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IN THE COURT OF THE CHAIRMAN MOTOR ACCIDENT CLAIMS TRIBUNAL-
CUM-SPECIAL SESSIONS JUDGE, FOR TRIAL OF S.Cs/STs (POA) CASES- -CUM- ADDL.DISTRICT JUDGE; NALGONDA.
Present :- Ms.C.P Vindeswari., Special Sessions Judge, For SC/STs (POA) Act Cases-cum- Addl. District Judge Nalgonda.
Dated this the 11th day of April, 2016.
M.V.O.P.No. 506 of 2011 Between :-
1.Mohd. Khousar W/o Late Jameel, 30 years, Household
2.Mohd. Muzaheed S/o late Jameel, 10 years, Student
3.Mohd. Roohi D/o late Jameel, 8 years , Student
4.Mohd. Naseeruddin Late Jameel, 6 years, Student Claimants 2 to 4 are being minors R/by their natural guardian and mother, Khousar .
…..Petitioners.
A N D
1.Y. Prabhaker Rao S/o Late Boshaiah, Major, Business and Owner of TATA Ace bearing No. AP 29 TA 6099 R/o H.No. 5-6-1/795 B.N Reddy Colony, Vanasthalipuram R.R Dist.
2.The Oriental Insurance Company Ltd., R/by its Branch Manager, V.T Road, Ramagiri, Nalgonda Town (Amended as per orders in I.A No. 573/2012 Dt. 26-2-2013) vide Policy No. 431305/31/2010/495 valid from 14-5-2009 to 13-5-2010.
…..Respondents.
This petition is coming on 31-3-2016 for final hearing before me in the presence of Sri Ananthula Shankaraiah , Advocate for petitioners and Sri S. Venkat Reddy Advocate for the Respondent No.1 and Sri G. Srinivas Reddy Advocate for the Respondent No.2 and having stood over for consideration till this day, the court made the following :- : ORDER :
01. This is a petition filed u/Sec.166 of M.V.Act, 1988 and Rules 455 of
A.PM.V Rules 1989 Read With Section 140 of Motor Vehicles Act claiming compensation of Rs.5,00,000/- for the death of the deceased by name
Mohd. Jameel S/o Ghouse.
02. Mohd. Jameel S/o Ghouse. hereinafter referred to as deceased who is the husband of the first petitioner and father of the Petitioners 2 to 4.
3. The Respondent No.1 is owner of TATA Ace . Respondent No.2 is insurer of crime TATA Ace bearing No. AP29 TA 6099.
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04. PETITIONERS’ CASE:-
The deceased was working as a Rice Mill driver at Shettipalam Village.
On 18-4-2010 after completion of duties at rice mill at Shettipalem village he was returning to his house on his cycle at about 10-00 P.M when he reached near the Sai Krishna Hotel at Yedukotla thanda, a TATA Ace bearing No. AP 29 TA 6099 came from Miryalguda side and the same was proceeding towards Nalgonda side and the same was driven by its driver in a rash and negligent manner and high speed and dashed to the cycle of the deceased, as a result of which the deceased sustained multiple injuries and fractures all over the body and while he was shifting to Osmania General
Hospital, Hyderabad on the way he lost his breath at about 4-00 P.M .
In Miryalguda Town P.S, the accident was reported and it was registered as Cr.No. 96 of 2010 U/Sec. 304-A of IPC against the driver of the crime vehicle. The Police have filed charge sheet against the accused/driver of crime TATA Ace bearing No. AP 29 TA 6099 alleging responsible for the death of deceased and liable for punishment for the punishment for the offence U/Sec. 304-A of IPC.
The claim of Petitioners is that due to rash and negligent driving of crime TATA Ace bearing No. AP 29 TA 6099 by its driver, the accidental death of deceased occurred and that therefore, the Petitioners are entitled for compensation.
