Partly allowed

T. Giriprasad v. Md. Akram, (Major)

Telangana HC29 Nov 2011MACMA/1858/2009

Case brief

AI extract

What is this about?

This judgment modifies compensation awards in three Appeals under Section 166 of the Motor Vehicles Act arising from a fatal accident. The court enhanced compensation for deceased family members while dismissing the insurer's appeals based on contributory negligence.

What did the court decide?

M.A.C.M.A.Nos.1858, 1863 & 1864 of 2009 allowed in-part with modified compensation; M.A.C.M.A.Nos.1647 & 1652 of 2011 dismissed.

T. Giriprasad Vs Md. Akram, (Major) — Execution and Attachment | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE TWENTY NINTH DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN

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PRESENT::

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.1858, 1863, 1864 OF 2009 AND 1647 & 1652 OF 2011

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M.A.C.M.A.Nos.1858, 1863 & 1864 of 2009

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Between:

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T.Giri Prasad and two others

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…Appellants

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A n d

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Md.Akram and another

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…Respondents

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A N D

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M.A.C.M.A.Nos.1647 & 1652 of 2011 : The New India Assurance Company Limited, Rep. by its Deputy Manager, Secunderabad.

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…Appellant

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A n d

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T.Giri Prasad and two others

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…Respondents

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HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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M.A.C.M.A.Nos.1858, 1863, 1864 OF 2009 AND 1647 & 1652 OF 2011

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COMMON JUDGMENT:

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M.A.C.M.A.No.1858 of 2009 is directed against the order dated 12.11.2008 in O.P.No.2368 of 2006, on the file of the Motor Accidents Claims Tribunal (III-Additional Chief Judge, City Civil Court), Hyderabad, wherein the said application filed by the appellants herein under Section 166 of the Motor Vehicles Act for compensation was allowed-in-part awarding compensation of Rs.3,06,000/- with interest at 7.5% per annum from the date of the petition. The said appeal is filed seeking enhancement of compensation. The insurer filed M.A.C.M.A.No.1647 of 2011 assailing the award on the ground of quantum and also contributory negligence on the part of the driver of the lorry, the offending vehicle. 2. The deceased in the above two appeals is Lalitha, mother of claimants 1 and 2 and daughter-in-law of claimant No.3.

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3. The same claimants filed O.P.No.2211 of 2006 claiming compensation for the death of T.Hari Babu, brother of claimants 1 and 2, in the same accident and the Tribunal awarded Rs.1,50,000/- with interest at 7.5% per annum from the date of the petition. Not satisfied with the award, the claimants preferred M.A.C.M.A.No.1863 of 2009 seeking enhancement and assailing the award, the insurer filed M.A.C.M.A.No.1652 of 2011 on the same grounds of quantum and contributory negligence.

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4. The same claimants also filed O.P.No.2214 of 2006 claiming compensation for the death of deceased Satyanarayana, father of claimants 1 and 2, and son of claimant No.3 who also died in the same accident. The Tribunal awarded compensation of Rs.2,73,000/- with interest at 7.5% per annum from the date of the petition. Not satisfied with the award, the claimants filed the appeal M.A.C.M.A.No.1864 of 2009 seeking enhancement.

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5. According to the claimants, on 29.01.2006, the three deceased and others were travelling in mini bus bearing No.AP 28 T 6115 on NH-5 and when the bus reached outskirts of Singarayakonda village, on account of rash and negligent driving by its driver, the vehicle dashed against a stationed lorry, resulting in the death of the three deceased and injuries to others.

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6. The owner of the crime vehicle i.e., mini bus remained ex parte.

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The insurer filed counter opposing the claim and denying their liability and also contending that the driver of the stationed lorry also contributed to the accident by negligently parking the same on the road.

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7. After full-fledged enquiry, the Tribunal held that the

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accident occurred due to the rash and negligent driving of the mini bus by its driver and awarded compensation as stated above.

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8. P.W.1, who was an eye-witness to the accident, having travelled in the same vehicle, testified to the manner in which the accident had occurred to the effect that the driver of the mini bus due to rash and negligent driving dashed against the stationed lorry. The police after due investigation filed charge sheet against the driver of the mini bus, wherein it was alleged that it was on account of rash and negligent driving of the driver, the accident had occurred. The report of Motor Vehicle Inspector discloses that the accident was not due to any mechanical defects of the vehicle. The rough sketch of the scene of offence filed along with the charge sheet would show that the lorry was parked on the extreme left side of the road and the mini bus which was going in the same direction dashed against the parked lorry from behind. Admittedly, the accident occurred on the national highway and at the place of accident, as seen from the rough sketch, the road is of a width of 30 feet on either side of the road divider and the lorry was stationed on the extreme left side of the said 30 feet wide road. Thus, there was ample clearance for the mini bus to proceed further by overtaking the stationed lorry. There was absolutely no reason as to whey the mini bus had to go to

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the extreme left of the road and in spite of having sufficient clearance to proceed further, it resulted in the mini bus dashing against the stationed lorry from behind. The driver of the mini bus could have easily avoided the accident if only he had exercised due care and caution while driving the vehicle on the national highway, as he could have easily noticed the stationed lorry which was parked on the extreme left side of the road, from a distance as there was no bend or turning at the place of accident. It is, therefore, a clear case where the accident had occurred due to the rash and negligent driving of the mini bus by its driver without exercising due care and caution required of him in noticing the vehicles ahead on the road. The driver of the mini bus has not chosen to apply the brakes also in time while approaching the stationed lorry, though the brakes are stated to be intact. The contention of the insurer that the driver of the lorry also contributed to the accident by his negligence is, therefore, untenable and is not supported by the evidence on record. It cannot, therefore, be said that the driver of the lorry has contributed to the accident in any manner by parking the lorry to the extreme left side of the road.

