MACMA/529/2010 of Bajaj Allianz General Insurance Company Ltd., Vs A.Lakshmi Devi on 31 December 2014

Facts

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAOM.A.C.M.A. No.529 of 2010JUDGMENT:

Challenging the Award dated 06.01.2010 inM.V.O.P.No.95 of 2007 passed by the Chairman, M.A.C.T-cum-Principal District Judge, Kadapa (for short “the Tribunal”), the2[nd] respondent in the O.P/Bajaj Allianz General InsuranceCompany Limited preferred the instant appeal.

2) The factual matrix of the case is thus:

a)The first claimant is the wife, claimants 2 and 3 arechildren and fourth claimant is the mother of the deceased—Avvaru Seetha Ramaiah. Their case is that on 11.02.2006 atabout 8:45pm, when the deceased was proceeding to hishouse by walk and reached near the State Bank of India, KothaMadhavaram on Rajampet—Kadapa State Highway, one TataIndica car bearing No.AP 10 AU TR 5892 being driven by itsdriver at high speed and in a rash and negligent manner,dashed the deceased causing instantaneous death. It isaverred that the accident was occurred only due to the fault ofthe driver of the offending car and due to sudden demise of thedeceased, the claimants who are his dependants becamedestitutes. On these pleas, they filed M.V.O.P.No.95 of 2007against respondents 1 and 2, who are the owner and insurer ofthe offending car and claimed Rs.18,00,000/- ascompensation.

.b)Respondent No.1 remained ex parte

c)Respondent No.2/Insurance Company filed counterdenying all the material averments made in the petitioner andurged to put the claimants in strict proof of the same.

d)During trial, PWs.1 and 2 were examined and Exs.A1 toA11 were marked on behalf of claimants. RW1 was examinedand Exs.B1 to B3 were marked on behalf of the respondents.

e)The Tribunal on appreciation of both oral anddocumentary evidence on record, had awarded totalcompensation of Rs.12,43,000/- with costs and interest at 6%p.a under different heads as follows:

Loss of dependency and future expectancy of life Rs.12,28,500-00Funeral expenses Rs. 2,000-00Loss of estate Rs. 10,000-00Loss of consortium to 1[st] petitioner Rs. 2,500-00 ---------------

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Total

Rs.12,43,000-00

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Hence, the appeal by Insurance Company.

3) The parties in this appeal are referred as they stoodbefore the Tribunal.

4) Heard Sri N. Mohan Krishna, learned counsel forappellant/ Insurance Company and Sri D. Kodanda RamiReddy, learned counsel for respondents 1 to 3/claimants.Though notice to R5/owner of the car was served but there isno representation on his behalf, hence treated as heard.

5) Learned counsel for respondents 1 to 3 filed a memostating that mother of the deceased—Smt.A.Ramalakshummai.e, respondent No.4 herein died on 08.03.2010. Hence,respondents 1 to 3/claimants are recognized as her L.Rs.

6 ) Impugning the award, learned counsel for appellantmainly argued that though the Tribunal was right in takingExs.A.9 and A.10—fees payment receipts of the sons of thedeceased issued by M/s. Montessori Hostels, Kurnool as basisfor determining the income of the deceased as no other reliablerecord was available, still it committed grave error in assumingthat the annual fees of the two sons of the deceased comprised only 1/3[rd] of the annual earnings of the deceased. Hevehemently argued that the Tribunal ought to have held that thedeceased spent 50% of his earnings for meeting theeducational expenses of his two sons and thereby calculatedhis annual income as Rs.78,000/- (Rs.39,000/- x 2). Learnedcounsel argued that due to the wrong assumption of theTribunal, compensation was unduly escalated. He thus prayedto allow the appeal and reassess the compensation.

7) Per contra, while supporting the award, learned counsel

for respondents 1 to 3/claimants argued that the Tribunal rightlyassumed that the deceased spent 1/3[rd] of his earnings for theeducation of his children and therefore, compensation arrivedat by the Tribunal is not arbitrary or excessive.

8 ) In the light of above rival arguments, the point fordetermination in this appeal is:

“Whether the compensation awarded by the Tribunal is just andreasonable or needs interference?”

9) POINT: The plea of claimants is that the deceased was aweaver by profession and doing business in Jeri and earningRs.1,80,000/- from his cloth business and he was also earningRs.30,000/- as Vice President of AVS Educational Committeeand thus his total annual income was Rs.2,10,000/-. To proveavocation and income of the deceased, the claimantsproduced Ex.A.5—ledgers and cashbooks pertaining to hisbusiness. The Tribunal rightly observed that ExA.5—books donot disclose the income of the deceased but they only disclosedifferent payments. The Tribunal further observed that had theclaimants filed the balance sheet, profit and loss account,Income Tax Returns of the deceased, those documents wouldhave enabled the Tribunal to assess the income of thedeceased. Due to the absence of the cogent record, theTribunal had to rely upon available record to work out theincome of the deceased. In that process, the Tribunal onverifying Exs.A.9 and A.10—fees receipts issued by theManager, Montessori Hostels came to know that the deceasedpaid Rs.39,000/- (Rs.20,000 + Rs.19,000 respectively) towards annual fees of his two sons. Basing on this fact the Tribunalassumed that the deceased must have spent 1/3[rd] of his grossearnings for the education of his children and on suchassumption, it arrived the annual income of the deceased asRs.1,17,000/- (Rs.39,000/- x 3). From this, the Tribunaldeducted 1/4[th] towards personal and living expenditure of thedeceased and multiplied the balance amount of Rs.87,750/-(Rs.1,17,000/- x ¾) with multiplier ‘14’ selected on the basis ofthe deceased as 43 years and arrived at the totalcompensation of Rs.12,28,500/- (Rs.87,750/- x ‘14’).

10) Now the contention of the appellant as stated supra isthat the Tribunal ought to have assumed that the deceasedhad spent 50% of his gross earnings for the education of hischildren. I am afraid, this argument does not hold conviction. The family of the deceased consists of himself, his wife, twosons and his mother. If the deceased spent half of his earningsfor the education of his children, his family consisting of 5members has to live with the balance amount of Rs.39,000/-throughout the year which is quite unimaginable. Therefore, theTribunal reasonably and logically assumed that the deceasedmight spent 1/3[rd] of his income on the education of hischildren. The said assumption is not a perversed one.Similarly, the selection of multiplier is also correct one, for,Hon’ble Apex Court in the decision reported in Smt. SarlaVerma and others vs. Delhi Transport Corporation and another[[1]]held that ‘14’ is the appropriate multiplier for thepersons in the age group of ‘41’ to ‘45’ years. So in any view ofthe matter, the compensation awarded by the Tribunal cannotbe said to be excessive one. Therefore, I find no merits in theappeal.

11) In the result, this M.A.C.M.A is dismissed by confirmingthe award passed by the Tribunal in M.V.O.P No.95 of 2007. No costs As a sequel, miscellaneous applications pending, if any,shall stand closed.

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U.DURGA PRASAD RAO, J

Date: 31.12.2014

Conclusion

Note: L.R. copy to be marked: Yes/Noscs

[1]2009 ACJ 1298 (SC)2009 ACJ 1298 (SC)