MACMA/700/2008 of M.Sangeetha Vs P.Nityanandam on 31 December 2010

JUDGMENT:

The appellant-claimant filed this appeal under Section 173of the Motor Vehicles Act, 1988 against the judgment, dated11.01.2008, 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, whosuccumbed to the injuries sustained by him in a road accidentoccurred on 03.09.2004 at about 4.45 PM, near Lakshmi FillingCentre, Shadnagar, when he was travelling in the auto bearingNo.AP 22U 8746 due to hit by a lorry bearing No.AP 3V 2597 onaccount of rash and negligent driving of its driver. The claimantfiled the above said O.P., claiming compensation of Rs.3,00,000/-payable by respondents 1 and 2 being owner and insurer of thecrime vehicle. Respondent No.3 is the father of the deceased.Respondent No.2-insurer filed counter denying the avermentsmade in the claim petition and it was stated that the parents of thedeceased 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 andthe same is pending. The Tribunal having held that as the claimanthas not impleaded the mother of the deceased as partyrespondent, the petition is bad for non-joinder of necessaryparties, 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 vehementlycontended that the Tribunal ought to have appreciated the fact thatthe mother of the deceased expired during his childhood and assuch, it erred in dismissing the O.P. on the ground that the petitionis bad for non-joinder of necessary parties. She further contendedthat as the Tr.C.M.P.No.219 of 2007 filed by the third respondentfor clubbing both the O.Ps, was dismissed by this Court, theclaimant being the wife of the deceased is entitled tocompensation.

5. From a perusal of the material on record, it is evident thatthe parents of the deceased filed O.P.No.250 of 2005 on the file ofthe Motor Accident Claims Tribunal-cum-I Additional DistrictJudge, 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 AccidentClaims Tribunal-cum-cum-XXII Additional Chief Judge, CityCriminal Court, Hyderabad, making the father of the deceased asthird respondent. While so, the father of the deceased, the thirdrespondent herein, filed Tr.C.M.P.No.219 of 2007 before this Courtseeking to transfer O.P.No.3066 of 2004 from the file of the MotorAccident Claims Tribunal-cum-XXII Additional Chief Judge, CityCriminal Court, Hyderabad, to the file of the Motor AccidentClaims Tribunal-cum- I Additional District Judge, Mahabubnar, wherein O.P.No.250 of2005 is pending. Through order, dated 20.08.2007, this Courtdismissed 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 theparents of the deceased is pending and the Tr.C.M.P. filed by thethird respondent was dismissed, the claimant being the wife of thedeceased is entitled to compensation.

6. As per the evidence of P.W.1-wife, her husband was agedabout 25 years and earning a sum of Rs.3,000/- per month byrunning STD Booth at the time of the accident, and contribute hisentire earnings to his family. As per Ex.A4-Post Mortem Reportalso, the age of deceased was mentioned as 25 years. Since theaccident occurred in the year 2004, it would appropriate to take themonthly income of the deceased at Rs.2,500/-per month andannually at Rs.30,000/-. If 1/3[rd] from it is deducted towards hispersonal expenses, it comes to Rs.20,000/- per annum. Since theage of the deceased was 25 years as per Ex.A4-post mortemreport, the appropriate multiplier for the said age group, as per thedecision of the Apex Court in SARALA VERMA v. DELHITRANSPORT CORPORATION[[1]],is ‘18’. Then, the loss ofdependency comes to Rs.20,000x18= Rs.3,60,000/-. In addition toit, a sum of Rs.10,000/-towards loss of consortium andRs.10,000/-towards loss of estate are also awarded. In total, asum of Rs.3,80,000/- is awarded to the claimant.

7. As per the decision of the Apex Court reported inNAGAPPA V. GURUDAYAL SINGH ([[2]]) there is no restrictionthat compensation could be awarded only up to the amountclaimed by the claimant. In the said case, the Apex Court held asunder; “Under the provisions of Motor Vehicles Act, 1988,there is no restriction that compensation could beawarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence broughton record if Tribunal/Court considers that claimant isentitled to get more compensation than claimed, theTribunal may pass such award. Only embargo is – itshould be ‘just’ compensation that is to say, it should beneither arbitrary, fanciful nor unjustifiable from theevidence. This would be clear by reference to therelevant provisions of the M.V. Act. Section 166provides that an application for compensation arising outof an accident involving the death of, or bodily injury to,persons arising out of the use of motor vehicles, ordamages to any property of a third party so arising, orboth, could be made (a) by the person who hassustained the injury; or (b) by the owner of the property;or (c) where death has resulted from the accident by allor any of the legal representatives of the occasion or (d)by any agent duly authorized by the person injured or allor any of the legal representatives of the deceased, asthe case may be. Under the proviso to sub section (1),all the legal representatives of the deceased who havenot joined as the claimants are to be impleaded asrespondents to the application for compensation. Otherimportant part of the said section is sub section (4) whichprovides that ‘the Claims Tribunal shall treat any report ofaccidents forwarded to it under sub section (6) of section158 as an application for compensation under this Act. Hence, claims Tribunal is appropriate case can treat thereport forwarded to it as an application for compensationeven though no such claim is made or no specifiedamount is claimed.”

Following the above said decision and considering the facts andcircumstances of the case, it is clear that the claimant is entitledto 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 thejudgment impugned. The compensation of Rs.3,80,000/-(RupeesThree lakhs eighty thousand) with interest at 7% per annum fromthe date of the petition till the date of realization is awarded to theappellant-claimant. However, it is made clear that since theCourt fee is paid only to an extent of Rs.3,00,000/- the claimant isdirected to pay the deficit Court fee on the enhancedcompensation amount. No costs.

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GHULAM MOHAMMED, J

Date:31.12.2010

sj

[1](2009) 6 SCC 121(2009) 6 SCC 121

[2]2003(1) ALD-1 (SC)