Partly allowed

Chimbli Eswaramma, Anantapur Dist and Anr. v. Shiva Kumar, Raichur, Karnataka and 3 Others

Andhra Pradesh HC29 Feb 2024MACMA/2184/2016

Case brief

AI extract

What is this about?

The High Court handled an appeal against a Motor Accidents Claims Tribunal award. The Court partially allowed the appeal, enhancing the compensation from Rs.3,04,000/- to Rs.3,44,000/- based on Supreme Court guidelines for conventional heads, and directed the insurer to deposit the difference.

What did the court decide?

Compensation enhanced from Rs.3,04,000/- to Rs.3,44,000/-; Respondent insurer directed to deposit the difference with interest and costs within one month.

Chimbli Eswaramma, Anantapur Dist and Anr… — Execution and Attachment | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY, THE FIRST DAY OF MARCH

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TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A.V. RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.2184 of 2016

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Between:

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§(^5: Chimbali Eswaramma, W/o Late Sri Pullanna, aged^about48 years. Hindu, Housewife,

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1. Chimbali Bhaskar Naidu, S/o Late C. Pullanna, Ag;8d about 28 years, Hindu, Marrimakulapalli Village, Tadimarri Mandal, Anantapur ...Appellants/Petitioners

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AND

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’ Nn Owner of Lorry bearing Raichuf D.No.1/4, Masrakal Taluk, Deodurga District,

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^ Rep. by Its Divisional Manager,

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2010

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^ &nn^Nnl''p'nf yXan''(?‘o ^'e^er Van Rn?hTiL.^i D.No.2-757, Dharmavaram Raod, Bathalapalli Village and Mandal, Anantapur District.

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Reliance G^eral Insurance Company Limited, Rep. by its claim officer Anantapur, Policy bearing No. 1815792334003157, valid from 9-1-2010’to 8-1-

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...Respondents/ Respondents

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(R3 and R4 not necessary parties in this appeal)

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Appeal filed under Section 173 of M.V.Act, Aggrieved by the Order and Decree passed in Original Petition No.409/2011, dated 22"“ day of February, 2013, by not granting the claim of the appellant/petitioner Rs.4,00 000/- and by granting only compensation of Rs.3,04,000/- with interest @ 7.5% only by dismissing the Rest of the claim, the present appeal is filed for enhancement of compensation, against the orders in O.P.No.409/2011,dated 22-02- 2013, by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Anantapur

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Appeal coming on for hearing and upon perusing the Memorandum of Appeal the Judgement and Decree of the lower Court and the material evidence on record and upon hearing the arguments of Sri Ineni Venkata Prasad, Advocate for the Appellants and of Sri V Raghunandan Goud, Advocate for the Respondent No.1 and ot Sri P Ramanjaneyulu, Advocate for the Respondent No.2.

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This Court doth order and decree as follows:

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That the appeal be and is hereby allowed in part. *

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That the compensation payable by the respondents No.1^{and2beandhereby} is enhanced from Rs.3,04,000/- to Rs.3,44,000/- with proportionate costs with the interest 7.5% per annum on the difference amount^{ofRs.40,000/-fromthe} date of petition till the date of deposit.

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That the respondent insurance company of the offending^{vehicleishereby} directed to deposit the difference of the compensation^{amountwithuptodate} interest and proportionate costs within one month from^{thedateofthisaward.}

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That on such deposit the 1®‘ petitioner/claimant alone^{isentitledtoreceivethe} difference amount in lump sum.

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SD/- K TATA RAO DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District
Judge (F.T.C), Anantapur, Anantapur District.
2. Three CD Copies
TK
sree
A'P-

HIGH COURT

DATED:01/03/2024

Note: The Registry is directed to forward the record along with copy of the .order to the trial court on or before 12.03.2024.

