THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.Nos. 304 & 570 of 2005 -03-2010 M.A.C.M.A.No.304 of 2005 Between: National Insurance Co. Ltd., Hubli. ……….Appellant And B.Sumathi and others. ………Respondents M.A.C.M.A.No.570 of 2005 Between: B.Sumathi and others. ……….Appellant And National Insurance Co. Ltd., Hubli. ………Respondents THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A.Nos. 304 & 570 of 2005 COMMON JUDGMENT: (Per Hon’ble Sri Justice Noushad Ali) Both these appeals arise out of the same judgment in M.V.O.P.No.204 of 2000, dated 26-10-2004, on the file of the Additional Chairman, Motor Accidents Claims Tribunal-cum-XX Additional Chief Judge, at Secunderabad. 2. C.M.A.No.304 of 2005 is filed by the National Insurance Company Limited, Hubli, (for brevity ‘Insurance Company’) challenging the award in M.V.O.P.No.204 of 2000, whereas C.M.A.No.570 of 2005 is filed by the claimants seeking enhancement of compensation awarded in the aforesaid M.V.O.P. Both the appeals are clubbed and heard together and being disposed of by this common judgment. 3. In this common judgment, the parties are referred to as claimants and the Insurance Company, for the sake convenience. 4. The claimants filed Original Petition under Section 166 of the Motor Vehicles Act, 1988 (for brevity ‘the Act, 1988’) seeking compensation of Rs.50,00,000/- due to the death of one B. Ravi Prakash Girijanath. The 1st claimant is the wife and claimants 2 and 3 are the daughters of the deceased. 5. On 20-02-2000, when the deceased was travelling in an ambassador car bearing Regn. No.MYH 9525, a lorry bearing Regn. No.CTX 8489 came in the opposite direction and dashed against the car resulting the death of the deceased on the spot. The 5th respondent (2nd respondent in O.P.) is the owner and driver of the lorry. The deceased was said to be working as General Manager in Pandavapura Sakkare Kharkane Limited at Pandavapura of R.S. Mandhya District in Karnataka State. The claimants claimed that the deceased was eminent in his profession and worked in various sugar industries in various states of India and abroad. He was having vast experience in the sugar technology. He was drawing a salary of Rs.22,000/- per month in addition to free accommodation, phone, car and servant etc. Just before the accident, he secured appointment in Shamanur Sugars Limited, Bangalore, on a salary of Rs.40,000/- per month. The claimants being dependents on the deceased, therefore, claimed compensation of Rs.50,00,000/- with interest at 24% per annum. 6. The New India Insurance Corporation was the respondent No.1 in the O.P. The O.P. was dismissed against it. The 2nd respondent in the O.P., who is the owner and driver of the crime vehicle, remained ex parte. 7. The Insurance Company (appellant in C.M.A.No.304 of 2005) which was impleaded in the Original Petition vide orders in I.A.No.2330 of 2001, dated 04-04-2002, resisted the claim, inter alia, on the ground that the driver of the lorry was not responsible for the accident and that the accident took place on account of rash and negligent driving of the car driver. As the owner of the car was not impleaded, the petition was bad for non-joinder of necessary parties. 8. The Tribunal formulated the following issues: 1. Whether the accident has taken place due to the rash and negligent driving of the lorry bearing No.CTX 8489 by its driver? 2. What is the compensation that can be awarded as compensation and against whom? 3. To what relief? 9. On consideration of the evidence, the Tribunal partly allowed the petition with proportionate costs against the Insurance Company and the owner of the vehicle i.e. 5th respondent herein. The Tribunal awarded a sum of Rs.15,19,130/- towards loss of dependency, Rs.15,000/- towards loss of estate and Rs.15,000/- towards consortium to the 1st claimant, in total, the Tribunal awarded a sum of Rs.15,49,130/- with interest at 6% per annum from the date of petition i.e. 30-08-2000 till the date of deposit on the amount. 10. Heard. 11. Sri T.Ramulu, learned counsel appearing for the appellant, Insurance Company, contended that the Tribunal erred in relying on the income tax returns marked under Exs.A-52 and A-53. He further contended that since the O.P. was filed under Section 166 of the Act, 1988, the multiplier prescribed under Section 163-A of the Act, 1988 is not applicable. He further contended that the Tribunal should have applied ‘7’ multiplier instead of ‘10’ multiplier. He further contended that the accident was due to the composite negligence of both the vehicles and the rate of interest should not have been granted from the date of petition i.e. 30-08-2000 since the appellant-Insurance Company was impleaded only on 04-04-2002. He further contended that the amount awarded is excessive. 