Telangana High Court

Saira Bano, Secbad. vs Sh. Man Chand, Hyd. And Another on 31 October, 2023

Bench: K.Lakshman, K. Sujana

            HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
              HON'BLE SMT. JUSTICE K. SUJANA

                   M.A.C.M.A. No.3868 OF 2009

JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)

      Heard Mr. Durga Prasad Kotamraju, learned counsel for the

appellants and Mr. Srinivasa Rao Vutla, learned Standing Counsel

appearing on behalf of respondent No.2 - Insurer. Respondent No.1,

owner of the subject vehicle was set ex parte before the Tribunal.

2. Feeling aggrieved and dissatisfied with the order, dated

09.06.2008 in M.V.O.P. No.41 of 2006 passed by the Chairman,

Motor Accident Claims Tribunal - cum - I Additional Chief Judge,

City Civil Court, Secunderabad (for short 'Tribunal'), the appellants -

claimants preferred the present appeal, whereby and whereunder, the

Tribunal awarded an amount of Rs.4,60,000/- as compensation with

interest @ 7.5% per annum thereon from the date of petition till

deposit as against the claim of Rs.30,56,000/- claimed by them against

the respondents jointly and severally.

3. The appellants herein filed the aforesaid MVOP No.41 of

2006 contending as follows:

KL,J & SKS,J MACMA No.3868 of 2009

i) Appellant No.1 is the wife, appellant No.2 is the father and

appellant No.3 is the unmarried sister of the deceased - Mohd. Akbar

Khan alias Moin.

ii) On 06.12.2005, the deceased was going on his Yamaha

Motorcycle bearing registration No.AP 12C 1128. When he reached

Gulzar Tea Stall turning in Lalaguda, a lorry bearing registration

No.MP 07 G3562 came in opposite direction on wrong side driven by

its driver in a rash and negligent manner and dashed the motorcycle of

the deceased. As a result, the deceased fell down and sustained severe

injuries. He was shifted to Life Hospital, D.D. Colony, Hyderabad,

where he was declared brought dead by the doctors.

iii) On the complaint lodged by the father-in-law of the

deceased, Mr. Md. Ibrahim, the police of Lalaguda Police Station,

registered a case in Crime No.201 of 2005 for the offence punishable

under Section - 304A of IPC. On completion of investigation, the

police laid the charge sheet against the accused therein.

iv) The deceased was working as Welder in Saudi Arabia

(Madina) with M/s. Al-Hadada, and its proprietor is Mr. Turki,

Madina Munawara, Kingdom of Saudi Arabia. The deceased was

paid an amount of Rs.21,000/- per month i.e., 1800 Riyals by his

KL,J & SKS,J MACMA No.3868 of 2009

employer. The deceased is the only breadwinner of the family. Due

to the sudden death of the deceased, the appellants suffered great

shock and loss of their sole breadwinner. Appellant No.1, who is the

wife of the deceased, is deprived of her conjugal happiness throughout

life. Therefore, they have sought an amount of Rs.30,56,000/- as

compensation against respondent Nos.1 and 2, who are owner and

insurer of the crime vehicle and they are jointly and severally liable to

pay the same.

4. Respondent No.2 filed its counter contending that the

deceased died due to his own negligence. There is no negligence on

the part of the driver of the crime vehicle. The subject insurance

policy was expired on the mid-night of 05.12.2005, whereas the

accident had taken place on 06.12.2005 at 7.15 P.M. and as such,

respondent No.2 is not liable to pay compensation. The appellants

failed to prove the accident, age and income of the deceased and,

therefore, they are not entitled for compensation and Insurance

Company is not liable to pay the same.

5. To prove the claim, the appellants herein have examined

four (04) witnesses including appellant No.1, wife of the deceased as

PW.1, eye-witness as PW.2, appellant No.2 as PW.3 and one Mr.

KL,J & SKS,J MACMA No.3868 of 2009

Hazrath Fakeer Syed Ismail Tanweer Mujtahed as PW.4 and got

marked Exs.A1 to A15. Respondent No.2 did not examine any

witness, however got marked Ex.B1 - attested copy of insurance

policy.

6. On consideration of entire evidence, both oral and

documentary, the learned Tribunal awarded an amount of

Rs.4,60,000/- along with interest @ 7.5% per annum thereon from the

date of petition till deposit as compensation against both the

respondents jointly and severally. Feeling aggrieved by the same, the

appellants preferred the present appeal seeking enhancement of

compensation.

