Telangana High Court

Sk.Yakub Bee And 3 Others vs G.Narasimha Yadav And Another on 16 October, 2024

           HON'BLE SMT.JUSTICE M.G.PRIYADARSINI

                          I.A.No.5 of 2015
                               IN/AND
                     M.A.C.M.A.No.2503 of 2019

JUDGMENT:

1. Dissatisfied with the compensation awarded by the

Chairman, Motor Accident Claims Tribunal-cum-Special Sessions

Judge for Trial of Scheduled Castes/Scheduled Tribes (POA) Cases

-cum- Additional District Judge, Nalgonda, in M.V.O.P.No.852 of

2011, dated 25.11.2013, the claim petitioners therein preferred the

present Appeal seeking for enhancement of compensation along

with I.A.No.5 of 2015 for amendment of claim amount.

2. For the sake of convenience, the parties hereinafter be

referred as they were arrayed before the Tribunal.

3. The facts of the case in nutshell are that the claim

petitioners, who are the minor children of the deceased-

Sk.Murthuza, W/o.Sk.Latheef and who are represented by their

maternal uncle by name Sk.Hussain, filed a petition under Section

166 r/w. Section 140 of the Motor Vehicles Act, 1988 and Rule 455

of A.P.M.V.Rules, 1989, seeking compensation of Rs.5,00,000/- for

the death of their deceased mother in a motor vehicle accident that

occurred on 23.05.2011. It is stated by the claim petitioners that

they are natives of Chemalagadda Colony of Nalgonda District and

their family went to Dodleru of Krosuru Mandal of Guntur District

MGP,J I.A.No.5/ 2015 in/and

to eke out their livelihood by doing Tinkering works of Aluminium

vessels and on 23.05.2011 at about 8.00 p.m., when the

petitioners and the deceased were sleeping on a cot in the premises

of Primary School of Dodleru Village, one Lorry bearing No.AP-29R-

8491, which was driven by its driver in a rash and negligent

manner, got hit the cot on which they were sleeping. As a result,

the deceased fell down from the cot and the subject Lorry ran over

the legs of the deceased. When the deceased was being taken to

Hospital, she died on the way. Based on a complaint given by the

brother of the deceased, Police of Krosuru Police Station registered

a case in Crime No.70 of 2011 under Section 304-A IPC. It is

further stated by the petitioners that the deceased was aged 25

years and was earning Rs.6,000/- per month as Blacksmith and

was contributing her earnings for the family and due to the sudden

accidental death of the deceased which occurred due to the rash

and negligent driving of the driver of the crime Lorry, the

petitioners have become destitute all of a sudden and are suffering

from misery and hence filed a claim petition seeking compensation

of Rs.5,00,000/- against the respondent Nos.1 & 2, who are the

owner and insurer of the crime Lorry.

4. Respondent No.1, who is the owner of the subject Lorry

bearing No.AP-29R-8491, remained ex-parte.

MGP,J I.A.No.5/ 2015 in/and

5. Respondent No.2/Insurance Company filed its counter

denying the averments made in the claim petition including, age,

avocation, income, rash and negligent driving of the driver of the

crime Lorry and death of the deceased in the accident and

contended that the compensation claimed is excess and exorbitant

and hence, prayed to dismiss the claim petition.

6. Based on the pleadings made by both the parties, the

learned Tribunal had framed the following issues for conducting

trial:-

(i) Whether the deceased by name Sk.Muthuza, W/o.Sk.Latheef died due to rash and negligent driving of driver of Lorry bearing No.AP-29-R-8491?

(ii) Whether the claimants are entitled to claim compensation? If so, to what amount and from whom?

(iii) To what relief?

7. Before the Tribunal, on behalf of the petitioners, PWs 1 & 2

were examined and Exs.A1 to A4 were marked. As respondent

No.1 remained ex-parte, on behalf of respondent No.2, no witness

was examined, but however Ex.B1-Copy of Insurance policy was

marked.

8. After considering the evidence and documents filed by both

sides, the learned Tribunal allowed the claim petition of the

petitioners and awarded compensation of Rs.5,00,000/- along with

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

MGP,J I.A.No.5/ 2015 in/and

date of realization payable by respondent No.2 within a period of

two months. Having not satisfied with the compensation awarded

by the learned Tribunal, the claim petitioners preferred the present

Appeal seeking for enhancement of compensation and also filed

I.A.No.5 of 2015 seeking amendment of claim amount.

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 erred in not awarding the

calculated compensation which was arrived @ Rs.9,18,000/- and

had not followed the judgment of the Hon'ble Apex Court in

Nagappa Vs. Gurudayal Singh 1 and also erred in holding that the

appellants are not entitled for any amount towards future

prospects and hence, prayed to allow the appeal by enhancing the

compensation.

11. Per contra, learned counsel for the 2nd respondent/Insurance

Company contended that the appellants filed claim petition for

Rs.5,00,000/- and the learned Tribunal, after considering all the

aspects, had awarded the same which is reasonable and

interference of this Court is unwarranted.

12. Now the point that arises for determination is,

2003 ACJ 12

MGP,J I.A.No.5/ 2015 in/and

Whether the order passed by the learned Trial Court requires interference of this Court?

