Andhra Pradesh High Court – Amravati
Between vs Satinder Kaur @ Satwinder on 11 September, 2024
APHC010317562006
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3470]
(Special Original Jurisdiction)
WEDNESDAY ,THE ELEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
218/2006
Between:
The Oriental Insurance Company Limited ...APPELLANT
AND
Kanchi Srinivas And Another and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. MANIMMA MEDIDA
Counsel for the Respondent(S):
1. KAKARA VENKATA RAO
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
1957/2006
Between:
The Oriental Insurance Company Limited ...APPELLANT
AND
Kanchi Srinivas And Another and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. MANIMMA MEDIDA
Counsel for the Respondent(S):
1. Sita Devi Eluri
2. NARASIMHA RAO
DAVULURI
MOTOR ACCIDENT CIVIL
MISCELLANEOUS APPEAL NO: 300/2007
Between:
The Oriental Insurance ...APPELLANT
Company Limited, Hyderabad.
AND
2
Kanchi Lakshmi Bharathi ...RESPONDENT(S)
And 4 Others and Others
Counsel for the Appellant:
1. MANIMMA MEDIDA
Counsel for the Respondent(S):
1.
The Court made the following:
3
HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
HON'BLE SRI JUSTICE NYAPATHY VIJAY
M.A.C.M.A.Nos.218, 1957 of 2006 & 300 of 2007
COMMON JUDGMENT:
(Per Hon‟ble Sri Justice Nyapathy Vijay)
All the three Appeals, M.A.C.M.A.Nos.218, 1957 of 2006 and
M.A.C.M.A.No.300 of 2007 are filed questioning the common judgment
dated 24.06.2005 passed in M.V.O.P.Nos.1090 of 2000, 20 of 2002
and 1017 of 2000 respectively by the Motor Vehicle Accident Claims
Tribunal (II Additional District Judge), East Godavari at Rajahmundry.
2. For the sake of convenience, the parties are hereinafter referred
to as they were arrayed before the Tribunal.
3. The brief facts so far:
Claim petitions were filed by the respondents, who were
dependents of all the deceased, who died in the same car accident
that occurred on 20.08.2000. All the deceased are traveling in the car
bearing No.AP 5 U 7879 being driven by respondent No.2 in the
appeal. On 20.08.2000 at about 11.00 p.m. when the deceased were
traveling from Rajahmundry to Malkipuram, the driver drove the car in
a rash and negligent manner with high speed and lost control over the
4car thereby the car fell into the canal and drowned in the water. Driver
and de-facto complainant/P.W.2, were sitting in the front seat and had
broken the front glass of the car and escaped from the accident. The
persons/deceased who were in the back seat died in the car accident.
4. Claimants in O.P.No.1090 of 2000 were the dependants being
wife, children and parents of the deceased Kanchi Lakshmi Narayana.
The deceased was working as Cost Accountant in WS Atkins &
Partners Overseas, Dubai for a monthly salary of 4,200 Dirhams
equivalent to Rs.75,600/-. He was aged about 30 years at the time of
the accident. They claimed an amount of Rs.1,20,00,000/- towards
compensation under different heads.
5. The parents of Claimant in O.P.No.1017 of 2000 and O.P.No.20
of 2002 had died in the accident. The mother of the claimant i.e Kanchi
Lakshmi Suryakanta Ratnam was a housewife and aged 45 years at
the time of the accident and was earning Rs.3,846/- being the one
third income of her husband. A claim for Rs.3,00,000/- was made
towards compensation.
6. The father of the claimant i.e Kanchi Lakshmana Swamy was
aged 56 years at the time of the accident and was working as
Executive Officer in Panchayat Raj Department in Malkipuram and
was earning Rs.11,537/- per month. A claim for Rs.9,00,000/- was
made towards compensation.
5
7. The first respondent remained ex parte. Respondent No.2 i.e.
the Insurance Company filed its usual formatted counter denying every
aspect of the claim petition.
8. In the course of examination on behalf of claimants,
P.Ws.1 to 4 were examined and Exs.A.1 to A.12 were marked.
On behalf of the respondents, none were examined and no documents
were marked.
9. The Tribunal, after considering the oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving of the driver of the lorry and awarded an amount of
Rs.29,84,000/- towards compensation in O.P.No.1090 of 2000, an
amount of Rs.1,86,000/- towards compensation in O.P.No.1017 of
2000 and an amount of Rs.3,34,656/- in O.P.No.20 of 2002. Hence,
these appeals are filed by the claimants.
10. Heard M/s. Mamima Medida, learned counsel for the
appellant/insurance company and none appeared for respondents.
