Dismissed

The New India Assurance Company Limited v. Smt.Kurugodumochi Saroja and 2 Ors.

Andhra Pradesh HC18 Oct 2022MACMA/710/2013

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh dismissed an appeal filed by New India Assurance Company against a compensation award. The Court upheld the Tribunal's finding of driver negligence, adjusted the compensation quantum by applying deductions and additions for future prospects as per Apex Court precedents, and retained the 9% interest rate.

What did the court decide?

Compensation affirmed at Rs. 2,28,000/ with interest @ 9% per annum; appeal dismissed.

The New India Assurance Company Limited Vs… — Motor Accident Claims | Andhra Pradesh HC (2022)

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IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI

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TUESDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSANDAND TWENTYTWO

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PRESENT;

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THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO; 710 OF 2013

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Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the nuZ Passed in MA/.O.P.No.275 of 2010 on the file AcSdem Ctefms Iribu^a? Kum'oo?'" ‘ ^ Judge-cum-Chairman,^Motor

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Between;

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S,! ^ Company Limited, rep by its Divisional Manager O/o. HDCT Complex, RS Road, Kurnool.

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...APPELLANT/RESPONDENT NO. 2

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AND

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SmL Kurugodumochi Saroja, W/o. Sri Kasinadh Mochi, Aged 30 years Kurnoor°° R/o.Pattikonda Now R/o.H.No.1/68, Pedda’padu,

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Srinivasa Agro Products, rep. by its Partner Sri Sreenivasa Rao, S/o Not Known to the petitioner. Major, Hindu, Owner of Lorry No AP 7 T 2655 R/o.Kornepadu [V], Vatticherukuru [M], Guntur District.

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Sri K M. Kasinath, S/o.Sri Uliganna, Aged about 34 years, Hindu R/o. Near Petrol Bunk, Adoni Road, Pattikonda, Kurnool District.

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...RESPONDENTS/RESPONDENT Nos. 1 & 3

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I.A. NO; 2 OF 2012(MACMAMP. NO; 8035 OF 2012)

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in th Section 151 CPC praying that in the circumstances^stated in the affidavit filed in support of the petition, the High Court may be pleased to s ay of all further proceedings dated 28.02.2012 in MVOP No. 275 of 2010 on the file of the IV Additional District & Sessions Judge - cum- Chairman, Motor Accident Claims Tribunal, Kurnool.

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I.A. NO: 1 OF 2013(MACMAMP. NO: 424 OF 2013^

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Petition under Section 151 CPC praying that in the circumstances stated m the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim orders passed in MACMA.MP.No. 8035 of 2012 in MACMA(SR).No. 52897 of 2012 dt. 10/12/2012

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Counsel for the Appellant: SMT. A. JAYANTHI, Advocate

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Counsel for the Respondent No.2:SRI K. V. R. KRISHNA SHARMA, Advocate

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Counsel for the Respondent No.3:SRI G. SRAVAN KUMAR, Advocate

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The Court made the following: JUDGMENT:-

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HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

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MACMA No.710 OF 2013

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JUDGMENT:

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Aggrieved by the order dated 28.02.2012 in MVOP No.275 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool^(forshort the Tribunal'), the 2"^^ respondent - the New India^Assurance Company Ltd., represented by Divisional Manager, HDCT Complex, R.S.Road, Kurnool, has preferred this appeal of compensation awarded by

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questioning the quantum Tribunal.

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will be referred to as arrayed in the MV OP for

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1. The parties convenience.

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The claimant had filed an application before the^Tribunal under Section 166 of the Motor Vehicles Act, 1988, claiming - K. Chandrasekhar

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compensation for the death of her son as 'the deceased'), who died in a motor

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(hereinafter referred to vehicle accident that occurred on 0403.2009 at about^9.00 PM when the deceased was sleeping on the platform of Products Mill, Vattichurukuru Village, the

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Sreenivasa Agro No. AP 07 T 2655 (hereinafter

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driver of the lorry bearing

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2 MACMA_710 2013

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referred to as 'the offending vehicle) drove the same at high speed rashly and negligently and went upon the deceased. The head of the deceased was run over by the vehicle. He died on the spot. The deceased was aged about 12 years and was hale and healthy. He was the only son of the claimant. Subsequently, the father of the deceased was added as 3--d respondent as he did not cooperate with the claimant, who IS^i: his wife.

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The 1st respondent, the owner of the offending vehicle, has remained exparte.

