Andhra Pradesh High Court - Amravati
Chelyanam Krishnavenidhyara Sarma ... vs Sh.Jyothi Malhotra And Another on 9 May, 2025
APHC010421642012
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY ,THE NINTH DAY OF MAY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
4357/2012
Between:
Chelyanam Krishnavenidhyara Sarma [died] ...APPELLANT(S)
And 2 Others and Others
AND
Sh Jyothi Malhotra And Another and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. SRAVAN KUMAR MANNAVA
2. .
Counsel for the Respondent(S):
1. AMANCHARLA SATISH BABU
2. .
The Court made the following:
2
Dr.VRKS,J
MACMA.No.4357 of 2012
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
MACMA No.4357 of 2012
JUDGMENT:
1. Legal representatives of the deceased in an automobile accident are aggrieved of the inadequacy of compensation and assailed the award dated 28.01.2009 of the learned Chairman, Motor Accidents Claims Tribunal - cum - III Additional District Judge, Guntur in MVOP.No.202 of 2007 and preferred this appeal under section 173 of the Motor Vehicles Act, 1988.
2. Respondent No.1 herein is the owner of the offending vehicle. R2 herein/ New India Assurance Company Limited is the insurer of the offending vehicle.
3. Heard arguments of Sri M.Sravan Kumar, the learned counsel for appellants and Sri A.Satish Babu, the learned counsel for insurance company.
4. Basically, three facts are needed to be established by the claimants for assessing the compensation in the case of death.
a. Age of the deceased b. Income of the deceased c. The number of dependents 3 Dr.VRKS,J MACMA.No.4357 of 2012
5. Further the issues to be determined by the tribunal to arrive at the loss of dependency are i. Additions or deductions to be made for arriving to the income of the deceased ii. The deduction to be made towards the personal living expenses of the deceased iii. The multiplier to be applied with reference to the age of the deceased
6. In the light of the above principles, the rival contentions require consideration for which the following aspects are required to be noticed: -
7. Sri Ch.Sathish Kumar is the deceased in this case. He was born on 07.08.1981/Ex.A9 attested copy of SSC certificate. The subject accident occurred on 10.07.2006 and in the accident he sustained serious injuries and was admitted into the hospital and died on that day. Thus, by the date of his death, he was aged 24 years.
8. The deceased Sathish Kumar was a graduate in commerce and possessed of Diploma in Computer Education in Accounts/Ex.A10 and A11. He was selected as Accounts Officer in Pathikari Power Private Limited, Shimla on a consolidated 4 Dr.VRKS,J MACMA.No.4357 of 2012 monthly pay of Rs.20,000/- / Ex.A6 and A7. On 10.07.2006, he went to the company in pursuance of the letter of appointment and joined there and in the evening at about 04.00 pm, he was in front of the office standing on the side of the road at which time a truck bearing registration No. HP 33/2865 came at high speed and its driver was rash or negligent and dashed him on his rear side leading to infliction of serious injuries on his body. He was immediately shifted to Government Hospital, Mandi in the Company vehicle where the doctors declared him dead as evidenced by Ex.A3/death certificate and Ex.A5/certificate of medical officer. The incident was reported to police and Gohar Police Station registered Cr.No.104 of 2006 and issued FIR/Ex.A1 and the dead body was subjected to Post Mortem/Ex.A2.
9. His parents and sister praying for compensation of Rs.28,50,000/- filed a petition under section 163A and 166 of the MV Act showing the owner of the vehicle as R1 and the insurance company as R2. Both filed their written statements opposing the claim. The owner contended that the vehicle holds valid and effective insurance policy and the vehicle was entrusted to the driver who was having valid and effective driving licence and 5 Dr.VRKS,J MACMA.No.4357 of 2012 there was no fault on part of the driver of the truck. Insurance company contended that the death was not out of rash or negligent driving of the driver of the truck and it was the fault of the deceased that led to his death and prayed for dismissal of the claim.
10. Learned claims tribunal settled the following issues for trial:-
1. Whether the accident occurred due to rash and negligent driving of the driver of Truck bearing No HP 33/2865 and that resulted in causing the death of the deceased Chayanam Sathish Kumar?
2. Whether the petitioners are entitled to compensation and if so, to what amount and against whom?
3. To what relief?
11. The evidence of PWs.1 and 2 and Exs.A1 to A11 and Ex.X1 were produced on behalf of the claimants. Respondents did not adduce oral or documentary evidence.
12. After considering the evidence on record and the contentions raised on both sides, the learned claims tribunal concluded saying that the deceased was not at all at fault and the accident was out of rash or negligent driving of the driver of the offending truck. It fastened liability of compensation on both the 6 Dr.VRKS,J MACMA.No.4357 of 2012 respondents therein. It considered Rs.7,000/- as the monthly income and considered the age of the mother of the deceased at 42 years and applied multiplier No.12.79 and granted • Rs.10,08,000/- towards loss of dependency • Rs.15,000/- towards loss of estate • Rs.3,000/- towards funeral expenses • Rs.5,000/- towards transportation Thus, total compensation of Rs.10,31,000/- was granted.
