Andhra Pradesh High Court - Amravati
United India Insurance Co.Ltd., vs Susubelli Bpuji 3 Others on 30 July, 2024
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
TUESDAY, THE THIRTIETH DAY OF JULY
o
TWO THOUSAND AND TWENTY FOUR o :o
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
jVIOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.2139 of 2017
Appeal filed under Section 173 of M.V.Act. against the order/award
passed in OP No.978/14, dated 31.01.2017 by MACT-cum-ll Additional
District Judge, Visakhapatnam, Visakhapatnam District.
Between:
United India Insurance Co. Ltd., Office at Vizianagaram through its.
Regional Office, TP HUB; Hyderabad rep. by its Manager
...Appellant/R-3
AND
1. Susubelli Bapuji, S/o Venkata Narasimaha Appa Rao, aged about 50
years.
2. Kum. Susubelli Gayatri, D/o.Bapuji, aged about 21 years
(R-1 and R-2 herein
are R/o Flat No.304, Swarna Appartments,
H.B.Colony, Visakhapatnam).
...Respondents/Petitioners
3. G.Suryakantham, W/o.Trimurthulu aged about 57 years, C/o.Korada Srinu, Narasapuram Village, Padmanabham Mandal Visakhapatnam.
4. ^^^swara Rao, S/o Narasimhulu, aged about 32 years, R/o.D.No.4- ' , ^ ' .^rt.-TeJagala
- < Veedhi, Reddipalli, Visakhapatnam District, (not ,,nece^ary
- -
party) T-ir ...Respondents/ Respondents i .
Counsel for the Appellant: Smt. S A V Ratnam Counsel for Respondent Nos.1 & 2 : Sri Srinivasula Reddy Kommasani Counsel for Respondent Nos.3 & 4: None Appeared The Court made the following:
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHART *THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY +MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2139/2017 %30.07.2024 # United India Insurance Co.Ltd.
Petitioner And:
$1. Susubelli Bapuji & 3 others ....Respondents.
ICounsel for the petitioner : Ms. S.A.V.Ratnam '^Counsel for the respondents : Sri Srinivasula Reddy Kommasani <Gist:
>Head Note;
? Cases referred:
(2009) 6 see 121 (2017) 16 see 680 (2022) 14 see 712 (2021) 16 see 467 (2021) 17 see 148 2022 LiveLaw (Se) 1012 (2022) 15 see 316 2020(1 )TAe736 (2018) 18 see 130 2023 see Online AP 1166 (2013) AIRSeW 421 (2016) 4 see 172 2015 see Online All 336 (2021) 6 see 188 (2021) 2 see 166 2 HIGH COURT OF ANDHRA PRADESH * * * * MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2139/2017 DATE OF JUDGMENT PRONOUNCED; 30.07.2024 SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI & THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1.
Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?
2. Whether the copies of judgment may be v/^es/No marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No copy of the Judgment?
3APHC010201832017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3470] (Special Original Jurisdiction) TUESDAY,THE THIRTIETH DAY OF JULY TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2139/2017 Between:
United India Insurance Co.ltd. ...APPELLANT AND Susubelli Bpuji 3 Others and Others ...RESPONDENT(S) Counsel for the Appellant:
1.S AVRATNAM Counsel for the Respondent(S):
1.SRINIVASULA REDDY KOMMASANI The Court made the following:
HON'BLE SRI JUSTICE RAVI NATH TILHARI honourable SRI JUS^TICE NYAPATHY VIJAY MQIQR_ACCIDent ri\/i| jyilSCELLANEQUS APPFAI NO: 2139/?ni7 judgment-
(per Ravi Nath Tilhari, J) Heard Ms.S.A.V.Ratnam learned counsel for the appellant-united India Insurance Company limited and Sri Srinivasula Reddy Kommasan i. learned counsel for the claimants - respondent Nos.1 & 2.
