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The Oriental Insurance Co. Ltd., Rep. by Vs. Doppalapudi Sujatha and Others - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Judge
AppellantThe Oriental Insurance Co. Ltd., Rep. by
RespondentDoppalapudi Sujatha and Others
Excerpt:
.....expenses of the deceased, the loss of dependency consequently is rs.2,000/- per month. the annual loss of income for the purpose of calculation consequently is rs.24,000/-.17. as the deceased was 25 years old at the time of his death, the appropriate multiplier is '18'. if the annual loss of dependency at rs.24,000/- is multiplied by 18, the amount of compensation would be rs.4,32,000/-. the claimants would be entitled to compensation at rs.4,32,000/- towards loss of income and future expectancy of life. the claimants are entitled to rs.15,000/- towards loss of estate, rs.2,000/- towards funeral expenses and rs.15,000/- towards loss of consortium in favour of the 1st claimant. the claimants accordingly are entitled to compensation at: (a) compensation towards ... rs.4,32,000/- loss of.....
Judgment:

HON'BLE SRI JUSTICE K.G.SHANKAR Civil Miscellaneous Appeal Nos.577; 596 o”

19. 10-2012 The Oriental Insurance Co. Ltd., Rep. by its Branch Manager, Branch Office, Opp. District Court, Cuddapah Doppalapudi Sujatha and others Counsel for the appellant: Sri M.Satish Reddy Counsel for respondents/: Sri Ch.Janardhana Reddy claimants Counsel for respondent No.4: None : : Cases referred:

1. 1988 ACJ 107.2. AIR 200.SC 369.3. 2009 (4) ALD 59.4. (2012) 3 SCC 61.5. 2009 ACJ 129.Common Judgment: This common judgment disposes of both the appeals. The two appeals arise in separate claims arising out of the same accident. The eyewitness for the accident proper in both the cases is one and the same. The claims are also similar relating to agricultural income, milk vending and tractor management. The decisions relied upon by both sides also are common in both the cases. I therefore consider it appropriate to dispose of both the appeals through this common judgment. C.M.A.No.577 of 2003 arises from the award dated 21-9-2002 on the file of the Chairman, Motor Accident Claims Tribunal cum District Judge, Nizamabad (the Tribunal, for short), in O.P.No.117 of 2001. C.M.A.No.596 of 2003 arises from the award passed on the same date by the same Tribunal in O.P.No.317 of 2001.

2. On 04-4-2000, Doppalapudi Sida Rao was proceeding on National Highway No.16 along with V.Radhakrishna Murthy as the pillion-rider on his scooter bearing registration not AP 25.8252. At about 5.30 p.m., by the time the scooter reached the near abouts of Sadanandam Petrol Bunk on National Highway No.16, the lorry bearing registration not AP 04.6485 owned by the 4th respondent and insured with the appellant approached from the opposite direction. The lorry dashed against the scooter and ran over Doppalapudi Sida Rao and V.Radhakrishna Murthy leading to the death of the rider and the pillion-rider of the scooter instantaneously. Aggrieved by the death of the deceased, the wife and parents of Doppalapudi Sida Rao filed O.P.No.117 of 2001 under Section 166 of the Motor Vehicles Act, 1988 (the Act, for short) and the Rules thereunder claiming compensation at Rs.10,00,000/-. The wife, the minor daughter and the parents of V.Radhakrishna Murthy laid O.P.No.317 of 2001 under Section 166 of the Act claiming compensation at Rs.10,00,000/- for the death of V.Radhakrishna Murthy.

3. The eyewitness to the accident was examined as P.W.3 in O.P.No.117 of 2001 and as P.W.2 in O.P.No.317 of 2001. His evidence was identical. The eyewitness deposed that he was a Salesman at Sadanandam Petrol Bunk and that on the date of the accident, the rider of the scooter purchased petrol for his scooter from the Petrol Bunk where the eyewitness was working as a Salesman. The eyewitness then deposed that while the rider was going on to the National Highway from the Petrol Bunk, the offending lorry of the 4th respondent was driven in a rash and negligent manner leading to the accident wherein the scooterist and the pillion-rider suffered fatal injuries.

