V.Srilatha 3 Ors vs Lakshanshi Bhima Parmar Anr
2022 Latest Caselaw 5185 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                    M.A.C.M.A.No.1424 OF 2016
JUDGMENT:

This appeal is directed against the award dated 13.01.2016

in O.P.No.192 of 2013, on the file of the Motor Accidents Claims

Tribunal-cum-VII Additional District Judge, Mahabubnagar

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

by appellants herein seeking compensation was allowed-in-part,

awarding Rs.17,11,000/- with interest at 9% per annum from the

date of petition.

2. Heard learned counsel for the appellants and learned counsel

for the 2nd respondent-insurer. None appears for the 1st respondent-

owner of the lorry. Perused the material on record.

3. The appellants herein filed claim application seeking

compensation of Rs.20 lakhs on account of death of the deceased

Chinnapaga Bheemaiah @ Bheemraj, who died in a motor vehicle

accident that occurred on 07.03.2013 at 05:30 p.m near Nannu

Village Shivar. Claimant No.1 is the wife, claimant No.2 is the

minor daughter and claimant 3 and 4 are the parents of the

deceased. According to the claimants, on that day, the deceased

along with his troupe left for Banaganapalli Village from

Nagarkurnool in Toofan vehicle bearing No.AP 27 X 1143 for

conducting the programme "Relare Relea Janapadageethalu'. On

the way near Nannuru Village Shivar on NH 18 road at Abhi Hotel,

a lorry bearing No.GJ 25T 8685 which was proceeding towards

Kurnool came in the opposite direction at high speed and dashed

the Toofan vehicle which was on extreme left side of the road.

As a result, the deceased sustained bleeding injuries and died

instantly. The other inmates of the vehicle sustained severe

injuries. Police registered a case in Cr.No.31 of 2013 against the

driver of the lorry for the offences punishable under Sections

304-A, 337 and 338 IPC. According to the claimants, the deceased

was aged 28 years and was hale and healthy at the time of accident

and was eking out his livelihood by maintaining Toofan vehicle

and earning Rs.20,000/- per month and used to contribute the same

for the family. The deceased was also paying monthly installment

of Rs.10,000/- for the vehicle which was taken on finance.

4. Respondent No.1-owner of the lorry remained ex parte.

Respondent No.2-insurer filed counter 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.17,11,000/-.

Accordingly, an award was passed for the said amount with interest

at 9% per annum. Not satisfied with the same, the claimants filed

the present appeal seeking enhancement of compensation.

6. Learned counsel for the appellants submits that the deceased

was a driver and earning Rs.10,000/- per month and in support of

his contention, he relied on the decision of the Apex Court in

JANABAI Wd/O DINKARRAO GHORPADE v. I.C.I.C.I

LOMBARD INSURANCE COMPANY LTD1, wherein the

income fixed by the Tribunal at Rs.10,000/- per month in the

1 LAWS (SC) 2022-8-38

absence of salary certificate was agreed by the Hon'ble Apex

Court. The learned counsel submitted to fix the monthly income of

the deceased at Rs.10,000/- per month and also add 40% on the

income of the deceased towards future prospects and award

compensation towards loss of future earnings.

7. Learned counsel for respondent No.2-insurer submits that

the Tribunal had taken into consideration the fact that the deceased

was a driver and after considering the oral evidence fixed the

monthly income of the deceased at Rs.8,000/- per month and no

error is committed by the Tribunal in fixing the monthly income of

the deceased.

8. The only question that arises for consideration in the present

appeal is - whether the claimants are entitled for enhancement of

compensation, and if so to what extent?

9. It is not in dispute that the claimant No.1 is the wife,

claimant No.2 is the minor daughter and claimant 3 and 4 are the

parents of the deceased. According to the claimants, the deceased

was hale and healthy and was aged about 28 years as on the date

of the accident and is a professional driver. The deceased, having

purchased Toofan vehicle for his livelihood under finance, was

paying the EMIs regularly from out of the income, besides

supporting the family consisting of himself and claimant

Nos.1 to 4. The claimants examined P.W.2, Managing Director of

the Finance Company, to prove the fact that the deceased

borrowed loan of Rs.2,05,000/- by agreeing to repay the same

in 24 instalments with interest at 18% per annum and purchased

the vehicle. Having regard to the said fact, the Tribunal, after

taking into consideration the facts and circumstances of the case,

had taken the income of the deceased at Rs.8,000/- per month

and by adding 50% on his monthly income towards future

prospects assessed the income at Rs.12,000/- (Rs.8,000/- +

Rs.4,000/- i.e., 50% of Rs.8,000/-).

10. Admittedly, the Tribunal had taken into consideration the

oral evidence of the claimants, particularly the evidence of P.W.2,

and assessed the monthly income of the deceased at Rs.8,000/- and

the same appears to be just and reasonable and in the absence of

any proof, either oral or documentary, the same cannot be

modified. Therefore, the income of the deceased can be taken at

Rs.8,000/- per month for the purpose of calculating the

compensation. As per the decision of the Hon'ble Apex Court in

NATIONAL INSURANCE COMPANY LIMITED v.

PRANAY SETHI AND OTHERS2, if 40% is added towards

future prospects, the income of the deceased comes to Rs.11,200/-

per month (Rs.8,000/- + Rs.3,200/-). Claimants 1 to 4 are the

dependents of deceased and after deducting one-fourth towards

personal expenses, the contribution of the deceased to the family

comes to Rs.8,400/- per annum (Rs.11,200/- - Rs.2,800/- i.e., 1/4th

of Rs.11,200/-) and Rs.1,00,800/- per annum (Rs.8,400/- x 12).

The deceased was aged 28 years at the time of accident and

if the appropriate multiplier '17' is applied as per the decision of

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

TRANSPORT CORPORATION3, the loss of dependency of the

claimants works out to Rs.17,13,600/- (Rs.1,00,800/- x 17).

Hence, the claimants are awarded the said amount towards loss of

dependency.

2017 ACJ 2700

2009(6) SCC 121

11. The Tribunal awarded Rs.1,00,000/- towards consortium to

claimant No.1-wife and Rs.50,000/- towards loss of love and

affection, care and guidance to claimant No.2-minor daughter and

Rs.25,000/- towards funeral expenses. The amounts awarded by

the Tribunal under the said conventional heads 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 RAM4'. Accordingly, claimant No.1 is

entitled for Rs.40,000/- towards spousal consortium, Rs.15,000/-

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

The said quantified amounts under 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/-). Claimant No.2 being the minor daughter of the

deceased is entitled to parental consortium at Rs.40,000/- and

claimants 3 and 4, being the parents of the deceased, are entitled to

filial consortium at Rs.40,000/- each.

4 2018 Law Suit (SC) 904

12. Thus, in all, the claimants are entitled for a compensation of

Rs.19,17,600/- (Rs.17,13,600/- + Rs.84,000/- + Rs.40,000/- +

Rs.80,000/-).

13. In the result, the appeal is allowed-in-part. The award of the

Tribunal is modified by enhancing the compensation from

Rs.17,11,000/- to Rs.19,17,600/-/-. The enhanced amount shall

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

Tribunal i.e., 13.01.2016 till realization, payable by respondents

1 and 2 jointly and severally. 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.

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

_______________________ A.SANTHOSH REDDY, J 19.10.2022 Lrkm