12. On the other hand, the learned counsel Sri Subrahmanyam Kurella, appearing for the claimants, contended that the accident took place only on account of rash and negligent driving of the driver of the lorry; that the Tribunal failed to take into consideration the relevant facts as to the income of the deceased and his future prospects; that the Tribunal ignored Exs.A-24 to A-52; that the Tribunal should have applied ‘15’ multiplier; that the deceased was to join in M/s.Shamanur Sugars Limited on a salary of Rs.40,000/- per month and that the claimants were entitled to a sum of Rs.50,00,000/- as compensation. 13. From the aforesaid contentions, the following issues arise for consideration in these appeals: 1. Whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing bearing Regn. No.CTX 8489? 2. Whether the accident was due to the composite negligence on the part of the driver of the car bearing Regn. No.MYH 9525? 3. Whether the O.P. was bad on account of non-joinder of the owner of the car? 4. Whether the amount awarded is just and adequate and whether the appellants are entitled to enhancement of compensation in these appeals? 14. Issues 1 and 2:- The specific case of the claimants as per the claim petition is that on 20-02-2000, while the deceased was travelling in an ambassador car bearing Regn. No.MYH 9525 at about 5.30 p.m., the lorry bearing Regn. No.CTX 8489, coming in the opposite direction in a rash and negligent manner, dashed against the car. The car was totally damaged and the deceased was died on the spot. The driver of the car died in the hospital. A case in Crime No.66/2000 under Sections 304-A, 279 and 337 IPC was registered on the file of Davanagiri Rural Police Station. 15. P.W.2 was an eyewitness to the accident. He was the driver of an auto bearing Regn. No. KA 175059. He deposed that he parked his auto near the gate of Hosakund village at about 5.30 p.m., at which time, he observed a lorry coming from Shamanur in a high speed and hit the ambassador car. He deposed that due to the impact, the deceased died on the spot and another injured person was taken to the hospital. He noticed that the lorry was CTA 8489 and the ambassador car MYH 9525. He specifically deposed that the ambassador car was going on its lane and that the accident occurred due to the rash and negligent driving of the driver of the lorry. In the cross-examination of P.W.2, the Insurance Company did not elicit any information to contradict the facts as stated by him. On the other hand, P.W.2 unequivocally denied the suggestion that there was no rash and negligent driving on the part of the driver of the lorry and that the accident occurred due to the negligence of the driver of the car. 16. Ex.A-5, Motor Vehicle Accident Report, dated 25-02-2000, disclosed that the accident was not due to any mechanical defects of the vehicles. Ex.A-7, Inquest Report, dated 21-02-2000, disclosed that P.W.2 was an eye-witness to the accident. Ex.A-9 is the charge sheet filed against the driver of the lorry viz., Manjunadh. Exs.A-13 and 14 are the statements of P.W.2 recorded by the police with reference to the occurrence. The evidence of P.W.2 cannot be doubted. He being an auto driver was present at the stage of Hosakund village gate and witnessed the occurrence. His deposition is categoric and there is no reason to disbelieve the same. 17. Since the Insurance Company has set up the defence that there was no negligence on the part of the driver of the lorry, it should have examined the driver of the lorry and others, if any available, to rebut the allegation of negligence on the part of the driver of the lorry as set up by the claimants. Though the driver of the lorry was very much available to give evidence, the officials of the Insurance Company did not examine him, hence, the Insurance Company failed to rebut the evidence of the claimants. The aforesaid facts clearly establish that the accident occurred due to the rash and negligent driving of the driver of the lorry. 18. The evidence adduced by the claimants being categoric, there is absolutely no scope to infer that the driver of the car was anyway responsible for the occurrence. P.W.2 categorically deposed that the car was on its lane and the lorry dashed against the car. In view of this, it cannot be said that there was any contributory negligence on the part of the driver of the car. Therefore, the issues 1 and 2 are held in favour of the claimants that the accident occurred due to rash and negligent driving of the driver of the lorry and there was no contributory negligence on the part of the driver of the car. 19. Issue No.3:- The claim petition was filed alleging that the accident occurred due to rash and negligent driving on the part of the driver of the lorry which is registered with the appellant-Insurance Company. It has been held in issues 1 and 2 hereinbefore that there was rash and negligent driving on the part of the driver of the lorry alone and that there is no rebuttal evidence adduced by the Insurance Company and that the claim itself is only against the owner of the lorry. Therefore, the owner of the car or the insurer of the car are neither necessary or proper parties. In this view