IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI THURSDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2706 OF 2016 Appeal filed under section 173 of Motor Vehicles Act 1988, against the impugned award and the decree of the VI Additional District Judge (Motor Accidents Claims Tribunal) S.P.S.R. Nellore District in M.V.O.P.NO. 433 of 2013 dated 05-02-2016. Between: HDFC ERGO General Insurance Co. Ltd., rep. by its Branch Manager, Trunk Road, Nellore. ...Appellant/Respondent No.2 AND 1. Chilaka Neeraja, W/o. Prabakar, Hindu, aged 40 years. 2. Thota Neelima, D/o. Late Prabhakar, Hindu, aged 24 years, R/o. Chalamcherla Village, Kavalil Rural Mandal, SPSR Nellore district. 3. Chilaka Vineela, D/o. Late Prabhakar, Hindu,aged 17 years (Minor) 4. Chilaka Pavan Kumar, S/o. Late Prabhakar, Hindu, aged 15 years (Minor) 5. Chilaka Leelamma Alias Bujjamma, W/o. Late Venkaiah, Hindu, aged 68 years. (Respondent Nos.1, 3 to 5 are R/o. Beeramgunta Village Allur Mandal, SPSR Nellore district.) (Respondent Nos.3 & 4 being minors are rep. by her mother and natural guardian, the respondent No.1 herein) ...Respondents/Petitioners 6. Chilaka Sekhar, S/o. Late Venkaiah, Hindu, Owner of Tractor Beeramgunta Village, Allur Mandal, SPSR Nellore district. & Trailer, ...Respondent/Respondent No.1 Counsel for the Appellant: SRI NARESH BYRAPANENI Counsel for the Respondents: SRI M S R CHANDRA MURTHY The Court made the following: MACMA No.2706 of 2016 APHC010380132016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3520] THURSDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2706/2016 Between: ...APPELLANT Hdfc Ergo General Insurance Co. Ltd. AND ...RESPONDENT(S) Chilaka Neeraja and Others Counsel for the Appellant: 1.NARESH BYRAPANENI Counsel for the Respondent(S): 1.M S R CHANDRA MURTHY The Court made the following: m MACMA No.2706 of 2016 2 JUDGMENT: 1. Heard both sides. Challenge in this appeal is against the award and decree dated 05.02.2016 passed by the Motor Accident Claims Tribunal-cum- VI Additional District Judge, S.P.S.R. Nellore District (hereinafter referred to as “the MACT”) in M.V.O.P.No.433 of 2013. 2. 3. HDFC Ergo General Insurance Company Limited / Respondent No.2 before the learned MACT is the appellant herein. Respondent Nos.1 to 5 herein are the claimants. For the sake of convenience, the parties will be hereinafter referred to, as and how they are arrayed before the learned MACT. 4. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming a compensation of Rs.4,00,000/- for the death of husband of claimant No.1, father of claimant Nos.2 to 4 and son of the clamant No.5 by name one Sri Chilaka Prabhakar. As against the claim made for Rs.4,00,000/-, the learned MACT granted Rs.6,22,000/-. 5. The facts and context that led to filing of this appeal invoking Section 173 of the Motor Vehicles Act, 1988 in succinct are as follows: MACMA No.2706 of 2016 3 One Sri Chilaka Prabhakar(hereinafter referred to as “the (i). Respondent No.1 is the owner of the deceased”), is a labourer. tractor and trailer bearing Nos.AP 26 AR 5204 and 5205 (hereinafter referred to as “the offending vehicle”). On 10.10.2012, the deceased along with the sand load when travelling near Amaluru of Harijanawada, S.P.S.R. Nellore District, within the limits of Allur Police Station, at about 02.30 am, the driver of the tractor drove it in a rash and negligent manner, lost control over the steering and hit the party flag on the cement mound, whereby the tractor fell in the irrigation channel, due to which, the deceased suffered severe bleeding injuries and was shifted to Government Hospital, Rajupalem, where he was declared as no more. The owner of the tractor remained ex parte. (ii). The Insurance Company (appellant herein) denied its liability on the grounds: (1) Want of negligence on the part of driver of the tractor. (2) There is a provision that only one seat in the tractor andtravellingof the deceased adjacent to the driver is not permissible. (3) Married daughter /second claimant is not entitled for compensation. MACMA No. 2706 of 2016 4 (4) The driver of the offending vehicle did not possess valid driving licence. (5) Insurance company is not liable to pay any compensation. While answering the issues as to negligence, valid and effective driving licence and entitlement of the claimants for (iii). compensation, and liability of the Insurance Company, the learned MACT found all the issues in favour of the claimant and awarded compensation in a sum of Rs.6,22,000/- with costs and interest etc. concluding that the owner and insurance company of offending vehicle are liable to pay the compensation. Arguments in the appeal: 6(1). Learned counsel for the appellant argued that the learned MACT erred in ignoring the conditions of policy and absence of provision for travel of the deceased in the offending vehicle in whatever capacity and that the learned MACT ought to have (i) held that (ii) the policy does not cover the risk of deceased in the given facts and circumstances. (iii) the claimants failed to prove the valid and effective driving licence of the driver of the offending vehicle. MACMA No.2706 of 2016 5 the compensation awarded by the learned MACT is (iv) excessive. 