Telangana High Court

Nazneen Sultana, Hyderabad And 4 Others vs Kamalur Abdul Rahim, Ranga Reddy Dist ... on 12 July, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                  M.A.C.M.A.NO.295 OF 2017
JUDGMENT:

The present appeal has been filed by the appellants/

petitioners aggrieved and dissatisfied with the award passed

by the XIII Additional Chief Judge (FTC), City Civil Court,

Hyderabad (for short, 'Tribunal") in M.V.O.P.No.66 of 2014,

dated 21.09.2016 and thereby seeking for enhancement of

compensation.

2. The appellants herein are the petitioners, respondent

no.1 herein is the respondent no.1-owner of the crime vehicle

and the respondent no.2 herein is the respondent no.2-

insurance company before the Tribunal. For convenience, the

parties hereinafter are referred to as they are arrayed before the

Tribunal.

3. The brief factual matrix of the present appeal is as under:

3.1. On 01.05.2013 at about 9.00 a.m., while Shaik Abdul Haq

(hereinafter referred to as deceased) was going to his work at LNA,J

Incois Company, Pragathi Nagar on his bike bearing

registration No.AP-22-D-8590 and when he reached near

Sainadh Tiffin Centre, Tulasi Nagar, the rider of Honda Dream

Yuga bike bearing registration No.AP-28-BT-6132 (hereinafter

referred to crime vehicle), came in rash and negligent manner

at high speed along with his sister and dashed the motor cycle

of the deceased, as a result, the deceased fell down on the road,

received severe injuries and died on the spot. The Police, KPHB

Police Station, Cyberabad, registered a case in Crime

No.444/2013 against the rider of the crime vehicle, who is

juvenile, aged 14 years and filed charge sheet.

3.2. The petitioners i.e., wife, children and parents of the

deceased, respectively, have filed claim petition against

respondent no.1-owner of the crime vehicle and the respondent

no.2-insurance company under Section 166 of the Motor

Vehicles Act, 1989 before the Tribunal claiming compensation

of Rs.20,00,000/-.

LNA,J

3.3. The claimants claimed that the deceased was aged about

40 years as on the date of accident, hale and healthy and was

working as Electrician-cum-Technician in Voltas Ltd., and used

to earn Rs.10,000/- per month; that due to sudden demise of

the deceased, petitioners lost their financial, social and moral

support and love and affection of the deceased.

4. The respondent no.1 remained ex parte. The respondent

No.2-insurance company filed counter denying all the

allegations of claim petition, manner of accident, age,

avocation, earning capacity of the deceased. It is further

contended that petitioners claimed excessive and exorbitant

compensation and thus, prayed to dismiss the claim petition.

5. Basing on the pleadings, the following issues are framed

for trial:

1. Whether the deceased Shaik Abdul Haq died due to rash and negligent driving of the driver of bike Honda Dream Noo.Ap-28-BT-6132 ?

2. Whether the petitioners are entitled for the compensation and if so, to what amount and from whom?

3. To what relief ?

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6. To substantiate the case, on behalf of the petitioners,

P.Ws.1 to 3 were examined and Exs.Al to Ex.A21 were marked.

On behalf of the respondent No.2-insurance company, RW.1

was examined and Exs.B1 and B2 were marked.

7. The Tribunal, on due consideration of evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the crime

vehicle by its rider and awarded total compensation of

Rs.11,55,000/- with costs and interest @ 9% per annum.

8. Heard Sri Mohd.Yousuf, learned counsel for the

appellants/petitioners and Sri. K.Ajay Kumar, learned counsel

for respondent no.2-insurance company.

9. During the course of hearing of the appeal, learned

counsel for appellants submitted that the Tribunal failed to

award just compensation and erred in taking the notional

income of the deceased as Rs.1,00,000/- per annum, which is

against the evidence of P.W.3 and Ex.A8. He contended that

Tribunal failed to award compensation towards future LNA,J

prospects of the deceased. He further contended that Tribal

erred in awarding meager amount towards loss of consortium,

love and affection and finally, prayed to enhance the

compensation.

10. Per contra, learned counsel for respondent no.2-insurance

company, while reiterating the averments in the counter before

the Tribunal, submitted that the Tribunal grossly erred in

assessing the income of the deceased without there being any

supporting evidence and also erred in awarding the amount

towards funeral expenses and loss of estate. He further

submitted that the multiplier adopted by the Tribunal is

incorrect and prayed to dismiss the present appeal.

Consideration:

11. Insofar as the contention of the learned counsel for

petitioners that Tribunal erred in not considering the Ex.A8-

salary certificate in assessing the income of the deceased is

concerned, as per the record, it is claimed by the petitioners

that the deceased was working as Electrician/Technician and LNA,J

earning Rs.10,000/- per month and in support of their

contention, P.W.3-N.Prudvi Raj was examined and Ex.A8 was

marked through the evidence of P.W.1.

12. However, P.W.3-N.Prudvi Raj, who is working as

Manager in Snow Flow Company since, 2008, admitted in his

cross-examination that he did not bring any record to show

that the deceased was working in their company; that he did

not obtain any authorization from their company to depose;

that Ex.A8 is not on their company letterhead; that at the

request of petitioners, they issued Ex.A8 on behalf of their

company and that he is not authorized to issue Ex.A8.

