Partly allowed

Shaik Shajida Begum and 2 Others v. Koneru Rama Rao and Another

Andhra Pradesh HC18 Oct 2022MACMA/116/2014

Case brief

AI extract

What is this about?

Appeal against Motor Accidents Claims Tribunal order fixing compensation at Rs.10 lakh for deceased. Court enhanced award to Rs.18.49 lakh applying quantum principles from judicial precedents, accounting for lost dependency, supervisory value of assets, and inflation in conventional heads.

What did the court decide?

Compensation enhanced from Rs.10 lakh to Rs.18,49,017/- by filing of petition till date of payment with interest; insurance directed to deposit balance.

Shaik Shajida Begum and 2 Others Vs Koneru Rama… — Motor Accident Claims | Andhra Pradesh HC (2022)

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HON’BLE SRI JUSTICE T MALLIKARJUNA RAO

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IA 2/2014(XOBJ 10284/2014) IN/AND MACMA.No.116 OF 2014

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JUDGMENT :

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1. This MACMA preferred by claimants in MVOP.No.532 of 2010 on the file of Chairman, Motor Accidents Claims Tribunal – Cum – V Additional District Judge, Vijayawada, being aggrieved by order and dissatisfied with the Judgment and Decree dt.31.05.2013 passed in the said MVOP by which the Tribunal has awarded Rs.10,00,000/with interest at 7.5% per annum., to them for the death of Shaik Aseek alias S.Asif Ahmad (hereinafter be referred as deceased) due to injuries sustained in the accident.

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2. It also noted that the insurance company filed cross-objections in this appeal by which the insurance company has contended that the Tribunal, without any basis, concluded that the income of the deceased is Rs.25,000/- per month. The Tribunal failed to see that there is no disturbance in the income of the deceased's family concerning the vehicle business. The claimants have claimed Rs.10,00,000/- and Tribunal awarded the same, which is adequate.

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3. The parties referred to as per their original rankings before Tribunal to avoid confusion and for the court's convenience.

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4. The 1^st claimant is the wife, and claimants 2 and 3 are the minor sons of the deceased. They filed a claim petition under Sections140 and 166 of the MV Act and read with rule 455 of AP MV Rules, 1989, seeking compensation of Rs.10,00,000/-.

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5. The factual matrix of the claimant's case is that on 13.08.2010, the deceased came from Pezzonipet to his house at Yanamalakuduru Village. They reached Pardhasaradhi Road, Kannur, at about 11.25

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hours. The sand tipper lorry is bearing No.AP-07-W-9936 (hereinafter referred to as an offending vehicle ) , coming from the opposite direction in a rash and negligent manner, hit the scooter of the deceased on the left side, and he sustained multiple injuries. He shifted to TIMES Hospital, Vijayawada, where he succumbed to injuries while undergoing treatment on 18.08.2010 at about 04.25AM.

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6. The 1^st respondent remained set exparte. The 2^nd respondent filed a counter-denying the allegations made in the petition and the nature of the deceased's income. There is no negligence on the part of the 1^st respondent. The petitioner's claim is excessive and exorbitant.

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7. Based on the pleadings, Tribunal framed relevant issues; before the Tribunal on behalf of petitioners, PWs.1 and 2 got examined and marked Exs.A1 to A23. On behalf of the 2^nd respondent, RW.1 got examined and marked Exs.B1 to B3.

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8. After considering evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the 1^st respondent. Tribunal granted a compensation amount of Rs.10,00,000/- to the petitioners.

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9. I have heard rival submissions of learned counsel for both sides.

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10. The main contention of the appellants is that the Tribunal, having held that the claimants are entitled to compensation amount of Rs.34,83,717/-, ought not to have restricted their claim to Rs.10,00,000/- and Tribunal erred in not granting compensation of Rs.34,83,717/-.

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11. Per contra, the learned counsel appearing for the respondent supported the findings and observations of the learned Tribunal. However, contended that the Tribunal erred in concluding the deceased's earnings, as pointed out in cross-objections.

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12. Now the point for determination is whether the compensation amount awarded by the Tribunal is not in accordance with principles of law and requires enhancement.

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13. After careful reading the material on record, this court views that there is no serious dispute as to the occurrence of the accident in question and the respondent's liability to pay the compensation amount. The 2^nd respondent also did not dispute the correctness of finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle driver. So it is unnecessary to narrate the factual aspects of the case in detail.The main dispute between parties is about the quantum of the compensation amount.