6(2). Per contra, learned counsel for the claimants submitted that the deceased was hale and healthy, aged about 42 years. He was engaged as a labourer and was travelling along with the sand load in the tractor. The observations of the learned MACT on the points of negligence, valid driving licence of the driver of the offending vehicle, propriety of the traveling of the deceased in the vehicle and the policy covering the risk in the facts and circumstances of the case etc. are fit for confirmation. Learned MACT ought to have granted more than Rs.6,22,000/- and this Appellate Court can consider the same and award more compensation while dismissing the appeal of the Insurance Company. 7. Thoughtful consideration is given to the arguments advanced by both sides. 8. Now the points that arise for determination in this appeal are : (i) Whether violation of conditions of policy, particularly travelling of deceased in the tractor, and want of driving licence to the driver of offending vehicle are proved and whether the MACMA No.2706 of 2016 6 insurance company can disown the liability in the facts and circumstances of the present case? Whether the entitlement of claimants for compensation and (ii) the quantification thereof done by the learned MACT are sustainable or whether any interference is necessary, if so, on what counts and to which extent? (iii) What is the result of appeal? 9. Before answering the points framed, it is necessary to analyze the evidence available on record and focus on rival contentions. Analysis of evidence vis-a-vis rival contentions: Oral Evidence: 1®‘ claimant as PW-1, deposed about relationship between 10(i). the claimants and the deceased, age, occupation and income of the deceased and the dependency of the claimants on the deceased. Further, she has stated about shifting of deceased to the hospital. where he was declared as dead and she has referred to FIR, inquest report, postmortemcertificate and charge sheet. During her cross examination, it was suggested to her that (ii). the deceased is aged above 55 years, no documentary proof is filed MACMA No.2706 of 2016 7 to show the earnings of the deceased, the claimant No.2 is the married daughter, PW-1 is not the eye-witness to the accident and that the deceased was not working as coolie. Nothing important to doubt dependency etc. are elicited. (iii). PW-2, one Sk. Kadar Basha, said to be eye-witness to the accident, stated about its occurrence that when was he returning to his village at about 02:30 a.m. on the fateful dayi.e. on 10.10.2012,he has seen the deceased proceeding on the offending vehicle by the side of the driver and the driver drove the offending vehicle in a rash and negligent manner at high speed and hit the party flags cement mound, due to which, the offending vehicle fell into the irrigation channel, resulting accident. The deceased sustained injuries, and was shifted to the hospital through ambulanceand succumbed to injuries. (iv). During his cross examination, PW-2 stated that he is an agriculturist, deceased belongs to his neighbouring village. It was suggested to him that he was not an eye-witness. In one breath, the insurance company is trying to say that he is not an eye-witness. Immediately relying on his evidence show that deceased was travelling sitting by the side of the driver of the offending vehicle. MACMA No.2706 of 2016 8 (V). On behalf of the insurance company, one Sri Someswara Babu, Assistant Legal Manager, was examined as RW1 and he has stated about the policy - Ex-B1 issued for the offending vehicle covering period from 11.09.2012 to 10.09.2013 and date of accident is 10.10.2012. He has asserted that the deceased is the brother of the owner of the offending vehicle and there is no seating capacity on the tractor for anyone other than the driver. The deceased was unauthorized passenger at relevant time. Therefore, the Insurance Company is not liable. During cross examination, he has admitted that Ex.BI-policy was in force and premium was collected for others under Ex.BI. He (Vi). cannot say in general if the trailer is full of load, labour will sit by the side of the driver. He has denied the suggestion that the deceased is not an unauthorized passenger and that he was a coolie. He has also denied the suggestion that package policy covers the risk of all. (It is relevant to note that he did not deny that Ex.BI is a package policy). It was specifically suggested to him that the claimants are entitled for compensation against the insurance company and claim is covered by Ex.BI policy. MACMA No.2706 of 2016 9 Documentary evidence: Ex.A1 is the FIR, which refers that one Sk. Kadar (P.W.2) 11 (i). informed about the accident at about 02.45 a.m. and about shifting of deceased in‘108’Ambulance to the hospital. Inquest Report Ex.A2 shows that Sk. Kadar P.W.2 is witness for inquest and incolumn No.9 relating to the description and cause of death etc., it is shown that the deceased went on labour work and the tractor was coming along with the sand. There was negligence on the part of the driver of the offending vehicle. Column No. 15 of Ex.A2 is also clear that the deceased was coming along with the sand sitting besides the driver and fell down due to negligent driving of driver of offending vehicle. (ii). Ex.A3 Postmortem certificate shows about the injuries and cause of death due to shock and hemorrhage. Ex.A4 charge sheet is indicating that Sk. Kadar Basha (PW-2) is shown as LW-7 and Ex.BI is Insurance Policy. 12. From the oral and documentary evidence available on record facts and factors clear are as follows: (i) The deceased travelled in offending vehicle. (ii) The Accident occurred due to negligent driving of the driver of the offending vehicle. MACMA No.2706 of 2016 10 (iii) The deceased died on account of the injuries sustained in the accident. (iv) The claimants are dependents and legal representatives of the deceased. Claimant No.2 is married daughter. (V) (Vi) Deceased was a coolie and aged 42 years. (vii) Tractor (offending vehicle) was with full of load of sand. (viii) Deceased sat by the side of the driver. (ix) Ex.B1 policy was in force as on the date of accident. (X) Extra Premium was paid for coverage of risk of others (RW1 admitted about payment of premium for others). (xi) There is no evidence placed by the insurance company to show want of driving licence to the driver of the tractor. (xii) Driver of the tractor is not examined before the Court by either party. (xiii) For disputing the negligence, atleast there is no oath against oath. 13. Learned MACT has taken income of the deceased at Rs.4,500/- per month. The year of accident is 2012. The deceased was said to be a labourer, even if the income accepted by the learned MACT is considered as straightly on high side, as the future MACMA No.2706 of 2016 11 prospects in income of the deceased are not added by the learned MACT, it can be considered that the income taken by the learned MACT cannot be found as on high side and the income taken can be accepted for calculation as inclusive of future prospects with a growth of around 30%. The arguments of the appellant insurance company in that regardare not convincing to take income of deceased at lesser scale. Death of the deceased due to the accident, negligence of 14. the driver of the offending vehicle and involvement of the vehicle in the accident. These aspects are clear from the evidence,hence findings of the learned MACT in this regard concurred and conferred. 15. Entitlement of claimants for compensation: (i). Relationship of deceased with claimants is not in dispute and evidence of PW1, PW2 as well as recitals in FIR, inquest report are supporting the same. Therefore, the entitlement of claimants for compensation is clear. Claimant No.1 is the Wife, claimant Nos.2 and 3 are the (ii). daughters, claimant No.4 is the son, claimant No.5 is the mother of the deceased. Claimant No.2 is said to be married daughter. MACMA No.2706 of 2016 12 Therefore, there is a clear dependency in respect of claimant Nos.1,3, 4 and 5. Liability of the Insurance Company: 16. The Insurance company has disputed its liability substantially on two grounds: (i). Want of driving licence (ii) Coverage of policy in respect of the deceased (coverage of policy in respect of coolie). Driving licence: 17. The burden to prove for want of driving licence lies with the insurance company is the settled proposition of law. There is no any evidence placed by the appellant Insurance Company touching the absence of driving licence to the driver of the offending vehicle. Steps like summoning RTA officials or any other convincing effort to vindicate are not taken by the Insurance Company. Therefore, the defence of absence of driving licence is not available to the appellant insurance company. Coverage of policy in respect of the present case and whether the deceased is an unauthorized passenger.: 18(i). It is the case and evidence of the claimant that deceased travelled as a labourer. The objection of the insurance company that there is no seating capacity. Whether the coolie or labourer travelling in a vehicle meant for carriage of goods in tractor MACMA No.2706 of 2016 13 or lorry is prohibited or whether taking of policy in respect of such person is not provided is an important question. Further, whether the Ex-B1 policy is exempting the liability in respect of such labourer is another question. Ex.B1 Policy is admittedly a package policy, details