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DECREE

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MACIVIA.No.2184 of 2016

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g 0 7 MAR 202*1
^ . Current Section

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gropes /)PP

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ALLOWING THE MACMA IN PART

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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FRIDAY, THE FIRST DAY OF MARCH

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TWO THOUSAND AND TWENTY FOUR

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C
o
o
a
c
6-

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PRESENT

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THE HONOURABLE SRI JUSTICE A.V. RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No.2184 of 2016

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Appeal filed under Section 173 of M.V.Act, Aggrieved by the Order and Decree passed in Original Petition No.409/2011, dated 22"^ day of February, 2013, by not granting the claim of the appellant/petitioner Rs.4,00,000/- and by granting only compensation of Rs.3,04,000/with interest @ 7.5% only by dismissing the Rest of the claim, the present appeal is filed for enhancement of compensation, against the orders in O.P.No.409/2011,dated 22-02- 2013, by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Anantapur.

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Between:

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Smt. Chimbali Eswaramma, W/o Late Sri Pullanna, aged about 48 years, Hindu, Housewife,

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Chimbali Bhaskar Naidu, S/o Late C. Pullanna, Aged about 28 years, Hindu, Both Residents of Marrimakulapalli Village, Tadimarri Mandal, Anantapur District.

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...Appellants/Petitioners

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AND

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Shiva Kumar, S/o Virupana Gowda, Major, Hindu,.Owner of Lorry bearing No.KA-36-6603, Residing at D.No. 1/4, Masrakal Taluk, Deodurga District, Raichur, Karnataka.

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United India Insurance Company Ltd., Rep. by Its Divisional Manager Anantapur. Policy bearing No.240200/31/09/C1/0005877, Valid from 28-22010 to 27-2-2011 (Raichur)

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Jampula Naidu, S/o Venkataramudu, Major, Hindu, Owner^ofEicherVan bearing No.AP-02-X-7306, Residing at D.No.2-757, Dharmavaram Raod, Bathalapalli Village and Mandal, Anantapur District.

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Reliance General Insurance Company Limited, Rep. by^{itsclaimofficer} Anantapur, Policy bearing No. 1815792334003157, valid from 9-1-2010’to 8-12011.

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...Respondents/ Respondents

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(R3 and R4 not necessary parties in this appeal)

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Counsel for the Appellants : Sri Ineni Venkata Prasad

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Counsel for the Respondent No.1 : Sri V Raghunandan Goud Counsel for the Respondent No.2 : Sri P Ramanjaneyulu The Court made the following Judgment:

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY,THE FIRST DAY OF MARCH TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2184^OF 2016

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Between:

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Chimbali Eswaramma, W/o Late Sri Pullanna, aged^about

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48 years, Housewife,

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Chimbali Bhaskar Naidu, S/o Late C. Pullanna, Aged^about

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28 years.

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Both Residents of Marrimakulapalli Village, Tadimarri Mandal, Anantapur District.

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... APPELLANTS

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AND

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Shiva Kumar, S/o Virupana Gowda, Major, Owner of^Lorry bearing No.KA-36-6603, Residing at D.No. 1/4, Masrakal Taluk, Deodurga District, Raichur Karnataka.

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United India Insurance Company Ltd, Rep. by Its^Divisional

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Manager, Anantapur. Policy bearing

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NO.240200/31/09/C1/0005877, Valid from 28-2-2010 to^27-

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2-2011 (Raichur)

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Jampula Naidu, S/o Venkataramudu, Major, Owner of Eicher Van bearingNo.AP-02-X-7306, Residing at D.No.2757, Dharmavaram Raod, Bathalapalli Village and Mandal, Anantapur District.

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AVRB,J MACMA No.2184 of 2016

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Reliance General Insurance Company Limited, Rep, by its claim officer. Anantapur, Policy bearing No. 1815792334003157, valid from 9-1-2010 to 8-1-2011. (R3 and R4 not necessary parties in this appeal)

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...RESPONDENTS

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Appeal is filed under Section 173 of Motor Vehicles Act by the claimants, against the order and decree in O.P.No.409/2011, dated 22.02.2013, by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Anantapur and for enhancement of compensation.

