Gurram Satyanarayana and 3 Others Vs Rachuri Srini and 2 Others

Feeling aggrieved by the order and decree dated 15.03.2007 passed in M.V.O.P.No.190 of 2004 by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, East Godavari, Rajahmundry (for short “the learned MACT”), claimants in the case filed the present appeal. Under the impugned decree and order, the learned MACT awarded a compensation of Rs.1, 84,500/as against the claim made for Rs.3,00,000/- by the claimants for the death of one Gurram Krishna (hereinafter referred to as “the deceased”) in a motor vehicle accident, while allowing the claim against Respondent Nos.1 and 2, the driver and the owner of the offending vehicle and dismissing the same against the Respondent No.3 / Insurance Company.

¶33

Claimant Nos.1 and 2 are the parents, claimant No.3 is the divorced sister and claimant No.4 is niece of the deceased.

¶34

Respondent Nos.1 and 2 remained ex parte. Respondent No.3 Insurance Company contested the case.

¶35

Case of the claimants:

¶36

On 04.09.2003 at about 11:00 am, deceased was near Vengamamba

¶37

quarry, Yeleswaram, Respondent No.1 the driver of the tractor bearing No. AHW 6327 (hereinafter referred to as “the offending vehicle”) came in a rash and

¶38

4

¶39

negligent manner and lost control over the tractor which fell down on the deceased causing death of the deceased. Deceased was hale and healthy; aged 25 years; working as clerk in Vengamamba Engineering works, Yeleswaram; earning Rs.3,000/- per month and he was the sole bread winner for the family. Negligence of the driver of the offending vehicle is the cause for accident. Respondent No.2 is the owner of the offending vehicle. Respondent No.3 is the insurer. Hence all respondents are liable to pay compensation.

¶40

Respondent No.3 Insurance Company resisted the claim, putting the claimants to strict proof of all the allegations including negligence of the driver of the offending vehicle, valid driving license for him, age, occupation, income of the deceased and dependency of claimants. It is further claimed by the Insurance Company that the deceased was on the vehicle at relevant time and the same is unauthorized travel and a violation of policy conditions.

¶41

Evidence before the learned MACT:

¶42

On behalf of the claimants:

¶43

Claimant No.1 deposed as P.W.1. one Bhathina Chanti working at Quarry and an eye witness was examined as P.W.2. Ex.A1-FIR, Ex.A2-MVI Report, Ex.A3-post mortem certificate, Ex.A4-Inquest Report, Ex.A5-Charge sheet and Ex.A6-Certificates indicating salary of deceased Rs.2,200/- per month were got marked.

¶44

5

¶45

On behalf of the Respondents:

¶46

K. Narasimhamurthy, ASI, Yeleswaram Police Station was examined as R.W.1 and one A.V. Rohini Kumar, Officer of Insurance Company was examined as R.W.2 and Ex.B1-Case Diary part-1 maintained by Police, Ex.B2-Policy copy, and Ex.B3-B-Register / RC of the motor vehicle were got marked.

¶47

Findings of the learned MACT:

¶48

On negligence:

¶49

Evidence of P.W.2 is indicating the negligence of Respondent No.1, the

¶50

driver of the offending vehicle. P.W.2 is a direct witness who is cited in the charge sheet as well as in the inquest report as witness.

¶51

Deceased was working as labour supervisor. Ex.A5 charge sheet laid against the Respondent No.1 driver of the offending vehicle. Therefore, the accident is attributable to the negligence of Respondent No.1.

¶52

On compensation:

¶53

The income of the deceased is Rs.2,200/- per month, as per Ex.A6 Salary Certificate. As per evidence of P.W.1 and 2 deceased was earning Rs.3,000/per month but there is no documentary evidence. Person who issued Ex.A6 is not examined. Therefore, the income can be taken at Rs.50/- per day and Rs.15,000/- per month. If 1/3rd is deducted towards personal expenses, the contribution of the deceased to family comes to Rs.1,000/- per month and Rs.12,000/- per annum. Multiplier applicable for the age of the deceased is „17‟.

¶54

6

¶55

Then the total comes to Rs.2,04,000/-. But, multiplier applicable to the age of the mother of the deceased is „15‟. Then the total loss of dependency comes to Rs.1,80,000/-. For funeral expenditure and loss of estate, claimants are entitled for Rs.2,000/- and Rs.2,500/- respectively.

¶56

On liability:

¶57

Sitting on the tractor by the side of the driver is not permissible. Whereas inquest report shows that deceased was sitting by the side of the tractor driver. As per the authorities vide AIR 2003 Supreme Court 1009, 2005 ACJ 721, 2006 ACJ 2582 and 2007 ACJ 215 , if an injured or deceased sitting by the side of the driver the claimants are entitled for recovery of amount from the owner of the vehicle and the Insurance Company is not liable. The deceased was not authorized to travel on the vehicle. Therefore, the Insurance is not liable owner and driver of the offending vehicle alone are liable.

¶58

Dissatisfied by the quantum of compensation and exoneration of Insurance Company from the liability, the claimants are before this Court by filing the present appeal.

¶59

Arguments in the appeal:

¶60

For the appellants:

¶61

13(i). Learned MACT ought to have held the Insurance Company is liable to pay the compensation.

¶62

7

¶63

(ii). Learned MACT erred in adopting multiplier applicable to the mother of the deceased.

¶64

(iii). Learned MACT did not properly appreciate the facts and evidence.

¶65

(iv). Entitlement of claimants not considered in tune with the settled law and

¶66

practice.

¶67

For the Insurance Company:

¶68

14(i). The travel of the deceased on the tractor is unauthorized.

¶69

(ii). Learned MACT has rightly exonerated the Insurance Company from the liability.

¶70

(iii). Negligence of the deceased also should be taken into consideration.

¶71

(iv). There are no grounds to interfere.

¶72

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

¶73

The points that arise for determination in this appeal are:

¶74

1. Whether the pleaded accident dated 04.09.2003 has occurred due to the negligent driving of the offending vehicle by its driver, and whether there was any contributory negligence on the part of the deceased?

¶75

1. Whether the deceased was travelling in the offending vehicle as an unauthorized passenger at the time of accident and whether the Insurance Company is entitled for exoneration from liability on that count?

¶76

8

¶77

Whether the claimants are entitled for compensation, and if so, to what quantum; and what is the liability of the respondents? and whether the compensation of Rs.1,84,500/- arrived by the learned MACT is just and reasonable, or requires any modification, and if so, to what extent?

¶78

What is the result of the appeal?

¶79

Point No.1:

¶80

Precedential Guidance:

¶81

17(i). It is relevant to note that in view of the summary nature and mode of enquiry contemplated under Motor Vehicles Act and social welfare nature of legislation the Tribunal shall have holistic view with reference to facts and circumstances of each case. It is sufficient if there is probability. The principle of standard of proof, beyond reasonable doubt cannot be applied while considering a claim seeking compensation for the death or the injury on account of road accident. The touch stone of the case, the claimants shall have to establish is preponderance of probability only. The legal position to this extent is settled and consistent.

¶82

17(ii). The Hon‟ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation¹ , in para 15 observed as follows:

¶83

“ 15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. 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

¶84

1 2009 (13) SCC 530

¶85

9

¶86

possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties..”

¶87

Evidence:

¶88

Ex.A1 is the FIR registered against one R. Srinu, driver of the offending vehicle. Ex.A2 is the MVI Report indicating the involvement of the offending vehicle. Ex.A5 is the charge sheet laid against the driver of the offending vehicle, indicating the negligence of the driver of the offending vehicle.

¶89

The driver and owner of the offending vehicle remained ex parte. Therefore, there is no denial by the proper person as to negligence. Hence, the evidence on record is sufficient to believe the negligence of the driver of the offending vehicle. Therefore, this point is answered in favour of the claimants and against the respondents.

¶90

Point No.2:

¶91

P.W.1 one Gurram Satyanarayana, stated that the deceased was proceeding towards the office from the quarry. The driver of the offending vehicle was also proceeding from the quarry and due to rash and negligent driving, he fell upon the deceased, who was going to work in the course of the employment as a clerk of the company. During cross examination of P.W.1, he has stated that the deceased did not sit by the side of the driver of the truck.

¶92

10

¶93

P.W.2 one Bhathina Chanti arrayed as a witness for inquest report and shown as L.W.3 in the charge sheet, deposed that he was working in Vengamamba quarry, Yeleswaram. His specific evidence is that on 04.09.2003 at about 11:00 A.M., he and other quarry workers were working at Vengamamba quarry. The deceased was supervising P.W.2 and other workers in the quarry. Then offending vehicle, driven by its driver (Respondent No.1), came in a rash and negligent manner and while descending the tractor towards the down gradient of the quarry, the driver lost control and the tractor turned turtle and fell upon the deceased, Gurram Krishna, who sustained grievous fractures to his legs and injuries to all over the body and while undergoing treatment, the deceased succumbed to injuries on 05.09.2003.

¶94

During cross examination, P.W.2 has stated that he was working in the company for ten years. The deceased was discharging his duties as Supervisor by noting the black metal heaps at the time of accident. He has denied the suggestion that the deceased sat by the side of the tractor and trailer at the time of the accident.