of (ii). premium paid are as follows: Premium Details(Rs.) Own Damage Premium (a) Liability Premium (b) Basic Damage 5155 Basic Third Party Liability 1458 PA Cover for Owner Driver of Rs.200000/- LL to paid Driver & for Conductor &/or Cleaner (IMT-28) Add:IMT-34/Others 100 Total Basic Premium 5155 50 Add: IMT-34/Others 1646 930 Total-Add 1646 2838 Net Liability(b) Total Package Premium (a+b) Service Tax (including Swachh Bharath Cess 0.50% 14.50% 9639 1191 applicable) as Net Own Damage Premium (a) Total Premium 10830 6801 Geographical India Compulsory Deductible(IMT-21) Rs.2858/- area Payment Details: Cheque No.24; Dated: 11/09/2012; Drawn on Lakshmi Vilas Bank Ltd. MACMA No.2706 of 2016 14 (iii) Under IMT-34, the separate premium is paid. Premium of Rs.930/- is paid under Ex.B1. RW1 during cross-examination admitted that premium is also collected for others under Ex.B1. It is further stated that he cannot say in general if the trailer is full labour will sit by the side of the driver. Ex.B1 is referring to IMT-34. Terms of policy are enclosed with Ex.B1 and the standard form of commercial vehicle packagepolicy is also enclosed. Coverage of policy for liability to the third party is clear that death of or bodily injury to any person caused by or arising out of the use of the vehicle including loading or unloading vehicle.IMT-34 is dealing with liability to paid driver, conductor, cleaner, employer and connection with the operation of motor vehicles. IMT-34 is providing that there is an agreement to indemnify the insured and the liability under the Workmen’s Compensation Act for the persons employed in loading / or unloading but in any case not exceeding seven in number. (iv). Coverage in respect of owner and driver, conductor or cleaner vide IMT-28 is separately provided and separated premium is collected at Rs.930/- under Ex.B1. Limitations as to the use of vehicles are mentioned in the policy Ex.B1. It is not the case of the MACMA No.2706 of 2016 15 appellant Insurance Company that use of beyond the limitations prescribed therein. In the facts and circumstances of the case and in the light of it can be (V). the evidence that additional premium is collected concluded that the policy extends to cover the risk of labour working in connection with the use of the offending vehicle. The deceased is neither a gratuity passenger nor an unauthorized occupant and the offending vehicle is duly insured with the appellant insurance company. Precedential Guidance in quantifying the compensation in case of claims arising out of Motor Vehicles Accidents causing death:- [I]. Coverage of risk of labour In loading and unloading: (vi). In a case of New India Assurance Company Limited vs. Palani M. Samundeeswari^ reported in 2009 SCC Online Mad 1257 where the injured/ claimant travelling as coolie on tractor utilization for transportation of sugarcane and the claimant travelled by sitting on mudguard of Tractoras a coolie for the purpose connected with agricultural operations was considered. It was held that the policy will cover the coolie also vide para Nos.5, 7 to 9. ‘ 2009 SCC Online Mad 1257 MACMA No.2706 of 2016 16 5. It is in evidence that the claimant was travelling as a Coolie in the Tractor which was utilized for transporting the sugarcane to the sugar mills in the second respondent's Tractor. On return, after unloading, the accident took place. So, it has to be seen whether the Insurance Company is liable. 7. He also draws attention of this Court to my decision reported ' in The New India Assurance Co. Ltd., Hosur v. Loganayagi and 4 others, 2009 (2) LW 953, wherein I have followed the decision of the Supreme Court and anchored the responsibility of paying the compensation upon the Insurance Company In a case where the deceased was travelling in the Tractor, which was loaded with stones belonging to the owner of the Tractor. The stones were transported for construction of the well in agricultural lands of the vehicle owner and the deceased employed by the owner to load and unload the stones in the Trailer of the Tractor and I have observed that while the Tractor and Trailer were being utilized for agricultural purpose, as shown in this case and the owner or his representative as load man travelled by the vehicle and In case if he sustains personal injuries or otherwise, then the Insurance Company is liable to pay compensation. The operative portion of the Judgment goes thus: was “13. Following the principles laid down by the Supreme Court in this regard and also considering the view taken by the other High Courts, this Court is of the considered opinion that while a Tractor and Trailer were be in utilised for agricultural purposes as shown in this case and if the owner or his representative load-man, travelled by the vehicle and in case he got personal injury or otherwise, then the Insurance Company is liable to pay compensation. It is held as such. ’’ as MACMA No.2706 of 2016 17 9. Bearing in mind the decision of this Court and other High Courts and following principles laid down In the Apex Court decision, it is held that since the deceased was travelling by the Tractor, even though, he was sitting in the mudguard, for the personal injuries received by him, the Insurance Company has to be held liable. To support this view of this Court, takes aid of the oral account of the R. .W 1 also who is a Junior Assistant In Insurance Company who says in his cross- examination that the policy issued for the first respondent is a package policy, that If the Trailer is attached to the Tractor, the Policy will cover Coolie also and if any Coolie travels in the Tractor sustains injuries, then the Policy would cover them also. Hence, the irresistible conclusion would be that the Insurance Company has to be held liable to pay the compensation to the claimant. (vii). In United India Insurance Company Limited vs. Mattedu Manikyam and others^ the Hon’ble High Court of Andhra Pradesh considered a case of insurance policy allowing six labourers to travel in the tractor-trailor and only when three labourers were travelling found that the insurer is the labourer. It was also a case where the labourer travelled on the mudguard of the tractor along with goods for unloading the same.Relevant observation are made in the para 7 of the judgment which are as follows: 7. But as seen from the judgment of the Tribunal below, as per the insurance policy, six labourers are allowed to travel in the ^ 1999 see Online AP 685 MACMA No.2706 of 2016 18 tractor-trailor, whereas, at the time of occurrence of the accident, only three labourers were travelling on the tractor- trailor, Including the deceased. When the tractor comes within the definition of goods vehicle, the question of travelling on the trailer or the tractor does not arise and It does not make any difference. As is evident from the facts and circumstances of the case, the traitor was carrying the load of wooden logs, thus there shall be no space in the traitor to travel in it along with the goods, belonging to the owner of the vehicle, who was employer of the deceased. Thus it is clear that they have travelled on the mudguard of the tractor along with the goods for unloading the same. Therefore, it can be viewed that at the time of occurrence of the accident, the deceased travelled on the mudguard of the tractor contrary to the terms and conditions of the insurance policy is not correct. Therefore, the award passed by the Tribunal below is perfectly in accordance with law, when premium was paid for six coolies in respect of the policy covering the tractor. (viii). In the light of the evidence and in view of the proposition of law followed in the cases mentioned above the argument of the insurance company to exonerate it from liability isfound fit to be discarded and the liability fixed by the learned MACT on the insurance company found fit for acceptance and concurrence. Accordingly accepted and concurred. MAGMA No.2706 of 2016 19 [II]. Granting of more compensation than what claimed:- 19(i). The other objection of the insurance company is that the learned MACT granted more amount than what was claimed. Legal position in this regard is also settled and very clear that shall just and reasonable compensation and there is no bar for awarding more than what is claimed. In Rajesh and others vs. Rajbir Singh and others^, the Hon’ble Supreme Court in para Nos.10 and 11 made relevant MACT (ii). 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 ofNagappa case [Nagappa v. Gurudayal Singh, (2003) 2 SCO 274 : 2003 see (eh) 523 : AIR 2003 SC 674], It was held as follows: fSCC p. 280) “10. Thereafter, Section 168 empowers the eialms 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 SCO 280 : (2009) 2 see (eiv) 877 : (2009) 2 SCC (eh) 987] and ^ (2013) 9 SCC 54 # MACMA No.2706 of 2016 20 in Ningamma v. United india Insurance Co. Ltd. [(2009) 13 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. (iii). In view of the legal position as stated in Rajesh case(3 supra), the objections of the insurance company that more amount for compensation awarded by the learned MACT than what was claimed is also fit to be ignored. Hence ignored. [Ill] Enhancement of compensation in the absence of appeai: 20. 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 MACMA No.2706 of 2016 21 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 others'^ 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; In our considered view, the claimant/respondents are entitled forjust compensationand if on the face of the award or even in the 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. 50. 