APHC010306902018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3548] FRIDAY,THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 1124/2018 Between: 1. SHRIRAM GENERAL INSURANCE COMPANY LTD, REPRESENTED BY ITS MANAGER, GAYATRI NAGAR, OPPOSITE TO APSRTC DEPO, UPSTAIRS OF GOPAL HERO HONDA SHOWROOM. ...APPELLANT AND 1. GALLIPOTHULA OBULAMMA AND 4 OTHERS, W/O LATE DEVABHUSHANAM, AGED ABOUT 50 YEARS, HINDU, HOUSEWIFE, RESIDENT OF NOSSAM VILLAGE, SANJAMALA VILLAGE, SANJAMALA MANDAL, KURNOOL DISTRICT. 2. GALIPOTHULA OBULESU, S/O LATE DEVABUSHANAM, AGED ABOUT 35 YEARS, HINDU, RESIDENT OF NOSSAM VILLAGE, SANJAMALA MANDAL, KURNOOL DISTRICT. 3. ACHUKATLA JILAN, S/O RASOOL, AGED 48 YEARS, MUSLIM RESIDENT OF 8/122,B, EDIGAPETA STREET, JAMMALAMADUGU TOWN AND MANDAL, KADAPA DISTRICT. 4. D VENKATA RAMANA, S/O NOT KNOWN, HINDU, D.NO.11/146/1. GANDHI NAGAR, MYDUKUR TOWN AND MANDAL, KADAPA DISTRICT. 5. P PEERAIAH, S/O P.PEERU SAHEB, AGED ABOUT 55 YEARS, DRIVER, PRODDATUR MANDAL, KADAPA DISTRICT. ...RESPONDENT(S): 2 GTK, J M.A.C.M.A.No.1124 of 2018 Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toaggrieved by the decree and judgment passed in MVOP. No. 315 of 2016, dated 15-11-2017, on the file of The Court Of Motor Accidents Claims Tribunal-Cum- IV Additional District Judge, Kadapa IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 33 days in filing the above MACMA in MVOP.No.315of 2016 dated 15-11-2017 on the file of the court of Motor Accidents Claims Tribunal-cum-IV Additional District Judge,Kadapa,otherwise the petitioner will suffer irreparable loss and hardship and pass IA NO: 2 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Stay of execution of decree and all further proceedings in MVOP.No.315of 2016 dated 15-11-2017 on the file of the court of Motor Accidents Claims Tribunal-cum-IV Additional District Judge,Kadapa and pass Counsel for the Appellant: 1. A JAYANTHI Counsel for the Respondent(S): 1. D KODANDARAMI REDDY The Court made the following: 3 GTK, J M.A.C.M.A.No.1124 of 2018 JUDGMENT: Heard, Sri Ravi Teja, learned counsel representing Smt. A.Jayanthi, learned counsel for the appellant and Sri Lakshmi Harish, learned counsel representing Sri D. Kodandarami Reddy, learned counsel for the respondent Nos.1 and 2/claimants. 1. Assailing the Award and Decree dated 15.11.2017 passed in M.V.O.P.No.315 of 2016 by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kadapa (hereinafter referred to as “the Tribunal”), the present appeal has been filed by the appellant/insurance company. 2. The parties are arrayed as they were before the Tribunal. 3. The contour facts leading to the filing of the appeal is as follows: (i) The claimants filed the claim petition under Section 166 (2) of Motor Vehicles Act read with Rule 455 of A.P. Motor Vehicles Rules, claiming Rs.5,00,000/- for the untimely death of Galipothula Devabhushanam, who lost his life in the accident occurred on 21.04.2010 at 09:15 A.M., at Mayalur on Jammalamadugu-Koilakuntla road. The petition is filed against the respondent Nos.1 to 4 seeking compensation as jointly and severally. (ii) On the fateful day i.e., on 21.04.2010, the claimants asserted that the deceased boarded the 1st respondent‟s goods vehicle (mini lorry) bearing No. AP04 X 4140 along with skins at Nossam Village to go to Nandyal for selling the skins. At about 09:15 A.M., when the vehicle reached at a distance of 2 Kms from Mayalur on Jammalamadugu – Koilakuntla road, the driver of the goods vehicle drove it in a rash and negligent manner with high speed and to avoid hitting the stationed vehicle turned towards right side to avoid the accident due to which the vehicle turned turtle and the deceased sustained severe injuries leading to instantaneous death. A complaint was lodged by one D. Mosha, and the Uyyalawada Police registered a case in Crime No.37 of 2010 against the driver of the 1st respondent. In pursuance of the sudden 4 GTK, J M.A.C.M.A.No.1124 of 2018 death of the deceased, the petitioners were thrown into darkness and lost their earning member, who was the sole breadwinner to the family and that the deceased was doing skin business, earning Rs.20,000/- per month which was contributed to the petitioners and sought compensation of Rs.5,00,000/- under different heads. 4. The respondent Nos.1, 2 and 4, who remained ex parte before the Tribunal are also not present in the present appeal despite notices issued. Considering the urgency in the matter and also long pendency, this Court is of the opinion to proceed to hear the matter. 5. Refuting the contentions, the appellant, who is the 3rd respondent alone filed written statement stating that the driver of the mini lorry was having no valid and effective driving license to drive and the 1st respondent has violated the terms and conditions of the policy. Further, it is stated that the deceased was travelling as an unauthorized passenger and the risk of such unauthorized passenger is neither covered under the policy nor under the provisions of M.V. Act, thereby sought to dismiss the claim petition. 