(Prayer: Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased to

IA NO: 1 OF 2012(MACMAMP 5458 OF 2012

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 409 days in filing the above MACMA against the Decree and order passed by the District Judge cum Motor Accidents Claims Tribunal, Chittoor District in MVOP No. 144 of 2007, dt. 4-3-2011 and to pass)

Introductory:

1. Claimants in M.V.O.P.No.144 of 2007 on the file of District Judge-cum- Chairman, Motor Accidents Claims Tribunal (for short “the learned MACT”), feeling dissatisfied by the quantum of compensation of Rs.8,38,224/- awarded under the impugned judgment and decree dated 04.03.2011 as against the claim made for Rs.15,00,000/-, filed the present appeal

2. Climate No.1 is the wife, climate No.2 is the son, climate No.3 is the daughter of one D. Jagannadha Nayudu, (hereinafter referred as ‘the deceased’).

3. Respondent No.1 is the owner, respondent no.2 is the insurer of the lorry bearing No.AP 02 U 5299 (hereinafter referred to as “the offending vehicle”) and respondent No.3 is the owner of the Eicher Van bearing no.AP 9P 5840 in which the deceased was travelling (for short Eicher van), before the learned MACT.

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

Case of the claimants/petitioners:

5 (i). While the deceased was going to his official duty on 15.04.2006 at about 10.00p.m. in the Eicher Van bearing No.AP 9P 5840, when it reached near Ranapur village within the limits of Pebberi Police Station, MahabubNagar District, the offending vehicle belonging to the 1st respondent, being driven by its driver, came in a rash and negligent manner and dashed the Eicher van, causing the accident and instantaneous death of the deceased.

                  (ii). A case in Cr.No.41 of 2006 for the offences under Sections 337, 304-A IPC was registered against the driver of the offending vehicle and charge sheet was laid.

                  (iii) The accident occurred due to rash and negligent driving of the driver of the offending vehicle.

                  (iv) The 1st respondent is the owner, 2nd respondent is the insurer of the offending vehicle and the 3rd respondent being the owner of a Eicher van. All the respondents are jointly and severally liable to pay the compensation and the claimants/petitioners and dependents entitled for the same.

                  (v) The deceased was aged about ‘51’ years and earning Rs.9378/- per month while working as an Armed Reserve Police and also Rs.1,00,000/- per annum from cultivation.

                  (vi) The petitioners lost all financial and valuable support due to sudden death of the deceased, who was the sole breadwinner of the family. Hence they are entitled for the compensation claimed.

6. The first respondent owner of the offending vehicle remained ex parte

Case of respondent No.2 / Insurance Company:

7 (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 as well as the dependency of the claimants/petitioners.

                  (ii) Compensation claimed is excessive.

case of the 3rd respondent:-

8. (i) Claimants shall prove the all the allegations made. The deceased was working as a driver and was deputed to drive Eicher van to PTC, Amberpet, Hyderabad under the charge of ARSI – K.V.Sankar with escort party.

                  (ii) The 3rd respondent is not a proper party, there is no liability for the 3rd respondent and liability if any shall be on the 1st and 2nd respondents.

                  (iii). In any event, the 3rd respondent is not liable to pay compensation.

Evidence before the learned MACT:-

9. (i) The first petitioner/claimant - wife of the deceased was examined as a PW1. She has stated about the relationship of claimants with the deceased, age, occupation and income of the deceased.

                  (ii) One K.Gurrappa Naidu was examined as PW2, but he has stated during the cross of examination that he did not witness the accident.

                  (iii) PW.3- P.Chenchu Reddy said to be an eyewitness and one of the inmates of the van travelling along with the deceased, deposed about the negligence of the driver of the offending vehicle.

                  (iv) Claimants relied on Exs.A1- FIR, A2 -charge sheet, A3 -Post- Mortem Certificate, A4 -Salary Certificate of the deceased, A5-Patadar passbooks, A6 –M.V.I. Report, A7 -Crime details form.