11. In the grounds of appeal, the substantial ground that was urged
was that Section 158(6) of Motor Vehicles Act, 1988 was not complied
and the insurance company was not informed of the accident within
the time specified therein. The other grounds urged were non-
examination of the driver to establish rash and negligent driving and
that the compensation awarded is on the higher side. The counsel for
6
the insurance company also reiterated these grounds in the course of
arguments.
12. The issues that fall for consideration in these appeals are
as under:-
a) Whether Section 158(6) of Motor Vehicles Act, 1988 is not
complied with by the authorities concerned?
b) Whether rash and negligent driving of the driver of the vehicle
is established in the facts of these cases?
c) Whether the compensation awarded to the claimants is on the
higher side?
13. Issue (a): Section 158(6) of the Motor Vehicles Act obligates
information received by the Police Officer with regard to an accident to
forward the same to the insurance company within 30 days thereof as
it stood at the time of accident. The question whether information was
received by the insurance company or not within the time specified is a
question of fact and foundation should be there to that effect in the
pleadings on behalf of the insurance company.
14. In these cases, though the insurance company filed counter
affidavit as well as additional counter affidavit, no specific plea was
raised with regard to non-compliance of Section 158(6) of the Act. The
Tribunal also did not frame any issue to that effect. Therefore, the
plea with regard to non-compliance of Section 158(6) of the Act being
7
urged for the first time in the appeal is rejected. The issue (a) is
answered accordingly.
15. Issue (b): The plea of the insurance company that driver of the
vehicle was not examined is unsustainable as the driver was an
accused in a criminal case in C.C.No.433/2000 before Judicial First
Class Magistrate, Kothapeta under Section 304-A IPC filed by the
Police for rash and negligent driving as evident from Ex.A.10. An
accused has a right of silence. Therefore, the plea that the driver was
not examined is baseless and rejected.
16. The fact that the accident took place is not in doubt as three
individuals had died due to the vehicle falling in the canal. The
narration of the manner of accident by itself is proof of rash and
negligent driving on the principle of res ipsa loqitur. The Hon‟ble
Supreme Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning
& Pressing Co. Pvt. Ltd. & Another1 held that where the plaintiff can
prove the accident but cannot prove how it happened to establish
negligence on the part of the defendant, such hardship is sought to be
avoided by applying the principle of res ipsa loquitor. It was observed
at paragraph 6 thereof as under;
“6. The normal rule is that it is for the plaintiff to prove
negligence but as in some cases considerable hardship is
caused to the plaintiff as the true cause of the accident is not1
(1977) 2 SCC 745
8known to him but is solely within the knowledge of the defendant
who caused it, the plaintiff can prove the accident but cannot
prove how it happened to establish negligence on the part of the
defendant. This hardship is sought to be avoided by applying the
principle of res ipsa loquitur. The general purport of the words
res ipsa loquitur is that the accident “speaks for itself’ or tells its
own story. There are cases in which the accident speaks for
itself so that it is sufficient for the plaintiff to prove the accident
and nothing more. It will then be for the defendant to establish
that the accident happened due to some other cause than his
own negligence. Salmond on the Law of Torts (15th Edn.) at p.
306 states: “The maxim res ipsa loquitur applies whenever it is
so improbable that such an accident would have happened
without the negligence of the defendant that a reasonable jury
could find without further evidence that it was so caused”. In
Halsbury’s Laws of England, 3rd Edn., Vol. 28, at p. 77, the
position is stated thus: “An exception to the general rule that the
burden of proof of the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts already established are
such that the proper and natural inference arising from them is
that the injury complained of was caused by the defendant’s
negligence, or where the event charged a; negligence „tells it
own story‟ of negligence on the part of the defendant, the story
so told being clear and unambiguous”. Where the maxim is
applied the burden is on the defendant to show either that in fact
he was not negligent or that the accident might more probably
have happened in a manner which did not connote negligence
on his part.”
17. Apart from the above quoted principle, the Police also filed a
charge sheet under Section 304-A IPC against the driver for rash and
9
negligent driving, therefore it is not open to the insurance company to
contend that rash and negligent driving is not established. Further, the
insurance company neither filed any documentary evidence nor let any
evidence to disprove the rash and negligent driving of the driver of the
vehicle. Hence, issue (b) is held against the insurance company.
18. Issue (c): The counsel for the insurance company contended
that the compensation awarded to the claimants is on higher side. This
issue is sub-classified for the reason that the compensation of
claimants in individual appeals is separate and depends on the proof
of income let in by them.
19. Sub-issue (i): Compensation in MACMA.No.300 of 2007 filed
against O.P.No.1090/2000.