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The 2nd respondent/insurance company has filed its counter, contending that the claim of the petitioner is highly excessive and exorbitant; there is also no proof that the deceased was aged about 12 years; the claimant shall prove that the accident occurred due to the rash and negligent driving^of offending vehicle's driver.

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Based on the pleadings, the Tribunal has formulated relevant issues. On behalf of the claimants, P.W. 1 was examined,^and Exs.A., 1 to A.4, were marked. Let in no oral evidence on behalf of the respondents, and Ex.B.l marked by consent. After evaluating the evidence on record, the Tribunal held that

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3 MACMA 710 2013

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the accident occurred due to rash and negligent driving^ofthe offending vehicle's driver. The Tribunal granted a compensation amount of Rs.2,20,000/with proportionate interest and costs @ 9% per annum from the date of petition till the date of realization.

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The learned counsel for the 2^^ respondent/ appellant^has contended that the Tribunal erred in not deducting^50%ofthe deceased's income towards personal expenditure. It^alsoerred in awarding interest at 9% per annum, which is excessive^and on the higher side.

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Learned counsel for the respondent supported the findings and observations of the Tribunal.

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Now the points for determination are.

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l)Whether the compensation amount fixed by the

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Tribunal is just and reasonable?

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2)Whether is there contributory negligence on the part of the deceased?

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POINTS;

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10.To prove the accident, the claimant has examined herself as P.W.l; she narrated the manner of the accident in her^evidence.

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4 MACMA_710_2013

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She also relied on Ex.A. 1-certified copy of FIR and Ex.A.2 certified copy of the charge sheet.

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1 l.The same i - IS not disputed by the respondents that the deceased

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died due to injuries sustained in the accident. Ex.A.3-certified copy of inquest report and Ex.A.4-certified copy of post-mortem examination report also support the claimant's case in this regard.

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12.The respondents place no evidence to show that the contents of the charge sheet are incorrect. In K.Rajani and others, V. M.Satyanarayana Goud and others*, the erstwhile High Court of Andhra Pradesh observed that;

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when the insurance company knew that the police investigation was false, they must also challenge the charge sheet in cippropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

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13. In Bheemla Devi V. Himachal Road Transport Corporation^

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the Hon'ble Apex Court observed as follows:

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‘It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely

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2015 ACJ 797 '2009 ACJ 1725 (SC)

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5 MACMA 710 2013

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to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

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Nothing on record suggests that the Investigating^{Officerfileda} charge sheet against the driver of the crime lorry without conducting a proper investigation; it is also difficult^toholdthat the Police Officer fabricated a case. In a proceeding^underthe M.V.Act, where the procedure is a summary procedure,^there is no need to go by strict rules of pleading or evidence. The document having some probative value, the genuineness^ofwhich is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part^ofaclaim petition, can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities^is the touchstone for concluding rashness and negligence,^aswell as the accident's mode and manner of happening.

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15.The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the crime lorry. When it contends^thatthe accident happened due to the deceased's negligence. It is to place necessary evidence before the Tribunal based on which the

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6 MACMA_710_2013

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Tribunal expected to give its conclusion, The Tribunal has accepted the claimants' case regarding the manner of the accident and also accepted the observations made by the Investigating Officer in the charge sheet making the driver of the crime lorry responsible for the accident. The charge sheet's content also supports the case of claimant' s case regarding the manner of the accident. No material was placed by the appellant/2'^d respondent to show that the accident occurred due to the negligence of the deceased, as contended. 16. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the driver of the crime lorry. For the reasons best known to the 2nd respondent, it has not examined the driver of the crime lorry, who was supposed to know the manner of the accident. No explanation is forthcoming. Regarding^the aspect of ^^Sllgonce also, no evidence i - IS produced before the Court by the 2nd respondent. The 2nd respondent has not placed any material before Court to show how it has got a source of information about the accident.

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This Court is of the view that it must prove either negligence or contributory negligence like any other fact; there is no different

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IVIACMA_710 2013

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Standard for proving negligence or contributory negligence.^But they cannot be decided on suspicion or surprise. The pleas taken in the counter will remain as pleas as they are not substantiated by acceptable, relevant and legal evidence. To prove contributory negligence, there must be cogent evidence. In the instant case. there is no specific evidence to prove that the accident occurred due to the deceased's negligence. In the absence of cogent evidence to prove the plea of contributory negligence,^thisCourt can not apply the common law doctrine in the present case. Although there are no details of contributory negligence in the counter, and no evidence is also put forth except alleging a stray sentence in the counter. The manner in which the accident happened leaves no doubt that the driver of the offending^bus was solely negligent in causing said accident. While granting relief under the act, the courts are not to be bound by mere technicalities but would adopt a liberal approach by giving the law a wider construction and meaning that would favour^the victims.