21. In the light of the evidence and discussion made above quantification of compensation is required to be done. [IV] Quantification;- 22. The judgments which can be considered as locus classicus that guides the Motor Accident ClaimsTribunals and the Courts concerned, in the process of quantifying the compensation mainly are as follows; ‘'2023 see Online AP 1725 MACMA No.2706 of 2016 22 (1). Sarla Verma fSmt.) and Ors. Vs. Delhi Transport Corporation and Anr.^:- The Hon’ble Apex Court, referring to relevant principles relating to assessment of compensation in cases of death, in the light of earlier judicial pronouncements, to have uniform approach and consistency in awarding compensation, felt need for the awarding ‘just compensation’, which is not merely the Tribunal considers it just, but it shall be just, adequate, fair, and equitable compensation with reference to facts and circumstances of each case. Accordingly, issued certain guidelines. Relevant observations are made at Para 18 and 19 of the judgment, while observing that there shall be addition of further prospects to the income and deduction towards personal and living expenses and selection of appropriate multiplier. Finally, the Hon’ble Apex Court referred to multiplier that can be adopted is what mentioned in column number 4 of Table provided in the judgment as contemplated in Trilok Chandrae's case, clarified in New India Assurance Co. Ltd. v. Charlie^. Para Nos. 18 and 19, and the table provided in Sarla Verma’s case [cited supra] are extracted for better appreciation:- ^ 2009 (6) see 121 ® (1996) 4 see 362 ^ (2005) 10 see 720 2005 see (eri) 1657 MACMA No.2706 of 2016 23 “18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. The issues to be determined by the Tribunal to arrive at the loss of dependency are: (/■) additions/deductions to be made for arriving at the income; (/■/) the deduction to be made towards the personal living expenses of the deceased; and (///) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. 19.To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well- settled steps: Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said Income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have MACMA No.2706 of 2016 24 lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased. Step 3 (Actual catculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family. Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if Incurred) should also be added. 40. The multipliers indicated in Susamma Thomas [(1994) 2 see 176 : 1994 See (eri) 335] , Trilok ehandra [(1996) 4 see 362] and eharlie [(2005) 10 See 720 ; 2005 See (eri) 1657] (for claims under Section 166 of the MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of the MV Act (with appropriate deceleration after 50 years): MACMA No.2706 of 2016 25 Age of the deceased Multiplier scale as envisaged in Susamma Thomas Multiplier scale as adopted by Trilok Chandra Multiplier scale inTrilok Chandra's caseas clarified in Charlie Multiplier specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to the MV Act (as seen from the quantum of compensation) 8 9 10 {1) (2) (3) (4) (5) <3. Upto 15y 15 20 15 to 20y 16 18 18 16 19 21 to 25y 15 17 18 17 18 26 to 30y 14 16 17 18 17 31 to 35y 13 15 16 17 16 36 to 40y 12 14 15 16 15 41 to 45y 11 13 14 15 14 46 to 50y 10 12 13 13 12 51 to 55y 9 11 11 11 10 56 to 60y 8 10 09 8 8 61 to 65y 6 08 07 5 6 Above 5 05 05 5 5 65 (2). National Insurance Company Ltd, v. PranavSethi and Others:-^^ in this case, the Honorable Apex Court, after referring to the observations in Sarla Verma's case cited supra, issued certain guidelines, the relevant paragraphs are 59.3 to 59.8 they are: “59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The ®[(1994) 2 see 176 : 1994 See (eri) 335] ®[(1996)4See 362] [(2005) 10 see 720:2005 see (eri) i657] 2017(16) see 680 10 11 MACMA No.2706 of 2016 26 addition should be 30%, if the age of the deceased between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. was 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25%) where the deceased was between the age of 40 to 50 years and 10%, where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the Income minus the tax component. 59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [SarlaVerma v. DTC, (2009) 6 SCO 121: (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore 59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma’s case read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier. 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs. 40,000 and Rs. 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. ” MACMA No. 2 706 of 2016 27 (3). MAGMA General Insurance Company Ltd, v. Nanu 12 Ram and Others In this case the Hon’ble Apex Court considered the point that whether loss of consortium, include “spousal consortium”, “parental consortium”, and “filial consortium” in a case of death. It was a case of death of Bachelor, and claim was made by father and sister, etc., relevant observations are made in Para Nos. 21-23 as to who are entitled for consortium, observationsare as follows:- “21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 ; (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, 12 (2018) 18 SCC 130 0 MACMA No.2706 of 2016 28 society, cooperation, affection, and aid of the other in every conjugal relation”. [Black's Law Dictionary (5th Edn., 1979).] 