2 The claimants- Respondent Nos.1 & 2 filed MVOP.No.978 of 2014 ini Motor Accidents Claims Tribunal - cum - II Additional District Judge Visakhapatnam (in short ■ the Tribunal') claiming compensation of Rs.l7 lakhs for deceased the death of the namely Sasubelli Venkata Narasimha Rao in road accident. Their case was that the deceased was doing final year B.Tech graduation course in G.M.R.Information Technology Institute at Rajam of Srikakulam District. The deceased was aged about 20 years. On 10.06.2012 at about 06.30 pm., when the deceased was riding his motorcycle from Vizianagaram to Cheepurupalli and when he reached near railway over bridge at Nellimarla, a Tata Ace vehicle bearing No.AP 35 V 4245 proceeding towards Vizianagaram and coming in the opposite direction hit the motorcycle. The Tata Ace vehicle was driven by its driver - the respondent No.2 in claim petition in rash and negligent manner. The deceased sustained head injury and he was taken to the Maharaja Institute of Medical Sciences and from there the deceased was referred to another hospital where he was declared as brought dead. They claimed that the monthly salary of the deceased would have 5 employee in one of the top been at the beginning at Rs.30,000/- per month, as an brilliant student all through his career. The most companies at the beginning, being a students who were selected along with the deceased were getting similar package No.3 herein) is the
3. The respondent No.1 in the claim petition (respondent is the driver of the offending owner and respondent No.2 (respondent No.4 herein) is -.
of the offending vehicle. Respondent No.3 (the appellant herein) is the insurer vehicle. The owner and driver remained exparte.
the manner of The insurance company filed written statement denying
4. insured with the Insurance accident. The fact that the offending vehicle was 18.11.2011 to 17.11.2012 was not company and the insurance policy was valid from with reepect to the petition as bad for non- disputed. However, it raised the objection of the motorcycle. The driver of the offending vehicle was said joinder of the insurer ll'iat the driver was having valid as not responsible for the accident. It did not admit and effective driving license . The claimed amount was said as excessive
5. The Tribunal framed the following issues:
of rash and negligent driving of the "1. Whether the; accident occurred on account vehicle beahng No.AP 35 V 4245 by its driver?
2. Whether the petitloneis are entitled for compensation? If so, to what amount and from whom?
3. To what relief?"
examined and A1 to A8 were
6. On behalf of the claimants, PWs.1 to 3 were Ex.BI by the consent of the exhibited. Copy of the insurance policy was marked as No oral evidence was led by the insurance parties on behalf of insurance company company and no other documentary evidence was filed.
67. The Tribunal recorded the finding that the accident occurred on account of rash and negligent driving of the driver of the offending vehicle bearing No.AP 35 V 4245. The claimants were held entitled for compensation. The age of the deceased was determined as 20 years and that he was doing final year engineering graduation in mechanical branch. The Tribunal determined the notional monthly income as Rs.12.000/-, and added 50% as future prospects. After deductions of 1/3'^^ towards personal expenses of the deceased, it considered Rs. 12,000/-
per month as monthly income and applied the multiplier of 18. Towards loss of consortium Rs. 1 lakh was awarded and Rs. 25.000/-
towards funeral expenses. The total compensation was awarded as Rs. 27,17,000/-. The interest was awarded @ 7.5% from the date of filing of the petition till deposit of amount. It fixed liability for payment on the owner and the appellant-insurance Company. The Tribunal made apportionment of the compensation amount amongst the claimants as well.
8. Challenging the award dated 31 .01.2017, the present appeal was filed by the insurance company.
9. Learned counsel for the appellant raised the following submissions
i) that the Tribunal erred in determining the future prospects @ 50%,0.
which should have been @ 40%'o as it is the case of the deceased a bachelor and the student.
7instead of 1/3^'^ the Tribunal
ii) that towards the personal expenses ought to have deducted the one half (1/2), as per Sarla verma (smt) V. Delhi Transport Corporation\ head non-
iii) that the compensation amount awarded under the pecuniary damages is on the higher side, contrary to the judgmenUn Seth/l the case of National Insurance company limited v. Pranay of the
iv) that the claimants being father and unmarried sister deceased would not be his dependants.
as follows:
10. Learned counsel for the clalmanls-iespondents submitted
i) that the claimants are entitled for just compensation. The deceased had bright future. The income assessed at Rs.12,000/- per month is on the lower side.
not filed the appeal but as the
ii) that though the claimants have which is on tower Tribunal erred in determining the just compensation, side, Just and fair compensation deserves to be determined in appeal.
iii) that there is no such ground, as argument no.iv of the appellants counsel, in the memo of appeal, which cannot be raised at this stage of final hearing.
11. We have considered the submissions advanced and perused the material on record.
12. The following points arise for our consideration;
or it is
1) Whether the compensation awarded is a just compensation on the higher or lower side in view of the submissions advanced? ^ (2009) 6 see 121 ' (2017) 16 see 680 8
2) Whether it is open for the appellant to raise argument No.iv?
