Partly allowed

Nathani Sarala Devi, v. Patachava Ramanjaneyulu

Telangana HC5 Mar 2013MACMA/4313/2008

Case brief

AI extract

What is this about?

This appeal challenged the Motor Accident Claims Tribunal's award as inadequate. The High Court held that Section 166 applies, allowing full proven medical bills. The court enhanced general compensation and interest, directing joint liability of owner and insurer.

What did the court decide?

Compensation enhanced to Rs.5,86,131/ with 7.5% interest. Medical bills Rs.4,66,131/- allowed. Distribution between widow and sons structured via fixed deposits.

Nathani Sarala Devi, Vs Patachava Ramanjaneyulu — Money Laundering | Telangana HC (2013)

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HON’BLE SRI JUSTICE K.G.SHANKAR

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M.A.C.M. A.No.4313 of 2008

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Date: 05-3-2013

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Between

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Nathani Sarala Devi and 3 others

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... Appellants/Petitioners

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and

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Patchava Ramanjaneyulu and another

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Respondents/Respondents

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HON’BLE SRI JUSTICE K.G.SHANKAR

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M.A.C.M.A.No.4313 of 2008

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Judgment:

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The claimants in M.V.O.P.No.314 of 2006 on the file of the Chairman, Motor Accident Claims Tribunal cum I Additional District Judge, Guntur (the Tribunal, for short), preferred the appeal assailing the award passed by the learned Chairman of the Tribunal. Claiming that the death of Nathani Koteswara Rao was due to the rash and negligent driving of the driver of the auto owned by the 1^st respondent, the claim was laid for a sum of Rs.6,30,000/-. The 1^st claimant is the widow of the deceased. The claimants 2 and 3 are the sons of the deceased. The 4^th claimant is the mother of the deceased. However, during the pendency of the case before the Tribunal itself, the mother of the deceased breathed her last. Consequently, the amount of compenstion at Rs.74,500/- together with interest at 7.5% per annum as awarded by the Tribunal was apportioned among the claimants 1 to 3 only. Considering that the quantum of compensation awarded was inadequate, the claimants preferred the present appeal.

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2. It is the case of the claimants that the deceased was proceeding in an auto owned by the 1^st respondent and that as the driver of the auto drove the auto in

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a rash and negligent manner, the auto turned turtle resulting in injuries to the deceased Koteswara Rao. The claimants contend that the deceased was initially treated at Mother Theresa Multi Speciality Hospital and later at Yashoda Hospital, Hyderabad, from 29-11-2005 till 22-12-2005 on which date, the deceased breathed his last while he was undergoing treatment at Ark Hospital, Hyderabad. The death of the deceased was claimed to be on account of the injuries sustained by him in the vehicular accident.

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3. The owner of the auto remained ex parte. The insurer of the auto put the claimants to strict proof. The claimants examined the 1^st claimant as P.W.1. P.W.2 deposed that he was an eyewitness for the accident and that the accident was due to the rash and negligent driving of the driver of the offending auto. After trial, the Tribunal held that the accident was indeed due to the rash and negligent driving of the driver of the offending auto, that the death of the deceased was owing to the injuries sustained by him in the accident and that the 1^st respondent as the owner of the auto and the

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2^nd respondent as the insurer of the auto are jointly and severally liable to satisfy the claim. Neither of the respondents preferred any appeal assailing the award. Consequently, these findings that the accident was due to the rash and negligent driving of the driver of the offending

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auto, that the death of the deceased was on account of the injuries sustained by him in the said accident and that the respondents 1 and 2 are jointly and severally liable to satisfy the claim have become final and cannot be assailed now. The claimants in their turn laid the appeal questioning the quantum of compensation.

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I therefore confine myself to the question of quantum of compensation that is payable to the claimants.

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4. The claimants asserted that the deceased was 58 years old at the time of the accident. No evidence was let in in support of the contention of the case of the claimants. Ex.A-4 is the certified copy of the post-mortem report. Ex.A-4 described the deceased as

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65 years old. Where there is no contradictory evidence clinchingly showing the age of the deceased, the Tribunal was perfectly justified in considering that the deceased was 65 years old. However, the Tribunal applied multiplier ‘5’ by following the Second Schedule of the Motor Vehicles Act, 1988 (the Act, for short). In view of Sarla

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Verma v. Delhi Transport Corporation^[1] when the deceased was 65 years old, the appropriate multiplier would be ‘7’.

