Telangana High Court
Akula Savithri vs Gajjala Ganga Naveen on 28 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
No.3143 OF 2017
J U D G M E N T:
Dissatisfied and aggrieved with the quantum of
compensation awarded in the Order and Decree dated
13.09.2017 (impugned Order) passed in Motor Vehicle Original
Petition No.534 of 2013 by the learned Chairman, Motor
Vehicle Accident Claims Tribunal-cum-I Additional District
Judge at Nizamabad (for short "the learned Tribunal"),
appellants-petitioners preferred the present Appeal seeking
enhancement of compensation amount.
02. For the sake of convenience, hereinafter, the parties
will be referred to as per their array before the learned
Tribunal.
03. Brief facts of the case are that:
Petitioners Nos.1 and 2 filed a claim petition under
Section 166 of the Motor Vehicle Act before the learned
Tribunal, claiming compensation of Rs.20,00,000/- for the
death of one Akula Gangadhar (hereinafter referred to as 'the
deceased'), who died in a Motor Vehicle Accident that occurred
on 27.04.2013. Petitioner No.1 is the wife and petitioner No.2
is the son of the deceased.
04. According to petitioners, on 27.04.2013 at 4.20 PM.,
the deceased was travelling in auto bearingNo.AP 25X 6890
along with wife/1st petitioner from Navipet towards Nizamabad
side andwhen they reached near Suresh Dhaba, Janakampet
Village sivar, Yedpally Mandal, the driver of the auto drove it in
a rash and negligent manner with high speed and dashed
against one auto trolley No.AP 25W 1764 which was coming
from opposite direction. Due to said accident, the auto
completely damaged and the deceased sustained severe head
injury and fracture injuries to the other parts of the body.
Immediately, he was shifted to Government Head Quarters
Hospital, Nizamabad and from there, he was shifted to
Shashank Hospital and later, he was referred to Hyderabad,
where he was admitted in Gandhi Hospital. During treatment,
he died on 09.05.2013 due to fractures and injuries.
05. As per petitioners, the deceased was hale and healthy
and he was aged about 58 years at the time of accident, he
was a retired Railway Employee and also doing agriculture and
he was earning Rs.20,000/- per month and he used to
contribute the same for the maintenance of his family.
Respondent No.1 being the owner of the offending vehicle and
respondent No.2 being the insurer of the offending vehicle are
jointly and severally liable to pay the compensation.
06. Respondent No.1 filed written statement, denying the
occurrence of the accident due to the rash and negligent
driving of the driver of the auto. He also denied the alleged age
and income of the deceased as on the date of accident. It is
contended that the deceased was aged more than 65 years and
was not an agriculturist. It is further contended that the policy
was in force as on the date of accident and the driver was
having a valid and effective driving license and therefore,
respondent No.2 alone is liable to pay the compensation and
the claim of compensation is excessive and exorbitant.
Therefore, he prayed to dismiss the claim petition against him.
07. Respondent No.2-Insurance company filed written
statement denying the age, income, manner of accident and
the injuries sustained by the deceased. It is contended that the
accident occurred due to the collusion of auto and auto trolly
and therefore, there was contributory negligence. The petition
is bad for non-joinder of necessary parties. The owner of the
vehicle has violated the terms and conditions of the policy as
the driver has got boarded the passengers more than the
capacity of the auto. Therefore, respondent No.2 Insurance
Company is not liable to pay the compensation. The
compensation claimed is out of proportions, excessive and
exorbitant and prayed to dismiss the petition.
08. On the basis of the above pleadings, the following
issues were settled:
i. Whether on 27-4-2013 at about 4.20 p.m near
Suresh Diabe Jankampet village, accident
occurred due to rash and negligent driving of
auto bearing No AP 25-X 6890 by its driver?
ii. Whether Akula Gangadhar received injuries in
that accident and died of the injuries?
iii. Whether the petitioners are entitled for
compensation? If so, to what amount and from
which respondent?
iv. To what relief?
