Telangana High Court
Kandula Balamani vs Goundla Prasad Goud on 30 August, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.189 of 2019
JUDGMENT:
1. Dissatisfied with the compensation awarded by the learned
Motor Accidents Claims Tribunal-cum- II Additional Chief Judge,
City Civil Court, Hyderabad, in M.V.O.P.No.1219 of 2017, dated
19.11.2018, the claim petitioners therein filed the present Appeal
seeking enhancement of compensation.
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the Tribunal.
3. The brief facts of the case are that the petitioners, who are
the wife, children and mother of the deceased- Laxminarayana,
filed a claim petition under Section 166 of the Motor Vehicles Act,
1988 seeking compensation of Rs.15,00,000/- with interest @ 18
% per annum on account of the death of the deceased in a motor
vehicle accident that occurred on 01.04.2017. As stated by the
petitioners, on 01.04.2017 at about 6.50 p.m., when the deceased-
Kandula Laxminarayana was proceeding towards Bhongir side
from Hanumakonda, and while crossing the road, an Auto bearing
No.TS-07-UC-0361, which was driven by its driver in a rash and
negligent manner at high speed, while overtaking a Cyclist, went to
the extreme right side of the road and the bag which was being
carried by the deceased, was locked with the right side rear view
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mirror of the Auto. As a result, the deceased fell down and he was
dragged towards Hanumakonda side as the driver of the Auto was
driving it more than 60 KM per hour speed and could not control
it. The said Auto dragged the deceased for 10 metres. As a result,
the deceased sustained multiple fractures, including head injury
and was immediately shifted to Government Hospital, Aleru and
from there, to Gandhi Hospital, Secunderabad and the deceased
succumbed to injuries on the way to Government Hospital,
Secunderabad at about 8.00 PM. Police of Alair Police Station,
registered a case in Crime No.48 of 2017 under Section 304-A IPC.
It is stated by the petitioners that the deceased was aged 49 years
as on the date of accident and is a silk saree weaver and used to
earn Rs.20,000/- per month. Due to the sudden death of the
deceased, the petitioners lost their bread winner, love and affection
and hence filed a claim petition seeking compensation of
Rs.15,00,000/- against the respondents.
4. Respondent Nos.1 & 3, who are the owner and driver of the
Auto bearing No.TS-07-UC-0361, remained ex-parte.
5. Respondent No.2/Insurance Company filed its counter
denying the averments made in the claim petition including, age,
occupation, earnings of the deceased, manner of accident, driver
having valid driving license. It also denied that the subject Auto do
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not possess valid insurance policy as on the date of accident and
hence prayed to dismiss the claim against it.
6. Based on the rival contentions made by both the parties, the
learned Tribunal had framed the following issues:-
(i) Whether the death of the deceased-K.Laxminarayana was
due to rash and negligent driving of the Auto bearing No.TS-
07-UC-0361 driven by its driver?
(ii) Whether the petitioners are entitled for compensation? If so,
to what extent and against whomo?
(iii) To what relief?
7. Before the Tribunal, on behalf of the petitioners, PWs1
to 3 were examined and Exs.A1 to A9 were marked. On behalf
of the 2nd respondent/Insurance Company, no witness was
examined, however, Ex.B1-Copy of Insurance policy was
marked.
8. After considering the evidence and documents filed by
both sides, the learned Tribunal had awarded compensation of
Rs.5,74,000/- along with interest @ 7.5% per annum from the
date of petition till the date of realization payable by
respondent Nos.1, 2 & 3 jointly and severally. Having not
satisfied with the said compensation, the claim petitioners
preferred the present Appeal seeking for enhancement of the
same.
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9. Heard learned counsel for the appellants as well as the
learned Standing Counsel for the respondent No.2/Insurance
Company.
10. The main contention of the learned counsel for the
appellants is that the learned Tribunal ought to have taken
income of the deceased @ Rs.20,000/- per month based on the
evidence of PW3 and ought to have considered the age of the
deceased as 55 years as per post-mortem examination and
inquest reports and prayed to allow the Appeal by enhancing the
compensation.
11. Per contra, learned counsel for the 2nd
respondent/Insurance Company contended that the learned
Tribunal, after considering all the aspects, had awarded
reasonable compensation for which interference of this Court is
unwarranted.
12. Now the point that arises for determination is,
Whether the order passed by the learned Tribunal
suffers from any irregularity?
POINT:-
13. This Court has perused the entire evidence and documents
available on record. Petitioner No.1, who is the wife of the
deceased, was examined herself as PW1. As she is not an eye
witness to the incident, she got examined PW2, who is an eye
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witness to the accident and also got examined PW3 on her behalf
and got marked Exs.A1 to A9. As the respondent Nos.1 & 3
remained ex-parte before the trial Court, none of the witnesses
were examined on their behalf. On behalf of the respondent No.2,
no witness was examined, however, Ex.B1-Copy of Insurance
policy was marked.
14. PW2, who is an eye witness to the incident, deposed in his
evidence that on 01.04.2017, while he was proceeding to police
station on his motor cycle, he witnessed the crime Auto bearing
No.TS-07-UC-0361 being driven by its driver in a rash and
negligent manner at high speed hit the deceased who was
intending to cross the road. As a result, the rear view mirror of the
Auto locked the bag of the deceased and dragged him nearly 8 to
10 yards. As a result, the deceased sustained multiple injuries
including, head injury and while he was being shifted to
Government Hospital, Secunderabad, he died on the way.