The claimants are the widowed wife, minor daughter and
parents of the deceased by name Kanchi Lakshminarayana. It was
their case that the deceased was aged 30 years and was working as a
Cost Accountant in W.S. Atkins and Partners Overseas P.O 5620,
Dubai, U.A.E. It was pleaded that the income of the deceased was at
the rate of 4,200 Dirhams, which was equivalent to Rs.75,600/- in
Indian currency.
20. In support of the plea, the claimants relied on Exs.A.13, .A.14
and A.15. The Ex.A.13 was the salary certificate of the deceased
issued by W.S. Atkins and Partners Overseas, Dubai. Ex.A.14 are
10
three Passports in the name of the deceased and Ex.A.15 is the
contract form of an agreement between the deceased
Lakshminarayana and W.S. Atkins and Partners Overseas, Dubai.
Ex.A.16 is the driving license of the deceased issued by Dubai
authorities. P.W.3 is the wife of the deceased and P.W.4 is the brother
of the deceased. Both the witnesses had reiterated the plea with
regard to salary and the contract of service the deceased had with
W.S. Atkins and Partners Overseas, Dubai.
21. The Tribunal did not place reliance on Ex.A.13 and Ex.A.15
since, no individual from W.S. Atkins and Partners Overseas, Dubai
had spoken about the genuineness of those documents. The
depositions of P.Ws.3 and 4 were not relied upon as they were
considered to be interested witnesses. However, the Tribunal agreed
to the extent that the deceased was working in Dubai since 1994 and
adopted an amount of 2,000 Dirhams per month as the income of the
deceased in Dubai. Considering the said amount, the Tribunal adopted
a multiplier of „16‟ and after deducting 1/3rd towards family expenses
awarded a compensation of Rs.29,84,000/-, which is inclusive of
consortium amount also.
22. The evidence on record would establish the fact that the
deceased was regularly going to Dubai since 1994 for work. The three
11
Passports filed as Ex.A.15 establish the frequency of travel by the
deceased from India to Dubai. The driving license (Ex.A.16) issued by
the Dubai authorities in favour of the deceased clearly indicative of the
fact that the deceased was financially well off in Dubai. The fact that
no person from W.S. Atkins and Partners Overseas, Dubai was
examined can be attributed to lack of availability of cross-examination
through virtual mode back in those days.
23. Be that as it may, though the Tribunal had adopted 2,000
Dirhams equivalent to Rs.23,000/- at that relevant point of time, as the
monthly income of individual, the future prospects as declared by the
Hon‟ble Supreme Court in National Insurance Company Limited V.
Pranay Shetti and Others2 was not granted by the Tribunal apart
from the consortium amount and other heads as granted in the above
referred case were not awarded. As regards the multiplier, „17‟ should
have been adopted rather than the multiplier of „16‟ adopted by the
Tribunal as the deceased was aged about 30 years.
24. Though, this is an appeal filed by the insurance company, but
considering the mandate of the Constitutional Bench of the Hon‟ble
Supreme Court in Pranay Shetti‟s case (referred (1) supra) and
considering the beneficial purpose of the legislation, this Court is
obligated to revise the compensation and award “Just compensation”
2
(2017) 16 SCC 680
12to the claimants. Therefore, the compensation is re-worked on the
basis of the income adopted by the Tribunal and considering the
deceased as self-employed following the Judgment of Hon’ble
Supreme Court in Triveni Kodkany v. Air India Ltd.3 at paragraph 14.
As the deceased was residing out of India, the deductions towards
personal expenses should be little more than normative deductions
considering that he has two residences to maintain. This Court feels
that 40% should be deducted towards personal expenses of the
deceased. On conventional heads, as per the judgment in National
Insurance Company Limited V. Pranay Sethi and Others 4, Magma
National Insurance Company Limited v. Nanu Ram @ Chuhru
Ram and Ors.5 and Smt. Anjali and Others V. Lokendra Rathod
and Others6, the claimants are entitled for an amount of Rs.48,000/-
to each of the claimants, being Rs.1,92,000/- towards loss of
consortium, towards funeral expenses Rs. 18,000/- and towards loss
of estate Rs. 18,000/-, in view of the Hon’ble Apex Court judgment in
United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder
Kaur and Ors7, as well, by revising the amount every three years @
10% i.e., @ 20% as on today.
