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2006 Supreme(AP) 1268
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
C.Y. SOMAYAJULU, J.
D. Sanjeeva Rao and others —Petitioner
v.
Shaik Sadiq and others —Respondent
Appeal Against Order No.1154 of 1998
Decided on 30-10-2006.
Advocate appeared
Mr. K. Rajanna, Counsel for the Appellants.
Mr. C.V. Rajeeva Reddy, Counsel for Respondent No.3.
None appeared for Respondent No.2.
Headnote:
Motor Vehicles Act, 1988 - Amendment Act, 1994 – Section 54 – Accident Case – Death - Alleging contributory negligence – Claim of Compensation - Seeking compensation alleging that when the deceased was proceeding as a pillion rider on a TVS Champ Moped- being driven by one - lorry belonging to the second respondent and insured with the third respondent being driven by the first respondent in a rash and negligent manner dashed the said TVS. Champ from behind, resulting in the death of the deceased who was earning - all sources - First respondent chose to remain ex parte - Second respondent filed his counter denying the rash and negligent driving on the part of his driver and alleging that the accident occurred due to sudden crossing of the road by the driver of the TVS Champ and alleging contributory negligence on the part of the driver of the TVS Champ - Third respondent filed its counter putting the appellants proof of the averments in the petition- Appellants examined the first appellant as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A-1 to A-9. No evidence Either oral and documentary was adduced on behalf of the second respondent - Third respondent did not adduce any oral evidence but marked by consent - Tribunal held that the accident occurred due to the rash and negligent driving of the first respondent and awarded as compensation to the appellants. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal – Held date of birth of the deceased, as disclosed from EX.A-3 - age of the second appellant, given in the claim petition. Is correct, and if second appellant was aged 14 years by the date of filing of the claim petition - when the deceased was aged about 22 years. Thereafter, she gave birth to five more children i.e., Appellants 3 to 7. 7th appellant is said to be months old baby by the date of filing of the claim petition. that fact per se cannot be a ground for fixing the contribution of the deceased to appellants that too when the income of the first appellant, i.e., her husband by the date of her death was not even Rs.3,000/- p.m. Love and affection of mother, no doubt, cannot be measured in terms of money. But that does not mean that claimants should be given a windfall due to the death of their mother in an accident, by treating the value of her love and affection to the members of her family at more than the income of her husband. In the facts and circumstances of the case, the loss of affection etc., and services of the deceased to the appellants can be evaluated - Accident took place prior to the coming into force of Act 54 of 1994, amending the Motor Vehicles Act, 1988, and since the deceased was aged about 34 years at the time of her death, the multiplier can be taken as 15. So the pecuniary damages payable to the appellants would come - First appellant lost his wife, he is entitled to loss of consortium - Appeal is allowed
Appellants, who are the husband and children of Shali Bai (deceased), filed a clam petition under the provisions of the Motor Vehicles Act, 1988, seeking compensation of Rs. 4,00,000/- alleging that when the deceased was proceeding as a pillion rider on a TVS Champ Moped- being driven by one D. Renuka, the lorry belonging to the second respondent and insured with the third respondent being driven by the first respondent in a rash and negligent manner dashed the said TVS. Champ from behind, resulting in the death of the deceased who was earning Rs. 5,000/- p.m. from all sources.
2. First respondent chose to remain ex parte.
3. Second respondent filed his counter denying the rash and negligent driving on the part of his driver and alleging that the accident occurred due to sudden crossing of the road by the driver of the TVS Champ and alleging contributory negligence on the part of the driver of the TVS Champ.
4. Third respondent filed its counter putting the appellants proof of the averments in the petition.
5. In support of their claim, appellants examined the first appellant as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked Exs.A-1 to A-9. No evidence either oral and documentary was adduced on behalf of the second respondent. Third respondent did not adduce any oral evidence but marked Ex. B-1 by consent.
6. The Tribunal held that the accident occurred due to the rash and negligent driving of the first respondent and awarded Rs. 96,000/- as compensation to the appellants. Dissatisfied with the compensation awarded to them, the claimants preferred this appeal.
7. Since the appeal is by the claimants seeking higher compensation and since the second respondent did not prefer any cross objections or cross-appeal questioning the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the first respondent, the only point for consideration is to what compensation are the appellants entitled to.
8. The contention of the learned counsel for the appellants is that the compensation awarded by the Tribunal is too meagre in view of the ratio in Utla Brahmarambha v. Brunda Satyanarayana1, and so the value of the services that were being rendered to the appellants by the deceased have to be computed at Rs. 3,000/- p.m. There is no representation on behalf of the second respondent though served.
9. The contention of the learned counsel for the third respondent is that since the Tribunal gave cogent reasons for its conclusion that the appellants are entitled only to Rs. 96,000/- and since there is no reliable evidence on record to show that the deceased was earning Rs. 5,000/- per month, the compensation awarded by the Tribunal is reasonable. Relying on United India Insurance Co. Ltd., Shimla v. Tilak Singh and others the contended that the third respondent is not liable to pay any compensation to the appellants because the deceased admittedly was a pillion rider.
10. The contention of the learned counsel for the third respondent that third respondent is not liable to pay any compensation in view of the ration in Tilak Singh case cannot be accepted, because that case relates to liability of the insurer of the scooter for the accident caused by the driver of scooter resulting in injuries to the pillion rider. In this case, it is the lorry belonging to the second respondent, which was insured by the third respondent, that caused the accident resulting in the death of the deceased, who is a third party, vis-avis the lorry insured by the 3rd respondent.
Ex. B-1 admittedly covers the risk of the third party. It is well known that third party, in insurance parlance, means a party, who is not using the vehicle involved in the accident at the time of the accident. Since the deceased was proceeding on a TVS Champ as a pillion rider and as that TVS Champ was hit by the lorry belonging to the second respondent, third respondent certainly is liable to pay the compensation payable to the appellants for the death
