Andhra Pradesh High Court - Amravati
Pothala Suryanarayana Anr vs K.Krishna Anr on 29 April, 2024
APHC010392622016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3364]
MONDAY,THE TWENTY NINETH DAY OF APRIL TWO THOUSAND
AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2335/2016
Between:
1. Pothala Suryanarayana, S/o late Kannayya, aged about 48 years,
Pedanaidupalem, Sabbavaram Mandal, Visakhapatnam District.
2. Pothala Lakshmi, W/o Suryanarayana, aged about 40 years, R/o
Pedanaidupalem, Sabbavaram Mandal, Visakhapatnam District.
...Appellants/Claimants
AND
1. K. Krishna, S/o China Ramarao, aged major, owner of
tractor/trailer, r/o D.No.16-12-9, Hospital Road Street, Peddapuram,
East Godavari District.
2. M/s. The New India Assurance Co., Ltd., rep. by its Regional
Manager, Visakhapatnam.
...Respondents/respondents
The Court made the following:
JUDGMENT:-
Challenge in this MACMA is to the award, dated 06.12.2008 in M.O.P.No.1469 of 2006, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Visakhapatnam ("Tribunal" for short), whereunder the Tribunal dealing with a claim for compensation of Rs.8,00,000/- made by the claimants on account of death of Pothala Hari Krishba (hereinafter will be referred to as "deceased") in a motor vehicle 2 accident, which was occurred on 30.04.2006, awarded a sum of Rs.3,75,000/-.
2) The parties to this MACMA will hereinafter be referred to as described before the Tribunal for the sake of convenience.
3) The case of the claimants, in brief, according to the averments set out in the claim before the Tribunal, is that the deceased was studying medicine in GSL Medical College, Rajahmundry. He was aged about 19 years as on the date of accident. On 30.04.2006 the deceased was going on motorcycle bearing No.A.P.31-AK-6933, near poultry farm at Velama Kothuru Village of Tuni Mandal. At about 6-30 a.m., the driver of the tractor-trailer bearing No.A.P.05-AD-9710 and A.P.05-Y-3936 (hereinafter will be referred to as "offending vehicle") drove in a rash and negligent manner and dashed the motorcycle, as a result, the deceased received injuries and died. The claimants are the parents of the deceased. They have no other children. The deceased has got bright future. His death caused lot of agony and sufferance to the claimants. The first respondent is owner and the second respondent is insurer of the offending vehicle. They are jointly and severally liable to pay the compensation.
4) The first respondent filed a counter contending in substance that the claimants have to prove the rash and negligent act attributed to the driver of the offending vehicle and the accident was happened due to the fault of the deceased.
5) The second respondent filed a counter putting forth the burden on claimants to prove strictly the rash and negligent act attributed to the driver of the offending vehicle and further earning capacity of the deceased and the dependency of the claimants. The contention of the 3 second respondent is also that the compensation claimed is excessive, as such, claim is to be dismissed.
6) On the basis of the above pleadings, the Tribunal settled the following issues for trail:
(1) Whether P. Harikrishna died on account of the rash and negligent driving of the vehicle bearing NHo.A.P.05-AD-
9710/A.P.05-Y-3936 by its driver?
(2) Whether the claimants are entitled for compensation and if so to what amount and from which of the respondents?
(3) To what relief?
7) During the course of enquiry, on behalf of the claimant, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.8. No evidence was let in on behalf of the respondents.
8) The Tribunal on hearing both sides and considering the oral as well as documentary evidence answered the issues in favour of the claimants and awarded a sum of Rs.3,75,000/- towards compensation. Feeling aggrieved that the compensation so awarded is meagre and it is not sufficient and just, the claimants filed the present MACMA.
9) Now, in deciding the present MACMA, the point for determination is whether the award, dated 06.12.2008 in M.O.P.No.1469 of 2006, on the file of the Chairman, Motor Accidents Claims Tribunal- cum-District Judge, Visakhapatnam, in awarding compensation of Rs.3,75,000/- as against the original claim of Rs.8,00,000/-, is sustainable under law and facts and whether there are any grounds to enhance the compensation?
4POINT:-
10) Sri Jayanthi.S.C. Sekhar, learned counsel for the appellants, would contend that the deceased was II year medicine student in GSL Medical College, Rajahmundry. He had very good bright career. The accident occurred was due to rash and negligent act of the driver of the offending vehicle. The tribunal awarded meagre compensation. The tribunal considered the monthly earnings of the deceased on notional basis as that of Rs.4,000/-. In several judgments before other High Courts and Hon'ble Supreme Court, the prospects of a medical student were said to be high in the light of the prevailing situations. The learned counsel in support of her contention relied upon as many as 11 decisions. He would submit that the compensation is to be enhanced drastically.
