Telangana High Court
MACMA/1306/2010 of Bomma Krishnaveni Vs Bomma Madhu Kumar, on 31 December 2014
U. DURGA PRASAD RAO M.A.C.M.A. Nos.1306 and 2096 of 2010 COMMON JUDGMENT: Aggrieved by the Award dated 04.05.2010 in M.V.O.P.No.1283 of 2006 passed by the Chairman, MACT– cum–District Judge at Khammam (for short “ the Tribunal”), both first claimant and ICICI Lombard
HON’BLE SRI JUSTICE U. DURGA PRASAD RAOM.A.C.M.A. Nos.1306 and 2096 of 2010COMMON JUDGMENT:
Aggrieved by the Award dated 04.05.2010 inM.V.O.P.No.1283 of 2006 passed by the Chairman, MACT–cum–District Judge at Khammam (for short “the Tribunal”),both first claimant and ICICI Lombard General InsuranceCompany Limited preferred M.A.C.M.A Nos.1306 and 2096 of2010 respectively.
2) The facts in brief are that:
a)The first claimant is the wife and claimants 2 to 4 arethe major sons and married daughter of the deceased—Bomma Srinivasa Rao. Their case is that on 21.06.2006,when the deceased along with the claimants 1 to 3 wasproceeding in Tata Indica car bearing No.AP 20 N 5868 toBhadrachalam and when they reached near Pallipadu villagecenter on R & B Road, the driver—K.Upendar drove the car athigh speed and in a rash and negligent manner and dashedbehind a stationed lorry bearing No.AP 20 U 7387. In theresultant accident, the inmates of the car sustained multipleand grievous injuries and immediately they were shifted toGovernment Headquarters Hospital, Khammam, where thedeceased succumbed to injuries. It is averred that the accidentwas occurred due the rash and negligent driving by the driverof the Tata Indica car and due to sudden demise of the deceased, the claimants who are his dependants becamedestitutes. On these pleas, they filed MVOP No.1283 of 2006claiming compensation of Rs.41,00,000/- initially againstrespondent Nos.1 and 2, who are the owner and insurer of theTata Indica car bearing No.AP 20 N 5868 and subsequently,added respondents 3 and 4, who are owner and insurer of thelorry bearing No.AP 20 U 7387.
.b)Respondent Nos.1 and 3 remained ex parte
c)Respondent No.2 opposed the claim denying all thematerial averments made in the petition and contended thatthe accident was occurred not due to the fault of the Car driverbut in fact the driver of the lorry parked the lorry in the middleof the road without taking any precautions like placingguarding stones, putting on lights etc. R.2 further contendedthat the claim is high and excessive and that the car driver hadno valid driving licence and thus prayed to dismiss the O.P.
d)Whereas Respondent No.4 contended that theaccident was occurred due to the fault of the driver of the TataIndica car as he drove the car alone at high speed andrammed into the lorry which was parked on the extreme leftside of the road. R.4 thus prayed to dismiss the O.P.
e)During trial, PWs.1 to 3 were examined and Exs.A.1 toA.21 were marked on behalf of claimants. RW.1 and RW.2were examined and Exs.B.1 and B.2 were marked on behalfof respondents.
f) The Tribunal on appreciation of both oral anddocumentary evidence on record, has awarded totalcompensation of Rs.17,00,000/- to the 1[st] claimant with costsand interest at 7.5% p.a under different heads as follows:
Loss of dependency Rs.16,50,000-00Loss of consortium Rs. 40,000-00Loss of love and affection,Transportation charges & funeral expenses Rs. 10,000-00 -------------------- Total Rs.17,00,000-00
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The Tribunal exonerated the respondents 3 and 4 andfastened the liability on respondents 1 and 2. The Tribunaldismissed the claim of claimants 2 to 4.
Hence the appeals: 1) MACMA No.1306 of 2010 by 1[st]claimant and 2) MACMA No.2096 of 2010 by InsuranceCompany.
3) The parties in these appeals are referred as they stoodbefore the Tribunal.
4 a) MACMA No.1306 of 2010: Heard arguments of Sri S.Chalapathi Rao, learned counsel for appellant/claimant; Sri P.Valluri Mohan Srinivas, learned counsel for R.2 and Sri P.Harinatha Gupta, learned counsel for R.4. Though notice sentto R.1 was served but there is no representation on his behalf, hence treated as heard. Notice sent to R.3 was not yetreturned. R.5 to R.7 are shown as not necessary parties to thisappeal vide cause title.
b ) MACMA No.2096 of 2010: Heard arguments of Sri P.Valluri Mohan Srinivas, learned counsel forappellant/Insurance Company; S ri S.Chalapathi Rao, learned counsel for R.1 and Sri P.Harinatha Gupta, learned counsel for R.7. Though notice sentto R.2 was served but there is no representation on his behalf,hence treated as heard. Notices sent to R.3 to R.6 were notyet returned.
5 a) Learned counsel for appellant in M.A.C.M.A.No.2096 of2010 while impugning the Award, firstly argued that the fault inthe accident lies with the lorry driver inasmuch as he parkedthe vehicle on the left side of the road without putting on theparking lights and guarding stones around the vehicle to giveindication to the on-going vehicles and thereby, the Tribunalought to have fixed entire liability on him or at least it shouldhave apportioned the liability between the two vehicles for theirrespective composite negligence. In this regard, he reliedupon the following decisions:
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1) Adipudi Rajyalakshmi and others v. ChebroluAnkamma Rao and others[[1]]
2) Pagidimarri Suvarna and others V. KotaVenkateswarlu and another[[2]]
3) Administrator, B.S.R.T.C v. Ranjana Majhi andothers[[3]]
b ) Secondly, challenging the quantum of compensation,learned counsel argued that the Tribunal committed graveerror in fixing the notional income of the deceased. Expatiating it, he argued that the Tribunal placed reliance onExs.A.13 and 14-Income Tax Returns for fixing the income ofthe deceased and in doing so, the Tribunal failed to notice thatsome of the Income Tax Returns of the deceased were filedby the claimants subsequent to his death and therefore, therewas every possibility to manipulate and boost up the incomeof the deceased in those I.T Returns for claiming highcompensation. He thus argued that the notional income ofRs.1,84,433/-, which was rounded off to Rs.2,00,000/- arrivedby the Tribunal was not a correct figure. He further submittedthat due to death of deceased, there would not be any changein the income from agriculture and this fact was also notconsidered by the Tribunal. He thus prayed to allow hisappeal and exonerate the appellant from the liability and if not,apportion the liability between the two vehicles and also re-assess the compensation.
6 a) Per contra, learned counsel for claimants/appellants inM.A.C.M.A.No.1306 of 2010 firstly argued that the accidentwas occurred due to sole fault of car driver inasmuch as hewent and rammed behind the lorry and at that time, the lorrywas parked on the extreme left side of the road and the accident took place at about 06.50 AM in mid summer andfurther, the police after thorough investigation, laid chargesheet against the car driver and considering all these facts, theTribunal rightly fixed liability on the car driver and hence, thereis no substance in the argument of the insurer of the car thatthe lorry driver was responsible for the accident.
b ) Secondly, regarding the quantum of compensation,learned counsel argued that the Tribunal while arriving at thenotional annual income of the deceased rightly believed theI.T. Returns of the deceased and took the average from theincome of last three years and arrived at the notional annualincome of the deceased and there was no error in it as therewas no manipulation or boosting up of the income of thedeceased in the I.T. Returns. However, he contended that theTribunal failed to take the future prospects of the deceasedinto consideration and it also erred in taking “11” as multiplierinstead of “14” and due to these errors, the compensation wasdrastically reduced.
c ) Thirdly, he argued that the Tribunal awarded a lowamount of Rs.40,000/- towards loss of consortium and it alsoerred in awarding consolidated amount of Rs.10,000/- towardsloss of love and affection, transportation and funeral charges. His argument is that as per the decision reported in Rajeshand others vs. Rajbir Singh and others[[4]],the claimants areentitled to Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. He thus prayed toallow the appeal of the claimants and enhance thecompensation suitably.
7) Whereas the learned counsel for New India AssuranceCompany/4[th] respondent in the OP argued that theoverwhelming oral and documentary evidence would clearlyestablish that there was absolutely no fault on the part of thelorry driver as he parked his vehicle on the extreme left side ofthe road and further, the accident was occurred in the morningtime in mid summer and therefore, the Tribunal rightlyexonerated the owner and insurer of the lorry from the liabilityand hence the said finding of the Tribunal may not bedisturbed.
8) In the light of the above rival arguments, the points thatemerge for determination in these appeals are:
1. Whether the Tribunal was right in holding that the cardriver was at fault and thereby fastening liability on theowner and insurer of the car?driver was at fault and thereby fastening liability on theowner and insurer of the car?
