Nelanuthula Prasuna Vs K.Venkata Rao

NELANUTHULA SRAVANI, D/O LATE SREENIVAS, BEING MINOR REP BY THEIR MOTHER AND GUARDINA 3RD APPELLANT. RESIDENT OF 9-9-36, PRATAPAGIRIVARI STREET, RAILPET, GUNTUR

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NELANUTHULA ADITYA VARDHAN, S/O LATE SREENIVAS, BEING MINOR REP BY THEIR MOTHER AND GUARDIAN 3RD APPELLANT RESIDENT OF 9-9-36, PRATAPAGIRIVARI STREET, RAILPET, GUNTUR

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...APPELLANT(S)

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AND

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2

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K VENKATA RAO, S/O YESOBU, OCC: DRIVER, DOOR NO. 1-87, SANTHANUTALAPADU VILLAGE & MANDAL, PRAKASAM DISTRICT

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Y NARASIMHA RAO, S/O SOMA SUNDARA RAO, C/O S.SREENIVASA RAO, S/O NARASIMHA SWAMY, SANTHANUTALAPADU VILLAGE & MANDAL, PRAKASAM DISTRICT (OWNER OF THE VEHICLE)

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UNITED INDIA INSURANCE COMPANY LIMITED, REP BY ITS BRANCH MANAGER, BIRUDARAJU TOWERS, TRUNK ROAD, ONGOLE, PRAKASAM DISTRICT.

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toUnder order 173 Appeal against the Decree and Order in M.V.O.P.No. 425 of 2009 on the file of the Principal District Judge, Prakasam at Ongole dated 3/6/2013.

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Counsel for the Appellant(S):

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1.K SRINIVAS

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Counsel for the Respondent(S):

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1.P SATYA MANJULA

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The Court made the following:

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THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA

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M.A.C.M.A.No.1699 of 2013

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JUDGMENT :

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Introductory:

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Claimants before the Chairman, Motor Accident Claims Tribunal-cum-the Principal District Judge, Prakasam at Ongole in M.V.O.P.No.425 of 2009 (for short “the learned MACT”) filed the present appeal under Section 173 of the Motor Vehicles Act, questioning the just and adequate nature of compensation awarded in a sum of Rs.20,08,880/- as against the claim made for Rs.40,00,000/-.

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Respondent No.2, the owner of the Tata Sumo bearing No. AP 7M 4597(hereinafter referred to as “the offending vehicle”) remained ex parte . Respondent Nos.1, the driver of the offending vehicle and Respondent No.3, the Insurance Company with which the offending vehicle was insured by the owner contested the case.

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Under the impugned order and decree, liability was imposed jointly and severally on all the respondents.

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For the sake of convenience, parties will be referred to as the claimants and the respondents.

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Case of the claimants:

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Claimant Nos.1 and 2 are the parents, claimant No.3 is the wife and claimant Nos.4 and 5 are the children of one Nelanuthala Sreenivas (hereinafter referred to as “the deceased”).

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The deceased was working as Sub-Editor, News Today (P) Limited, Eenadu Daily Paper, Ongole, aged about „43‟ years and on 14.06.2009, after completion of his work at his office situated at Pernamitta, he was proceeding in the auto belonging to the Eenadu office and when the offending vehicle reached near Milk Chilling Centre, Ongole on Ongole-Kurnool road at about 2:00 a.m., the offending vehicle driven by Respondent No.1, owned by Respondent No.2 insured with Respondent No.3, hit the auto whereby the accident occurred. After the accident, the deceased and other injured were shifted to RIMS Hospital, Ongole.

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A case in crime No.238 of 2009 was initially registered for the offences under Section 337 and 304-A of IPC and thereafter the driver of the offending vehicle was charge sheeted.

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The deceased was earning Rs.28,352/- as salary. He succumbed to the injuries. The claimants, being the legal heirs and dependents, are entitled for just and reasonable compensation.

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Case of Respondent No.1:

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9(i). Claimants are put to strict proof of all the allegations and petitioners‟ allegations are incorrect. The auto dashed against the Sumo and there was negligence on the part of the driver of the Auto. The petitioner is bad for nonjoinder of auto, owner and driver and its Insurance Company etc. He is having a valid and effective driving license.

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(ii). He did not deny the fact of being the driver of the offending vehicle and the Police filing a charge sheet against him etc.

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Case of Respondent No.3-Insurance Company:

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Coverage of insurance policy and the same being in force, compliance of conditions of policy, negligence of the driver of the offending vehicle, absence of contribution from the driver of the auto, valid and effective driving licence to

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the driver of the offending vehicle, age, occupation and income of the deceased, dependency of claimants, death of deceased due to accident etc. relevant aspects shall be strictly proved by the claimants.

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On the strength of pleadings, the following issues were settled for trial by the learned MACT:

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Whether the deceased Nelanuthala Sreenivas died in motor vehicle accident on 14.06.2009 due to rash and negligent driving of the driver of the Sumo bearing No.AP 7M 4597 belonging to the second respondent? 2. Whether the petitioners are entitled to claim for compensation? If so, to what amount and against whom?

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To what relief?

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12. Evidence before the learned MACT:

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	Description	Remarks
Oral evidence	P.W.1:N. Lakshmi Kameswari	Claimant No.3
	P.W.2:K. Vijay Kumar	Auto Driver and eye witness to the accident
	P.W.3: P. Sriram	Manager, H.R., Eenadu Newspaper
	R.W.1: A. Suseela Devi	Assistant Manager in the Respondent No.3 Insurance Company.
Documentary evidence	Ex.A1: Certified xerox copy of First information Report in Cr.No.258/2009 of Ongole Taluk P.S. Ex.A2: Certified Xerox copy of Inquest Report of the deceased Nelanuthula Sreenivas. Ex.A3: Certified Xerox copy of Postmortem Certificate the deceased Nelanuthula Sreenivas. Ex.A4: Certified Xerox copy of Accident Report from Motor Vehicles Inspector in Cr.No.258/2009 of Ongole Taluk P.S. Ex.A5: Certified Xerox copy of charge sheet in Cr.No.258/2009 of Ongole Taluk P.S. Ex.A6: Salary certificate of the deceased N. Srinivas issued by P. Sriram (P.W.3), Additional Manager, HR, Newstoday Private Limited.	On behalf of the petitioner(s).
	Ex.B1: Certified copy of Package Policy No.150901/31/08/01/00000996 issued by United India Insurance Company Limited in respect of the vehicle bearing No.AP 07 M 4597.	On behalf of the Respondents.

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Findings of the learned MACT:

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13(i). Negligence of the driver of the offending vehicle, death of deceased due to accident stands acceptable with the evidence covered by FIR, inquest report, post-mortem report, MVI report, charge sheet and evidence of one K.Vijay Kumar (P.W.2), the eye-witness, who is the driver of the auto. The occupation and income of the deceased acceptable with the evidence Ex.A6-the salary certificate, which shows that the deceased was drawing a gross salary of Rs.28,765.90/- and net salary of Rs.25,448.90/- rounded to Rs.25,449/-.

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(ii). The learned MACT deducted 1/3^rd towards personal expenditure, taken Rs.16,966/- per month and Rs.2,03,593/- per year. However, considering the arguments of the Insurance Company that legal representatives of the deceased were given a job on compassionate grounds and that legal representative of the deceased are getting salary of Rs.5,000/- to Rs.6,000/per month and that Rs.1,00,000/- was paid towards settlement of death benefit apart from Rs.1,00,000/- towards gratuity, reduced the income by Rs.72,000/per annum (Rs.6,000/- per month x 12) and adopted the annual income at Rs.1,31,592/-. Finally awarded Rs.19,73,880/- towards loss of dependency applying multiplier „15‟.

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(iii). Further, Rs.10,000/- each was awarded by the learned MACT under the heads of loss of consortium, love and affection and loss of estate and Rs.5,000/- towards funeral expenses.

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(iv). In all, the learned MACT awarded compensation of Rs.20,08,880/-.

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Arguments in the appeal:

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14. For the claimants:

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(i). The compensation awarded is very low not in tune with the precedential guidance.

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(ii). The compassionate appointment cannot be a ground for deduction of amount.

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(iii). Adoption of multiplier is not properly done.

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(iv). Gross income should have been taken into consideration.

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15. For the respondent-Insurance Company:

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(i). Compensation awarded is excessive.

