Telangana High Court

Yada Shilpa vs Yada Lingamma And 4 Others on 8 September, 2023

Bench: P.Sam Koshy, Laxmi Narayana Alishetty

           HON'BLE SRI JUSTICE P.SAM KOSHY
                          AND
     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

          M.A.C.M.A.NOs.2508 of 2017 and 129 of 2020


COMMON JUDGMENT: (Per Hon'ble Sri Justice Laxmi Narayana Alishetty)


      M.A.C.M.A.No.2508 of 2017 is filed by the appellant/wife of

the deceased, who is respondent no.5 in M.V.O.P.No.589 of 2010,

challenging the order dated 16.05.2017 passed by the XXVII

Additional Chief Judge-cum-Chairman, Motor Vehicle Accident

Claims Tribunal, City Civil Court, Secunderabad (for short, MACT)

for non-awarding of compensation to her.

2. M.A.C.M.A.No.129 of 2020 is filed by the appellant/mother

of the deceased, who is claimant in M.V.O.P.No.589 of 2010,

challenging the order dated 16.05.2017 passed by the MACT

seeking enhancement of compensation.

3. Since both the appeals are arising out of M.V.O.P.NO.589 of

2010, dated 16.05.2017 passed by the MACT, the same are taken

up and decided by this common judgment. For the sake of

convenience, MACT No.129 of 2020 is taken up as the lead case

so far as the facts are concerned.

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

4. The brief facts leading to filing of the above appeals are as

under:

5. On 17.10.2008 at 3.30 a.m., the deceased, mother of the

deceased and the family were travelling to Tirupathi in a Car

bearing registration NO.AP-27-U-7408 and when they reached

Heritage Milk Dairy, Nandyal- Allagadda road, Nandyal, the driver

of the Car dashed the stationary lorry bearing registration No.AP-

09-BL-3222 from behind. The said lorry was parked without any

stopping indications. As a result, the Car was completely damaged

and Car Driver and the son of the claimant died on the spot. The

Police, Nandyal Police Station registered a crime No.250/2008

under Section 304-A of IPC.

6. The claimant i.e., mother, filed claim petition under Section

166 read with Section 163-A of Motor Vehicles Act, 1988 before the

MACT claiming for compensation of Rs.20,00,000/- along with

interest from the date of the accident till the date of realization.

7. The deceased was aged 31 years as on the date of the

accident, hale and healthy and doing business in the name and

style of M/s.Liberty Motors dealing with sales and services of PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

automobile parts and used to earn more than Rs.2,75,000/- per

annum and was spending the same for the maintenance of

claimant and his family. Respondent no.1 is the lorry driver,

respondent no.2 is the insurance company of the lorry, respondent

no.3 is the car owner, respondent no.4 is the insurance company

of the car and the wife of the deceased, who was arrayed as

respondent No.5 alleging non-cooperation for filing O.P.

8. The respondent no.1 remained ex parte and the claim

petition against respondent no.4 was dismissed. Respondent nos.2

and 3 contested the case by filing the counters. Respondent no.5

did not file any counter though made appearance through

advocate, however, examined herself as RW.2.

9. In order to substantiate the case, the claimant herself was

examined as P.W.1 and Exs.A1 to A7 were marked on her behalf.

On behalf of the 2nd respondent-insurance company, Senior

Executive of the respondent no.2 was examined as RW.1 and copy

of insurance policy was marked as Ex.B1. Respondent no.5 herself

examined as R.W.2 and Ex.B2-medical certificate issued by Omega

Hospital was marked on her behalf.

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

10. Considering the pleadings and material placed on record, the

MACT awarded compensation of Rs.20,00,000/- on account of

death of the deceased under the following heads.

      Sl.No.                 Head                 Compensation awarded

      1         Loss of dependency                Rs.19,20,000/-

      2         Loss of love and affection        Rs.     70,000/-

      3         Funeral expenses                  Rs.     10,000/-

      4         Loss of Estate                    Rs.     15,000/-

                                         Total:   Rs.20,00,000/-

11. The MACT also awarded interest @ 7.5% per annum from the

date of filing of the petition till the date of payment against

respondents 1 to 3 jointly and severally and claim petition against

respondent no.4 was already dismissed as well as against

respondent no.5 who is the wife of deceased. The MACT directed

that entire compensation amount to be paid to the claimant i.e.,

mother of the deceased and did not award any compensation to the

wife of the deceased i.e., appellant in MACMA No.2508 of 2017.