Analysis on point No.1:-
A) Just Compenstion:
13. In N. Jayasree v. Cholamandalam Ms General Insurance Company Limitecf', the Hon'ble Apex Court held that the provisions of the Motor Vehicles Act, 1988, give paramount importance to the concept of "just and fair"
compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of "just compensation" which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavour should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant(s).
14. Para Nos.9 and 10 in N.Jayasree (3^^ supra) reads as under;
09. The provisions of the Motor Vehicles Act, 1988 (for short "the MV Act") give paramount importance to the concept of "just and fair" compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant(s).
10. In Sarla Verma, this Court has laid down as under: (SCC pp.131-132, para 16) "16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a "(2022) 14 SCC 712 9 result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. "
15. In Surekha v. Santosh\ where the High Court of Bombay though agreed with the stand of the appellants therein that just compensation amount ought to be Rs.49,85,376/-, declined to grant enhancement merely on the ground that the appellants had failed to file cross-appeal, the Hon'ble Apex Court observed in para-2 is as under:
2. By now, it is well-settled llial in the matter of insuranco claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants.
16.
In Meena Pawaia v. Ashraf Air', the Hon'ble Apex Court held that the claimants are entitled to just compensation Merely because In the execution proceedings they accepted the amount as awarded may be as full and final settlement, that shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation. The Motor Vehicles Act is a benevolent Act and claimants are entitled to just compensation.
17. Para No. 17 of Meena Pawaia (5'^ supra) read as under;
17. Now so far as the submission on behalf of the Union of India that as in the execution proceedings the claimants accepted the amount due and payable under the impugned judgment and order and accepted the same as full and final settlement thereafter the claimants ought not to have preferred appeal for enhancement of the compensation is concerned, the aforesaid cannot be accepted. The claimants are entitled to Just compensation. Merely because in the execution proceedings they ''(2021) 16 see 467 ^(2021) 17 see 148 10 might have accepted the amount as awarded by the High Court, may be as full and final settlement, it shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation which they as such are held to be entitled to. /As such, the Motor Vehicles Act is a benevolent Act and as observed hereinabove the claimants are entitled to just compensation. As such, the Union of India ought not to have taken such a plea/defence.
18. In Smt. Anjali v. Lokendra Rathotf, the Hon'ble Apex Court observed and held as under;
10. The provisions of the Motor Vehicles Act, 1988 (for short, "MV Act") gives paramount importance to the concept of just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the MV Act deals with the concept of just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the applicant(s).
11. In Sarla Verma & Ors. \/s. Delhi Transport Corporation & Anr, this Court has laid down as under:
"16. ..."Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. "
19. From the aforesaid judgments it is settled in law that the claimants are entitled for just and fair compensation. Endeavour should be made by the court to award just and fair compensation irrespective of
a) that they have not preferred any appeal for enhancement nor filed any cross objection in the appeal filed by the owner/insurance company.
b) that even after they accepted the amount in execution proceedings they can claim the just compensation in the proper proceedings, and ® 2022 LiveLaw (SC) 1012 11
c) that the amount of compensation claimed in their petition, is less than the amount of the compensation determined by the Tribunaj/Court.
20. Consequently, we are of the view that the claimants/respondents though they have not preferred any appeal for enhancement nor filed any cross objection, they are entitled for just & fair compensation. This Court therefore in the exercise of appellate jurisdiction proceed to determine the just compensation, to which they might be entitled, keeping in view the submissions advanced by the learned counsels for the Insurance Company as also the claimants.
B) Income of deceased:
21. It was specific case of tho claimants in their claim petition that the deceased was studying his final year B.Tech graduation course of Mechanical Engineering branch and was to complete the same in the academic year of 2012- 2013. The deceased was a bright student all through his career. The deceased attended campus interviews and was selected in almost all the levels of interviews on account of his brilliance and the deceased if alive would have been placed as an employee in one of the top most companies in the pay bracket of Rs.30,000/- per month. The students who were also selected along with the deceased were offered employment in the similar pay package.
