KARNATI VIJAYALAKSHMI v. M SIVANANDA REDDY

THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A.No.1243 of 2012 JUDGMENT: Introductory:

1. One K. Venkata Narayana Rao (hereinafter referred to as "the deceased") died in a road traffic accident that occurred on 24.02.2003 near Palmolin Oil Garden within the limits of Addanki Police Station. His wife and daughters filed M.V.O.P.No.376 of 2003 claiming compensation and under the order and decree dated 02.09.2006 on the file of Motor Accidents claims Tribunal-cum-IV Additional District Judge (Fast Track Court), Ongole (for short "the learned MACT"), awarded a compensation of Rs.1,39,750/-. Questioning the same as in adequate, the present appeal is filed by the claimants.

2. Respondent No.1 is the owner of the Jeep bearing No.AP 27 U 1889 (hereinafter referred to as "the offending vehicle"). Respondent No.2 is the Insurance Company with which the offending vehicle was insured.

3. 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 in the proceedings before the learned MACT. Case of the claimants: 4(i). 1st petitioner is the wife, the 2nd and 3rd petitioners are the daughters of the deceased. The deceased was a business man having a wine shop at Medarametla in the name and style of Sri Venkateswara Wines and was also 4 one of the directors of Khajana Chit Funds and a partner of Vijaya Parvathi Constructions and was getting an income of Rs.10,000/- to 12,000/- per month The 2nd petitioner was studying in Vikas Mahila Residential College, Guntur and the 3rd petitioner was studying in Vikas Public School, Guntur. (ii). On the fateful day i.e. on 24.02.2003, he was proceeding on his motor cycle at about 2:00 p.m. to Medarametla and when he was near Palmolin Oil Garden of Oguri Seshaiah, the offending vehicle belonging to respondent No.1, driven by its driver, came in a rash and negligent manner causing the accident. The deceased was shifted to Sri Venkata Ramana Nursing Home, Ongole but succumbed to injureis during treatment. The petitioners lost valuable financial and emotional support. Hence, they are entitled for compensation. Case of respondent No.1:

5. The negligence of the deceased is the cause for accident. The deceased was coming on a motor cycle at high speed, some buffaloes on hearing sound of the horn came suddenly came across the road. To avoid the same, the motor cyclist hit the jeep and there was no negligence on the part of the driver of the jeep / offending vehicle. The petitioners allegations are incorrect. Case of respondent No.2 / Insurance Company:

6. The petitioners shall prove the pleaded accident, negligence, death of deceased due to accident, valid and effective driving licence of the driver of the offending vehicle, age, occupation and income of the deceased. Initially, the case was registered as unknown vehicle and it appears that the vehicle is planted. The owner and Insurance Company of the motorcycle are also 5 necessary parties. The petition is liable to be dismissed. Findings of the learned MACT: 7(i). While referring to the crime records and the evidence of P.Ws.2 and 3, eye witness to the accident, the learned MACT found that the negligence of the driver of the jeep/offending vehicle as the cause for the accident. The contention of the Insurance Company as to the contents of Ex.A1-FIR being different is not acceptable. When the contents of Ex.A5-charge sheet are seen in the light of the evidence of P.Ws.2and 3. (ii). By referring to the age of the deceased as '38' and the evidence of other witnesses and documents Ex.A9 to Ex.A16 fee certificates, Ex.A6-Registrartion of Firm certificate. Ex.A7-partnership deed firm and Ex.A8- Memorandum of Articles of Association etc., the learned MACT disbelieved the income of the deceased at Rs.10,000/- to Rs.12,000/- per month and notionally accepted the income of the deceased at Rs.2,000/- per month and taken the age of the deceased as '39' years by referring to Ex.A2-Inquest Report. The adopted multiplier is 15. 1/4th of the income of the deceased was deducted towards personal expenditure and arrived at Rs.2,70,000/- towards loss of income but attributed contributory negligence to the deceased to the tune of 50% and fixed the entitlement of the petitioners at Rs.1,35,000/- towards loss of dependency and awarded Rs.5,000/- towards loss of consortium, Rs.2,000/- towards funeral 6 expenditure and Rs.2,500/- towards loss of estate and deducted 50% from the said heads also, finally awarded Rs.1,39,750/- as the compensation payable. Scope of the appeal:

8. Claimants before the learned MACT filed the appeal. Learned counsel for the respondent Insurance Company would submit that although they have not filed an appeal, they are entitled to contest both liability and quantum. Arguments: 9(i). Learned counsel for the appellants would submit that the learned MACT seriously erred in observing contributory negligence while quantifying the compensation having held that the accident occurred due to negligence of the driver of the offending vehicle while answering issue No.1. Taking income at Rs.2,000/- per month is not correct and is baseless. When there is ample evidence indicating the age, occupation and income of the deceased, there is no clarity in discussion and answering the issue by the learned MACT. (ii). The empathetical and practical concern is missing on the part of the learned MACT.

10. In reply, learned counsel for the respondent-Insurance Company would submit that the appeal is fit to be dismissed. The grounds urged for interference are not sufficient.

11. Heard both sides extensively. Perused record. Thoughtful consideration is given to the arguments advanced by the both sides. 7

12. The points that arise for determination in this appeal are: 1) Whether the claimants are entitled for compensation against the respondents and if so to what tune and whether the compensation of Rs.1,39,750/- awarded by the learned MACT under the impugned order requires any interference and enhancement; if so, on what grounds and to which extent? 2) what is the result of the appeal? Point No.1: Negligence: Statutory Guidance: 13(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: 8

14. The Hon’ble Apex Court in Bimla Devi and others Vs. Himachal Road Transport Corporation1 , 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..” Analysis and findings:

15. Ex.A1-FIR, Ex.A2-Inquest report, Ex.A3-Post Mortem Certificate Ex.A4- Accident Information Report (MVI report), Ex.A5-Charge sheet are sufficient to believe the occurrence of the accident and death of deceased due to accident and also the charge sheet filed against the driver of the offending vehicle.

16. It is relevant to note that there is no evidence from the respondents side. What prevented the respondent-Insurance Company from examining the driver of the offending vehicle is not known. There is no oath against oath.

17. P.Ws.2 and 3 are said to be the eye witnesses to the accident. Their evidence is clear and categorical as to the negligence of the driver of the offending vehicle. 1 2009 (13) SCC 530 9

18. P.W.2 stated that the jeep driver did not stop after hitting the deceased, in spite of shouting to stop the jeep/offending vehicle. P.W.2 claims that he was examined by the police.

19. P.W.3 evidence is also on similar lines. There is nothing to discredit the evidence of P.Ws.2 and 3

20. It is not the case of the respondents that the driver of the offending vehicle was acquitted in a criminal case. There is no convincing evidence to show the contributory negligence on the part of the deceased. Therefore, the accident is attributable to the conduct of the driver of the offending vehicle. Quantum: Precedential guidance: 21(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.2 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 Others3 case directed for adding future prospects at 50% in respect of permanent employment where the deceased is below 40 years, 30% 2 2009 (6) SCC 121 3 2017(16) SCC 680 10 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 Others4, 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:

22. In Rajesh and others vs. Rajbir Singh and others5, 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,