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14. The Tribunal, in order, observed that claimants are entitled to an amount of Rs.34,00,000/- under the head of loss of estate and Rs.10,000/- under the head of loss of consortium to 1^st claimant and Rs.2,500/- towards funeral expenses and Rs.71,217/- towards medical expenses. But, the Tribunal granted compensation of Rs.10,00,000/- as the petitioners claimed for Rs.10,00,000/-, and the award IS passed by restricting their claim up to Rs.10,00,000/-.

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15. The Apex Court in between Nagappa Vs. Gurudayal Singh¹ , it is observed that “ the question was answered in the affirmative, holding that in the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, wherefrom the evidence brought

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1 2003 ACJ 12 (SC)

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on record, if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is it should be just compensation; that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. Such observations were made in light of the provisions contained in sections 166 (1) and (4), 158 (6) and 168 of the Motor Vehicles Act, 1988. This view was thereafter reiterated by the Supreme Court in Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC); Sanjay Verma v. Haryana Roadways, 2014 ACJ 692 (SC) and Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar, 2015 ACJ 708 (SC) .

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16. The claimant's counsel submits that the Tribunal may not to have restricted the claim of the claimants to Rs.10,00,000/- in the light of the well-settled principles of law laid down by the Hon'ble Apex Court. I find force in the said submission of the learned counsel for claimants.

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17. The contention between the parties is that the Tribunal failed to consider the deceased's earnings. The Tribunal observed that the deceased is a lorry mechanic, and he had three ten tyres lorries, and thereby he used to earn an amount of Rs.3,00,000/- per annum. The claimants relied on Exs.A7 to A22 documents to support their contention that the deceased had three lorries. The Tribunals finding that the deceased was a lorry mechanic and had three lorries of 10 tyres is not disputed. The 2^nd respondentinsurance company contends that as there is no disturbance to the income of the deceased family, the Tribunal is supposed to consider the loss of income in the managerial capacity of the deceased. It submits that the said vehicles are still there with the deceased's family; as such, it is not correct to assess the deceased's income based on the business. It is clear from the order of the Tribunal it

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assessed the income of the deceased by considering the profits in the lorry business of the deceased and amounts earned by the deceased as a mechanic.

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18. In a decision reported in D.Vinoda Vs. B.Basava Raju² , after referring to as many as 17 cases of various High Courts summarized the principles regarding estimated damages on the death of an agriculturist as under. “in the case of death of an agriculturist owning agricultural land, the value of the 'supervisory' services of the deceased have to be first estimated. This will not be merely equivalent to the value of the services of a farm servant or a manager of the property employed for that purpose. It will be more than that because an owner-manager takes extra care in increasing the income year by year and also in increasing the value of the property. After thus estimating the 'special' value of the supervisory services of an 'owner-manager', a deduction is to be made in respect of the money the deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. Then an actuarial multiplier suitable to the age of the deceased has to be applied” .

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19. Though the deceased was not an agriculturist in the present case, this court views that the principle laid down in the said decision can be made applicable to the facts of this case, and at best, the claimants are entitled to claim the compensation amount concerning supervisory services for the following reasons. After the deceased's death, the vehicles possessed by the deceased remain with the claimants as his legal heirs. The claimants may hire the said lorries and realize the rent amount. The claimants may take the assistance of a person to supervise the vehicles and continue

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2 1988 ACJ 1072

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the business as held by the deceased. They may sell away the said lorries, deposit the sale proceeds and realize the interest amount. Thus, by any stretch of the imagination, it cannot be concluded that due to the deceased's death, there is no possibility of realizing any income through the said lorry business. Since the deceased's profession was a lorry mechanic, this court views that there was every possibility of getting income of Rs.4,500/- per month towards the said profession. This court opinion is that the claimants may be forced to engage the services of a supervisor to run the business effectively. As such, there is a possibility of spending an amount of Rs.4,500/- per month towards supervisory charges. The earnings of mechanic and supervisory expenses are supposed to be assessed concerning the prevailing rates as of the date of the accident but not as of now.