22. We would refer the evidences. PW1 deposed as under:-
" deceased son was bright student all through his career and attended campus interviews and was selected In almost all the level of 12 interviews on account of his brilliance and my deceased son if alive would have been placed as an employee in one of the top most companies in the pay bracket of Rs. 30,000/- per month. Further the students who were also selected along with my deceased son were offered employment in the similar pay package "
23. As per the evidence of PW3 - the Principal of G.M.R.Institute of Technology, Rajam, the deceased was a good and brilliant student and was supposed to get campus selection in his batch if he survived and he would have drawn an amount of Rs.40.000/- to Rs.50,000/- per month.
24. The appellant - insurance company did not produce any evidence. Nothing could be brought to the contrary in the cross-examination of these witnesses.
25. In S.Vasanthi v. Adhiparasakthi Engineering College^, the deceased at the time of accident was aged about 23 years. He was the student in the second year of MBA course. His notional income was determined as Rs.30,000/- per month. In that case, specific averment was made in the affidavit as to the employment prospects of the classmates of the deceased and also about his young age at the time of the accident. The Hon'ble Apex Court held that the Tribunal and the High Court erred in not giving due weightage to those averments. It was observed that if the deceased had not met with the unfortunate accident, he would have surely drawn a salary equivalent to that of his classmates or at least an amount near to the said amount.
'(2022) 15 see 316 13
26. In Navjot Singh v. Harpreet Singh the appellant was a student undergoing a degree course in Engineering from a premier institute. He was 21 years of age. The High Court fixed notional income as Rs.5.000/- per month on the basis of what an unskilled worker will earn. The Hon'ble Apex Court observed that the notional income could not be taken to be equivalent to the minimum wages admissible to an unskilled worker. The students recruited through campus interviews are atleast offered a sum of Rs.20,000/- per month.
27. Considering the evidence on record and giving it due weightage, as also in consideration of the judgments of the Hon'ble Apex Court, we are of the view that the monthly notional income of the deceased would not have been less than 20,000/- per month. We accordingly determine the monthly income as Rs.20,000/- per month.
C. Future prospects:
28. The Tribunal has awarded future prospects as 50%.
29. In Pranay sethi (2"^ supra), on the point of future prospects it has been 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 ivas 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 2020(1)TAC736 14 the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased ivas 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. "
30. In Meena Pawaia supra), the deceased was a bachelor. He was aged about 21-22 years and was studying in the semester of civil engineering.
The Hon'ble Apex Court applied para 59.4 in pranay sethi {2^^ supra) and added 40% of the income as future prospects.
31. Para Nos. 13 to 15 of Meena Pawaia (5*^ supra) read as under:
13. We see no reason why the aforesaid principle may not be applied, which apply to the salaried person and/or deceased self employed and/or a fixed salaried deceased, to the deceased who was not serving and/or was not having any income at the time of accident/death. In case of a deceased, who was not earning and/or not doing any job and/or self employed at the time of accident/death , as observed herein above his income is to be determined on the guesswork looking to the circumstances narrated hereinabove. Once such an amount is arrived at he shall be entitled to the addition over the future prospect/future rise in income. It cannot be disputed that the rise in cost of living would also affect such a person.
14. As observed by this court in Pranay Sethi (Supra), the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Motor Vehicles Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment and/or in case of a deceased who was on a fixed salary and /or self employed would only get the benefit of future prospects and the legal representatives of the deceased who was not serving at the relevant time as he died at a young age and was studying, could not be entitled to the benefit of the future prospects for the purpose of computation of compensation would be inapposite. Because the price rise does affect them also and there Is always an incessant effort to enhance one's income for sustenance.
15. It is not expected that the deceased who was not serving at all, his income is likely to remain static and his income would remain stagnant. As observed in Pranay Sethi (Supra) to have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Therefore we are of the opinion that even in case of a deceased who was not serving at the time of death and had no income at the time of death, their legal heirs shall also be entitled to future prospects by adding future rise in income as held by this court in Pranay Sethi (supra) i.e. addition of 40% of the income determined on guesswork considering the educational qualification, family background etc., where the deceased was below the age of 40 years.15
32. In Navjot Singh supra) also 40% of income was added as future prospects.
. 33.
Consequently, the deceased being 20 years of age i.e., below 40 years, we allow 40% future prospect on the notional income of the deceased. The Tribunal erred in granting 50% of income as future prospects.
D. Personal expenses:
34.