13. During the pendency of the claim petition, the father of the deceased who was one of the claimants died and that was recorded. It passed the award in the following terms: -
"In the result, petition is allowed awarding compensation of (Rs. thirty one 10.98,000/- (Rupees Ten lakh thirty one thousand only) payable by respondents 1 and 2 along with interest at 7.5% p.a from the date of petition i.e 28-2-07 till the date of deposit and also to pay the proportionate costs of the petition. Respondents 1 and 2 are directed to deposit the award amount within one month from the date of this judgment. After deposit 3rd petitioner is entitled for Rs.2,00,000/- (Rupees Two lakhs only) with interest there on and the 2nd petitioner for the balance amount with interest and costs of the petition. The amount awarded to 3rd petitioner is permitted to withdraw her share and 2nd petitioner is permitted to withdraw Rs.3,00,000/- (Rupees Three lakhs only) and the balance amount of the 2nd petitioner shall be kept in fixed deposit in any nationalized bank for a period of 36 months and thereafter she is at liberty to withdraw the same."7
Dr.VRKS,J MACMA.No.4357 of 2012
14. In the present appeal, the learned counsel for claimants contended that claims tribunal committed errors in the following aspects • Instead of considering the age of the deceased, it considered the age of the mother of the deceased • Future prospects were not considered at all • Under the conventional heads, inadequate amounts were granted • Deduction towards personal living expenses of the deceased were excessively made by the claims tribunal • Incorrect rate of interest was granted.
Learned counsel further contended saying that the tribunal was unreasonable in not considering the pay/ salary of the deceased as mentioned in Ex.A7.
15. Opposing the above contention, the learned counsel for respondent No.2/ insurance company contended that Ex.A7 was created only for the purpose of securing more compensation. That the claim petition was not maintainable as it was filed both under sections 163A and 166 of the MV Act. That at any rate, what was granted by the claims tribunal was just compensation requiring no interference.
8
Dr.VRKS,J MACMA.No.4357 of 2012
16. The point that falls for consideration in this appeal is Whether the impugned award suffers from factual and legal errors requiring any modification as contended by the appellants?
POINT: -
17. On death of a person, the legal representatives are entitled to make a claim for compensation. The said compensation could be claimed under section 163A of the MV Act. In such cases, by virtue of Sub-section 2 therein, the claimants were not obliged to plead or establish that the death in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or of any other person. A claim made under section 163A of the MV Act would be decided through a structured formula basis.
18. The legal representatives of the deceased are also entitled to maintain a claim for compensation under section 166 of the MV Act. In such instances they are required to plead and prove fault on part of that person who drove the motor vehicle leading to the death of the person.
19. At one point of time, there was a belief among the claimants that a claim under section 163A was only an interim 9 Dr.VRKS,J MACMA.No.4357 of 2012 measure whereas a claim under section 166 was a final measure. During evolution of precedent, it was settled that a decision of a claim prosecuted under section 163A was a final award of compensation similar to that of an order of compensation passed under section 166 of the MV Act. That aspect of the law is no longer in dispute. However, the legal dispute that has cropped up in this case is that the claimants filed their claim petition mentioning section 163A as well as 166 of the MV Act and that is objected to by the learned counsel for R2/ insurance company stating that both these provisions stand contrary to each other as in one case, the party was not obliged to plead and prove of fault while in the other case, the party was obliged to plead and prove fault. If a claim is made under both the provisions, it deserves dismissal.
20. Having considered the above submissions, one is required to notice the law laid down by the Full Bench of the Hon'ble Supreme Court of India in Deepal Girishbhai Soni Vs United India Insurance Company Limited1 which was reiterated by their Lordships in Valsamma Chacko Vs M.A.Titto2. In Deepal Girishbhai Soni's case. Their Lordships held that the remedy for 1 (2004) 5 SCC 385 2 2025 0 Supreme (SC) 526 10 Dr.VRKS,J MACMA.No.4357 of 2012 payment of compensation both under sections 163A and 166 cannot be pursued simultaneously. The claimant thus must elect to go either for proceedings under section 163A or for proceedings under section 166 of the MV Act. Nothing contrary is brought to the notice of this court by the learned counsel for R2.