09. Before the learned Tribunal, petitioners got examined
PWs 1 to 3 and marked Exs.A1 to A7. On behalf of the
respondents, RWs 1 to 3 were examined and marked Exs.B1 to
B3 and Exs.X1 to X3.
10. Considering the claim of petitioners and written
statements filed by the respondents and on evaluation of oral
and documentary evidence available on record, the Tribunal
partly allowed the Motor Vehicle Original Petition, awarding
compensation of Rs.3,37,000/- along with interest @ 7.5% per
annum from the date of petition till the date of deposit, to be
deposited by respondent Nos.1 and 2 jointly and severally.
11. Challenging the quantum of compensation, appellants-
petitioners have filed this Motor Accident Civil Miscellaneous
Appeal seeking enhancement of compensation amount.
12. Heard Sri P. Radhive Reddy, learned counsel for
appellants-petitioners and Sri K. Ajay Kumar, learned counsel
for respondent No.2-Insurance company. Perused the material
available on record.
13. The main contention of the learned counsel for
appellants-petitioners is that though appellants proved their
case by adducing cogent evidence apart from relying on the
documents under Exs.A1 to A7, the learned Tribunal without
considering the same, erroneously awarded meager amount
towards compensation by taking monthly income of the
deceased at the rate of Rs.4,500/- only instead of Rs.20,000/-
per month and sought for enhancement of compensation
amount.
14. On the other hand, learned counsel for respondent
No.2-Insurance company has contended that the learned
Tribunal has adequately granted the compensation and the
same needs no interference by this Court.
15. Now the point for consideration is that:
Whether appellants-petitioners are entitled for
enhancement of compensation amount in addition to
the compensation amount granted vide impugned
Order and Decree dated 13.09.2017 by the learned
Tribunal?
P O I N T:
16. This Court has perused the entire evidence and
documents available on record.
17. PW1 who is the wife of the deceased as well as eye
witness to the incident reiterated the contents of the claim
application and got marked Ex.A1 to A7.
18. The petitioners got examined PW2 in support of their
case. PW2 stated that as on the date of accident, the deceased
was a retired Railway employee, aged 58 years and was hale
and healthy drawing an amount of Rs.20,000/- per month as
pension. He further stated that the deceased was doing
agriculture by raising commercial crops like vegetables,
turmeric, etc., and was earning an amount of Rs.10,000/- per
month, in total he was getting Rs.30,000/- per month and
contributing his entire income to his family members and that
the petitioners are the legal heirs of the deceased. In the cross
examination, he stated that the deceased was his neighbor and
has not brought any land record pertaining to his land and he
cannot give the survey numbers of the land held by the
deceased and the deceased worked on contract basis in the
Railway Department and he do not know the quantum of
payment made by the Department to the deceased and he do
not know the income, which the deceased was getting from his
land. He denied the other suggestions put to him. Though
PWs 1 and 2 were cross examined at length, nothing worth
was elicited to dis-believe their evidence.
19. Apart from the oral evidence, the claim petitioners
have also relied upon documentary evidence marked under
Exs.A1 to A7. Ex.A1-FIR discloses that a criminal case was
registered by Police and took up investigation and during the
course of investigation, inquest, postmortem examination were
conducted and those reports were marked as Exs.A3 and A4
respectively and after completion of investigation, Ex.A2-
Charge sheet was filed against respondent No.1-owner-cum-
driver of the auto stating that the accident took place due to
his rash and negligent driving. Ex-A3/Inquest report discloses
that the deceased used to work in Railways as on the date of
accident met with the accident and succumbed to injuries
while undergoing treatment. Ex.A4/Postmortem Report
discloses that the cause of death is due to head injury. Ex.A5
is CT scan. Ex.A6/Death summary discloses the treatment
undergone by the deceased. Ex.A7 is the copy of insurance
policy, which is valid and in force as on the date of accident.