6. The Tribunal framed the following issues: i. Whether Galipothula Devabhushanam died in a motor vehicle accident on 21.4.2010 at 9.15 a.m. Due to negligent driving of mini lorry bearing No.AP04 X-4140 or not? ii. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom? iii. To what relief? 7. In respect to the issue Nos.1 and 2, the Tribunal has answered in favour of the claimants. To substantiate their claim, the claimants, who are the wife and son of the deceased examined PWs.1 and 2 and marked Exs.A1 to A4. Ex.A1 is the certified copy of FIR, Ex.A2 is the inquest report, Ex.A3 is the certified copy of postmortem certificate and Ex.A4 is the certified copy of charge sheet. After considering the evidence on record, the Tribunal has found that the accident caused was due to the rash and negligent driving of 5 GTK, J M.A.C.M.A.No.1124 of 2018 the driver of the accident vehicle and this was derived by following the pronouncements stated by the claimants in National Insurance Company Limited vs. K. Dwali and Others1. 8. The claimants claiming the above compensation on the strength of the earnings said to be contributed by the deceased to the family which is of Rs.20,000/- per month and admittedly he was doing skin business. The Tribunal disbelieved the version of the claimants that the deceased was doing skin business as they could not file any record to fortify the said statement and basing on that, the Tribunal has awarded Rs.6,000/- per month. 9. The age of the deceased was taken as 55 years and there is no refutal to that effect by the Insurance Company and the multiplier method was taken as „11‟ and compensation of Rs.4,55,000/- was awarded under different heads. Towards the annual income, the amount awarded by the Tribunal was Rs.3,75,000/- and directed the Insurance Company/appellant herein to deposit the amount of Rs.4,55,000/- within 30 days from the date of judgment. 10. Having gone through the award passed by the Tribunal, this Court finds that there is a lacking on the part of the Tribunal in awarding „just compensation‟ to the claimants in view of the instantaneous death of the deceased who was the sole earning member. The law is no more res integra that the claimants need not prove or place the evidence to substantiate or satisfy regarding the nature of work done by the deceased. There is a blatant flaw and infraction on part of the Tribunal in justifying to award Rs.6,000/- per month. There is no finding by the Tribunal as to on what capacity Rs.6,000/- per month was awarded when the Tribunal denied the statement adduced by the claimants stating that the deceased was doing skin business. The finding of the Tribunal is extracted as below: “The petitioners are claiming that the deceased was aged 55 years doing skin business and earning Rs.20,000/- per month. The petitioners have not filed any record to show that the deceased was doing skin business and earning Rs.20,000/- per month. PW1 has 1 2015 ACJ 742 6 GTK, J M.A.C.M.A.No.1124 of 2018 admitted that he has not filed any record to show that his father was doing skin business. Hence, minimum income of Rs.6,000/- per month to be taken into consideration.” 11. It appears that the Tribunal has merely on guess work sanctioned the income of Rs.6,000/- per month. As stated supra, when there is no clear evidence or in the absence of any documents, the Court has to necessarily traverse towards the pronouncements of the constitutional Courts. 12. Learned counsel for the respondents/claimants in support of his arguments that the Tribunal has in an absurd way denied the compensation claimed despite the deceased earning Rs.20,000/- per month. Even in the absence of any evidence, he places reliance in support of his contention that even in respect of a coolie if taken into consideration the case in Soman vs. Jinesh James and Others2, the High Court of Kerala while taking note of the judgment of the Hon‟ble Supreme Court, at paragraph No.5 held as follows: “The Hon’ble Supreme Court has also recognized the principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organized sector (National Insurance Company Limited vs. Pranay Sethi, (2017) 16 SCC 680) and with respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least of Rs.500/- in every subsequent year. In such circumstances, the appellant who is a coolie, is entitled to be fixed with a notional income of Rs.7500/- as on the year of accident, which is 2010.” 