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THANGAMMA MATHEW MUSARIPARAMBIL V/S MUMMIDIVARAPUVENKATA NARASIMHA RAO , decided on Monday, September 18, 1995.
[ In the High Court of Andhra Pradesh, C. M. A. 1479 Of 1990 . ] 18/09/1995
Judge(s) : S.R. NAYAK
Advocate(s) : C.Poorniah, K.S.Prasad.
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  "1995 (3) ALT 292"  ==   "1995 (3) ALD 568"  







    MOTOR VEHICLES ACT 1988 S.110BCases Referred:General Manager Kerala State Road Transport Corporation Trivandrum vs. Susamma Thomas AIR 1994 SC 1631     S. R. NAYAK J.( 1 ) IN an unfortunate accident which took place on 13-12-1984 involving the motor car owned by the appellant in C. M. A. 695/90 (O. P. No. 181/85) bearing Regn. No. KEF 1441 and the oil tanker (lorry) bearing Regn. No. ADJ 3049 owned by the respondent No. l and insured by the second respondent- Insurance Company in C. M. A. No. 1479/89 (O. P. No. 84/86) resulting in injury to the claimant-appellant in C. M. A. 1555/89 (O. P. No. 174/85) and death of one Musariparambil Skaria Mathew whose legal representatives are the appellants in C. M. A. No. 1479/89. ( 2 ) THE claimants-appellants in C. M. A. 1479/89 claimed total compensation of Rs. 4 00 000-00 for the death of bread earner in the family under several heads. The claimant-appellant in C. M. A. 1555/89 claimed total compensation of rs. 3 00 000-00 under several heads towards the personal injury suffered by him whereas the owner of the motor car owned by the claimant-appellant in c. M. A. 695/90 claimed compensation of Rs. 67 529-00 towards the damage to the car. ( 3 ) ALL the three claims were dubbed before the Motor Accidents Claims tribunal inasmuch as they arose out of the same accident On behalf of the claimants eight witnesses were examined as P. Ws. l to 8. P. W. 1 is the petitioner in O. P. 174/85 P. W. 3 is the petitioner in O. P. 181/85 and P. W. 4 is the first petitioner in O. P. 84/86. As many as 48 documents were produced and marked on behalf of the claimants-petitioners. No witnesses were examined on behalf of the respondents and only Exs. B-1 to B-3 were marked on their behalf. ( 4 ) THE Motor Accidents Claims Tribunal in the first instance proceeded to consider the question whether the accident took place on account of rash and negligent driving of the lorry-oil tanker. The Motor Accidents Claims Tribunal on the basis of the evidence on record recorded the finding that the driver of the lorry-oil tanker was not responsible for causing the accident In that view of the matter the Motor Accidents Claims Tribunal has dismissed the claims of all me three appellants. However the Motor Accidents Claims Tribunal on the basis of the evidence adduced before it quantified the compensation payable to the appellants-claimants in the O. Ps. in the event of allowing the claim petitions. Since the Motor Accidents Claims Tribunal held against the claimants on the first issue of negligence there was no scope for the Motor Accidents Claims tribunal to award any compensation. ( 5 ) HENCE these three appeals by the claimants-appellants questioning the validity of the common judgment and decree passed by the Motor Accidents claims Tribunal. ( 6 ) HEARD the learned Counsel for the appellants-claimants and the learned standing Counsel for the Insurance Company. ( 7 ) THE learned Counsel appearing for the claimants-appellants first contended that the reasons assigned by the learned trial Judge to hold that the driver of the lorry-oil tanker was not negligent or reckless in driving the vehicle is totally perverse and based on no evidence. Elaborating this submission the learned Counsel would submit that to prove the fact of negligence on the part of the driver of the oil tanker-lorry the claimants examined two independent disinterested witnesses P. Ws. 5 and 6 and the reasons assigned by the learned trial Judge to discredit their evidence is totally perverse. On the other hand the learned Standing Counsel for the Insurance Company would support that part of the award. Therefore it has become necessary in the first instance to consider the question whether the accident took place on account of rash and negligent driving of the lorry or not because depending upon the finding that may be recorded on he said issue the necessity of quantifying the compensation payable to the appellants would arise. Therefore let me in the first instance proceed to decide the first point before the Court.