Allowed

A.Ramachandra Reddy v. M/S Srinivasa Constructions

Telangana HC1 Aug 2014MACMA/1624/2007

Case brief

AI extract

What is this about?

This common judgment disposed of two Motor Accident Claims Applications. The Court dismissed the Insurance Company's challenge against the original compensation order but enhanced the compensation awarded to the claimants. The enhancement was based on a reassessment of loss of dependency, funeral expenses, and loss of love and affection, considering the deceased was an educated adult.

What did the court decide?

M.A.C.M.A. No.1624 of 2007 allowed by enhancing compensation to Rs.5,54,638 with 6% interest; M.A.C.M.A. No.1146 of 2007 dismissed.

A.Ramachandra Reddy Vs M/S Srinivasa Constructions — Cheque Dishonour | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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M.A.C.M.A. Nos.1146 & 1624 OF 2007

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C O M M O N J U D G M E N T:

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As both the above two C.M.As. are filed against the order dated 13.12.2006 passed in O.P. No.653 of 2004 on the file of the XVII Additional Chief Judge-cum-III Additional Metropolitan Sessions Judge at Hyderabad, the same are being disposed of by this common judgment. M.A.C.M.A. No.1146 of 2007 is filed by the Insurance Company questioning the liability of the Insurance company in paying the compensation, whereas M.A.C.M.A. No.1624 of 2007 is filed by the claimants seeking enhancement of the compensation.

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2. For the sake of convenience, the parties will hereafter be referred to as arrayed in O.P.

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3. The facts in issue are as under :

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The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 and under Rule 455 of A.P.M.V. Rules 1989, claiming compensation of Rs.10,00,000/- for the death of their unmarried son due to injuries sustained in the motor vehicle accident that occurred on the intervening night of 02/03-09-2003. It is stated that on the fateful day at about 00.30 hours the deceased by name A.Srinivas Reddy aged about 25 years working in Manikanta Constructions, Barkatpura, Hyderabad as a Civil Engineer on monthly salary of Rs.6,000/- was going on his motorcycle bearing No.A.P.299316. When he reached Race Course Cub, Malakpet, Dilsukhnagar road, a Mahindra Scorpio bearing No.A.P.29-9316 driven by its driver

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in a rash and negligent manner with high speed hit the deceased from behind and fled away from the spot. It is stated that immediately after the accident, the deceased was shifted to Yashoda Hospital, Malakpet, where he succumbed to the injuries on 11.09.2003. In respect of the above incident, a case in Crime No.418 of 2003 of Chaderghat Police Station came to be registered on 05.09.2003. It is stated in the claim petition that the claimants who are parents of the deceased have spent more than Rs.4,50,000/- towards treatment and since the accident took place due to rash and negligent driving of the driver of the Scorpio vehicle, both the respondents were held jointly and severally liable to pay the compensation.

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4. The first respondent, who is the owner of the crime vehicle filed his counter denying the allegations made in the claim petition and also disputing the age, income of the deceased and also the manner in which the accident took place. According to him Mahindra vehicle involved in the accident was insured with the second respondent and if liable, the second respondent alone is liable to pay the compensation. While the second respondent filed its counter alleging that there is no proof to show that the Mahindra vehicle was involved in the accident since the eyewitness to the incident who come forward to speak about the incident nearly two months after the incident cannot be relied upon.

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5. Basing on the above pleadings, the Tribunal framed the following issues :

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1. Whether the deceased A.Srinivas Reddy, died in motor accident due to rash and negligent of Mahindra Scorpio driving of 1^st respondents Tata Sumo by its driver ?

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2. Whether the petitioners are entitled for compensation, if so,

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to what amount and from whom?

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3. To what relief?

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6. In support of its claim, the claimants examined P.Ws.1 to 4 and got marked Exs.A-1 to A-15. The respondents did not choose to adduce any oral evidence, but however got marked a copy of the insurance policy as Ex.B-1. After analyzing the evidence available on record, the Tribunal held that the claimants are entitled to a sum of Rs.5,09,638/- as compensation with interest at 7.5% p.a. from the date of petition till the date of realization.