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Counsel for the Appellant(s) : SRI INENI VENKATA PRASAD Counsel for the 2'^^ Respondent: SRI PENUGODLA RAMANJANEYULU

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The Court made the following

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JUDGMENT:

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Challenge in this M.A.C.M.A. is to the award, dated^22.02.2013 in M.V.O.P.No.409 of 2011 on the file of the Court of IV Additional District Judge-cum-Motor Accident Claims Tribunal, Anantapur,^{whereunderthe} learned Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Anantapur, ("Tribunal" for short), as against the claim^{oftheclaimantsto} award compensation of Rs.4,00,000/in their favour^{onaccountofthe} death of the deceased in a motor vehicle accident which was occurred on 26/27-07-2010, granted a sum of Rs.3,04,000/- towards compensation with interest of 7.5%.

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AVRB,J MAGMA No.2184 of 2016

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The claimants in the aforesaid claim felt that the compensation so awarded by the Tribunal is not just compensation, approached^thisCourt by way of the present M.A.C.M.A. The parties to this^M.A.C.M.A will hereinafter be referred to as described before the Tribunal for the sake of convenience.

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The case of the claimants in the M.V.O.P.No.409 of 2011 according to the petition averments, in brief, is that:

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The 1^‘ petitioner is the wife and the 2"*^ petitioner^{isthesonofthe} deceased Chimbali Pullanna (herein after referred as deceased) in the accident in dispute. He was aged about 55 years and healthy. He was earning from business and agriculture Rs.6000/- in his lands and earning Rs. 1,00,000/per annum from agriculture contributing to his family members. On 26.07.2010 the deceased and some other persons were traveling in Eicher Van bearing NO.AP-02-X-7306 from Bangalore to Bathalapalli and when it was proceeding near Maranganahalli village near Chickballapur at 12.00 a.m. i.e., on 26/27.07.2010 one lorry bearing No.KA-36-6603 was proceeding in front of Eicher Van^{andthedriverof} the said lorry driven the same in rash and negligent^{mannerwithout} showing signals and turned the vehicle towards right^{sideoftheroaddue} to which Eicher Van driver could not control the vehicle and dashed against the above lorry which resulted the deceased^{andotherssustained} grievous injuries and they were shifted to the Government Hospital,

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AVRB,J MAGMA No.2184 of 2016

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Chickballapur for treatment. As deceased sustained grievous injuries he was shifted to Bowring Hospital, Bangalore for better treatment. While he was taking treatment in the hospital he died on 27.07.2010 at 7.35 a.m. due to grievous injuries. The accident was occurred due to negligent driving of the driver of the lorry bearing No.KA-36-6603 (herein after referred as offending vehicle). A case was registered in Cr.No.252/2010 by Chickballapur Rural P.S. under section 279, 337, 304(A) IPC against the driver of the offending vehicle lorry. Due to the death of the deceased the petitioners lost earning members in their family and also lost love and affection of him.

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The accident occurred was due to rash and negligent driving of the driver of the offending vehicle in the course of his employment under the respondent who is the owner of the lorry and 2"^^ respondent is the insurer of the said vehicle. The respondents No.3 and 4 are added as proforma parties. Hence respondents No.l and 2 are jointly and severally liable to pay compensation of Rs.4,00,000/- to the petitioners.

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The 1^^ respondent did not choose to file any counter inspite of that he engaged an advocate.

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The material averments of the counter filed on behalf of the 2'"'^ respondent are as follows :

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The claim petition averments are denied in toto. This respondent did not cover any risk to the offending vehicle. The offending vehicle was

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AVRB,J MAGMA No.2184 of 2016

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going in slow manner with all precautions and the Eicher Van bearing NO.AP-02-X-7306 came behind the lorry in rash and negligent^manner without maintaining minimum distance and dashed against the offending vehicle lorry. The accident occurred was only due to rash and negligent driving of the driver of the Eicher van as such this respondent is not liable to pay compensation to the petitioners. On the date^{ofaccidentthe} Eicher Van was plying with unauthorized passengers more than its capacity, as such the accident was occurred. Hence, respondents No.3 and 4 are alone liable to pay compensation to the petitioners. The offending vehicle is a goods carrier but not passengers'^vehicleatthe material time of accident. The driver of the offending^{vehicleandthe1} St respondent violated the policy conditions. The 2"'^ petitioner who is a major earning member is not a dependant on the deceased. The petition is to be dismissed with costs.

