Syed Patimna Bee vs J. Chandra Sekhar

Dr. B. Siva Sankara Rao, J.—The claimants, who are wife, two minor children and mother of the deceased by name Sayyed Jakir Hussain, aged about 26 years, filed this appeal, having been aggrieved by the Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool, (for short, ''Tribunal'') in M.V.O.P. No. 932 of 2005 dated 25.09.2006, awarding compensation of Rs. 1,86,100/- with interest at 7.5% per annum as against the claim of the claimant of Rs. 3,00,000/- in the claim petition u/s 166 of the Motor Vehicle Act, 1988 (for short, ''the Act''). Heard Sri B. Siva Kesava Reddy, the learned counsel for the appellant and Ms. I. Mammu Vani learned standing counsel for the 2nd respondent-insurer. The 1st respondent owner of the crime auto bearing No. AP 21 V 7551 insured with 2nd respondent in which the deceased was traveling as passenger met with death, remained exparte before the Tribunal and not even served herein, the dismissal of O.P. against the 1st respondent is no way bar to the maintainability. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

The contentions in the grounds of appeal as well as the oral submissions of the appellants-claimants, in nutshell are that the award of the Tribunal is contrary to law, weight of evidence, probabilities of the case and the quantum of compensation is utterly low, unjust in seeking to allow the appeal by granting compensation as prayed for. While the learned counsel for the 2nd respondent insurer who contended that the award of the Tribunal is just, hence sought for dismissal of the appeal.

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

Whether the quantum of compensation awarded by the Tribunal is unjust and requires interference by this Court and if so with what extent and with what rate of interest with what observations?

To what result?

POINT-1:

The fact that the accident was the result of rash and negligent driving of the driver of the crime vehicle insured with 2nd respondent as rightly concluded by the Tribunal, no way in dispute for the purpose of the appeal, but for the quantum impugned is low.

Coming to the quantum of compensation concerned, no doubt the claim having been filed u/s 163-A and 166 of the Act, there was no option exercised before the Tribunal before commencement of trial as held required to opt by the Apex Court in Hansrajbhai Sony v. Girishbhai Sony and in the absence of exercising option the expression of Division Bench of this Court in National Insurance Co. Ltd. Vs. J. Yellappa and Others, speaks that in the simultaneous petitions filed under two provisions to prosecute not sustainable and option is available to the claimant to opt one to proceed out of both, as the claim filed u/s 163-A of the Act, it is not an interim measure like u/s 140 of the Act, but for final proceeding and again proceeding or simultaneously proceeding u/s 166 of the Act thus does not arise. However, subsequently a division bench of this Court in Bhupathi Prameela and Others Vs. The Superintendent of Police and Others, observed that when it is the duty of the Court to do justice to the parties when technicalities coming in the way much importance need not be given because ultimately justice has to be done and when two views are possible, the view in favour of the victim which relieve their distress and misery should be adopted in saying even the claim petition filed u/s 163-A and 166 of the Act, as Section 166 of the Act since beneficial that can be considered. Having regard to the same, the claim petition is treated u/s 166 of the Act. Therefrom for the deceased aged about 26 years as per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the multiplier applicable is 17 and claimant as blacksmith as there is no proof regarding avocation, thus even taken the income as per Lata Wadhwa and Others Vs. State of Bihar and Others, minimum Rs. 3,000/- per month income has to be taken and the accident is in August, 2005 which is about 4 years after the said expression, the income can be taken with proportionate increase at Rs. 3,400/- per month and if 1/4th deducted towards personal expenses from dependants are 4 in number vide Sarla Verma v Delhi Transport Corporation 2009 ACJ 1298 it comes to Rs. 2,550/- per month and after applying multiplier it comes to Rs. 5,20,200/- (Rs. 2,550 x 12 x 17). Apart from it, Rs. 1,00,000/- towards loss of consortium, Rs. 25,000/- towards funereal expenses, Rs. 5,000/- towards loss of estate and Rs. 10,000/- each towards care and guidance for two children vide Rajesh and Others Vs. Rajbir Singh and Others, it comes to Rs. 6,75,200/- and what the Tribunal awarded of Rs. 1,86,100/- is utterly low, hence to allow the appeal as prayed for the claim of Rs. 3,00,000/-.

POINT -2:

In the result, the appeal is allowed by enhancing compensation from Rs. 1,86,100/- to Rs. 3,00,000/- with 7.5% p.a. from the date of petition till the date of realization with joint and several liability of the insurer and insured (respondents 1 and 2). The respondents shall deposit said amount within one month, failing which the claimant can execute and recover. Rest of the terms of the award of the Tribunal holds good. There is no order as to costs. Miscellaneous petitions, if any pending in this appeal, shall stand closed.