Andhra HC (Pre-Telangana)
The Oriental Insurance Co. Ltd., D.O.3, ... vs Athmakuri Rama Rao S/O Late Ramaiah, And ... on 14 December, 2012
Author: K.G.Shankar
Bench: K.G.Shankar
HON'BLE SRI JUSTICE K.G.SHANKAR
M.A.C.M.A.No.2632 of 2012
14-12-2012
The Oriental Insurance Co. Ltd., D.O.3, Chennai,Rep. by its Local Branch
Manager, Khammam
Athmakuri Rama Rao S/o Late Ramaiah, and another
Counsel for the appellant: Sri A.Ramakrishna Reddy
Counsel for respondent No.1: Sri Pulla Rao Yellanki
Counsel for respondent No.2: ---
<Gist :
>Head Note:
? Cases referred:
1.2004 ACJ 974 (Del)
2.1997 (3) CTC 346
Judgment:
The insurer, who is the 2nd respondent in M.V.O.P.No.776 of 2009 on the
file of the Chairman, Motor Accident Claims Tribunal cum Principal District
Judge, Khammam (the Tribunal, for short), preferred the present appeal assailing
the award of compensation at Rs.2,75,000/- together with interest at 7.5% per
annum in favour of the sole claimant.
2. The deceased Athmakuri Ramaiah was statedly doing commission business and was
also indulging in agricultural work. On 27-5-2006, the deceased and his friend
P.W.2 were returning from Bhairavunipalli village to their village Yadavalli on
a motorcycle bearing registration No.AP 20J 7171 driven by P.W.2 with the
deceased as pillion-rider, at about 10.30 a.m., the lorry bearing registration
No.AP 7W 2797 driven by
the 2nd respondent herein dashed the motorcycle.
The deceased sustained fracture of the shaft of the right femur, fracture of the
right ankle, fracture of the right fibula and injuries on the right knee, right
ankle and
face apart from minor injuries all over the body.
The deceased was immediately shifted to Mamatha General Hospital, Khammam. The
deceased underwent treatment for a period of 9 days at the hospital.
3. The deceased was later shifted to Yasoda Super Speciality Hospital,
Hyderabad. The deceased underwent a major surgery at Hyderabad. The deceased
died on
27-10-2006. The sole claimant contended that the death of the deceased was on
account of the injuries sustained by the deceased in the accident. The
claimant, who is the son of the deceased, consequently claimed compensation at
Rs.4,00,000/- for the death of the deceased.
4. The claimant examined four witnesses on his side. He has also
exhibited Exs.A-1 to A-13. The owner cum driver of the lorry remained ex parte.
The insurer, who contested the case, did not let in any oral evidence and
exhibited only Ex.B-1, which is the copy of the insurance policy. On the basis
of the evidence, the Tribunal awarded compensation at Rs.2,75,000/-. Hence, the
present appeal.
5. The insurer did not question the cause of the accident. That the
accident was on account of rash and negligent driving of the owner cum driver of
the lorry thus is not in dispute. The insurer however questions not only the
quantum of compensation but also contends that the death of the deceased was not
due to the injuries sustained by him in the accident. Sri A.Ramakrishna Reddy,
learned Standing Counsel for the insurer, further questioned the award on the
ground that the claimant was not a dependant upon the deceased and that he
therefore could not be awarded compensation towards loss of dependency for the
death of the deceased.
6. The deceased was 65 years old at the time of his death as can be seen from
Ex.A-1 certified copy of the First Information Report, Ex.A-2 certified copy of
the charge-sheet and Ex.A-4 certified copy of the death certificate. The wife
of the deceased predeceased her husband. The only heir of the deceased is the
claimant. However, the insurer contended that the claimant cannot be considered
to be a dependant upon the deceased albeit he is the sole legal heir of the
deceased.
7. The claimant described himself to be 38 years old and as an
agriculturist. The claimant as P.W.1 did not whisper in his evidence that he
was a dependant upon the deceased. In the cross-examination, there is a single
reference to this aspect where the claimant as P.W.1 denied the suggestion that
he was not a dependant upon the deceased. Where it is not contended by the
claimant that he is a dependant upon the deceased, I am afraid that no amount of
compensation can be awarded towards loss of dependency and loss of expectancy of
life.