4. It is pertinent to point out that the insurer has taken a defence that there was a collision between the scooter of the deceased and another scooter leading to the accident and that there was no negligence on the part of the driver of the offending lorry. The eyewitness indeed denied this suggestion. Be it noted that the insurer exhibited Ex.B-1 photo copy of Section 161 Cr.P.C Statement of the eyewitness. The eyewitness statedly claimed in Ex.B-1 that initially the accident was caused when the scooter of the deceased came into contact with another scooter resulting in the deceased and the pillion-rider falling down. However, Section 161 Cr.P.C Statement of the eyewitness is to the ultimate effect that the lorry was driven rashly and negligently and that the lorry ran over the deceased and the pillion-rider who had already fallen down. As rightly submitted by Sri Ch.Janardhana Reddy, learned counsel for the claimants, the negligence of the driver of the lorry is established whether the evidence of the eyewitness is accepted or whether the evidence of the eyewitness is received subject to Ex.B-1 copy of Section 161 Cr.P.C Statement of the eyewitness. Viewed in either angle, the negligence of the driver of the offending lorry is patent. The death of the scooterist and the pillion-rider consequently was due to the rash and negligent driving of the driver of the offending lorry. I therefore have no hesitation to hold that the death of the scooterist and the pillion-rider was on account of the rash and negligent driving of the driver of the offending lorry. Consequently, the appellant-insurer as well as the owner of the offending lorry are jointly and severally liable to satisfy the claim of the dependants of the scooterist and the pillion-rider. The controversy primarily is in respect of the income of the deceased upon which, the super structure of calculations had been built to arrive at the amount of compensation that the claimants were entitled to. C.M.A.No.577 of 2003 (O.P.No.117 of 2001):

5. In respect of working out the amount of compensation payable to the claimants, the evidence in the two cases slightly differ. It therefore is appropriate to determine the compensation separately in each case. Accordingly, the two cases are considered independently in respect of the amount of compensation that the claimants would be entitled to. The deceased Doppalapudi Sida Rao was the scooterist. He was said to be an agriculturist, running a Dairy and was also maintaining a tractor earning Rs.25,000/- per month. The Tribunal determined the income of the deceased at Rs.6,000/- per month. Sri M.Satish Reddy, learned Standing Counsel for the appellant-insurer, urged that the notional income of the deceased does not deserve to be worked out at Rs.6,000/- per month.

6. As already pointed out, the deceased was said to be an agriculturist, owned a tractor and was maintaining a Dairy. So far as maintaining a Dairy is concerned, no evidence has been let in by the claimants. In respect of agricultural income, the claimants produced Exs.A-6, A-6(a), A-6(b) and A-6(c), which are photo copies of Pattedar Pass-Books. Ex.A-6 Pass-Book is in the name of the mother of the deceased. Exs.A-6(a) and A-6(b) show that the parents of the deceased owned and possessed Ac.10-38 guntas whereas the deceased owned Ac.2-20 gts. It is the case of the claimants that the total extent of Ac.13-18 gts. was cultivated by the deceased and that the death of the deceased led to agricultural loss to a huge extent. On the other hand, the learned Standing Counsel for the appellant contended that the deceased possessed A.2-20 gts. alone and that the compensation can be paid in respect of Ac.2-20 gts. only.

7. That apart, Exs.A-7 and A-8 are copies of the R.C. Book of the tractor and trailer. It may be recalled that the deceased was said to be engaged in maintaining and running a tractor. However, Exs.A-7 and A-8 show that the tractor stands in the name of the father of the deceased-2nd respondent. It is claimed by the learned Standing Counsel for the appellant that the deceased did not hold any rights over the tractor and trailer and that the deceased owned only Ac.2-20 gts. and not Ac.13-18 gts. He contended that there is no evidence from the claimants as to the income generated by Ac.2-20 gts. and that at any rate, loss of supervision in respect of Ac.2-20 gts. alone can be considered for determining the notional loss of dependency.