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(ii). There are no grounds to interfere.

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(iii). The compassionate appointment given to family member is rightly

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considered by the Court.

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There is no appeal nor any cross-objections filed by the Insurance Company and the present appeal is filed by the claimants expressing the dissatisfaction against the quantum of compensation awarded by the learned MACT. Therefore, the negligence of the driver of the offending vehicle, liability of the driver, owner and Insurance Company, death of deceased due to accident entitlement of claimants for compensation are all out of dispute.

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Perused the record. Thoughtful consideration is given to the arguments advanced by the both sides.

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The points that arise for determination in this appeal are:

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(1) Whether the compensation of Rs.20,08,880/- awarded by the learned MACT is just and reasonable or requires enhancement and if so, on what grounds and to which extent?

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(2) What is the result of the appeal?

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Point No.1:

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Precedential guidance:-

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a) Adoption of Multiplier, Multiplicand and Calculation:

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19(i). Hon‟ble Apex Court to have uniformity of practice and consistency in awarding just compensation provided certain guidelines in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr.¹ vide paragraph Nos.18 and 19, while prescribing a table directed adoption of suitable multiplier mentioned in column No.4 of the table. As per the observations in the judgment the claimants have to establish the following:

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Age of the deceased.

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Income of the deceased.

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Number of dependents.

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(ii). Hon‟ble Apex Court directed certain steps while determining the compensation, they are:

1 2009 (6) SCC 121

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Step No.1:

Ascertain the multiplicand, which shall be the income of the deceased he / she should have contributed to the dependents and the same can be arrived

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after deducting certain part of personal living expenses of the deceased.

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Step No.2:

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Ascertaining Multiplier with reference to the age of the deceased. This shall be as per the table provided in judgment itself.

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Step No.3:

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Calculation of the compensation.

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Final Step:

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After calculation adding of certain amount towards conventional heads towards loss of estate, loss of consortium, funeral expenditure, cost of transport, cost of medical expenses for treatment of the deceased before the death etc. are advised.

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b) Adding of future prospects:

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20(i). Enhancing the scope for awarding just compensation, the Hon‟ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others² case guided for adding of future prospect. In respect of permanent employment, 50% where the deceased is below 40 years, 30% where the deceased is 40-50 years and 15% where the deceased is 50-60 years.

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2 2017(16) SCC 680

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(ii). The actual salary to be taken shall be after deducting taxes. Further, in respect of self employed on fixed salary addition is recommended, at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years, at 10% where the deceased is between 50-60 years. Further, adding of compensation for loss of estate, loss of consortium and funeral expenses at Rs.15,000/- and Rs.40,000/- and Rs.15,000/- respectively is recommended by Hon‟ble Apex court with an addition of 10% for every three years in Pranay Sethi’s case.

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c) Loss of Consortium under the heads of parental and filial consortium:

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Further enlarging the scope for awarding just and reasonable compensation in Magma General Insurance Company Ltd. v. Nanu Ram and Others³ , Hon‟ble Apex Court observed that compensation can be awarded

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under the heads of loss of consortium not only to the spouse but also to the children and parents under the heads of parental and filial consortium.

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d) Just Compensation:

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In Rajesh and others vs. Rajbir Singh and others⁴ , the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows:

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10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh,

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3 (2018) 18 SCC 130

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4 (2013) 9 SCC 54

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(2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280)

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“10. Thereafter, Section 168 empowers the Claims Tribunal to „make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be „just‟. There is no other limitation or restriction on its power for awarding just compensation.”

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The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213]

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11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

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Analysis of Evidence:

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Ex.A6 salary certificate is indicating gross salary at Rs.28,765.90/- per month and deductions towards PF, GLIC, LIC, etc., in a sum of Rs.3,317/-, whereby the net salary drawn by deceased was Rs.25,448.90/- per month. Hence, the salary adopted at Rs.25,449/- per month by the learned MACT need not be prima facie faulted.