( 8 ) AS already pointed out supra on behalf of the respondents none was examined. Therefore in the abence of any contra evidence whether the evidence let in by the claimants should be believed and if those pieces of evidence are believed whether they could bring home the charge of negligence on the part of the driver of the lorry-oil tanker? P. W5 is one Chekka Arjayya and p. W. 6 is one Maddukuri Krishna and both of them were eye witnesses to the incident. It is relevant to note that the claimants are from Kerala State whereas these witnesses are locals of the place where the accident took place. There is absolutely not even any adverse suggestion by any of the respondents warranting to disbelieve their testimony. Both the witnesses have stated that on the date of the accident and at the time of the accident the car was going towards tuni and the oil tanker was coming from Tun. They also stated that oil tanker came with high speed and dashed against the car. This oral testimony of the two independent disinterested witnesses fully support the claim of the claimants- appellants that the accident took place on account of rash and negligent driving of the oil tanker. But the learned trial Judge chose to disbelieve the oral testimony of P. Ws. 5 and 6 on the ground that these two witnesses did not go to the rescue of the injured found in the air and they did not state anything in their evidence for having done anything in that direction. The learned trial Judge has also pointed out that these witnesses were not summoned by the Magistrate court. The reasons given by the learned trial Judge in my considered opinion are totally perverse. Simply because P. Ws5 and 6 did not go to the rescue of the injured in the car it cannot be said that their testimony is false. It has come in the evidence that when the accident took place there were several others also besides P. Ws. 5 and 6. When an accident takes place it is not that all the persons on the spot should go to the rescue of the injured. Therefore on that count the evidence of eye witnesses cannot be rejected. The other reason given by the learned trial judge to disbelieve the version of the claimants is that the driver Of the car was not examined and therefore an adverse inference should be drawn against the claimants under illustration (g) to Section 114 of the Indian Evidence act. This is again on the face of it is perverse reasoning to discredit the evidence let in on behalf of the claimants. The illustration (g) to Section 114 of the evidence Act is not applicable to the facts of this case and the learned trial Judge has wrongly applied that provision to discredit an otherwise acceptable evidence. In my considered opinion even if we ignore all other pieces of evidence adduced by the claimants the evidence of P. Ws. 5 and 6 clearly prove the fact of negligence on the part of the driver of the lorry-oil tanker. Therefore the finding recorded by the trial Judge on issue No. l in all the three claim petitions is liable to be set aside and accordingly I set aside and hold that the accident took place on account of rash and negligent driving of the lorry-oil tanker. ( 9 ) NOW let me consider the claims of the claimants for compensation in each of these three claim petitions. (I)C. M. A. No. l479/89. ( 10 ) THE claimants in this case are widow and two minor children and they claimed total compensation of Rs. 4 00 000-00 under several heads. The deceased was businessman dealing in coconut oil and he was a partner of the firm called National Oil Mill along with his father live deceased on the date of the accident-death was 38 years old. The Motor Accidents Claims Tribunal taking the monthly income of the deceased at Rs. 2 000-00 deducted 50% of that income towards personal expenses of the deceased and on that basis it determined the total loss of dependency at Rs. 1 68 000-00 applying the multiplier at 14 and after so determining the total dependency again the Motor accidents Claims Tribunal deducted 40% of the said sum and ultimately determined the net loss of dependency at Rs. 1 00 800-00. In addition to this sum the Motor Accidents Claims Tribunal has also awarded Rs. 10 000-00 towards transportation charges and medical expenses. Further a sum of Rs. 5 000-00 is awarded to the widow of the deceased towards loss of consortium. Thus the motor Accidents Claims Tribunal has totally awarded Rs. 1 15 800-00. ( 11 ) THE learned Counsel appearing for the appellants in this case contended mat the percentage of income deducted towards the personal expenses of the deceased is very much on higher side and the Motor Accidents Claims Tribunal