(Prayer: Appeal filed under Order 41 of CPC before the High Courtaggrieved by the Judgment and Decree of the Motor Accidents Claims Tribunal (Family Court)-Cum-IX Additional District and Sessions Judge Court) East Godavari at Rajahmundry, passed in MVOP No. 470 o 2013 dated 16-4-2015

IA NO: 1 OF 2015(MACMAMP 3113 OF 2015

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 grant stay of execution of Decree passed by the Motor Accidents Claims Tribunal (Family Court)-Cum-IX Additional District and Sessions Judge Court) East Godavari at Rajahmundry, Passed in MVOP No. 470 of 2013 dated 16-4-2015, pending disposal of the above MAMCA No. of 2015 and pass

IA NO: 2 OF 2015(MACMAMP 4421 OF 2015

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 vacate the interim stay granted in MACMA.MP.no. 3113 of 2015 in MACMA.No. 1450 of 2015 dt. 28/07/2015)

Introductory:

1. Respondent No.2 / A.P.S.R.T.C in M.V.O.P.No.470 of 2013 on the file of Motor Accidents Claims Tribunal-cum-Family Court-cum-IX Additional District and Sessions Court, East Godavari District at Rajahmundry (for short “the learned MACT”) filed the present appeal disputing the order and decree dated 16.04.2015 passed by the learned MACT in the said case, contending that the liability imposed and the quantum of compensation awarded are not correct and that the order and decree are liable to be set-aside.

2. The claim was made seeking compensation of Rs.7,00,000/- for the death of one Varada Chinnabbai (hereinafter referred to as “the deceased”) and the learned MACT awarded compensation of Rs.5,36,000/-.

3. For the sake of convenience, parties will be hereinafter referred to as the claimants/petitioners and the respondents with reference to their status before the learned MACT.

Case of the claimants:

4(i). The 1st petitioner is the wife. The 2nd petitioner is the minor son. The 3rd and 4th petitioners are the parents of the deceased. The deceased was aged about 22 years by the date of accident. i.e. on 21.12.2012. The accident occurred while the deceased was travelling on his motor cycle at about 12:30 P.M. on the outskirts of Addateegala near Teak plantation. An A.P.S.R.T.C. bus bearing No.AP 28 Z 0495 (hereinafter referred to as “the offending vehicle”) driven by respondent No.1 came in a rash and negligent manner and dashed against the motorcycle of the deceased and ran over the same, causing the death of the deceased. The negligence of the driver of the bus / offending vehicle is the cause for the accident and respondent No.2, being the owner, is liable .

               (ii). The deceased was attending labour work, earning Rs.300/- per day and contributing the same for his family. The claimants are his dependents and legal heirs. Therefore, they are entitled for compensation.

5. Respondent No.1, driver of the offending vehicle, remained ex parte before the learned MACT.

Case of respondent No.2.

6(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 specific case of respondent No.2 is that negligence of the deceased in riding the motorcycle is the cause for the accident and that the claimants are not entitled for any compensation.

7. On behalf of the claimants, claimant No.1, wife of the deceased was examined as P.W.1. She has stated about the relationship of the deceased with the claimants and the occupation and income of the deceased. She is not an eye witness to the accident.

8. P.W.2, one Somu Satyanarayana, an eye witness to the accident, stated about the negligence of the driver of the offending vehicle and denied the contribution of the deceased for the accident.

9(i). On behalf of the respondents, one Pandrada Manikyam, the driver of the offending vehicle i.e. respondent No.1, was examined as R.W.1. He denied his negligence.

               (ii). During his cross examination, he has admitted that the police registered a case vide Crime No.77 of 2012 against him and that he was convicted by the learned Magistrate, but added that he was acquitted in appeal.

Evidence:

10. On the strength of the evidence, the learned MACT believed that negligence of the driver of the offending vehicle was the cause for the accident and by adopting income notionally at Rs.3,000/- per month, taken Rs.36,000/-per annum. After deducting 1/4th towards personal expenditure, the multiplicand was taken as Rs.27,000/-. The multiplier “18‟ was adopted and the loss of income was arrived at Rs.4,86,000/-. An amount of Rs.20,000/- was added towards loss of consortium to the 1st petitioner, Rs.20,000/- towards loss of love and affection to the 2nd petitioner and Rs.10,000/- towards funeral expenditure. In all, a sum of Rs.5,36,800/- was awarded. Both quantum and liability are in dispute in this appeal.