8. In D.Vinoda v. B.Baswa Raju1, a learned single Judge of this Court considered the principles of assessment where the accident related to the death of an agriculturist cultivating his own lands. The Court observed thus: "13. From the aforesaid rulings, the following principles can be summarised: (i) In the case of death of an agriculturist owning agricultural land, the value of the 'supervisory' services of the deceased have to be first estimated. This will not be merely equivalent to the value of the services of a farm- servant or a manager of the property employed for that purpose. It will be more than that because an owner-manager takes extra care in increasing the income year by year and also in increasing the value of the property. After thus estimating the 'special' value of the supervisory services of an 'owner- manager', a deduction is to be made in respect of the money the deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. Then an actuarial multiplier suitable to the age of the deceased has to be applied from the Actuarial Multiplier Table arrived at in Bhagawan Das v. Mohd. Arif, 1987 ACJ 105.(AP). To the said sum may be added such sums towards loss of consortium and compensation for loss of expectation of life and pain and suffering as decided in Yerra Varalakshmi v. M.Nageswara Rao, 1988 ACJ 35.(AP). (ii) It is not permissible to say that no amount need be awarded towards the loss to the dependency merely because the corpus of the agricultural land is left intact for the dependants. When in case of death of non-cultivators who have other properties the properties remain intact and still damages are awarded, there is no reason why on death of cultivators who have agricultural land, a negative attitude should be taken. The general practice of making automatic deductions for the value of property inherited has fallen into desuetude. The value of the accelerated receipt of property cannot according to the Privy Council be treated as a total or partial equivalent of the loss to the dependency inasmuch as the said acceleration has to be set off against the loss of saving of the deceased to the family. At the other extreme, it is equally not permissible to capitalise the income from the land by a number of years' purchase." 9. The High Court thus considered that the value of the services of the deceased shall be assessed at the outset. The Court indeed cautioned that the value of the supervisory services of the deceased is more than the value of the service of a farm-servant or a manager of the property.

10. In State of Haryana v. Jasbir Kaur2, the Supreme Court considered about just and reasonable compensation. The deceased therein was a 25-year old agriculturist. He was also indulging in purchasing and selling cattle and was selling milk. Holding that compensation could not be a windfall gift but should be just and reasonable, the monthly income of the deceased was determined at Rs.3,000/- per month and after deducting 1/3rd of the same, the Supreme Court considered Rs.2,000/- per month as the financial contribution.

11. In United India Insurance Co. Ltd., Nizamabad v. G.Rajeshwar3, a learned single Judge of this Court held that the loss of value of supervisory charges would be loss of dependency.

12. In NEW INDIA ASSURANCE CO. LTD. v. YOGESH DEVI4, the owner of a few buses died in a motor vehicle accident. It was claimed that the deceased owned three mini buses, that he was a driver and an agriculturist and that he was earning more than Rs.35,000/- per month. It was averred that the deceased was earning Rs.3,900/- as a driver. The Supreme Court recognised that the income of the deceased from agricultural lands would continue to accrue to the family and that the income derived by running the three buses also would accrue to the family. In view of the case being very old, instead of remitting the same, the Supreme Court computed the income of the deceased as the salary as the manager of the three buses.

13. On the basis of these decisions, it is contended by the learned counsel for the claimants that the amount of compensation awarded was just and reasonable and does not need any interference. The learned Standing Counsel for the insurer submitted that it is unjust to determine the income of the deceased at Rs.6,000/- per month and award compensation.

