Andhra Pradesh High Court - Amravati
M. Amarawathi And Another vs S. Lalithamma And 2 Others on 29 May, 2020
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
M.A.C.M.A.No.3084 of 2007
JUDGMENT:
The appellants are the Claimants No. 1 and 2, wife and daughter of the deceased filed this Appeal under Section 173 of M.V.Act,1988 against the Judgment and Decree dated 07.09.2007 passed in M.V.O.P.No.356 of 2005 by the Chairman, Motor Accidents Claims Tribunal -cum - III Additional District Judge, Tirupati, whereby the Tribunal has granted a total compensation of Rs. 3,36,000/- with proportionate costs and interest at the rate of 7.5% p.a against the claim of Rs. 8,00,000/- for the death of deceased M. Madhusudhan Reddy. The accident was occurred on 29.08.2004.
2. This appeal is filed seeking enhancement of the compensation by the claimants. The appellants along with 3rd Respondent/ mother of the deceased filed a claim petition under Section 166(1)(c) of the Motor Vehicles Act alleging that on 29.08.2004 when the deceased, as a rider and two others, as pillion riders, were going on a scooter of the deceased and when the said scooter reached Jallonivaddu bridge at 8 a.m, a jeep bearing No. AP 03 U 4241 belonging to the 1st Respondent (for privity herein after referred to as offending vehicle) and insured with the 2nd respondent and due to the rash and negligent driving of the offending vehicle by its driver the accident was occurred, in which the deceased sustained grievous injuries and he was taken to SVRRGG Hospital, Tirupati and succumbed to the injuries on 30.08.2004, while undergoing treatment in SVIMS, Tirupati. The deceased was aged 47 years and was hale and healthy, he owns land an extent of Ac. 18.88 cents of dry land and Ac. 3.87 cents of wet land and he was cultivating 30 acres of land belonging to his father and used to earn not less than Rs. 2,00,000/- per 2 MGR, J W.P.No.3084 of 2007 year and he was paying Rs. 54,091 for LIC premium for himself and Rs. 34,527/- as a premium for his wife for the last 20 years. The claimants had spent Rs. 20,000/- for treatment of the deceased. The accident was registered as a Crime No. 114 of 2004 on the file of S.H.O of Piler Police Station under Section 338 and 304-A of IPC and the same was taken on file as C.C.No.315 of 2004 on the file of Judicial Magistrate of First Class, Piler. The 1st respondent is the owner and 2nd respondent is the insurer of the offending vehicle are jointly and severally liable to pay the compensation amount.
3. The 1st Respondent remained exparte. The 2nd respondent Insurance Company has filed its counter stating that the driver of the Jeep was not having valid driving license at the time of accident. 1st Respondent violated the conditions of the policy. Therefore the 2nd respondent is not liable to pay any compensation and the interest claimed is excessive. The owner and the insurer of the scooter are proper and necessary parties to the petition. The rider of the scooter of the deceased was not holding any valid driving license, due to his negligent driving of the scooter the accident was occurred, there is contributory negligence on the part of the rider of the scooter. The accident arose due to overload and rider has lost control.
4. Basing on the pleadings, the Tribunal has framed the following issues viz.,
1) Whether the pleaded accident occurred resulting the death of the deceased and if so, was it due to fault of driver of the jeep of 1st respondent bearing No. AP 03 U 4241?
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2) Whether the jeep in question belongs to R.1 and stood insured with R.2 by the date of accident and if so, whether the policy covers the risk of the deceased?
3) Whether the petitioners are Legal Representatives of the deceased and entitled to compensation and if so, to what amount, from which of the respondents?
4) Whether the O.P is bad for non-joinder of necessary parties?
5. During the course of trial, the 1st appellant/ claimant is examined herself as PW-1 and got examined PW-2 and got marked Ex.A1 to A8 and Ex.B1 is marked on behalf of 2nd Respondent.
6. The Tribunal on considering the evidence of PWs 1 and 2, coupled with documents Ex.A1 to A3 came to the conclusion that the accident was occurred only due to rash and negligent driving of the driver of the offending vehicle and the tribunal answered all the issues in favour of the claimants. The Tribunal considering the evidence of PW-1 and the documents Ex.A3 to A6 has erroneously came to the conclusion that the appellants failed to prove the income of the deceased as Rs. 2,00,000/- p.a as stated in the claim petition. Hence, the Tribunal has taken Rs. 15,000/- as notional income of the deceased and the age of the deceased was taken as 50 years as per the Ex.A3/ Inquest Report. The Tribunal having taken the notional income as Rs. 15,000/- p.a, 1/3rd thereof is deducted towards the personal expenses of the deceased. Thus the annual contribution of the deceased to his family arrived at Rs. 10,000/-. Since the deceased was aged 50 years as on the date of accident as per Ex.A3, the multiplier "13" was applied to arrive at the loss of dependency as Rs. 1,30,000/- (Rs. 10,000 X 13). The Tribunal in addition to that has granted Rs. 1,56,000/- towards supervisory charges, stating that the lands 4 MGR, J W.P.No.3084 of 2007 are agricultural lands and the lands could be cultivated by personally engaging coolies, by giving lease. Thus, the Tribunal has granted total compensation of Rs. 3,36,000/- under various heads, with proportionate costs and interest at 7.5 % p.a as shown below.
a) Loss of income Rs. 1,30,000/-
b) Loss of personal supervision Rs. 1,56,000/-
c) Loss of consortium Rs. 15,000/-
d) Funeral expenses Rs. 10,000/-
e) Loss of estate Rs. 20,000/-
f) Medicines and treatment Rs. 5,000/-
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Total Rs. 3,36,000/-
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The compensation awarded is equally distributed among the claimants.