21. In the light of the above principles of law, the case at hand must be examined.
A perusal of the claim petition and the evidence of witnesses do indicate that the claimants have specifically pleaded and stated that the accident and the resultant death were out of rash or negligent act on part of the driver of the offending truck. The impugned award of the claims tribunal on its reading gives a complete opinion that the learned claims tribunal extensively dealt with the aspect of fault "rash or negligent driving on part of the driver" of the offending vehicle and finally concluded on evidence that the entire fault was only with the driver of the offending vehicle. All that makes it clear that the claimants opted or elected to pursue the case only under section 166 of the MV Act. Their mention of section 163A in the claim petition is thus superfluous. In these circumstances, this court holds that there is no illegality 11 Dr.VRKS,J MACMA.No.4357 of 2012 in the claim petition that was filed and there is no merit in the contention raised by the learned counsel for R2.
22. The findings of the claims tribunal on the following aspects remained undisputed before this court. That the driver of the offending vehicle was holding a valid and effective driving licence and the said vehicle was covered by subsisting valid and enforceable insurance policy issued by R2/ insurance company. Ex.A7 discloses that the salary to be paid per month to the deceased was Rs.20,000/-. It is undisputed that on the day when he joined, he suffered accident and died. As per the evidence of PW.2/ Sri Bippin kumar Rana who works in the same company where the deceased joined was that it was a consolidated pay and since the employee died on the day of joining, he was yet to receive any salary in real terms. Learned counsel for R2 contends that Ex.A7 is falsely created for claim purpose. This contention has no merit since such contention was never spoken to by any witness on behalf of the insurance company when the trial took place before the claims tribunal. No evidence was brought on record to question the credibility of Ex.A7. For people who are living in different parts of the country, it is difficult to contend that they brought Ex.A7 from Himachal Pradesh and put a false 12 Dr.VRKS,J MACMA.No.4357 of 2012 witness in the form of PW.2. The incident of death has never been in dispute. In such circumstances, there is nothing to castigate the genuineness of Ex.A7. Therefore, the contention of R2 is negatived.
23. For someone's earnings in the form of a salary, it is not always required that he must have received the salary. There are unfortunate situations such as the present one where newly joined employee died on the same day without receiving any part of his salary. Had he survived for a period of one month, he would have received his salary and that salary is undoubtedly only what is mentioned in terms of Ex.A7. Therefore, one is required to record that the monthly salary of the deceased was Rs.20,000/-. It was a fixed pay/ consolidated pay. In those cases where the person aged below 40 years is on a fixed pay suffers an accident and dies, his future prospects are to be considered by adding 40% to the salary 3 which comes to Rs.28,000/-. The impugned award fails to consider anything towards future prospects and therefore requires modification.
24. Deceased was a bachelor. The claimants were his parents and sister. In those cases where the deceased of a motor 3 National Insurance Company Limited Vs Pranay Sethi (2017) 16 SCC 680 13 Dr.VRKS,J MACMA.No.4357 of 2012 accident is a bachelor, 50% of his income must be deducted towards his possible personal living expenses. As one would notice that the salary having not been paid and received, there was no pay slip to disclose Tax Deduction at Source. Net income has to be arrived at only after deduction of income tax. If 10% of it is considered towards income tax, it comes to Rs.2,800/-. Thus, the net income comes to Rs.25,200/-. Since he is a bachelor, 50% of it is to be deducted towards his possible personal living expenses which comes to Rs.12,600/-. Thus, his net pay per month is Rs.12,600/-. Per annum it comes to Rs.1,51,200/-. Since the deceased was 24 years, the relevant multiplier is 18 4. Therefore, Rs.27,21,600/- is granted towards loss of dependency. Learned claims tribunal failed in applying appropriate principles of law and granted only Rs.10,08,000/- towards loss of dependency which cannot be maintained. Having considered the facts and circumstances, various amounts of compensation under conventional heads does not require any modification.
25. 7.5% interest per annum was granted by the claims tribunal. It seems at the relevant time when the award was passed the rate of interest granted by the nationalized banks was 4 Sarla Verma Vs Delhi Transport Corporation 2009 (6) SCC 121 14 Dr.VRKS,J MACMA.No.4357 of 2012 the same. Therefore, there is no flaw in what was granted by the claims tribunal. Hence, the point is answered in favour of the appellants.
26. In the result, this appeal is allowed. Order dated 28.01.2009 in MVOP.No.202 of 2007 of the learned Motor Accidents Claims Tribunal - cum - III Additional District and Sessions Judge, Guntur is modified to the extent of enhancing the compensation awarded from Rs.10,31,000/- to Rs.27,21,600/- with 7.5% interest per annum from the date of petition till the date of realization. Respondent No.2/ The New India Assurance Company Limited is directed to pay the compensation along with accrued interest within 30 days from the date of this order before the claims tribunal after giving due credit to the amounts paid if any. There shall be no order as to costs in this appeal.
As a sequel, miscellaneous applications, pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 09.05.2025 Dvs 15 Dr.VRKS,J MACMA.No.4357 of 2012 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR MACMA No. 4357 of 2012 Date: 09.05.2025 Dvs