THE HON'BLE SRI JUSTICE B.N.RAO NALLA

M.A.C.M.A. No. 222 of 2006

25-07-2011

1.Mohd. Nizamuddin,2.Mohd.Ziauddin,3.Mohd.Moinuddin,4.Kum. Farkhana Begum

1. J.Satyanarayana Reddy 2. United Indian Insurance Company Ltd.,

Counsel for the Appellants: Sri C.V.Bhaskar Reddy

Counsel for Respondent No.1: Sri C.Pratap Reddy

Counsel for Respondent No.2:Mrs.P.S.Manjula Kumar

:JUDGMENT:

Aggrieved by the order dated 10-03-2003 passed by the learned District Judge - cum - Motor Accidents Claims Tribunal, Medak at Sangareddy in O.P. No.39 of 2000, whereby the Tribunal allowed the said O.P. in part awarding an amount of Rs.1,02,100/- towards compensation to the claimants (appellants) as against their claim of Rs.2 lakhs,

they preferred this appeal seeking enhancement of compensation.

2. The case of the claimants before the Tribunal is as under:

(a) Claimant No.1 is the husband and claimant Nos.2 to 4 are children of the deceased Smt. Bismillah Bee. On 09-03-1999 at 7-00 PM, while the deceased and her son were going on a scooter, at the village limits of Kaveli, the Vespa (scooter) bearing No.AP9-J-4262 belonging to respondent No.1 and being driven by its driver in a rash and negligent manner came in the opposite direction and hit the scooter of the deceased resulting in fall of the deceased along with the scooterist on the road and both of them sustained severe multiple injuries and they were shifted to Government Hospital, Zaheerabad and from there the deceased was shifted to Osmania General Hospital, Hyderabad, where she succumbed to the injuries on 12-03-1999 while undergoing treatment. It is also claimed that the deceased was 40 years old as on the date of her death and she was working as an agricultural labourer and earning Rs.2,500/- per month. Therefore, the claimants filed claim petition claiming a compensation of Rs.2,00,000/-.

(b) Respondents Nos.1 and 2, who are owner of the Vespa (scooter) involved in the accident and its insurer respectively, filed their counters separately, inter alia, denying the case of the claimants and also disputing the age, occupation and income of the deceased and also dependency of the claimants on the deceased.

3. Based on the rival pleadings of the parties, the Tribunal framed the following issues for trial:

"1. Whether the pleaded accident occurred due to the rash and negligent driving of the LML. Vespa AP-9-J-4262 by its driver or the driver of scooter on which the deceased was traveling or by both and the deceased Bismilla Bee died the said accident?

2. Whether the claim is bad for non-joinder of necessary parties?

3. What is the just compensation to which the petitioners are entitled and from whom?

4. To what relief?"

4. To prove their case, claimant No.1 got himself examined as PW.1 and also an eyewitness to the accident, Aijaz Ahmed, as PW.2 and got marked Exs.A-1 to A-6. On behalf of the respondents, no oral evidence was adduced except marking a copy of the insurance policy of the Vespa (Scooter) involved in the accident as Ex.B- 1 with consent.

5. The Tribunal after considering the material available on record, holding issue Nos.1 and 2 in favour of the claimants and taking the income of the deceased at Rs.900/- per month, awarded a total compensation of Rs.1,02,100/-. Being dissatisfied with the said quantum of compensation, claimants preferred this appeal seeking enhancement of the compensation.

6. It is the case of the claimants that during her lifetime, the deceased was working as an agricultural labourer and was earning Rs.2,500/- per month and she was contributing her entire income to her family only apart from attending to household work being a house wife. It is also their case that since the deceased, who was a housewife having family, was rendering her services to the family, which cannot be assessed in terms of money, they are also entitled to compensation under this count. However, the Tribunal failed to appreciate the evidence available on record in a proper perspective and instead of fixing the monthly earnings of the deceased at Rs.3,000/- per month, erroneously fixed the same at Rs.900/- per month. The Tribunal has also committed an error by deducting 1/3rd out of the total income of the deceased towards her personal expenses instead of deducting only 1/5th of the amount as there being four dependents on her. It is further their case that though the deceased was aged 40 years by the time of her death and the same is evident from the material on record, the Tribunal committed an error in not applying the appropriate multiplier "15" as held in SARLA VERMA (SMT) AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER1 and erroneously fixed the multiplier as "12.79." The Tribunal also failed to award any amount towards loss of consortium for which a specific amount of Rs.15,000/- has to be awarded. Further, the Tribunal has awarded only Rs.5,012/- towards loss of love and affection instead of awarding an amount ranging from Rs.10,000/- to Rs.15,000/-.

7. Respondent No.1, owner of the Vespa (scooter) involved in the accident, while disputing the claim of the claimant itself, submits that the compensation awarded by the Tribunal itself is on higher side, as such, there are no grounds to enhance the compensation in this appeal, and therefore, the appeal is liable to be dismissed.