11) Smt. A. Jayanthi, learned counsel appearing for the respondents, would canvass a contention that there is no proof whatsoever to show the academic excellency of the deceased. Except the I.D. card of the deceased, the academic performance of the deceased was not brought in evidence. GSL Medical College was a private college. If the deceased was a meritorious student, he would have got seat in Government College. Even otherwise, the deceased was said to be in II year. There is no evidence that he completed I year.
Except the ID card for obvious reasons claimants did not show that the deceased was a medical student. In all the relevant decisions cited by the learned counsel for the appellants, the facts were altogether different where the deceased in those particular cases were brilliant. She would submit fairly that if the Court thinks that the notional income fixed by the tribunal is not up to mark, there may be slight enhancement in this regard, but the contention of the appellants counsel that the compensation may be enhanced drastically deserves no merits.
512) As against the findings of the tribal that the accident occurred was on account of the rash and negligent act of the driver of the offending vehicle is concerned, there is no cross appeal or cross objections filed by the respondents. Thus, the simple question in this appeal is as to whether the compensation is to be enhanced.
13) At the outset, there is no dispute that the deceased was II year medicine student i.e., MBBS in GSL Medical College which is evident from the identity card issued by the Medical College. It is marked as Ex.A.5. It is a fact that the claimants did not file any proof whatsoever to show the academic excellency of the deceased till he joined in the Medical College. Even there is no pleading and proof as to whether he completed I year or not. Entry into II year MBBS is automatic from I year and one cannot deny it. Thus, insofar as academic excellency or the merit of the deceased is concerned, no iota of record was placed by the claimants. So, the only thing is that the deceased was II year medical student as on the date of his death.
14) Turning to the quantum of compensation fixed by the tribunal, the tribunal pointed out that what was the basis for the deceased for admission into Medical College was not explained and apart from it no other documents were filed by the claimants to prove the brilliancy of the deceased. The tribunal of the view that the future earnings of the deceased would only based upon the brilliancy and that in the absence of such material one cannot came to a conclusion that the deceased was a meritorious student or brilliant student and he will have good prospects in earning income after completion of MBBS. But, as evident from the award of the tribunal, one thing is certain that the tribunal considered the income of the deceased as Rs.4,000/- per month. The period of accident was in the year 2006. In the year 2006 the minimum wages which a manual labour was supposed to get was around Rs.100/- per day. There 6 is every reason to believe that the tribunal considered the notional income of on lesser side.
15) By relying upon various decisions, the contention of the learned counsel for the appellants is that the compensation is to be enhanced drastically. It is to be noted that in the prayer the claimants chosen to pray for maximum compensation of Rs.8,00,000/- because the date of death of the deceased was in the year 2006. It means that looking to so-called bright prospects of the deceased and the prevailing situation the claimants thought of to pray compensation for Rs.8,00,000/-. The tribunal awarded a sum of Rs.3,75,000/-.
16) The learned counsel for the appellants relied upon various decisions in support of their contentions. In Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma and another1, it is a case where the deceased was 19 years of age at the time of his death and according to the judgment of the Hon'ble Supreme Court he was pursuing his medical degree with good marks. Considering the same, the Hon'ble Supreme Court interfered with the award of the tribunal. It is to be noted that in the case on hand no iota of record was placed by the claimants to show the academic excellency as pointed out. There was no evidence at all to prove as to whether the deceased could complete I year MBBS. Having regard to the above, in the absence of necessary pleading and proof to show the academic brilliancy or the excellency of the deceased, it is very difficult to accept the contention of the learned counsel for the appellants to enhance the compensation drastically as contended. The factual matrix in the above referred citation obviously stood in a different footing considering the status of the deceased therein.
12014 LawSuit (SC) 809 7
17) Turing to another decision in Aravind Kumar Mishra vs. New India Assurance Company Limited and another2, the claim was allowed in part by the Hon'ble Apex Court for permanent disability sustained by the claimant and it is a case where the claimant in the said case was final year Engineering student in reputed college. The facts in the above referred citation cannot be made applicable to the present case on hand.
18) Turing to the decision in M. Mansoor and another vs. United India Insurance Company Limited and another3, it is held that though MBBS student met with an accident, but he was doing some work and he was getting fixed salary. Even the above referred citation cannot be made applicable to the present case on hand.
19) Turing to Sonobanu Nazirbhai Mirza and others vs. Ahmedabad Municipal Transport Service4, it is a case whether the Hon'ble Supreme Court granted Rs.1,00,000/- towards love and affection. Now in view of National Insurance Company Limited vs. Pranay Sethi and others5, the conventional heads are standardised, as such, this decision is no use to the case of the claimants.
20) Turing to Jiju Kuruvila and others vs. Kunjujamma Mohan and others6, it is relating to rash and negligent act and as pointed out there is no cross appeal or cross objections with regard to the findings of the tribunal regarding rash and negligent act held to be proved in the case on hand.