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The material averments of counter filed on behalf of the 3 rd respondent are as follows:-

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The petition averments are denied in toto. The offending^vehicleis insured with the 2^^*^ respondent and the policy of respondent was in force on the date of accident. There was no contributory negligence on the part of the driver of the Eicher Van and as such the 2^^^ respondent alone is liable to pay compensation, if any, awarded.

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6 AVRB,J MAGMA No.2184 of 2016

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The material averments of the counter (written statement)^filed on behalf of the 4^^ respondent are as follows:

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There was neither rashness nor negligence on the part^ofthe driver of the Eicher Van bearing No.AP-02-X-7306 at the time of accident. The accident occurred was due to rash and negligent driving of the driver of the offending vehicle lorry. The rest of the allegations in the petition are denied.

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On the basis of the above pleadings, the Tribunal settled the following issues for trial :

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Whether the death of C.Pullanna was due to rash and negligent driving of lorry No.KA-36-6603 by its driver^?

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Whether the petitioners are entitled to compensation ? If so, for what amount and from which respondent ?

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To what relief ?

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During the course of enquiry before the Tribunal, on^behalfofthe claimants P.W.l to P.W.4 were examined and Exhibits A.l to A.5 were marked. On behalf of 4^^^ respondent Ex.Bl copy of its policy and on behalf of 2'^'^ respondent Ex.B2 copy of the policy were marked by consent. But they did not let in any oral evidence.

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The Tribunal on hearing both sides and on considering^theoralas well as documentary evidence, awarded a sum of Rs.3,04,000/-^towards

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AVRB,J MACMA No.2184 of 2016

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the compensation with an interest @ 7.5% per annum^{fromthedateof} petition till the date of deposit and apportioning the compensation amount of Rs.2,00,000/- in favour of the claimant and Rs. 1,04,000/- in favour of 2"^^ claimant. As against the award of the said Tribunal, the claimants filed the present appeal seeking to enhance the compensation.

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Now, in deciding the M.A.C.M.A., the point that arises for consideration is as follows:

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Whether the award dated 22.02.2013 in M.V.O.P.No.409 of 2011 on the file of the Motor Accidents Claims Tribunal Actcum-IV Additional District Judge, Anantapur, is sustainable under law and facts and whether the claimants are entitled to enhance the compensation as prayed for ?

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POINT:-

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Sri Ineni Venkata Prasad, learned counsel for the appellants^would canvass the contention that the Tribunal did not consider the income of deceased properly and fixed the income as Rs.3000/- per month and after deducting of the leaving expenses considered the contributions^of him only to the extent of Rs.2000/per month which needs to be enhanced. He would further submit that the claimants are entitled to conventional heads in view of the National Insurance Co. Ltd v.

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AVRB,J MACMA No.2184 of 2016

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Pranay Sethi's case^ Hence, the compensation is liable to be enhanced.

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Learned counsel appearing for the 2"^^ respondent would^canvass the contention that the Tribunal rightly looked into the income of deceased as that of Rs.3000/- per month as claimants did not file any proof regarding the income and the Tribunal reasonably fixed the income, as such there are no merits in the M.A.C.M.A.

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No arguments are advanced on behalf of the respondent.

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As against the findings of the tribunal that the accident^occurred was due to rash and negligent of driving of the driver of the offending lorry bearing No.KA-36-6603, there are no cross objections. The evidence of P.W.l who was wife of the deceased coupled^withevidence of P.W.2 the direct witness to the occurrence and further Ex.Al copy of F.I.R and Ex.A5 the charge sheet goes to reveal that the police conducted investigation and filed charge sheet against the driver of offending vehicle i.e., lorry bearing No.KA-36-6603. So the claimants^{beforethetribunal} categorically proved that the accident was occurred on account of rash and negligent driving of the driver of the lorry bearing^{No.KA-36-6603.} Further the evidence on record in the form of post-mortem report and inquest report proves the death of deceased in the motor vehicle

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2017 see Online Se 1270

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AVRB,J MAGMA No.2184of 2016

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accident. These finding of facts are not sought to be challenged by respondents No.l and 2 who are contesting this claim.