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The age of the deceased as per post-mortem is „43‟ years. The deceased was in fixed employment although in private sector. Therefore, there can be addition of 30% to his income, whereby to his income taken at

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Rs.25,449/- per month, Rs.7,635/- per month can be added. Then, his income comes to Rs.33,084/- per month. If 1/3^rd of the same is deducted towards personal expenditure, his contribution to the family comes to around Rs.22,100/- per month and Rs.2,65,200/- per annum, which can be considered as multiplicand. For the age group of 41-45 years, the multiplier applicable is „14‟ as per Sarla Verma case. Then, the entitlement of claimants for compensation under the head of loss of dependency comes to Rs.37,12,800/(Rs.2,65,200/- x 14).

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Under the conventional heads, an amount of Rs.15,000/- each towards funeral expenditure and loss of estate is required to be awarded. Further, under loss of consortium, all the claimants viz. for the parents towards filial consortium, for the wife towards spousal consortium and for the children towards parental consortium entitled at the rate of Rs.40,000/- each, therefore Rs.2,00,000/-, can be added as compensation. Then, the entitlement of the claimants for compensation comes to Rs.39,42,800/-.

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The learned MACT deducted Rs.72,000/- from the accepted income considering the compassionate appointment given to the wife of the deceased. The salary drawn by the family member / legal representative of the deceased, who got compassionate appointment cannot be deducted is the proposition of law settled by the Hon‟ble Apex Court in Vimal Kanwar and Ors. Vs. Kishore

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Dan and others⁵ , while interpreting the pecuniary advantages received. It is observed by the Hon‟ble Supreme Court that the salary receivable by the dependents upon compassionate appointment of a victim does not come under pecuniary advantage on par with Provident fund, pension, Life Insurance amount receivable by the claimant and the same do not come within the purview of Motor Vehicles Act to be termed as pecuniary advantage. Relevant observations are made in paragraph Nos.20 and 21 of the said judgment, which read as follows:

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20. The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as „pecuniary advantage‟ liable for deduction”.

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21. “Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as “pecuniary advantage” that comes under the periphery of the Motor Vehicles Act and any amount

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5 2013(7) SCC 476

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received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.

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Therefore the contention of Insurance Company that the salary paid to

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the legal representatives on compassionate appointment shall be deducted from the income of the deceased is not tenable.

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In view of the reasons and evidence referred above, the entitlement of

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the claimant for reasonable compensation in comparison to the compensation awarded by the learned MACT is found as follows:

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	*Head*	*Compensation* *awarded by* *the learned MACT*	*Fixed by this* *Court*
(i)	Loss of dependency	Rs.19,73,880/-	Rs.37,12,800/-
(ii)	Loss of estate	Rs.10,000/-	Rs.15,000/-
(iii)	Loss of Consortium	Rs.10,000/-	Rs.2,00,000/- @ Rs.40,000/- to each claimant
(iv)	Funeral expenses	Rs.5,000/-	Rs.15,000/-
(v)	Loss of love and affection	Rs.10,000/-	-Nil-
	Total compensation awarded	Rs.20,08,880/-	Rs.39,42,800/-
	Interest(per annum)	9%	7.5%

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For the reasons aforesaid and in view of the discussion made above, the

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point framed is answered concluding that the claimants are entitled for compensation of Rs.39,42,800/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization and the order and decree

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dated 03.06.2009 passed by the learned MACT in M.V.O.P.No.425 of 2009

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require modification accordingly.

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Point No.2:

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In the result, the appeal is allowed-in-part as follows:

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Compensation:

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(i) The compensation awarded by the learned MACT at Rs.20,08,880/with interest at the rate of 9% per annum is modified and enhanced to Rs.39,42,800/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization.

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Apportionment & Withdrawal:

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(ii) (a) Rs.4,00,000/- each is apportioned to the share of claimant Nos.1 and 2 / parents of the deceased with proportionate interest.

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(b) Rs.19,42,800/- is apportioned to the share of claimant No.3 / wife of the deceased with proportionate interest and costs.

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(c) Rs.6,00,000/- each is apportioned to the share of claimant Nos.4 and 5 / children of the deceased with proportionate interest.

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(d) The claimants are entitled to withdraw the amount at once on deposit.

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(e) The apportionment shall be with proportionate interest and it shall be inclusive of the compensation awarded under the head of loss of consortium.

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Liability:

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(iii) Respondents before the learned MACT are jointly and severally liable. However, Respondent No.3 is liable to pay the compensation in view of the Insurance Policy.

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Time:

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