8. The learned Standing Counsel for the insurer further contended that the
very claim cannot be continued on account of the death of the deceased in view
of the maxim "actio personalis moritur cum persona". Where the deceased died
about five months after the accident, the learned Standing Counsel for the
insurer contended that when the deceased died, the very right to sue the insurer
as well as the owner cum driver of the lorry has ceased. It was observed in Law
of
Motor Accident Claims and Compensation by
Dr. R.G.Chaturvedi (second edition p.691):
"Obviously, the applicability of the maxim actio personalis moritur cum persona
being confined only to claims for personal injuries, without affecting the
claims towards loss of estate of the deceased, the effect of the doctrine in
motor accident cases brings about only a partial abatement as distinguished from
total abatement of the claim. The total abatement results only where the legal
representatives of the deceased party have not been brought on record within the
prescribed period of limitation."
9. In Munni Devi v New India Assurance Co. Ltd.1, the injured claimant
suffered amputation of his right leg as a result of the injury sustained in a
motor vehicle accident. He subsequently died on account of the natural cause
while his claim was pending before the Court. The Delhi High Court observed
that the claim did not wholly abate and that the parents of the deceased, who
were partially dependent upon the deceased, were entitled to pursue the case and
receive compensation awardable in the shape of loss of estate of the deceased.
10. Indeed, in Munni Devi (1 supra), the deceased laid the claim as an injured.
Later, he passed away.
In the case on hand, the very claim was made about three years after the death
of the deceased. However, the ratio of the Delhi High Court in Munni Devi (1
supra) holds good. I therefore consider that the maxim actio personalis moritur
cum persona has no application to the present case and that the claim by the son
of the deceased is maintainable notwithstanding the doctrine of actio personalis
moritur cum persona. However, it is to be examined whether the claimant is
otherwise sustainable.
11. I have already concluded that the claimant is not a dependant upon the
deceased. The claimant is not only a major son, but the claimant described
himself as an agriculturist. Admittedly, the claimant is a married person with
a child through the marriage. It is hard to swallow that such a claimant is a
dependant upon the deceased. I agree with the contention of the learned
Standing Counsel for the insurer that the claimant is not a dependant upon the
deceased and that consequently the claimant is not entitled to any compensation
towards the loss of dependency, loss of income and loss of future expectancy of
life.
12. The Tribunal considered that the deceased was earning Rs.3,000/- per month
and deducted 1/3rd of the income of the deceased towards his personal and living
expenses. The Tribunal applied multiplier '5' to the case as the deceased was
65 years old at the time of his death and arrived at an amount of Rs.1,20,000/-
as compensation towards loss of dependency, loss of income and loss of
expectancy of life. I see no reason to differ with the calculation adopted by
the Tribunal. However, as the claimant is not a dependant upon the deceased,
the claimant is not entitled to any amount towards loss of dependency.
13. I may also point out that the very question of the doctrine of actio
personalis moritur cum persona comes into play when it is shown that the
deceased did not die on account of the injuries sustained by him in the
accident. If the deceased had died owing to the injuries sustained in the
accident, the case would fall within Section 166 of the Motor Vehicles Act,
1988, with the doctrine having no application. Sri Y.Pulla Rao, learned counsel
for the claimant, contended that the deceased died on account of the injuries
sustained by him in the accident.
14. Indeed, the deceased died about five months after the accident. The
deceased sustained grievous injuries. He suffered as many as three fractures
and three lacerations. Be that as it is, the death of the deceased was not
followed by any post-mortem examination. P.W.4 is an Orthopaedician of Yasoda
Hospital, Malakpet, Hyderabad. He treated the deceased while he was undergoing
treatment at Yasoda Hospital, Malakpet, Hyderabad. P.W.4 deposed that the
injuries sustained by the deceased were severe and serious in nature on account
of the age of the deceased. Indeed, the deceased was 65 years old. However,
P.W.4 did not testify that the death of the deceased was due to the injuries
sustained by him in the accident. Where the death of the deceased was not while
the deceased was undergoing treatment nor were the death very proximate to the
date of the accident, I am afraid that it cannot be assumed that the death of
the deceased was on account of the injuries sustained by him in the accident
without evidence in that regard. In the absence of post-mortem examination and
other evidence, I hold that the claimant failed to prove that the death of the
deceased was due to the injuries that he sustained in the accident. This is the
reason why the doctrine actio personalis moritur cum persona had to be examined
with reference to the decision of the Delhi High Court in Munni Devi
(1 supra).