3
2021 (19) SCC 214
4
(2017) 16 SCC 680
5
(2018) 18 SCC 130
6
(2022) SCC Online SC 1683
7
(2021) 11 SCC 780
13
25. The revised compensation is as under:
Rs 23,000/-
Monthly Income-: (self-employed/ fixed
salaried)
Addition to income to future prospect (@40% deceased Rs 32,200/-
being less than 40 years) (Rs.23,000/-+Rs 9,200/-)
Annual income (Rs.32,200x12) Rs.3,86,400/-
Rs.2,31,840/-
Deduction towards personal & Living Expenses (40%) (Rs.3,86,400-Rs
1,54,560)
Multiplier based on age of 30 years 17
Rs.39,41,280/-
Amount of compensation
(Rs.2,31,840x17)
Loss of Estate Rs.18,000/-
Rs.1,92,000/-
Loss of consortium
(Rs.48,000 x 4)
Funeral Expenses Rs.18,000/-
Total amount of compensation Rs.41,69,280/-
26. Sub-issue (ii):- Compensation in MACMA No.218 of 2006
filed against O.P.No.1017 of 2000:-
The deceased in this case is the mother of the claimant.
The Tribunal had taken her age as 50 years as per the Postmortem
Certificate and the Court estimated Rs.2,000/- as her income
considering the fact that she was a housewife. This is clearly
14erroneous and contrary to the statute. Section 163-A was introduced
by Act 54 of 1994 and the same read as under:
“Section 163A: Special provisions as to payment of
compensation on structured formula basis.- (1) Notwithstanding
anything contained in this Act or in any other law for the time being in
force or instrument having the force of law, the owner of the motor
vehicle of the authorised insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising out of the use
of motor vehicle, compensation, as indicated in the Second Schedule,
to the legal heirs or the victim, as the case may be.
Explanation.- For the purposes of this sub-section, “permanent
disability” shall have the same meaning and extent as in the
Workmen’s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant
shall not be required to plead or establish that the death or permanent
disablement in respect of which the claim has been made was due to
any wrongful act or neglect or default of the owner of the vehicle or
vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living
by notification in the Official Gazette, from time to time amend the
Second Schedule.
27. The Clause 6 of second schedule which is relevant to this appeal
read as under;
” Notional income for compensation to those who had no income prior to
accident:- Fatal and disability in non-fatal accidents:
(a) Non-earning Persons -Rs 15,000/-
15
(b) Spouse - Rs.1/3rd of the Income of the Earning/Surviving
Spouse.
28. This Section 163A was omitted in the Amendment Act of 2019
and Second Schedule was substituted under the said amendment.
Be that as it may, as on the date of accident and the date of Judgment
of the Tribunal, the above extracted provision of law was in vogue and
compensation should have been calculated by the trial Court with
reference to Section 163A and Second schedule as in vogue at that
time.
29. The Hon‟ble Supreme Court in the case of Arun Kumar
Agarwal v. National Insurance ltd8 while considering the income to
be adopted of a house wife, as in this case, relied upon the above
quoted provisions and awarded compensation. The Paragraphs 35
and 36 of the same read as under;
“35. In our view, it is highly unfair, unjust and inappropriate to
compute the compensation payable to the dependents of a deceased
wife/mother, who does not have regular income, by comparing her
services with that of a housekeeper or a servant or an employee, who
works for a fixed period. The gratuitous services rendered by
wife/mother to the husband and children cannot be equated with the
services of an employee and no evidence or data can possibly be
produced for estimating the value of such services. It is virtually
impossible to measure in terms of money the loss of personal care and
attention suffered by the husband and children on the demise of the8
2010(9) SCC 218
16housewife. In its wisdom, the legislature had, as early as in 1994, fixed
the notional income of a non-earning person at Rs.15,000/- per annum
and in case of a spouse, 1/3rd income of the earning/surviving spouse
for the purpose of computing the compensation.
36. Though, Section 163A does not, in terms apply to the cases
in which claim for compensation is filed under Section 166 of the Act, in
the absence of any other definite criteria for determination of
compensation payable to the dependents of a non-earning
housewife/mother, it would be reasonable to rely upon the criteria
specified in clause (6) of the Second Schedule and then apply
appropriate multiplier keeping in view the judgments of this Court in
General Manager Kerala State Road Transport Corporation v.
Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok
Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport
Corporation and another (supra) and also take guidance from the
judgment in Lata Wadhwa’s case. The approach adopted by different
Benches of Delhi High Court to compute the compensation by relying
upon the minimum wages payable to a skilled worker does not commend
our approval because it is most unrealistic to compare the gratuitous
services of the housewife/mother with work of a skilled worker.”