Findings of the learned MACT:

10. (i). Relying on the evidence of the 1st petitioner and the eye witness and also crime record, learned MACT found that the accident and negligence are proved and by relying on the other evidence including salary certificates etc., accepted the income of the deceased @Rs.9,298/-, arrived annual income @Rs.1,11,576/-, deducted 1/3rd towards personal expenditure, applied multiplier ‘11’ and awarded Rs.8,38,224/- as a compensation in all (Rs.8,18,22/- towards loss of income, Rs.10,000 towards loss of consortium, Rs.5,000/- towards loss of estate and funeral expenditure under each head.)

11. Heard both sides extensively.

12. Perused the record. Thoughtful consideration is given to the arguments advanced by both sides.

Arguments in the appeal:

For the appellants/ claimants:

13. (i). Learned Tribunal ought to have granted the compensation as claimed.

                  (ii) The learned MACT ought to have accepted the agricultural income @Rs.10,000/-. Calculations made are erroneous.

For the 2nd Respondent-Insurance Company:-

14. (i) Compensation awarded is excessive.

                  (ii) There is no proof of agricultural income and there will be no loss even from the agricultural income even after the demise of the deceased.

                  (iii) Therefore, the compensation awarded under the impugned judgment and decree does not require any interference.

Scope of the Appeal:-

15. The appeal is filed by the claimants, there is no cross appeal etc. by the respondent Insurance Company. Therefore, the entitlement of the claimants for compensation and the negligence, driver of the offending vehicle and the liability of the respondent Nos.1 and 2 to pay the compensation, are all out of dispute. The only point that requires examination is - what is the just and adequate compensation to which the claimants are entitled.

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

                  1) Whether the compensation of Rs.8,38,224/- awarded by the learned MACT in M.V.O.P.No.144 of 2007 under the impugned judgment and decree dated 04.03.2011 is just and reasonable ? or require any modification or enhancement? and if so, to what extent?

                  2) What is the result of the appeal?

Point No.1:

Precedential Guidance:

Quantum of compensation:

17 (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. vs. 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. vs. 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:

18. 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.

Reasoning and Findings on Compensation:-

19 (i). The claimants/petitioners relied on employment of the deceased and also agricultural income of the deceased said to have been earned by the deceased, but to show agricultural income, the claimants relied on Pattadar passbooks standing in the name of Smt.B.Kamalamma. Clear evidence indicating what is the holding of the deceased and what was the agricultural income from the lands is not shown to consider managerial loss due to demise of the deceased.

                  (ii) The deceased was in regular employment. Therefore, the lands might have been managed by somebody.

                  (iii) Then the income from the lands shall be substantially same as rightly argued by the learned counsel for the Insurance Company.

                  (iv) With regard to income from the employment, the claimants relied on Ex.A4- salary certificate which would show that the deceased was drawn total salary of Rs.9,378/- in gross and Rs.5292 in net.

                  (v) Deductions are shown @ Rs.1670/- and private deductions are shown at Rs.1866/-.

                  (vi) Learned MACT accepted the income @9298/- after excluding only Professional Tax. There is no appeal by the insurance company as to the propriety in accepting the income @Rs.9298/-. The deceased aged about 51years, for the persons around 50years adding a future prospect at 10%contemplated. Hence, income shown can be taken (Rs.9298/- (+) Rs.929 (10%)) @Rs.10,227/-. 2/3rd of the same comes to Rs.6,818/- per month and @Rs.81816/- per annum. If multiplier ‘11’ applied loss of dependency will come to Rs.8,99,976/-.

                  (viii) Further with regard to awarding compensation under the heads of loss of consortium, loss of estate and funeral expenditure the amount awarded by learned MACT not in tune with the guidelines of Sarla Verma, Pranay Sethi, Magma General Insurance Company, etc. (cited supra) cases. Therefore, modification is required to that extent upon application of presidential guidance covered by the authorities mentioned above.

20. 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: