APHC010148102022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3367] FRIDAY ,THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE V SRINIVAS MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 132/2022 Between: Magma Hdi General Insurance Company Limited., ...APPELLANT AND Alla Venkata Padmavathi and Others ...RESPONDENT(S) Counsel for the Appellant: SRINIVASA RAO KAMARAJUGADDA Counsel for the Respondent(S): A SRINATH The Court made the following: JUDGMENT: This appeal is directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-IX Additional District Judge(FTC), Visakhapatnam at Chodavaram (hereinafter called as ‘the Tribunal’) in M.V.O.P.No.191 of 2019 dated 07.10.2021. 2. The appellant is the insurer of the Tractor-cum-Trailer bearing Nos.AP 31TC 0114 and AP 31CJ 5539 (hereinafter referred to as “crime vehicle”). The respondent Nos.1 to 5 herein, 2 who are wife, children and parents of one Alla Paradesi Naidu (hereinafter called as ‘deceased’), are the claimants before the Tribunal. The respondent Nos.6 and 7 are the driver and owner of the said crime vehicle. 3. For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal. 4. The case of the claimants, in the petition before the Tribunal is that: i). On 09.09.2018 at about 02.45 p.m., while the deceased proceeding on his motor cycle bearing No.AP 31 CN 8985, when he reached near new petrol bunk, the crime vehicle driven by the 1st respondent in a rash and negligent manner at high speed, hit the deceased and the crime vehicle ran over his body, died on the spot. ii). The deceased used to earn Rs.30,000/- per month as cable operator and contributed the same for the family. Being dependents, they claimed compensation 3 of Rs.15,00,000/- against the driver, owner and insurer of the crime vehicle bus. 5. The respondent No.3/insurer filed counter denying the averments in the petition and pleaded that the claimants have to prove that the respondent No.1 is having valid and effective driving license to drive the crime vehicle; that the compensation claimed by the claimants is excessive and thereby, prayed to dismiss the petition. 6. The Tribunal settled the following issues for enquiry based on the material: “1.Whether the deceased Alla Paradesi received injuries and died in an accident which took place on 09.09.2018 on account of rash and negligent act of the Tractor and Trailer bearing No.AP 31 TC 0114 and AP 31 CJ 5539? 2.Whether the Petitioners are entitled for compensation as prayed for whom? and 3.To what relief?” 7. During enquiry, on behalf of the claimants, PWs.1 to 3 were examined, Exs.A.1 to A.6 were exhibited. On behalf of the 4 respondent No.3, none were examined and no documentary evidence was adduced. 8. On the material, the Tribunal, having concluded that the accident occurred due to the contributory negligence of deceased as well 1st respondent-driver of the crime vehicle by attributing 20% and 80% negligence respectively, held that the claimants are entitled for the compensation of Rs.14,53,760/-, with interest at 7.5% per annum from the date of petition till the date of realization against the respondent Nos.1 to 3, for the death of the deceased in the accident. 9. It is against the said order; this appeal was preferred by the insurer of the crime vehicle. 10. Heard Sri Kamarajugadda Srinivasa Rao, learned counsel for the appellant/insurer. None appeared for the respondent Nos.1 to 5/claimants, in spite of giving opportunity. 11. Now, the point that arises for determination is “whether the order of the Tribunal is liable to be set aside, if so, to what extent? 5 12. POINT: It is not in dispute about the death of the deceased in the accident, involvement of the crime vehicle as well motorcycle of the deceased. It is also a fact that no appeal was preferred by the claimants as well owner of the crime vehicle against the findings of the Tribunal. 13. It is the main contention of the learned counsel for the appellant/insurer that the Tribunal failed to consider the fact that there is 50% of the contributory negligence on the part of the deceased in causing the incident. 14. This Court perused the material available on record. By considering the testimony of P.W.2 that the deceased was riding the motor cycle rashly and since the police after thorough investigation filed charge sheet against respondent No.1, held that there is contributory negligence on the part of the deceased as well 1st respondent in causing the incident attributing 20% and 80% respectively. 15. Furthermore, to prove that the deceased contributed 50% of negligence in causing the incident, no oral and documentary 6 evidence was adduced by the insurer before the Tribunal. Even the respondent No.3 not taken such plea in the counter as well. Thereby, this Court has no reason to interfere with the findings arrived by the Tribunal regarding percentage of contributory negligence attributed against the deceased and 1st respondent in causing the incident. 16. Now, coming to the quantum of compensation entitled by the claimants as well calculations made by the Tribunal is concerned, it is the specific contention of the appellant/insurer that the Tribunal erred in deducting 1/5th from the income of the deceased towards living and personal and living expenses, instead of 1/4th since 4th respondent died and that the Tribunal also committed a grave error is committed by the Tribunal by taking 40% on the income of the deceased towards future prospects instead of 25%, when the deceased was aged about 47 years. 17. In view of the said contention, this Court is inclined to decide the just compensation entitled by the claimants. It is not in dispute that by the time of incident the deceased was 7 aged about 47 years. In the absence of substantial proof regarding actual income of the deceased, by considering the fact that the deceased has private avocation as cable operator, the Tribunal taken the monthly income of the deceased at Rs.10,000/-. Thereby, the actual income of the deceased is determined at Rs.1,20,000/- per annum. 