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7. P.W.1 the father of the deceased was not an eyewitness to the accident. However, P.W.2 was examined as an eyewitness to the accident. Referring to the evidence of P.W.1, coupled with Exs.A-1, A- 2 and A-3 established that the deceased Srinivas Reddy met with a traffic accident on the intervening night of 2/3-09-2003 and succumbed to injuries on 11.09.2003 while undergoing treatment. But however the Exs.A-1, A-2 and A-3 i.e, F.I.R., inquest and post mortem examination report, does not disclose the descriptive particulars of the motor vehicle that caused the accident. However P.W.2 while giving evidence in Court stated that on the intervening night of 02/03-09-2003 while he was proceeding to old Malakpet and when he reached near Hyderabad Race Club, observed a Scorpio vehicle bearing No.A.P.29-9316 which overtook his motorcycle went ahead at a very high speed and dashed the motorcycle bearing No.A.P.29-729 from behind. Due to which the motor cyclist fell down on the road and sustained grievous injuries on both hands and other parts of the body. Immediately P.W.2 along with others shifted the injured to the side of the road and tried to stop the Scorpio jeep, which was slowed down. But on seeing P.W.2 and others, the Driver started the vehicle and

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fledaway from the spot. He further deposed that he could not accompany the injured to the hospital since he has to go to Bangalore in the early hours and that he was at Bangalore upto 04.11.2003. Though P.W.2 was cross-examined at length nothing useful was elicited to discredit his testimony. In fact the Tribunal observed that during the course of cross-examination P.W.2 did not budge even an inch from what he has stated about the manner of the accident in his affidavit filed in lieu of examination-in-chief. It has been elicited in the cross-examination of P.W.2 that after his return from Bangalore, he gave the number of the crime vehicle to the police on 06.11.2003. The police investigated into the matter and filed charge-sheet against the driver of the crime vehicle. The certified copy of the charge-sheet, which is placed on record as Ex.A-4 would show that this witness figured as L.W.3 in the list of witnesses annexed to the charge-sheet and was shown as an eyewitness to the incident. That being the evidence of P.Ws.1 and 2, it would be useful to refer to the contents of the charge-sheet filed against the driver of the Scorpio vehicle. The averments in the charge-sheet disclose about the registration of crime on 05.09.2003 itself for an offence under Section 337 IPC against an unknown offender. The nature of the vehicle and the manner in which the accident took place could not be mentioned in the first information report, as the person who saw the incident did not give any report. While coming the evidence of P.W.2 he admitted that since he has to go Bangalore on the early hours, he did not accompany the deceased to the hospital. P.W.2 is an independent witness and has nothing to do either with the deceased or his family members. No motive can be attributed to P.W.2 in giving a report. The averments in the chargesheet also disclose that P.W.2 (L.W.3) informed about the accident by giving the vehicle Number on 06.11.2003. Immediately thereafter the Sub Inspector of Police examined the owner of the vehicle, who was cited as L.W.4 in the charge-sheet. L.W.4 stated that one

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P.Poornachandra Rao was the driver of his vehicle and on the intervening night of 2-3/09.2003 the said Poornachandra Rao came late. On 03.09.2003, he noticed some damage to the jeep and when asked about the damage, the accused informed that an accident took place at Malakpet. He stated that the accused did not inform him about the manner in which the accident took place. Informing about the accident to the police, L.W.4 is said to have produced the accused. On interrogation the accused is alleged to have confessed about the commission of offence and also narrated the manner in which the accident took place. The accused is alleged to have confessed that he fled away along with his jeep and gave false information to his owner. Though the eyewitness came forward to speak about the incident, nearly two months after the incident, but the police who investigated into the matter by examining not only the eyewitness to the incident but also the owner of the vehicle and also person who drove the vehicle at the time of the accident, filed a charge-sheet. When strict rules of evidence will not apply to cases filed for compensation under the Motor Vehicles Act, it can be held that the vehicle which was involved in the accident on the said date was Mahindra Scorpio vehicle driven by one S.Poornachandra Rao. In fact the owner of the vehicle filed a counter in the O.P. admitting the involvement of his vehicle in the accident but however says that since the vehicle was insured with the second respondent, the insurer alone is liable to pay the compensation.