20. Coming to the evidence of respondents, RW1, the
owner of the offending vehicle deposed that no accident had
happened on 27.04.2013 with his auto at Janakampet village
sivar and the deceased Akula Gangadhar has not died in the
alleged accident and the petitioners falsely got registered a
case against him with collusion of the police to get
compensation. He has filed his driving license extracts under
Exs.B1 and B2 and insurance policy of the vehicle under
Ex.B3. As per Ex.B1, he was holding learners license for the
period from 16.03.2013 to 15.09.2019 and his auto has
insurance coverage with respondent No.2. He further deposed
that the police filed charge sheet against him alleging that he
was responsible for the accident and he denied the other
suggestions put to him. In the cross examination by
respondent No.2, he admitted that no passenger was travelling
in his auto at the time of accident and denied the suggestion
that at the time of accident, five passengers were travelling and
the accident occurred due to his negligent driving and has not
displayed 'L' Board on his auto and that one Sudarshan, who
was holding the driving license was not sitting in the auto
which he was driving the auto.
21. RW2, Legal Executive of Insurance Company deposed
that the driver was not holding a valid driving license on the
date of accident and the auto is a passenger carrying
commercial vehicle. He further deposed that neither the driver
has put 'L' Board nor there was a person who is having a
permanent driving license sitting beside him. He further
deposed that there were more than four persons travelling at
the time of accident though the seating capacity of the auto is
four and that the accident occurred due to the collusion of
auto and auto trolley and there was negligence on the part of
the driver of the auto trolley and therefore, there was
contributory negligence on the part of the driver of the trolley.
In the cross examination, he admitted that the Insurance
Policy was in force as on the date of accident and the driver of
the offending vehicle was having only Learner's License. He
further admitted that the connected matter was settled before
the Lok Adalath as compromised and only the 1st petitioner in
this case is sole petitioner and injured. He denied the other
suggestions put to him.
22. RW3 is Junior Assistant in RTA, Nizamabad. He
deposed that as per Ex.X2, B-Register Extract, the present
owner of the vehicle is one Rafi Bin Shafi and in the year 2013,
respondent No.1 was owner of the vehicle. He further deposed
that as per the driving license/Ex.X3, the holder of the same
can drive a motorcycle with gear, LMV non-transport and auto
rickshaw non-transport. In the cross examination, he stated
that there is no difference of mechanism skills of driving
between transport and non-transport auto rickshaw and the
person holding learning license can drive any type of auto and
after considering learning license/Ex.B1 and on testing,
driving license under Ex.X3/B2 was issued.
23. PW3 is the Junior Engineer who appeared before the
Court through summons. He deposed that the deceased
worked as Keyman in South Central Railway, Umri and for the
last time, the deceased had drawn the net salary of
Rs.17,624/- for the month December, 2012. Though him,
Ex.X1 salary certificate of the deceased was marked, wherein,
his date of birth is mentioned as 01.08.1960, date of
appointment as 24.08.1984. He further admitted that the left
over service of deceased is seven years. He further stated that
that he cannot say whether the deceased was in service as on
the date of accident or not and denied the other suggestions
put to him. Though he was cross examined at length, nothing
worth was elicited to dis-believe his evidence.
24. It is pertinent to state that there is no dispute
regarding the manner of accident, injuries sustained by the
deceased and death of the deceased while undergoing
treatment. Therefore, the learned Tribunal after considering all
the aspects has answered the issue Nos.1 and 2 in favour of
the petitioners and hence, this Court is not inclined to
interfere with the said findings of the Tribunal which are based
on appreciation of evidence in proper perspective. Thus, the
only dispute in the present appeal is with regard to the
quantum of compensation.
25. Now coming to the compensation amount, as per the
claim petitioners, the deceased was a Railway employee-cum-
agriculturist and was earning an amount of Rs.30,000/- per
month. However, they have relied upon Ex.X1/salary
certificate, which was marked through PW3 and contended
that the said salary certificate shows the net income of
deceased at Rs.17,624/-, the learned Tribunal has not
considered the said salary certificate and erred in finding that
no documentary evidence is filed to show that the deceased
was in service as on the date of accident. A perusal of record
discloses that PW3, who is the Junior Engineer, Umri has
categorically deposed about the employment of the deceased in
the Railways. Considering that he has neither brought the
authorization letter in writing nor brought the original record
on the basis of which Ex.X1 was issued, the learned
Tribunal has taken income at the rate of Rs.4,500/-
per month. However, considering the occupation of
the deceased which is not disputed, this Court is
inclined to take into consideration the income at the
rate of Rs.8,000/- per month. While calculating
further compensation amount, the learned Tribunal
has not awarded future prospects.
