High Court · 2010

Judgment

The appellant-claimant filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment, dated

11.01.2008, passed in O.P.No.3066 of 2004 by the Chairman, Motor Accident Claims Tribunal-cum-XXII Additional Chief Judge, City Criminal Court, Hyderabad (for short ‘the Tribunal’).

2. The appellant-claimant is the wife of one Sanny Babu, who succumbed to the injuries sustained by him in a road accident occurred on 03.09.2004 at about 4.45 PM, near Lakshmi Filling Centre, Shadnagar, when he was travelling in the auto bearing No.AP 22U 8746 due to hit by a lorry bearing No.AP 3V 2597 on account of rash and negligent driving of its driver. The claimant filed the above said O.P., claiming compensation of Rs.3,00,000/- payable by respondents 1 and 2 being owner and insurer of the crime vehicle. Respondent No.3 is the father of the deceased. Respondent No.2-insurer filed counter denying the averments made in the claim petition and it was stated that the parents of the deceased filed O.P.No.250 of 2005 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Mahabubagar, making the claimant as third respondent therein and the same is pending. The Tribunal having held that as the claimant has not impleaded the mother of the deceased as party respondent, the petition is bad for non-joinder of necessary parties, dismissed the O.P. Hence, she filed the present appeal.

3. Heard the learned counsel for the appellant and the learned counsel for respondent No.2.

4. Learned counsel for the appellant-claimant vehemently contended that the Tribunal ought to have appreciated the fact that the mother of the deceased expired during his childhood and as such, it erred in dismissing the O.P. on the ground that the petition is bad for non-joinder of necessary parties. She further contended that as the Tr.C.M.P.No.219 of 2007 filed by the third respondent for clubbing both the O.Ps, was dismissed by this Court, the claimant being the wife of the deceased is entitled compensation.

5. From a perusal of the material on record, it is evident that the parents of the deceased filed O.P.No.250 of 2005 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Mahabubagar, claiming compensation of Rs.3,00,000/- making the claimant as third respondent, whereas, the claimant- wife filed O.P.No.3066 of 2004 on the file of the Motor Accident Claims Tribunal-cum-cum-XXII Additional Chief Judge, City Criminal Court, Hyderabad, making the father of the deceased as third respondent. While so, the father of the deceased, the third respondent herein, filed Tr.C.M.P.No.219 of 2007 before this Court seeking to transfer O.P.No.3066 of 2004 from the file of the Motor Accident Claims Tribunal-cum-XXII Additional Chief Judge, City Criminal Court, Hyderabad, to the file of the Motor Accident Claims Tribunal-cum- I Additional District Judge, Mahabubnar, wherein O.P.No.250 of 2005 is pending. Through order, dated 20.08.2007, this Court dismissed the Tr.C.M.P. holding that the trial in O.P.No.3066 of 2004 was commenced. Since O.P.No.250 of 2005 filed by the parents of the deceased is pending and the Tr.C.M.P. filed by the third respondent was dismissed, the claimant being the wife of the deceased is entitled to compensation.

6. As per the evidence of P.W.1-wife, her husband was aged about 25 years and earning a sum of Rs.3,000/- per month by running STD Booth at the time of the accident, and contribute his entire earnings to his family. As per Ex.A4-Post Mortem Report also, the age of deceased was mentioned as 25 years. Since the accident occurred in the year 2004, it would appropriate to take the monthly income of the deceased at Rs.2,500/-per month and annually at Rs.30,000/-. If 1/3rd from it is deducted towards his personal expenses, it comes to Rs.20,000/- per annum. Since the age of the deceased was 25 years as per Ex.A4-post mortem report, the appropriate multiplier for the said age group, as per the decision of the Apex Court in SARALA VERMA v. DELHI TRANSPORT CORPORATION[1], is ‘18’. Then, the loss of dependency comes to Rs.20,000x18= Rs.3,60,000/-. In addition to it, a sum of Rs.10,000/-towards loss of consortium and Rs.10,000/-towards loss of estate are also awarded. In total, a sum of Rs.3,80,000/- is awarded to the claimant.

7. As per the decision of the Apex Court reported in NAGAPPA V. GURUDAYAL SINGH ([2]) there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In the said case, the Apex Court held as under; “Under the provisions of Motor Vehicles Act, 1988, there is no restriction that 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 for compensation under this Act. Hence, claims Tribunal is appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.” Following the above said decision and considering the facts and circumstances of the case, it is clear that the claimant is entitled to compensation of Rs.3,80,000/- which is more than the amount claimed by her in the O.P.

8. Accordingly, the appeal is allowed setting aside the judgment impugned. The compensation of Rs.3,80,000/-(Rupees Three lakhs eighty thousand) with interest at 7% per annum from the date of the petition till the date of realization is awarded to the appellant-claimant. However, it is made clear that since the Court fee is paid only to an extent of Rs.3,00,000/- the claimant is directed to pay the deficit Court fee on the enhanced compensation amount. No costs. _____________________ GHULAM MOHAMMED, J Date:31.12.2010 [1] (2009) 6 SCC 121 [2] 2003(1) ALD-1 (SC)