Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Ltd vs Kum.Motukuri Sakunthala Niharika 4 Ors on 10 September, 2024
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(RNT,J& VN,J
M.A.C.M.A.NO.1636 OF 2017)
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEALNO:1636 of 2017
JUDGMENT:(per Hon'ble Sri Justice Ravi Nath Tilhari) Heard Sri S.Agasthya Sharma, learned Standing counsel for the appellant-Insurance Company.
2. No representation for the respondents.
3. This appeal under Section 173 of the Motor Vehicles Act 1988, (in short 'M.V.Act'), has been filed by the appellant-Oriental Insurance Company Limited (in short 'Insurance Company'), challenging the Award, dated 28.07.2016, passed in M.O.P.No.1276 of 2010 by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Visakhapatnam (in short 'the Tribunal).
4. The claimants/respondents 1 to 3 filed M.O.P.No.1276 of 2010 under Section 166 of the M.V.Act for compensation of Rs.40,00,000/- for the death of one Vakkalagadda Lakshmi Prasanna (hereinafter referred as 'deceased') in the motor accident, which occurred on 19.02.2010 at about 7.05 hrs near Nala, Opposite Closed Paper Mill, in the Outskirts of NandurShingote on Nasik-Pune High Way, Maharastra, involving motor vehicles bearing Nos.MH 09 L 5396 [TATA LPT Truck) & MH 12 DE 2333 (Hyundai Santro Car). 2
(RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017)
5. The claimant/respondent No.3 died during pendency of M.O.P.
6. Respondent No.4 is the driver-cum-owner of TATA LPT Truck and respondent No.5 is the owner of Hyundai Santro Car.
7. The case of the claimants/respondents was that the deceased was working as a Tutor, Grade-1 in Nursing School, at King George Hospital, Visakhapatnam (in short 'KGH'). The Indian Nursing Counsel, vide letter, dated 12.02.2010 requested her to inspect four Nursing Institutions in the State of Maharastra in the month of February- 2010. She went there and after completing the inspection, while coming on 19.02.2010, and travelling in Hyundai Santro Car belonging to the 5 th respondent, and driven by its driver, met with an accident with TATA LPT Truck, owned by respondent No.4, which was being driven rashly and negligently, which dashed the Hyundai Santro Car head-on. All the persons sitting in the car including its driver sustained multiple injuries. Four more persons including the driver of Hyundai Santro Car died. The appellant/Insurance-company is the insurer of both the offending vehicles. The deceased was getting Rs.39,589/- as monthly salary. She was aged about 47 years at the time of the accident.
8. The 4th respondent and the appellant filed their respective counter-affidavits. The 4th respondent denied the main averments of the 3 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) claim petition as also its liability for compensation, and in case any such liability was determined, the insurance-company was said to be liable to pay the compensation.
9. The appellant-insurance company took the stand that the claimants be put to the strict proof of the averments of the claim petition. The amount of compensation was said to be excessive. It denied its liability for payment, and also raised the plea that the driver of the TATA LPT Truck was not rash and negligent, and it was only the driver of the car, who was negligent.
10. The Tribunal framed the following issues for consideration :
1. Whether the deceased viz., Vakkalagadda Lakshmi Prasanna, W/o Motukuri Siva Pratap, died in the motor accident occurred due to the rash and negligent driving of the motor vehicles bearing Nos.MH 09 L 5396 [TATA LPT Truck) & MH 12 DE 2333 (Hyundai Santro Car), driven by its drivers ?
2. Whether the petitioners are entitled to compensation, if so, to what amount and from which of the respondents?
3. To what relief?
11. The claimant No.2/husband of the deceased was examined as P.W.1. One Abdul Mazeed was examined as P.W.2. Exs.A1 to A9 and Exs.X1 to X3 were got marked.
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(RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017)
12. For the respondents in claim petition/appellant and respondent Nos.4 & 5 herein, no evidence was led.
13. The Tribunal recorded the finding that the accident occurred due to rash and negligent driving of the driver of the offending vehicle i.e., TATA LPT Truck. The Tribunal further recorded that the monthly net salary of the deceased was Rs.39,589/-. Considering the salary Certificate i.e., Ex.X2, the gross salary was taken as Rs.47,906/- per month. 1/3rd was deducted for personal expenses of the deceased. The Tribunal applied the multiplier of 12. In total, the petition was allowed for an amount of Rs.50,43,928/- with interest @ 7.5 % per annum, from the date of petition till the date of realization. The respondents 1 to 3 (the appellant and respondent Nos.4 & 5) were jointly and severally held liable to pay the compensation amount.