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5. The deceased was said to be running a Rice Mill at Kanaparru and was also cultivating lands and was earning Rs.80,000/- per annum. As rightly submitted by Sri P.Harinatha Gupta, learned Standing Counsel for the

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2^nd respondent-insurer, no documentary evidence was adduced by the claimants to prove the income of the deceased. Although as many as 15 exhibits were marked, there was no documentary evidence regarding the income of the deceased. The claimants did not even mention the name of the Rice Mill run by the deceased nor did they produce any documentary evidence regarding the agricultural lands owned by the deceased. Neither any adangal nor ryot pass book was exhibited to show that the deceased was an agriculturist.

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6. Sri G.Ramachandra Rao, learned counsel for the claimants, placed reliance upon (a) Oriental Insurance Co. Ltd. v. Bhoomi Reddy Peddi Reddy Lakshmi Dev i^[2] where the method of calculating the agricultural income was considered. In that case, the deceased possessed some agricultural land. However, as the ryot pass books were not filed, the actual extent of land owned by the deceased could not be ascertained. A Division Bench of this Court observed that the loss on account of the death of the deceased could be considered only as supervisory loss since the entire land would remain with the claimants. The Division Bench consequently determined the agricultural income of the deceased at Rs.5,000/- per month.

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(b) In Oriental Insurance Co. Ltd. v.

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P.Sathyavathamma ,^[3] another Division Bench of this Court considered the mode and manner of computation of agricultural income. The earlier view of the Court in D.Vinoda v. B.Basiva Raju [1988 ACJ 1072 (A.P.)] was referred to with approval. It was observed:

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“(i) In the case of death of an agriculturist owning agricultural land, the value of the ‘supervisory’ services of the deceased have to be first estimated. This will not be merely equivalent to the value of the services of a farm-servant or a manager of the property employed for that purpose. It will be more than that because an ownermanager takes extra care in increasing the income year by year and also in increasing the value of the property. After thus estimating the ‘special’ value of the supervisory services of an ‘owner-manager’, a deduction is to be made in respect of the money the deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. Then an actuarial multiplier suitable to the age of the deceased has to be applied from the Actuarial Multiplier Table arrived at in Bhagwan Das v. Mohd. Arid 1987 ALT 137 : MANU/AP/0237/1988 : 1987 ACJ 1052 (AP). To the said sum may be added such sums towards loss of consortium and compensation for loss of expectation of life and pain and suffering as decided in Yerra Varalakshmi v. M.Nageswara Rao 1988 ALT 337 : MANU/AP/0269/1988 : 1988 ACJ 354 (AP).”

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7. I may however point out that neither of these decisions is applicable to the present case where the claimants failed to establish that the deceased was an agriculturist, much less was running a Rice Mill. The income of the deceased consequently is liable to be worked out notionally.

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8. The Tribunal worked out the notional income of

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the deceased on the basis of the Second Schedule of the Act and determined the income at Rs.15,000/- per annum. In Sapna v. United India Insurance Co. Ltd .^[4] , the Supreme Court had occasion to point out in suitable cases the structured formula evolved by the Second Schedule of the Act can be deviated from.

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9. In the present case, where the deceased died in 2005, as the deceased was 65 years old at the time of his death, it would be appropriate to determine the notional income of the deceased at Rs.2,000/- per month and at Rs.24,000/- per annum. As there are three dependants, 1/3^rd of the income deserves to be deducted towards the personal and living expenses of the deceased. The balance of Rs.16,000/- shall be constituted as the income for the purposes of loss of dependency. It may be recalled that the multiplier applicable for the present case is found to be ‘7’. Multiplying Rs.16,000/- by 7 would be Rs.1,12,000/-. The claimants therefore shall be entitled to compensation at Rs.1,12,000/- towards loss of income and future expectancy of life.

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The Tribunal awarded Rs.2,000/towards funeral expenses and Rs.2,500/- towards loss of estate. It would be appropriate to award compensation at Rs.2,000/towards funeral expenses and at Rs.5,000/- towards loss of estate. The Tribunal also awarded Rs.5,000/- towards loss of consortium. Where the deceased was 65 years

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old and where the 1^st claimant herself was 55 years old, it would be appropriate to award Rs.1,000/- only towards loss of consortium.