The deceased was bachelor. Towards his personal expenses 50% (i.e., 1/2) was to be deducted, as per Sarla verma (smt) (1®* supra), in which on the said point, the Hon'ble Apex Court held as under:
"31. Where the deceased was a bachelor and The claimants am Ih^ fjarents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more nn himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically
35. In Pranay Sethi (2"^ supra), the Constitution Bench of the Apex Court upheld the same.
36. Consequently, we deduct one half (1/2) towards the living and personal expenses of the deceased, holding that the Tribunal erred in deducting 1/3.16
E. Conventional Heads:
37. On the aspect of compensation for loss of consortium, the Hon'ble Apex Court in Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram ® observed as under:
21. A Constitution Bench of this Court in Pranay Sethi dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse:
21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation".
21.2 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training".
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are vested for their love, affection, companionship and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation aimed at 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 children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this ®(20i8) 18 see 130 17 count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000/- each for loss of filial consortium.
38. The claimantG are entitled to R.g 40,000/- X 2 = 80,000/- for loss of consortium and additionally to an amount of Rs. 15000/- for loss of estate and Rs. 15000/- for funeral expenses. Thus under the head of non pecuniary conventional, the claimants are entitled to Rs.1,10,000/- in total against the award of Rs. 1,25,000/- by Tribunal under these heads.
Analysis on point No.2> A. Applicability of Order 41 CPC to Appeal under Section 173 MV Act:
39. Another submission as advanced by the learned counsel for the appellant is that the claimants being father and sister of the deceased would not be his dependants. Only the mother could be dependant. But she predeceased the deceased.
40. In United India Insurance Company Limited y. Undamatia Varalakshmi^°, this Court held that the appeal under Section 173 of Motor Vehicles Act, 1988 to the High Court, in the absence of different procedure having been provided, either under the MV Act or the APMV Rules, 1989, and 10 2023 see Online AP 1166 18 the applicability of Order 41 CPC also not having been excluded, in view of the judgment of the Hon'ble Apex Court in the case of Sharanamma v. North East 11 Karnataka RTC., the normal rules which apply to appeals before High Court, are applicable.
th
41. Para Nos. 12 to 21 in United India Insurance Company Limited (10 supra) reads as under:
12. The MV Act does not provide for the procedure for the appeals filed under Section 173 of the MV Act, though it provides for the Forum of the appeal i.e., the High Court.
13. The APMV Rules, 1989 also do not provide for the procedure to be followed by the High Courts in appeals under Section 173 of the MV Act.
14. Rule 473 of the APMV Rules 1989 upon which reliance was placed, by the learned counsel for the appellant, provides as under:
"473. Code of Civil Procedure to apply in certain cases: The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act .5 of 1908), shall so far as may be, apply to proceedings before the Claims Tribunal namely. Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXVIII, Rules 1 to 3."
15. A bare perusal of Rule 473 of APMV Rules 1989 makes it evident that it provides for the applicability of certain provisions of the CPC, to the proceedings before the Claims Tribunal. The appeal under Section 173 of MV Act is not a proceeding before the Claims Tribunal, but before the High Court.
16. Consequently, the submission of the learned counsel for the appellant, based on Rule 473 of the APMV Rules, 1989 that since Order 41 CPC does not find mention in Rule 473, therefore it would not apply to appeals under Section 173 of MV Act, is misconceived.
17. Any other provision either under the MV Act or the APMV Rules 1989 has not been brought to our notice, which excludes the applicability of the Order 41 CPC to the appeals filed under Section 173 of the MV Act before the High Court.
18. In Sharanamma v. North East Karnataka RTC the Hon'ble Apex Court held that when an appeal is filed under Section 173 of the MV Act before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also.
19. Paragraph-10 in Sharanamma (supra) is reproduced as under:
(2013) AIRSCW 421 19 "10. When an appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter shall be referred to as "the Act''), before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well-settled position of law that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication, it can exercise all powers Incidental thereto in order to exercise that power effectively. bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the appellate court to consider the entire case on facts and law. ''
20. In view of the aforesaid, we are of the considered view that to the appeal under Section 173 of the MV Act to the High Court, in the absence of a different procedure having been provided, either under the MV Act or the APMV Rules 1989, and the applicability of Order 41 CPC also not having been excluded, in view of the judgment of the Hon'ble the Apex Court, the normal rules which apply to appeals before High Court, are applicable.