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

12. The MACT permitted the claimant to withdraw a sum of

Rs.10,00,000/- immediately and remaining amount shall be kept

in fixed deposit in any nationalized bank for three years.

13. Aggrieved by the order dated 16.05.2017, wife of the

deceased (respondent no.5 in MVOP No.589 of 2010) filed appeal

vide MACMA No.2508 of 2017, specifically challenging the order of

MACT insofar as non-awarding of compensation amount to her.

She also filed MACMA MP No.4459 of 2017 for stay of judgment

and decree dated 16.05.2017. This Court vide order dated

22.09.2017 in MACMA MP No.4459 of 2017 had permitted the

appellant (claimant in MVOP No.589 of 2010) to withdraw only a

sum of Rs.5,00,000/- as against the order of the MACT permitting

to withdraw a sum of Rs.10,00,000/-.

14. The points for consideration are:

1) Whether the appellant in MACMA No.129 of 2020 is

entitled for enhancement of compensation ?

2) Whether the appellant in MACMA No.2508 of 2017 is

entitled to a share in the compensation amount awarded in MVOP

No.589 of 2010 ?

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

15. Heard learned counsel Sri Ch.Ajay Kumar for appellant in

MACMA No.129 of 2020, learned senior counsel Sri J.Prabhakar

appearing for Sri T.Shyam Kumar for appellant in MACMA

No.2508 of 2017, and learned counsel Sri A.Ramakrishna Reddy

for respondent no.3-Bajaj Allianz General Insurance Co.Ltd.

16. Learned counsel for appellant Sri Ch.Ajay Kumar in MACMA

No.129 of 2020 would submit that the MACT did not award proper

and just compensation to the claimant. He further submitted that

the deceased was engaged in business and was earning good

amounts and therefore, the MACT ought to have awarded Rs.50.00

lakhs as compensation. However, the MACT had taken income of

the deceased as only Rs.10,000/- per month ignoring the income

of the deceased and therefore, prayed for enhancement of

compensation.

17. Learned senior counsel Sri J.Prabhakar placed on record the

income tax returns of the deceased for the financial year 2008-09,

as per which, the gross income of the deceased is shown as

Rs.5,29,240/-. Learned senior counsel referred to TDS paid by the

deceased aggregating to Rs.27,729/- to show that the deceased

was earning substantial amount through his business and PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

therefore, the appellant is entitled for enhancement of

compensation. Learned senior counsel further submitted that the

MACT committed error in not awarding compensation amount to

the wife, who was arrayed as respondent no.5, though she is

entitled to compensation amount. He further submitted that non-

joining of wife of the deceased as petitioner in the MVOP does not

disentitle the wife from claiming compensation amount. Therefore,

the MACT ought to have awarded compensation to the wife of the

deceased. The learned senior counsel further submitted that wife

should have been awarded 70% of the compensation amount and

mother of the deceased the balance of 30%.

18. In support of his contention, learned senior counsel placed

reliance on the following decisions:

i) Smt. Vimla v. Dinesh Kumar Sharma and others 1;

ii) Cherotte Sugathan (dead) through LRs and others vs. Cherotte Bharathi and others 2;

       iii)    Thankam v. Rajan 3





  2006 SCC Online MP 223

   (2008) 2 SCC 610

  AIR 1999 Ker 62
                                                                                  PSK,J & LNA,J
                                                           MACMA No.2508 of 2017 & 129 of 2020

19. In Vimla (supra), the Hon'ble Gwalior Bench held that widow

and mother of the deceased are entitled to 70% and 30% of the

awarded compensation, respectively. Hon'ble Gwalior Bench held

as under:

"17. As regards apportionment is concerned, it will dependant on facts and circumstances of each case. In the present case, the widow who is examined as AW 3 has specifically stated that she was living with her husband at the time of the accident and her in-laws and other members were residing separately. This evidence is not rebutted by other claimants. Moreover, the remaining life span of the widow is more than that of a mother. Whenever a claim for compensation is filed by the parents alone the lesser multiplier is applicable. Considering this fact, we hold that the compensation be apportioned between the widow and the mother of the deceased as 70% and 30% i.e. widow shall be entitled to compensation to 70% and 30% amount of the award shall be payable to the mother of the deceased."