2. Whether the compensation awarded by the Tribunalwas just and reasonable or needs interference?was just and reasonable or needs interference?
3. To what relief?
9) Point No.1:The occurrence of accident at 6.50 AM on21.06.2006 at Pallipadu village and involvement of the IndicaCar bearing No.AP 20 N 5868 and the lorry No.AP 20 U 7387and death of deceased are all admitted facts. The emphaticoral evidence of PW.1—one of the victims and PW.2—eye
witness is that when the car reached Pallipadu Village Centreon R & B Road, the car driver drove the car in a rash andnegligent manner and at high speed and rammed behind thelorry, which was parked on the extreme left side of the roaddue to puncture of the tyre of the lorry. This part of evidence ofPWs.1 and 2 could not be shattered in the cross examination.Apart from their oral evidence, Ex. A.2—Crime Details Reportand Ex.A.17—News Paper clipping, which are not disputed,would clearly show that the lorry was parked on the extremeleft side of the road leaving sufficient space for on-goingvehicles to safely cross the lorry. The accident was occurredon the morning of mid summer and therefore, it would bequixotic to expect the lorry driver to put on parking lights orguarding stones. So, from the facts and evidence, there canbe no demur that the accident was occurred purely due to thefault of the car driver. The decision cited byappellant/Insurance Company can be distinguished on facts.
10 a) In Adipudi Rajyalakshmi’s case (1 supra), the accidentwas occurred in the night time at 07.30 PM. A scooter wentand dashed behind a parked trolley and thereby the pillionrider died. In that context, the learned Single Judge of thisCourt observed that the trolley was parked on the road margin,but it was parked without parking lights and indicators andtherefore, the trolley driver was negligent in parking thevehicle. In the instant case, it should be noted that theaccident as stated supra, was occurred in the morning time at 06.50 am.
b) In Pagidimarri Suvarna’s case (2 supra), a jeep andlorry were dashed and in that context it was held that therewas composite negligence on the part of both the drivers. Inthe instant case, the lorry was not in motion but stationed onthe extreme left side of the road. Hence, the situation isfactually different.
c) The facts in the case of Administrator, B.S.R.T.C (3supra) are also factually different, as in that case two vehiclesdashed together and hence liability was fixed equally.
d) Hence, this point is concerned, I find no merits in theargument of the appellant/ICICI Lombard General InsuranceCompany Limited as the Tribunal rightly fixed liability on thecar driver. This Point is answered accordingly.
11) POINT NO.2:This point is concerned, the deceased—B.Srinivasa Rao was aged 45 years as per Ex.A.16Secondary School Certificate. His activities are concerned,Exs.A.7 to 9 would show that he was the fair price shopdealer. Further, Exs.A.10 to 12 would show that himself andfirst claimant are owning the lands and doing cultivation andfurther Ex.A.18—Declaration shows that the deceased was amember and one of the promoters of S.S.R EducationalSociety and S.S.R Engineering College, Karepally inKhammam District. Sofaras money lending business of thedeceased is concerned, though PW.3 deposed that the
deceased used to lend amounts to him and other Fair PriceShop dealers on interest basis, there is no recorded evidenceto that effect. So the aforesaid evidence would no doubt showthe multiple activities of the deceased but his income isdepicted by his I.T. Returns only. The claimants producedExs.A.13 and 14—I.T. Returns filed by the deceased in hiscapacity as individual and Kartha of HUF for the assessmentyears 2001 to 2007 and also produced Ex.A.15—copy of hisPan Card. Therefore, the Tribunal rightly chosen the I.Treturns for assessing his annual income.
a) Now the vehement contention of theappellant/Insurance company in M.A.C.M.A.No.2096 of 2010is that some of the I.T returns were filed by the claimantssubsequent to the death of the deceased and before filing theclaim petition and they boosted the income of the deceased inthose I.T returns and hence the Tribunal ought not to haveplaced implicit reliance on those I.T. Returns. I findconsiderable force in this argument despite the denial madeby the claimants.
b) The deceased in his capacity as individual and Kartha ofHUF submitted returns under Exs. A.13 and 14 as follows:
Admittedly, the returns for the assessment years 2005-2006 and 2006-2007 were filed on 28.09.2006 by theclaimants after the death of the deceased and prior to filing ofthe claim petition. When the returns for these two years arecompared with the returns of other four years, we will find anunusual increase. For instance, between 2001 and 2005, themaximum income of the deceased as an individual was onlyRs.91,460/-. However, in the two assessment years i.e.,2005-2006 and 2006-2007 his income was shown asRs.1,24,500 and Rs.1,57,600/- respectively. So also themaximum income of the deceased as Kartha of HUF wasRs.53,600/- between the years 2001-2005, whereas theincome was drastically increased to Rs.96,400/- in 2006-2007.In the light of sudden shooting up of the income in the last twoyears, the Tribunal ought not have placed implicit reliance onthe incomes shown in the I.T Returns for the last two years inview of the fact that those returns were filed subsequent to thedeath of the deceased and before filing of the claim petition. The chances of manipulation cannot be ruled out altogether.Therefore, in my considered view, a pragmatic approach isrequired for assessing the annual income of the deceased.
No doubt, the average income of the deceased for the lastthree assessment years can be taken as basis as did by theTribunal for arriving at his income. However, in doing so, theincomes projected in the I.T. Returns for the years 2005-2006and 2006-2007 cannot be accepted on their face value. Onthe other hand, the income for those two years can be arrivedat by taking the average income of preceding four years withwhich there was no controversy. In such a case, the totalincome of the deceased for the three years preceding hisdeath works out as under:
Karta ofAssessmentIndividualHindu un-TotalYearcapacitydividedfamily2004-2005 58,600-00 52,900-00 1,11,500-002005-2006***1,24,500-00 73,600-0050,900-002006-2007***1,24,500-00 73,600-0050,900-00Total3,60,500-00
[ Note:
*(): 73,600 = 64500+79750+91460+58600 ÷ 4. Rs.73,577/-,rounded off to Rs.73,600/-)
**(): 50900/- = 48,000+48900+53,600+52,900+52900 ÷4 =Rs.50,850/-, rounded off to Rs.50,900/-]
The annual income of the deceased comes toRs.1,20,166/-(Rs.3,60,500 ÷ 3), rounded off to Rs.1,20,200/-.
To the above amount, 30% is added towards futureprospectus following the judgment of the Hon’ble Apex Courtin Santosh Devi vs. National Insurance Company Ltd. andothers[[5]]. Thus, the gross annual income of the deceasedworks out to Rs.1,56,260/-(Rs.1,20,200 + 36,060). From this1/4[th] is deducted towards personal and living expenses of thedeceased, the net annual contribution of the deceased comesto Rs.1,17,195/-, which is rounded off to Rs.1,17,200/-.
c) Now the multiplier is concerned, the Tribunal has taken‘11’ as multiplier considering the age of the deceased as 45years. I am afraid, this is not a correct multiplier. The Hon’bleApex Court in the case of Smt.Sarla Varma vs. DelhiTransport Corporation[[6]]proposed ‘14’ as multiplier for thepersons in the age group of 41 to 45 years. Hence, the saidmultiplier is accepted. Thus, the compensation for the loss ofdependency works out to Rs.16,40,800/-. (Rs.1,17,200/- x 14)
12) Compensation relating to other heads is concerned, theTribunal awarded Rs.40,000/- towards loss of consortium. Having regard to the fact that the first claimant lost herhusband in her middle age and she alone has to look after theeducation and marriages of her children without the guidanceof her husband, compensation for loss of consortium isincreased to Rs.60,000/-. Then considering that the lumpsumamount of Rs.10,000/- for love and affection, transport chargesand funeral charges is a low amount, the same is increased to Rs.30,000/-. Thus, the total compensation payable to theclaimants under different heads works out thus:
Rs.17,30,800-00
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Thus, the compensation is enhanced by Rs.30,800/- (Rs.17,30,800 minus Rs.17,00,000).
13) In the result, the two appeals are disposed of andordered as follows:
i)M.A.C.M.A.No.2096 of 2010 filed by the Insurance Company/ second respondent in O.P isdismissed without costs.
ii)M.A.C.M.A.No.1306 of 2010 filed by the firstclaimant in the O.P is partly allowed andcompensation is enhanced by Rs.30,800/- with costsand interest at 7.5% P.A.
iii)The respondent Nos.1 and 2 in the OP are directedto deposit the compensation amount within twomonths from the date of this Judgment, failing which, execution can be taken out against them.
As a sequel, miscellaneous applications pending, if any,shall stand closed.
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U. DURGA PRASAD RAO, J
Date: 31.12.2014
Note: L.R. Copy to be marked: Yes / No
scs/eha
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