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10. The major claim in this case is the medical expenses. The claimants examined P.W.5, who is the Billing Executive of Yashoda Hospital. P.W.5 produced Exs.A-7, A-10 and A-11 medical bills to a total tune of Rs.4,66,131/-. Unfortunately, the learned Chairman of the Tribunal awarded medical expenses at Rs.15,000/- on the basis of the Second Schedule of the Act.

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11. It may be noticed that this is a case where the claimants laid the case under Sections 163-A and 166 of the Act. The claimants sought for compensation under Section 163-A as well as Section 166 of the Act. Evidently, claim under Section 163-A of the Act negates the right to sue under Section 166 of the Act and vis-à-vis. Ordinarily, when a claim is laid under Sections 163-A and 166 of the Act, the Tribunal takes the case on file either under Section 163-A or under Section 166 of the Act. However, that does not appear to be in the present case. The case, however, was contested under Section 163-A as well as under Section 166 of the Act. The learned Chairman of the Tribunal went by the assumption that the case was under Section 163-A of the Act and restricted the compensation towards medical expenses in terms of the Second Schedule of the Act.

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Where the claimants undoubtedly proved the negligence on the part of the driver of the offending auto, it would be just and reasonable to consider this case as a claim under Section 166 of the Act as the very Motor Vehicles Act is a beneficial legislation and it would be appropriate to apply the beneficial provision to the claimants vis-à-vis the nonbeneficial provision. Accordingly, I treat that this is a case under Section 166 and not under Section 163-A of the Act. As the case is laid under Section 166 of the Act, and as the negligence on the part of the driver of the auto has been established, I am afraid that the claimants are entitled to entire medical expenses as proved by P.W.5. The claimants consequently are entitled to medical expenses at Rs.4,66,131/-.

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12. The claimants accordingly are entitled to compensation at:

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(a) Compensation towards … Rs.1,12,000/- loss of dependency, loss of income and future expectancy of life
(b) Compensation towards … 2,000/- funeral expenses
(c) Compensation towards … 5,000/- loss of estate
(d) Compensation towards … 1,000/- loss of consortium in favour of the 1^stclaimant

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(e) Compensation towards … 4,66,131/-

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medical expenses

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----------------Total … Rs.5,86,131/-----------------

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The claimants are entitled to compensation at Rs.5,86,131/- together with interest at 7.5% per annum over the amount of compensation awarded.

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13. Accordingly, the appeal is allowed in part without costs.

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(a) The amount of compensation is enhanced to Rs.5,86,131/- (Rupees five lakhs, eighty six thousand, one hundred and thirty one only) together with interest at 7.5% per annum from the date of petition till deposit. The respondents 1 and 2 are jointly and severally liable to answer the claim. They shall deposit the awarded amount within one month from today.

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(b) Out of the awarded amount, the claimants 2 and 3 shall be entitled to Rs.1,00,000/- (Rupees one lakh only) each. The 1^st claimant shall be entitled to the balance of Rs.3,86,131/- (Rupees three lakhs, eighty six thousand, one hundred and thirty one only). Each of the claimants is entitled to interest over their respective share of awarded amounts.

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(c) After deposit, the claimants 2 and 3 shall be entitled to withdraw Rs.50,000/- (Rupees fifty thousand only) each at the first instance. The balance shall lie in Fixed Deposit for a period of two years at the end of which, the claimants 2 and 3 shall be entitled to withdraw

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their respective shares of balance together with accrued interest.

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(d) After deposit, the 1^st claimant shall be entitled to withdraw Rs.1,00,000/- (Rupees one lakh only) at the first instance. The balance due to her shall lie in Fixed Deposit. The 1^st claimant shall be entitled to withdraw the balance in instalments at Rs.1,00,000/- (Rupees one lakh only) once in two years. As the last instalment, the 1^st claimant shall however be entitled to withdraw the balance together with accrued interest.

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(e) In case of urgency for withdrawals, the claimants may approach the Tribunal. In such an event, it is the Tribunal, which shall decide the question of withdrawals.

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__________________ K.G.SHANKAR, J. 05^th March, 2013. Ak

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HON’BLE SRI JUSTICE K.G.SHANKAR

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M.A.C.M.A.No.4313 of 2008 (P.D. Judgment)

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05^th March, 2013. (Ak)

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[1] 2009 ACJ 1298

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[2] 2012 ACJ 211