14. The tractor and trailer stand in the name of the father of the deceased. Even agricultural lands to the extent of Ac.10-38 gts. stand in the name of the parents of the deceased. There is no proof that the deceased was personally driving the tractor. There is no evidence that the deceased was cultivating the lands of his parents apart from his lands. I therefore hold that it is Ac.2-20 gts. of land standing in the name of the deceased that deserves to be counted as the agricultural land of the deceased. No income could be deducted in respect of the lands standing in the name of the parents of the deceased and in respect of the tractor standing in the name of the father of the deceased. The claimants indeed examined the 3rd claimant and the 1st claimant as P.Ws.1 and 2. P.W.1 did not whisper in the evidence that his lands were cultivated by the deceased. It is not as though P.W.1-3rd claimant was crippled or otherwise disabled person. He was described to be 47 years old. He himself was an agriculturist. Therefore, the claim of the learned counsel for the claimants that the deceased was cultivating his own lands as well as the lands of his parents and was also running the tractor owned by his father cannot be accepted in the absence of evidence to the contrary. I therefore consider that only Ac.2-20 gts. of agricultural land standing in the name of the deceased was under the cultivation of the deceased.

15. As observed in D.Vinoda (1 supra), the agricultural property is not lost on account of the death of the deceased. The supervisory services of the deceased alone are lost so far as the deceased is concerned. I consider that the supervisory loss on account of the death of the deceased deserves to be worked out at Rs.3,000/- per month, where the deceased owned only Ac.2-20 gts. of agricultural land.

16. As held in Jasbir Kaur (2 supra), if 1/3rd of the amount is deducted towards the personal and living expenses of the deceased, the loss of dependency consequently is Rs.2,000/- per month. The annual loss of income for the purpose of calculation consequently is Rs.24,000/-.

17. As the deceased was 25 years old at the time of his death, the appropriate multiplier is '18'. If the annual loss of dependency at Rs.24,000/- is multiplied by 18, the amount of compensation would be Rs.4,32,000/-. The claimants would be entitled to compensation at Rs.4,32,000/- towards loss of income and future expectancy of life. The claimants are entitled to Rs.15,000/- towards loss of estate, Rs.2,000/- towards funeral expenses and Rs.15,000/- towards loss of consortium in favour of the 1st claimant. The claimants accordingly are entitled to compensation at: (a) Compensation towards ... Rs.4,32,000/- loss of income and future expectancy of life (b) Compensation towards ... 15,000/- loss of estate (c) Compensation towards ... 2,000/- funeral expenses (d) Compensation towards ... 15,000/- loss of consortium in favour of the 1st claimant ----------------- Total ... Rs.4,64,000/- ----------------- 18. The claimants shall be entitled to compensation at Rs.4,64,000/- (Rupees four lakhs and sixty four thousand only) together with interest at 9% per annum from the date of the petition till deposit as awarded by the Tribunal.

19. Out of the awarded amount, the widowed 1st claimant shall be entitled to Rs.2,00,000/- (Rupees two lakhs only). The claimants 2 and 3, who are the parents of the deceased, are entitled to Rs.1,32,000/- (Rupees one lakh and thirty two thousand only) each. Each of the claimants is entitled to interest over their respective share of their awarded amounts.

20. The insurer and the owner of the offending vehicle are jointly and severally liable to answer the claim. They shall deposit the awarded amount within one month from today.

21. On such deposit, the 1st claimant shall be entitled to withdraw Rs.1,00,000/- (Rupees one lakh only) at the first instance. The balance due to the 1st claimant shall remain in Fixed Deposit for a period of 3 (three) years at the end of which, the 1st claimant shall be entitled to withdraw the balance together with accrued interest and costs.

22. After deposit, the claimants 2 and 3 shall be entitled to withdraw Rs.70,000/- (Rupees seventy thousand only) each at the first instance. The balance shall lie in Fixed Deposit for a period of 3 (three) years at the end of which, they shall be entitled to withdraw the balance together with accrued interest.

23. The appeal in C.M.A.No.577 of 2003 however is disposed of without costs. C.M.A.No.596 of 2003 (O.P.No.317 of 2001):

24. The wife, the minor daughter and the parents of the deceased V.Radhakrishna Murthy claimed compensation at Rs.10,00,000/- for the death of the deceased. So far as the liability of the insurer and the owner of the offending lorry is concerned, the evidence is identical with the evidence in O.P.No.117 of 2001 from which C.M.A.No.577 of 2003 arose. The conclusion in C.M.A.No.577 of 2003 holds good for the present case as well as there is no other circumstance to take a contrary view. Consequently, I conclude that the claimants have established that the accident was due to the rash and negligent driving of the driver of the offending lorry and that the insurer and the owner of the lorry are jointly and severally liable to satisfy the claim.

