(Prayer: Appeal filed under Order 41 of CPC before the High Court to set aside the judgment and decree passed in MVOP.No. 1164 of 2007 on the file of the Motor Vehicles Accidents Claims Tribunal - cum - X Additional District & Sessions Judge (FTC), at Guntur, dated 25-11-2008 and grant the compensation upto Rs.3,00,000/- together with interest at the rate of 7.5% per annum from the date of the filing the main O.P. and pass

IA NO: 1 OF 2010(MACMAMP 786 OF 2010

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 to condone the delay of 339 days in filing the CMA. against the Judgment and Award in M.V.O.P.No. 1164 of 2007 on the file of Motor Vehicles Accidents Claims Tribunal - cum - X Additional District & Sessions Judge (FTC), at Guntur, dated 25-11-2008.)

Introductory:

1. One Mundru Siva Koteswaramma (hereinafter referred to as “the deceased”) died in a road traffic accident on 09.08.2007. Her husband and children, being the legal heirs and dependents, filed M.V.O.P.No.1164 of 2007 and the Motor Vehicle Accidents Claims Tribunal-cum-X Additional District & Session Judge (FTC), Guntur at Narasaraopet (for short “the learned MACT”), under the judgment and decree dated 25.11.2008, awarded compensation of Rs.1,39,500/- in favour of the claimants. Contending that the same is inadequate, the present appeal is filed.

Case of the claimants:

2. The 1st petitioner is the husband and the other claimants are the daughters of the deceased. They are the only legal heirs and dependents of the deceased. The deceased was aged about 45 years, hale and healthy. She was engaged in agricultural operations and gazing buffaloes, selling milk and supporting the family in all respects.

3. On the fateful date i.e. 09.08.2007, she went to the fields to gaze the buffaloes. At about 04:00 p.m., she was sleeping under a tree near the outskirts of Gogulapadu Village, Rompicherla, within the limits of Rompicherla Police Station. At that time, the Hydraulic Excavator bearing No.AP 31 BCTR 8307 (hereinafter referred to as “the offending vehicle”) came from the canal side in a rash and negligent manner and ran over her, causing instantaneous death. The petitioners lost all support of the deceased.

4. A case in Crime No.62 of 2007 for the offence under Section 304-A IPC was registered against the driver of the offending vehicle owned by respondent No.1. The offending vehicle was insured with respondent No.2. Hence, both respondents are liable to pay compensation.

5. Respondent No.1 remained ex parte before the learned MACT.

6. For the sake of convenience, the parties will be hereinafter referred to as “the petitioners/claimants” and “the respondents”, as and how they are arrayed before the learned MACT

Case of respondent No.2:

7. The claimants shall prove the pleaded accident, negligence of the driver of the offending vehicle, age, occupation and income of the deceased, death of deceased due to the accident and dependency of the claimants. The deceased himself was negligent while crossing the road. Therefore, the claimants are not entitled for any compensation. There was no policy coverage to the offending vehicle. The cheque issued towards premium was dishonoured for the reason of insufficien6tcy of funds. Hence, the petition is liable to be dismissed.

Evidence:

8. Claimant No.3 was examined as P.W.1. One Velama Venkateswarlu, an eye witness to the accident, was examined as P.W.2 and the claimants relied on certified copies of Ex.A1-FIR, Ex.A2-Charge Sheet, Ex.A3-Post Mortem Certificate, Ex.A4-Inquest Report and Ex.A5-MVI report.

9. On behalf of the respondents, one J. Sravan Kumar, Legal Manager of the Insurance Company was examined as R.W.1 and the respondent Insurance Company relied on Ex.B1-letter dated 21.08.2007 addressed to respondent No.1 informing dishonour of cheque.

10. Ex.B2 is the certificate of posting. Ex.B3 is the legal notice got issued to respondent No.1. In Ex.B3 there is reference to the present case filed by the claimants. This suggests that the notice was issued after initiation of the legal proceedings. Ex.B4 is the letter addressed to Additional Licensing Authority, Tirupathi, Chittoor District. The returned cover indicates that the notice sent to respondent No.1 was returned unserved.

Findings of the learned MACT:

11. P.W.2, an eye witness to the accident, was examined. Ex.A1-FIR, Ex.A2-Charge sheet, Ex.A3-Post Mortem Certificate, Ex.A4-Inquest Report and Ex.A5-MVI Report are sufficient to believe the negligence of the driver of the offending vehicle.

12. The claimants hails from the lowest strata of an agricultural family. The objection as to dishonor of cheque does not deserve any consideration.

