E. Govindamma vs K. Srinivasulu

B. Siva Sankara Rao, J.—The claimants seven in number, who are mother aged about 74 years, wife aged about 54 years and married major daughter, four major sons, aged between 28 to 21 filed O.P. No. 543 of 2005 on the file of the Motor Accident Claims Tribunal-cum-Principal District Judge, Kurnool against the owner and insurer of the Auto bearing No. AP 21 V 6949 covered by Ex. B. 1 policy for a claim of Rs. 11,00,000/- of which the Tribunal awarded Rs. 4,50,820/- with interest at 7.5% per annum by award dated 07.12.2006.

Impugning the said quantum of compensation is utterly low they preferred the present appeal against selfsame respondent with the contentions in the grounds of appeal that the award of Tribunal is contrary to law, Tribunal did not take the proper multiplier, did not take proper earning capacity, did not consider the perspective earning and to enhance required by law. Hence, to allow the appeal as prayed for.

In the course of hearing, the learned counsel for the appellant reiterated the appeal grounds.

The 2nd respondent-insurer (1st respondent owner remained ex parte before the Tribunal did not choose to appear) contended that the award of the Tribunal is just and for this while sitting in appeal, practically there is nothing to interfere and hence to dismiss the appeal.

Perused the material on record. For sake of convenience the parties are being referred as arrayed before the Tribunal.

Now the points that arise for consideration in the appeal are:

Whether the compensation awarded by the Tribunal is utterly low and if so, what is the just compensation the claimants are entitled?

To what result?

POINT No. 1:

The fact that the accident was the result of rash and negligent driving of the crime auto of the 1st respondent, due to which the auto turned turtle and that the deceased was a police constable in the State Government and one of the passengers among five, out of sitting capacity under Ex. B. 2 of 3 + 1 travelling at the time of accident is not in dispute.

The claim petition is filed u/s 163-A and 166 of M.V. Act by quoting both provisions and there was no option exercised by the claimants before commencement of trial either to proceed u/s 163 of the Act or 166 of the Act as contemplated by law in Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, . In fact, the Division Bench expression of this Court in Bhupathi Prameela and Others Vs. The Superintendent of Police and Others, held that the technicalities will not come in the way of rendering substantial justice between the parties and thereby mere wrong quoting or misquoting of the provision is not a fatal and the Court or Tribunal in the absence of exercise of option, can take the claim under any of the two provisions, which is beneficial to the claimants. Tribunal also did not exercise with discretion to proceed under any of the two provisions and the claimants even in the grounds of appeal did not seek of to proceed u/s 163-A or 166 of the M.V. Act. However, a perusal of the factual matrix show Section 166 is beneficial provision to the claimants, thereby this Court as can be seen even from the award of the Tribunal in its finding, the accident is out come of rash and negligent driving of the driver in deciding the same, to proceed u/s 166 of the Act.