ought not to have deducted more than 1/3rd of the income of the deceased. Secondly the learned Counsel also argued that the compensation awarded under the head loss of consortium to the widow is also very much on lower side and normally the Courts award Rs. 15 000-00 as held by the Apex Court. Thirdly the learned Counsel pointed out that the Motor Accidents Claims tribunal has not awarded any compensation for loss to the estate. On the other hand the learned Standing Counsel for the Insurance Company would support the determination made by the Motor Accidents Claims Tribunal insofar as it awarded compensation under several heads. ( 12 ) I find considerable force in the submissions of the learned Counsel for the claimants-appellants. The Motor Accidents Claims Tribunal in view of the income tax return filed by the firm consisting the deceased and his father found the income of the deceased at Rs. 24 000-00 per annum. There is absolutely no justification for the Motor Accidents Qaims Tribunal to deduct 50% of the said income towards personal expenses of the deceased. The trends of decision is not to deduct more than 1/3rd of the income of the deceased towards personal expenses. Therefore having regard to the facts and circumstances of the case i think that the just and reasonable deduction would be Rs. 600-00 per month towards personal expenses of the deceased and if it is so deducted the monthly loss of dependency would be at Rs. 1400-00. The Motor Accidents Claims tribunal has rightly applied the multiplier at 14 having regard to the age of the deceased. If monthly loss of dependency is taken at Rs. 1400-00 and multiplier 14 is applied the total loss of dependency would be at Rs. 2 35 200-00 (Rs. 1400 x 12 x 14 ). Motor Accidents Claims Tribunal has awarded Rs. l0 000-00 towards transportation charges and medical expenses and I do not find an ground to enhance the compensation under the said head- The Supreme Court in General manager Kerala State Road Transport Corporation Trivandrum vs. Susamma thomas has observed that the usual award for loss of consortium and loss of estate is at conventional sum of Rs. 15 000-00 each. I do not find any good ground to make any departure from what the Apex Court observed in para 13 of the said judgment. Therefore the claimants-appellants are entitled to Rs. 15 000-00 for loss of estate and the first appellant-widow in addition will be entitled to a sum of Rs. 15 000-00 under the head loss of consortium. Thus the claimants- appellants are entitled to total compensation of Rs. 2 75 200-00 on the following the claimants-appellants are entitled to interest at the rate of 12% per annum. (II) C. M. A. No. 1555/89. ( 13 ) THE appellant in this case is the injured. The appellant-claimant is a qualified Engineer and he was aged 38 years on the date of the accident. It has come in the evidence that the claimant was earning Rs. 3 000-00 towards his salary and he was also paid Rs. 1 200-00 towards house rent allowance and rs. 500-00 towards vehicle allowance. In the claim application this claimant claimed total compensation of Rs. 3 00 000-00. The claimant has suffered permanent disability rated at 40%. The Motor Accidents Claims Tribunal has determined the total compensation payable to this claimant at Rs. 90 000-00 under certain heads. It has awarded Rs. 10 000-00 for multiple injuries; rs. 10 000-00 for extra nourishment and medicines; Rs. 10 000-00 towards prolonged treatment; and Rs. 50 000-00 towards loss of future income. As regards the award of Rs. 10 000-00 each on the first three heads I do not find any good reason or justification to enhance the same. But I am of the considered opinion that the compensation awarded to the claimant-appellant towards loss of future earning is miserably at a low level. The claimant was at his prime age as a professional and he was a qualified Engineer and having regard to the nature of the injuries he suffered it could safely be said that the prospects in his life and career is arrested. In such a case it is not only the income of the professional earned at the time of the accident should be taken into account but also the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicant as held by the Apex court in General Manager Kerala State Road Transport Corporation Trivandrum vs. Susamma Thomas (1 supra ). The learned trial Judge has not applied any of the principles which are normally applied to determine the loss of future income. On the other hand on the basis of his subjective satisfaction the learned Trial judge has