ACCIDENT CLAIM - MULTIPLIER 16 NOT DISTURBED AS 50 % NOT GIVEN- MORE THAN 5TRAVELLED IN GEEP NOT PROVED - CLAIM CONFIRMED = PETITIONER RESPONDENT UNITED INDIA INSURANCE CO.LTD VS K.BUCHAMMA & 4 ORS= http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=MACMA&mno=2085&year=2013

MACMA 2085 / 2013

CMASR 52638 / 2002
PETITIONERRESPONDENT
UNITED INDIA INSURANCE CO.LTD  VSK.BUCHAMMA & 4 ORS
PET.ADV. : RATNAMRESP.ADV. : ALLADI RAVINDER
SUBJECT: MACMA(DEATH)DISTRICT:  WARANGAL
THOUGH 16 TIMES MULTIPLIER TAKEN, NO 50 PER CENT ENHANCEMENT GIVEN FOR PROSPECT OF FUTURE INCOME AS PER SARALA VERMA
the Tribunal has applied the wrong multiplier “16” while assessing the earnings of the deceased, it is to be noticed that the deceased was earning Rs.7,632/- per month, which was proved by Ex.A7, by working as a coal filler in Singareni Collieries. At the same time, as per the judgment of the Apex Court inSarla Verma’s case, it is true that for the age group of 36-40 years, the relevant multiplier is “15” but not “16” as pointed out by the learned counsel for the appellant, but as 50% of income was not added on account of future prospects, we are not inclined to interfere with the award on this ground.

NO EVIDENCE MORE THAN 5 TRAVELED IN GEEP - NO INVESTIGATOR APPOINTED
 Coming to the second contention of the learned counsel for the appellant that the conditions of the policy were violated, it is to be noticed that the Insurance Company has not appointed any investigator to investigate into the accident so as to ascertain the number of persons traveling in the jeep on the date of accident. Except the evidence of PW.1, which is relied upon, there is no other acceptable evidence to show that more number of persons were traveling in the jeep contrary to the conditions of the policy. Further, it is to be noticed that PW.1 is not an eyewitness to the occurrence. In any event, this plea cannot be accepted as much as the appeal was already dismissed against the owner of the vehicle by order, dated 09.07.2013, and no steps have been taken against such dismissal order.
THE HON’BLE SRI JUSTICE R.SUBHASH REDDY
AND
THE HON’BLE SRI JUSTICE A.V.SESHA SAI


MACMA.No.2085 of 2013



JUDGMENT:(Per Hon’ble Sri Justice R.Subhash Reddy)


          This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) by the United India Insurance Company Limited, aggrieved by the award, dated 28.03.2002, passed by the Motor Accident Claims Tribunal-cum-I Additional District Judge, Warangal in O.P.No.157 of 2001.


          By the aforesaid order, the Tribunal allowed the O.P. filed by the respondents 1 to 4/claimants under Section 166 of the Act, awarding compensation of Rs.10,13,896/- with interest @ 9 % p.a. as against the claim of Rs.10,50,000/-. Claimant No.1 is the wife, claimants 2 & 3 are the children and claimant No.4 is the mother of one Sri Sanjeevaiah (hereinafter be referred as ‘the deceased), who died in a motor vehicle accident that occurred on 15.02.2000 near Kakatiya Talkies, Parkal.


          It was the case of the respondents 1 to 4/claimants before the Tribunal that on 15.02.2000, while the deceased along with some others was traveling in a jeep bearing No. AMM 6500, and when the jeep reached Kakatiya Talkies, Parkal, the driver of the jeep drove the vehicle in a rash and negligent manner and in the process of overtaking another jeep, lost control over the jeep and applied sudden breaks, on account of which, the offending vehicle turned turtle, resulting severe injuries to the deceased and he was shifted to the MGM Hospital, Warangal, where he died on the same day of the accident. The police, Parkal registered a case in Crime No.32 of 2000 under Section 304-A of Indian Penal Code against the driver of the offending jeep.

