Allowed

Medara Leelamma v. Varigonda Sreedevi

Telangana HC5 Sept 2014MACMA/1725/2007

Case brief

AI extract

What is this about?

The Motor Accident Claims Tribunal enhanced compensation from Rs.1,77,500 to Rs.7,87,100 awarded in a claim for death due to a road accident. The court determined a reasonable income of Rs.150/day, allowed 30% future prospects, and enhanced conventional heads based on established precedents.

What did the court decide?

Compensation enhanced from Rs.1,77,500 to Rs.7,87,100 with interest at 6% p.a. Court fees to be paid by appellants.

Medara Leelamma Vs Varigonda Sreedevi — Motor Accident Claims | Telangana HC (2014)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A. No.1725 OF 2007

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JUDGMENT:

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The claimants, who are the wife, sons and daughter filed the present appeal under Section 173 of the M.V. Act against the order and decree dated 20.01.2005 passed in O.P. No.879 of 2003 on the file of the Principal Motor Accident Claims Tribunal, Nellore, wherein and whereunder the claimants were awarded a sum of Rs.1,77,500/as compensation for the death of one Medara Ramanaiah in a road accident.

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

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The facts in issue are as under :

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The claimants filed a claim petition under Section 166 of the M.V. Act claiming compensation of Rs.3,00,000/- for the death of Medara Ramanaiah in a road accident on 27.08.2003 at 6.30 p.m. on G.N.T. road near Chiranjeevi Apartments, Tekkemitta centre, Nellore town. On the fateful day the deceased was proceding on a cycle which was pedaled by one Mohan Raju after attending polishing work near TTD Kalyana Mandapam. When they reached Chiranjeevi Apartments, Tekkemitta centre on G.N.T. road, a metro liner bus bearing No.A.P.26-U-2047 driven by its driver in a rash and negligent manner came from behind and without blowing horn and dashed the cycle. As a result, the deceased fell down and the bus ran over the legs and testicles of the deceased. Immediately after the accident he was shifted to Government Headquarters Hospital, Nellore, where the Doctors declared him dead. It is stated that the deceased was doing polishing work to wooden furniture and earning Rs.200/- per day. In respect of the above incident a case in Crime No.103 of 2003 of South Traffic Police Station, Nellore, came to be registered against the driver

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of the bus. Since the accident took place due to rash and negligent driving of the driver of the bus, of which the respondents 1 and 2 are the owners and the 3^rd respondent being the insurer of the said bus, the claimants filed M.V.O.P. against the respondents 1 to 3 claiming compensation.

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Respondents 1 and 2 remained exparte while third respondent filed counter denying the allegations made and also as to the manner in which the accident took place. They also disputed the age, income and avocation of the deceased. It is further stated that the driver of the bus was not having a valid driving licence to drive the bus at the time of the accident.

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On the basis of the above pleadings, the following issues were framed by the Tribunal for trial :

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1. Whether the accident occurred out of the use of the Motor vehicle of respondent No.1?

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2. Whether the petitioners are entitled to compensation? If so, to what amount and from which of the respondents?

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3. To what relief?

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In support of the claim, the first claimant examined herself as P.W.1 and also examined P.W.2 who is an eyewitness to the incident and got marked Exs.A-1 to A-5. No oral evidence has been adduced on behalf of the respondents, but they got marked Ex.B-1-insurance policy relating to the offending vehicle.

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After analyzing the evidence available on record the Tribunal held that the accident took place due to rash and negligent driving of the driver of the bus and accordingly the Tribunal awarded a sum of Rs.1,77,500/- as compensation to be paid by the respondents jointly and severally with interest at 9% p.a. Challenging the same, the claimants preferred the present appeal.

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Therefore, the finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged either by the owner or the insurer of the bus. Therefore, the only point that arise for consideration is;

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“Whether the compensation awarded by the Tribunal is just and reasonable ?”

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The learned counsel for the appellants mainly submits that the quantum of compensation awarded by the Tribunal is on a lower side and the same needs to be enhanced. He further submits that while holding that the claimants could not substantiate the income of the deceased erred in fixing the income of the deceased at Rs.50/- per day. He further submits that though the application filed under Section 166 of the M.V. Act, the Tribunal erred in holding that it is better to invoke the structured formula incorporated in Second Schedule of Section 163 of the M.V. Act for computing just compensation payable to the claimants. He further submits that the quantum of compensation awarded towards loss of consortium, funeral expenses and loss of estate is meager and hence the same also needs to be enhanced.

