Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Limited vs D.Rajeswari on 6 March, 2020
Author: J. Uma Devi
Bench: J. Uma Devi
THE HON'BLE Ms. JUSTICE J. UMA DEVI
M.A.C.M.A.Nos.2055 OF 2013 & 1878 of 2014
COMMON JUDGMENT:
Since these appeals arise out of the award dated 07.12.2012, passed in O.P.No.318 of 2011, on the file of the I Additional District Judge-cum-Chairman, Motor Accidents Claims Tribunal at Chittoor, they are heard together and are being disposed of by passing this common judgment.
M.A.C.M.A.No.1878 of 2014 is filed by the Oriental Insurance Company Limited which is the 2nd respondent in the aforementioned O.P challenging the award passed therein is fastening the liability against it along with the owner of Bolero vehicle bearing No.A.P.03 AN 0767 to pay compensation of Rs.4,98,362/- to the respondents 1 to 4 herein who are the legal heirs of the deceased Pavan Kumar who died due to the injuries received in the accident that took place on the intervening night of 2/3.04.2011.
The insurance company having felt that it is aggrieved by the award passed by the Court below granting compensation of Rs.4,82,862/- to the claimant, has preferred the appeal in M.A.C.M.A.No.1878 of 2014, raising a preliminary contention that the deceased along with three others drove the motorcycle in a rash and negligent manner and it was the main cause for the occurrence of the accident. As per its contention, the owner and insurer of the motorcycle, which was driven by the deceased at the relevant point of time are the necessary parties, and that the tribunal ought not to have entertained the application made by the claimants for compensation due to non joinder of them as parties to the petition.
The 4th and 5th grounds urged by the insurance company are relating to the compensation awarded by the Court below under the head 2 of medical expenditure and the interest awarded. As per its contention, the Court below erred in granting compensation of Rs.1,61,962/- to the claimants under the head of medical expenditure and the Court below ought not to have awarded the interest at the rate of 7.5% per annum and that the interest is to be reduced to 6% per annum.
The respondents 1 to 4 the claimants in O.P.No.318 of 2011 have preferred the M.A.C.M.A.No.2055 of 2013 expressing displeasure over the award passed by the Court below. As per their contention, the compensation amount of Rs.4,98,632/- awarded to them in respect of death of the deceased Pavan Kumar is very meagre and low. Their contention is that the deceased was aged about 28 years by the date of accident. He was hale and healthy and was getting the income of Rs.20,000/- per month. He also used to supply raw-material such as sand, bricks, mud for construction of buildings and apartments. Though these facts are proved by them by adducing evidence and on production of Ex.A.11 issued by the Secretary of MVLC Co-operative Society Muruganipalli, the Court below instead of assessing of the income of the deceased at Rs.20,000/- per month for determination of compensation, assessed his income at Rs.3,000/- per month. The tribunal had discarded the evidence given by P.W.2 in respect of the income of the deceased and based on its self drawn presumptions fixed the income of the deceased at Rs.3,000/- per month which had no basis at all. The deceased was an active mason. He was very intelligent in gathering labour and supplying labour for construction of building and apartments. He was also supplying the building material. Though all these facts were spoken by P.W.2, the Tribunal awarded meagre compensation to the claimants. The trial Court ought to have granted reasonable compensation taking into consideration of the labour rates prevailing as on the date of passing of the award. The deceased was the 3 eldest son to the claimants 1 and 2. They lost one of their sons. The Court below taking into consideration of the pathetic condition of claimants 1 and 2 who lost their eldest son ought to have granted reasonable compensation since the compensation awarded was not fair and reasonable, they approached this Court with a request to set aside the award passed by the Court below and grant reasonable compensation to them looking into the evidence given by the P.W.2, who deposed about the working of the deceased as a mason, and also his capability of supplying labour and construction material for construction of the building and apartments etc. I have perused the award impugned. From the aforementioned grounds urged by the appellant insurance company, it is understood that it has a grievance on the finding recorded by the Court below insofar as the negligence attributed to the driver of Bolero vehicle bearing No.A.P.03 AN 0767. As per its contention, deceased who was taking three persons in the motor cycle driven by him at the relevant point of time was responsible for occurrence of the accident. Though the negligence of the motorcycle is the main cause for occurrence of the accident, the driver of Bolero vehicle bearing No.A.P.03 AN 0767 is made responsible for causing accident to the deceased.