7. Mr. Durga Prasad Kotamraj, learned counsel for the

appellants, would submit that though the appellants examined PWs.1

to 4 and filed Ex.A5-salary certificate in Arabic language, Ex.A6 - its

translated copy, Ex.A7 - translated copy of VISA, Ex.A8 - original

passport along with Visa and Ex.A9 - notarized copy air-ticket, to

show that the deceased was earning 1800/- Riyals, which is equivalent

to Rs.21,000/- per month as salary, the Tribunal did not consider the

same and on the other hand considered the income of the deceased as

Rs.3,000/- per month. Therefore, the said finding of the Tribunal is

KL,J & SKS,J MACMA No.3868 of 2009

erroneous. The Tribunal considered the multiplier as '18' which is

contrary to the principle laid down by the Hon'ble Supreme Court in

Sarla Verma v. Delhi Transport Corporation 1. The Tribunal also

did not grant other amounts, such as loss of consortium, damages to

the clothes, transportation charges etc. Therefore, the appellants are

entitled for the aforesaid amount of Rs.30,56,000/- as compensation.

8. On the other hand, Mr. Srinivasa Rao Vutluru, learned

Standing Counsel appearing on behalf of respondent No.2, would

contend that the appellants failed to examine the author of Ex.A5 -

salary certificate and they have not filed any bank statement.

Therefore, the Tribunal considering the entire evidence arrived at the

monthly income of the deceased as Rs.3,000/- and accordingly

granted Rs.4,60,000/- as compensation, and there is no error in it.

9. Basing on the aforesaid pleadings, the Tribunal framed the

following issues:

i) Whether the accident occurred owing to the rash and negligent driving of Lorry No.MP 07 G 3562?

ii) Whether the petitioners are entitled to any compensation, if so, to what amount and against whom?

        iii)    To what relief?


 . (2009) 6 SCC 121

                                                          KL,J & SKS,J
                                                       MACMA No.3868 of 2009

10. On consideration of the entire evidence including Exs.A1 -

FIR, A2 - charge sheet and Ex.A3 - PME report and also deposition of

PW.2, an eye-witness, the Tribunal came to the conclusion that the

accident had occurred due to rash and negligent driving of the driver

of the crime vehicle. There is no challenge to the said finding by

respondent No.2 - Insurer and it attained finality.

11. In Ex.A8 - original passport, the date of birth of the

deceased is mentioned as 14.04.1977. The date of accident is

06.12.2005. Therefore, as on the date of accident, the age of the

deceased was 28 years, 7 months and 22 days. Thus, as per the

decision in Sarla Verma1, the relevant multiplier for the age group of

26-30 years is '17'.

12. According to the appellants, the deceased was Welder and

used to work in M/s. Al-Hadada, Kingdom of Saudi Arabia. He used

to earn 1800/- Riyals per month, which is equivalent to Rs.21,000/-

per month. In proof of the same, they have filed Ex.A5 - salary

certificate in Arabic Language, Ex.A6 - its translated copy and Ex.A7

- translated copy of Visa and Ex.A8 - original passport along with

Visa and also Ex.A9 - notarized copy of air ticket. However, they

have not examined the author of Ex.A5 - salary certificate or any

KL,J & SKS,J MACMA No.3868 of 2009

authorized person of the employer of the deceased i.e., M/s. Al-

Hadada, Kingdom of Saudi Arabia. However, according to them, the

said Company is in Saudi Arabia and, therefore, the appellants are not

in a position to examine them. They have also not filed copy of bank

statement in proof of the deceased sending the money either to his

father or to his wife. According to them, due to various reasons, the

deceased did not open any account in Saudi Arabia, however, he used

to send money from Saudi Arabia to his parents.

13. However, during cross-examination, PW.1, wife of the

deceased, categorically admitted that her husband never informed her

as to how much he used to send to India. But, her father-in-law told

her that her deceased husband used to send Rs.21,000/- per month to

her father-in-law. PW.3, father of the deceased also admitted that the

deceased used to send the said money through relatives and family

friends, who are working along with the deceased in Saudi Arabia.

No account was opened in his name to receive money from his son.

Considering the said aspects, the Tribunal arrived the monthly income

of the deceased at Rs.3,000/-.

