(Prayer: Appeal filed under Order 41 of CPC before the High CourtPleased to allow the appeal by setting aside the decree and Judgment dt.05/11/2012 made in

M.V.O.P NO.95 PF 2008 on the file of the Motor Accidents claims Tribunal cum II Additional District Judge, Kurnool at Adoni, and pass.

IA NO: 1 OF 2013(MACMAMP 2017 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to condone the delay of 17 days in filing the MACMA against the M.V.O.P.No.95 of 2008 on the file of Motor Accidents Claims Tribunal cum II Addl.Dist Judge, Kurnool at Adoni and pass.

IA NO: 2 OF 2013(MACMAMP 2143 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased stay all further proceedings including the execution of the jdugement and decree made in MVOP No.95/2008 on the file of Motor Accidents Claims Tribunal cum II Addl.District Judge, Kurnool at Adoni)

Introductory:

1. Respondent No.2 in M.V.O.P.No.95 of 2008 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kurnool District at Adoni (for short "the learned MACT"), filed the present appeal questioning the award and decree dated 05.11.2012, whereunder compensation of Rs.7,28,000/- was awarded as against the claim made for Rs.8,58,968/-, in favour of the respondents / claimants and against the appellant.

2. For the sake of convenience, the parties will be hereinafter referred to as the petitioners and the respondents, as and how they are arrayed in the proceedings before the learned MACT.

Case of the claimants:

3(i). One Vadde Rajagopal (hereinafter referred to as "the deceased") is the son of petitioner No.1 and brother of the other claimants. Originally, an application for compensation was moved / filed on behalf of the mother and two sisters of the deceased also. But, due to depression for the reason of the death of the deceased, they committed suicide. Hence, petitioner Nos.1 to 3 alone are prosecuting the case.

               (ii). The deceased was working as a Credit Officer in the office of Spandana Sphoorty Financial Limited, Allagadda Branch, earning Rs.8,066/- per month and was aged about 27 years. He was travelling on his motorcycle bearing No.AP 16 AH 6938 on the date of accident. i.e. on 30.03.2008. When he reached near Salvo Factory on Kurnool-Kodumur Road, near K. Nagalapuram Village, the accident occurred due to rash and negligent driving of the driver of the A.P.S.R.T.C. Bus bearing No.AP 10 Z 9834 (hereinafter referred to as "the offending vehicle").

               (iii). A case in Crime No.17 of 2008 was registered for the offence under Section 304-A IPC and the driver was charge-sheeted vide C.C.No.409 of 2008 on the file of the Additional Judicial First Class Magistrate, Kurnool. The petitioners lost valuable, financial and other support due to the death of the deceased. Hence, they are entitled for reasonable compensation.

4.   Respondent No.1 is the driver of the offending vehicle. Respondent No.2 is the owner and operator of the bus viz. the A.P.S.R.T.C .

Case of respondent No.2:

5(i).  The claimants shall prove the pleaded accident, negligence of the driver of the offending vehicle, death of the deceased due to the accident, age, occupation and income of the deceased and dependency of the claimants.

               (ii). The negligence of the deceased in riding the motorcycle is the cause for accident and therefore the appellant / A.P.S.R.T.C. is not liable to pay any compensation.

Evidence:

6. Claimant No.1 was examined as P.W.1 and stated about the relationship between the parties, death of deceased due to accident, age, occupation income of the deceased and dependency of the claimants.

7. P.W. 2 is an eye witness to the accident. He has stated that the driver of the offending vehicle was negligent and denied the negligence on the part of the deceased.

8. P.W.3 is not an eye witness to the accident. P.W.3 stated that he attended the inquest and during cross examination stated that he did not witness the accident, but was asked to lift the dead body.

9. P.W.4 is examined to shown the employment of the deceased and to prove Exs.A4 and A5. However, he has stated that those documents do not bear his signatures but bear the signatures of the Divisional Manager of the company.

