1 THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A.No.1979 of 2017 JUDGMENT: 1. Feeling aggrieved by the award and order dated 22.12.2016 passed in M.V.O.P.No.132 of 2015 by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati (for short “the learned MACT”), A.P.S.R.T.C. (Respondent No.2 therein) filed the present appeal. Under the impugned proceedings a claim made for Rs.9,00,000/- by the legal representatives of one A. Balaji (hereinafter referred to as “the deceased”) for his death in a road traffic accident was allowed awarding a compensation of Rs.10,52,000/- with interest at 7.5% per annum. 2. Respondent Nos.1 to 3 herein are the claimants and Respondent No.4 herein is Respondent No.1 before the learned MACT and he was driver of the A.P.S.R.T.C Bus bearing Registration No. AP 28 Z 1348 (hereinafter referred to as “the offending vehicle”). Case of claimants: 3(i). When the deceased was travelling on his motor cycle bearing registration No.AP 03 BK 3005, near Sathyanarayanapuram Village on KVB Puram-Diguva Puttur main road, within the limits of KVB Puram Police Statiion, Srikalahasti, 2 Chittoor District, on 28.11.2014 at about 03:00 P.M, the offending vehicle driven by its driver came in a rash and negligent manner and dashed the motorcycle on which the deceased was travelling, due to which the accident occurred and the deceased suffered multiple injuries and succumbed to death. 3(ii). A case in Crime No.79 of 2014 was registered for the offences under Sections 337 and 279 IPC against the driver of the offending vehicle initially but subsequently the driver of the offending vehicle was charge sheeted for the offences under Sections 304 A and 279 IPC vide C.C.No.30 of 2015 on the file of Additional Judicial Magistrate of First Class, Srikalahasti. The accident has occurred due to the negligence of the driver of the offending vehicle. Deceased was aged „25‟ years; hale and healthy and he was a painter by profession and was earning Rs.500/- per day. 4. Claimant No.1 is the wife and Claimant Nos.2 and 3 are the parents of the deceased. They lost valuable financial and all sorts of support from the deceased. Hence they are entitled for compensation of Rs.9,00,000/-. 5. The driver of the offending vehicle remained ex parte. 6. A.P.S.R.T.C. who employed the driver and owner of the offending vehicle filed its counter contending that, the narration of accident etc. made by the claimants is incorrect and there was no negligence on part of the driver of the offending vehicle. Deceased was in a drunken condition and he himself was 3 negligent and dashed the bus. However, case was registered against the driver of the offending vehicle. Age, occupation, income of the deceased stated by the claimants are not correct hence they are put to strict proof of all allegations made by them. Claim made for compensation at Rs.9,00,000/- is excessive. 7. On the strength of pleadings, the following issues were settled for trial by the learned MACT: 1. Whether the accident took place due to rash and negligent driving of 1st respondent being the driver of APSRTC bus bearing Reg.No.AP 28 Z 1348 of 2nd respondent Corporation on 28.11.2014? 2. Whether A. Balaji who was rider of motor cycle bearing Reg.No.AP 03 BK 3005 died due to the injuries sustained in the accident? 3. What was the age and income of the deceased as on the date of his death? 4. Whether the petitioners are entitled for compensation and if so, to what amount, from whom? 5. To what relief? 8. Evidence before the learned MACT: Description Remarks Oral evidence P.W.1: N. Soundarya Claimant No.1 P.W.2: N. Rajendra Eye witness to the accident. 4 P.W.3: N. Venkateswarlu Resident of Marappareddikandriga Village Documentary evidence Ex.A1: Certified copy of FIR in Crime No.79 of 2014 of K.V.B. Police Station. Ex.A2: Certified copy of altered FIR in Crime No.79 of 2014 of K.V.B. Police Station. Ex.A3: Certified copy of charge sheet filed in C.C.No.30 of 2015 on the file of Addl. Judicial Magistrate of First Class, Srikalahasti. Ex.A4: Certified copy of inquest report of the deceased Ex.A5: Certified copy of postmortem certificate of the deceased Ex.A6: Certified copy of accident information report. On behalf of the petitioner(s). Findings of the learned MACT: 9. P.W.2 / N. Rajendra is an eye witness to the accident. He has stated about rash and negligent driving of the driver of the offending vehicle. Deceased was initially shifted to Government Hospital at Srikalahasthi. On the advise of the doctor, while shifting to CMC Vellore Hospital at Vellore, on the way the deceased succumbed to injuries. Evidence of PW.2 is having corroboration from Ex.A1-FIR, Ex.A2-altered FIR, Ex.A3-charge sheet. PW.3 / N. Venkateswarlu, a resident of Marappareddikandriga Village also supported the evidence of PW.1. 5 10. The deceased was a painter by profession as per the evidence of PW.1, wife of the deceased. She claimed that his income is at Rs.500/- per day. No documents are filed to prove the same. Moreover, painting work may not be there throughout the year. Therefore, notionally, the income of the deceased is fit to be taken at Rs.4,500/- per month. 50% is to be added towards future prospects, then the income comes to Rs.6,750/- per month. 1/3rd is deducted towards personal and living expenses as there are three legal heirs, the contribution of deceased to the family comes to Rs.4,500/- per month. Multiplier applicable is „18‟, whereby the entitlement comes to Rs.9,72,000/- under the head of loss of dependency. Claimant No.1 is entitled at Rs.50,000/- under the head of loss of consortium and Claimant Nos.2 and 3 are entitled at Rs.20,000/- under the head of loss of love and affection. Towards funeral expenses, the claimants are entitled at Rs.10,000/-. In all, the claimants are entitled for Rs.10,52,000/-. Arguments in the appeal: For appellant-A.P.S.R.T.C: 11. There is no basis for believing the negligence of the driver of the offending vehicle. 12. Deceased lost control over the motor cycle and he was negligent. Petition is bad for non-joinder of the owner and the Insurance Company of the motor 6 cycle. The learned MACT erred in ignoring the contributory negligence on the part of the deceased. 13. There is no basis to take the income at Rs.4,500/- and adding 50% towards future prospects is incorrect. Awarding of Rs.50,000/- to claimant No.1 under the head of loss of consortium is not correct. For claimants: 14. Learned MACT has taken the income at the very low rate of Rs.4,500/- per month. Compensation awarded by the learned MACT is low and fit to be enhanced even in the absence of appeal by the claimants. The findings of the learned MACT as to negligence and entitlement of claimants for compensation are fit to be confirmed. 15. Appeal is liable to be dismissed. However, enhancing the compensation granted by the learned MACT. 16. Perused the record. Thoughtful consideration given to the arguments advanced by the both sides. 17. The points that arise for determination in this appeal are: 1) Whether the pleaded accident dated 28.11.2014 has occurred due to the exclusive rash and negligent driving of the offending vehicle? 7 2) Whether the claimants are entitled for compensation if so what is the just and reasonable compensation to which they are entitled and whether the compensation of Rs.10,52,000/- awarded by the learned MACT is just and reasonable or require any interference if so to what extent.? 3) What is the result of the appeal? Point No.1: 18. P.W.2 is an eye witness to the accident deposed about the accident and negligence of the driver of the offending vehicle. The driver of the offending vehicle remained ex parte and there is no any evidence from the appellant / APSRTC to dilute the evidence placed by the claimants. Ex.A1 to A3 i.e. FIR, altered FIR, charge sheet are corroborating the evidence of PW.2. There is no evidence from Respondent No.2 to indicate the negligence of the deceased, even the driver of the offending vehicle is not examined. Therefore, the negligence of the driver of the offending vehicle is believed. Hence, the findings of the learned MACT as to negligence of the driver of the offending vehicle found fit to be accepted. Accordingly, accepted and point framed touching the negligence is answered against the appellant and in favour of the claimants. 8 Point No.2: Quantifying the compensation in case of claims arising out of Motor Vehicles Accidents causing death:- Precedential Guidance: 19(i). Hon‟ble Apex Court to have uniformity of practice and consistency in awarding just compensation provided certain guidelines in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr.1 vide paragraph Nos.18 and 19, while prescribing a table directing adoption of multiplier mentioned in column No.4 of the table. As per the observations in the judgment the claimants have to establish the following: 1. Age of the deceased. 2. Income of the deceased. 3. Number of dependents. 19(ii). Hon‟ble Apex Court directed certain steps while determining the compensation, they are: Step No.1: Ascertain the multiplicand, which shall be the income of the deceased he / she should have contributed to the dependents and the same can be arrived after deducting certain part of personal living expenses of the deceased. 1 2009 (6) SCC 121 9 Step No.2: Ascertaining Multiplier. This shall be with reference to the table provided and table is provided in judgment itself. Step No.3: Calculation of the compensation. Final Step: 20(i). After calculation adding of certain amount towards conventional heads towards loss of estate, loss of consortium, funeral expenditure, cost of transport, cost of medical expenses for treatment of the deceased before the death etc. are advised. 