(Prayer: Appeal filed under Order 41 of CPC before the High Courtbegs to prefer this memorandum of appeal being aggrieved by the Judgment and Decree dated 17-06-2022 passed in MVOP.No.22 of 2017 on the file of Chairman, Motor Accidents Claims Tribunal -Cum-VIII Additional District Judge, Vijayawada,

IA NO: 1 OF 2022

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 45 days in filing the above MACMA in MVOP 22 of 2017 order dated 17-06-2022 passed by the Hon'ble Chairman, Motor Accidents Claims Tribunal cum VIII Additional District Judge At Vijayawada

IA NO: 2 OF 2022

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 enhance the compensation amount from Rs. 11,88,828/- to 24,28,170/- to pay jointly and severally by all Respondents, passed in Order dated 17-06-2022 in MVOP No. 22 of 2017 passed by the Hon'ble Chairman, Motor Accidents Claims Tribunal cum VIII Additional District Judge at Vijayawada.)

1. This appeal is filed by the appellants/claim petitioners aggrieved by the award dated 17.06.2022 passed by the Chairman, Motor Accident Claims Tribunal – cum – VIII Additional District Judge, Vijayawada in M.V.O.P.No.22 of 2017, whereby, the Tribunal awarded compensation of Rs.11,88,828/- as against the claim of Rs.16,00,000/-.

2. For the sake of convenience, the parties are referred to as they are arrayed before the Tribunal.

3. The 1st petitioner is the mother, 2nd petitioner is the wife, 3rd and 4th petitioners are children of one Peeka Nagamalli Koteswara Rao (hereinafter referred to as ‘deceased’). The 1st respondent is the driver, 2nd respondent is the owner and the 3rd respondent is the insurer of the vehicle (lorry) bearing No.AP-07-TT-9823 (hereinafter referred to as ‘crime vehicle’). On 25.10.2016, at about 08.00 p.m., while the deceased was walking on the side of road in front of TCI Bharath Petrol Bunk situated in 100 feet road, Autonagar, Vijayawada, the crime vehicle, being driven by the 1st respondent in a rash and negligent manner without blowing horn, dashed the deceased due to which, he fell down and sustained grievous injuries. Immediately, when the staff of the petrol bunk tried to shift him to hospital in an ambulance, he was declared as dead by the ambulance personnel. The incident was reported to Police who filed a case against the 1st respondent in Crime No.765/2016 and after completion of investigation, a charge sheet was also filed against the 1st respondent. It is the contention of the petitioners that the deceased, aged about 50 years, used to work as a fitter in various companies and used to earn Rs.15,200/- per month. Seeking compensation of Rs.16,00,000/- for the accidental death of the deceased in a road accident, the petitioners filed an application under Section 166 of the Motor Vehicles Act, 1988 read with Rule 455 of the Andhra Pradesh Motor Vehicle Rules, 1989.

4. Respondent Nos.1 and 2 remained exparte. The 3rd respondent – insurance company, contested the claim petition by filing a written statement contending that the deceased was negligent at the time of accident and denied the income of the deceased as claimed by the petitioners. It further contended that the 1st respondent does not have valid and effective driving license at the time of accident and that it is not liable to pay compensation to the petitioners.

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

                  1) Whether the deceased sustained injuries on his head due to the road accident?

                  2) Whether the accident occurred due to rash and negligence driving of the driver of lorry bearing No.AP 07 TT 9823?

                  3) Whether the deceased was doing private work and earning Rs.15,200 p.m., during his life time?

                  4) Whether the 1st respondent driver not holding valid driving license as on the date of accident?

                  5) Whether the 2nd respondent violated the terms and conditions of insurance policy?

                  6) Whether the petitioner is entitled to claim compensation from respondent Nos.1 to 3 jointly and severally?

                  7) To what relief the petitioners are entitled?

6. During the course of trial, the petitioners got examined P.Ws.1 to 4, got marked Exs.A1 to A24 along with Exs.X1 to X10. Though the 3rd respondent did not choose to adduce oral evidence, it got marked Ex.B1 – copy of insurance policy.

7. The Tribunal, after considering all the facts and material available before it, awarded Rs.11,88,828/- to the petitioners by holding that respondent Nos.1 to 3 are jointly and severally liable to pay. Seeking enhancement of the compensation awarded by the Tribunal, the claim petitioners filed the present appeal by contending that the Tribunal erred in considering the monthly income of the deceased as Rs.7,000/- instead of considering the same as Rs.15,200/- as claimed by the petitioners.

8. Heard Sri. S. Bala Mohan Ranga, learned counsel for the appellants and Sri. Sravan Kumar Meda, learned counsel for the respondents.

