THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.428 of 2009

25-03-2014

Kunche Nageswara Rao and another.... Appellants

G. Dayanand and another..... Respondents

Counsel for Appellants                  : Sri B. Parameswara Rao

Counsel for Respondent No.2: Sri K. Kishor Kumar Reddy

<Gist:

>Head Note:

?Cases referred:
1) AIR 2001 SC 3218
2) 2013 ACJ 1403
3) 2004 (5) ALT 515 = 2004(3) ALD NOC 325
4) 1994 (3) ALT 58 (D.B.)

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        

M.A.C.M.A. No.428 of 2009

JUDGMENT:  
        Challenging the award dated 09.02.2005 in O.P.No.208 of 2002 passed by the
Chairman, M.A.C.T-cum-VI Additional Metropolitan Sessions Judge, Secunderabad  
(for short "the Tribunal"), the claimants preferred the instant appeal.
2)      The factual matrix of the case is thus:
a) The first claimant is the husband and the second claimant is the son of the
deceased - K. Balasarswathi.  Their case is that on 07.03.2002 at about 11:30am,
while the deceased was walking on the left side of the road at Alugaddabhavi
Railway Bridge, one lorry bearing No.AP 9 U 3956 (Diesel Tanker) came behind her
being driven by its driver at high speed and in a rash and negligent manner and
dashed and ran over on the lower abdomen of the deceased.  In the resultant
accident, the deceased received multiple injuries and immediately she was
shifted to Gandhi Hospital, Secunderabad and while undergoing treatment she
died.  The claimants filed O.P.No.208 of 2002 against respondents 1 and 2 who
are the owner and insurer of the offending lorry and claimed Rs.3,00,000/- as
compensation under different heads mentioned in the O.P.
b) Respondent No.1 remained ex parte.
c) Respondent No.2/Insurance Company filed counter and opposed the material
averments made in the petition.  R.2 denied the manner of occurrence of the
accident and contended that had the deceased been little careful while walking,
the accident would not have occurred.  R.2 urged to put the claimants in strict
proof that the driver of the offending lorry had valid driving licence at the
relevant point of time. R.2 submitted that the policy particulars furnished by
the petitioners in respect of the lorry bearing No.AP 9 U 3956 (diesel tanker)
are subject to verification.  R.2 specifically denied the age and avocation of
the deceased and urged to put the petitioners in strict proof of the same.
Thus, R.2 prayed for dismissal of the O.P.
d) During trial P.Ws.1 and 2 were examined and Exs.A.1 to A.7 were marked on
behalf of claimants.  Policy copy filed by 2nd respondent was marked as Ex.B.1.
e)  Award would show that Tribunal having relied upon the oral evidence of PW.2-
de facto complainant-cum-eye witness coupled with Ex.A.1-F.I.R, Ex.A.2-charge
sheet, Ex.A.3-inquest report and Ex.A.5-M.V.I report held that the accident was
occurred due to the rash and negligent driving of the driver of the lorry
bearing No.AP 9 U 3956.
f) Regarding quantum of compensation, the Tribunal considering that the deceased
was in the age group of 45 to 50 years, accepted '12' as multiplier. Further,
considering that she was a non-earning member, quantified her services to the
family at Rs.15,000/- p.a.  Deducting 1/3rd from it, the Tribunal multiplied the
balance amount of Rs.10,000/- with '12' and arrived Rs.1,20,000/- as the net
loss of services.  Apart from it, the Tribunal granted Rs.15,000/- towards loss
of consortium to the 1st petitioner and another Rs.15,000/- towards loss of
estate and love and affection and thus, granted Rs.1,50,000/- in all.
Hence, the appeal by claimants.
3)      Heard arguments of Sri B. Parameswara Rao, learned counsel for appellants
and Sri K. Kishor Kumar Reddy, learned counsel for 2nd respondent/ Insurance
Company.
4 a)    Criticizing the award, learned counsel for appellant firstly argued that
the Tribunal did not grant compensation for meeting funeral expenditure.
b)      Secondly, he argued that the Tribunal erred in quantifying the household
services of the deceased at Rs.10,000/- p.a.  He argued that in fact the
deceased was doing saree business and earning Rs.3,000/- p.m and so the Tribunal
