High Court · 2011

Judgment

This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the order dated 01-08-2007 in O.P No. 1324 of 2005 on the file of the IV Additional Metropolitan Sessions Judge-cum- XVIII Additional Chief Judge, Hyderabad. The claimants are the appellants. They filed the said O.P claiming compensation of Rs.2,00,000/- for the death of N.Linga Goud in an accident. The fifth appellant is the son and appellants 1 to 4 are the legal heirs of predeceased son of the deceased. They pleaded that the deceased was a toddy taper and by doing toddy business he was earning Rs.6,000/- per month. On 02.05.2005 at about 01.45 hours, while the deceased, his relatives and others were travelling in Tata Spacio Gold vehicle bearing No.AP-28-BB-7644 towards Hyderabad and when they reached the village limits of Domadugu, the driver of the said vehicle drove the same with high speed, rashly and negligently, due to which the said vehicle turned turtle and the deceased and two of his relatives died on the spot and others received grievous injuries.

The first respondent remained ex parte before the Court below. The second respondent – Insurance Company filed the counter denying all the material allegations. On the strength of the pleadings, the Tribunal framed the point as to whether the accident resulting in the death of N.Linga Goud occurred owing to the rash and negligent driving of the driver of Tata Spacio Gold bearing No.AP-28-BB-7644 and whether the petitioners are entitled for compensation. On behalf of the appellants, PW 1 and 2 were examined and Exs.A.1 to A.5 were marked and Exs.B.1 and B.2 marked on behalf of the second respondent – Insurance Company. On a consideration of the oral and documentary evidence available on record, the Tribunal allowed the O.P in part and awarded Rs.1,30,000/- towards compensation. Dissatisfied with the amount of compensation granted by the Tribunal, the present appeal is filed by the appellants. The learned counsel for the appellants contended that the Tribunal has awarded only Rs.2,000/- per month as the earnings of the deceased which is on lower side and, therefore, the same needs to be enhanced. The learned counsel for the respondent – Insurance Company contends that the compensation awarded by the learned Judge is quite reasonable and needs no interference. There is no dispute with regard to the rash and negligent driving of the driver of the crime vehicle. Regarding the earnings of the deceased, the appellants claimed that the deceased was earning Rs.6,000/- per month and in the absence of any contra evidence produced by the respondents, it can be notionally taken as Rs.3,500/- per month and in my view the same would meet the ends of justice. In Sarala Verma v. Delhi Transport Corporation[1], the Supreme Court observed that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one- fourth (1/4th) where the number of dependent family members is 4 to 6 and one-fifth (1/5th) where the number of dependent family members exceed six. Hence, after deducting one-fourth amount as per the judgment of the Supreme Court in the said case loss of earnings would come to Rs.31,500/- per annum (Rs.3,500X12x1/4). The relevant multiplier for the age of 60 years as per Sarla Verma’s case (1 supra) is 9 and if the same is applied, loss of earnings comes to Rs.2,83,500/- (Rs.31,500X9). A further sum of Rs.10,000/- is granted towards loss of consortium and Rs.10,000/- is granted towards loss of estate. Thus, the total amount of compensation to which the appellants are entitled to comes to Rs.3,03,500/-, which is more than the amount of compensation of Rs.2,00,000/- as claimed by the claimants. At this stage, it is contended by the learned counsel for the appellants that the Court can award the compensation amount exceeding the claimed amount. In support of his contention, he relied on a decision of the Apex Court reported in NAGAPPA V. GURUDAYAL SINGH ([2]) wherein it is held thus; “Under the provisions of Motor Vehicles Act, 1988, is no restriction compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is – it should be ‘just’ compensation that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident by all or any of the legal representatives of the occasion or (d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said section is sub section (4) which provides that ‘the Claims Tribunal shall treat any report of accidents forwarded to it under sub section (6) of section 158 as an application compensation under this Act’. Hence, claims Tribunal is appropriate case can treat the report forwarded it as an application compensation even though no such claim is made or no specified amount is claimed.” Considering the facts and circumstances of the case and in view of the ratio laid down by the Apex Court in the above decision, I am of the considered opinion that the claimants are entitled to a just compensation of Rs.3,03,500/- under all the heads, as stated above. Accordingly, this appeal is allowed awarding the compensation of Rs.3,03,500/-. The enhanced amount shall carry interest at 6% per annum from the date of petition till realisation. The compensation awarded shall be apportioned among the claimants as fixed by the Tribunal. However, it is made clear that since the Court fee is paid only to an extent of Rs.2,00,000/-, the claimants are directed to pay the remaining Court fee on the enhanced compensation. There shall be GHULAM MOHAMMED, J no order as to costs. Date:17.03.2011 [1] 2009 (6) SCALE 129 [2] 2003(1) ALD-1 (SC)