9. Perused the entire material available on record. In order to prove that the accident occurred due to the rash and negligent driving of the 1st respondent, the 2nd petitioner got examined herself as P.W.1 and reiterated the manner in which the accident had occurred. In support of her case, P.W.1 got marked Exs.A1 to A24. The 2nd petitioner also got examined one G. Krishna Kumari as P.W.2 who claim to be an eye witness to the occurrence of the accident. P.W.2 deposed that at the time of accident she was working in the petrol bunk and that on the fateful day, at about 08.00 p.m., the deceased was walking on the side of the road in front of TCI Bharath Petrol Bunk situated in 100 feet road, Autonagar, Vijayawada; at that juncture, the 1st respondent, after filling petrol in the crime vehicle proceeded towards the exit of the petrol bunk in a rash and negligent manner, without honking and dashed the deceased, due to which, he fell down on the road and sustained grievous injuries; she further deposed that immediately the staff of petrol bunk tried to shift the deceased to a hospital in an ambulance and when the ambulance arrived, he was declared dead by the ambulance personnel. Though the 3rd respondent contended before the Tribunal that there is negligence on the part of the deceased at the time of accident and that it is not liable to pay compensation to the petitioners as the 1st respondent has no effective and valid driving license, the Tribunal, considering the evidence of P.Ws.1 and 2 coupled with Ex.A1 – copy of FIR filed against the 1st respondent by the Police and Ex.A5 – copy of the charge sheet filed against the 1st respondent after conducting due investigation, the Tribunal came to a conclusion that deceased died in an accident that occurred due to the rash and negligent driving of the 1st respondent, which, in the considered opinion of this Court is just and proper. The evidence of P.W.2, who is an eye witness to the occurrence of the accident is very apt with regard to the manner of the accident. It establishes the negligence of the 1st respondent while exiting the petrol bunk. Hence, the Tribunal has rightly answered issue No.1 in favour of the petitioners.

10. Now, coming to the quantum of compensation, the petitioners claim that the deceased used to earn Rs.15,200/- per month by working as Supervisor under one Ch. Murali Mohana Rao, Class – I Contractor. In support of their claim, the petitioners got examined one V. Srinivas (P.W.4) who is an employee under Ch. Murali Mohana Rao who deposed that the deceased was earning Rs.15,200/- per month and got marked Ex.A16 and A17 (salary certificates of the deceased). However, as Exs.A16 and A17 do not contain any date, the Tribunal has rightly disbelieved the claim of the petitioners that the deceased used to earn Rs.15,200/- per month. In such circumstances, the Tribunal considered the notional monthly income of the deceased as Rs.7,000/-; added 25% towards future prospects (Rs.7,000/- + 25% of Rs.7,000/- [Rs.1,750/-] = Rs.8,750/-); deducted 1/4th of such monthly income towards personal expenses (Rs.8,750/- - Rs.8750/- / 4 = Rs.6,563/-); computed the annual income of the deceased as Rs.78,756/- and considering the age of the deceased as 50, applied multiplier ‘13’ as per Sarla Verma and Ors. Vs. Delhi Transport Corporation and another (AIR 2009 SCC3104) and computed the compensation under the head of loss of dependency as Rs.10,23,828/-(Rs.78,756/- X ‘13’).

11. As rightly contended by learned counsel for the appellant, this Court is of the opinion that when the petitioners could not prove that the deceased used to earn Rs.15,200/- per month, the Tribunal, instead of considering the monthly income of the deceased notionally, ought to have taken the monthly income basing on the minimum wages applicable to a skilled labour as on the date of accident. Admittedly, the accident occurred in the year 2016 and as per the minimum wages payable in the year 2016, a skilled labour is being paid Rs.246/- per day and Rs.7,380/-per month (Rs.246/- X 30). As the deceased was aged about 50 years, he is entitled for an addition of 25% of his monthly income towards future prospects as per National Insurance Company Limited Vs. Pranay Sethi and ors., Thus, his monthly income would become Rs.9,225/-(Rs.7,380/- + 25% of Rs.7,380/- [Rs.1,845/-]). As all the petitioners (4 in number) are dependents on the deceased, 1/4th of his income shall be deducted towards personal expenses and the amount thus computed is Rs.6,919/-. The annual income of the deceased would become Rs.83,028/-. The relevant multiplier applicable to the deceased is ‘13’ and if the same is applied, the compensation under the head of loss of dependency would become Rs.10,79,364/- (Rs.83,028/- X ‘13’).

12. In addition, the Tribunal has awarded Rs.16,500/- under the head of loss of estate, Rs.16,500/- towards funeral expenses, Rs.44,000/-to the 2nd petitioner as spousal consortium and Rs.88,000/- to petitioner Nos.3 and 4 (Rs.44,000/- each) under the head of parental consortium. However, it can be seen that the Tribunal failed to award any amount to the 1st petitioner under the head of loss of consortium. The 1st petitioner, being the mother of the deceased is also entitled for an amount under the head of filial consortium. Thus, this Court feels it appropriate to award Rs.44,000/- to the 1st petitioner under the head of filial consortium. Thus, in total, the petitioners are entitled for a compensation of Rs.12,88,364/-.

13. In view of the foregoing discussion, the compensation awarded by the Tribunal under different heads and amounts would now become as under: