152 Tel

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                   M.A.C.M.A.No.263 OF 2016
JUDGMENT:

This appeal is directed against the award dated 01.09.2015 in

O.P.No.310 of 2012, on the file of the Chairman, Motor Accidents

Claims Tribunal (District Judge), Nizamabad, (for short 'the

Tribunal), wherein the said claim application filed by respondent

Nos.1 and 2 herein seeking compensation was allowed, awarding

Rs.6 lakhs with interest at 7.5% per annum from the date

of petition.

2. Heard learned counsel for the appellant-insurer. None

appears for respondent Nos.1 and 2. Perused the material on

record.

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

seeking compensation of Rs.5 lakhs on account of death of the

deceased boy Bhukya Naresh on 26.11.2011 at about 04:15 p.m.

According to the claimants, on that day, the deceased along with

one Bhukya Naresh was returning home from the school on a

bicycle and when they reached near Anganwadi School, Mittapally

Village, a lorry bearing No.AP 20 U 8748, driven by its driver in a

rash and negligent manner came from their behind and dashed

their motorcycle due to which they fell down and the deceased

received grievous injuries and died on the spot. Police, Dichpally

registered a case in Cr.No.388 of 2011 against the driver of the

lorry. The deceased was aged 8 years at the time of accident and

was a student.

4. The appellant-insurer filed counter opposing the claim and

denying its liability to pay the compensation. Respondent Nos.3

and 4, who are driver and owner of the lorry, remained ex parte

before the Tribunal.

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 lorry by its driver. The Tribunal

held that the claimants were entitled for a total compensation of

Rs.6 lakhs. Accordingly, an award was passed for the said amount

with interest at 7.5% per annum. Aggrieved by the same, the

appellant-insurer preferred the present appeal.

6. Learned counsel for the appellant would contend that the

Tribunal erred in holding that the deceased was a student aged

8 years, relying on the certified copies of inquest panchanama-

Ex.A-3 and post-mortem examination report A-4; that the Tribunal

erred in awarding compensation of Rs.6 lakhs instead of awarding

Rs.1.5 lakhs towards fixed compensation in terms of Schedule II

of the Motor Vehicles Act; that the compensation awarded is

excessive; and that there was negligence on the part of the

deceased who was proceeding on a bicycle which resulted n the

accident.

7. The finding of the Tribunal is that the accident occurred

due to the rash and negligent driving of the lorry. P.W.2 is the

eye-witness to the accident which took place due to the rash and

negligent driving of the offending lorry by its driver. It is true

that the approximate age of the deceased was taken as '8' years

basing on the certified copies of inquest panchanama-Ex.A-3 and

post-mortem examination report-A-4. The Tribunal by relying

on the judgment of the Apex Court, submitted by learned counsel

for the claimants, in SUBRAMANIAM AND ANOTHER v.

DELHI METRO RAIL CORPORATON AND OTHERS1,

granted compensation of Rs.6 lakhs for the death of the deceased.

However, learned counsel for the appellant-insurer has relied on

the decision of the Hon'ble Apex Court in KISHAN GOPAL

AND ANOTHER v. LALA AND OTHERS2, wherein the Apex

Court while referring to the decision of the Hon'ble Apex Court in

LATA WADHWA v. STATE OF BIHAR3 held at para 36 of

judgment that the compensation amount for the children between

the age group of 5-10 years should be three times. In other words,

it should be Rs.1.5 lakhs to which under the conventional heads

a sum of Rs.50,000/- should be added and thus total amount in

each case would be Rs.2 lakhs. However, in Kishan Gopal's case,

the Hon'ble Apex Court has fixed the notional income and applied

multiplicand and awarded compensation for the death of the

deceased boy. In the said case, the age of the deceased boy was

'10' years and the Apex Court had taken into consideration the

above age and took his notional income at Rs.30,000/- and further

taking the young age of the parents, viz., the mother, who was

12013 Law Suit 2437 2(2014) 1 SCC 244 3(2001) 8 SCC 197

about 36 years, at the time of accident, as per the decision in

SARLA VARMA v. DELHI TRANSPORT CORPORATION4,

applied the multiplier '15' and awarded compensation of

Rs.4,50,000/- and Rs.50,000/- under conventional heads towards

loss of love and affection, funeral expenses, last rites.

8. Coming to the facts of the present case, the Tribunal held

that the deceased boy was aged '8' years at the time of accident.

By applying the legal principles laid down by the Hon'ble Apex

Court in Kishan Gopal's case (2 supra) to this case where the

deceased boy was aged 8 years and was assisting the claimants

and had he been alive, he would have certainly contributed

substantially to the family of the claimants by working hard.

Therefore, it would be just and reasonable to take his notional

income at Rs.30,000/- per annum and further taking into

consideration the young age of the parents namely, the mother,

who was 26 years, as on the date of accident and by applying the

multiplier '17' as per Sarla Verma's case (4 supra), the same

works out to Rs.5,10,000/- ( Rs.30,000/- x 17). As per the

2009(6) SCC 121

decision of the Hon'ble Apex Court in MAGMA GENERAL

INSURANCE COMPANY LIMITED v. NANU RAM @

CHUHRU RAM5, the parents of the deceased boy are entitled to

filial consortium at Rs.40,000/- each. An amount of Rs.10,000/-

towards is awarded towards funeral expenses.

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

compensation of Rs.6,00,000/- (Rs.5,10,000/- + Rs.80,000/- +

Rs.10,000/-) with interest at 7.5% per annum from the date of

petition.

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 17.10.2022 Lrkm

5 2018 Law Suit (SC) 904