It is held that the claimants are entitled to a compensation of Rs.5,63,600/- (Rupees Five Lakhs, Sixty Three Thousand and Six Hundred only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.2,94,000/- (Rupees Two Lakhs and Ninety Four Thousand only). The respondents 1 and 2 are jointly and severally liable to pay the compensation amount. The 2nd respondent/Insurance Company is directed to deposit the entire compensation amount of Rs.5,63,600/- (Rupees Five Lakhs, Sixty Three Thousand and Six Hundred only), along with the accrued interest thereon, within one month from the date of judgment.

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE EIGHTEENTH DAY OF JANUARY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 2 OF 2016

Between:

1. SYED KALESHA, CHITTOOR DIST. & ANOTHER S/o Baba Saheb

Muslim

R/o Aravapalem Veedhi, Sodum Town and Mandal

Chittoor District.

2. S. Ameerunnisa W/o Syed Kalesha

Muslim

R/o Aravapalem Veedhi, Sodum Town and Mandal

Chittoor District.

...PETITIONER(S)

AND:

1. A. SREENIVASULU, NELLORE & 3 OTHERS S/o Venkataswamy

Major, Hindu

R/o D.No. 3/1256/2A1

Nagendra Nagar, Setygunta Road, Nellore Town and

District (Owner of the Lorry Bearing No. AP 07 T 1510

3. National Insurance Co. Ltd., Rep. by its Branch Manager

D.No. 16/1154, 1st Floor, Nellore

4. S. Munaf Sahib S/o Khader Basha

age not known

D.No. 13/34, Thimmanayanapale

H/o Utupalle , Sodum Mandal, Chittoor District.

5. ICICI Lombord General Insurance Co. Ltd., Rep. by its Branch Manager,

Tirupathi

Chittoor District.

...RESPONDENTS

Counsel for the Petitioner(s): SURESH KUMAR REDDY KALAVA

Counsel for the Respondents: P PHALGUNA RAO

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

M.A.C.M.A.No.2 OF 2016

Between:

1. Syed Kalesha, S/o.Baba Saheb,

 Aged 50 years, Muslim.

2. S.Ameerunnisa, W/o.Syed Kalesha,

 Aged 40 years, Muslim.

Both are R/o.Aravapalem Veedhi,

Sodum Town and Mandal,

Chittoor District.

 ….Appellants/ Claim Petitioners

 Versus

1. A.Sreenivasulu, S/o.Venkataswamy,

 Major, Hindu, R/o.D.No.3/1256/2A1,

 Nagendra Nagar, Setygunta Road,

 Nellore Town and District

 Owner of lorry No. AP 07 T 1510.

2. National Insurance Company Limited,

 Rep. By its Branch Manager,

 R/o.D.No.16/1154, 1st floor, Nellore.

3. S.Munaf Sahib, S/o.Khader Basha,

 R/o.D.No.13/34, Thimanayanapalle,

 H/o.Utupalle, Sodum Mandal,

 Chittoor District.

4. ICICI Lombard General Insurance Company Limited,

 Rep. By its Branch Manager, Triupathi,]

 Chittoor District.

….Respondents/Respondents

DATE OF JUDGMENT PRONOUNCED : 18.01.2023

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SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

 ____________________________

 B.V.L.N.CHAKRAVARTHI, J

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* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ M.A.C.M.A.No.2 OF 2016

% 18.01.2023

# Between:

1. Syed Kalesha, S/o.Baba Saheb,

 Aged 50 years, Muslim.

2. S.Ameerunnisa, W/o.Syed Kalesha,

 Aged 40 years, Muslim.

Both are R/o.Aravapalem Veedhi,

Sodum Town and Mandal,

Chittoor District.

 ….Appellants/ Claim Petitioners

 Versus

1. A.Sreenivasulu, S/o.Venkataswamy,

 Major, Hindu, R/o.d.No.3/1256/2A1,

 Nagendra Nagar, Setygunta Road,

 Nellore Town and District

 Owner of lorry No. AP 07 T 1510.

2. National Insurance Company Limited,

 Rep. By its Branch Manager,

 R/o.D.No.16/1154, 1st floor, Nellore.

3. S.Munaf Sahib, S/o.Khader Basha,

 R/o.D.No.13/34, Thimanayanapalle,

 H/o.Utupalle, Sodum Mandal,

 Chittoor District.

4. ICICI Lombard General Insurance Company Limited,

 Rep. By its Branch Manager, Triupathi,]

 Chittoor District.

 ….Respondents/Respondents.

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! Counsel for the Appellants : Sri Suresh Kumar Reddy Kalava

^ Counsel for the

 2nd Respondent : Sri P.Phalguna Rao

< Gist:

> Head Note:

? Cases referred:

1. 2008 ACJ 1488

2. 2009 ACJ 1298

3. (2017) 16 SCC 680

4. 2018 ACJ 2782

5. 2019 ACJ 1849 (SC)

6. 2022 Livelaw (SC) 734

This Court made the following:

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2 OF 2016

JUDGMENT:

 This appeal is preferred by the Appellants/claimants,

challenging the award dated 07.02.2011 passed in

M.V.O.P.No.153/2008 on the file of Motor Accidents Claims Tribunalcum-VII Addl.District Judge (Fast Track Court), Madanapalle, wherein

the Tribunal while partly allowing the petition, awarded compensation

of Rs.2,94,000/- with interest @ 6% p.a. from the date of petition, till

the date of deposit to the petitioners/claimants, for the death of Syed

Bavaji, in a motor vehicle accident.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioners filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity “the Act”)

claiming compensation of Rs.4,00,000/- on account of the death of

Syed Bavaji, who is son of the petitioners in a motor vehicle accident

that occurred on 19.04.2008.

4. The facts show that the petitioners are the parents of deceased

Syed Bavaji. On 19.04.2008 at about 06.30 a.m., the deceased Syed

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Bavaji, who was driver of Tempo bearing No.AP 03X 2522 was

returning to Srikalahasthi after unloading the cows at Satyavedu and

when the vehicle reached near Tangellapalem on the extreme left side

of the road, one lorry bearing No.AP7T 1510 was coming opposite, and

the driver drove the said lorry in a rash and negligent manner, without

following the traffic rules and regulations, dashed against the tempo,

as a result of which, the deceased Syed Bavaji and two others

sustained fatal injuries and one K.A.Gurubalan also died on the spot.

Bavaji and other injured were shifted to Government Hospital through

ambulance and on the way to hospital, Syed Bavaji died due to the

injuries sustained by him in the accident. Syed Bavaji was only the

son to the petitioners and they were very affectionate towards him and

death of their beloved son caused them frustration and depression.

The deceased used to earn Rs.4,000/- per month and also used to get

Rs.100/- per day as batta. The petitioners spent huge amount for

funeral and incidental expenses. The Station House Officer,

B.N.Kandrika P.S. registered Cr.No.39/2008 for the offence punishable

U/s.304-A of Indian Penal Code against the driver of the lorry. The

driver of the said lorry has valid and effective driving license to drive

the crime lorry. The 1st respondent insured the said lorry with the

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2nd respondent and the insurance policy was in force at the time of

accident.

5. Before, the Tribunal, the 2nd respondent/Insurance Company

filed counter denying the material averments of the petition, and

contended that the amount of compensation claimed by the petitioners

is excessive and arbitrary. The liability of 2nd respondent is subject to

existence of policy terms and conditions. The accident was occurred

only due to the negligence of the driver of Tempo bearing No.AP 03X

2522 in a rash and negligent manner without observing the road traffic

rules and that it is not liable to pay any compensation to the

petitioners.

6. The 4th respondent/ICICI Lombard General Insurance Company,

Tirupathi, filed written statement resisting, while traversing the

material averments with regard to proof of age, avocation, monthly

earnings of the deceased, manner of accident, rash and negligence on

the part of the driver of the offending vehicle, and liability to pay

compensation, contended that the 1st respondent has not followed the

rules and regulations as laid down in section 3 of M.V.Act, 1988 and

no owner or person incharge of motor vehicle shall cause permit any

person who does not satisfy the provisions of sections 3 and 4 of

M.V.Act to drive the vehicle, that the Police Officer, who investigated

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the offence failed to follow the rule laid down in section 158(6) of

M.V.Act 1988, that a Police Officer shall forward a copy of any

information regarding the accident to the claims Tribunal having

jurisdiction and to the concerned insurer, that the person who drove

the vehicle of the 3rd respondent was not having any valid driving

license at the time of accident and that the accident occurred only due

to rash and negligent driving of lorry bearing No.AP 7T 1510 only.

The respondents No.1 and 3 remained exparte.

7. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident occurred due to rash and negligent

driving of lorry bearing No.AP 7T 1510 involved resulting the

death of Bavaji?

2. Whether the petitioners are entitled for compensation? If so,

by whom and to what amount?

3. To what relief?

8. To substantiate their claim, the petitioners examined P.W-1 and

got marked Exs.A-1 to A-6. On behalf of the respondents, no witnesses

were examined, however Ex.B-1 copy of policy was marked by consent

on behalf of the 2nd respondent.

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9. The Tribunal, taking into consideration the evidence of P.W-1,

coupled with Exs.A-1 to A-6, held that the accident took place due to

the rash and negligent driving of the lorry driver, and further, taking

into consideration the evidence of P.W-1, corroborated by Exs.A-1 to

A-6, awarded a compensation of Rs.2,94,000/- with interest @ 6% p.a.

from the date of petition, till the date of deposit against the

respondents 1 and 2 only and petition against the respondents No.3

and 4 is dismissed.

10. This is an appeal filed by the claimants, contending that the

Tribunal erred in fixing the income of the deceased at Rs.80/- per day

only, instead of Rs.100/- per day at least at the time of accident, which

was occurred in the year 2008, though the deceased was working as

tempo driver, and further, the Tribunal grossly erred in applying

multiplier 15 only instead of 18, though the age of the deceased was

22 years at the time of accident, and thereby the Tribunal failed to

award just compensation entitled by the claimants.

11. In the light of above contentions in the appeal, the points that

would arise for consideration in the appeal are as under:

1. Whether the Tribunal failed to award just compensation to the

claimants?

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 2. To what relief?

12. POINT No.1:

 The case of the claimants, who are parents of the deceased Syed

Bavaji, who is aged 22 years at the time of accident and the deceased

was working as driver of a tempo motor vehicle and earning Rs.4,000/-

per month, apart from Rs.100/- per day as batta as driver, and on

19.04.2008 at 06.30 a.m. he was returning to Srikalahasthi after

unloading cows at Satyaveedu and while so, he reached a place near

Thangellapalem village, and at that time, the crime vehicle i.e., lorry

bearing No.AP 70 1550 is coming in opposite direction, and the driver

of the lorry drove the lorry in a rash and negligent manner and dashed

the tempo, and as a result, the deceased and two others travelling in

the tempo suffered fatal injuries, and one Mr.K.A.Gurubalan died on

the spot and the deceased was shifted to Government Hospital, and on

the way to hospital, he died due to the injuries sustained in the

accident, and the claimants are depending upon the deceased, and

therefore, they are entitled to compensation towards loss of

dependency and other heads.

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13. The insurer of the lorry i.e., 2nd respondent opposed the claim on

the ground that the claim is excessive, and that the accident was

occurred due to the negligence of the deceased.

14. The Tribunal upon consideration of the evidence, and other

material available in the case, held that the accident was occurred due

to rash and negligent driving of the driver of the lorry. The 1st

respondent, who is the owner of the lorry, and 2nd respondent, who is

insurer of the lorry, did not challenge the said finding of the Tribunal.

15. The claimants contended that the deceased was earning

Rs.4,000/- per month towards salary and also getting Rs.100/- per

day as batta. The Tribunal considered the evidence and fixed Rs.80/-

per day as established income of the deceased. The contention of the

claimants is that the amount fixed by the Tribunal is very low, since

the deceased was working as driver of the tempo, and it should be at

least Rs.100/- per day, which is a bare minimum amount, in the year

2008.

16. The evidence and material on record would establish that the

deceased was working as driver of the tempo taxi at the time of

accident occurred on 19.04.2008. In those circumstances, this Court

is of the opinion that the income of the deceased can be fixed at

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Rs.100/- per day instead of Rs.80/- per day basing on the established

income of various professions and works in the year 2008, in view of

the judgment of the Hon’ble Apex Court in the case of Laxmi Devi and

others Vs. Mohammad Tabbar and another1. Therefore, the monthly

income of the deceased would be at Rs.100 x 30 = Rs.3,000/- per

month.

17. The Tribunal fixed the age of the deceased as 22 years, but

applied multiplier ‘15’, considering the age of the parents, ignoring the

principles laid down by the Hon’ble Apex Court in the case of Sarla

Verma and others Vs. Delhi Road Transport Corporation and

another2. The multiplier applicable in this case is ‘18’, in view of the

fact that the age of the deceased was 22 years at the time of accident.

Further, the Tribunal deducted 1/3 only towards personal expenses of

the deceased, instead of ½, inspite of principles laid down by the

Hon’ble Apex Court in Sarla Verma’s case. Therefore, the monthly

income of the deceased would be at Rs.3,000 – 1,500 = Rs.1,500/-,

and the annual income of the deceased would be Rs.1,500 x 12 =

Rs.18,000/-.

1

 2008 ACJ 1488

2

 2009 ACJ 1298

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18. The claimants are also entitled to loss of future prospects in the

light of judgment of Hon’ble Apex Court in National Insurance

Company Limited and Pranay Sethi and others3, on the established

income of the deceased. Therefore, the total amount of compensation

entitled by the appellants is 1) loss of dependency comes to Rs.18,000

x 18 = Rs.3,24,000/-, and 2) amount entitled towards loss of future

prospects @ 40%, since the deceased is below 40 years on

Rs.3,24,000/- would be Rs.3,24,000 x 40/100 = Rs.1,29,600/-. The

claimants are also entitled to Rs.15,000/- towards funeral expenses

and Rs.15,000/- towards loss of estate. Therefore, the total amount of

compensation entitled by the appellants would come to Rs.3,24,000 +

1,29,600 + 30,000 = Rs.4,83,600/-.

19. The Hon’ble Apex Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and

others4 held in para 8.7 as follows:

“A Constitution Bench of this Court in Pranay Sethi (supra) dealt

with the various heads under which compensation is to be

awarded in a death case. One of these heads is Loss of

Consortium.

3

 (2017) 16 SCC 680

4

 2018 ACJ 2782

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In legal parlance, consortium is a compendious term which

encompasses spousal consortium, parental consortium, and filial

consortium.

The right to consortium would include the company, care, help,

comfort, guidance, solace and affection of the deceased, which is

a loss to his family. With respect to a spouse, it would include

sexual relation with the deceased spouse.

3 Spousal consortium is generally defined as rights pertaining to

the relationship of a husband−wife which allows compensation to

the surviving spouse for loss of company, society, co−

operation, affection, and aid of the other in every conjugal relation.

4 Parental consortium is granted to the child upon the premature

death of a parent, for loss of parental aid, protection, affection,

society, discipline, guidance and training. Filial consortium is the

right of the parents to compensation in the case of an accidental

death of a child. An accident leading to the death of a child

causes great shock and agony to the parents and 3 Rajesh and

Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54

4 BLACK'S LAW DICTIONARY (5 the d. 1979)

family of the deceased. The greatest agony for a parent is to lose

their child during their lifetime. Children are valued for their love,

affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the

status and worth of actual relationships. Modern jurisdictions

world−over have recognized that the value of a childs consortium

far exceeds the economic value of the compensation awarded in

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the case of the death of a child. Most jurisdictions therefore permit

parents to be awarded compensation under loss of consortium on

the death of a child. The amount awarded to the parents is a

compensation for loss of the love, affection, care and

companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at

providing relief to the victims or their families, in cases of genuine

claims. In case where a parent has lost their minor child, or

unmarried son or daughter, the parents are entitled to be

awarded loss of consortium under the head of Filial Consortium.

Parental Consortium is awarded to children who lose their parents

in motor vehicle accidents under the Act.

A few High Courts have awarded compensation on this count5.

However, there was no clarity with 5 Rajasthan High Court in

Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors

2017 (4) RLW 3368 (Raj);

Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep

Kumar & 6 Ors. respect to the principles on which compensation

could be awarded on loss of Filial Consortium.

The amount of compensation to be awarded as consortium will be

governed by the principles of awarding compensation under Loss

of Consortium as laid down in Pranay Sethi (supra).

