HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.2593
OF 2007
JUDGMENT:
The Claimants no other than the
husband and minor son of the deceased by name B.Jayamma, aged about 24
years filed the claim in O.P.No.1430 of
2001 on the file of
the learned Chairman of the Motor Accidents Claims Tribunal–cum-X Additional
Chief Judge(Fast Track Court), City Civil Court, at Hyderabad, (for short,
‘Tribunal’), under Section 166 of the Motor Vehicle Act,1988 (for short,
‘the Act’) for compensation of Rs.5,00,000/- against the owner,
Insurer and the hirer(APSRTC) to whom the crime bus bearing No.AP28/U-4499 hired
covered by Ex.B.1 policy, since awarded by the tribunal of Rs.1,97,000/- with
interest at 7.5% p.a.,
fixing liability against respondents 1 to 3 by its award dated
23.04.2007, impugning the same, preferred the appeal with the contentions in
the grounds of appeal that the compensation awarded by the tribunal is utterly
low and unjust, that the tribunal found the accident was taken place due to the
rash and negligent driving of the driver of the offending bus but not awarded
just compensation, that the tribunal came to wrong conclusion that the deceased
was a woman of no income contrary to evidence, when the deceased was earning
Rs.5,000/- per month from tailoring and embroidery works, that the tribunal
erred in taking Rs.1250/- p.m. even not considering the expressions of the Apex
Court that minimum Rs.3,000/- p.m. to be taken for the services of house-wife,
hence to allow the appeal by setting aside the award by granting the
compensation as prayed for. The learned counsel for the claimants-appellants reiterated
the same in the course of the hearing.
2. Whereas, it is the contention of the
learned counsel for the 2nd respondent-Insurer, that the tribunal is
just and for this Court while sitting in appeal there is nothing to interfere,
that as per Sarla
Verma v. Delhi Transport Corporation[1]
half to be deducted towards personal expenses as the claimants are two in
number but the husband is not dependant on the deceased-wife, it is also his
further contention that there is contributory negligence on the part of the
deceased, hence sought for dismissal of the claim.
3. Perused the material on record. The parties hereinafter are
referred to as arrayed before the Tribunal for the sake of convenience in the
appeal.
4. Now the
points that arise for consideration in the appeal are:
1. Whether there is any contributory
negligence on the part
of the rider of the motor cycle- the 1st claimant-husband
of the deceased at the time of
the accident, in which
the claimant along with the deceased were traveling, if
so, with what observations?
2. Whether the compensation awarded by the
tribunal in
O.P.No.1430
of 2004 dated 23.04.2007 is utterly low and
unjust and requires interference by this
Court while
sitting
in appeal and if so, with what compensation, with
what
rate of interest and with what observations?
3. To what
result?
Point No.1:
5. As
can be seen from the postmortem report, there are multiple injuries sustained
by the deceased. As per the Ex.A.1 First Information Report and Ex.A.2 charge
sheet, it is mentioned that the accident was caused due to rash and negligent
driving of the driver of the bus who was coming from behind the motor cycle of
the deceased and dashed. When such is
the case, the finder of last opportunity is with bus driver only. Hence, there
is nothing to say any contributory negligence on the part of the scooterist-the
1st claimant herein by applying sudden brake and caused accident. No
doubt, there is triple riding but in the absence of proving, mere triple riding
cannot be presumed as contribution. Moreover, out of two persons, one is 1st
claimant herein and the other is a child aged 3 years at the time of the
accident.
Point No.2:
6. Now coming to
the quantum of compensation, as per the Apex Court’s expression in Latha
Wadhwa vs. State of Bihar[2]
that even there is no proof of income and earnings, it can be reasonably estimated
with a minimum of Rs.3,000/- p.m. for any non-earning member. Hence, the
earnings of the deceased is even taken at Rs.3,000/- per month and with proportionate increase from the
date of above expression to the date of accident, it comes to Rs.3,200/- p.m.
and the claimants are husband and minor child of the deceased, 1/3rd
is to be deducted towards personal expenses of the deceased out of it, then it
comes to Rs.2,133/-x 12 x 17(multiplier even taken the age of the deceased
which is above 26 years), then it comes to Rs.4,35,000/-, besides Rs.1,00,000/-
towards consortium to the 1st
claimant, Rs.25,000/- towards funeral expenses, Rs.10,000/- towards loss
of estate and Rs.10,000/- towards care and guidance of minor son-2nd
claimant as per Rajesh v. Rajbir Singh[3]
in all comes to Rs.5,80,000/- is the
just compensation for which the claimants are entitled and confirming the rate
of interest at 7.5%p.a. as awarded by the tribunal. It is the submission by the
learned counsel for the claimants that the claimant is ready to pay deficit
Court fee as per the settled expressions for the entitlement of compensation.
Accordingly, Point No.2 is answered.
POINT No.3:
7. In the
result, the appeal is allowed by enhancing the quantum of compensation from Rs.1,97,000/-
to Rs. 5,80,200/-(Rupees five lakhs eighty thousand and two hundred only) but
the actual claim is Rs.5,00,000/-, with interest at 7½% p.a. from the date of petition (MVOP) till
realization/deposit with notice. The respondents 1 to 3 are directed to deposit
the amount enhanced herein (including the earlier amount of Rs.1,97,000/- if
not deposited) before the tribunal within one month from date of receipt of the
award; else the claimants can execute and recovery subject to payment of
deficit Court fee on Rs.80,000/- under Rule 475 of the APMV Rules, before the
tribunal. In all the other respects the
award of the tribunal holds good. The claimants are at liberty to approach the
tribunal for any permission to withdraw to decide. There is no order as to
costs in the appeal. Consequently, miscellaneous petitions, if any, pending in
this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date: 12.12.2014
VVR