ought to have taken that amount for computation of loss of earnings.  Even
otherwise, in the case of Lata Wadhwa and others vs. State of Bihar and others1,
the Supreme Court held that the services of a housewife in the age group of 34
to 59 years can be taken as Rs.36,000/- p.a and hence the Tribunal ought to have
accepted the services of the deceased at Rs.3,000/- p.m.
c)      Thirdly, he argued that claimants are entitled to Rs.1,00,000/- for loss
of consortium basing on Rajesh and others vs. Rajbir Singh and others2 case.
d)      Finally, he argued that the interest at 6% p.a granted by the Tribunal was
too low.
He thus prayed to allow the appeal and grant just and reasonable compensation.
5)      Per contra, while supporting the award passed by the Tribunal, learned
counsel for R.2/Insurance Company argued that the Tribunal granted Rs.15,000/-
towards loss of consortium which is just and reasonable.  Regarding the services
of the deceased, he argued that though the claimants pleaded that the deceased
was doing Sarees business and earning Rs.3,000/- p.m, they could not produce any
evidence and hence, the Tribunal rightly rejected the alleged income of the
deceased and quantified the household services of the deceased at Rs.10,000/-
p.a and assessed the compensation. Hence the Tribunal cannot be found fault
with.  Nextly, he argued that the Tribunal having relied upon the decision
reported in United India Insurance Company Limited and another vs. Dandugula
Bheem Bai @ Bheemakka and others3 rightly held that the claimants are not
entitled to funeral expenditure.  Regarding rate of interest, learned counsel
argued that the Tribunal granted interest at 6% p.a which was prevailing in the
nationalized banks by then.
He thus prayed to dismiss the appeal.
6)      In the light of above divergent arguments, the point for determination in
this appeal is:
"Whether the compensation granted by the Tribunal is just and reasonable and
needs any enhancement?"  
7)   POINT: Sofaras the income of the deceased is concerned, the Tribunal
observed that except the own assertion of PW.1, there is no documentary evidence
showing her earnings in Sarees business and accordingly rejected the so called
earnings of the deceased.  Then the Tribunal embarked upon quantifying her
household services in terms of money. The Tribunal quantified her household
services at Rs.10,000/- p.a.  Before the Tribunal, Lata Wadhwa's case(1 Supra)
was presented but it did not incline to consider the said decision on the ground
that the said case was a fire accident case where many persons died in TISCO and
it was not a motor vehicle accident.  It held that the said decision would have
no application.  Accordingly, the Tribunal assessed the services of the deceased
at Rs.10,000/- p.a and computed the compensation.  I find no irregularity or
illegality in the said assessment.
8)      Then non-granting of funeral expenses is concerned, the Tribunal it
appears, has relied upon a decision reported in Dandugula Bheem Bai @ Bheemakka  
(3 Supra) and held that the claimants are not entitled to funeral expenditure.
In the said decision (Dandugula Bheem Bai @ Bheemakka (3 supra)), a learned
Judge of this Court relied upon a decision reported in A.P.S.R.T.C vs. Gali
Aruna and others4 wherein it was held as follows:
"in a petition filed Under Section 166, claimants are not entitled to funeral
expenses. It is well known that compensation Under Section 166 of the Act is
awarded to compensate the loss due to untimely death of the victim. Funeral
expenses have to be incurred irrespective of the fact whether the death is
natural or accidental. So respondents 1 to 8 are not entitled to funeral
expenses though, Schedule II of the Act provides for award of funeral expenses
in a claim petition Under Section 163-A of the Act."
9)      I am in respectful disagreement with the above decisions for two reasons.
Firstly, it is true that the relatives of a deceased have to incur funeral
expenditure whether the death is natural or accidental.  However on that count
alone, funeral expenditure cannot be denied on the premise that there is no
monetary loss in real terms to the family members of the deceased.  Practically