In the present case, we deem it appropriate to award the father

and the sister of the deceased, an amount of Rs.40,000 each for

loss of Filial Consortium.”

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20. In the case on hand, the claimants are parents of the deceased,

and the deceased is their unmarried son. Therefore, the claimants are

entitled to Rs.40,000/- each towards consortium as per the above

judgment of the Hon’ble Apex Court. Therefore, the claimants are

entitled to a total compensation of Rs.4,83,600 + 40,000 + 40,000 =

Rs.5,63,600/- (Rupees Five Lakhs, Sixty Three Thousand and Six

Hundred only).

21. The claimant is entitled to interest on the above said amount

reasonable as per section 174 of M.V.Act. This Court is of the opinion

that interest can be awarded @ 7.5% p.a. on the compensation

amount, from the date of petition, till the date of deposit, in view of the

judgment of the Hon’ble Apex Court in the case of National Insurance

Company Limited Vs. Mannat Johal5.

22. The Hon’ble Apex Court in the case of Mona Baghel and others

Vs. Sajjan Singh Yadaav and others6, held that in the matter of

compensation, the amount actually due and payable is to be awarded

despite the claimants having sought for a lesser amount and the claim

petition being valued at a lesser value. The law is well settled that in

5

 2019 ACJ 1849 (SC)

6

 2022 LiveLaw (SC) 734

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the matter of compensation, the amount actually due and payable is to

be awarded despite the claimants having sought for a lesser amount

and the claim petition being valued at a lesser value. Therefore, though

the claimants sought for a lesser amount, and the claim petition being

valued at lesser value for Rs.4,00,000/-, the amount actually due and

payable is to be awarded is Rs.5,63,600/-. In that view of the matter,

the award passed by the Tribunal is liable to be modified.

23. The claimants are entitled to interest on Rs.5,63,600/-

reasonable as per section 174 of M.V.Act. This Court is of the opinion

that interest can be awarded @ 7.5% p.a. on the compensation

amount, from the date of petition, till the date of deposit, in view of the

judgment of the Hon’ble Apex Court in the case of National Insurance

Company Limited Vs. Mannat Johal7. Accordingly, this point is

answered.

24. POINT No.2: To what relief?

 In the light of the finding on point No.1, the order passed by the

Tribunal has to be modified.

7

 2019 ACJ 1849 (SC)

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25. In the result, the appeal is allowed, modifying the award dated

07.02.2011 passed in M.V.O.P.No.153/2008 on the file of Motor

Accidents Claims Tribunal-cum-VII Addl. District Judge (Fast Track

Court), Madanapalle. It is held that the claimants are entitled to a

compensation of Rs.5,63,600/- (Rupees Five Lakhs, Sixty Three

Thousand and Six Hundred only) with interest @ 7.5% p.a. from the

date of petition, till the date of deposit, instead of Rs.2,94,000/-

(Rupees Two Lakhs and Ninety Four Thousand only). The respondents

1 and 2 are jointly and severally liable to pay the compensation

amount. The 2nd respondent/Insurance Company is directed to

deposit the entire compensation amount of Rs.5,63,600/- (Rupees Five

Lakhs, Sixty Three Thousand and Six Hundred only), along with the

accrued interest thereon, within one month from the date of judgment.

26. In the event of the 2nd respondent/Insurance Company already

deposited some amount, the said amount has to be excluded, and the

balance amount shall be deposited within one month from the date of

judgment. On such deposit, the 1st appellant/1st claimant being father

of the deceased is permitted to withdraw an amount of Rs.2,81,800/-

(Rupees Two Lakhs Eighty One Thousand and Eight Hundred only)

along with accrued interest thereon and, the 2nd appellant /

2nd claimant being mother of the deceased is permitted to withdraw an

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amount of Rs.2,81,800/- (Rupees Two Lakhs Eighty One Thousand

and Eight Hundred only) along with accrued interest thereon. The

appellants/claimants are directed to pay the required court fee before

the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989, within one

month from the date of receipt of certified copy of judgment. There

shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_________________________________

B.V.L.N.CHAKRAVARTHI, J

18.01.2023

psk

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HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

M.A.C.M.A.No.2 OF 2016

Note: Mark L.R.Copy

psk

18th January, 2023

psk

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