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Upon careful reading of the material on record, this Court is of the view that the Tribunal has correctly appreciated^theevidence on record and the finding of the Tribunal that the accident

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occurred due to rash and negligent driving of the offending vehicle holds good.

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Regarding the quantum of compensation, it is the claimant's case that the deceased was aged about 12 years at the time of the accident. To prove the claimant’s age, the date of birth certificate is not placed. However, the claimants relied on the post-mortem examination report-Ex.A.4 and inquest report-Ex.A.3 to show the claimant's age. The said documents show that the age of the deceased was 12 years at the time of the accident. As the deceased was non earning person at the date of the accident, the Tribunal has considered the national income as Rs. 15,000/-per annum. The Tribunal observed that there is no need to deduct any amount towards the personal expenses of the deceased as he was aged about 12 years. As already observed, the appellant's main grievance is that the Tribunal erred in not deducting^50%of the deceased s income towards personal expenditure.

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At this juncture, it is relevant to refer to the observations made by the Hon'ble Apex Court in Rajendra Singh & Ors. vs National Insurance Co.Ltd. & Ors^. As seen from the judgment, in the said case. Tribunal assessed the notional income of the minor

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^ 2020 ACJ 2211

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child. However, the Tribunal deducted 50% towards personal expenditure with a multiplier of 15. Without disturbing^thesaid finding, The Hon'ble Apex Court observed, in paragraph 13, held that the income of the minor child is incapable of precise fixation and observed further that they find no reason to interfere^with the assessed notional income of the second deceased. Considering the grant of the future prospectus for^thedeceased child aged about ten years, in R.K.Malik and others^vsKiran PauH, the Hon'ble Apex Court held, in paragraph 31,^asfollows:

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“31. A forceful submission has been made by the learned Counsels appearing for the claimantsappellants that both the Tribunal and the High Court failed to consider the claims of the appellants concerning the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the Courts below. On perusal of the evidence on record, we find merit in such submission that the Courts below have overlooked that aspect of the matter while granting compensation. It is well settled legal principle thatⁱⁿ addition to awarding compensation for pecuniary losses, it must also grant compensation with regard to the prospects of the children. It is incumbent upon the Courts to consider the said aspect while awarding compensation."

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2009 ACJ 1924

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10 MACMA_710_2013

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In National Insurance Company Limited V. Pranay Sethi and otherss it was observed that where the deceased was a bachelor and the claimants are the parents; the deduction follows a different principle. In regard to a bachelor's, normally, 50% is deducted as personal and living expenses because it IS assumed that a bachelor would tend to spend more on himself. Further observed that taking into consideration the cumulative factors, namely, the passage of time, the changing society, escalation of price, the change in the price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects, 22. By following the principles laid down by the Hon'ble Apex Court, this Court considers that 50% of the i income is to be deducted towards personal expenses and 40% of the income to be added towards future prospectus. On deduction of 50% of the annual income towards personal expenses of the deceased, an amount of Rs.7,500/- can be considered, and 40% of the annual income under the future head prospects arrived at Rs.3,000/-, in total, this Court, thought the annual income at Rs.10,500/(Rs.7,S00/- +3,000/-). The Tribunal has applied the multiplier

^2017) 16 see 680

MACMA 710_2013

15' to assess the loss of dependency, which need not be disturbed, and it would come to Rs. 10,500/- x 15 = 1,57,500/-. The claimant is also entitled to compensation under^thehead funeral expenses and parental consortium. The claimant^isalso entitled to an amount of Rs. 16,500/-towards funeral expenses and an amount of Rs.54,000/-towards Parental consortium. In all, the claimants are entitled to an amount of Rs.2,28,000/-.

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23.The learned counsel for the 2^^ respondent mainly^contended that the Tribunal had granted interest @ 9% per annum,^andthe rate of interest granted by the Tribunal is excessive,^anditisto be scaled down to 7.5% p.a.

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24.The learned counsel for the 2^^^ respondent has not placed any evidence before the Court to show the prevailing interest^rateas of the accident date. In United India Insurance Co. Ltd. vs Satinder Kaur^ the Hon'ble Apex Court held that the^Tribunal allowed 9% p.a. from filing the claim petition. However,^theHigh Court reduced the interest rate to 7.5% p.a. The Hon'ble^Apex Court has observed that it is appropriate to direct^theinterest@ 12% p.a. to be paid on the total compensation awarded.