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20. In a decision reported between National Insurance Company vs Paranay seti³ it is held that in case the deceased was self-employed, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. Finding of the Tribunal that age of the deceased is 34 years as of the date of the accident is not disputed. Given the same, the annual earnings of the deceased, including a future prospectus, can be assessed at Rs.9,000/+ 40% = Rs.12,600/-. Since petitioners 1 to 3 are the dependants on the deceased's earnings, the Tribunal rightly deducted one-third (1/3^rd ) of his earnings towards personal and living expenses. Thus, it would come to monthly earnings of the deceased after deducting personal expenses Rs.12,600/- X 1/3 = Rs.4, 200/- i.e., Rs.12,600/- - 4,200/- = Rs.8,400/-.

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3 2017, ACJ 270

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21. As per the case between "Sarala Varma and others Vs. Delhi Corporation and another⁴ , the appropriate multiplier applicable to the age group of 31 to 35 is 16. After deducting 1/3^rd amount, the net income of the deceased, which can contribute to the family, arrived at Rs.8,400/- and when multiplied by 16, the net annual contribution of the deceased was at Rs.1,00,800/- and so when multiplied by an appropriate multiplier, i.e., 16 thereby the total loss of contribution was to be Rs.1,00,800/- X 16 = Rs.16,12,800/-. Tribunal awarded amount of Rs.71,217/- towards medical expenses spent by the 1^st claimant during the period of treatment of the deceased at the time of admission to the hospital. However, the Tribunal has not considered the bills which do not have counter signatures and Xerox copies. Thus, this court views that the Tribunal has correctly appreciated the medical bills and awarded such an amount towards medical bills.

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22. In Magma General Ins. Co.Ltd., V.Nanu Ram⁵ , the Apex Court held that: "The Motor Vehicles Act is a beneficial and welfare legislation. The court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea in that behalf was raised by the claimant. A constitution Bench of Hon’ble Apex Court in Pranay Sethi 2017 ACJ 2700 (SC) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium.

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23. 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 for the deceased,

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4 2009 ACJ 1298

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52018 ACJ 2782 (SC)

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which is a loss of his family. For a spouse, it would include sexual relations with the deceased spouse [Rajesh v. Rajbir Singh⁶ . The 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.

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24. In Pranay Sethi, the Hon'ble Supreme Court has awarded a total sum of Rs.70,000/- under conventional heads, namely, loss of estate, loss of consortium and funeral expenses. It was held that the said sum should be enhanced at 10 per cent every three years. It was held thus in para 61: "(viii) Reasonable figures under conventional heads, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/respectively. The aforementioned amounts should be enhanced at the rate of 10 per cent in every three years". The Judgment in Pranay Sethi was rendered in the year 2017. Therefore, the claimants are entitled to a 10 per cent enhancement. Thus, a sum of Rs.16,500/each is awarded towards loss of estate and funeral expenses. Thus the appellants are entitled to compensation as under

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i. Towards loss of dependency	: Rs.16,12,800/-
ii. Medical expenses	: Rs. 71,217/-
iii. Loss of estate	: Rs. 16,500/-
iv. Funeral expenses	: Rs. 16,500/-
v. Loss of spousal consortium	: Rs. 44,000/-
vi. Loss of parental consortium
to two children considering	: Rs. 88,000/-
Total	: Rs.18,49,017-

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25. Accordingly, the claimants shall be entitled to a compensation amount of Rs.18,49,017/- together with interest at 7.5% per annum

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6 2013 ACJ 1403 (SC

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to be calculated from the filing of the claim petition till the date of payment.

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26. Resultantly the Civil Miscellaneous Appeal and cross objections are partly allowed without costs by fixing the compensation amount of Rs. Rs.18,49,017/- by enhancing it from Rs.10,00,000/- with interest at the rate of 7.5% as awarded by the Tribunal. The insurance company is directed to deposit the balance compensation amount within two months from the date of this order. In all other aspects, the order passed by the Tribunal is unaltered. The petitioners are entitled to an enhanced compensation amount in the same proportion as awarded by the Tribunal. The petitioners are entitled to withdraw the compensation amount on deposit by filing proper application before the Tribunal as per the terms of order passed by the Tribunal.

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27. Miscellaneous petitions, if any, are pending shall stand closed.

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__________________________________ JUSTICE T MALLIKARJUNA RAO

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Date : 18.10.2022 BV/KGM

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HON’BLE SRI JUSTICE T MALLIKARJUNA RAO

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IA 2/2014(XOBJ 10284/2014) IN/AND

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MACMA.No.116 OF 2014