Further case of Petitioners is that the deceased was hale and healthy, aged about 36 years and he was earning of Rs.8,000/- Per month as salary by working as Rice Mill driver and he was contributing whole of his income to the maintenance and welfare of the petitioners.
The death of the deceased is due to fault of the diver of the crime
TATA Ace bearing No. AP 29 TA 6099 by his rashness and/or negligence and that therefore the respondent No.1 and 2, being owner and insurer of the 3 crime TATA Ace bearing No. AP 29 TA 6099 respectively, are liable to pay compensation jointly and severally.
The petitioner, therefore, claims in all compensation of Rs.5, 00,000/- which is detailed as below under different heads:-
I. SPECIAL DAMAGES.
(Particulars of loss and expenses)
a)Medical Expenses Rs.20,000/-
b)Damages & Funeral Expenses Rs. 30,000/- ii)FOR GENERAL DAMAGES.
a) Consortium to wife. Rs.50,000/-
d) Compensation for the loss of life/future earning powers and Rs.4,00,000/- maintenance
Total : Rs.5,00,000/-
05. The Respondent No.1 filed counter denying the occurrence of the accident and its manner and sustaining of the injuries by the deceased and his death due to injuries and registration of the case by the Police by putting the petitioners to strict proof of the same. The health condition, earning capacity and the petitioners are his legal heirs is also disputed putting the petitioners to strict proof of the same. The respondent No.1 further submit that his vehicle was insured with the respondent No.2 and the same is subsisting as on the alleged date of the accident, in any event of any liability arises out of the said alleged accident, the respondent No.1 shall discharge such liability, the claim of the compensation is highly exorbitant and prayed the Court to dismiss the petition.
06. The contentions of the respondent No.2 counter reads thus:-
The petitioner shall prove that the driver of the crime TATA Ace bearing No. AP 29 TA 6099 drove it in rash and negligent manner and the accident thereby was caused and the age, income, avocation and health of deceased is disputed putting the petitioners to strict proof of the same 4 and the insurance of the TATA Ace bearing No. AP 29 TA 6099 is disputed putting the petitioners to strict proof of the same. The claim of Petitioner is highly excessive and arbitrary.
07. Basing on the above pleadings, the following points arose for consideration.
1) Whether the deceased by name Mohd Jameel S/o Ghouse died due to rash and negligent driving of the vehicle TATA Ace bearing
No. AP 29 TA 6099 ?
2) Whether the claimants are entitled for compensation, if so, for what amount and from whom ?
3) To what relief ?
08. During trial, the petitioner No.1 who is the wife of the deceased is examined as P.W.1 and an eye witness to the accident is examined as P.W.2 and got marked Exs.A1 to A6 on their behalf. On behalf of the respondent
No.2 Senior Assistant of their Insurance company is examined as R.W.1 and got marked Exs.B1 to B4 on behalf of the Insurance Company.
The learned Counsel for the petitioners contended that the deceased
Mohd. Jameel is the husband of petitioner No.1 and father of Petitioners 2 to 4 and he died in an accident when he was returning to home after attending his duty at rice mill, at the time of accident his age was 36 years, h therefore, he filed present O.P claiming compensation of Rs.5,00,000/- on relevant heads.
The learned Counsel for Respondent No.2 contended that there is no negligence on the part of the crime vehicle, due to negligence of the deceased, the accident took place, there is no need to pay compensation and prayed to dismiss the petition.
09. ISSUE No.1.
REASONS :-
On 18-4-2010 at 10-00 P.M the accident occurred and it was reported in P.S. Miryalguda town by 18-4-2010 as in Ex.A1. Prompt lodging of 5 information of accident is half of proof of occurrence of accident. Ex.A1 was investigation as per the procedure established by law and filed charge sheet as in Ex.A6. Investigation officer filed Ex.A6 alleged that, the driver of the crime TATA Ace bearing No. AP 29 TA 6099 by his rash and negligent driving caused the accident leading to the death of deceased. Therefore as per
Ex.A6, the accused/ driver of crime TATA Ace bearing No. AP 29 TA 6099 is alleged liable for punishment for the offence U/Sec. 304-A of IPC.