of the matter, the O.P. was not bad on account of the non-joinder of the owner of the car. 20. Issue No.4:- The claimants sought for compensation of Rs.50,00,000/-. The deceased was a diploma holder in sugar technology from the National Sugar Institute, Kanpur, as per Ex.A-22. He was also a diploma holder in Personnel Management from Punjab University, Patiala, as per Ex.A-23. He worked as part-time lecturer in the subject of Sugar Technology and Industrial Organization and Foremanship in the Government Polytechnic, Nizamabad during 1977- 79 as per Ex.A-25. He worked as Assistant Chemist for commissioning of sugar plants in Kenya and India as per Exs.A-26 and 27, Certificates of South Nyanza Sugar Company Limited, Sare (Awendo), Kenya. He also worked as General Manager in Uttam Sucrotech Private Limited, Ghaziabad, as per Ex.A-32. Later, he also worked as Manager (Corporate Planning) in the Triveni Engineering Works Limited, New Delhi as per Ex.A-33. The other record also reveals that he was offered job abroad. He was offered employment in M/s. Ponni Sugars and Chemicals Limited, Chennai, for a salary of Rs.20,000/- per month in addition to H.R.A. of Rs.12,000/- per month and other service benefits as per Ex.A-42. His account in M/s. Ponni Sugars was settled as per Exs.A-45 to 47. He was then appointed as General Manager-cum-Chief Chemist in the Pandavapura Sahakara Sakkrae Karkhane Limited, Karnataka, as per Exs.A-48, Memo, dated 28-06-1999. In that capacity, he was drawing a salary of Rs.22,000/- lump sum per month. As per Ex.A-50, he was appointed as General Manager in M/s. Shamanur Sugars Limited, Bangalore. But unfortunately, the accident occurred on 20-02-2000. As per Ex.A-51, he was offered employment in M/s. Shamanur Sugars Limited on a salary of Rs.40,000/- per month. 21. The contention on behalf of the Insurance Company that the income tax returns for the assessment year 1999-2000 marked under Ex.A-52 cannot be relied upon is not acceptable since Ex.A-52 is a certified copy of the original filed in the office of the Deputy Commissioner of income Tax, Hyderabad, and the same need not be disbelieved. The deceased was an expert in the sugar technology and had experience in different places. It is therefore reasonable to assume that his expertise would be utilized in future. In fact, as per Ex.A-51, he was given appointment in Shamnur Sugars Limited on a salary of Rs.40,000/- and free accommodation. Unfortunately, before the deceased could actually join the company, he died on 20-02-2000. Having regard to the same, even if Ex.A-51 is not a proof of future income of Rs.40,000/- per month, having due record to the expertise of the deceased, he would have earned more than 22,000/- per month. In this context, it is reasonable to assume that he would have earned Rs.25,000/- per month. Taking the same into consideration, the annual income would be Rs.3,00,000/-, and if a sum of Rs.56,000/- is deducted towards compulsory deduction for income tax out of the said amount, the net annual contribution would be Rs.2,44,000/-. Deducting 1/3rd out of the same towards personal expenses, the annual contribution to the family would be Rs.1,62,667/- . The age of the deceased as per Ex.A-19 (by the date of birth 18-06- 1949) could be taken as 51 years. The multiplier as per Sarala Varma and others Vs. Delhi Transport Corporation and another[1], is ‘11’. Calculating on the basis of the same, the contribution towards dependency would be Rs.17,89,333/-. The 1st claimant being wife is entitled to Rs.15,000/-towards consortium and Rs.15,000/- towards loss of estate as awarded by the Tribunal. The claimants are also entitled to Rs.5,000/- towards transportation of the body and Rs.5,000/- towards funeral expenses and the children i.e. claimants 2 and 3 are also entitled to Rs.5,000/- each, in total Rs.10,000/- towards loss of love and affection. 22. Therefore, we are of the opinion that the claimants are entitled to a total sum of Rs.18,39,333/- towards just and reasonable compensation. The Tribunal has awarded Rs.15,49,130/-only. Thus, the claimants are entitled to the differential amount of Rs.2,90,203/- rounded to Rs.2,90,000/- (Rupees two lakhs ninety thousand only) as enhancement of compensation in this appeal. The claimants are also entitled to interest at Rs.6% per annum on this enhanced amount from 04-04-2002, on which date the Insurance Company was impleaded, till the date of realization. Accordingly, the orders in M.V.O.P.No.204 of 2000, dated 26-10-2004, on the file of the Additional Chairman, Motor Accidents Claims Tribunal-cum-XX Additional Chief Judge, Secunderabad, are accordingly modified. 23. In the result, M.A.C.M.A.No.304 of 2005 filed by the Insurance Company is dismissed and M.A.C.M.A.No.570 of 2005 filed by the claimants is allowed in part. There shall be no order as to costs in both the appeals. _______________________ JUSTICE N.V.RAMANA Dated: -03-2010 ________________________ JUSTICE NOUSHAD ALI KVR [1] 2009 ACJ 1298