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Now coming to the quantum of compensation, the claim of petitioners was that the deceased was earning Rs.6000/- per month by doing business and further he was getting income of Rs. 1,00,000/- by way of agriculture. As seen from the evidence of P.W.l,^{shedidnotfile} any proof regarding the income of the deceased. During the crossexamination, she deposed that her husband was doing cement business. but she admits that she did not file any proof regarding^{theincomeofher} husband. If really, the husband of claimant was doing any business, definitely there would have been proof to show his income. So apart from this, the claimants did not file any proof as^{towhetherthedeceased} was an agriculturist and he was cultivating his lands. No pleading was there in this regard and even no proof was there. However, considering the age of the deceased and the period of accident i.e., in the year 2010 the tribunal fixed the income of deceased notionally as that of Rs.3000/per month, thereby, Rs.36,000/- per year. This exercise made by the tribunal fixing the income of deceased on notional theory appears to be reasonable. The tribunal followed the decision in Sarla Verma v. Delhi Transport Corporation^ and deducted 1/3*^^ of the income^ofdeceased fixed notionally towards his personal expenses and^{consideredtherestof}

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2 2009 Aa li98(SC) -

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the income as his future contributions to the family. Apart from this, in view of the aforesaid decision in Saralavarma's case for the age group of 55 years the proper multiplier is 'll'. So, the tribunal multiplied the amount of Rs.24,000/- X 11 and arrived it as future contributions as that of Rs.2,64,000/-. The Tribunal awarded a sum of Rs. 10,000/- towards costs of transportation of the deceased dead body and it is reasonable. The Tribunal further awarded Rs. 10,000/- towards loss of consortium, Rs. 10,000/towards loss of love and affection of deceased and Rs. 10,000/- towards funeral expenses. As the claimants did not prove the factum of the so called monthly income of Rs.6000/- and further the so called agricultural income of Rs. 1,00,000/- per year, the exercise made by the tribunal in fixing the income of deceased as Rs.3000/- per month is reasonable.

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In view of law laid down by the Hon'ble Supreme Court in Pranay Sethi's case under the conventional heads under the consortium, loss of love and affection and funeral expenses are Rs.70,000/- together. The 1'^ petitioner being wife of deceased is entitled for consortium. Considering the same, it is reasonable to award Rs.70,000/- under conventional heads as against the award of the tribunal for sum of Rs.30,000/- under these heads. Under these circumstances, the compensation amount is liable to be enhanced accordingly.

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AVRB,J MAGMA No.2184of 2016

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In the result, the M.A.C.M.A is allowed in part enhancing the compensation payable by the respondents No.l and 2 from Rs.3,04,000/to Rs.3,44,000/- with proportionate costs with the interest 7.5% per annum on the difference amount of Rs.40,000/- from the date of petition till the date of deposit. The 2"^ respondent insurance company of the offending vehicle is directed to deposit the difference of the compensation amount with upto date interest and proportionate costs^{withinonemonth} from the date of this award and on such deposit the 1 St petitioner/claimant alone is entitled to receive the difference amount in lump sum.

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The Registry is directed to forward the record along with copy of the order to the trial Court on or before 12.03.2024.

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Consequently, miscellaneous applications pending, if any, shall

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stand closed.

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SD/- K TATA RAO DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

The Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District RPAD)^^ Anantapur District, (with records if any) (by

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The Registrar(Judicial), High Court of Andhra Pradesh, at Amaravathi.(for Information and Necessary Action)

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One CC to Sri Ineni Venkata Prasad, Advocate [OPUC] 4. One CC to Sri V Raghunandan Goud, Advocate [OPUC] 5. One CC to Sri P Ramanjaneyulu, Advocate [OPUC] 6. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the lower court records)

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