MACMA/134/2011 of Pencharla Subba Rao Vs Khaja Hussain on 31 December 2013

JUDGMENT

The claimants in O.P.No.631 of 2008 covered by award dated 15.06.2010 filed the claim petition claiming compensation ofRs.10,00,000/-for the death of the deceased Smt Sai Seshamma,who is the wife of the first claimant and the mother of the majorson and the married daughter, in the motor accident dated27.03.2008 while she was proceeding as pillion rider in TVS mopedand rider of the same Smt Mani from the crime lorry of the claimpetition second respondent driven by the first respondent, insuredwith the third respondent coming from behind dashed, as a result,they fell down and sustained injuries and the deceased succumbedwhile undergoing treatment.

2. The Tribunal from the evidence placed on record in theclaim petition including that of P.Ws.1 to 3 and Exs.A1 to A5based on the policy issued by the third respondent to the claimpetition with joint and several liability found that the accident wasthe result of rash and negligent driving of the driver of the lorry tomake liable the owner and the insurer by assessing the income ofthe deceased by disbelieving the claim of getting salary even thatno proof at Rs.15,000/-per annum and applied multiplier ‘14’ as perthe Apex Court’s expression in Sarla Verma v. Delhi TransportCorporation[[1]] from the age of the deceased up to 45 years for asum of Rs.2,82,000/- with interest at 6% per annum and grantedcompensation only to the claimants 1 and 2-the husband and themajor son and not awarding any compensation to claimant No.3

since married daughter and dependent on her husband.

3. It is by impugning the award, the claimants preferred theappeal with the contentions that the Tribunal gravely erred in nottaking at least Rs.15,000/-per month as income of the deceasedfrom garments business despite the evidence on record, in takingthe income only at Rs.2,500/-per month and the interest awardedat 6% per annum is also utterly low and hence, to allow the appealby awarding the compensation prayed for in the claim petition withreasonable rate of interest.

4. Heard the learned counsel for the appellant Smt Jhansi.Gand the learned counsel for the insurer-third respondent SriSomanchi Venkateswarlu. The respondent Nos.1 and 2 remainedex parte. Perused the material on record. The parties are beingreferred as arrayed before the Tribunal for sake of convenience.

5. The counsel for appellants reiterated the above contentions.Whereas, it is the contention of the contesting third respondent ofthe claim petition, the insurer, that the award of the Tribunal is areasoned one on merits from appreciation of evidence, moreparticularly, from the evidence of P.W.2, no other than thehusband of the deceased, deposed that he was having WhiteRation Card with Arogya Sri Card showing his low income groupand the deceased was shown as dependent on him with no incomeand as such, there is nothing to interfere regarding the income ofthe deceased assessed by the Tribunal or the multiplier adoptedby the Tribunal so also the rate of interest since discretionary andin Sarla Verma’s case supra, the interest awarded was at 6% perannum and hence, to dismiss the appeal.

6. Now the points that arise for consideration in the appeal are:

1. Whether the compensation awarded by the Tribunal is utterly lowand unsustainable and requires interference so also the rate ofinterest, if so to what amount with what observations and whatrate of interest?and unsustainable and requires interference so also the rate ofinterest, if so to what amount with what observations and whatrate of interest?

2. To what result?

-POINTS1 and 2:

7. The fact that the accident was the result of the rash andnegligent driving of the first respondent, driver of the crime lorrybearing No.TN-30J-2918 of second respondent insured with thethird respondent covered by Ex.B1-policy, is proved from as perthe evidence of P.Ws.1 to 3 and from Ex.A1-FIR against the driverof the lorry and also from Ex.A3-charge sheet filed by the policeafter investigation fixing the responsibility, there is nothing to showany contributory negligence on the part of the rider of the TVSmoped, by name, Smt Mani, the other injured much less of thedeceased pillion rider of the moped including from Ex.A2-MVIreport and Ex.A4-Post Mortem Report of the deceased. Therebynothing to interfere with said finding of the Tribunal of the accidentwas the result of the rash and negligent driving of the driver of thecrime lorry.

8. Before coming to decide, what is just compensation in thefactual matrix of the case, it is apt to state that perfectcompensation is hardly possible and money cannot renew aphysique or frame that has been battered and shattered, norrelieve from a pain suffered as stated by Lord Morris. In Ward v.James[[2]], it was observed by Lord Denning that award of damages in personal injury cases is basically a conventionalfigure derived from experience and from awards in comparablecases. Thus, in a case involving loss of limb or its permanentinability or impairment, it is difficult to say with precise certaintyas to what composition would be adequate to sufferer. The reasonis that the loss of a human limb or its permanent impairmentcannot be measured or converted in terms of money. The objectis to mitigate hardship that has been caused to the victim or his orher legal representatives due to sudden demise. Compensationawarded should not be inadequate and neither be unreasonable,excessive nor deficient. There can be no exact uniform rule inmeasuring the value of human life or limb or sufferance and themeasure of damage cannot be arrived at, by precise mathematicalcalculation, but amount recoverable depends on facts andcircumstances of each case. Upjohn LJ in Charle red HouseCredit v. Tolly[[3]]remarked that the assessment of damages hasnever been an exact science and it is essentially practical. LordMorris in Parry v. Cleaver[[4]]observed that to compensate in money forpain and for physical consequences is invariably difficult withoutsome guess work but noother process can be devised than that ofmaking a monitory assessment though it is impossible to equatethe money with the human sufferings or personal deprivations. The Apex Court in R.D.Hattangadi v. Pest Control (India)Private Limited[[5]]at paragraph No.12 held that in its very naturewhatever a Tribunal or a Court is to fix the amount ofcompensation in cases of accident, it involves some guess work,

some hypothetical consideration, some amount of sympathy linkedwith the nature of the disability caused. But all the aforesaidelements have to be viewed with objective standard. Thus, in mostof the cases involving Motor Accidents, by looking at the totality ofthe circumstances, an inference may have to be drawn and aguess work has to be made even regarding compensation in caseof death, for loss of dependent and estate to all claimants; care,guidance, love and affection especially of the minor children,consortium to the spouse, expenditure incurred in transport andfunerals etc., and in case of injured from the nature of injuries,pain and sufferance, loss of earnings particularly for any disabilityand also probable expenditure that has to be incurred from natureof injuries sustained and nature of treatment required.