Arguments in the appeal:

For the appellant:

11(i). Contributory negligence of the deceased in occurrence of the accident is ignored.

               (ii). The income adopted is not correct and baseless.

               (iii). The compensation awarded is excessive.

               (iv). The evidence of R.W.1, driver of the offending vehicle, is ignored.

For the claimants:

12(i). The learned MACT failed to award compensation under all heads

               (ii). Evidence is properly appreciated while accepting the negligence. No interference is necessary.

               (iii). The compensation awarded requires enhancement.

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

Points:

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

               1) Whether the liability fixed and quantum of compensation of Rs.5,36,000/- awarded by the learned MACT are just and reasonable or require any interference?

               2) What is the result of the appeal?

Point No.1:

Accident and Negligence:

15. 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. The said aspect has been approved by this Court in number of cases.

16(i). In a case between New India Assurance Company Ltd., Vs. Kethavarapu Sathyavathi and Ors. (2009 Supreme (AP) 136=2010(2) ALD 403=2009(3) ALT 260), the Hon‟ble Division Bench of High Court of Andhra Pradesh has referred to Section 168, 169 of M.V. Act and Rule 476(7) of A.P. Motor Vehicles Rules and also catena of decisions. The point for consideration before the Hon‟ble Division Bench was that in holding an inquiry in terms of Motor Vehicles Act, what is the procedure to be followed and whether the F.I.R. can be basis for considering the claim. Relevant observations are in para Nos.5 to 7.

               (ii). In a case between Bhagwan Ram and Ors. Vs. Deen Dayal and Ors. (2013 (0) sc (Raj) 812), while considering the nature of proof is required for believing the negligent driving in Motor Accident Claims, the Hon‟ble High Court of Rajasthan found that Certificate and the copies of documents prepared by the Police on the spot, including the Challan, First Information Report etc. are admissible, even in the absence of statement of eye witnesses and the same can be the basis to believe the negligent driving of the driver of the offending vehicle, vide para-11.

               (iii). In Anitha Sarma and Others Vs. New Indian Assurance Company Ltd. (2021(1) SCC 171), the Honble Apex Court observed that in Motor Accident Claims, standard of proof required is the preponderance of possibilities but not beyond reasonable doubt; approach and role of the Courts, while examining the evidence in accident cases, ought not to be to find fault with non-examination of the best eye witnesses, as may happen in criminal Trial, but instead should be only to analyse the material placed on record by the parties to ascertain whether the claimant‟s version is more likely than not true. The relevant observations are in para-17.

               (iv). 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..”

17. Ex.A1-FIR and the admission of the R.W.1 that he was charge-sheeted and convicted by the trial Court are found sufficient to believe, at least prima facie, the negligence on the part of the driver of the offending vehicle. The acquittal at appellate stage, whether a clean acquittal etc. is not known for want of proper material and no documents are marked on behalf of the respondents.

18. Therefore, the argument that there was negligence on the part of the deceased or at least contributory negligence, has no basis. Moreover, the evidence of P.W.2, the eye witness, is clear as to the negligence of the driver of the offending vehicle. Therefore, the findings of the learned MACT do not require any interference on the point of occurrence of accident and negligence of the driver of the offending vehicle.

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.

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

21. 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:

22(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 (12 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 (13 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.

23. The age of the deceased is “22‟ years, is not in dispute. The applicability of the multiplier “18‟ is clear. The deceased was working as coolie/ labourer. The income is adopted at Rs.3,000/- notionally. Even if the same is considered as excessive, the income can be taken at Rs.80/- per day, considering the socio-economic status of the year 2012 (year of accident). Then the monthly income comes to around Rs.3,000/-. Adding 30% income towards future prospects is permissible. The same comes to Rs.3,900/- per month and Rs.46,800/- per annum.

24. The dependents are four in number. Therefore, 1/3rd of the income is liable to be deducted towards personal expenditure and the contribution of the deceased to the family comes to Rs.31,200/- per annum. For the age group of “22‟ years, the applicable multiplier is “18‟, whereby the entitlement of claimants under the head of loss of dependency comes to Rs.5,61,600/-(Rs.31,200/- x 18).

25. Further, the claimants are entitled for compensation under the conventional heads i.e. Rs.40,000/- each towards loss of consortium, Rs.15,000/- towards funeral expenditure and Rs.15,000/- towards loss of estate. Whereby entitlement of claimants for compensation comes to Rs.7,51,600/-

26. 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: