Telangana High Court
MACMA/5319/2008 of S. Sumathamma alias Sumathi Vs K. Jangaiah, on 30 December 2014
B.SIVA SANKARA RAO M.A.C.M.A.No.1855 of 2007 & 5319 of 2008 COMMON JUDGMENT : The appellant-insurer filed appeal M.A.C.M.A. No.1855 of 2007 and the claimants filed appeal in M.A.C.M.A. No.5319 of 2008 aggrieved by the order/award dated 05.02.2007 in M.V.O.P.No.2068 of 2005 on the file of
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAOM.A.C.M.A.No.1855 of 2007 & 5319 of 2008COMMON JUDGMENT :
The appellant-insurer filed appeal M.A.C.M.A. No.1855 of 2007and the claimants filed appeal in M.A.C.M.A. No.5319 of 2008aggrieved by the order/award dated 05.02.2007 in M.V.O.P.No.2068of 2005 on the file of Motor Accidents Claims Tribunal–cum-IIIAdditional Chief Judge, City Civil Court, Hyderabad (for short,’Tribunal’) awarding compensation of Rs.4,42,000/- with interest at7.5% p.a. against the claim of Rs.5,00,000/- in the claim petitionunder Section 166 of the Motor Vehicle Act, 1988 (for short, ‘theAct’).
2) Heard Sri Kota Subba Rao the learned standing counsel forthe appellant and Sri P.Rama Krishna Reddy learned counsel for theclaimants. Perused the material on record. The parties hereinafterare referred to as arrayed before the Tribunal for the sake ofconvenience in the appeal.
3) The claim maintained by the major son and major unmarrieddaughter and wife of the deceased by name Srisailam against thedriver of the auto bearing No.AP 24 V 4888 of the accident dated19.04.2005 outcome of rash and negligent driving of the driver of thesaid crime auto of 1[st] respondent resulting death of deceased, theinsurer maintained the appeal M.A.C.M.A. No.1855 of 2007 withcontentions in the grounds of appeal that the award of the Tribunal inawarding compensation is excessive, exorbitant and unsustainable,the multiplier arrived and the multiplicand applied is also untenable,hence to reduce the compensation to a reasonable sum. Whereas, itis the contention of the learned counsel for the claimants asrespondent Nos.1 to 3 of the appeal as well as the independent appeal maintained by them in M.A.C.M.A. No.5319 of 2008 againstthe said owner and insurer of the auto that the Tribunal gravely erredin awarding the compensation which is utterly low amount instead ofawarding as prayed for, that the deceased was a toddy tapper byconsidering as self employed, even as a self employed there is aprospective future earnings that is to be taken into consideration bythe Tribunal, hence to enhance the earnings atleast with prospectiveincrease of 50% to the existing taken by the tribunal of Rs.3,500/-per month out of the claim of Rs.5,000/- per month and alsoconsidered the entitlement of the conventional sums as laid down by1]the Rajesh v. Rajbir Singh[[]by dismissing the appeal maintainedby the insurer and allowing the appeal filed by the claimantsaccordingly.
4) Now the points that arise for consideration in the appealsare:
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1. Whether the compensation awarded by the Tribunal iseither excessive or utterly low and if so what is the justcompensation to arrive and with what observation?either excessive or utterly low and if so what is the justcompensation to arrive and with what observation?
2. To what result?
POINT No.1:
5) There is no dispute on the manner of accident and theliability of the respondent Nos.1 and 2 of the claim petition for theEx.B-1 policy covers the risk of the deceased third party to theclaim.
6) Now, coming to the earnings and avocation of the deceasedfrom the evidence of P.Ws 1 to 3 of whom P.W-1 is the 1[st] claimantclaimed that the deceased is a toddy topper. As per Ex.P-4 postmortem report, the deceased was aged about 37 years and theTribunal has taken the age about 40 years, from the age of the 1[st]claimant shown more than 36 years in the claim petition. The multiplier that is applicable to a person above 40 years as per SarlaVarma v. Delhi Transport Corporation[[2]]upto 40 years, themultiplier 15 is the correct to adopt.
Arguments
7) Coming to the earnings of the deceased, there is nothing toshow as pointed out by the learned counsel for the insurer that thedeceased was working as toddy topper even, muchless any licencerequired for a toddy topper or any civil supplies card showing theavocation as toddy topper, the Tribunal taken Rs.3,600/- per monthas a daily labourer by estimation without believing the same includingthe claim at Rs.5,000/- per month. No doubt, in the expressionplaced reliance of Rajesh supra, it was observed that not only for thesalaried employees but also fixed wage earnings and self-employedthe prospective increase in earnings have to be taken intoconsideration. As Tribunal held that there is nothing to show toprove as toddy topper apart from the income is at Rs.5,000/- permonth is just to take. In fact, the prospective earnings of this casecannot apply even from the expression of Rajesh supra unless it isproved as toddy topper and self-employed with any data forprospective increase. As per Latha Wadhwa vs. State of Bihar[[3]]in the absence of proof of earnings even domestic contribution ofhouse wife, taken Rs.3,000/- per month to be taken and what theTribunal taken Rs.3,500/- no way requires interference as if Rs.100/-per year even taken as prospective increase, it is to be takenRs.3,400/- per month by the date of accident from the date ofexpression. Thus, so far as the said quantum arrived by theTribunal, after 1/3[rd] deduction of a sum of Rs.4,20,000/- concernedrequires no interference. However, coming to the other conventionalsums as per Rajesh supra, the claimants are entitled toRs.1,00,000/- towards consortium, Rs.25,000/- towards funerealexpenses and Rs.10,000/- towards loss of estate. No doubt, the learned counsel referred the expression of Sarla Devi V. Divisional Manage, Royal Sundaram Alliance Ins. Co. Ltd.[[4]]whereRs.1,00,000/- towards loss of estate awarded, however, there is noprinciple laid down in the expression that in all cases, it is to begiven as laid down in Rajesh supra though said expression wasreferred merely because the Apex Court exercised its discretionwithin the constitutional authority under Articles 136 and 141 of theConstitution of India, the same cannot be said in the absence ofexplaining the law laid down as a guideline by the Apex Court inRajesh supra in all cases to award, wherein Rs.10,000/- towardsloss of estate fixed. Thus, the total compensation comes toRs.5,55,000/- which is the just compensation. The claimants areentitled as there is an appeal of the claimants also though it isclaimed for Rs.5,00,000/- subject to payment of the deficit CourtFees, they are entitled to recover the same. Accordingly point No.1is answered.
POINT No.2:
M.A.C.M.A.No.5319 of 2008:
8) In the result, the appeal is allowed by enhancing thecompensation to Rs.5,55,000/- subject to payment of deficit Courtfees on Rs.55,000/- under Rule 475 of the M.V.Rules before theTribunal without which they are not entitled to execute the award ofthe Tribunal merged with the order of this Court. In all otherrespects, the order of the Tribunal holds good. No order as to costs.
M.A.C.M.A.No.1855 of 2007:
9) In the result, the appeal is dismissed. No order as to costs.
Conclusion
10) Miscellaneous petitions, if any pending in both the appeals, shall stand closed.
Date: 30-12-2014ksh
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Dr. B. SIVA SANKARA RAO, J
[1]2013(4)ALT 35(SC)
[2]2009 ACJ 12982009 ACJ 1298
[3]2001 (8) SCC 1972001 (8) SCC 197
[4]2014 ACJ 2391