Allowed

E.Laxmi Saidabad Hydandanr v. Mohd.Osman Voligonda Nalgondaand 3 Others

Telangana HC12 Aug 2014MACMA/5417/2008

Case brief

AI extract

What is this about?

The court allowed an appeal for enhancement of compensation under Section 173 of the Motor Vehicles Act. The Tribunal's award of Rs.1,27,700 was set aside, and compensation enhanced to Rs.3,02,000 based on proof of income and applicable multipliers, citing Narayan Ranganath Naik and Laxman @ Laxman Mourya.

What did the court decide?

Compensation enhanced from Rs.1,27,700 to Rs.3,02,000, with Rs.35,000 each to parents and interest at 6% per annum.

E.Laxmi Saidabad Hydandanr Vs Mohd.Osman Voligonda… — Motor Accident Claims | Telangana HC (2014)

¶1

THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

¶2

M.A.C.M.A.No. 5417 of 2008

¶3

JUDGMENT:-

¶4

Not being satisfied with the quantum of compensation awarded by the Chairman, Motor Accident Claims Tribunal-cum-I Additional District & Sessions Judge, Nalgonda (for short ‘the Tribunal’) in O.P.No.543 of 1994 through judgment dated 22.04.1998, the claimants preferred the present appeal under Section 173 of the Motor Vehicles Act seeking enhancement of the compensation.

¶5

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

¶6

The averments in the petition, in brief, are that the petitioners filed an application, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.2,00,000/- for the death of one Yadagiri in a road accident that took place on 27.05.1994. It is stated that on the fateful day, while the said Yadagiri was unlocking the door of a lorry bearing registration No.AP 13T 479, which was carrying a marriage party, a jeep bearing registration No.AIL 7480, driven by its driver in a rash and negligent manner, came from behind and dashed him. As a result of which, the deceased fell down, sustained injuries and died on the way to a hospital. In respect of the above incident, a case in Crime No.66 of 1994 came to be registered for an offence punishable under Section 338 IPC. The averments in the petition would also disclose that the deceased was having a kirana shop and was earning Rs.3,000/- per month.

¶7

The 1^st respondent is owner and the 2^nd respondent is insurer of the crime jeep. Since the accident occurred due to rash and negligent driving by the jeep driver, the present application is filed by the wife and son of the deceased, making both the respondents jointly

¶8

and severally liable to pay the compensation. In the said application, the parents of the deceased were shown as respondents 3 and 4.

¶9

The 1^st respondent remained ex parte and the 2^nd respondent filed a counter denying the age, income, avocation of the deceased and also the manner in which the accident took place. It was further stated that the accident took place due to fault of the deceased and, therefore, the Insurance Company is not liable to pay any compensation to the petitioners.

¶10

The respondents 3 and 4 claimed themselves to be the dependents of the deceased and not the petitioners.

¶11

On the basis of the above pleadings, the Tribunal framed the following issues for its consideration:

¶12

1) Whether the deceased E.Yadagiri @ Giri died in a motor accident due to rash and negligent driving on the part of the driver of Jeep bearing No.AIL 7480?

¶13

2) Whether the petitioners are entitled for compensation, if so, for what amount and payable by whom?

¶14

3) To what relief?

¶15

ADDITONAL ISSUE:

¶16

1) Whether there is any contributory negligence on the part of the deceased to the alleged accident?

¶17

2) Whether the 2^nd respondent is not liable to pay any compensation to the petitioners?

¶18

In respect of the same accident, the parents, brother and sister of the deceased filed an application being O.P.No.542 of 1994 claiming compensation of Rs.1,00,000/-. In the said application, the wife and son of the deceased were shown as respondents 3 and 4.

¶19

With the consent of parties, both the O.Ps were clubbed together and common evidence was recorded in O.P.No.542 of 1994.

¶20

In support of their case, the 1^st petitioner in O.P.No.542 of 1994 examined himself as P.W.1 and the 1^st petitioner in O.P.No.543 of 1994 examined herself as P.W.2. In respect of their evidence, they got marked Exs.A.1 to A.4. Though no oral evidence has been adduced on behalf of the respondent - Insurance Company, but they got marked Ex.B.1, a copy of insurance policy.

¶21

After analyzing the material available on record, the Tribunal held that the accident took place due to rash and negligent driving by the driver of the jeep. Holding so, the Tribunal partly allowed the O.P.No.543 of 1994 by awarding a sum of Rs.1,27,700/- for the death of the deceased, while dismissing O.P.No.542 of 1994. Being dissatisfied with the quantum of compensation, the petitioners in O.P.No.543 of 1994 preferred the present appeal seeking enhancement of the compensation.

¶22

P.W.1 in his evidence deposed that on the date of the accident, they went to attend a marriage at Warangal in a jeep and a lorry and in their return journey, they stopped the lorry at Bhongir to facilitate some of their relatives to get down. When his son-the deceased was opening the back door of the lorry by standing on the road, the jeep driven by its driver in a rash and negligent manner came from behind and dashed his son. As a result of which, the deceased sustained injuries and died on the way to a hospital. Immediately thereafter, a report came to be lodged and the police registered the same as a case in Crime No.66 of 1994. Ex.A.1 is the copy of the F.I.R. After completing the investigation, the police laid a charge sheet before the competent Court, which is marked as Ex.A.2. Though P.W.1 was cross-examined at length, nothing useful was elicited to discredit his

¶23

testimony.