14. Learned counsel for the appellant submitted that the respondent Nos.1 & 2-the married daughter and the husband of the deceased, were not the dependents of the deceased. He submitted that the compensation granted is to be just and fair and it cannot be a bonanza. While calculating the compensation, the gross salary of the deceased has been taken into account, whereas net salary should have been taken. He placed reliance in Bhakra Beas Management Board V. 5 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) Kanta Aggarwal and Others 1 and New India Assurance Company Ltd., V. Yogesh Devi and Others2 in support of his contentions.
15. Learned counsel for the respondents submitted that the future prospects have not been granted. The claimants are entitled for the future prospects as well. The compensation granted is inadequate, and not just and fair compensation.
16. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
17. The following point arises for our consideration and determination is :-
Whether the compensation awarded by the Tribunal is just and fair compensation? In other words is it excessive or inadequate, in the light of the submissions advanced by the learned counsels ?
ANALYSIS :-
(I) Income :-
18. The learned counsel for the appellant submitted that the gross salary has been taken into account, whereas, net salary should be taken.
1 2008 ACJ 2372 2 2012 ACJ 702 6 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017)
19. The Tribunal determined the gross salary of the deceased @ Rs.47,906/-, based on Ex.X2-Last Pay Certificate. As per Ex.X2 gross salary of the deceased is shown as Rs.47,906/- and net salary is mentioned as Rs.36,477/-. A sum of Rs.11,429/- has been shown towards recovery under the heads of GPF Rs.2,500/- ; APGLI Rs.125/- ; G.I.S., Rs.60/- ; Professional Tax Rs.200/- and Income Tax Rs.8,544/-.
20. In Sarala Varma and others V. Delhi Transport Corporation and another 3 ; National Insurance Company Limited V. Pranay Sethi and Others 4 and Meenakshi V. Oriental Insurance Company Limited 5, the Hon'ble Apex Court has held that the established income means the income minus the tax component.
21. In Meenakshi's case (supra), the Hon'ble Apex Court at Paragraph No.10 has held that "the components of house rent allowance, flexible benefit plan and company contribution to provident fund have to be included in the salary of the deceased while applying the component of rise in income by future prospects to determine the dependency factor".
3 (2009 ) 6 SCC 121 4 (2017)16 SCC 680 ---
52024 SCC OnLine SC 1872 7 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017)
22. As such, from the gross salary, the amount of Professional Tax and Income Tax are to be deducted only, to arrive at established income, which shall come to Rs.47,906 - 200 - 8544 = Rs.39,162/- per month.
(II) Future Prospects :-
23. The Tribunal has not awarded any amount towards future prospects. The Claimants are entitled for future prospects.
24. On the point of future prospects, the Hon'ble Apex Court in National Insurance Company Limited V. Pranay Sethi and Others, has held as under :
"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 8 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
25. Considering the nature of the job of the deceased as a Tutor, Grade-I in Nursing School at KGH, Visakhapatnam, which is a permanent job and the age of the deceased i.e., about 47 years, (Date of Birth of the deceased being 04.08.1963 as per Ex.A7), we are of the view that the claimants are entitled for the future prospects @30%, on the monthly income of the deceased, in addition, in view of the Pranay Sethi's judgment. Accordingly, we grant the same.
(III) Dependants :-
26. The deceased was working as a Tutor, Grade-I, in Nursing School at KGH, Visakhapatnam. Respondent No.1 is the daughter of the deceased. There is no evidence on record to show that she was married at the time of the accident. The cause title shows 'Kum'. She was shown as student. No evidence was led by the appellant to prove that she was not dependant on the deceased mother. Even married daughter is a legal representative of the deceased mother. Respondent No.2 is the husband of the deceased. A husband is also a legal representative of the deceased wife. He may not be the dependent as he was working as 9 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) Teacher in Mathematics, R.K.Mission High School. They being the legal representatives, these two respondents cannot be said to be not entitled to the compensation. The only thing that is to be considered is that respondent No.2 not being the dependant, under law there would be only two dependants. The number of dependents may have some relevance in deducting the personal expenses of the deceased. However, in the present case, even if the submission of the appellant's counsel be taken as correct, that the respondent No.2 (husband) was not dependant, that would not affect the 1/3rd deduction towards the personal expenses. The Tribunal has deducted 1/3rd towards personal expenses. In view of the judgment of the Hon'ble Apex Court in Sarala Varma's case (supra), 1/3rd is to be deducted, if the number of dependants is up to three. Consequently, we do not find any force in the submission of the appellant's counsel on the aspect of deductions towards personal expenses. Deduction of 1/3rd is maintained.