Now coming to the quantum of compensation, the deceased was admittedly working as police constable, aged about 53 years supra, nomination form of the accused showing the date of birth, the nomination is for himself BTM Association membership. Ex. A-3-postmortem report speaks the age of the deceased about 50 years. PW-1 also deposed the age of the deceased about 50 years at the time of death, who is no other than the wife of the deceased shown her age in the claim petition about 50 years, the Tribunal also taken the age of the deceased there from it about 53 years. As per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the multiplier that is applicable to a claim u/s 166 of the Act for a person aged between 51 and 55 is 11. Here among the seven claimants as detailed supra all the five children of the deceased i.e., married daughter and major sons no way proved as dependants even to claim as anybody student no worth evidence much less study certificate of the academic year as on the date of accident is not file. The burden is on the claimants u/s 106 of the Evidence Act and thereby the contention that showing in the cause title is enough is untenable. Even if, with holding the best evidence which throws light on the lis to draw an adverse inference against the claimants but for not students and no way dependants they could have produced the best evidence vide a decision Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, . Thus, out of the seven claimants only wife and mother are the dependants and others are not. As per Sarla Varma Supra between paras 27 and 32, it is discussed that the personal deduction expenditure of the deceased depends upon the number of dependants depending upon the deceased. Here among the two, mother and wife, it is just following the expression as rightly taken by the Tribunal for 1/3rd deduction towards personal expenses. Coming to the earnings of the deceased, Ex. A-6 and A-7 are the two salary certificates. Ex. A-6 shows the salary as on the date of accident relevant month that was taken into consideration by the Tribunal and it speaks the gross salary is Rs. 10,257/- and out of the same after deductions net salary certified as Rs. 8,715/-. In fact, through PW-3 co-employee of the police department and employer of the deceased, revised salary certificate produced the same reads the net salary was Rs. 9,781/- as per the revised pay scales. PW-3 also deposed the same. Thereby, it is just to take the monthly salary of the deceased as on the date of accident as Ex. P-7 revised salary certificate is Rs. 9,871/- if 1/3rd deducted towards personal expenses it comes to Rs. 6,520.66. As per the Apex Court expression in Rajesh and Others Vs. Rajbir Singh and Others, , in the case of employees, fixed wage arrears in arriving the earnings as on the date of accident presentation increase is also to be taken into consideration which speaks for person age between 50-60, if 15% is increased on same, it comes to Rs. 7,499/- X 12 X 11 (multiplier) = 9,89,868/-. Apart from it, loss of consortium to the 1st claimant aged about 50 years having five children in the wedlock, all majors, to fix at Rs. 40,000/-, Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards funal expenses, in all it comes to Rs. 10,59,868/- rounded to Rs. 10,60,000/-.

Though it speaks totally five persons were traveling in the auto there is nothing to show overloading contributed to the accident in the absence of which the insurer can be exonerated vide a decision B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, . Even coming to driving licence particulars, it is the contention that the driver-cum-owner is the 1st respondent, who has no valid driving licence and even notice sent it was returned unclaimed covered by Ex. B. 4 and Ex. B. 3 is the driving licence particulars as deposed through R.W. 1 employee of the insurer which shows for this transport passenger light motor vehicle the owner-cum-driver got only non transport light motor vehicle and though it is the contention of the claimants that there is no difference in driving of the auto but for in use, a violation is a violation; as for a person to entitle transport driving licence, it is not even automatic but for after statutory period with LMV non transport and subject to certain tests the licence is being entitled, thereby there is a violation proved by the insurer as required by law on the part of the owner-cum-driver. Here it is not to say that the insurer is totally being exonerated but for from the responsibility once policy covers the risk u/s 149 read with 168 of the Act, to satisfy the third party claim and to recover from the owner vide decisions: National Insurance Co. Ltd. Vs. Swaran Singh and Others, , Kusum Lata and Others Vs. Satbir and Others, and S. Iyyapan Vs. United India Insurance Company Ltd. and Another, . Accordingly, point No. 1 is answered.

In the result, the M.A.C.M.A. is allowed in part enhancing the quantum of compensation from Rs. 4,50,820/- to Rs. 10,60,000/- with the direction of pay to the claimants and recover by the insurer from the insured (owner) and driver, however, by modifying the rate of interest from 6 1/2 % to 7 1/2 % from date of claim petition till realization. It is made clear from the settled expression of the apex Court in Nanjappan''s case (supra) that the insurer is entitled, while depositing the amount payable, if any, if not already paid, to seek for attachment of the crime vehicle or other property of the insured as an assurance for recovery and also can ask the Tribunal not to disburse the amount (but for to invest in a bank) till such attachment order is made and made absolute from appearance and hearing. However, after the same, the Tribunal cannot withhold the amount of the claimants, if there is any necessity to permit for any withdrawal and to invest the balance in fixed deposit in bank. There is no order as to costs in the appeal.

As a sequel, Miscellaneous Petitions, if any in this M.A.C.M.A. shall stand closed.