21. Order 41 CPC is that normal rule, which applies to appeals before the High Court.''
42. In Uttar Pradesh State Road Transport Corporation v. Mamta^^, the Hon'ble Apex Court held that an appeal under Section 173 MV Act is essentially in the nature of first appeal alike Section 96 CPC It was further observed lliat the appellate judgment should satisfy the requirement of Order 20 Rule 4(2) r/w. Order 41 Rule 3 CPC.
43. Para Nos.21 & 24 of Mamta (12'*^ supra) are as under:-
21. An appeal under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. (See National Insurance co.Ltd. V. Naresh Kumar and State of Punjab v. Navdeep Kaur)
24. /A6- ubseived supra, as a first appellate Court, it was the duty of the High Court to have decided the appeal keeping in view the powers conferred on it by the statute. The impugned judgment also does not, in our opinion, satisfy the requirements of Order XX Rule 4 (2) read with Order XU Rule 31 of the Code which requires that judgment shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. It is for this reason, we are unable to uphold the impugned judgment of the High Court. '' (2016)4 see 172 20 B, Order 41 Rule 2 CPC:
44. Order 41 Rule 2 CPC reads as under:
it
2. Grounds which may be taken in appeal - The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."
45. In Oriental Insurance Co. Ltd v. Sunitha Singh^^, the Allahabad High Court on the scope of Order 41 Rule 2 CPC observed as under:
" For the reasons mentioned herein below and also agreeing with the view expressed by the Himachal Pradesh High Court in the case of Rahul Bhargava (supra), we are of the opinion that in this case such plea without any application seeking leave of the court under Order 41 Rule 2 and mentioning therein proper reasons for not raising this plea earlier should not be entertained. Further absence of this plea in the memorandum of appeal or in the written statement makes the matter worse for the appellant.
In view of above, we are not inclined to entertain the plea raised by the appellant regarding maintainability of the claim petition filed under Section 163A of 1988 Act."
46. We are of the view that the appellants are not entitled for any such ground being argued which is not taken in the memo of appeal. Any application seeking leave of the Court to take such ground, has also not been filed under Order 41 Rule 2 CPC. It is not open for the appellant to raise such submission at the stage 13 2015 see Online All 336 21 of final hearing. We cannot grant leave to raise such argument after about 10 years.
Conclusion:
47. We hold that the claimants are entitled to the compensation amount as per the table below being a just compen.sation.
S.No. Head Compensation awarded
1. Net Annual Income 20,000 X 12 = Rs.2.40.000/-
2. Future Prospects Rs.96.000/-
(i.e., 40% of the income)
Deduction towards personal (2,40,000 + 96,000/2) -
3.
expenditure
Rs. 1.68.000/-
(i.e., 50% of the income)
4. Total income Rs. 1,68.000/-
5. Multiplier of 18 at the age of
20 years 18 X 1.68.000 = Rs.30,24,000/-
6. Conventional Heads:
i) Loss of Consortium Rs.80,000/-
(Rs. 40,000x2)
ii) Loss of Estate Rs. 15,000/-
iii) Funeral expenses Rs.15.000/-
With 10% enhancement Rs.1,21,000/-
(1,10,000 + 11.000)
7. Total compensation Rs.31,45,000/-
/
/
22
48. On the aforesaid amount the claimants are entitled for interest @ 9% from the date of petition till payment/realization. In Rahul Sharma & Another vs. \ National Insurance Company Limited and others^^, the Hon'ble Apex Cour| I awarded @ 9% interest p.a. from the date of the claim petition. Also in Kirthi an J another vs. Oriental Insurance Company Limited^^, the Apex Court allowed interest 9%.
49. The appellant to deposit the amount as aforesaid, adjusting the amount already deposited/paid if any, before the Tribunal. i
50. On such deposit being made, the claimants shall be entitted to withdraw the same in the proportion as per the award. Failing which, the amount shall be recovered as per law.
51. While accepting the submissions of learned counsel for the appellants on the point of future prospects and deductions towards personal expenses as also under conventional heads, we find that the Tribunal has not awarded the just compensation, which is on the lower side. Consequently, the appeal is disposed of in the aforesaid terms as in Para Nos.47 to 50 (supra).
No order as to costs.
14(2021)6 see 188 IS (2021) 2 see 166 23 •5?