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium Is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have MACMA No.2706 of 2016 29 awarded compensation on this count [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Ran a v/. Pradeep Kumar, 2013 SCC OnLineUtt 2435 : (2014) 3 UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium. Findings:- 23. In the light of the Precedential Guidance referred above, for considering the entitlement of claimants for compensation, the factors that can be considered from the evidence on record are as follows. 1. Age of the deceased - 42 years. 2. Income of the deceased Rs.4,500/- per month inclusive of future prospects comes toRs.54,000/- per year. 3. Clear case of dependency is in respect of Claimant Nos.1 3, 4 and 5. Therefore, deduction permissible is M3^^. Multiplicand:- 24. The income of the deceased Rs.54,000/- per annum. 1/3'’‘^of income is deducted towards future expenses of deceased, his contribution to family will come to Rs.36,000/- per annum, hence Rs.36,000/- is considered as Multiplicand. If I MACMA No.2706 of 2016 30 MultipMer:- 25. Multiplier, for the age group of 42 years, applicable as per Sarla Verma's case is ‘14’. Hence, the same is adopted. 26. Calculation- [i] Multiplicand Rs.36,000/-X14 is equal to Rs.5,04,000/- [ii] Therefore, under the head of loss of dependency a variation done by the learned MACT need modification. Hence the same restricted to Rs.5,04,000/- as against Rs.5,67,000/- awarded by MACT. [iii] With regard to the funeral expenditure, the learned MACT granted Rs.25,000/- which is against the observations in Pranay Sathi’s case that it can only be Rs. 15,000/- with 10% enhancement. Hence the same can be restricted to Rs. 15,000/-. Further, in respect of loss of estate, as per the observations in Pranay Sathi’s case, the compensation can be awarded for Rs.15,000/-. Hence it is fit to be awarded. 27. As per the observations of the Hon’ble Apex Court in Pranay Sathi’s case, towards loss of consortium, loss of estate and under funeral expenditure compensation to be awarded require 10% enhancement for every three years. Upon considering the date of MACMA No.2706 of 2016 31 accident and date of award, in the present case enhancement @ 10% is not necessary. 28. As per the observations in Magma General Insurance Company’s, the Spousal consortium, Parental consortium and Filial consortium in the case of death required to be awarded. Therefore, the claimant being the wife, claimant Nos.2, 3 and 4 being the children and claimant No.5 being the mother of deceased,are entitled for compensation at Rs.40,000/- each. 29. In the light of the discussion made and the evidence on record, comparative table as to the entitlement of the claimants for compensation under various heads considered and granted by the Tribunal and by this Court is as follows: Head Compensation awarded by the MACT Fixed by this Court (i) Loss of Dependency Rs.5,67,000/- Rs.5,04,000/- (ii) Loss of Consortium Rs.30,000/- Rs.2,00,000/- [@40,000x5] (for all the five claimants) [@ claimant only] (iii) Funeral and obsequies expenses Rs.25,000/- Rs. 15,000/- N Loss of estate Nil Rs.15,000/- Total compensation awarded Rs.6,22,000/- Rs.7,34,000/- 30. In the light of the above findings of this Court, pointsNos.1 and 2 are answered as follows:- MACMA No.2706 of 2016 32 1) Whether violation of conditions of policy, particularly travelling of deceased in the tractor, and want of driving licence to the driver of offending vehicle are tenable and whether the insurance company can disown the liability in the facts and circumstances of the present case? (i). The appellant insurance company failed to prove the absence of driving licence to the driver of the offending vehicle, (ii). Ex.B1 Policy is a package policy and separate additional premium is collected for others. (iii). The deceased travelled as a coolie in the tractor along with the load. Therefore the violations pleaded is fit to be discarded and ignored and hence the point is answered in favour of the claimants and against the appellant. 2) Whether the entitlement of claimants for compensation and the quantification thereof done by the learned MACT are sustainableor whether any interference is necessary, if so, on what counts and to which extent? The claimants are entitled for compensation of Rs.7,57,000/- and the learned MACT require quantification to that effect, in the light of the settled proposition of law. MACMA No.2706 of 2016 33 Point No.3: What is the result of the appeal? In the light of the discussion made above, the appeal is dismissed. However, in view of the judgment of the Division Bench of High Court of Andhra Pradesh vide National Insurance Company Limited vs. E. Suseelamma and others, reported vide 2023 see Online AP 172, award is modified and the compensation 31. 