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On the other hand, the learned counsel for the Insurance Company submits that in the absence of any evidence available on record the Tribunal was justified in fixing the income of the claimant at Rs.50/- per day. According to him, except the evidence of P.W.1 there is no other evidence on record to show that the deceased was doing polishing work, as such the finding of the Tribunal is just and reasonable. He further submits that in the absence of any positive evidence with regard to nature of work, which the claimant was doing, he submits that the claimants are not entitled for any future prospects.

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In order to appreciate the rival submissions, it may be necessary to refer to the evidence available on record. P.W.1 is the wife of the deceased. In her evidence she stated that the deceased was aged

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about 45 years at the time of the accident and used to earn about Rs.200/- per day by doing polishing work to wooden furniture. P.W.1 was subjected to cross-examination. In the cross-examination it has been elicited that the deceased was doing furniture work. It was also elicited from P.W.1 that thee is no written evidence with her to show that the deceased was earning Rs.200/- per day by doing furniture work. It was also elicited from P.W.1 that the deceased had no shop but he used to attend polishing work. P.W.2 was examined to speak to the nature of employment of the deceased. In his evidence in chief P.W.2 stated that the deceased used to work as a Carpenter and Specialist in polishing wooden furniture and that he was working under the deceased as Assistant. According to him the deceased used to earn Rs.300/- per day while he used to earn Rs.100/- per day. He was also witnessed the incident as he was accompanied to the deceased on the date of accident. In the cross-examination it has been elicited from P.W.2 that he was working under the deceased since last one year and deceased used to pay him Rs.100/- per day. It is further elicited that he used to apply hand paper to the wooden before polishing the same. Ofcourse, he admits that there is no documentary evidence to prove the same.

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The charge-sheet filed by the police pursuant to investigation in Crime No.103 of 2003 registered against the driver of the vehicle also shows that the deceased was doing furniture works. From the evidence available on record, it is clear that the deceased was doing the job of polishing the furniture work. The evidence of P.W.1 is to the effect that the deceased was earning Rs.200/- per day, whereas the evidence of P.W.2 is to the effect that the deceased was earning Rs.300/- per day. As observed earlier there is no documentary evidence to prove the income of the deceased. In the absence of any documentary evidence, the Tribunal fixed the income of the deceased at Rs.50/- per day by taking the income under the Minimum Wages Act prevailing during the said period. The Tribunal did not give any

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specific finding with regard to the nature of work which the deceased was doing at the time of the accident. But the un-impeached evidence of P.Ws.1 and 2 coupled with the description of the deceased in the charge-sheet amply establish that the deceased was doing the polishing work to wooden furniture. In fact the first information report as well as the evidence discloses that the accident took place while they were returning from the TTD Kalyana Mandapam after doing polishing work. Therefore, it can safely be held that the deceased was doing the job of polishing work. In view of the fact that the deceased was doing the skilled work, the learned counsel submits that he would be earning more than what has been awarded by the Tribunal. An element of guess work and estimate are inevitable when there is no material to assess the income. When P.W.1 himself claimed the income of the deceased to be Rs.200/- per day the actual income that might have been derived by the deceased should have been construed to be less by taking into consideration the natural tendency to inflate the income to get more compensation.

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In the instant case P.W.1 in her evidence stated that the deceased was earning Rs.200/- per day. Having regard to the facts and circumstances of the case and the period during which the accident took place and the place where the deceased was doing the work, I deem it appropriate to fix the income of the deceased at Rs.150/- per day.