22010(10) SCC 254 3 2013 LawSuit (SC) 982 4 2013 LawSuit (SC) 924 5 2017(16) SCC 680 6 (2013) 9 Supreme Court Cases 166 8
21) Even the decision in Oriental Insurance Company Limited vs. Deo Patodi and others7 also is of no use because the petitioner in the above referred case was brilliant and he was doing job.
22) Coming to another decision in B.D. Gupta vs. R. Rani Manoranjitham8, it is a case where the deceased completed graduation in medicine and surgery and he was doing internship. Even the factual scenario in the above referred case is of no use to the present case on hand.
23) Turing to Adarsh Gupta vs. National Insurance Co., Ltd., and others9, it is a case where the deceased completed medicine. Jammu & Kashmir High Court in the peculiar facts and circumstances interfered with the award of the tribunal and they cannot be made applicable to the present case on hand.
24) Turing to Paul Varghese vs. Shanveen10, it is a case where the injured was a medical student and compensation was claimed relating to injuries and the injured took treatment even in aboard. Even the above referred citation is of no use to ascertain the income of the deceased herein.
25) Coming to Premila W/O Kushalrao Akkasalgi vs. Tippayya Swamy S/o Amrayya Swamy11, it is a case where the deceased was earning member and though he was attending PUC classes but he was drawing some salary by working elsewhere. Even the factual scenario is of no use to the present case on hand.
7(2009) 13 Supreme Court Cases 123 8 2000 LawSuit (P&H) 962 9 MA No.41/2012 J&K High Court 10 MACA No.1225/2014 High Court of Kerala at Ernakulam 11 MFA No.200259/2017 (MV) 9
26) Coming to another decision in The Divisional Controller vs. Sri Mohammed Umar12, it is a case where the deceased was doing job and he was drawing some salary. Even the factual scenario is of no use to the present case on hand.
27) What all the citations relied upon by the learned counsel for the appellants cannot be made applicable to the present case on hand because the claimants did not place any iota of proof as to what was the basis for the deceased for admission into MBBS i.e., whether it was purely on merit or by paying fee under A, B, C categories. However, as this Court already pointed out the fixation of the income of the deceased as Rs.4,000/- per month is lesser side. In the event of the deceased getting completion of MBBS around the year 2009 or 2010 there was every possibility that he could have got some employment. Even in the absence of the same, he can get some income by doing practice privately.
28) Having regard to the overall facts and circumstances and looking into the prayer of the claimants in seeking compensation of Rs.8,00,000/-, the ends of justice will meet if the income of the deceased is considered as Rs.6,000/- per month. The tribunal applied multiplier "15" looking into the schedule, but in view of Sarla Verma and others vs. Delhi Transport Corporation and another13 which was rendered after the judgment of the tribunal, the proper multiplier for the age group of 19 is "18". There is no dispute that the deceased was a bachelor. Considering the same, it is reasonable to consider the income of the deceased after deducting personal expenses as Rs.3,000/- per month thereby Rs.36,000/- per annum. As the deceased was in the age of 19 years and by applying multiplier "18" the multiplicand would come to Rs.6,48,000/-. In view of the Pranay Sethis's Case (supra) 12 MFA No.236/2020 (MV-D) C/W MFA No.7983/2019 (MV-D) 13 (2009) 6 Supreme Court Cases 121 10 conventional heads of funeral expenses and loss of estate is Rs.15,000/- and Rs.15,000/- total Rs.30,000/-. Further the claimants are no other than parents of the deceased, as such, they are entitled for filial consortium of Rs.40,000/- each.
29) The Hon'ble Supreme Court in Janabai WD/o Dinkarrao Ghorpade and others vs. ICICI Lambord Insurance Company Limited14 held as follows:
"The Motor Vehicle Act,1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss of consortium will be as per the amount fixed in Pranay Sethis's case."
30) Apart from the conventional heads of Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate, the claimants are entitled to Rs.40,000/- each towards filial consortium, as the deceased was unmarried. Thus, the compensation fixed as follows:
(a) multiplicand : Rs.6,48,000-00
(b) towards funeral expenses : Rs. 15,000-00
(c) towards loss of estate : Rs. 15,000-00
(d) towards filial consortium to each claimant i.e., (Rs.40,000/- + Rs.40,000/-) : Rs. 80,000-00 14 (2022) 10 Supreme Court Cases 512 11
31) In the light of the above, the claimants are entitled to compensation of Rs.7,58,000/- and compensation accordingly needs to be enhanced.
32) In the result, the MACMA is allowed in part with proportionate costs enhancing the compensation from that of Rs.3,75,000/- to Rs.7,58,000/- with interest at 7.5% per annum from the date of petition till date of deposit and directing the respondents to deposit the difference compensation of Rs.3,83,000/- within a period of one month from the date of this day and on such deposit the compensation is to be apportioned equally among the claimants.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ JUSTICE A.V. RAVINDRA BABU Dt.29.04.2024.
PGR 12 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU MACMA No.2335 of 2016 Date: 29.04.2024 PGR