¶24

P.W.2 is the wife of the deceased and she is not an eyewitness to the accident. According to her, she came to know about the incident, and immediately thereafter, she along with her family members proceeded to the scene of offence.

¶25

As against the evidence of P.Ws.1 and 2, the Insurance Company did not adduce any oral or documentary evidence to disprove their version. Taking into consideration the evidence of P.Ws.1 and 2 coupled with Exs.A.1 and A.2, the Tribunal has rightly held that the accident took place due to rash and negligent driving by the driver of the jeep.

¶26

The main argument of the learned counsel for the petitioners is that the compensation awarded by the Tribunal is on lower side, and therefore, he seeks enhancement of the same. According to him, the deceased, aged about 21 years at the time of the accident, was running a kirana shop and earning Rs.3,000/- per month. The learned counsel for the Insurance Company opposed the same.

¶27

Except the evidence of P.W.1, there is no other evidence to show that the deceased was running a kirana shop and earning Rs.3,000/- per month. If really the deceased was running a kirana shop, nothing prevented the petitioners, more particularly, the father of the deceased to place some material, namely, the licence or permit granted by the competent authorities to run the kirana shop. Having regard to the circumstances and in the absence of any evidence, the Tribunal rightly rejected the plea of the petitioners that the deceased was running a kirana shop on the date of the accident. Merely because there is no evidence to show that the deceased was running a kirana shop, it cannot be said that the deceased had no income of his own. Being an able bodied person and aged about 21 years, the

¶28

deceased must have been doing some job to eke out his livelihood, more particularly, when he was married and having children.

¶29

In her evidence, P.W.2 stated that the deceased was earning Rs.2,000/- per month, but the same runs contrary to the evidence of P.W.1 - father of the deceased, who claims that the deceased was earning Rs.3,000/- per month by doing business.

¶30

Having taken into consideration that the accident took place in the year 1994 and the deceased was aged about 21 years at the time of the accident, the income of the deceased can be fixed at Rs.1,750/per month. If the monthly income of the deceased is taken as Rs.1,750/-, the annual income would be Rs.21,000/-. Since the dependents are two in number, applying the ratio laid down in Sarla Varma and others Vs. Delhi Transport Corporation and anothe r^[1] , 1/3^rd has to be deducted towards living and personal expenses. If 1/3^rd there from is deducted, the contribution of the deceased to the family would be Rs.14,000/-. Since the age of the deceased was 21 years at the time of the accident, which fact is not in dispute, applying the ratio laid down in Sarla Varma case (referred supra), the appropriate multiplier to be adopted for calculation of loss of earnings to be adopted would be “18”. By applying the same, the total loss of earnings would come to Rs.2,52,000/- (Rs.14,000/- x 18).

¶31

The Tribunal awarded Rs.20,000/- towards non-pecuniary damages including funeral expenses and loss of consortium, which in my view, appears to be on lower side. Having regard to the fact that P.W.2 lost her husband at a very young age, and that her two children also lost all the love and affection and a guide, I deem it appropriate to award a sum of Rs.50,000/- in lump sum towards conventional heads, in view of the judgments of the Apex Court in Ramilaben Chinubhai Parmar Vs. National Insurance Company^[2] and Kishan Gopal and

¶32

another V. Lala and others^[3] . Thus, in all, the petitioners are entitled to Rs.3,02,000/- (Rupees Three lakh two thousand only).

¶33

At this stage, the learned counsel for the Insurance Company submits that since the amount awarded would more than what has been claimed, the same is not permissible under law.

¶34

I n Laxman @ Laxman Mourya Vs. Divisional Manager,

¶35

Oriental Insurance Company Limited and anothe r^[4] , the Apex Court while referring to Nagappa Vs. Gurudayal Singh^[5] held as under:

¶36

“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.”

¶37

In view of the Judgments of the Apex Court referred to above, the claimant is entitled to get more amount than what has been claimed. Further the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimant is a paramount consideration, the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent.

¶38

For the aforesaid reasons, the appeal is allowed by enhancing the compensation from Rs.1,27,700/- to Rs.3,02,000/- (Rupees three lakh two thousand only) subject to payment of deficit court fee. Out of the total compensation amount, the respondents 3 and 4 – parents of the deceased are entitled to Rs.35,000/- (Rupees Thirty five thousand only) each. The enhanced compensation amount shall carry interest at 6% per annum from the date of petition till the date of realisation. There shall be no order as to costs.

¶39

Consequently, miscellaneous petitions, if any, pending in the appeal shall stand closed. __________________ C. PRAVEEN KUMAR, J 12^th August, 2014 cbs

¶40

THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

¶41

M.A.C.M.A.No. 5417 of 2008

¶42

12^th August, 2014

¶43

cbs

¶44