POINT:-

13. This Court has perused the evidence and documents

available on record. The maternal uncle of the claim petitioners

was examined as PW1. PW2, who is the close relative of the

deceased and who witnessed the incident, deposed in her evidence

that their family had also been camped at Primary School of

Dodleru Village along with the family of the deceased and on the

date of incident i.e. on 23.05.2011 at about 11.00 a.m., when the

deceased along with her family was sleeping on a Cot, one Lorry

bearing No.AP-29-R-8491, which was driven by its driver in a rash

and negligent manner, hit the Cot of the deceased. As such, the

deceased fell down from the Cot and the crime lorry ran over the

legs of the deceased and she sustained injuries and died on the

way to Hospital. On behalf of the petitioners, Exs.A1 to A4 were

marked. A perusal of Ex.A1 makes it clear that Police of Krosuru

Police Station, Guntur District, registered a case in Crime No.70 of

2011 under Section 304-A IPC, conducted investigation and filed

Ex.A2-Charge Sheet against the driver of the Crime Lorry for his

rash and negligent driving which resulted into an accident. Ex.A3

is the inquest report and Ex.A4 is the Post-mortem examination

report.

MGP,J I.A.No.5/ 2015 in/and

14. Though PWs1 & 2 were cross-examined, nothing adverse was

elicited from them to disbelieve their testimony. Hence, their

evidence can be taken into consideration. Therefore, from the

evidence of PWs1 & 2 coupled with documents marked under

Exs.A1 to A4, it is clear that the death of the deceased was due to

rash and negligent driving of the driver of the offending Lorry

which is having valid insurance coverage as on the date of

accident. Hence, the petitioners are entitled for compensation.

15. Coming to the aspect of compensation, the learned Tribunal,

considering the occupation and income of the deceased as

Blacksmith, fixed the monthly income of the deceased @

Rs.6,000/- and deducted 1/4th as the number of dependants are

four and applied relevant multiplier and calculated the

compensation without awarding future prospects and the

calculated compensation comes to Rs.9,18,000/-. But the learned

Tribunal restricted its compensation only to Rs.5,00,000/- as the

claim made by the petitioners is only for Rs.5,00,000.

16. It is the contention of the learned counsel for the appellants

that the learned Tribunal erred in not awarding future prospects to

the income of the deceased. In this regard, it is pertinent to refer

to the decision of the Hon'ble Supreme Court in the case between

Syed Sadiq Etc Vs. Divisional Manager, United India Insurance

MGP,J I.A.No.5/ 2015 in/and

Company 2 wherein, the Hon'ble Apex Court at Paras 17 & 18 of

the judgment, held as under:-

17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self- employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." Therefore, considering that the appellant/ claimant was self employed and was 24 years of age, we hold that he is entitled to 50% increment

AIR 2014 SUPREME COURT 1052

MGP,J I.A.No.5/ 2015 in/and

in the future prospect of income based upon the principle laid down in the Santosh Devi case (supra).

17. This Court, by relying upon the above cited decision, is

inclined to interfere with the finding of the learned Tribunal and

hereby award future prospects to the established income of the

deceased and would calculate the compensation as under:-

18. The age of the deceased is less than 40 years and is self-

employed. Therefore, as per the decision of the Hon'ble Apex Court

in National Insurance Company Limited Vs. Pranay Sethi and

others 3 , if 40% is added towards future prospects to the

established income which is Rs.6,000/-, then the net monthly

income of the deceased comes to Rs.8,400/-. Since the number of

dependants are four, if 1/4th is deducted towards living and

personal expenses, then the total annual income comes to

Rs.75,600/- and by applying the multiplier '18' as per the decision

of the Apex Court in Sarla Varma v. Delhi Transport Corporation

and another 4 , the total loss of dependency comes to

Rs.13,60,800/-. Further, considering the fact that the appellants

Nos.1 to 4 being the minor children of the deceased, this Court is

inclined to award a sum of Rs.40,000/- each under the head of

parental consortium as per the decision of the Apex Court in

Magma General Insurance Company Limited v. Nanu Ram @

2017 ACJ 2700

2009 (6) SCC 121

MGP,J I.A.No.5/ 2015 in/and

Chuhru Ram and others 5 . Thus, in all, the appellants are

entitled for a total compensation of Rs.15,20,800/.

19. This Court also refers to the judgment of the Hon'ble Apex

Court in Nagappa Vs. Gurudayal Singh & Ors 6, wherein, the

relevant portion of the said judgment is extracted as under:-

"For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition."

20. Therefore, this Court, by relying upon the above decision, is

inclined to interfere with the finding arrived at by the learned

Tribunal and hereby award a sum of Rs.15,20,800/- towards

compensation to the appellants.

21. In the result, the Appeal along with I.A.No.5 of 2015 are

allowed by enhancing the compensation awarded by the learned

(2018) 18 SCC 130 AIR 2003 SUPREME COURT 674

MGP,J I.A.No.5/ 2015 in/and

Tribunal from Rs.5,00,000/- to Rs.15,20,800/- which carries

interest @ 7.5% per annum payable by respondent No.2 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