13. Perusal of the record would show that the Tribunal had

assessed the income of the deceased as Rs.1,00,000/- basing on

Ex.A21-Andhra Bank statement of account of wife the deceased

pertaining to the year 2015, in which, an amount of Rs.98,626/-

was shown as balance on 23.02.2016. This Court is not able to

understand as to how the said amount was taken as annual

income of the deceased by the Tribunal, without there being LNA,J

any evidence in proof of employment and monthly salary of

deceased. Thus, this Court feels that the Tribunal had assessed

the income of the deceased mechanically, without applying

any mind.

14. In view of the above discussion, this Court is of the

considered opinion that monthly income of the deceased can

be taken at Rs.7,000/- being a Technician taking into

consideration Ex.A6-ID Card of Voltas Ltd., where the

deceased worked as Electrical/AC & Refrigeration Technician,

and relevant date of accident, the inflation, devaluation of

rupee, cost of living etc. and the same need to be modified.

15. Furthermore, the Tribunal had taken the age of the

deceased as 42 years basing on Ex.A3-postmortem examination

report. However, as per Ex.A10-Secondary School Certificate

of the deceased, Ex.A11-Leaving Certificate of the deceased

issued by the Principal, SES Polytechnic, Solapur and Ex.A12-

Provisional National Trade Certificate issued by the Principal,

Industrial Training Institute, Solapur, the date of birth of the LNA,J

deceased was shown as 01.02.1966, which are the authentic

school and educational certificates, and as per which the age of

deceased as on the date of accident was 47 years. When those

certificates are available on record, this Court is unable to

understand as to how the Tribunal has taken Ex.A3-PME

report in assessing the age of the deceased. From the above

discussion, this court is of the considered opinion that the age

of the deceased can be taken as 47 years as on the date of the

accident for adopting proper multiplier.

16. The other contention raised by the learned counsel for

petitioner with regard to the future prospects is concerned, in

National Insurance Company Limited vs. Pranay Sethi and

others 1 , the Hon'ble Apex Court at paragraph 59.4 held as

under:

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was

(2017) 16 SCC 680 LNA,J

between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

17. In view of the above legal position and considering the

age of the deceased as per educational certificates i.e., Exs.A10,

A11 and A12, 25% of the monthly income of the deceased can

be added as future prospects. The proper multiplier is '13' for

the age group of 46 to 50 as per the decision of Pranay Sethi

(supra). However, the Tribunal erred in adopting multiplier 14

by taking the age of the deceased as 42 years and the same

needs to be modified to the above extent. The Tribunal erred in

not awarding the future prospects.

18. Insofar as the quantum of compensation under

conventional heads, perusal of the record, the Tribunal

awarded Rs.50,000/- towards loss of consortium and further

Rs.30,000/- towards funeral expenses and Rs.25,000/- towards

loss of estate. In Pranay Sethi (supra), the Hon'ble Apex Court

held as under:

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [Rajesh LNA,J

v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 :

(2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect.

Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.

Xxx

59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs 15,000 respectively.

LNA,J

The aforesaid amounts should be enhanced at the rate of 10% in every three years."

19. In view of the above, the award of the amount under the

conventional heads by the Tribunal is not in tune with the ratio

laid down by the Hon'ble Apex Court in Pranay Sethi (supra),

and the same needs to be modified to the extent of Rs.15,000/-

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

expenses and Rs.40,000/- each claimant towards consortium.

Conclusion:

20. In view of the above, the compensation amount is

recalculated as under:

Sl.No.             Head                       Compensation awarded

1        Income                         Rs.84,000/- per annum
                                        (Rs.7,000/- pm)
2        Future prospects               Rs.21,000/- (25% of income)

3        Total income                   Rs.1,05,000/-
                                        (Rs.84,000/- + Rs.21,000/-)
4        Deduction         towards Rs.26,250/- (i.e., one-fourth of the
         personal expenses         total income )
5        Net Income per annum      Rs.78,750/- (i.e., Rs.1,05,000/- (-)
                                   Rs.26,250/-)


7        Loss of dependency        Rs.10,23,750/- (i.e., Rs.78,750/- x 13)
         (Sl.No.1 to 6)
8        Consortium (Rs.40,000/- x Rs.2,00,000/-
         5)
                                                                      LNA,J





9         Funeral expenses             Rs. 15,000/-

10        Loss of estate               Rs. 15,000/-

Total compensation to be Rs.12,53,750/- paid:

21. In the result, Appeal is partly allowed enhancing the

compensation amount from Rs.11,55,000/- to Rs.12,53,750/-

with interest at the rate of 9% per annum from the date of the

claim petition till the date of realization. The respondent Nos.1

and 2 herein are directed to pay the said compensation amount

within a period of six weeks from the date of receipt of copy of

this order. The respondent no.2/insurance company is directed

to first satisfy the award and later to recover the same from the

respondent no.1 herein. The appellants/petitioners are entitled

to the apportionment and withdrawal of the amount as

directed by the Tribunal. There shall be no order as to costs.