30. The income of the husband of the deceased as per Ex.A.12 was
Rs.11,537/- gross and net salary was Rs.10,457/-. The 1/3rd of the net
salary is taken as Rs.3,500/- for the sake of calculation. The multiplier
adopted by the Tribunal is „11‟ rather than „13‟ and the total
compensation is revised as under:
31. The re-worked compensation is as under:-
17
Monthly Income-: Rs 3,500/-
Annual income (Rs.3,500x12) Rs.42,000/-
Addition to income to future prospect@10% as deceased Rs 46,200/-
was 50 years (Rs.42000/-+Rs 4,200/-)
Deduction towards personal expenses of 1/3rd Rs 15,400/-
Multiplier based on age of 50 years 13
Amount of compensation Rs.4,00,400/-
Loss of Estate Rs.18,000/-
Loss of consortium Rs.48,000/-
Funeral Expenses Rs.18,000/-
Total amount of compensation Rs 4,84,400/-
32. Sub-issue (3) in MACMA No.1957 of 2006 filed against
O.P.No.20 of 2002:-
The deceased in this case was the father of the claimant. The
deceased was an Executive Officer and was aged 56 years at the time
of his death and the gross salary as per Ex.A.12 was Rs.11,537/- and
net salary is Rs.10,457/-. The evidence of the claimant was that he
was given the job of Junior Assistant on compassionate grounds in the
year 2000 itself and was drawing a salary of Rs.4,800/- per month.
The Tribunal taking into consideration these facts granted
compensation of Rs.3,34,656/- by adopting the Rs 3,486/- as the
18dependency of the claimant on the deceased. The Tribunal granted
compensation on the ground that the dependency of the petitioner is
1/3rd of the salary of the deceased.
33. The net salary of the deceased as per Ex.A.12 is Rs.10,457/-.
An amount of 1/3rd thereof should be deducted towards personal
expenses. Out of the balance amount, further 1/ 3rd is to be deducted
as the salary of the wife i.e deceased in O.P. No.1017 of 2002. The
balance amount of Rs.3,500/- is the income of the deceased. The
multiplier to be adopted is „9‟ as the deceased was 56 years at the
time of accident. The re-worked compensation is as under:-
Monthly Income-: Rs 3,500/-
Annual income (Rs.3,500x12) Rs.42,000/-
Addition to income to future prospect@10% as deceased Rs 46,200/-
was 50 years (Rs.42000/-+Rs 4,200/-)
Deduction towards personal expenses of 1/3rd Rs 15,400/-
Multiplier based on age of 50 years 9
Amount of compensation Rs.2,77,200/-
Loss of Estate Rs.18,000/-
Loss of consortium Rs.48,000/-
Funeral Expenses Rs.18,000/-
Total amount of compensation Rs 3,61,200/-
19
34. Interest: In recent past, the Hon‟ble Supreme Court in Rahul
Sharma & another v. National Insurance Company Limited and
others9, Kirthi and another v. Oriental Insurance Company
Limited10, Anjali and others v. Lokendra Rathod and others11
and R.Valli v. Tamil Nadu State Transport Corporation Ltd.,12
has been consistently awarding interest of 9%. Following the same
principle, the interest rate is enhanced from 7% to 9% and the
claimants are entitled for the enhanced interest from the date of
claim petition till realization.
35. Result: In view of the above;
(i) The M.A.C.M.A.No.300 of 2007 is dismissed. The Compensation
payable to the claimants is enhanced on the principle of Just and Fair
compensation as indicated in paragraph 25 with enhanced interest at
the rate of 9% from the date of accident till deposit.
(ii) The M.A.C.M.A.No.218 of 2006 is dismissed. The Compensation
payable to the claimant is enhanced on the principle of Just and Fair
compensation indicated in paragraph 31 at the enhanced interest rate
of 9% from the date of accident till deposit.
9
(2021) 6 SCC 188
10
(2021) 2 SCC 166
11
2022 SCC Online SC 1683
12
(2022) 5 SCC 107
20
(iii) The M.A.C.M.A.No.1957 of 2006 is dismissed. The Compensation
payable to the claimant is enhanced on the principle of Just and Fair
compensation indicated in paragraph 33 but the rate of interest is
enhanced to 9% from the date of accident till deposit.
(iv) The enhanced amounts shall be deposited by the insurance
company within one month before the Tribunal in respective O.Ps from
the date of receipt of certified copy of this order.
(v) As there is no representation for the respondents/claimants, the
Legal Services Authority shall reach out and intimate the claimants of
the enhancement and further ensure that the entire amount
proportionately is deposited in the Aadhar linked Bank account of the
claimants. No order as to costs. As a sequel, pending applications, if
any, shall stand closed.
_____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: 11.09.2024
Note: Copy be marked to
State Legal Services Authority.
KLP/IS