It is evident from the award impugned that the insurance company has not examined any witnesses in proof of its contention that the deceased along with three others was riding the motorcycle at the relevant point of time and it was main cause for occurrence of the accident etc. It appears from the award impugned that the claimants who took the plea that due to the negligent driving of the Bolero vehicle bearing No.A.P.03 AN 0767 (which belong to the 5th respondent herein) by its driver, the deceased met with accident and received injuries and died of 4 such injuries examined P.W.3 P.R. Chandra Sekhar Reddy who was the eye witness to the said accident, P.W.3 gave report about the accident in the police station. His evidence was that on the intervening night of 2/3.04.2011 while the deceased Pavan Kumar and his friend Vishnu were standing near VSR Engineering Works, situated on Chittoor-Puttur road, near Kongareddypalli, a rally with scooters came from Chittoor town in view of the Indian Cricket team winning the world cup. Meanwhile, the offending vehicle viz., the Bolero vehicle bearing No.A.P.03 A.N.0767 driven by its driver in a rash and negligent manner dashed against his two wheeler, and as a result of it himself and pillion rider P. Bhargav Kishore Reddy fell down and sustained injuries and later the offending vehicle dashed against the deceased Pavan Kumar and Vishnu and as a result of it, they also sustained injuries. The accident, thus occurred due to the sole negligence of the Bolero vehicle bearing No.A.P.03 AN 0767 by its driver. He gave a complaint to the police regarding the accident and on the basis of the complaint given by him, the traffic police, Chittoor registered a case against the driver of the Bolero vehicle bearing No.A.P.03 AN 0767.
Ex.A.1 was the FIR registered by the police of Traffic at Chittoor, based on the complaint given by P.W.3. The case was initially registered under Section 337 IPC against the driver of the offending vehicle. Ex.A.3 was the inquest report. The alteration memo filed by the police would reveal that on account of the injuries received by the deceased in accident, he died on 02.06.2011 while undergoing treatment in S.V.R.R Hospital at Tirupati. Ex.A.4 was the P.M report of the deceased, and this would reveal that the deceased died due to head injury. Ex.A.2 was the charge sheet copy. Though P.W.3 was cross-examined by the counsel for the appellant insurance company, no information useful to it was brought out. The only suggestion given to P.W.3 by the counsel of 5 appellant was that he did not witness the accident and that the deceased and two others while proceeding on motorcycle driven by the deceased with high speed they fell down and sustained injuries and such suggestion was denied by him. The evidence on record would reveal that while the deceased was standing near V.S.R Engineering Works situated on Chittoor-Puttur road along with his friend Vishnu, himself and his friend were hit by the offending vehicle, which hit P.W.3 and his friends. The deceased was not proceeding on motorcycle along with three others as was contended by the appellant insurance company. This fact was manifestly clear from the deposition of P.W.3.
Therefore, there cannot be any hesitation for me to hold that the contention raised in this regard by the appellants has no merit.
Coming to the contention of the insurance company that the court below has grossly erred in awarding an amount of Rs.1,61,962/- to the claimant under the head of medical expenditure which according to it is on higher side, and that the claimants have failed to prove incurring of such amounts towards medical expenditure by placing cogent evidence is concerned, the claimants have examined Smt D. Rajeswari, the mother of the deceased, she deposed in her evidence that immediately after the accident her son Pavan Kumar, was shifted to C.M.C. hospital, Vellore and from there he was taken to SVIMS hospital, Tirupati and there he was treated as inpatient till 31.05.2011 and was discharged from the said hospital on 31.05.2011. Again on 01.06.2011, her deceased son was admitted in SVIMS hospital, Tirupati as there was swelling on the head and that the doctors advised to take him to SVRR hospital, Tirupati and accordingly as advised by that doctors, they took him to S.V.R.R hospital for treatment and got him admitted there, and there he died on 02.06.2011. The deceased was in coma till his death. As per the version of P.W.1, they spent Rs.2,05,962/- towards medical treatment, and other 6 incidental expenditures. She deposed further that due to sudden demise of her son Pavan Kumar her entire family suffered mentally and they lost the sole earning member of their family. Therefore, they claimed compensation of Rs.20,00,000/- as against the respondents.