14. It is apt to note that the Tribunal considered that the

deceased was Welder, which is a skilled one. There is no challenge to

KL,J & SKS,J MACMA No.3868 of 2009

the said finding by respondent No.2. The appellants did not file any

document to show that the deceased was a Welder and earning certain

amount out of the said profession. They have also not examined any

witness to substantiate that the deceased was earning an amount of

Rs.21,000/- per month as a Welder. In the absence of the same, it is

relevant to note that in Ramachandrappa v. The Manager, Royal

Sundaram Alliance Insurance Company Limited 2, the Apex Court

had considered the monthly earning capacity of a Cooli at Rs.4,500/-.

By considering the same, this Court is of the view that an amount of

Rs.4,500/- per month would be reasonable amount to consider as

monthly earning capacity of the deceased. The deduction towards

personal and living expenses of the deceased should be one-third

(1/3rd) where the number of dependent family members is between 2

and 3. In the present case, the dependent family members are three

(03) in number, 1/3rd has to be deducted towards personal and living

expenses of the deceased. Accordingly, when 1/3rd is deducted from

the monthly earning capacity of Rs.4,500/-, it would work out to

Rs.3,000/- (Rs.4,500/- - Rs.1,500/-) and the annual earnings would

come to Rs.36,000/- and, therefore, the same is taken into

. (2011) 13 SCC 236

KL,J & SKS,J MACMA No.3868 of 2009

consideration as the loss of dependency to which the appellants herein

are entitled to. When the relevant multiplier '17' is applied to the said

annual earnings, it works out to Rs.6,12,000/- (i.e., Rs.36,000 x 17).

15. That apart, as per the principle held by the Hon'ble Apex

Court in National Insurance Company Limited v. Pranay Sethi 3, an

addition of 40% of the established income of the deceased should be

added towards future prospectus since he is below the age of 40 years,

and when the same is applied, it works out to Rs.2,44,800/- (40% of

Rs.6,12,000/-) and, therefore, the same is also awarded to the

appellants. Further, as per the principle held by the Apex Court in

Magma General Insurance Company Limited v. Nanu Ram @

Chuhru Ram 4, the appellants are entitled for an amount of

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

estate and Rs.40,000/- towards spousal consortium to appellant No.1

and Rs.40,000/- each to appellant Nos.2 and 3 towards loss of filial

consortium. The appellants are also entitled an amount of

Rs.1,50,000/- towards loss of love and affection (Rs.50,000/- each).

An amount of Rs.5,000/- is awarded towards transportation charges

and also Rs.5,000/- towards damages to clothes.

. (2017) 16 SCC 680

. (2018) 18 SCC 130

KL,J & SKS,J MACMA No.3868 of 2009

16. As far as the rate of interest granted by the Tribunal, the

same is in accordance with and, therefore, the same is maintained.

17. As discussed supra, both respondent Nos.1 and 2, owner

and insurer of the crime vehicle, are jointly and severally liable to

pay the compensation to the appellants.

18. In view of the above discussion, the appellants are entitled

to Rs.11,66,800/- and rounding it off to Rs.11,67,000/- (Rupees

Eleven Lakhs Sixty Seven Thousand Only) as compensation under the

following heads:

 i)      Loss of dependency                        .. Rs. 6,12,000-00
 ii)     Future prospects at 40%                   .. Rs. 2,44,800-00
 iii)    Funeral expenses                          .. Rs. 15,000-00
 iv)     Loss of estate                            .. Rs. 15,000-00
 v)      Spousal Consortium                        .. Rs. 40,000-00
 vi)     Filial consortium                         .. Rs. 80,000-00
 vii)    Loss of love and affection                .. Rs. 1,50,000-00
 viii)   Transportation Charges                    .. Rs.      5,000-00
 ix)     Damages to clothes                        .. Rs.      5,000-00
                                                          ----------------
               Total                               .. Rs. 11,66,800-00
                                                        -----------------
                     Rounded off to Rs.11,67,000-00

19. In the result, the appeal filed by the appellants - claimants

is allowed in part. Accordingly, the order and decree dated

09.06.2008 in M.V.O.P. No.41 of 2006 passed by the Tribunal are

modified enhancing the compensation to Rs.11,67,000/- (Rupees

KL,J & SKS,J MACMA No.3868 of 2009

Eleven Lakhs Sixty Seven Thousand Only) from Rs.4,60,000/-

(Rupees Four Lakhs and Sixty Thousand Only) with interest at the

rate of 7.5% per annum thereon from the date of petition till

realization. The compensation amount shall be apportioned among

the appellants - claimants in the same proportion in which original

compensation amounts were directed to be apportioned by the

Tribunal. Respondent No.2 is directed to deposit the above said