13. Taking the observations as held by the Hon‟ble Supreme Court in Pranay Sethi‟s case, as the accident has taken place in the year 2010-11, the notional income of the deceased can necessarily be taken as Rs.7,500/- and Rs.500/- as incremental addition for every subsequent year. If such be the case, the income of Rs.8,000/- per month can be awarded. The said principle was followed in the case of The United Insurance Company Limited vs. Anil Kumar Gour and Others3, wherein the High Court of Madhya Pradesh at Jabalpur, enhanced the compensation which deemed it as „just‟ and 2 2020 (4) KHC 623 3 Misc.Appeal No.3533 of 2018, dated 09.02.2024 7 GTK, J M.A.C.M.A.No.1124 of 2018 awarded Rs.15,000/- for funeral expenses, Rs.15,000/- for loss of estate and Rs.40,000/- for loss of filial consortium. 14. Now, the income of the deceased will be Rs.8,000 x 12 = Rs.96,000/- per annum and the compensation which comes to, if multiplier „11‟ is taken into consideration will be Rs.96,000 x 11 = Rs.10,56,000/-. As there are two claimants, 1/3rd personal expenses of deceased has to be deducted, then it will be Rs.10,56,000 x 1/3 = Rs.3,52,000/-, which has to be deducted from Rs.10,56,000/-. After deducting the personal expenses, the compensation will be Rs.10,56,000 - Rs.3,52,000 = Rs.7,04,000/-. 15. The Tribunal has failed in awarding the compensation regarding the other aspects such as future prospects, spousal and parental consortium, loss of estate, funeral expenses and transportation charges. This Court in respect of future prospects, in view of the pronouncements of the Hon‟ble Apex Court, deems it appropriate to award Rs.50,000/- towards future prospects, spouse and parental consortium at Rs.40,000/- each for both the claimants, loss of estate at Rs.15,000/- and funeral expenses at Rs.15,000/- and transportation charges at Rs.5,000/-, which comes to Rs.7,04,000 + 50,000 + 80,000 + 15,000 + 15,000 + 5,000 = Rs.8,69,000/-. 16. The above additional amounts awarded under different heads were taken into consideration as per the ratio laid down by the Hon‟ble Supreme Court in Pranay Sethi‟s case. 17. In view of the above facts and circumstances through which this Court has derived the compensation as Rs.8,69,000/-, the claimants are entitled for the same. It is pertinent to state that the compensation is enhanced by this Court taking into consideration the manner in which the Tribunal has awarded on a pure assumption basis. 8 GTK, J M.A.C.M.A.No.1124 of 2018 18. In the case of Raj Kumar vs. Ajay Kumar and another4, the Hon‟ble Supreme Court at paragraph No.16 held as follows: “The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an 12 active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.” It is no more cavil of doubt that the Courts, Appellate Courts can enhance the compensation despite there being any application or cross appeal. 19. In the case of Prahlad and Others vs. State of Maharashtra and Another5, the Hon‟ble Supreme Court while interpreting the provisions contained in Order 41, Rule 33 of the Code of Civil Procedure held as follows: “18. The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have been made as the case may require. The expression `Order ought to have been made' would obviously mean an Order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying `the court may pass such further or other Order as the case may require.' This expression `case' would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.” 4 (2011) 1 SCC 343 5 2010 (10) SCC 458 9 GTK, J M.A.C.M.A.No.1124 of 2018 20. In view of the above discussions, it is clear that this Court is awarding compensation being guided by the provisions contained in Order 41 Rule 33 of the Code of Civil Procedure while deciding the compensation which is „just‟. This exercise was undertaken since the compensation awarded by the Tribunal was on lower side even in the absence of cross-objections or any appeal preferred by the claimant. 21. For the above stated reasons, facts and the judgments of the Hon‟ble Supreme Court, the Motor Accident Civil Miscellaneous Appeal is dismissed. However, the Award and Decree passed by the Tribunal is modified, enhancing the compensation granted to the claimants from Rs.4,55,000/- to Rs.8,69,000/- with interest @ 9% per annum. The appellant herein is directed to deposit the aforesaid enhanced amount of compensation before the Tribunal, within a period of eight weeks from the date of receipt of a copy of this judgment, after deducting the amount, if any, deposited earlier. On such deposit, the claimants are entitled to withdraw the same as per their apportioned shares before the Tribunal. The claimants shall pay the deficit court fee on the compensation amount awarded over and above the amount claimed in the Claim Petition. 22. As a sequel, Interlocutory Applications pending, if any, shall stand closed. ___________________________ TUHIN KUMAR GEDELA, J Date : 28-11-2025 BMS