20(ii). Enhancing the scope for awarding just compensation, the Hon‟ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi and Others2 case guided for adding of future prospect. In respect of permanent employment, 50% where the deceased is below 40 years, 30% where the deceased is 40-50 years and 15% where the deceased is 50-60 years. The actual salary shall be after deducting taxes. Further, in respect of self employed on fixed salary addition is recommended, at 40% for the deceased below 40 years, at 25% where the deceased is between 40-50 years, at 10% where the deceased is between 50-60 years. Further, adding of compensation for loss of estate, loss of consortium and funeral expenses at Rs.15,000/- and 2 2017(16) SCC 680 10 Rs.40,000/- and Rs.15,000/- respectively is recommended by Hon‟ble Apex court with an addition of 10% for every three, two years in Pranay Sethi’s case. 20(iii). Further enlarging the scope for awarding just and reasonable compensation in Magma General Insurance Company Ltd. v. Nanu Ram and Others3, Hon‟ble Apex Court observed that compensation can be awarded under the heads of loss of consortium not only to the spouse but also to the children and parents under the heads of parental and filial consortium. 20(iv). In Rajesh and others vs. Rajbir Singh and others4, the Hon‟ble Supreme Court in para Nos.10 and 11 made relevant observations, they are as follows: 10. Whether the Tribunal is competent to award compensation in excess of what is claimed in the application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At para 10 of Nagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 : 2003 SCC (Cri) 523 : AIR 2003 SC 674] , it was held as follows: (SCC p. 280) “10. Thereafter, Section 168 empowers the Claims Tribunal to „make an award determining the amount of compensation which appears to it to be just‟. Therefore, the only requirement for determining the compensation is that it must be „just‟. There is no other limitation or restriction on its power for awarding just compensation.” The principle was followed in the later decisions in Oriental Insurance Co. Ltd. v. Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] and in Ningamma v. United India Insurance Co. Ltd. [(2009) 13 3 (2018) 18 SCC 130 4 (2013) 9 SCC 54 11 SCC 710 : (2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213] 11. Underlying principle discussed in the above decisions is with regard to the duty of the court to fix a just compensation and it has now become settled law that the court should not succumb to niceties or technicalities, in such matters. Attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim. Analysis of Evidence: 21. The deceased was a painter and it is claimed that his earnings are Rs.500/- per day. The learned MACT gave reasoning that there may not be the painting work every day. Notionally income of the deceased is taken at Rs.4,500/- per month by the learned MACT, although there is no basis. Guess work is permissible in the cases like present one based on social welfare legislation. So the income taken by the learned MACT is found fit to be accepted. 22. However, adding of 50% towards future prospects found not correct particularly in the context of the self employed nature of employment and age of the claimant, 40% can be taken towards future prospects. Then the income of the deceased comes to Rs.6,300/- per month and Rs.75,600/- per annum. 1/3rd of the income of the deceased is to be deducted towards the personal expenditure, then the contribution of the deceased to the claimants is at Rs.50,400/- which can be considered as Multiplicand. Age of the deceased 12 as per the Inquest Report and Postmortem certificates is „25‟ years. Multiplier applicable to the age of the deceased is „18‟. If the same is applied, then the loss of dependency to the claimants comes to Rs.9,07,200/-. All the claimants are entitled for compensation under the head of loss of consortium at the rate of Rs.40,000/- each and the claimants are entitled for compensation under the heads of funeral expenditure and loss of estate at Rs.15,000/- each. Then, the total entitlement of the claimants comes to Rs.10,57,200/-. 23. In the light of precedential guidance and in view of the reasons and evidence referred above, the entitlement of the claimants for reasonable compensation in comparison to compensation awarded by the learned MACT is as follows: Sl. No. Head Granted by the MACT Fixed by this Appellate Court 1. Loss of dependency Rs.9,72,000/- Rs.9,07,200/- 2. Loss of consortium Rs.50,000/- Rs.1,20,000/- (Rs.40,000/- @ each claimant: 40,000x3) 3. Funeral Expenditure and Transport Expenditure Rs.10,000/- Rs.15,000/- 4. Loss of love and affection Rs.20,000/- -Nil- 5. Loss of estate Rs.15,000/- Total: Rs.10,52,000 /- Rs.10,57,000/- 13 24. For the reasons aforesaid it is found that the claimants are entitled for compensation of Rs.10,57,200/- and the compensation awarded by the learned MACT at Rs.10,52,000/- is fit to be modified accordingly. Point No.2 is answered accordingly. 