¶95

The Insurance Company relying on the evidence of R.W.1 and Ex.B1. R.W.1 is said to be the ASI working in Yeleswaram Police Station. He has confirmed Ex.A1-FIR and Ex.A5-Charge Sheet, which were marked. Ex.B1 is the Case Dairy Part-I, which was marked subject to objection. He has stated that the deceased was sitting on the tractor. During cross-examination, he has stated

¶96

11

¶97

that by the date of accident, he was not working in Yeleswaram Police Station. He did not record the statement nor registered the case. He was not working there at the time of filing of charge sheet on 17.09.2003. He has no personal knowledge of the case.

¶98

Competence of R.W.1, who speak about the incident is only based on the record. R.W.1 can speak about the record if he is in any way connected to the record while it was prepared. An official record, if prepared in discharge of official function and the person who prepared records speaks about it, such record and contents therein will attain creditability and can be relied. The admissions of R.W.1 that he was neither working in Yeleswaram Police Station at

¶99

the time of registration of case nor at the time of filing of charge sheet is an important aspect missed the attention of the learned MACT in accepted his version.

¶100

Ex.A1-FIR and Ex.A5-Charge sheet are indicating that the deceased was sat on the tractor. But the person competent to speak about the contents of Ex.A1 or Ex.A5 did not say anything. The documents Ex.A1 to Ex.A5 Police Record can be the basis to believe the occurrence of the accident and involvement of the offending vehicle and injured or deceased being the victim. But, with regard to certain disputed aspects when there is some positive evidence is there, the same will have the precedence over the contents of the documents.

¶101

12

¶102

The persons who competent to speak about the incident are:

¶103

(i) The deceased is no more.

¶104

(ii) The driver of the offending vehicle is not examined and he remained ex parte and

¶105

(iii) Any other eye witness to the accident.

¶106

One among them eye witnesses is P.W.2. His evidence is clear and categorical that the deceased was supervising him and other workers in the quarry when the tractor turned turtle and fell on the deceased. Without there being any rebuttal evidence, discarding the evidence of P.W.2 is not possible. During cross-examination, motive for P.W.2 to speak against the Insurance Company is not elicited. P.W.2, who deposed before the Court did not shake during the cross-examination and he is cited as witness in the Ex.A5-charge sheet. His oral evidence is contradictory to the version in the charge sheet. Charge sheet is not always conclusive. In the contents of the charge sheet and the oral version of the person referred in the charge sheet, if contradictory, the oral version available before the Court will certainly gain more credibility and dependability.

¶107

13

¶108

R.W.1 is in no way concerned with the crime record. He was attached to Police Station sometime later to the filing of the charge sheet.

¶109

When evidence of P.W.2 and R.W.1 are examined in juxtaposition, the evidence of P.W.2 required to be given more weight as his presence at the time of accident is not disputed by the respondent Insurance Company and even otherwise his presence is so probable. Therefore, the theory that the deceased was travelling on the tractor, canvassed on behalf of the insurance company found not acceptable. Therefore, the findings of the learned MACT to that extent are required to be ignored.

¶110

Even otherwise, the accident occurred within the precincts of the quarry. It is not as if the deceased was travelling on the tractor from one destination to another. He was supervising work at the quarry. Therefore, the theory canvassed by the claimants, supported by P.W.2 eye witness is fit to be believed.

¶111

When the fact that the deceased travelling on the tractor is not shown with tenable evidence, applicability of the judgments referred by the learned MACT and relied on by the Insurance Company does not arise to exonerate the Insurance Company from liability. Therefore, the Insurance Company is not entitled for exoneration from its liability. In the present case on facts, the deceased will come under the expression of third party.

¶112

14

¶113

In view of the discussion made above, the point framed is answered in

¶114

favour of the claimants and against the Insurance Company concluding that Respondent No.3 Insurance Company is also liable.

¶115

Point No.3:

¶116

Quantum of Compensation:

¶117

Precedential guidance:-

¶118

a) Adoption of Multiplier, Multiplicand and Calculation:

¶119

33(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.² 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:

¶120

Age of the deceased.

¶121

Income of the deceased.

¶122

Number of dependents.

¶123

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

2 2009 (6) SCC 121

15

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

¶128

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

¶129

Step No.2:

¶130

Ascertaining Multiplier with reference to the age of the deceased. This

¶131

shall be as per the table provided in judgment itself.

¶132

Step No.3:

¶133

Calculation of the compensation.

¶134

Final Step:

¶135

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.

¶136

b) Adding of future prospects:

¶137

34(i). Enhancing the scope for awarding just compensation, the Hon‟ble Apex

¶138

Court in National Insurance Company Ltd. v. Pranay Sethi and Others³ 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

¶139

and 15% where the deceased is 50-60 years.

¶140

3 2017(16) SCC 680

¶141

16

¶142

(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.

¶143

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

¶144

Further enlarging the scope for awarding just and reasonable compensation in Magma General Insurance Company Ltd. v. Nanu Ram and Others⁴ , Hon‟ble Apex Court observed that compensation can be awarded 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.