8. When the matter came up for hearing on 20-07-2011, the learned counsel for the appellants - claimants and the learned counsel for respondent No.1, owner of the Vespa involved in the accident, advanced their arguments, but there was no representation on behalf of respondent No.2, insurance company of the offending vehicle, as such, the matter was directed to be listed on 21-07-2011 for hearing the arguments of the learned counsel for respondent No.2. However,

on 21-07-2011, there was no representation on behalf of respondent No.2 and therefore the matter was directed to be listed today under the caption "for orders". Even today also, there is no representation on behalf of the respondent No.2. Hence, the matter is being disposed of on merits.

9. This Court perused the material available on record and gave its earnest consideration to the submissions made by the learned counsel for the claimants and respondent No.1.

10. Since there is no appeal on behalf of the respondents questioning the accident in question, there is no need to decide the same and the finding given by the Tribunal on that question in favour of the claimants becomes final.

11. Now the only point that arises for consideration is whether the compensation awarded by the Tribunal is inadequate and, if so, what is the just compensation?

POINT:

12. It is seen that the Tribunal has taken the monthly income of the deceased as Rs.900/- since there was no authentic material with regard to her occupation and income and out of that 1/3rd of the amount was deducted towards her personal expenses and accordingly by applying the multiplier "12.79" arrived at Rs.92,088/- towards loss of dependency to the claimants.

13. It is to be seen that the deceased was an agricultural labourer and as per the claim of the claimants she was earning a sum of Rs.2,500/- per month and contributing the entire income to her family. Further, it is to be seen that the deceased was not only an agricultural labourer but she was also a housewife managing the entire family by attending to household works. As per the decision of the Apex Court in LATA WADHWA AND OTHERS v. STATE OF BIHAR AND OTHERS2, the monthly income of a housewife has to be fixed at Rs.3,000/ even on a modest estimation for rendering multifarious services by her for managing the entire family. Thus, in any case, the value of the services rendered by a housewife shall be assessed at Rs.3,000/- per month at the lowest. In view of the above and as the deceased was claimed to be working as an agricultural labourer and also attending to household works, this Court is of the considered view that the monthly income of the deceased can be fixed at Rs.3,000/- per month in all. Further,

it is to be seen that there are four dependants on the deceased. Therefore, as per Sarla Verma's Case (Supra 1), only 1/4th amount has to be deducted out of the monthly income of the deceased towards her personal expenses for computing loss of dependency. Thus, if 1/4th of the amount is deducted from the monthly income of the deceased (Rs.3,000/- x 1/4 = Rs.750/-), it comes to Rs.2,250/- per month towards her net contribution to her family and Rs.27,000/- per annum.

14. Further, as contended by the claimants, as per the decision of the Apex Court in Sarla Verma's Case (Supra 1), the appropriate multiplier for a person aged between 36 to 40 is "15". Hence, as the deceased was 40 years old as on the date of her death as per Ex.A-3 postmortem report, as per the decision referred supra, multiplier "15" has to be applied for computing just compensation towards loss of dependency.

15. Accordingly, taking the annual contribution of the deceased to her family at Rs.27,000/- per annum and applying multiplier "15" as per the decisions referred supra, the loss of dependency would be arrived at Rs.4,05,000/- (Rs.27,000/- x 15). In addition thereto, claimants are entitled to Rs.5,000/- towards funeral expenses, Rs.10,000/- towards love and affection and claimant No.1 is entitled to Rs.10,000/- towards loss of consortium. Thus, it is found that the compensation awarded by the Tribunal is inadequate, and the claimants are entitled to a total compensation of Rs.4,30,000/-. However, the compensation claimed by the claimants is Rs.2,00,000/- only.

16. It is settled law that the Court is required to award just compensation and is enjoined with the powers of awarding any amount in excess of the amount claimed by the claimants which in its consideration is just and reasonable and the Court is not bound by the pleadings of the parties so far as the total amount of compensation is concerned. In deserving cases, the Court has power to award more than the amount claimed by the claimants having regard to the facts and circumstances of the case and even in the absence of any petition being filed by the claimants seeking enhancement of compensation.

17. In view of the settled law and having regard to the facts and circumstances of the case, the claimants are awarded a total sum of Rs.4,30,000/- (Rupees four lakhs thirty thousand only) towards compensation which is more than the claim made by the claimants.

The rate of interest on the enhanced compensation shall be at 6% per annum from the date of petition till realization. It is further ordered that claimant Nos.1 and 4 are entitled to 30% each and claimant Nos.2 and 3 are entitled to 20% each out of the enhanced compensation. However, claimant No.1 alone is entitled to receive the amount of Rs.10,000/- awarded towards loss of consortium. Further, the claimants are permitted to withdraw their shares soon after its deposit. Accordingly, the point is answered.

18. With the above enhancement in quantum of compensation and the directions, the appeal is allowed. No order as to costs.

?1 (2009) 6 SCC 121