The court below perused Ex.A.5 discharge summary card issued by C.M.C. hospital at Vellore dated 03.11.2011 where it was mentioned that due to non availability of I.C.U beds, the deceased Pavan Kumar was discharged and was advised to take him to another centre for treatment. Ex.A.6 was the receipt for Rs.2,250/- and this was the amount incurred by the petitioner towards ambulance charges for shifting of the deceased to SVIMS hospital, Tirupati from C.M.C hospital at Vellore. Ex.A.7 was the bunch of receipts issued by the SVIMS hospital, Tirupati and BIRD Pharmacy showing expenditure of Rs.1,61,962/- towards the treatment of the deceased. Ex.A.8 was the discharge summary card issued by the SVIMS hospital, Tirupati. This document would indicate that the deceased was admitted at SVIMS hospital at Tirupati on 03.04.2011 and was there till 30.05.2011. Ex.A.9 was the bunch of receipts (four in number) issued by Vijayalakshmi Travels, Chittoor in token of receiving Rs.12,150/- towards transportation charges of a car that was arranged to take the deceased to C.M.C hospital at Vellore and at Tirupati etc. It appears from the material on record that the deceased was also taken to National Institute of Mental Health and Neurosciences, Bangalore. Ex.A.12 was the emergency case record issued by the said hospital. It appears from the contents of Ex.A.12 that Rs.2,000/- was collected towards C.T scan charges. The court below on appreciation of Exs.A.5,A.6,A.7,A.8,A.9,A.10 and A.12 awarded compensation of Rs.1,61,962/- under the head of medical expenditure; Rs.12,150/- towards transportation charges; Rs.20,000/- towards attendant charges, Rs.2,000/- towards C.T scanning charges; Rs.2,250/- towards 7 ambulance charges. The court below had not committed any error in granting compensation of Rs.1,61,962/- as was contended by the appellant. The court below had taken note of the contents of Ex.A.5,A.6,A.7,A.8 and other documents produced by the claimants and granted Rs.1,61,962/- to them under the head of medical expenditure.
In my view, the court below had not committed any error in granting Rs.1,61,962/- towards medical expenditure, Rs.12,150/- towards transportation charges, Rs.2,000/- towards attendant charges, Rs.2,000/- towards scanning charges, Rs.2,250/- towards ambulance charges, Rs.10,000/- towards loss of love and affection, Rs.10,000/- towards loss of estate, Rs.10,000/- towards funeral expenditure. The claimants produced all the required documents insofar as the amounts granted to them under the aforementioned heads viz., the compensation towards medical expenditure, transportation charges and other incidental expenditure such as attendant charges, ambulance charges, transportation charges.
The Court below had also not committed any error in granting of compensation of Rs.10,000/- towards loss of love and affection, Rs.10,000/- towards loss of estate, Rs.10,000/- towards funeral expenditure.
The court below appreciated the evidence given by P.W.2 the Secretary of Moriganipalli Vadde Labour Contract Co-operative Society Limited, who during the course of his examination stated that the deceased Pavan Kumar was a mason, and he was supplying workers and also raw-material such as sand, brick and mud which were necessary for construction of the apartments and buildings. As per the version given by P.W.2, the deceased was authorised by Moriganipalli Vadde Labour Contract Co-operative Society Limited to undertake the said work and he was earning Rs.20,000/- by attending to such work. 8
It was argued vehemently by the counsel of the claimants that though the claimants examined the Secretary of Moriganipalli Vadde Labour Contract Co-operative Society Limited to establish that the deceased Pavan Kumar was working as a mason and he was supplying the workers and raw-material required for construction of apartments and buildings and produced the G.O issued by the Government of Andhra Pradesh fixing the labour charges for the skilled and unskilled labour, the court below instead of assessing the income of the deceased at Rs.3,000/- per month, looking into the evidence on record particularly the evidence of P.W.2 who spoke to the fact that the deceased was working as mason and was supplying workers and the material required for construction of building, and the G.Os issued by the Government fixing the charges of skilled, semiskilled and unskilled workers, fixed the income of the deceased notionally at Rs.3,000/- per month and that the income so fixed was not inconsonance with the evidence available on record. The established evidence available in case record was discarded without assigning any valid reasons, and that the approach adopted by the court concerned was against to law, equity and good consonance.