speaking, sometimes the funeral expenditure will be more in case of accidental
deaths than in natural deaths.  Due to mutilation of body, its decomposition and
dreaded appearance due to ghastly accident, sometimes the relatives of the
deceased may find it difficult to get the men support to perform the last rites
as per the religion the deceased belongs to.  In such cases they have to spend
extra money to perform the last rites satisfactorily.  Added to it, the agony of
the relatives to perform the funeral rites of the deceased who met with untimely
death has also to be taken into consideration.  Hence they deserve funeral
expenditure.  Secondly for the reason that in subsequent decisions the Hon'ble
Apex Court recognized funeral expenditure as one of the items of compensation in
motor vehicle accident cases and accordingly, granted the said item of
compensation.  In the recent decision in Rajesh's case (2 Supra), Hon'ble Apex
Court held thus:
"21. We may also take judicial notice of the fact that the Tribunals have been
quite frugal with regard to award of compensation under the head 'Funeral
Expenses'. The 'Price Index', it is a fact, has gone up in that regard also. The
head 'Funeral Expenses' does not mean the fee paid in the crematorium or the fee
paid for the use of space in the cemetery. There are many other expenses in
connection with funeral and, if the deceased is follower of any particular
religion, there are several religious practices and conventions pursuant to
death in a family. All those are quite expensive. Therefore, we are of the view
that it will be just, fair and equitable, under the head of 'Funeral Expenses',
in the absence of evidence to the contrary for higher expenses, to award at
least an amount of Rs 25,000/-."
10)     So it is needless to say that Hon'ble Apex Court opined that just
compensation has to be awarded under the head funeral expenses in the cases of
accidental deaths.  In view of above reasons, particularly in view of Hon'ble
Apex Court decision, the aforesaid decisions of our High Court cannot be
accepted.  Accordingly, the claimants are entitled to Rs.25,000/-.
11)     The next contention is that the Tribunal granted only a meager sum of
Rs.15,000/- towards loss of consortium and in the light of decision of Hon'ble
Apex Court in Rajesh's case (2 Supra), the 1st claimant deserves Rs.1,00,000/-.
Considering the said decision and also the fact that the 1st claimant lost his
camaraderie in his middle age, compensation for loss of consortium is enhanced
from Rs.15,000/- to Rs.30,000/-.
12)     Sofaras the other contention that the rate of interest is low, I find no
substance as the Tribunal taking the prevailing rate of interest in the
nationalized banks allowed 6 % p.a.  Thus, the claimants are entitled to total
compensation of Rs.1,90,000/- under different heads as follows:
        Loss of services of the deceased        Rs.1,20,000/-
        Funeral expenses                                Rs.   25,000/-
        Loss of consortium                      Rs.   30,000/-
        Loss of estate and love and affection   Rs.   15,000/-
      _______________
                                Total                   Rs.1,90,000/-
      _______________
So the compensation is enhanced by Rs.40,000/- (Rs.1,90,000/- minus
Rs.1,50,000/-)
13)     In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.40,000/- with proportionate costs and
simple interest @ 6% per annum from the date of O.P till the date of
realization.
b) Out of the enhanced compensation amount of Rs.40,000/-, 1st claimant is
exclusively entitled to Rs.15,000/- which is the enhanced amount towards loss of
consortium. The balance amount of Rs.25,000/- shall be shared by the claimants 1
and 2 in the same ratio fixed by the Tribunal in its award.
c) The respondents are directed to deposit the enhanced compensation amount
within one month from the date of this judgment, failing which execution can be
taken out against them.
d) No order as to costs.
          As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________  
U.DURGA PRASAD RAO, J    
25.03.2014.

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