Thota Chinna Gangaiah Gangaiah ... vs Sri Ram Mohan Karthikey Anr
2023 Latest Caselaw 1657 Tel

     THE HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI

          M.A.C.M.A.Nos.3443 of 2011 and 1781 of 2012

COMMON JUDGMENT:

        Aggrieved by the award dated 23.12.2010 in O.P.No.170 of

2009 passed by the Motor Vehicle Accident Claims Tribunal-cum-IX

Addl. District and Sessions Judge at Kamareddy, the insurance

company has filed MACMA No.3443 of 2011 questioning the

compensation and the claimants have filed MACMA No.1781 of 2012

seeking enhancement of the compensation.


2.      Having heard Mr. A. Ramakrishna Reddy, learned counsel for

the insurance company and Mr. Azar Sravan Kumar, learned counsel

for the claimants, perused the entire material on record.


3.      The claim petition was filed seeking compensation of

Rs.10,00,000/- and the court below has granted an amount of

Rs.6,18,000/-. It is submitted that the deceased was a driver as on

the date of accident and was earning an amount of Rs.10,000/- per

month. As per the claim petition, the deceased was aged 26 years. It

is stated that while the deceased was driving the Tata Sumo, the

offending car came at high speed in a rash and negligent manner and

dashed against the Tata Sumo, as a result of which, the deceased

received grievous injuries and died on the spot. The court below has

considered the monthly income of the deceased at Rs.4,500/- as

there is no evidence in that regard.
                                                              LK, J
                                              MACMA_3443_2011 and
                                                       1781_2012
                                   2



4.       Learned counsel appearing for the insurance company

submits that as per the claim petition, the deceased was aged 26

years as on the date of accident, but, however, the court below has

taken the age as 24 years. He submits that as the deceased was a

bachelor, half of the income has to be deducted towards personal

expenses, but, however, that exercise was also not done by the court

below.


5.       According to the insurance company, there was contributory

negligence on the part of the deceased and they have also examined

RW1 who stated that Ex.B4 certified copy of scene of offence

panchanama shows that it is the deceased who was on the wrong

side of road, but, the court below has observed that on perusal of

Ex.B4 filed by the respondent shows that Tata Sumo was in the

middle of the road and offending car was also in the middle of the

road and dashed against the Tata Sumo, thus, it supports the case of

claimants.

6. Learned counsel for the insurance company submits that the

evidence on record clearly shows that there was contributory

negligence on the part of the deceased and the court below ought to

have fixed the contributory negligence on the deceased.

7. Learned counsel for the claimants submits that the deceased

was working as driver and the court below ought to have taken the LK, J MACMA_3443_2011 and 1781_2012

monthly income at Rs.10,000/- per month. It is submitted that as

per the Post mortem report, his age was 24 years and the court below

has rightly taken the age as 24 years. He submits that the

compensation that was granted by the court below was not just and

reasonable.

8. Then, coming to the contributory negligence, except filing the

sketch of scene of offence, the insurance company has not adduced

any other evidence. When the insurance company is claiming

contributory negligence, the burden lies on them to prove the same.

As they have failed to discharge the said burden, this court is not

inclined to consider the submission of the learned counsel for the

insurance company about the contributory negligence and the court

below has rightly held that because of the rash and negligence driving

of the driver of the offending vehicle, accident has taken place.

9. Then, coming to the age of the deceased, as per the Post

mortem report, his age was 24 years and hence, the court below has

rightly taken the age.

10. Coming to the income of the deceased, he was working as a

driver and certified copy of his driving licence is marked as Ex.A7. As

the accident has happened while he was driving, the court below

ought to have taken at least Rs.6,000/- as his monthly income.

LK, J MACMA_3443_2011 and 1781_2012

Hence, this court is inclined to take the monthly income at

Rs.6,000/-.

11. The Hon'ble Apex Court in National Insurance Co.

Ltd. Vs. Pranay Sethi1 held that while considering the

compensation in cases of death, the future prospects of the self

employed shall also be considered. Having regard to the age

and occupation as self-employed, 40 percent of the income has

to be included as future prospects. As per the decision of the

Hon'ble Supreme Court in Smt.Sarla Varma v Delhi Transport

Corporation2, 50% of the income has to be deducted towards

personal expenses as the deceased was a bachelor. Therefore, the

annual contribution of the deceased to the claimants comes to

Rs.50,400/-. The relevant multiplier for the age of the deceased is

'18'. Hence, the compensation under the head of loss of dependency

comes to Rs.9,07,200/- (Rs.50,400/- X 18).

12. Further, under the conventional heads, the court below has

granted meager amounts. Relying on the ratio of Pranay Sethi

(supra), the claimants are granted Rs.33,000/- towards funeral

expenses and loss of estate and Rs.44,000/- each to the 1st and 2nd

claimants towards consortium.

2017 (6) 170 (SC)

2009(6) SCC 121 LK, J MACMA_3443_2011 and 1781_2012

13. Therefore, the claimants are eligible for the compensation as

below:

        Head                               Compensation awarded

  (1) Loss of dependency                   Rs.9,07,200

  (2) Funeral expenses and                 Rs.33,000
      Loss of Estate

  (3) Loss of filial consortium            Rs.88,000 for 1st and 2nd
                                           appellants

  (4)    Legal expenses                    Rs.10,000

        Total compensation awarded         Rs.10,38,200/-

14. In the result, the Motor Accident Miscellaneous Appeal of the

insurance company fails and the same is dismissed. However, the

Motor Accident Miscellaneous Appeal of the claimants is allowed

enhancing the compensation amount awarded by the court below

from Rs.6,18,000/- to Rs.10,38,200/- as hereunder:

(a) The enhanced amount shall carry interest at 7.5% p.a.

from the date of petition till the date of realization.

(b) The claimants shall pay the court fee on the enhanced

amount of compensation.

(c) The insurance company shall deposit the amount within a

period of (8) weeks from the date of receipt of copy of

judgment. On such deposit, claimants are permitted to

withdraw entire amount without furnishing the security.

LK, J MACMA_3443_2011 and 1781_2012

(d) Amounts shall be apportioned in terms of the ratio

decided by the court below in the Award.

Pending miscellaneous petitions, if any, shall stand closed.

___________________________ LALITHA KANNEGANTI, J

Date: 18.04.2023 gvl