Telangana High Court

The Oriental Insurance Company ... vs Smt. Bassi Madari Bai on 23 September, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

           M.A.C.M.A.Nos.892 of 2008 and 2695 of 2009

COMMON JUDGMENT :

        These two appeals are arising out of the same order dated

11.12.2007, in O.P.No.924 of 2006 on the file of Motor Accident

Claims Tribunal-cum-XIII Additional District Judge, Nizamabad.

MACMA.No.892 of 2008 is filed by the claimants for

enhancement of compensation from Rs.4,06,000/- to Rs.6,00,000/-,

whereas, MACMA.No.2695 of 2009 is filed by the Insurance

Company, seeking to set aside the orders in the said O.P.


2.      For the sake of convenience, the parties are referred to as

arrayed in the O.P.


3.      The O.P. is filed under Section 166 of the Motor Vehicles

Act, claiming compensation of Rs.6,00,000/- for the death of one

Bassi Pandarinathu in the accident that occurred on 26.04.2002 at

10.30 p.m. due to the rash and negligent driving of the driver of

Tractor and Trailer bearing No.AP-25-T-3981 and AP-2W-5T-

3982.
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                                                                 GAC, J
                                    MACMA.Nos.892 of 2008 & 2695 of 2009



4.    Heard both sides and perused the material on record.

5.    The learned counsel for the claimants contended that the

Tribunal   ought   to   have    granted    Rs.6,00,000/-      towards

compensation with interest @ 24% per annum and ought to have

considered the income of the deceased as Rs.10,000/- per month

and also ought to have granted Rs.50,000/- towards non-pecuniary

damages, Rs.25,000/- towards funeral expenses and Rs.50,000/-

towards loss of consortium for the 1st claimant, and therefore,

prayed to enhance the compensation under other appropriate heads.


6.    On the other hand, the learned Standing Counsel for the

Insurance Company contended that the Tribunal has not properly

appreciated the evidence on record and gave a perverse finding,

taking the income of the deceased as Rs.3,000/-, though he is not

cultivating any land.    Further, the Tribunal has not properly

deducted the personal expenses of the deceased.          It is further

contended that the Driver of the vehicle does not possess valid

driving licence and by manipulating the crime records, some other

person was shown as Driver of the vehicle, and therefore, prayed to
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                                                                 GAC, J
                                    MACMA.Nos.892 of 2008 & 2695 of 2009



set aside the orders of the Tribunal as far as the liability of the

Insurance Company is concerned.


7.    It is the main contention of the learned counsel for the

Insurance Company that the Driver of the Tractor does not possess

valid driving licence, therefore subsequently, the son of the owner

of the Tractor was shown as the Driver of the vehicle in order to

get compensation from the Insurance Company. Admittedly, the

name of one Srisailam was mentioned in Ex.A-1/FIR as accused,

but FIR cannot be an encyclopedia and it is a weak piece of

evidence in the eye of law. Therefore, the said contention of the

Insurance Company cannot be considered, as the charge sheet was

filed against one Nenavath Bantilal S/o.Mohan Lal, for the offence

punishable under Section 304-A of IPC. It is relevant to mention

that the Insurance Company did not make any effort to prove that

Nenavath Bantilal was not the driver of the Tractor at the time of

the accident. Therefore, it can be construed that the Insurance

Company cannot be exonerated from its liability, and hence, the

appeal of the Insurance Company deserves to be dismissed.
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                                                                     GAC, J
                                        MACMA.Nos.892 of 2008 & 2695 of 2009



8.       As far as the claimants' appeal is concerned, the appreciation

of evidence would be with respect to the quantum of compensation

alone.


9.       The Tribunal has awarded an amount of Rs.3,84,000/-

towards loss of dependency and an amount of Rs.22,000/-

(Rs.2,000 + Rs.5,000 + Rs.15,000), not specified under any head

and the total amount granted by the Tribunal is Rs.4,06,000/- with

interest @ 7.5% and apportioned the same to the claimants.


10.      The age and income of the deceased are disputed in this

case. Admittedly, the postmortem examination report as well as

the inquest report disclose that the deceased was aged about 28

years.      But, PW-1 i.e. the wife of the deceased, in her

cross-examination, admitted that the age of the deceased was 35

years at the time of the accident.          There is no documentary

evidence on record as to the income of the deceased, except the

evidence of PW-1, which disclose that the deceased used to earn

Rs.10,000/- per month by doing cultivation. In the absence of

proper evidence, the Tribunal has considered the income of the
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                                                                         GAC, J
                                            MACMA.Nos.892 of 2008 & 2695 of 2009



deceased as Rs.3,000/- per month.              It is the contention of the

learned counsel for the claimants that the oral evidence of PWs.1

and 2 disclose that the deceased was doing cultivation.


11.      In     the     judgment   of   Hon'ble       Supreme      Court     in

Ramachandrappa vs. Manager, Royal Sundaram Alliance

Insurance Company Limited1, the income of the deceased was

taken as Rs.4,500/- per month as 'Labour' even in the absence of

documentary evidence, for the accident that occurred in the year

2003.         Taking into consideration the said proposition, as the

accident in this case also occurred in the year 2002, the

earnings/income of the deceased is fixed as Rs.4,500/- p.m., and as

stated supra, the age of the deceased can be considered as 35 years.

If 40% future prospects is added to the income of the deceased, it

would come to Rs.6,300/- (Rs.4,500+1,800).                 Thus, the annual

income of the deceased would come to Rs.75,600/- (Rs.6,300 X

12). As the claimants are Six in number, 1/5th of earnings of the

deceased have to be deducted towards his personal expenses.

Thus, his contribution to the family would come to Rs.60,480/-


1
    (2011) 13 SCC 236
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                                                                          GAC, J
                                             MACMA.Nos.892 of 2008 & 2695 of 2009



(Rs.75,600 - Rs.15,120). As per the judgment of Hon'ble Supreme

Court in Smt.Sarla Verma v. Delhi Transport Corporation &

another2, the multiplier applicable is '16' for the age group of 31

to 35 years.           If the multiplier '16' is applied, the loss of

dependency would come to Rs.9,67,680/- (Rs.60,480 X 16).


12.      Thus, the claimants are entitled to the compensation under

the following heads;

         1. Loss of dependency -                Rs.9,67,680/-
         2. Funeral expenses            -       Rs.15,000/-
         3. Consortium                  -       Rs.2,40,000/-
             (Rs.40,000/- each for
             6 claimants)
         4. Loss of Estate              -       Rs.15,000/-
         -------------------------------------------------------------

TOTAL - Rs.12,37,680/-

-------------------------------------------------------------

13. Accordingly, MACMA.No.2695 of 2009 filed by the

Insurance Company is dismissed and the MACMA.No.892 of 2008

filed by the claimants is allowed, granting a total compensation of

Rs.12,37,680/- with costs and interest at the rate of 7.5% per

annum from the date of petition till the date of realisation. The

claimants 1 to 6 being the wife, children and parents of the

(2009) 6 SCC 121

GAC, J MACMA.Nos.892 of 2008 & 2695 of 2009

deceased, are equally entitled for the said amount, only on payment

of deficit Court fee. The claimants 1 to 6 are permitted to