Therefore, by evidence on record i.e., the evidence of P.W.1 and P.W.2 who is an eye witness to the accident, it is proved that the accident occurred due to rash and negligent driving of crime TATA Ace bearing No.
AP 29 TA 6099 by its driver, in which the deceased died.
Accordingly, Issue is answered.
10. ISSUE No.2.
Reasons.
R-2 filed Policy of Insurance, marked as Ex.B3, which from it is proved that the crime TATA Ace bearing No. AP 29 TA 6099, as on the date of accident, got policy coverage. The deceased is third party to Ex.B3/Policy.
Therefore, R-2 is liable to pay compensation.
On behalf of the Respondent No.2 company R.W.1 is examined and his evidence is that respondent No.1 allowed to drive the crime vehicle TATA
Ace bearing No. AP 29 TA 6099 who was not having driving license and in his cross-examination RW-1 admitted that on the date of accident, the
Insurance Policy was in force as per terms of policy, Respondent No.1 and
Respondent No.2 are jointly and severally liable to pay the amount and the time of entering in to policy they verify the R.C and fitness but not driving license.
Petitioner No.1 evidence is that the age of the deceased was 36 years and he was working as rice mill driver in Shettipalem Village and earning
Rs.8,000/- per month, and in Ex.A3 Post Mortem Examination Report the age of the deceased was shown as 36 years at the time of the accident. As seen 6 from the record, at the time of the accident, the deceased was 36 years old and working as a rice mill driver and Petitioners not file any document to show the income of the deceased, hence the income of the deceased is fixed at Rs.3000/- per annum.
11. JUST COMPENSATION
As on today, the principles of assessment of just
compensation laid down in Sarla Verma and others V.Delhi
Transport Corporation and another (reported in 2009 ACJ
1298) shall be followed and followed.
ASCERTAINMENT OF MULTIPLIER :
Hon’ble Supreme court in above decision at para 21 held thus:-
“We, therefore, hold that the multiplier to be used should
be as mentioned in column No.4 of the Table (Prepared by
applying Susamma Thomas, Trilok Chandra and Charlie)
The deceased, as per, petitioner who is wife, is aged about 36 years as on the date of accident, the pleaded age is proved by the Petitioner/PW.1 and income of the deceased is fixed at Rs.3000/- per month. So far as the evidence of PW.1 regarding age of deceased is concerned, R-2 did not did any cross examination.
Therefore age of deceased is as on the date of accident believed to be between 36 to 40 years. Then, multiplier applicable is 15 and it is accordingly ascertained.
(As per Sarla Verma and others V.Delhi Transport
Corporation and another (reported in 2009 ACJ 1298) the
multiplier 15 is applicable and accordingly ascertained.
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ASCERTAINMENT OF MULTIPLICAND :-
Hon’ble Supreme Court in above decision held thus in
respect of ascertainment of multiplicand:-
“The income of the deceased per annum should be determined.
Out of the said income a deduction should be made in regard
to the amount which the deceased would have spent on himself
by way of personal and living expenses. The balance, which is
considered to be the contribution to the dependent family,
constituted the multiplicand”.
The Plea of the Petitioners regarding avocation and income of deceased his income at Rs.3000/- per month. Therefore, by taking into consideration, the age of deceased, the monthly income of deceased is Rs.
3000/-
DEDUCTION TOWARDS PERSONAL AND LIVING EXPENSES:-
Hon’ble Supreme court in above said decision, in respect of
deduction for personal and living expenses, held at para 14, thus:-
Having considered several subsequent decisions of this court,
we are of the view that where the deceased was married, the
deduction towards personal and living expenses of the
deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3; one-fourth (1/4th ) where the
number of dependent family members is 4 to 6 and one-fifth
(1/5th) where the number of the dependent family members
exceed six.”