26. In Kirti and another v. Oriental Insurance
Company Ltd 1 the Honourable Supreme Court of
India held that:
Civil Appeal Nos.1920 of 2021 [Arising out of Special Leave Petition(C) Nos.1872829 of 2018]
"13. Third and most importantly, it is unfair
on part of the respondent-insurer to contest
grant of future prospects considering their
submission before the High Court that such
compensation ought not to be paid pending
outcome of the National Insurance Company
Limited Vs. Pranay Sethi and others 2.
Nevertheless, the law on this point is no
longer res integra, and stands crystalised,
as is clear from the following extract of the
aforecited Constitutional Bench Judgment:
"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 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."
27. In the above authority, it is made clear by the
Honourable Supreme Court of India that if the
deceased was self-employed, under the age of 60
years, an addition of 10% of established income can
2017 ACJ 2700
be awarded. In the case on hand, the established
income of the deceased is Rs.8,000/- per month.
28. In view of the decision of the Honourable Apex Court in
Pranay Sethi case (cited supra) 10% i.e., Rs.800/- towards
future prospects can duly be added thereto, which comes to
Rs.8,800/- (Rs.8,000/- + Rs.800/-). Hence, this Court is
inclined to fix the annual income of the deceased at
Rs.1,05,600/- (Rs.8,800x12). Since there are two
dependents, after deducting 1/3rd of the income (Rs.35,200/-)
towards personal expenses of the deceased, as per the decision
of the Honourable Apex Court in Smt.Sarla Varma v. Delhi
Transport Corporation and another 3, the net annual
contribution to the family comes to Rs.70,400/-
(Rs.1,05,600/- minus Rs.35,200/-).
29. Based on the inquest and Post mortem
examination report, the learned Tribunal has taken
the age of the deceased as 60 years, however, erred in
applying the multiplier of '7' while computing the
compensation. Therefore, as per the decision of the
Honourable Apex Court in Smt.Sarla Varma (supra), the
2009 (6) SCC 121
appropriate multiplier is '9'. Thus, applying the multiplier '9'
to the annual loss of dependency, which is already arrived at
Rs.70,400/-, the total 'loss of dependency' comes to
Rs.6,33,600/- (Rs.70,400/- x 9). As seen from the Order of
the learned Tribunal, an amount of Rs.25,000/- was awarded
towards funeral expenses, Rs.30,000/- towards loss of love
and affection and loss of consortium, Rs.20,000/- towards loss
of estate and Rs.10,000/- towards transportation and this
Court is not inclined to interfere with the said findings. Thus,
in all, petitioners are entitled to compensation of
Rs.7,18,600/- (Rupees Seven Lakhs Eighteen Thousand Six
Hundred only).
30. In view of the above discussion, this Court is of the
considered opinion that the compensation amount awarded by
the Tribunal at Rs.3,37,000/- is at lower side and the same is
enhanced to Rs.7,18,600/-. In so far as interest is concerned,
the learned Tribunal has rightly awarded interest at
the rate of 7.5 percent per annum from the date of petition
till the date of deposit and the same rate of interest is
applicable on the enhanced compensation amount from the
date of petition till the date of realization. The enhanced
compensation amount along with interest, shall be deposited
by respondents within a period of one month from the date of
receipt of a copy of this Judgment. On such deposit,
petitioners are entitled to withdraw the same without
furnishing any security.
31. In the result, this Motor Accident Civil Miscellaneous
Appeal is partly allowed enhancing the compensation amount
awarded by the Tribunal from Rs.3,37,000/- to Rs.7,18,600/-
along with interest at the rate of 7.5 percent per annum from
the date of petition till the date of realization. There shall be
no order as to costs.
As a sequel, the miscellaneous applications, if any,
pending shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 28-MAR-2024
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