25. Awarding more compensation than what claimed and awarding compensation to the claimants even in the absence of any appeal or cross objections by the claimants require examination. Granting of more compensation than what claimed, if the claimants are otherwise entitled:- 26. The legal position with regard to awarding more compensation than what claimed has been considered and settled by the Hon‟ble Supreme Court holding that there is no bar for awarding more compensation than what is claimed. For the said preposition of law, this Court finds it proper to refer the following observations of the Hon‟ble Supreme Court made in (1) Nagappa Vs. Gurudayal Singh and Others5, at para 21 of the judgment, that – “..there is no restriction that the Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award “just” compensation, which is reasonable on the basis of evidence produced on record.” 5 (2003) 2 SCC 274 14 (2) Kajal V. Jagadish Chand and Ors.6 at para 33, as follows:- “33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in the motor accident claim petitions, the Court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.” Enhancement of compensation in the absence of appeal: 27(i). Whether the compensation can be enhanced in the absence of an appeal or cross appeal by the claimant. The legal position as to powers of the Appellate Court particularly while dealing with an appeal in terms of Section 173 of the Motor Vehicles Act, 1988, where the award passed by the learned MACT under challenge at the instance of the Insurance Company (Respondents) and bar or prohibition if any to enhance the quantum of compensation and awarding just and reasonable compensation, even in the absence of any appeal or cross objections was considered by the Division Bench of this Court in a case between National Insurance Company Limited vs. E. Suseelamma and others7 in M.A.C.M.A. No.945 of 2013, while answering point No.3 framed therein vide, para 50 of the judgment, which reads as follows: 50. In our considered view, the claimant/respondents are entitled for just compensation and if on the face of the award or even in the 62020 (04) SCC 413 7 2023 SCC Online AP 1725 15 light of the evidence on record, and keeping in view the settled legal position regarding the claimants being entitled to just compensation and it also being the statutory duty of the Court/Tribunal to award just compensation, this Court in the exercise of the appellate powers can enhance the amount of compensation even in the absence of appeal or cross-objection by the claimants. 27(ii). Observations made by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others (7 supra) case are in compliance with the observations of Hon‟ble Apex Court in Surekha and Others vs. Santosh and Others8. 27(iii). In Surekha and Others vs. Santosh and Others (8 supra) case, in Civil Appeal No.476 of 2020 vide judgment dated 21.01.2020, three judges of the Hon‟ble Supreme Court observed that “it is well stated that in the matter of Insurance claim compensation in reference to the motor accident, the Court should not take hyper technical approach and ensure that just compensation is awarded to the affected person or the claimants”. While addressing a case where the High Court has declined to grant enhancement on the ground that the claimants fail to file cross appeal above observations are made. Point No.3: 28. For the aforesaid reasons and in view of the findings of point Nos.1 and 2, Point No.3 is answered as follows: 8 (2021) 16 SCC 467 16 (i) In the result the appeal is dismissed. The compensation awarded by the learned MACT at Rs.10,52,000/- is modified to Rs.10,57,200/- with interest at the rate of 7.5% per annum. (ii) Apportionment: a) Rs.6,57,200/- is apportioned to share of claimant No.1. b) Rs.2,00,000/- each is apportioned to claimant Nos.2 and 3 along with interest on their respective shares. (iii) Compensation apportioned to the shares of respective claimants shall inclusive of compensation awarded under the head of loss of consortium etc. (iv) All the claimants are entitled to withdraw their respective shares of compensation at once on deposit. (v) The appellant shall deposit the balance part of compensation amount, awarded in terms of the present judgment of this Court under due intimation to the Respondent-claimants, after adjusting what is already deposited or paid, within a period of one month. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed. ____________________________ A. HARI HARANADHA SARMA, J Date:17.04.2025 Knr 17 HON’BLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A No.1979 of 2017 17th April, 2025 Knr