Smt. S. Laxmi v. Mr. Anjaneyulu, B. Parne
HON'BLE SRI JUSTICE A. SHANKAR NARAYANA C.M.A.No.1592 of 2004 JUDGMENT :
The instant Civil Miscellaneous Appeal is preferred by the petitioners, who are the legal representatives of the deceased - Illaiah, aggrieved by the judgment and decree dated 19.03.2004 in O.P.No.82 of 2001 passed by the Chairman, Motor Vehicle Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad (for brevity "the Tribunal"), awarding a sum of Rs.2,51,000/- towards compensation, as against the claim of Rs.10,00,000/- made under Section 166 of the Motor Vehicles Act, 1988, for the death of the deceased - Illaiah, who died in a motor accident that occurred on 21.01.1999 at about 6-00 p.m., near Kodakandal Bus Stop on Rajiv Rahadari Highway.
2. The appellants are petitioners, respondent No.1 is the owner of the motor cycle i.e., Bajaj Caliber (F/R) bearing Chasis No.DDF8EJ 21818 Engine No.DDM8EJ 20742 and respondent No.2 is its insurer. For the sake of convenience, the parties are referred to as they were arrayed in the O.P., before the Tribunal.
3. The facts, in brief, are that on 21.01.1999, the deceased - Illaiah along with the 1st respondent - owner of the motor cycle was proceeding as pillion rider on motor cycle i.e., Bajaj Caliber (F/R) bearing Chasis No.DDF8EJ 21818 Engine No.DDM8EJ 20742 from Hyderabad towards Komarvelli near Siddipet, and when respondent No.1 was driving the vehicle with high speed and in a rash and negligent manner, at about 6.00 p.m., when they reached Kodakandal Bus Stop on Rajiv Rahadari Highway, all of a sudden, since a bull ran across the road, respondent No.1 could
not control the vehicle on account of driving the vehicle with high speed and dashed to the bull, due to which the deceased sustained grievous injuries on head and other parts of the body. Immediately, the deceased was shifted to Apollo Hospital, Hyderabad, and despite performing surgery to his head, the deceased died on 22.01.1999 at about 10.40 a.m.
4. The petitioners, being wife, daughters and son of the deceased, sought a sum of Rs.10,00,000/- towards compensation for the death of the deceased, stating that by the date of accident, the deceased was working as High Skilled Worker-I (Welding) in South Central Railways on a gross salary of Rs.7,717/- per month and he was likely to be promoted as Chargeman in the pay scale of Rs.8,000/- and was also entitled for revised pay in the pay scale of Rs.4,500/- to Rs.7,000/-, and used to attend private welding shops during his leisure time and used to get additional income of Rs.1,000/- per month.
5. Before the Tribunal, the 1st respondent - owner of the motor cycle remained exparte and the 2nd respondent - insurer opposed the claim by raising various grounds. The 2nd respondent also reserved its right under Section 170 of the Motor Vehicles Act to take the defences available to the owner of the vehicle.
6. Basing on the above pleadings, the Tribunal framed the following issues for trial:
(1) Whether the accident has taken place due to rash and negligent driving of the Bajaj Caliber (F/R) bearing Chasis No.DDF8EJ 21818 Engine No.DDM8EJ 20742 by its driver?
(2) What is the just amount that can be awarded as compensation and against whom?
(3) To what relief?
7. During enquiry, the 1st petitioner, who is the wife of the
deceased, was examined as P.W.1, besides examining P.W.2, an eye witness to the accident; and P.W.3, a co-employee of the deceased, and marked Exs.A.1 to A.11. On behalf of the 2nd respondent - insurer, no witnesses were examined, except marking certified copy of the insurance policy as Ex.B.1. The Tribunal, on appraisal of evidence and the material on record, more particularly. the evidence of P.W.2 and the contents of Exs.A.1 to A.6, held issue No.1 in favour of the petitioners, holding that the accident had taken place due to the rash and negligent driving of the accident motor cycle by the 1st respondent - owner. On issue No.2, taking the age of the deceased as 48 years by the date of accident, since Ex.A.11 - Service Certificate issued by the employer of the deceased i.e., South Central Railway is showing his date of birth as 12.06.
1950 and the gross salary at Rs.5,125/- per month, after deducting 1/3rd towards personal expenses of the deceased, the balance 2/3rd was taken as contribution to the family. Further, as admitted by P.W.1 in her cross-examination that she was receiving a sum of Rs.1,800/- per month towards pension, after deducting the said amount from the balance 2/3rd amount of contribution to the family and by applying the appropriate multiplier '8.88' for the persons of the age group of the deceased, the loss of future contribution of the deceased to the family was worked out at Rs.1,72,272/-. Besides the said sum, the Tribunal has granted a sum of Rs.10,000/- towards compensation for shock and mental agony due to the sudden demise of the deceased; Rs.5,000/- towards funeral charges and transportation expenses, Rs.10,000/- towards loss of estate, Rs.
10,000/- towards loss of love and affection of the deceased, Rs.
the wife of the deceased; Rs.18,831/- towards medical expenses, and Rs.10,000/- towards pain and suffering undergone by the deceased for the injuries while he was alive, and thus, arrived at a total compensation of Rs.2,51,103/-, which was rounded off to Rs.2,51,000/-.
8. Dissatisfied with the said amount of compensation, the petitioners have preferred the instant Civil Miscellaneous Appeal, contending in the grounds of appeal that, the Tribunal has committed error in deducting pension from the gross salary of the deceased and in applying the relevant multiplier, that the Tribunal has not properly appreciated the evidence on record and ought to have taken the gross salary of the deceased while determining the amount of compensation and hence sought for awarding of balance amount of compensation.
9. Heard Sri G. Arun Kumar, learned counsel for the appellants/petitioners, as well as Sri Naresh Byrapaneni, learned Standing Counsel for respondent No.2 - Oriental Insurance Company Limited and perused the material on record.
10. This Court, while passing order dated 17.04.2015, recorded that respondent No.1 even remained exparte before the Tribunal and, therefore, non-service of notice in the instant appeal is no way fatal in view of the decision of a Division Bench of this Court in MEKA CHAKRA RAO V. YELUBANDI BABU RAO @ REDDEMMA AND OTHERS[1]. Thus, the absence of respondent No.1 - owner of the vehicle is of no consequence in deciding the quantum of compensation.
11. So far as the age of the deceased is concerned, the Tribunal has taken his age as 48 years basing on the date of birth indicated in Ex.A.11 - Service Certificate issued by the employer i.e., South Central Railways, showing the date of birth of the
deceased as 12.06.1950. The accident had taken place on 21.01.1999, therefore, the age of the deceased, as arrived at by the Tribunal at 48 years, is confirmed. However, concerning the gross salary of Rs.5,125/- fixed by the Tribunal, Ex.A.10 - Pay Slip clarifies that the deceased was drawing a Pay Scale of Rs.5,100/-, of which the earnings and deductions are as follows: EARNINGS DEDUCTIONS Salary 5,100-00 PF SUBSCR. 425-00 TRN Allowance 100-00 CMTD 140-00 D.A. 1,122-00 INST-3 5-00 H.R.A. 765-00 LIC-1 383-00 C.C.A. 150-00 MB FUND-1 10-00 L/N IND OFF -66 RLY/GP INS 30-00 C/N IND OFF 1-91 OR PROF TAX 80-00 N.D ANIYBT 120-25 REC**47*** 144-00 INC BONUS 361-00 CCS LOAN 775-00 ----------- ------------ 7,717-00 1,992-00 ----------- ------------
12. Thus, the provisional gross salary drawn by the deceased was Rs.7,717/- per month and the deductions being Rs.1,992/-, as shown under the deductions column, net amount being drawn by the deceased comes to Rs.5,725/-. A perusal of Ex.A.11 - Service Certificate would show that the deceased was drawing the rate of pay on leaving service at Rs.5,125/- in the pay scale of Rs.4,500/- to Rs.7,000/- RS(RP).
13. The evidence of P.W.3, who was a co-employee of the deceased in South Central Railways, shows that the deceased was working in the same Department and both of them joined together in service in the year 1974. The deceased was a Senior Skilled Welder drawing a monthly salary of Rs.7,717/-. His evidence, thus corroborates the contents of Ex.A.11. Therefore, the gross salary drawn by the deceased as on the date of accident
was Rs.7,717/-. When Rs.80/- towards Professional Tax and Rs.361/- towards Bonus were deducted, the carry home salary works out to Rs.7,276/- per month, which is to be fixed as the salary being drawn by the deceased by the date of accident and when the same is multiplied by '12', the annual income of the deceased comes to Rs.87,312/-. Since there are 5 dependents on the deceased, 1/4th deduction is permissible while computing the contribution to the family in view of the decision of the Apex Court i n SARLA VERMA & OTHERS V. DELHI TRANSPORT CORPORATION AND ANOTHER[2], which comes to Rs.21,828/- and if the same is deducted, the contribution to the family comes to Rs.65,484/-. The Tribunal has deducted even the pension amount, which ought not to have been deducted.
Therefore, to that extent, the finding recorded by the Tribunal and also the finding in taking the carry home salary are set aside. The Tribunal has taken '8.88' as the appropriate multiplier. In view of the decision of the Hon'ble Supreme Court in SARLA VARMA's case (supra 2), for the age group of 46 to 50 years, the relevant multiplier is '13' and when the same is applied, the loss of dependency works out to Rs.8,51,292/-. Since the petitioners are entitled to 30% towards future prospects, in addition to the amount what was arrived at above, as per the decisions of the Apex Court in SARLA VARMA's case (supra 2) and Rajesh and others v. Rajbir Singh and others[3], when 30% is applied, the loss of future prospects works out to Rs.2,55,388/-. Thus, the loss of dependency works out to Rs.11,06,680/-.
Further, the petitioners are entitled to a sum of Rs.50,000/- towards convention amount as per the decision of the Supreme Court in RAMILABEN CHINUBHAI PARMAR VS.
NATIONAL INSURANCE
COMPANY[4]. This apart, the petitioners are also entitled to a sum of Rs.18,831/- spent towards medical expenses for the deceased. Thus, the petitioners are entitled to a total sum of Rs.11,75,511/-, which is rounded off to Rs.11,75,500/-.
14. Turning to whether the compensation exceeding the claim can be awarded, it is well settled that the Courts are empowered to grant compensation exceeding the amount claimed while determining just and reasonable compensation to which the claimant is entitled. In the instant case, the petitioners laid the claim for Rs.10,00,000/- only, but, certainly, they cannot be deprived of Rs.11,75,500/-, though it exceeds the claim made by them, in view of the decisions of the Hon'ble Apex Court in NAGAPPA V. GURUDAYAL SINGH AND OTHERS[5], SRI LAXMAN @ LAXMAN MOURYA V. DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED[6] and RAJESH AND OTHERS V. RAJBIR SINGH AND OTHERS[7], wherein it was held that it is duty of the Courts to award just, equitable, fair and reasonable compensation with reference to the settled principles of law irrespective of the claim made.
15. Concerning the rate of interest, Tribunal granted it at 9% per annum and the same is confirmed on the amount of Rs.2,51,000/- awarded by the Tribunal. However, on the enhanced amount i.e., Rs.9,24,500/-, interest at the rate of 7.5% per annum is granted in view of the decision of the Hon'ble Supreme Court in RAJESH's case (supra 7).
16. In the result, the appeal is allowed, and the judgment and decree dated 19.03.2004 in O.P.No.82 of 2001 passed by the Tribunal are modified enhancing the compensation from Rs.2,51,000/- to Rs.11,75,500/- (Rupees eleven lakhs seventy five
thousand five hundred only) with interest at the rate of 9% per annum on the amount of Rs.2,51,000/- granted by the Tribunal and at the rate of 7.5% per annum on the enhanced amount of Rs.9,24,500/- (Rupees nine lakhs twenty four thousand five hundred only) from the date of petition till realization. However, the petitioners are directed to pay the deficit court fee within a period of three (03) months from today. There shall be no order as to costs.
17. As a sequel thereto, miscellaneous applications pending, if any, shall stand closed.
__________________________________ JUSTICE A. SHANKAR NARAYANA 22.03.2016.
Msr HON'BLE SRI JUSTICE A. SHANKAR NARAYANA C.M.A. No.1592 of 2004
22.03.2016 Msr [1] 2001(1) ALT 495 (D.B.) [2] (2009) 6 Supreme Court Cases 121 [3] 2013 ACJ 1403 [4] LAWS (SC) -2014-4-67 [5] AIR 2003 SC 674 [6] 2012 ACJ 191 (SC)
[7] 2013ACJ1403 = 2013(4)ALT35