Buchamma vs P.Rajamouli
2023 Latest Caselaw 1064 Tel

       THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                      M.A.C.M.A.No.2018 of 2014
JUDGMENT:

Challenging the order and decree, dated 09.12.2011 passed

in M.V.O.P.No.64 of 2006 on the file of the Chairman, Motor

Vehicle Accident Claims Tribunal-cum-District Judge, Adilabad (for

short "the Tribunal"), in dismissing the claim-petition, the present

appeal is filed by the claimant.

2. For the sake of convenience, the parties will be hereinafter

referred to as arrayed before the Tribunal.

3. Brief facts of the case are that the claimant filed a petition

under Section 166 of the Motor Vehicles Act, 1988 claiming

compensation of Rs.1,00,000/- for the death of her son, one

Bandari Ramesh (hereinafter referred to as "the deceased"), who

died in a vehicle accident that occurred on 05.10.2003. It is stated

that on the fateful day, at about 18.00 hours, while the deceased,

along with others, was proceeding in an auto bearing No.AP 1U

5627 from Srirampur to Godavarikhani, when the auto reached

near Godavari bridge, the offending vehicle i.e., jeep bearing No. AP

15V 1168, owned by respondent No. 1 and insured with

respondent No. 2, being driven by its driver in a rash and

negligent manner at high speed, dashed the auto. As a result, the

deceased sustained severe injuries and while undergoing treatment

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at Government Hospital, he succumbed to the injuries. According

to the claimant, the deceased was 26 years and earning Rs.5,000/-

as auto driver and therefore, they filed the O.P. claiming

compensation of Rs.1.00 lakh against the respondents.

4. Before the tribunal, while the respondent No. 1 remained ex

parte, respondent No. 2, insurance company, filed counter denying

the manner in which the accident took place, including the age,

avocation and income of the deceased. It was the specific case of

the respondent No. 2 that the accident occurred due to the

negligence of the driver of the auto, in which the deceased was

traveling and that there was no negligence on the part of the driver

of the Jeep. It is also stated that the quantum of compensation

claimed is excessive, baseless and prayed to dismiss the petition.

5. Based on the above pleadings, the Tribunal framed the

following issues:

1. Whether the accident dated 05.10.2003 was due to the rash and negligent driving of the motor vehicle bearing No.AP 15V 1168 belonging to respondents?

2. Whether the petitioner is entitled to any compensation, if so, to what extent and against which of the respondents?

3. To what relief?

6. In order to prove the issues, PWs.1 & 2 were examined and

Exs.A1 to A5 got marked on behalf of the petitioner. On behalf of

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respondent Nos.1 and 2, no witnesses were examined and no

document was marked.

7. Considering the oral and documentary evidence available on

record, the Tribunal has dismissed the petition on the ground that

the petitioner failed to implead the wife of the deceased as claimant

and therefore, in the absence of the impleadment of wife of the

deceased the O.P. cannot be entertained. Challenging the same,

the present appeal has been filed by the claimant.

8. Heard both sides and perused the record.

9. The learned counsel for the claimant contended that

Tribunal ought to have seen the wife of the deceased as only a

proper party but not a necessary party to the claim petition and

also stated that the Tribunal could have impleaded the wife of the

deceased as respondent as per Order I, Rule 10 of CPC, in view of

its conclusion that it can Suo-motto implead the wife of deceased as

respondent.

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

respondent No.2, Insurance Company, has contended that the

Tribunal has rightly dismissed the appeal as the petitioner did not

make any effort to implead the wife of the deceased as party, which

needs no interference by this Court.

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11. The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged by either of the respondents.

12. Coming to the quantum of compensation, it is contended

that the tribunal has not relied on Exs.A2 & A5 which discloses

details of the wife of the deceased, but however dismissed the O.P.

for non-impleading the wife. Merely because the wife is not

included to the O.P., it cannot be a sole ground to reject the claim.

The tribunal should have taken clue from Exs.A.2, Inquest report

& A.5, Charge Sheet or could have proceeded to decide the

quantum of compensation and after apportioning the same, should

have taken steps to keep the share of compensation amount that

determined to the wife to be kept in a national bank for a certain

period. Therefore, this Court is inclined to decide the quantum of

compensation and allot the share of claimant by keeping aside the

share of wife in a national bank for a reasonable period.

The claimant in order to prove the income of deceased as

auto driver, has not produced any documentary evidence.

However, considering the avocation of the deceased as auto driver,

age and the accident is of the year 2003, this Court is inclined to

fix the income of the deceased as Rs.4,500/- per month. As he

was 26 years at the time of accident, 40% towards future prospects

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to the established income of the deceased is to be added as per the

decision of the Apex Court in National Insurance Company

Limited Vs. Pranay Sethi and others1. By adding 40% towards

future prospects, the future monthly income of the deceased comes

to Rs.6,300/- (Rs.4500 + 1800). After deducting 1/3rd towards

personal expenses, the net income of the deceased comes to

Rs.4,200/-. As per the records, the deceased was aged about 26

years at the time of accident. Therefore, the appropriate multiplier

in light of the judgment of the Apex Court in Sarla Verma v. Delhi

Transport Corporation2 is "17". Thus, the future loss of income

comes to Rs.8,56,000/- (Rs.4.200/- x 12 x 17). That apart, under

the conventional heads, the claimant is entitled to Rs.77,000/- as

per Pranay Sethi (Supra). Thus, in all, the claimant along with

the wife of the deceased is entitled to Rs.9,33,800/- .

13. Accordingly, M.A.C.M.A. is allowed granting compensation of

Rs.9,33,800/- with interest at 7.5% per annum from the date of

filing of the petition till the date of its realization to be paid by the

respondent Nos. 1 & 2 jointly and severally. Out of the said

amount, the claimant being the mother of the deceased is entitled

to 40% and the wife is entitled to 60%. The 40% of compensation

2017 ACJ 2700

2009 ACJ 1298 (SC)

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being the share of the claimant, shall be paid within a period of two

months from the date of receipt of a copy of this order. The

remaining 60% of share that fell to the wife of the deceased shall be

kept in a fixed deposit in any nationalized bank for a period of five

years. In the meanwhile, if the wife comes forward with appropriate

application along with necessary proofs, the tribunal is directed to

order for release of the said amount in her favour. In case, no such

application is filed even after lapse of five years, the said amount,

along with accrued interest, shall be released in favour of the

claimant. However, the claimant shall pay the deficit court fee on

the enhanced compensation. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

____________________________ SMT. M.G.PRIYADARSINI, J 03.03.2023 Gms/Tsr

MGP, J Macma_2018_2014

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A.No. 2018 of 2014

DATE: 03-03-2023

Gms/Tsr