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8. Coming to the quantum of compensation to which the claimants are entitled to, the learned counsel for Insurance Company strenuously contend that the deceased being bachelor, the Tribunal ought to have deducted 50% towards his living and personal expenses and not 1/3 as done by the Tribunal. The counsel for the claimants also submits that the Tribunal erred in taking the income of the

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deceased Rs.4,500/- per month when the evidence on record is to the effect that the deceased was earning not less than Rs.6,000/- per month.

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9. It is not in dispute that the parents of the deceased are the legalheirs of deceased. It is also elicited from P.W.1 that the petitioners were blessed with two sons, three daughters and that the deceased was eldest son. As seen from the evidence of P.W.1, the deceased as on the date of his death was unmarried. To determine the quantum of compensation towards loss of dependency of a unmarried son, the age of the mother has taken into consideration for selecting a suitable multiplier. Though the learned counsel for the claimant tried to contend that the age of the deceased has to be taken into consideration for the purpose of calculation the loss of dependency, but in my view the same cannot be accepted in view of the Judgments

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in KISHAN GOPAL AND ANOTHER V. LALA AND OTHER S^[1] ,

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wherein two judge bench of the Apex Court took into consideration the age of the mother of the deceased for calculating the loss of dependency. Similarly in NEW INDIA ASSURANCE COMPANY LIMITED V. SHANTI PATHAK^[2] a Bench of three judges of the Apex Court took into consideration the age of the mother for selecting a multiplier. A similar views were taken by the Apex Court in NATIONAL INSURANCE CO. LTD. V. SHYAM SINGH AND OTHERS^[3] and also in RAMESH SINGH AND ANOTHER V. SATBIR SINGH AND ANOTHER^[4] .

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10. In view of the judgments referred to above, the age of the mother alone has to be taken into consideration for calculating the loss of dependency. Since the age of the mother is 50 years, which fact is not in dispute, the suitable multiplier to be adopted would be 13, in

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view of the Judgment of the Apex Court in Sarla Verma and others v.

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Delhi Transport Corporation and anothe r^[5] .

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11. Insofar as the earnings of the deceased are concerned, the averments in the petition would show that the deceased was working as Civil Engineer in Shantanu Chaudhari Architects and Interior Designs and drawing Rs.5,000/- per month. Subsequently, an amendment petition was filed showing his earnings at Rs.6,000/- per month. Ex.A-8 certificate of Shantanu Chaudhari Architects and Interior Designs show that the deceased worked in the said institution from 16.01.2002 to 31.07.2003 on a consolidated salary of Rs.5,000/-. However, the claimants did not choose to examine any person connected with Ex.A-8 to prove the contents therein. Hence, the Tribunal rightly rejected Ex.A-8. The claimants also placed on record Ex.A-9-appointment letter issued to the deceased Srinivas Reddy dt:06.08.2003. P.W.4 the Managing Partner of the said Manikanta Constructions was examined to speak about the contents of Ex.A-9. His evidence to the effect that the deceased was appointed as a Civil Engineer in the month of August, 2003 and he worked for 20 days on a monthly salary of Rs.6,000/-. But the petition was filed for amending the prayer in the main O.P. to show that the deceased worked in Manikanta constructions from 11.08.2003 till his death. Strangely there was no reference showing the employment of the deceased in Manikanta constructions from 11.08.2003 till his death in the claim petition. The said version was introduced for the first time in the year 2005. The trial Court further observed that this Ex.A-9 document was filed for the first time in Court while giving evidence in the year 2006. Therefore, the Tribunal after expressing a doubt with regard to genuinity of the said document rejected the same. I see no reason to disagree with the finding of the Tribunal on this aspect.

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12. Exs.A-11 to A-15 are the original marks list and provisional certificates of the deceased showing that he did B.Tech Civil by the year 1999. Having regard to the fact that the deceased was an Engineering Graduate, the Tribunal fixed the monthly income at Rs.4,500/- per month. The learned counsel for the appellant submits that the quantum of compensation awarded by the Tribunal is on lower side and seeks enhancement of the same. In the absence of any legal document to prove the income of the deceased, an element of guess work and estimate are inevitable to assess the income. When P.W.1 himself claimed the income of the deceased to be Rs.5,000/- per month, the actual income that might have been derived by the deceased should be construed to be less, taking into account the natural tendency to inflate the income to get more compensation. Further, no evidence has been adduced to show the income which an Engineering Student was earning in the year 1999. Under those circumstances, the quantum of compensation awarded by the Tribunal warrants no interference.