15. It is also pertinent to state that a perusal of Ex.A1-FIR
shows that Police of Alair Police Station, registered a case in Crime
No.48 of 2017 under Section 304-A IPC, took up investigation and
laid charge sheet against the driver of the subject Auto under
Ex.A6. Ex.A2 is the Inquest report wherein, the opinion expressed
by the panchayatdars is that the accident occurred due to the rash
and negligent driving of the driver of the crime Auto. Ex.A3 is the
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post-mortem examination report which shows that the cause of
death was due to 'Head injury'. Ex.A4 is the report of Motor
Vehicle Inspector wherein it is stated that the occurrence of
accident was not due to any mechanical defect. Ex.A5 is the
notice under Section 41-A Cr.P.C. issued to driver of the crime
Auto. Ex.A7 & A8 are the statements of witnesses. Ex.A9 is the
Identity card issued by the Telangana State Government
Handlooms and Textiles Unit, Nalgonda. Therefore, from the
evidence of PW2 coupled with the documents marked under
Exs.A1 to A4 & A6, it is clear that the death of the deceased was
due to rash and negligent driving of the driver of the crime Auto
bearing No.TS-07-UC-0361. This Court do not find any reason to
interfere with the findings of the learned Tribunal.
16. Coming to the quantum of compensation awarded, as the
petitioners failed to produce necessary documents evidencing the
age of the deceased, the learned Tribunal took the age of the
deceased @ 61 years as per Ex.A9- Identity card issued by the
Telangana Handlooms Unit, Nalgonda. Though the petitioners
contended that the deceased is a Silk Saree Weaver by profession
and used to earn Rs.20,000/- per month, but they did not produce
any documentary proof to that effect. Hence, the learned Tribunal
assessed his monthly income @ Rs.8,000/- and calculated
compensation accordingly which arrived @ Rs.5,74,000/-.
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17. Learned counsel for the appellants argued that the learned
Tribunal ought to have considered the age of the deceased as 55
years as mentioned under Exs.A2 & A3 which are the inquest and
post-mortem examination reports and ought to have calculated
compensation accordingly. It is also contended that the learned
Tribunal ought to have considered the income of the deceased @
Rs.20,000/- per month based on the evidence of PW3.
18. Admittedly, there is no Date of Birth certificate filed by the
claim petitioners. Hence, the learned Tribunal had taken the age
mentioned in Ex.A9- Identity card issued by the Telangana State
Handlooms and Textiles Wing, Nalgonda, into consideration. It is
pertinent to state that Ex.A9 is not an authenticated document.
Hence, it cannot be taken into consideration. In the absence of
Date of Birth Certificate, Courts normally rely upon Post Mortem
Examination Report. Hence, this Court, by relying upon the Post-
mortem examination report marked under Ex.A3, issued by the
Doctor who conducted autopsy over the dead body of the deceased,
is inclined to take the age of the deceased as 55 years and would
calculate compensation accordingly. Though it is the contention of
the learned counsel for appellants that the deceased used to earn
Rs.20,000/- per month as a Silk Saree weaver which contention is
corroborated by the evidence of PW3, but there is no documentary
proof evidencing the same and mere filing of Ex.A9-Identity Card
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issued by the T.S.Handlooms & Textiles Wing, Nalgonda does not
suffice to consider the income of the deceased @ Rs.20,000/- per
month. Under these circumstances, this Court feels it reasonable
that the learned Tribunal has rightly taken the income of the
deceased @ Rs.8,000/- which needs no interference by this Court.
Hence, the calculation of compensation is as under:-
19. The monthly income of the deceased is taken @ Rs.8,000/-.
Since this Court considered the age of the deceased as '55' years as
per Ex.A3-Post-mortem examination report, the dependents of the
deceased are entitled for addition of 10% of income towards future
prospects which comes to Rs.8,800/-. If 1/4th income is deducted
towards personal expenses as the number of dependents are four,
then the net monthly income of the deceased comes to Rs.6,600/-
and the annual income comes to Rs.79,200/- and after applying
multiplier '11' for the deceased being aged 55 years, then the total
loss of income comes to Rs.8,71,200/-. Apart from this the learned
Tribunal had awarded a sum of Rs.70,000/- towards conventional
heads i.e., loss of estate, loss of consortium and funeral expenses
by relying upon the Judgment of Hon'ble Apex Court in the case of
National Insurance Co. Ltd. Vs.Pranay Sethi & others 1 which
this Court feels considerable and is not inclined to interfere with
the same. Thus in all, the appellants are entitled for a total
compensation of Rs.9,41,200/-.
(2017 ACJ 2700)
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20. In the result, the Appeal is partly-allowed by enhancing the
amount of compensation awarded by the Tribunal from
Rs.5,74,000/- to Rs.9,41,200/- which carries interest @ 7.5% per
annum payable by the respondent Nos.1, 2 & 3 jointly and
severally within a period of two months from the date of receipt of a
copy of this order. Upon such payment made, the appellants are
entitled to withdraw the same as per the apportionment made by
the learned Tribunal. There shall be no order as to costs.
21. Miscellaneous petitions pending, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt. 30.08.2024
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