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Coming to the future prospects, the learned counsel for the appellant strenuously contends that the petitioner being a skilled worker and aged about 45 years at the time of the accident, he is entitled for future prospects in view of the Judgments of the Apex Court

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i n Sarla Verma v. Delhi Transport Corporation^[1] . On the other hand, the learned counsel for the respondent submits that since there is no fixed income and as there is no evidence to show that he was a

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skilled worker, future prospects cannot be taken into consideration. As stated earlier, the evidence of P.Ws.1, 2 and the charge-sheet clearly establish that the deceased was doing polishing work. The issue as to whether the claimants are entitled to future prospects when the deceased was employed doing polishing work came up for consideration before the Apex Court in Sanobanu Nazirbhai Mirza

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and others v. Ahmedabad Municipal Transport Service^[2] . It was also a case where the deceased, who was performing as skilled labour, died in a road accident. The Tribunal while computing the compensation took the future prospects of the deceased into consideration as the job of the polisher is a skilled job. In view of the judgment referred to above and as the deceased was aged about 45 years at the time of the accident 30% of the income of the deceased has to be added to the actual income of the deceased towards future

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prospects in view of the judgment in Rajesh v. Rajbir Singh^[3] wherein the Apex Court after referring to Sarala Verma case^[4] held as follows :

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“Since, the Court in Santosh Devi case^[5] actually intended to follow the principle in the case of salaried persons as laid down in Sarla Verma case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an additional of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Additional should be 30% in case the deceased was in the age group of 40 to 50 years.”

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If the income of the deceased was taken at Rs.4,500/- per month and if 30% of the income is added, it would become Rs.5,850/-. The total income which should be taken into consideration for calculating

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the loss of dependency would be Rs.5,850/-. The Tribunal deducted 1/3^rd towards living and personal expenses of the deceased, even that has commented by the learned counsel for the appellants on the ground that when the dependants are five in number, the Tribunal ought to have deducted 1/5^th . The finding of the Tribunal while apportioning the compensation held that all the claimants are entitled for equal share along with interest on their share. Therefore, when the finding of the Tribunal with regard to the apportionment of the compensation to all the claimants is not challenged, all the appellants being the legal representatives of the deceased have to be treated as dependants on the deceased. When the total number of dependants are more than three in number the amount which should be deducted towards living and personal expenses of the deceased would be 1/4^th in view of the Judgment of the Apex Court in Sarla Verma (1 supra). If 1/4^th is deducted towards living and personal expenses the contribution of the deceased to the family would be 4,387/- per month and Rs.52,650/- per annum.

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Since the age of the deceased was found to be 45 years at the time of the accident, which is not disputed by other side, the suitable multiplier to be adopted would be “14” in view of the judgment of Sarla Verma. If multiplier “14” is adopted the total loss of dependency would be Rs.7,37,100/- (Rs.4,387/- x 12 x 14). As stated earlier, the Tribunal awarded a meager amount of Rs.9,500/- towards loss of consortium, funeral expenses and loss of estate, the said amount in my view is on lower side. In view of the judgment of the Apex Court KISHAN

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GOPAL AND ANOTHER V. LALA AND OTHERS^[6] and RAMILABEN CHINUBHAI PARMAR V. NATIONAL INSURANCE CO .^[7] , I deem it appropriate to enhance the total amount under conventional heads to Rs.50,000/(i.e., Rs.30,000/- towards consortium, Rs.10,000/- towards funeral expenses and Rs.20,000/-

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towards loss of estate). Hence, the total compensation which the claimants are entitled would be Rs.7,87,100/-.

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At this stage, the learned counsel for the respondent/Corporation submits that the petitioner would not be entitled to more than the claim as their claim in their original petition was only Rs.3,00,000/-. But the learned counsel for the appellant submits that along with the appeal the petitioners filed M.A.C.M.A. M.P.No.4254 of 2007 under Order VI Rule 17 and Section 151 C.P.C. seeking enhancement of the compensation from Rs.3,00,000/- to Rs.5,00,000/-. Even otherwise in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and

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anothe r^[8] , the Apex Court while referring to Nagappa Vs. Gurudayal Singh^[9] held as under:

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“It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident.”

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Accordingly, the M.A.C.M.A. is allowed by enhancing the compensation from Rs.1,77,500/- to Rs.7,87,100/-. The enhanced amount shall carry interest at 6% p.a., from the date of the petition till the date of realization. It is made clear that the claimants shall pay the deficit court fee while claiming the compensation so awarded.

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There shall be no order as to costs.

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As a sequel to it, miscellaneous petitions pending if any in this appeal, shall stand closed.

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C. PRAVEEN KUMAR, J

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Date: .09.2014

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