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13. In view of the judgment of the Apex Court in Sarla Verma case, where the deceased was bachelor and the parents are claimants, the deductions follow a different principle. In regard to the bachelors normally 50% is deducted as personal and living expenses because it is assumed that the bachelor will spend more amount to himself. The Apex Court however held that even if the deceased was survived by parents, only mother would be considered to be dependent and 50% to be treated as personal and living expenses to the bachelor and 50% towards contribution to the family. It is not a case where the family of the bachelor was large depending on the income of the deceased. That being the position, 50% of the income of the deceased has to be deducted towards his income. If the income of the deceased is taken as Rs.4,500/- per month and 50% is deducted

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towards his expenses, the contribution of the deceased to the family would be Rs.2,250/-. Since the age of the mother of the deceased is taken as 50 years, the suitable multiplier to be adopted should be 13. Applying multiplier 13 the loss of dependency to the family would be Rs.2,250/- X 12 X 13 = Rs.3,51,000/-.

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14. The evidence on record discloses that the claimants have spent a sum of Rs.4,50,000/- to the treatment. The petitioners examined P.W.3 the Billing Manager in Yashoda Hospital, Malakpet, to prove Ex.A-5-the bunch of medical bills. But the evidence of P.W.3 coupled with Ex.A-5 shows that the petitioners incurred a sum of Rs.83,638/-. In view of the positive evidence available on record, the Tribunal awarded a sum of Rs.83,638/-. However, the learned counsel for the appellant strenuously contended that the Tribunal erred in awarding a meager sum of Rs.5,000/- towards transportation of dead body and funeral expenses. According to him, even the amount of Rs.25,000/- awarded towards loss of estate and loss of love and affection is on the lower side.

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15. In Kishan Gopal (2 supra) the Apex Court confirmed the finding of the High Court in awarding a sum of Rs.50,000/- towards loss of love and affection and funeral expenses, It was a case where a boy aged about 6 years died in the road accident. Similarly in Ramilaben Chinubhai Parmar v. National Insurance Co.^[6] , a bench of three Judges of the Apex Court in Civil Appeal No.6091 and 6092 of 2011 dated 23.04.2014 awarded a lumpsum of Rs.50,000/towards loss of estate and loss of consortium and Rs.5,000/- towards funeral expenses.

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16. Though the judgment referred to above awarded a sum of Rs.50,000/- towards the funeral expenses and loss of love and affection, but having regard to the fact that the deceased was a grown

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up boy, completed Engineering and was the verge of contributing substantial income to the family, the amount of Rs.25,000/- awarded towards love and affection is raised to Rs.50,000/- and also taken into consideration the place where the accident happened and status of the family, Rs.5,000/- awarded towards funeral expenses is enhanced to Rs.20,000/-. Thus in all the claimants are entitled for Rs.5,54,638/-.

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17. In view of the above discussion, M.A.C.M.A. No.1624 of 2007 is allowed by enhancing the compensation from Rs.5,09,638/- to Rs.5,54,638/-, while M.A.C.M.A. No.1146 of 2007 is dismissed. The enhanced amount shall carry interest at 6% p.a., from the date of petition till the date of realization.

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There shall be no order as to costs.

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Miscellaneous petition pending in this appeal, if any, shall stand closed.

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_________________________ JUSTICE C. PRAVEEN KUMAR

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01.08.2014 GM

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[1] 2014(1) An.W.R. 58(SC) [2] 2007 ACJ 2188 [3] 2011(4) ALT 61(SC) [4] (2008) 2 SCC 667 [5] (2009)6 SCC 121

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[6] 2014 (4) SCC 67

A.Ramachandra Reddy v. M/S Srinivasa Constructions

Case brief

What is this about?

What did the court decide?

A.Ramachandra Reddy v. M/S Srinivasa Constructions

Case brief

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What did the court decide?

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