25. It is the quantum of compensation awarded by the Tribunal that is seriously disputed by the insurer-appellant, and not its liability jointly and severally with the owner of the lorry. The deceased was claimed to be an agriculturist, that he was running a Dairy, and that he was maintaining a tractor thereby earning Rs.21,000/- per month. The Tribunal determined the income of the deceased at Rs.6,000/- per month.

26. The learned Standing Counsel for the insurer contended that there is no evidence regarding the income of the deceased and that the determination of the income at Rs.6,000/- per month therefore is unjust. It may be noticed that there is no evidence whatsoever regarding the Dairy maintained by the deceased. In the inquest report copy of which is Ex.A-4, the deceased was not shown to be running a Dairy. In the absence of evidence, I consider that the claimants failed to show that the deceased was running a Dairy and was making income from the Dairy.

27. Regarding the claim relating to maintenance of a tractor, Exs.A-7 and A-8 copies of the R.C. Book relating to the tractor and trailer stand in the name of the father of the deceased. It is not shown by the claimants that the deceased was maintaining the tractor at the time of the accident. It was not even shown that the deceased held driving licence to drive the tractor and trailer. More important, there is no evidence that the deceased was maintaining the tractor. In the absence of such evidence, it shall be assumed that the owner of the tractor was maintaining the tractor. Where the deceased was not the owner of the tractor vide Exs.A-7 and A-8 but the father of the deceased was the owner, I consider that the claim that the deceased was maintaining the tractor and trailer and that the claimants sustained loss of income owing to the death of the deceased is not sustainable. I reject the contention of the learned counsel for the claimants that the claimants sustained loss on account of the death of the deceased with reference to the income from the maintenance of the tractor.

28. Ex.A-6 is the copy of the Pattedar Pass-Book. Indeed, Ac.3-06 gts. of land is covered by Ex.A-6. However, Ex.A-6 shows that the 3rd claimant, who is the father of the deceased, owned these properties. As rightly submitted by the learned Standing Counsel for the appellant, there is no evidence that the deceased was cultivating these properties. The learned counsel for the claimants contended that there was no evidence contrary to the evidence of P.W.1. P.W.1 is the widow of the deceased. She deposed that the deceased was an agriculturist apart from owning a tractor and maintaining she- buffaloes. However, she did not whisper in her evidence that the deceased was personally cultivating the lands covered by Ex.A-6 and that the claimants lost the supervisory services of the deceased owing to his death. Added to it, even the adangal showing that the deceased was cultivating the property was not produced by the claimants. I therefore have no hesitation to hold that the claimants failed to show that the deceased was an agriculturist and was cultivating the lands covered by Ex.A-6.

29. Thus, there is no evidence regarding the income of the deceased. In the absence of any proof regarding the calling and the income of the deceased, as the accident and consequent death of the deceased occurred in 2000, I deem it appropriate to determine the notional income of the deceased at Rs.3,000/- per month. The annual notional income of the deceased consequently is Rs.36,000/-. There are as many as four claimants. Sarla Verma v. Delhi Transport Corporation5 considered that if there are more than three dependants, 1/4th of the income of the deceased deserves to be deducted towards the personal and living expenses of the deceased. However, the Supreme Court held in that case that father of a deceased should not be considered to be a dependant. Although the claimants seek for apportionment of a share in favour of the father of the deceased, for the purpose of calculation, the claim of the father deserves to be omitted. I therefore consider that 1/3rd of the notional income of the deceased alone deserves to be deducted towards the personal and living expenses of the deceased. If 1/3rd of Rs.36,000/- at Rs.12,000/- is deducted, the net loss of income and future expectancy of life is Rs.24,000/- per annum.

