HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. No.4153 of 2014
JUDGMENT:
Not being satisfied with the quantum of compensation awarded by the Judge, Family Court-cum-Additional District Judge, Mahabubnagar in M.V.O.P. No.599 of 2009 dated 27.08.2014, the present appeal is filed by the claimants.
2. For the sake of convenience, the parties have been referred to as arrayed before the Tribunal.
3. According to the petitioners, on 5.10.2008 evening the deceased Vankudavath Shanker Naik was proceeding on Hero puch moped from Mahabubnagar to Hanwada and when he was proceeding in the limits of Pallemoni colony, Hanwada Mandal at about 6-30 P.M., a Toofan vehicle bearing No. AP.22.V.7841 came from Mahabubnagar side proceeding towards Tandur side from back side being driven by its driver in a rash and negligent manner at high speed and dashed against the Hero puch moped, due to which the deceased fell down and sustained severe injuries all over his body and then he was shifted to Government Hospital, Mahabubnagar, while undergoing treatment he 2 succumbed to injuries. According to the claimants, the deceased was a Ward boy in Government Headquarters Hospital, Mahabubnagar and earning Rs.7,000/- per month and used to contribute the same to his family. Thus, the petitioners are claiming compensation of Rs.15,00,000/- under various heads.
4. Respondent No.1 filed counter denying the averments made in the petition. It is further contended that he sold the vehicle to respondent No.3 and after purchasing the vehicle, respondent No.3 took policy from the respondent No.2 on his name and the policy was in force at the time of alleged accident and prayed to dismiss the petition.
5. Respondent No.2 filed counter disputing the manner in which the accident occurred, age, avocation and income of the deceased. It is further contended that the driver of the Toofan was not having valid driving license as on the date of accident and the claim is excessive.
6. Respondent No.3 remained ex parte.
7. In view of the above pleadings, the Tribunal raised the following issues:
1) Whether the accident occurred on 5.10.2008 at about 6-30 p.m. in the limits of Pallemoni colony, Hanwada Mandal due to rash and negligent driving 3 of the driver of Toofan Vehicle bearing No. AP 22 V 7841?
2) Whether the driver of the offending vehicle was having valid driving license as on the date and time of the accident?
3) Whether the insurance policy was in force as on the date and time of the accident?
4) Whether the petitioners are entitled to claim compensation, if so, to what amount and whom?
3) To what relief?
8. In order to prove the issues, on behalf of the petitioners, PWs.1 to 4 were examined as PW.1 and got marked Exs.A-1 to A-6 and Ex.X1. On behalf of respondent No.2, RWs.1 and 2 were examined and Exs.B1 to B8 were marked.
9. On considering the oral and documentary evidence on record, the Tribunal has awarded an amount of Rs.8,46,000/- towards compensation to the appellants-claimants against the respondent No.3, along with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of deposit.
10. Since none appears for respondent No.2 in spite of service of notice, this Court appointed Mr.Vutla Srinivasa Rao as the counsel for respondent No.2.
4
11. Heard the learned counsel for the appellants-claimants and the learned Standing Counsel for the second respondent-Insurance Company. Perused the material available on record.
12. The learned counsel for the appellants-claimants has submitted that the Tribunal erred in dismissing the claim petition as against the respondent Nos.1 and 2 on flimsy grounds. Further, as per the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are entitled to addition of 40% towards future prospects to the established income of the deceased.
13. The learned Standing Counsel appearing on behalf of respondent No.2-Insurance Company sought to sustain the impugned award of the Tribunal contending that the Tribunal after considering all aspects has awarded adequate compensation of Rs.8,46,000/- and the same needs no interference by this Court.
14. With regard to the manner of accident, there is no dispute. However, after evaluating the evidence of PWs.1 to 3 coupled with the documentary evidence available on record, the Tribunal held that the accident took place due to the rash and negligent driving of the driver of 1 2017 ACJ 2700 5 the Toofan vehicle bearing No. AP 22 V 7841 which resulted the death of the deceased-Vankudavath Shanker Naik.
15. Coming to the quantum of compensation, according to the evidence of PW-1, the deceased was a Ward boy in Government Headquarters Hospital, Mahabubnagar and earning Rs.7,000/- per month and used to contribute the same to his family. Ex.A6 salary certificate of the deceased shows that the gross salary is Rs.6,678/- and net salary is Rs.5,683/-. Therefore, after deducting Rs.80/- towards professional tax, his salary comes to Rs.6,598/-. Further, in light of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others2, the claimants are entitled to future prospects @ 50% of his income, since the deceased was aged 31 years. Then it comes to Rs.9,897/- (6598 + 3299 = 9897/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation3 as the dependents are five in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.7,423/- per month (9,897 - 2,474 = 7,423/-). Since the deceased 2 2017 ACJ 2700 3 2009 ACJ 1298 (SC) 6 was 31 years by the time of the accident, the appropriate multiplier is '16' as per the decision reported in Sarla Verma v. Delhi Transport Corporation (supra). Adopting multiplier '16', the total loss of dependency would be Rs.7423/- x 12 x 16 = Rs.14,25,216/-. In addition thereto, the claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's (supra). As per the decision reported in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others4, the petitioner Nos.2 and 3 are entitled to filial consortium @ Rs.40,000/- each. Thus, in all the claimants are entitled to Rs.15,82,216/-.
16. Coming to the aspect of liability of payment of compensation, R.W.2, Junior Assistant, R.T.A., Mahabubnagar deposed that he brought the extract of driving license of respondent No.3 and his license was L.M.V. with non-transport and valid up to 2011 and that as on the date of accident, the driver did not possess valid transport license. Admittedly, the Tata Ace is a commercial transport vehicle. 4 (2018) 18 SCC 130 7
17. In Mukund Dewangan vs. Oriental Insurance Company Limited and others5, the Apex Court held that "the mere fact that the driver who possessed a licence to drive the light motor vehicle did not possess a licence to drive heavy transport vehicle by itself would not be sufficient to hold that the insurance company would be absolved of its liability to pay compensation".
18. In view of the principles laid down by the Apex Court in the judgment referred to above, this Court finds that the Tribunal erred in exonerating the Insurance Company to pay the compensation amount as awarded by the Tribunal and the Insurance Company is liable to pay the compensation awarded by the Tribunal.
19. In the result, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.8,46,000/- to Rs.15,82,216/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization, to be payable by the respondent Nos.1 to 3 jointly and severally. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. The claimants shall pay deficit Court fee on the 5 (2016) 4 SCC 298 8 enhanced compensation, since the initial claim was for Rs.15,00,000/-. On such payment of court fee only, the claimants are entitled to withdraw the amount. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_______________________ M.G.PRIYADARSINI,J 02.12.2022 pgp