20. In Cherotte Sugathan (supra), the Hon'ble Supreme Court

held that even though widow is remarried, she is still entitled to

deceased husband's share. The Hon'ble Apex Court further held

that by operation of Section 14(1) of Hindu Succession Act, 1956

for the death of husband, his share vested absolutely in the widow.

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

21. In Thankam (supra) the Hon'ble High Court held that

remarriage of wife cannot be a ground for her losing right to

succeed to her deceased husband's property.

22. On the other hand, learned counsel Sri A.Ramakrishna

Reddy for the insurance company would submit that MACT, in

fact, has taken into consideration the monthly income as

Rs.10,000/- without there being any document and therefore, the

appellants are not entitled to any further enhancement. He further

submitted that the MACT had awarded 50% future prospects,

which is contrary to the judgment of Hon'ble Supreme Court in

Pranay Sethi (supra), wherein the Hon'ble Apex Court had held

that if the deceased is self-employed and does not have permanent

job, the future prospects are restricted to 40%. Therefore, future

prospects have to be confined only to 40%.

23. Considering the facts and material placed on record,

specifically the income tax returns filed for the financial year 2007-

08, wherein the income of the deceased shown as Rs.5,29,240/-

and also the TDS amounting to Rs.27,729/-, the Bench is of the

considered opinion that monthly income of the deceased can be

taken as Rs.15000/- per month. Then the yearly income comes to PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

Rs.1,80,000/-. Following second schedule to the Motor Vehicles

Act, 1988, one third of the compensation shall be deducted

towards personal expenses of the deceased, had he been alive.

Therefore, it works out to Rs.1,80,000/- (-) Rs.60,000/- =

Rs.1,20,000/- p.a.

24. In Pranay Sethi (supra), Hon'ble Apex Court at paragraph

59.4 held that in case the deceased self employed or on a fixed

salary an addition of 40% of established income should be

warrant, where the deceased was below the age of 40 years.

25. In view of the decision of the Hon'ble Apex Court in Pranay

Sethi (supra), the future prospects are restricted to 40% and

accordingly, the future prospects stands corrected from 50% to

40% since the deceased was self-employed, neither government

employee nor any permanent income. Hence, 40% of Rs.1,20,000/-

comes to Rs.48,000/-. Therefore, the annual income of the

deceased comes to Rs.1,68,000/- (Rs.1,20,000/- + Rs.48,000/-).

As the age of the deceased at the time of the accident was 31 years,

the multiplier applicable would be 16, which comes to

Rs.26,88,000/- (Rs.1,68,000/- x 16). Therefore, the loss of PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

dependency is enhanced by Rs.7,68,000/- (Rs.26,88,000/- -

Rs.19,20,000/-).

26. Insofar as the apportionment of the compensation

concerned, we are in respectful agreement with the decision of the

Gwalior Bench of M.P. in Vimla (supra), and accordingly, wife of

the deceased i.e., respondent no.5 in MACMA No.129 of 2020 and

appellant in MACMA No.2508 of 2017 is entitled to 70% of the

compensation amount and the mother of the deceased i.e.,

appellant in MACMA No.129 of 2020 is entitled to balance 30% of

the compensation amount.

27. In the light of the aforesaid discussion, the appellants are

entitled to the following amounts:

      Sl.No.                    Head                 Compensation awarded

      1         Loss of dependency                   Rs. 26,88,000/-

      2         Loss of love and affection           Rs.   70,000/-

      3         Funeral expenses                     Rs.   10,000/-

      4         Total compensation awarded           Rs.27,68,000/-

28. The respondents 1 to 3 are held jointly and severally liable to

pay the compensation awarded with interest @ 7.5% per annum

from the date of filing of the petition till the date of payment.

PSK,J & LNA,J MACMA No.2508 of 2017 & 129 of 2020

29. In the result, MACMA No.2508 of 2017 is allowed and

MACMA No.129 of 2020 is partly allowed.

30. The compensation amount is enhanced from Rs.20,00,000/-

to Rs.27,68,000/-, subject to payment of deficit Court fee on the

enhanced compensation amount. The respondent no.1 to 3 shall

deposit the enhanced compensation amount within a period of

eight (8) weeks from today.

31. Pending miscellaneous applications if any shall stand closed.