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The dependents on the deceased are four in number. Therefore his monthly salary is taken Rs.3000/- per month and after deducting 1/4th it will comes to Rs.2250/- and for the age group of 36to 40 years the multiplier is 15 and thus the petitioners are entitled to the compensation as follows:-
Rs.2250x12x15=4, 05, 000/- and they are entitled for Rs.50,000/- towards loss of Estate and love and affection and Rs. 5000/- towards transport charges and Rs.10,000/- towards Funeral expenses and Rs.20,000/- towards
Loss of consortium, the total compensation comes to Rs. 4,90,000/-/-.
Through R.W.1 copy of Insurance Policy is marked as Ex.B3. As per
Ex.B3, as on the date of accident, the crime TATA Ace bearing No. AP 29 TA 6099 got insurance coverage. The deceased was third party. Therefore R-2 is liable to pay compensation.
12. Issue No.3:-
In the result, the petition is allowed partly with costs and interest by awarding compensation of Rs.4,90,000/- (Rupees Four lakh, ninety thousand only ) with proportionate cost and interest at the rate of 8% per annum from the date of petition till the date of realization. Respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioners 1 to 4 and they are directed to deposit the compensation amount within one month from the date of this order. On such deposit the petitioner No.1 is entitled to
Rs.2,45,000/- and petitioner No.2 is entitled to Rs.81,666/- and petitioner No.3 is entitled to Rs.81,668/- and petitioner No.4 is entitled for Rs.81,666/- and petitioner No.1 is permitted to withdraw an amount of Rs.1,22,500/- with cost and interest and the remaining share amount of petitioner No.1 i.e.,
Rs.1,22,500/- shall be deposited in any Nationalized Bank in fixed deposit for a period of three years and after three years she is entitled to withdraw her entire share amount with costs and accrued interest and the share amounts of petitioners 2 and 4 who are minor shall be deposited in any Nationalized
Bank in fixed deposit till they attain majority and share amount of petitioner 9
No.3 who is minor shall be deposited in any Nationalized Bank in fixed deposit till the date of her marriage. Advocate fee is fixed at Rs.1000/-.
Accordingly award is passed.
Dictated to the P.A., transcribed by him, corrected and pronounced by me in the
open Court on this the 11th day of April, 2016.
Special Sessions Judge, For SC/STs (POA) Act Cases-cum- Addl. District Judge-cum-Chairman, MACT Nalgonda.
:APPENDIX OF EVIDENCE : WITNESSES EXAMINED ON BEHALF OF THE PETITIONER : PW-1 : Mohd. Kousar First Petitioner PW-2 : Yerramalla Venkat Reddy Eye witness to the accident
WITNESSES EXAMINED ON BEHALF OF RESPONDENTS
RW-1 : Parankusham Vidya Sagar Senior Asst in Oriental Insurance Company Limited, Nalgonda.
EXHIBITS MARKED ON BEHALF OF PETITIONERS
Ex.A-1: CC of FIR in Crime No.96 of 2010 of P.S, Miryalguda Town Ex.A-2: CC of inquest report. Ex.A-3: C.C of Post Mortem Examination Report Ex.A-4: C.C of Motor Vehicle Inspector’s Report Ex.A-5: C.C of Form No.54 Ex.A6 : C.C of Charge Sheet.
EXHIBITS MARKED ON BEHALF OF RESPONDENTS
Ex.B-1:- Office copy of letter dt. 25-3-2013 addressed to respondent No.1 By respondent No.2. Ex.B-2: Postal Acknowledgement Card Ex.B-3: C.C of Policy bearing No. 431305/31/2010/495 valid from 13-5-2009 to 12-5-2010. Ex.B-4: Authorization letter.
Special Sessions Judge, For SC/STs (POA) Act Cases-cum- Addl. District Judge-cum-Chairman, MACT Nalgonda