10. Ex.A1 is the FIR, Ex.A2 is the charge sheet, Ex.A3 is the post-mortem certificate. Ex.A4 is the pay slip/ salary certificate and Ex.A5 is the identity card of the deceased.

Findings of the learned MACT:

11. Relying on the evidence of P.Ws.2 and 3 and the crime record, the learned MACT believed the negligence of the driver of the offending vehicle and held the issue touching the negligence against the appellant/A.P.S.R.T.C. Taking note of the pay slips and evidence of P.W.4, the learned MACT found that the deceased was earning not less than Rs.5,000/- and accepted the annual income at Rs.60,000/-. After deducting 1/3rd towards personal expenses, Rs.40,000/- was taken as annual income (multiplicand) and applied multiplier '18', considering the age of the deceased as '27' years. Awarded 7,20,000/- towards loss of dependency and Rs.8,000/- towards transportation and funeral charges and in all awarded Rs.7,28,000/-.

Arguments in the appeal:

For the appellant:

12(i). The negligence of the deceased in riding the motor cycle is ignored.

               (ii). The income of the deceased was taken without sufficient basis.

               (iii). The claimants being the father and sisters of the deceased, there is no loss of dependency.

For the claimants:

13(i). The compensation awarded requires enhancement.

               (ii). The appeal is liable to be dismissed.

14. Heard both sides extensively. Perused the record. Thoughtful consideration is given to the arguments advanced by both sides.

15. The points that arise for determination in this appeal are:

               1). Whether the compensation of Rs.7,28,000/- awarded under the impugned award and the liability imposed on the appellant under the impugned order and decree dated 05.11.2012 are sustainable or require any interference? If so, on what grounds and to which extent?

2). What is the result of the appeal?

Point No.1:

On Negligence:

16. It is relevant to note that no witnesses are examined on behalf of the respondents (appellant). The crime record and evidence of P.Ws.2 and 3 are starring against the driver of the offending vehicle.

Statutory and Precedential Guidance:

Statutory Guidance:

17(i). As per Section 176 of the Motor Vehicles Act, the State Governments are entitled to make rules for the purpose of carrying effect to the provisions of the Motor Vehicles Act.

               (ii).  In relation to claims before the learned MACT, Rule 455 to Rule 476 of the A.P. Motor Vehicles Rules, 1989, vide Chapter No.11 provides comprehensive guidance. As per Rule 476 of the A.P. Motor Vehicles Rules, 1989, the claims Tribunal shall proceed to award the claim basing on the registration certificate of the vehicle, insurance policy, copy of FIR and Post-mortem certificate etc.

Precedential Guidance:

18. The Hon’ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation (2009 (13) SCC 530), in para 15 observed as follows:

               “15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties..”

19. The findings of the learned MACT on negligence of the driver of the offending vehicle do not require any interference and no material or merits are found to be accept the contributory negligence of the deceased.

Quantum:

Precedential guidance:

20(i). For having uniformity of practice and consistency in awarding just compensation, the Hon’ble Apex Court provided guidelines as to adoption of multiplier depending on the age of the deceased in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009 (6) SCC 121) and also the method of calculation as to ascertaining multiplicand, applying multiplier and calculating the compensation vide paragraph Nos.18 and 19 of the Judgment.

               (ii). Further the Hon’ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others (2017(16) SCC 680) case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% where deceased is between 40-50 years and 15% where the deceased is between 50-60 years. Further, in respect of self employed etc., recommended addition of income at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years and at 10% where the deceased is between 50-60 years. Further, awarding compensation under conventional heads like loss of estate, loss of consortium and funeral expenditure at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively is also provided in the same Judgment.

               (iii). Further in Magma General Insurance Company Ltd. v. Nanu Ram and Others ((2018) 18 SCC 130), the Hon’ble Apex Court observed that the compensation under the head of loss of consortium can be awarded not only to the spouse but also to the children and parents of the deceased under the heads of parental consortium and filial consortium.