(IV) Multiplier :-
27. In view of Sarala Varma's case (supra), the appropriate multiplier at the age of 47 years (age group of 46 to 50) is 13. The Tribunal applied multiplier of '12'. We would apply correct multiplier of '13'.
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(RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) (V) Conventional Heads :-
28. On the point of the conventional heads, as per the judgment in National Insurance Company Limited V. Pranay Sethi and Others, Magma General Insurance Company Limited V. Nanu Ram @ Chuhru Ram and Others6 and Smt. Anjali and Others V. Lokendra Rathod and Others7, the claimants are entitled for an amount of Rs.48,000/- to each of the claimants being Rs.1,44,000/- for loss of consortium, towards funeral expenses Rs.18,000/- and towards loss of estate Rs.18,000/- as in view of a three-Judge Bench of the Hon'ble Apex Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Others. 8 the aforesaid conventional heads are to be revised every three years @ 10%. Accordingly, the three Conventional Heads are increased by 20%.
29. In total the Claimants are entitled for the following amount as just and fair compensation :-
Sl.No. Head Compensation Awarded
1. Net Annual Income Rs. 4,69,944/-
(Rs. 39,162/- x 12)
2. Future Prospects Rs. 1,40,983/-
(i.e., 30% of the income)
Total (sum of 1 +2) = Rs. 6,10,927/-
6
(2018) 18 SCC 130
7
2022 SCC OnLine SC 1683
8
(2021) 11 SCC 780
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M.A.C.M.A.NO.1636 OF 2017)
3. Deduction towards personal expenditure Rs. 2,03,642/-
(i.e.1/3rd)
4. Total annual loss Rs. 4,07,284/-
5. Multiplier of 13 at the age of 47 years i.e. 13 x 4,07,284/- = Rs. 52,94,692/-
6. Conventional Heads:
Loss of Consortium Rs. 1,44,000/-
(Rs. 48,000/- x 3)
Loss of Estate Rs. 18,000/-
Funeral expenses Rs. 18,000/-
7. Total Compensation Rs. 54,74,692/-
30. Consequently, the compensation amount granted by the Tribunal is enhanced from Rs.50,43,928/- to Rs.54,74,692/-.
(VI) Just and Fair Compensation :-
31. It is a well settled in law that the claimants are entitled for just and reasonable compensation, which should neither be a bonanza nor a pittance. Effort must be made to determine the just compensation. In Yogesh Devi's case (supra), the Hon'ble Apex Court held that the claimants are entitled for just and reasonable compensation in a motor vehicles accident claim. It referred to the case of State of Haryana and another V. Jasbir Kaur and others9 , wherein it was held that "the 9 (2003) 7 SCC 484 12 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) compensation must be "just" and it cannot be a bonanza: not a source of profit ; but the same should not be a pittance".
(VII) Interest :-
32. The Tribunal granted interest at the rate of @ 7.5% p.a. In Kumari Kiran vs. Sajjan Singh and others,10 the Hon'ble Apex Court set aside the judgment of the Tribunal therein awarding interest @ 6% as also the judgment of the High Court awarding interest @7.5% and awarded interest @ 9% p.a. from the date of the claim petition. In Rahul Sharma & Another vs. National Insurance Company Limited and Others,11the Hon'ble Apex Court awarded @ 9% interest p.a. from the date of the claim petition. Also, in Kirthi and another vs. Oriental Insurance Company Limited,12 the Hon'ble Apex Court allowed interest @9% per annum.
33. Accordingly, the claimants are granted interest @ 9 % p.a. from the date of the claim petition till realization.
(VIII) Result :-
34. IN THE RESULT,
i) the appeal of Insurance Company is dismissed; 10 (2015) 1 SCC 539 11 (2021) 6 SCC 188 12 (2021) 2 SCC 166 13 (RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017)
ii) The claimants/respondents are granted enhanced compensation of Rs.54,74,692/- as just and fair, with interest @ 9% per annum thereon from the date of claim petition till realization ;
iii) The appellant shall deposit the amount as aforesaid, adjusting the amount already deposited if any, before the Tribunal within one month;
iv) On such deposit being made, the claimants shall be entitled to withdraw the same in the proportion as per the award, failing which the amount shall be recovered as per law ;
v) The costs throughout is made in favour of the claimants/respondent Nos.1 & 2, and as against the appellant.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J __________________ NYAPATHY VIJAY, J 10th September,2024.
RPD.
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(RNT,J& VN,J M.A.C.M.A.NO.1636 OF 2017) 35 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY (DISMISSED) MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1636 of 2017 DATE : 10.09.2024 RPD