9. From above legal position with reference to the factualmatrix of the case on hand, the evidence of P.W.1 (son ofdeceased) that the deceased was earning Rs.15,000/-per monthby doing any business of saries and dress material is notsupported by documents and is with no basis to rely, moreparticularly, from the fact deposed by P.W.2, no other thanhusband of deceased that deceased was shown as dependent onhim in the White Ration Card he applied as of low income groupand also Arogya Sri benefit by showing the deceased asdependant. However, the fact remains as per the settledexpression of the Apex Court in Latha Wadhwa vs. State ofBihar[[6]]in the absence of any income of deceased house woman,the domestic contribution has to be assessed at minimum ofRs.3,000/-per month. When such is the case, for the accident dated 27.03.2008, the income of the deceased as domesticcontribution can be assessed at Rs.3,000/-per month and not atRs.2,500/-per month as estimated by the Tribunal. The claimantsare no other than the husband and the major son (married or not)and the married daughter not dependant on the deceased. Thededuction towards personal expenses is concerned, the guidelinesof the Apex Court in Sarla Verma’s case reiterated in subsequentexpression in Rajesh v Ranabir Singh[[7]]case, particularly, fromparagraphs 29 to 31 are clear by referring to several expressionswhere the deceased was married, the deduction towards personalexpenses and living expenses of the deceased, should be 1/3[rd]where the number of dependent family members is 2 to 3, 1/4[th]where the number of dependent family members is 4 to 6 and 1/5[th]where the number of dependent family members exceeds six. Incase of a bachelor where dependants are the parents, deduction is50% and it is not compulsory to deduct 50% in standardization ofthe deduction of bachelor where dependants are more. A conjointreading of the above including several expressions referred thereinindicate that there is no standardization of deduction, but alldepends upon the number of dependents on the deceased. Here,though the deceased was married and the first claimant was thehusband, second claimant was the major son (married or not) andthird claimant was married daughter no way dependents, it is justin the factual matrix to deduct towards personal expenses of thedeceased to 50% and then contribution of deceased to the familyas dependency is 50% as per the settled law that it is not thedependency, but contribution to the legal representatives (heirs)

that is criterion. Thus, 50% of Rs.3,000/- comes to Rs.1500/-permonth and from the age of the deceased at the time of accident asper Ex.P-4-post mortem report as arrived at by the Tribunal to 45years, the multiplier taken by the Tribunal of ‘14’ following theApex Court’s expression in Sarla Verma’s case (supra) is just toadopt, then it comes to Rs.1500/-x12x14=Rs.2,52,000/-. In addition to that, towards lossof consortium to the first claimant Rs.1,00,000/-, towards funeralexpenses Rs.25,000/- and towards loss of estate Rs.8,000/- out ofthe maximum sum of Rs.10,000/-as per Rajesh’s case supra tobe added, which comes to Rs.3,85,000/-.

10. Now, coming to the rate of interest at 6% awarded by theTribunal is no way just in view of the Apex Court’s expression in TN TRANSPORT CORPORATION V. RAJA PRIYA[[8]],sayingthat it is the Bank rate of interest i.e., criterion in fixing interest inclaims under Section 171 of the Motor Vehicles Act, 1988 andeven the latest three Judges’ expression of the Apex Court inRajesh’s case (supra), interest is awarded at 7.5% per annum. Having regard to the same, the interest is enhanced from 6% to7.5% per annum. Accordingly, Point No.1 is answered.

11. In the result, the appeal is partly allowedby modifying theaward of the Tribunal on quantum of compensation by enhancingthe same from Rs.2,82,000/-(Rupees two lakhs eighty twothousand only) to Rs.3,85,000/-(Rupees three lakhs eighty fivethousand only) with interest at 7.5% per annum enhancing from6% per annum from the date of petition (MVOP) till realization/deposit with notice. Out of said compensation, the 1[st]claimant is entitled to half and out of the remaining the 2[nd]claimant is entitled to 3/5[th] and the third claimant is entitled to2/5[th]. They are permitted to withdraw Rs.50,000/-each. Rest ofamount be deposited in FD in separate accounts for three years. There is no order as to costs of the appeal.

_________________________

Dr. B. SIVA SANKARA RAO, J

31[st] December, 2013

sj

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

[2]1965(1) A11. E.R-5631965(1) A11. E.R-563

[3]1963(2) All.E.R-4321963(2) All.E.R-432

[4]1969(1)A11.E.R –5551969(1)A11.E.R –555

[5]1995 ACJ 366(SC)-CA Nos.1799 &1800 of 1989 with SLP(Civil) 4586 of 19891995 ACJ 366(SC)-CA Nos.1799 &1800 of 1989 with SLP(Civil) 4586 of 1989

[6]2001 (8) SCC 197=AIR 2001 (SC) 32182001 (8) SCC 197=AIR 2001 (SC) 3218

[7]2013 ACJ 4103 = (4) ALT-35 (SC)2013 ACJ 4103 = (4) ALT-35 (SC)

[8](2005) 6 SCC 236(2005) 6 SCC 236