7. Sri Kambham Madhava Reddy, learned counsel for the appellants contended that the Tribunal granted very meager amount of compensation. The Tribunal ought to have granted compensation of Rs. 8,00,000/- as claimed by the appellants, considering the evidence on record. The Tribunal grossly erred in taking the notional income of the deceased as Rs. 15,000/- P.A as per Schedule II to S.163-A of M.V.Act. When the evidence of PW-1 coupled with documents Ex.A4 and Ex.A5 would clearly shows that the deceased used to pay a sum of Rs. 54,091/- towards LIC premium in his name and Rs. 34,527/- in the name of his wife since 20 years and Ex.A6 is the Pattadar Pass Book issued in the name of the deceased. The Tribunal accepted the land held by the deceased and granted supervisory charges at the rate of Rs. 1,000/- per month. The Tribunal ought to have been taken annual income of the deceased as Rs. 2,00,000/- and the same is not excessive.
8. The claimants are the dependants on the deceased. The deceased used to maintain the family and educated the 2nd claimant. Even 5 MGR, J W.P.No.3084 of 2007 he paid LIC premium amount comes Rs. 88,618/-. The tribunal grossly erred in disbelieving the evidence of PW-1 with regard to the annual income of the deceased as Rs. 2,00,000/- P.A, when nothing is elicited in her cross examination to controvert her evidence in chief. The petitioners are also entitled to Rs. 70,000/- under conventional heads as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others1. Where as the Tribunal granted only Rs. 15,000/- as loss of consortium; Rs. 10,000/- for funeral expenses; Rs. 20,000/- towards loss of estate, in total Rs. 45,000/-.
9. Smt. S.N.Padmini, learned counsel for the 2nd Respondent made her submissions to sustain the award of the Tribunal, she could further contend that there is no illegality or irregularity in the award of the Tribunal granting compensation of Rs. 3,36,000/- with proportionate costs and interest at 7.5% p.a. The Tribunal rightly taken the notional income of Rs. 15,000/- as the claimants failed to prove the income of the deceased with supporting evidence and documents. However, the claimants are entitled for Rs. 70,000/- under Conventional heads as per the decision reported in Pranay Sethi's case stated supra. The appellants failed to show sufficient grounds for enhancement of the compensation amount.
10. Having regard to the facts and circumstances of the case and submissions of the learned counsel and perused the record, this court considering the evidence of PW-1 and PW-2 coupled with documentary evidence Ex.A4 to Ex.A6 came to be conclusion that the deceased was aged 50 years and he was hale and healthy at the time of accident and he owns lands an extent of Ac. 18.88 cents of dry land and Ac. 3.87 cents of wet land and also he used to cultivate 30 acres of land, which is in the 1 2017(6) ALT-60 (SC) 6 MGR, J W.P.No.3084 of 2007 name of deceased's father and it could not be ruled out that the deceased could have earned about Rs. 2,00,000/- per year as he used to pay LIC premium of Rs. 54,091/- in his name and Rs. 34,527/- in the name of his wife. When the 2nd respondent in the cross examination of PW-1, nothing is elicited contradicting the evidence of PW-1. Hence, there is no reason to disbelieve the evidence of PW-1 that the deceased was having lands and cultivating the 30 acres of land and he used to pay LIC premiums of Rs. 88,618/-. In addition to that with the income he earned, he used to maintain his family and contribute for the 2nd claimant's education. But the Tribunal grossly erred in granting Rs. 1,000/- per month towards supervisory charges towards loss of personal supervision and the Tribunal granted Rs. 1,56,000/- towards loss of supervisory charges, instead of assessing annual income of the deceased in computing compensation.
11. The Hon'ble Supreme Court has taken monthly income of the daily wage earner as Rs. 4,500/-. The tribunal ought to have taken monthly income of the deceased as Rs. 5,000/-, the same could have been contributed to the family. Therefore annual income of deceased could be taken as Rs. 60,000/- (Rs. 5,000/- X 12). Out of which 1/3rd of the income could be deducted towards personal expenses of deceased which comes to Rs. 20,000/-. The balance amount of Rs. 40,000/- could be taken as annual contribution of the deceased to his family. The tribunal has taken the age of the deceased as 50 years and applied 13 multiplier. The loss of dependency would be arrived at Rs.5,20,000/- (Rupees five lakhs and twenty thousand only) (Rs. 40,000/- X 13). In addition to that the appellants are entitled for Rs. 70,000/- under conventional heads as per the decision of Hon'ble Supreme Court in a Pranay Sethi's case as stated supra.
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12. Hence, the appellants are entitled for the total compensation of Rs. 5,90,000/- (Rupees five lakhs and ninety thousand only) with proportionate costs and interest at 7.5% from the date of presentation of the claim petition, which is just and reasonable. Out of total compensation amount, the 3rd respondent/ mother-in-law of the 1st appellant is entitled for Rs. 1,12,000/- with proportionate costs and interest, the remaining balance is equally distributed between appellants. The Respondents 1 & 2 are jointly and severally liable for the payment of the compensation. They shall deposit the compensation awarded within two (02) months from the date of receipt of a copy of this Judgment.
13. In view of the reasons stated above, the Appeal is partly allowed as indicated above.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________ M. GANGA RAO, J Date:29.05.2020.
Mjl/KK 8 MGR, J W.P.No.3084 of 2007 HONOURABLE SRI JUSTICE M. GANGA RAO M.A.C.M.A.No.3084 of 2007 Date: 29.05.2020.
Mjl/KK