I have carefully examined the evidence placed on record by the claimants for establishing the income of the deceased. The mother of the deceased and the Secretary of Moriganipalli Vadde Labour Contract Co- operative Society Limited have deposed that the deceased Pavan Kumar was working as a mason and was also supplying labour and building construction material and was getting the income of Rs.20,000/- per month. Insofar as the income of the deceased, we have only their oral testimony except that no other material is place on record. By placing reliance on Ex.A.11, it is difficult to assess the income of the deceased at Rs.20,000/- per month. The Government G.Os cited at the time of arguments, are not placed before the court below. In my considered 9 view, the court below ought to have taken the income of the deceased atleast at Rs.4,500/- per month for determination of compensation under the head of loss of dependency by fixing the income at Rs.150/- per day upon considering his capability to earn.
If the income of the deceased is taken at Rs.150/- per day, his income per month comes to Rs.4,500/- and per annum it comes to Rs.54,000/-. Since the deceased's age is mentioned as 20 years by the date of his death in the post-mortem report, the appropriate multiplier to be applied is 18 as per Sarlaverma (Smt) and others vs. Delhi Transport Corporation1. The Court below has taken the age of the mother of the deceased into consideration for determination of multiplier to be adopted instead of taking the age of the deceased into consideration. The above view of me is fortified by the judgment of the Apex Court in Amrit Bhanu Shali vs. National Insurance Co., Limited2 wherein it is stated that "the selection of multiplier is based on the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation."
Since the age of the deceased is 20 years as mentioned in the post- mortem report, the appropriate multiplier to be applied for the people in the age group of 18 to 20 is 18. On duly deducting 50% of the annual income of the deceased towards his personal expenditure, the annual contribution of the income of the deceased to his family comes to Rs.27,000/- (50% out of the annual income of Rs.54,000/-). If the said amount is multiplied by multiplier 18, the compensation to be awarded 1 (2009) 6 Supreme Court Cases 121 2 (2012) 11 SCC 738 10 to the claimants under the head of loss of dependency or loss of income contribution of the deceased to his family comes to Rs.4,86,000/-.
The deceased was working as mason and he had no fixed wages. If 40% of the annual income of the deceased is be taken into consideration for computation of compensation to be awarded under the head of future prospectus, the total compensation to be awarded under the said head comes to Rs.1,94,400/-. To put it in more clear terms, I mention here that 40% of the monthly income of the deceased amounting to Rs.4,500/- comes to Rs.1,800/-, and per annum it comes to Rs.21,600/- . If it is multiplied by multiplier 18 (as the deceased's age is mentioned as 20 years in the post-mortem report), it comes to Rs.3,80,800/- and 50% of it comes to Rs.1,94,400/-. (As the deduction is to be made towards the personal living expenditure of the deceased for computation of annual amount to be granted under the head of future prospectus). The claimants are thus entitled to get compensation of Rs.9,08,762/- in all.
The details of compensation which the claimants get under each heads is as indicated below:-
1. Compensation under the head of loss of Rs.4,86,000/-
income contribution of the deceased to his family.
2 Compensation under the head of loss of future Rs.1,94,400/-.
prospects 3 Compensation under the head of medical Rs.1,61,962/-
expenditure 4 Compensation under the head of Rs. 12,150/-
transportation charges 5 Compensation under the head of C.T Scan Rs. 2,000/-
charges 6 Compensation under the head of attendant Rs. 20,000/-
charges 7 Compensation under the Ambulance charges Rs. 2,250/- 8 Compensation under the head of loss of love Rs. 10,000/-
and affection 11 9 Compensation under the of loss of estate Rs. 10,000/- 10 Compensation under the head of funeral Rs. 10,000/-
expenses Total compensation to be awarded to the Rs.9,08,762/- claimants:-
Thus the total compensation to be awarded comes to Rs.9,08,762/- and the same converted into round figure of Rs.9,10,000/-
for the sake of convenience.
In the light of my afore held discussion, M.A.C.M.A.No.2055 of 2013 filed by the appellants/claimants is allowed in part enhancing the compensation to Rs.9,10,000/- from Rs.4,98,362/-. The compensation so awarded to be paid to the appellants by the insurance company with proportionate costs and subsequent interest at 7.5% p.a from the date of petition till date of realisation.
M.A.C.M.A.No.1878 of 2014 filed by the appellant/insurance company is dismissed for the reasons indicated above. No order as to costs.
Miscellaneous Petitions, if any pending, shall stand closed.
________________ J. UMA DEVI, J Date.06.03.2020.
Gk 12 THE HON'BLE Ms. JUSTICE J. UMA DEVI 146 M.A.C.M.A.Nos.2055 OF 2013 & 1878 of 2014 Date:06.03.2020.
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