          It was the further case of the claimants that the deceased was aged 38 years at the time of his death and he was working as a Coal filler in Singareni Collieries, a public sector company, and drawing salary of Rs.7,632/- per month at the time of his death. On the ground that due to sudden demise of the deceased, they lost the dependency, the claimants filed the claim petition.

          The appellant/Insurance Company filed counter affidavit denying the various allegations made by the claimants and disputing the quantum of maintenance.

          Before the Tribunal, on behalf of the claimants, PWs.1 and 2 were examined and Exs.A1 to A10 were marked. On behalf of the appellant, RW.1 was examined and Ex.B1-Insurance Policy was marked.


          The Tribunal, having appreciated the oral and documentary evidence on record, recorded a finding that the accident occurred on account of the rash and negligent driving of the driver of the jeep.

          Coming to the quantum of compensation, the Tribunal, relying on employment certificate marked as Ex.A6 and the salary certificate marked as Ex.A7, has taken the monthly earnings of the deceased at Rs.7,632/-. After deducting 1/3rd of the salary towards personal expenses, his contribution to the family was arrived at Rs.5,088/- per month, which comes to Rs.61,056/- per annum, and by applying the multiplier “16”, the Tribunal awarded a sum of Rs.9,76,896/- towards loss of earnings. In addition to that, funeral expenses, loss of estate, loss of consortium, etc. were awarded. Thus, total compensation of Rs.10,13,896/- with interest @ 9% p.a. was granted.

          In this appeal, the learned counsel for the appellant/Insurance Company contended that as per the judgment of the Apex Court in Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another[1]the multiplier to be applied in the case on hand is “15”, but the Tribunal has wrongly applied the multiplier “16”. He also submitted that as the conditions of the policy were violated by allowing 10 persons to travel in the jeep as against the capacity of the jeep, which was authorized to carry 5 passengers and one driver, the appellant is not liable to pay compensation.

          On the other hand, learned counsel appearing for the respondents/claimants submitted that while assessing the loss of dependency, no amount towards future prospects was awarded. He submitted that in view of the judgment of the Apex Court in Sarla Verma’s case (supra), as the age of the deceased is below 40 years, 50% of income is to be added towards future prospects in arriving the multiplicand, but no such amount was awarded by the Tribunal. He further submitted that there is no supporting evidence to prove that the conditions of the policy are violated and, in any event, as the appeal is already dismissed against the owner of the vehicle, it is not open to the appellant to raise such plea at this point of time.

          With regard to the first contention of the learned counsel for the appellant, though it is the case of the appellant that the Tribunal has applied the wrong multiplier “16” while assessing the earnings of the deceased, it is to be noticed that the deceased was earning Rs.7,632/- per month, which was proved by Ex.A7, by working as a coal filler in Singareni Collieries. At the same time, as per the judgment of the Apex Court inSarla Verma’s case, it is true that for the age group of 36-40 years, the relevant multiplier is “15” but not “16” as pointed out by the learned counsel for the appellant, but as 50% of income was not added on account of future prospects, we are not inclined to interfere with the award on this ground.

          Coming to the second contention of the learned counsel for the appellant that the conditions of the policy were violated, it is to be noticed that the Insurance Company has not appointed any investigator to investigate into the accident so as to ascertain the number of persons traveling in the jeep on the date of accident. Except the evidence of PW.1, which is relied upon, there is no other acceptable evidence to show that more number of persons were traveling in the jeep contrary to the conditions of the policy. Further, it is to be noticed that PW.1 is not an eyewitness to the occurrence. In any event, this plea cannot be accepted as much as the appeal was already dismissed against the owner of the vehicle by order, dated 09.07.2013, and no steps have been taken against such dismissal order.

          For the aforesaid reasons, we do not find any merit in this appeal so as to interfere with the award of the Tribunal.

Accordingly, the appeal is dismissed. No order as to costs.

Miscellaneous petitions, if any, pending in this appeal shall stand closed.


________________________

JUSTICE R.SUBHASH REDDY




____________________

JUSTICE A.V.SESHA SAI

08.10.2013
v v








[1] (2009) 6 SCC 121

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515