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9. Regarding the quantum, in O.P.No.2214 of 2006 the claimants pleaded that the deceased Satyanarayana was a weaver earning Rs.8,000/- per month. They did not, however, adduce any evidence in support of the income

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of the deceased, though the evidence on record shows that he was a weaver. In the absence of any proof of such income, the Tribunal has taken the income of the deceased at Rs.100/- per day, which comes to Rs.3,000/per month, which is considered reasonable. The deceased was aged 43 years. After deducting one-third of the income towards personal expenses, the contribution of the deceased to the family can be estimated at Rs.2,000/- per month i.e., Rs.24,000/- per annum. As per the recent decision of the Apex Court in SARLA VERMA & OTHERS V. DELHI TRANSPORT CORPORATIO N^[1] , the appropriate multiplier would be ‘14’. Applying the same, the loss of dependency works out to Rs.3,36,000/- (Rs.24,000/- x 14). The claimants are also entitled for a sum of Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. Thus, the claimants are entitled for a total compensation of Rs.3,46,000/- with interest at 7.5% per annum on the original amount awarded by the Tribunal from the date of petition and at 6% per annum on the enhanced amount from the date of filing the appeal.

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10. In O.P.No.2368 of 2006, the claimants pleaded that the deceased T.Lalitha who was mother of claimants 1 and 2 was also a weaver earning Rs.8,000/- per month. They did not, however, adduce any evidence in support of the income of the deceased though the evidence on

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record shows that he was a weaver. In the absence of any proof of such income, the Tribunal has taken the income of the deceased at Rs.100/- per day, which comes to Rs.3,000/- per month, which is considered reasonable. The deceased was aged 40 years. After deducting onethird of the income towards personal expenses, the contribution of the deceased to the family can be estimated at Rs.2,000/- per month i.e., Rs.24,000/- per annum. As per the recent decision of the Apex Court in Sarla Verma (referred supra),

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the appropriate multiplier would be ‘15’. Applying the same, the

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loss of dependency works out to Rs.3,60,000/(Rs.24,000/- x 15). The claimants are also entitled for a sum of Rs.5,000/- towards loss of estate and Rs.5,000/towards funeral expenses. Thus, the claimants are entitled for a total compensation of Rs.3,70,000/- with interest at 7.5% per annum on the original amount awarded by the Tribunal from the date of petition and at 6% per annum on the enhanced amount from the date of filing the appeal.

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11. In O.P.No.2211 of 2006, the claimants pleaded that the deceased P.Hari Prasad, who is brother of claimants 1 and 2, was a student-cum-weaver-cum-tutor earning Rs.4,000/- per month. They did not, however, adduce any evidence in proof of the income of the deceased. In the

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absence of any proof of such evidence, the Tribunal has taken the income of the deceased at Rs.100/- per day. The evidence on record shows that the deceased was a student. When there is no evidence to show that he was earning any income as a weaver or as a tutor and having regard to the admitted fact that he

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was a student, the Tribunal ought to have treated the deceased as a non-earning member and taken his notional income at Rs.15,000/- per annum as per the II Schedule of the Motor Vehicles Act, which can be taken as a guide. After deducting one-third thereof towards personal expenses, the contribution of the deceased to the family would come to Rs.10,000/- per annum. The deceased was aged 23 years and was unmarried. In normal circumstances, the age of the mother of the deceased ought to have been taken into consideration for estimating the loss of dependency. But, in the present case, the mother of the deceased also died in the same accident. Claimants 1 and 2, who are the younger brothers of the deceased, are aged 21 years and 19 years. As per the recent decision of the Apex Court in Sarla Verma (referred supra), the appropriate multiplier for the age groups of 15-20 and

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21-25 is ‘18’. Thus, applying the said multiplier, the loss of dependency works out to Rs.1,80,000/- (Rs.10,000/- x 18). The claimants are also entitled for a sum of Rs.5,000/- towards loss of estate and Rs.5,000/- towards

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funeral expenses. Thus, the claimants are entitled for a total compensation of Rs.1,90,000/- with interest at 7.5% per annum on the original amount awarded by the Tribunal from the date of petition and at 6% per annum on the enhanced amount from the date of filing the appeal.

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12. In the circumstances, the impugned awards are modified as stated above.

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13. In the result, M.A.C.M.A.Nos.1858, 1863 & 1864 of 2009 filed by the claimants are allowed-in-part to the extent stated above.

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M.A.C.M.A.Nos.1647 & 1652 of 2011 filed by the insurer are dismissed. There shall be no order as to costs.

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_____________________ G.V.SEETHAPATHY, J

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28^th November, 2011 Lrkm.

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[1] 2009 ACJ 1299

T. Giriprasad v. Md. Akram, (Major)

Case brief

What is this about?

What did the court decide?

T. Giriprasad v. Md. Akram, (Major)

Case brief

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