15. Although the death of the deceased was not due to the injuries
sustained by him in the accident, admittedly the deceased sustained injuries and
underwent treatment. The deceased sustained three fractures and three
lacerations. For each of the fractures, award of compensation at Rs.25,000/-
would be just and proper. The deceased would have been entitled to compensation
at Rs.75,000/- towards pain and sufferance for the three fractures. He also
would have been entitled to compensation at Rs.9,000/- towards pain and
sufferance for the three simple injuries at the rate of Rs.3,000/- per simple
injury. The deceased would have been entitled to compensation, thus, at
Rs.84,000/- towards pain and sufferance had he been alive and laid claim. Once
the deceased died, the claim of pain and sufferance becomes unsustainable so far
as the dependants, the legal representatives or the heirs of the deceased are
concerned. Consequently, the claimant is not entitled to any amount of
compensation towards pain and sufferance for the death of his father.
16. The claimant produced Exs.A-7 to A-11 medical bills to a total tune of
Rs.1,12,961/-. The Tribunal awarded compensation at Rs.1,50,000/- towards
medical expenses taking other incidental medical expenses into consideration.
The learned Standing Counsel for the insurer contended that it would be unjust
to award compensation beyond the medical bills. As rightly submitted by the
learned counsel for the claimant, some of the medical expenses would obviously
be not covered by the bills owing to the exigency of the circumstances.
I therefore consider that it would be just and proper to accept the award of
compensation at Rs.1,50,000/- towards medical expenses. The claimant is
entitled to Rs.2,000/- towards funeral expenses and Rs.3,000/- towards transport
charges. On account of the age of the deceased, I consider that the claimant is
also entitled to Rs.5,000/- towards loss of estate.
17. Regarding the question of loss of dependency,
it is already found that there is no proof that the claimant was dependant upon
the deceased. The learned counsel for the claimant submitted that the claimant
would be entitled to compensation, albeit confining it to Rs.50,000/- even if
the claimant is not a dependant upon the deceased.
18. In United India Insurance Co. Ltd. vs Kasiammal2, the claimants were
married sons and daughters of the deceased. They were not dependants upon the
deceased. A learned single Judge of the Madras High Court considered that the
claimants would be entitled to 'no fault' liability amount when they are not the
dependants upon the deceased.
19. A learned single Judge of the Delhi High Court in an unreported
judgment in Usha Rani Jain vs Raj Pal (F.A.O.No.79 of 1996, dated 01-6-2010)
observed that the minimum liability of the Insurance Company was increased to
Rs.1,50,000/- from Rs.50,000/- when the Motor Vehicles Act, 1939 was amended in
1982. However, the present case is under the provisions of the Motor Vehicles
Act, 1988. Under Section 140 of the Motor Vehicles Act, 1988, 'no fault'
liability is Rs.50,000/- with effect from 14-11-1994. Consequently, the
claimant shall be entitled to compensation at Rs.50,000/- only under the head of
'no fault' liability albeit the claimant is not a dependant upon the deceased.
20. Consequently, the claimant is entitled to compensation at:
(a) Compensation towards ... Rs. 50,000/-
'no fault' liability
(b) Compensation towards ... 1,50,000/-
medical expenses
(c) Compensation towards ... 2,000/-
funeral expenses
(d) Compensation towards ... 5,000/-
loss of estate
(e) Compensation towards ... 3,000/-
transport charges
-----------------
Total ... Rs.2,10,000/-
-----------------
As the death was in 2006, the claimant shall be entitled to interest at
7.5% per annum as awarded by the Tribunal.
21. Accordingly, this appeal is allowed in part reducing the award of
compensation awarded by the Tribunal to Rs.2,10,000/- (Rupees two lakhs and ten
thousand only) together with interest at 7.5% per annum from the date of the
petition till deposit. The owner cum driver of the offending lorry and the
insurer, who are jointly and severally liable to answer the claim, shall deposit
the awarded amount within one month from today. After such deposit, the
claimant shall be entitled to withdraw the entire awarded amount together with
accrued interest having regard to the amount spent towards medical expenses. No
costs.
__________________
K.G.SHANKAR, J.
14th December, 2012.