18. As per the decision of the Constitution Bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi1, the deductions towards personal and living expenses of the deceased, held at Paragraph No.39 as follows: ”39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly discernible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, Sarla Verma lays down:- “30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent 1 2017 (6) ALT 60 (SC) 8 decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.” 19. As per the Pranay Sethi case (referred supra), in case the deceased was self-employed, an addition of 25% should be made, if the age of the deceased was between 40 to 50….. (emphasis supplied) 20. In the present case, as per the above-mentioned decision, 25% of actual income has to be added to the income of the deceased towards future prospects as the deceased is aged about 47 years by the date of incident, which is not in dispute. Even the Tribunal mentioned in paragraph No.30 of its order that “an addition of 25% to the income of the deceased has to be given towards future prospects”, as contended by the learned counsel for the appellant/insurer, when it comes to calculation erroneously taken 40% towards 9 future prospects. After adding 25% to the income of the deceased towards future prospects her income is determined at Rs.1,50,000/-(Rs.1,20,000/- + Rs.30,000/-). 21. In the case on hand, when there are five claimants, in the cause title mentioned in the order of the Tribunal itself shows that the fifth claimant is died, however, the Tribunal failed to consider said fact and erroneously deducted 1/5th from the income of the deceased instead of 1/4th, where the dependent family members 4 to 6, thereby, the deduction towards personal and living expenses of the deceased should be 1/4th from the income of the deceased. Then the quantum is determined as Rs.1,12,500/-. 22. Regarding just compensation, in a decision of Hon’ble Supreme Court between Sandeep Khanuja vs Atul Dande & Anr2, at Paragraph Nos.11 and 12 held as follows : “11………it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method 2 2017 (3) SCC 315 10 is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident……... 12……… While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be……. ……. there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of ‘just’ compensation since the multiplier method is the accepted method for 11 determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.”……. (emphasis supplied) 23. The appropriate multiplier applicable to the age of the deceased i.e., 47 years is 13. The total loss of dependency is determined at Rs.14,62,500/- (Rs.1,12,500/- x 13). 24. CONVENTIONAL HEADS:- On the point of the conventional heads, as per the judgment in Pranay Sethi (supra), Magma National Insurance Company Limited v. Nanu Ram @ Chuhru Ram and Ors.3, Smt. Anjali and Others v. Lokendra Rathod and Others4, United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and ors.5 and Rojalini Nayak and others v. Ajit Sahoo and others6, this Court can award the enhanced amounts under the conventional heads of loss of estate, loss of consortium and funeral expenses. The 3 (2018) 18 SCC 130 4(2022) SCC OnLine SC 1683 5 (2022) SCC OnLine SC 1683 17 (2021) 11 SCC 780 12 claimants are also entitled for an amount of Rs.1,45,200/- towards loss of spousal, parental and filial consortium, towards funeral expenses Rs.18,150/- and towards loss of estate Rs.18,150/-, respectively as was awarded in Rojalini Nayak case (referred to supra). 25. A brief exposition of the calculation made to arrive at the compensation is set out infra: S.No. Heads Calculation 1 The annual income of the deceased. Rs.1,20,000/- per annum 2 25% of above(1) to be added as future prospects (Rs.1,20,000/-+ Rs.30,000/-) Rs.1,50,000/- 3 1/4th to be deducted as personal expenses of deceased. Rs.1,12,500/-. 4 Compensation arrived at on application of multiplier 13. (Rs.1,12,500/- x 13) Rs.14,62,500/- 5 Spousal, Parental and filial consortium (wife, two children and Rs.1,45,200/- (Rs.48,400/- X 3) 13 mother) 6 Loss of estate Rs.18,150/- 7 Funeral expenses Rs.18,150/- Total compensation awarded (Rows 4+5+6+7) After deducting the 20% from the compensation towards contributory negligence, the total compensation entitled by the claimants is: Rs.16,44,000/- Rs.13,15,200/- (Rs.16,144,000/- - Rs.3,28,800/- (20%)) 26. Therefore, calculating the compensation by deducting the liability of 20% towards contributory negligence of the deceased, the claimants are entitled to an amount of Rs.13,15,200/- instead of Rs.14,53,760/-. It is needless to say that the compensation claimed as well awarded by the Tribunal on the remaining heads are not entitled by the claimants. Thus, this point is answered accordingly. 27. In the result, M.A.C.M.A. is partly allowed, awarding compensation of Rs.13,15,200/- instead of Rs.14,53,760/- to 14 the claimants, with proportionate costs, from the date of petition till the date of realization against the respondent Nos.1 to 3. The appellant/respondent No.3/insurer shall deposit the entire compensation amount within two months from the date of this judgment before the Tribunal. On such deposit, the claimant No.1/wife is entitled an amount of Rs.5,15,200/- towards her share, the claimant Nos.2 and 3/major sons are entitled an amount of Rs.3,00,000/- each, the claimant No.4/mother is entitled an amount of Rs.2,00,000/- towards her share and they are permitted to withdraw their respective share amount with interest accrued thereon. The Tribunal shall proceed to pay the amount in the aforesaid terms, adjusting the amount, if any, already paid. Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed. ______________________ JUSTICE V.SRINIVAS Date: 21.03.2025 Krs 15 302 THE HON’BLE SRI JUSTICE V.SRINIVAS M.A.C.M.A.No.132 of 2022 (Judgment) DATE: 21.03.2025 Krs