1) amount awarded by the learned MACT at R.6,22,000/- is enhanced to Rs.7,34,000/-. (i) Respective claimants shall be entitled to receive the compensation awarded under the head of loss of consortium. (ii) The compensation amount reduced under the head of loss of dependency shall be proportionally reduced in respect of each claimant following the apportionment made by the learned MACT. (iii) The compensation awarded under the head of funeral expenses and loss of estate with interest thereon shall be allotted to wife of the deceased (claimant No.1) apart from the share allotted to her in the compensation amount and the amount allotted under the head of Spousal consortium. MACMA No.2706 of 2016 34 (iv) Rate of interest and costs awarded by the learned MACT shall stand confirmed. 2) Since the compensation awarded by the learned MACT is enhanced and as there is no cross appeal etc. by the claimants, no costs are awarded in the appeal. As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed. Sd/- K.J.RAJA BABU ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Chairman VI Additional District Judge (Motor Accidents Claims Tribunal): Nellore, S.P.S.R. Nellore District. 2. One CC to Sri Naresh Byrapaneni, Advocate [OPUC] 3. One CC to Sri M.S.R.Chandra Murthy, Advocate [OPUC] 4. Two CD Copies SAM HIGH COURT DATED:06/03/2025 JUDGMENT +DECREE MACMA.No.2706 of 2016 ^ofandh^ o o g 2 7 MAR 2025 ,5^ . Current Section . ^ DISMISSING THE M.A.C.M.A WITHOUT COSTS IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI / THURSDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2706 OF 2016 Between: HDFC ERGO General Insurance Co. Ltd., rep. by its Branch Manager Trunk Road, Nellore. ...Appellant/Respondent No.2 AND 1. Chilaka Neeraja, W/o. Prabakar, Hindu, aged 40 years. 2. Thota Neelima, D/o. Late Prabhakar, Hindu, aged 24 years, R/o. Chalamcherla Village, Kavalil Rural Mandal, SPSR Nellore district. 3. Chilaka Vineela, D/o. Late Prabhakar, Hindu,aged 17 years (Minor) 4. Chilaka Pavan Kumar, S/o. Late Prabhakar, Hindu, aged 15 years (Minor) 5. Chilaka Leelamma Alias Bujjamma, W/o. Late Venkaiah, Hindu, aged 68 years. (Respondent Nos.1, 3 to 5 are R/c. Beeramgunta Village Allur Mandal SPSR Nellore district.) (Respondent Nos.3 & 4 being minors are rep. by her mother and natural guardian, the respondent No.1 herein) ...Respondents/Petitioners . Chilaka Sekhar, S/o. Late Venkaiah, Hindu, Owner of Tractor & Trailer, Beeramgunta Village, Allur Mandal, SPSR Nellore district. ...Respondent/Respondent No.1 Appeal filed under section 173 of Motor Vehicles Act 1988, against the impugned award and the decree of the VI Additional District Judge (Motor Accidents Claims Tribunal) S.P.S.R. Nellore District in M.V.O.P.NO. 433 of 2013 dated 05-02-2016. Appeal coming on for hearing and upon perusing the Memorandum of Appeal, the Judgment and Decree of the lower Court and the material evidence on record and upon hearing the arguments of Sri Naresh Byrapaneni, Advocate for the Appellant and Sri M S R Chandra Murthy for the Respondents. This Court doth order and decree as follows: 1. That the Appeal be and is hereby Dismissed; 2. However, that the view of the Judgment of the Division Bench of High Court of A.P. award is hereby modified and the compensation amount awarded by the VI Additional District Judge (Motor Accidents Claims Tribunal) S.P.S.R. Nellore District be and is hereby enhanced from Rs.6,22,000/- to Rs.7,34,000/-: (i) That the respective claimants shall be entitled to receive the compensation awarded consortium. That the compensation amount reduced under the head of loss of dependency shall be proportionally reduced in respect of each claimant following the apportionment made by the Motor Accidents Claims Tribunal. under the head of loss of (ii) ■/ (iii) That the compensation awarded under the head of funeral expenses and loss of estate with interest thereon shall be allotted to wife of the deceased (claimant No.1) apart from the share allotted to her in the compensation amount and the amount allotted under the head of Spousal consortium. That the Rate of interest and costs awarded by the Motor Accidents Claims Tribunal shall stand confirmed (iv) 3. That there shall be no order as to costs in this appeal. Sd/- K.J.RAJA BABU ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. The Chairman VI Additional District Judge (Motor Accidents Claims Tribunal): Nellore, S.P.S.R. Nellore District. 2. Two CD Copies SAM RAM HIGH COURT DATED:06/03/2025 DECREE MACMA.No.2706 of 2016 ^Tbf and«^ r<j * 2 7MAIt2025 . & fn Current Seetion 0/7 DISMISSING THE M.A.C.M.A WITHOUS COSTS