Just Compensation:

21. In Rajesh and others vs. Rajbir Singh and others ((2013) 9 SCC 54), the Hon’ble Supreme Court in para Nos.10 and 11 made relevant observations.

Granting of more compensation than what claimed, if the claimants are otherwise entitled:-

22. The legal position with regard to awarding more compensation than what claimed has been considered and settled by the Hon’ble Supreme Court holding that there is no bar for awarding more compensation than what is claimed. For the said preposition of law, this Court finds it proper to refer the following observations of the Hon’ble Supreme Court made in:

               (1) Nagappa Vs. Gurudayal Singh and Others ((2003) 2 SCC 274), at para 21 of the judgment.

               (2) Kajal Vs. Jagadish Chand and Ors. (2020 (04) SCC 413) at para 33 of the judgment.

               (3) Ramla and Others Vs. National Insurance Company Limited and Others ((2019) 2 SCC 192) at para 5 of the judgment.

Enhancement of compensation in the absence of appeal by the claimants:

23(i). Whether the compensation can be enhanced in the absence of an appeal or cross appeal by the claimant. The legal position as to powers of the Appellate Court particularly while dealing with an appeal in terms of Section 173 of the Motor Vehicles Act, 1988, where the award passed by the learned MACT under challenge at the instance of the Insurance Company (Respondents) and bar or prohibition if any to enhance the quantum of compensation and awarding just and reasonable compensation, even in the absence of any appeal or cross objections was considered by the Division Bench of this Court in a case between National Insurance Company Limited vs. E. Suseelamma and others (2023 SCC Online AP 1725) in M.A.C.M.A. No.945 of 2013, while answering point No.3 framed therein vide, para 50 of the judgment.

               (ii). Observations made by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others (9 supra) case are in compliance with the observations of Hon’ble Apex Court in Surekha and Others vs. Santosh and Others ((2021) 16 SCC 467).

               (iii). In Surekha and Others vs. Santosh and Others (10 supra) case, in Civil Appeal No.476 of 2020 vide judgment dated 21.01.2020, three judges of the Hon’ble Supreme Court observed that “it is well stated that in the matter of Insurance claim compensation in reference to the motor accident, the Court should not take hyper technical approach and ensure that just compensation is awarded to the affected person or the claimants”. While addressing a case where the High Court has declined to grant enhancement on the ground that the claimants fail to file cross appeal above observations are made.

Analysis:

24. Exs.A4  and  A5  are  indicating  the  employment  of  the  deceased. However, the learned MACT has notionally taken the income at Rs.5,000/-, though the claimants claimed it at Rs.8,000/-. The claimants are not in appeal, but in view of the age of the deceased, addition of future prospects is permissible to the tune of at least 30%. Then, the income of the deceased will rise to Rs.6,500 per month and Rs.78,000/- per annum. After deducting 1/3rd towards the personal expenditure, the income of the deceased comes to Rs.52,000/- per annum, which can be considered as the multiplicand. The multiplier adopted does not require any modification. Therefore, the claimants are entitled for compensation under the head of loss of dependency comes to Rs.9,36,000/- (Rs.52,000/- x 18).

25. The compensation awarded under the heads of funeral expenditure requires revisit. No compensation was awarded under the heads of loss of consortium and loss of estate. Therefore, the claimants are entitled for compensation under the conventional heads i.e., Rs.15,000/- towards funeral expenditure and Rs.15,000/- towards loss of estate. Claimant No.1, being the father of the deceased, alone is entitled for filial consortium i.e., Rs.40,000/-.

26. The legal heir status of the father and sisters to claim compensation, particularly in view of the age of the sisters being minors, need not be doubted. This Court finds that the claimants are entitled for compensation.

27. In view of the reasons and evidence referred above, the entitlement of the claimant for reasonable compensation in comparison to the compensation awarded by the learned MACT is found as follows