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
SD/- K KASIRAO ACHARI
ASSISTANT REGISTRAR
//TRUE COPY//
SE N OFFICER
One Fair Copy to the Hon'ble Sri Justice RAVI NATH TILHARI (For his Lordships Kind Perusal) One Fair Copy to the Hon'ble Sri Justice NYAPATHY VIJAY To (For his Lordships Kind Perusal)
1. The Chairman, Motor Accident Claims Tribnnal-cum-ll Additional isfhct Judge, Visakhapatnam, Visakhapatnam District, (with records if any)
2. One CC to Smt. S A V Ratnam Advocate [OPUC]
3. One CC to Sri Srinivasula Reddy Kommasani Advocate [OPUC]
4. Nine (09) L.R. Copies.
5. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.
6. The Secretary. Andhra Pradesh High Court Advocates Association Library, High Court Buildings, Amaravathi.
7. The Section Officer, VR Section,, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records)
8. Three CD Copies TK sree ■ HIGH COURT DATED:30/07/2024 AND«^ JUDGMENT + DECREE X 2 lAUG 20?'* „ ^ PfSPATCV^lS Current Section ^ MACMA.No.2139 of 2017 DISPOSING OF THE MACMA WITHOUT COSTS IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI TUESDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NQ.21.^q nf 2017 Between:
United India Insurance Co. Ltd., Office at Vizianagaram through its. Regional Office, TP HUB; Hyderabad rep. by Its Manager ■ ■ ,-S-.
...Appellant/R-3 AND
1. Susubelli Bapuji. S/o Venkata Narasimaha Appa Rao. aged about 50 years,
2. Kum.Susubelli Gayatri, D/o.Bapuji, aged about 21 years.
R-1 and R-2 herein are R/o Flat No.304, Swarna Appartments, H.B.Colony, Visakhapatnam.
...Respondents/Petitioners
3. G.Suryakantham, W/o.Trimurthulu, aged about 57 years, C/o.Korada Srinu, Narasapuram Village, Padmanabham Mandal, Visakhapatnam.
4. E Eswara Rao, S/o Narasimhulu aged about 32 years, R/o.D.No.4- 14,Telagala Veedhi Reddipalli, Visakhapatnam District. (not necessary party) ...Respondents/ Respondents Appeal filed under Section 173 of M.V.Act, against the order/award passed in OP No.978/14, dated 31.01.2017 by MACT-cum-ll Additional .District Judge, Visakhapatnam, Visakhapatnam District. VO f r \ V coming on for hearing and upon perusing the Memorandum of the Judgement and Decree of the lower Court and the material evidence on record and upon hearing the arguments of Smt. S A V Ratnam, Advocate for the Appellant and of Sri Srinivasula Reddy Kommasani, Advocate for the Respondent Nos.1 & 2 and none appeared for the Respondent Nos.3 & 4.
This Court doth order and decree as follows:
1. That the appeal be and is hereby disposed of in the following terms S.No. Head Compensation awarded
1. Net Annual Income 20,000 X 12 = Rs.2,40,000/-
2. Rs.96,000/-
Future Prospects (i.e., 40% of the income) Deduction towards ~ (2,40,000 + 96,000/2) = 3. Rs.1,68,000/-
personal expenditure (i.e., 50% of the income)
4. Total income Rs. 1,68,000/-
5.Multiplier of 18 at the age of 20 years 18 X 1,68,000 = Rs.30,24,000/-
6. Conventional Head^
i) Loss of Consortium Rs.80,000/-(Rs. 40,000x2)
ii) Loss of Estate Rs. 15,000/-
iii) Funeral expenses Rs. 15,000/-
Rs. 1,21,000/-
With 10% enhancement
(1,10,000 + 11,000)
7.
Total compensation ~ Rs.31,45,000/-
2. That on the aforesaid compensation amount the claimants be and are hereby entitled for interest @ 9% from the date of petition till payment/realization.
3. That the appellant be and is hereby directed to deposit the amount as aforesaid, adjusting the amount already deposited/paid if any, before the Tribunal.
4. That 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.
5. That there be no order as to costs in this appeal.
SD/- K KASIRAO ACHARI ASSISTANT REGISTRAR //TRUE COPY// f SECTI0N OFFICER To
1. The Chairman, Motor Accident Claims Tribunal-cum-ll Additional District Judge, Visakhapatnam, Visakhapatnam District.
2. Three CD Copies TK sree HIGH COURT DATED;30/07/2024 DECREE MACWIA.No.2139 of 2017 ^ AO 2 1 AUG 202'i s ^ . Current Section . ^ DISPOSING OF THE MACMA WITHOUT COSTS