¶145

d) Just Compensation:

¶146

In Rajesh and others vs. Rajbir Singh and others⁵ , the Hon‟ble Supreme

¶147

Court in para Nos.10 and 11 made relevant observations, they are as follows:

¶148

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,

¶149

4 (2018) 18 SCC 130

¶150

5 (2013) 9 SCC 54

¶151

17

¶152

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

¶153

“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.”

¶154

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]

¶155

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.

¶156

Analysis of Evidence:

¶157

As per P.W.1, the deceased was working as a supervisor and earning Rs.3,000/- per month. As per Ex.A6, the deceased was getting Rs.2,200/- per month. The age of the deceased was „25‟ years and he was reportedly working as a supervisor even the recitals in other documents also indicate that the deceased was working as a supervisor. Therefore, acceptance of his income at Rs.2,200/- per month (at the rate of Rs.75/- per day) cannot be faulted. In view of the age of the deceased being „25‟ years at around 30% of the income can be added towards future prospects, whereby his income can be accepted at Rs.3,000/- per month, which comes to Rs.36,000/- per annum.

¶158

18

¶159

It was not stated that the deceased was married. The claimants are his parents, divorced sister and niece. Therefore, the deceased is to be considered as an unmarried / bachelor, whereby 50% of the income can be deducted towards personal expenditure. Whereby, the income of the deceased can be taken at Rs.18,000/- per annum. Contribution of the deceased to the claimants can be taken at Rs.18,000/- per annum, which can be considered as the multiplicand. The multiplier applicable to age of the deceased is „18‟. Then, the entitlement of claimants under the head of loss of dependency comes to Rs.3,24,000/-. Both parents are entitled for loss of filial consortium of Rs.80,000/-(Rs.40,000/- each). The claimants are further entitled for Rs.15,000/each under the heads of loss of estate and funeral expenditure as per the settled precedential guidance.

¶160

In the light of the precedential guidance and in view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to the compensation awarded by the learned MACT is as follows:

¶161

	*Head*	*Compensation awarded* *by the learned MACT*	*Fixed by this* *Court*
(i)	Loss of dependency	Rs.1,80,000/-	Rs.3,24,000/-
(ii)	Loss of estate	Rs.2,500/-	Rs.15,000/-
(iii)	Loss of Consortium (towards filial consortium)	-Nil-	Rs.80,000/- (@Rs.40,000/- each x 2)
(iv)	Funeral expenses	Rs.2,000/-	Rs.15,000/-
	Total compensation awarded	Rs.1,84,500/-	Rs.4,34,000/-

¶162

19

¶163

For the reasons aforesaid, it is found that the claimants are entitled for a compensation of Rs.4,34,000/-. Considering the facts and circumstances of the case and in view of the long pendency of case, the entitlement of the claimants for interest component is restricted to 6% per annum only. All the respondents are jointly and severally liable. Point No.3 is answered accordingly.

¶164

Granting of more compensation than what claimed, if the claimants are otherwise entitled:-

¶165

The legal position with regard to awarding more compensation than what claimed has been considered and settled by the Hon‟ble Supreme Court holding that there is no bar for awarding more compensation than what is claimed. For the said preposition of law, this Court finds it proper to refer the following observations of the Hon‟ble Supreme Court made in:

¶166

(1) Nagappa Vs. Gurudayal Singh and Others⁶ , at para 21 of the judgment, that –

¶167

“.. there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award “just” compensation, which is reasonable on the basis of evidence produced on record .”

¶168

(2) Kajal Vs. Jagadish Chand and Ors .⁷ at para 33 of the judgment, as

¶169

follows:-

¶170

6 (2003) 2 SCC 274

¶171

7 2020 (04) SCC 413

¶172

20

¶173

“33 . We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor .”

¶174

(3) Ramla and Others Vs. National Insurance Company Limited and

¶175

Others⁸ at para 5 of the judgment, as follows:-

¶176

“5 . Though the claimants had claimed a total compensation of Rs 25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty-bound to award just compensation.”

¶177

Point No.4:

¶178

In the result, the appeal is allowed as follows:

¶179

(i) The compensation awarded by the learned MACT at Rs.1,84,500/- with interest at the rate of 7.5% per annum under the impugned decree and order dated 15.03.2007 is modified and enhanced to Rs.4,34,000/- but with interest at the rate of 6% per annum only from the date of petition till

¶180

the date of realization.

¶181

8 (2019) 2 SCC 192

¶182

21

¶183

(ii). Claimant No.1 / father of the deceased is entitled for Rs.1,34,000/- with proportionate interest and costs.

¶184

(iii). Claimant No.2 / mother of the deceased is entitled for Rs.2,00,000/with proportionate interest.

¶185

(iv). Claimant Nos.3 and 4, sister and niece of the deceased are entitled for Rs.50,000/- each with proportionate interest.