awarded Rs. 50 000-00 towards loss of future income without disclosing as to how he arrived at at that figure. Having regard to the income which the injured was earning on the date of the accident and also having regard to the future prospects of advancement in his life and career rs. 5 000-00 can be taken as monthly income of the injured for the purpose of determining the compensation to be payable to him under the head loss of future income. If Rs. 5 000-00 is taken to be his monthly income and since he has suffered permanent disability at 40% degree the loss of future income per month would be at Rs. 2 000-00 (5000 x 40/100 = 2000 ). The appellant was aged 38 years on the date of the accident. e. 13-12-1984. Therefore the proper multiplier to be applied is 13. Thus the total compensation payable to the appellant-claimant under the head of loss of future income would be at rs. 3 12 000-00 (Rs. 2 000 x 12 x 13 = 3 12 000-00 ). To sum up the appellant- claimant is entitled to total compensation of Rs3 42 000-00 under the following (III) C. M. A. No. 695/90. ( 14 ) THIS appeal is by the claimant in O. P. 181/85 who is the owner of the motor car bearing Regn. No. KEF 1441. In O. P. the claimant laid a total compensation of Rs. 67 529-00 towards the damage caused to the car in the accident. As against the said claim the Motor Accidents Claims Tribunal has awarded Rs. 15 000-00 only. ( 15 ) THE learned Counsel for the appellant would submit that the compensation awarded towards the damage to the vehicle is very much on lower side and against the evidence on record. The learned Counsel placing reliance on Ex. A-29 which is the assessment made by the Insurance Company would submit that the Motor Accidents Claims Tribunal ought to have awarded Rs. 67 529-00 as claimed in the petition. I do not find any merit in the contentions advanced on behalf of the appellant-claimant. It is true that ex. A-29 is the assessment report by the Insurance Company. But as rightly pointed out by the learned trial Judge the claimant was required to prove that he actually spent Rs. 67 529-00 towards purchase of spare parts and the service charges for repairing the damaged vehicle. The learned trial Judge has pointed out one more important incredible version of the appellant-claimant not to award compensation at Rs. 67 529-00. According to the claimant after the accident he transported the damaged vehicle in a lorry from Bendapudi to cochin and got it repaired by spending Rs. 65 000-00 and after spending so much money and getting it repaired he sold the same vehicle for a sum of rs. 30 000-00. The learned trial Judge has rightly pointed out that no prudent man could sell his vehicle for Rs. 30 000-00 after spending Rs. 65 000-00 on repairs without any lapse of time. Having regard to the attendant circumstances and the kind of evidence available on record and in total absence of any documentary evidence to show that the claimant-appellant actually spent rs. 67 000-00 or more the compensation awarded by the trial Court at rs. l5 000-00 cannot be said to be unjust or unreasonable. Therefore I do not find any ground to enhance the compensation. ( 16 ) IN the result and for the foregoing reasons I make the following order: (1) C. M. A. No. 1479/89 is allowed with costs. Advocates fee Rs. 1 500-00. The order and decree under appeal are set aside. O. P. No. 84/86 is allowed in part. The claimants are entitled to total compensation of rs. 2 75 200-00 with interest at 12% per annum from the date of petition till date of realisation. Out of this compensation the first claimant- widow is entitled to Rs. 1 05 200-00 with proportionate interest and costs and the same be paid to her. The claimants 2 and 3 are minors. Therefore it is directed that their shares with proportionate interest and costs shall be deposited in any nationalised Bank in a term deposit till they attain majority. (2) CM. A. No. 1555/89 is allowed with costs. Advocates fee Rs. 1 500-00. The claimant is entitled to total compensation of Rs. 3 42 000-00 with interest at 12% per annum from the date of petition till date of realisation. (3) C. M. A. No. 695/90 is allowed in part with costs. Advocates fee is rs. 1 500-00. The claimant-appellant is entitled to compensation of rs. 15 000-00 with interest at 12% per annum from the date of petition till date of realisation. ( 17 ) IN all these three appeals-claims the respondents namely the owner and the insurer of the lorry-oil tanker bearing Regn. No. ADJ 3049 are jointly and severally liable to pay the compensation.