13. The income of the deceased is claimed at Rs.3,000/- per month, but for want of proof, Rs.1,500/- per month is taken by the learned MACT. After deducting 1/3rd towards personal expenses, the contribution of the deceased is accepted at Rs.10,000/- per annum. Multiplier “13‟ is applied. The petitioners/claimants are found entitled for Rs.1,30,000/- under the head of loss of dependency, Rs.2,000/- towards funeral expenses, Rs.2,500/-towards loss of estate and Rs.5,000/- towards loss of consortium. In all, learned MACT awarded Rs.1,39,500/-.

Arguments in the appeal:

For the claimants:

14(i). The compensation awarded is very meagre.

                  (ii). Taking notional income is not proper.

                  (iii). The claimants are entitled for more compensation.

For the Insurance Company:

15(i). The defence as to dishonor of cheque issued by the owner of the offending vehicle is ignored by the learned MACT.

                  (ii). Negligence of the deceased is the cause for the accident and the same is ignored.

                  (iii). There are no grounds to interfere.

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

Scope of appeal :

17. This is an appeal by the claimants. The Insurance Company did not choose to file any appeal. Therefore, whether the compensation awarded is just and reasonable alone shall be the subject matter of this appeal apparently.

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

                  (1) Whether the compensation of Rs.1,39,500/- awarded by the learned MACT under the impugned orders requires any modification? If so, on what grounds and to which extent?

                  (2) What is the result of the appeal?

Point No.1:

Quantum:

Precedential guidance:

19(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:

20. 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, they are as follows:

                  10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280) “10. Thereafter, Section 168 empowers the Claims Tribunal to “make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be “just‟. There is no other limitation or restriction on its power for awarding just compensation.”

                  The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213]

                  11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

Analysis:

21. The age of deceased, as per Post-mortem certificate is “45‟ years. Upon considering the socio-economic circumstances of the year 2007 and the evidence of P.Ws.1 and 2 that the deceased was engaged in gazing buffaloes etc., her income can be taken at Rs.80/- per day i.e. Rs.2,400/-per month. By taking note of the age of the deceased and her occupation, 20% can be added towards future prospects, with which the income of the deceased can be taken at around Rs.3,000/- per month. On deducting 1/3rd towards personal expenditure, the contribution of the deceased to the family can be accepted at Rs.2,000/- per month and Rs.24,000/- per annum, which can be considered as the multiplicand. For the age group of 45 years, the multiplier applicable is “14‟. Upon application of the same, the claimants are entitled for compensation under the head of loss of dependency comes to Rs.3,36,000/- (Rs.24,000/- x 14).

22. Further, the claimants are entitled for compensation under the conventional heads i.e. Rs.40,000/- each towards loss of consortium (claimant No.1-spousl consortium and Claimant Nos.2 to 6-parental consortium), Rs.15,000/- towards funeral expenditure and Rs.15,000/-towards loss of estate.

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

                  

24. For the reasons aforesaid and in view of the discussion made above, the point framed is answered concluding that the claimants are entitled for compensation of Rs.6,06,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization and the judgment and decree dated 25.11.2008 passed by the learned MACT in M.V.O.P.No.1164 of 2007 require modification accordingly.

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

25. 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, that –

                  “..there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award “just” compensation, which is reasonable on the basis of evidence produced on record.”

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

                  “33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.”

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

                  “5. Though the claimants had claimed a total compensation of Rs 25,00,000 in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation”. The Motor Vehicles Act is a beneficial and welfare legislation. A “just compensation” is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time-barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty-bound to award just compensation.”

Point No.2:

26. In the result, the appeal is allowed as follows:

                  (i) Compensation awarded by the learned MACT in M.V.O.P.No.1164 of 2007 at Rs.1,39,500/- with interest at the rate of 7.5% per annum is modified and enhanced to Rs.6,06,000/- with interest at the rate of 6% per annum from the date of petition till the date of realization.

                  (ii) Claimants are liable to pay the Court fee for the enhanced part of the compensation, before the learned MACT.

                  (iii) The enhanced compensation shall be apportioned equally among all the claimants.

                  (iv) Respondent Nos.1 and 2 before the learned MACT are jointly and severally liable to pay the compensation. However, respondent No.2 / Insurance Company is liable in view of the insurance policy.

                  (v) Time for payment /deposit of balance amount is two months.

                  (a) If the claimants furnish the bank account number within 15 days from today, the respondents shall deposit the amount directly into the bank account of the claimants and file the necessary proof before the learned MACT.

                  (b) If the claimants fail to comply v(a) above, the respondent No.2 / Insurance Company shall deposit the amount before the learned MACT and the claimants are entitled to withdraw the amount at once on deposit.

                  (vi) There shall be no order as to costs, in the appeal.

27. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.