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^2020 ACJ 2131

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12 MACMA_710_2013

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By following the principle laid down by the Apex Court, this Court is of the view that granting a rate of interest depends on the facts and circumstances of the case. The Tribunal, at its discretion, granted 9% p.a. after considering the entire material on record, this Court is of the view that the interest need not be scaled down, as the Tribunal has appropriately exercised its discretion. Hence, 1 do not find any substance or merit in the appeal; the appeal is devoid of merits and deserves to be dismissed.

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Accordingly, the appeal is dismissed. No costs.

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Miscellaneous petitions, if any, pending in this appeal shall

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stand closed.

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To:

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Sd/- N. NAGAMMA ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER

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3: OneCCto 4. One CC to SRI G. SRAVAN KUMAR , Advocate lOPUCl ' 6,' <=0- or^^""a?i.atavatl.

KVR ssb

HIGH COURT

DATED:18/10/2022

JUDGMENT;

MACMA.No.710 of 2013

K'P

DISMISSED THE MACMA

IN THE HIGH COURT OF ANDHRA PRADESH ;; AMARAVATI

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TUESDAY. THE EIGHTEENTH DAY OF OCTOBER TWO THOUSANDAND TWENTYTWO

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o<br>%

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PRESENT:

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THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 710 OF 2013

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Between:

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S® Assurance Company Limited, rep by its Divisional Manager O/o. HDCT Complex, RS Road, Kurnool.

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...APPELLANT/RESPONDENT No. 2

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AND

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SmL Kurugodumochi Saroja, W/o. Sri Kasinadh Mochi, Aged 30 years Hindu, Coolie, Occ: Coolie R/o.Pattikonda. Now R/o.H.No.1/68 Peddapadu Kurnool. ^

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Srinivasa Agro Products, rep by its Partner Sri Sreenivasa Rao, S/o.Not Known to the petitioner. Major, Hindu, Owner of Lorry No AP 7 T 2655 R/o.Kornepadu [V], Vatticherukuru [M], Guntur District.

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Sri KM. Kasinath, S/o.Sri Uliganna, Aged about 34 years, Hindu R/o. Near Petrol Bunk, Adoni Road. Pattikonda, Kurnool District. ’

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...RESPONDENTS/RESPONDENT Nos. 1 & 3

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Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Order and Decree dated 28-2-2012 passed in MA/.O.P.No.275 of 2010 on the file of the Court of the IV Additional District & Sessions Judge-cum-Chairman, Motor Accident Claims Tribunal, Kurnool.

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This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Suit and upon hearing the arguments of SMT. A. JAYANTHI, Advocate for the Appellant and of SRI. K. V. R. KRISHNA SHARMA, for the Respondent No.2 and of SRI G. SRAVAN KUMAR, Advocate, for the Respondent No.3.

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This Court Doth Order and Decree as follows:-

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' 1- That the MAGMA be and hereby is dismissed, and

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'■ft'. 2.- ^That there shall be no order as to costs in this MAGMA
I i
1:
Sd/- N. NAGAMMA
y ■k /j * //TRUE COPY// ASSISTANT REGISTRAR
SECTIO (Officer
To:

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They Additional District & Sessions Judge-cum-Ghairman,^Motor Accident Glaims Tribunal, Kurnool.

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Three GD Gopies

KVR
ssb

HIGH COURT

DATED: 18/10/2022

DECREE:

MACMA.No.710 of 2013

K£ q Cofi'e^ n )d2_) 102.4

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DISMISSED THE MACMA

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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TUESDAY, THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT:

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THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 710 OF 2013

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Between:

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S® Assuraipe Company Limited, rep by its Divisional Manager O/o. HDCT Complex, RS Road, Kurnool.

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...APPELLANT/RESPONDENT No. 2

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AND

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SmL Ki^ugodumochi Saroja, W/o. Sri Kasinadh Mochi, Aged 30 years Hindu, Coolie, Occ; Coolie R/o.Pattikonda. Now R/o.H.No.1/68, Peddapadu, Kurnool.

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Srinivasa Agro Products, rep by its Partner Sri Sreenivasa Rao, S/o.Not Known to the petitioner. Major, Hindu, Owner of Lorry No.AP 7 T 2655 R/o.Kornepadu [V], Vatticherukuru [M], Guntur District.

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