30. Admittedly, the deceased was 30 years old at the time of the accident as can be seen not only from the evidence of P.W.1 but also from Exs.A-3 and A-4 copies of the post-mortem report and the inquest report. Where the deceased was 30 years old, the appropriate multiplier is '17'. If the loss of dependency at Rs.24,000/- per annum is multiplied by 17, the amount would be Rs.4,08,000/-. The claimants are entitled to compensation at Rs.4,08,000/- (Rupees four lakhs and eight thousand only) towards loss of income and future expectancy of life. The claimants are also entitled to Rs.15,000/- (Rupees fifteen thousand only) as compensation towards loss of estate and Rs.2,000/- (Rupees two thousand only) towards funeral expenses. The 1st claimant is entitled to Rs.15,000/- (Rupees fifteen thousand only) as compensation towards loss of consortium in her favour.

31. The claimants accordingly are entitled to compensation at: (a) Compensation towards ... Rs.4,08,000/- loss of income and future expectancy of life (b) Compensation towards ... 15,000/- loss of estate (c) Compensation towards ... 2,000/- funeral expenses (d) Compensation towards ... 15,000/- loss of consortium in favour of the 1st claimant ----------------- Total ... Rs.4,40,000/- ----------------- 32. The claimants accordingly are entitled to compensation at Rs.4,40,000/- (Rupees four lakhs and forty thousand only) together with interest at 9% per annum from the date of the petition till deposit, which is the rate at which interest was granted by the Tribunal.

33. The appellant, who is the insurer and the 5th respondent, who is the owner of the offending lorry are jointly and severally liable to answer the claim. They shall deposit the awarded amount within one month from today.

34. Out of the awarded amount, the widowed 1st claimant shall be entitled to Rs.1,40,000/- (Rupees one lakh and forty thousand only). The 2nd claimant-minor daughter shall be entitled to compensation at Rs.1,20,000/- (Rupees one lakh and twenty thousand only). The claimants 3 and 4, who are the parents of the deceased, shall be entitled to Rs.90,000/- (Rupees ninety thousand only) each. Each of the claimants is entitled to interest over their respective share of their awarded amounts.

35. After deposit, the 1st claimant shall be entitled to withdraw Rs.70,000/- (Rupees seventy thousand only) at the first instance. The balance due to the 1st claimant shall lie in Fixed Deposit for a period of 3 (three) years at the end of which, the 1st claimant shall be entitled to withdraw the balance together with accrued interest and costs.

36. The claimants 3 and 4 shall be entitled to withdraw Rs.50,000/- (Rupees fifty thousand only) each at the first instance after deposit. The balance shall lie in Fixed Deposit for a period of 3 (three) years thereafter at the end of which, the claimants 3 and 4 shall be entitled to withdraw the balance together with accrued interest.

37. The amount of compensation payable to the 2nd claimant shall lie in Fixed Deposit till the 2nd claimant completes her 21st year. After the 2nd claimant completes her 21st year, the 2nd claimant shall be entitled to withdraw Rs.40,000/- (Rupees forty thousand only) at the first instance. The balance shall lie in Fixed Deposit thereafter for a period of 3 (three) years at the end of which, the 2nd claimant shall be entitled to withdraw another instalment of Rs.40,000/- (Rupees forty thousand only). The balance shall again be invested for a further period of 3 (three) years at the end of which, the 2nd claimant shall be entitled to withdraw the balance amount together with accrued interest, if any. During the minority of the 2nd claimant, the 1st claimant shall be entitled to withdraw interest on the compensation amount awarded in favour of the 2nd claimant once in a year. After the 2nd claimant attains majority, she shall be entitled to withdraw interest once in a year till she completes her 21st year. In the event of any urgency for withdrawal, the claimants shall approach the Tribunal. The Tribunal is at liberty to decide petition regarding withdrawal in case of urgency.

38. The appeal in C.M.A.No.596 of 2003 accordingly is disposed of without costs.

39. Both the appeals C.M.A.Nos.577 and 596 of 2003 are accordingly disposed of without costs. __________________ K.G.SHANKAR, J.

19th October, 2012.


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