THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.3181 OF 2017 AND 3289 OF 2019
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.3181 of 2017, filed by the
National Insurance Company Limited and M.A.C.M.A.No.3289 of
2019 filed by claimants, challenging the quantum of
compensation, are directed against the very same order and
decree, dated 14.07.2017 made in M.V.O.P.No.202 of 2014 on
the file of the Chairman, Motor Accidents Tribunal-cum-XI
Additional Chief Judge, City Civil Court, Hyderabad (for short
"the Tribunal").
2. For the sake of convenience, hereinafter the parties will be
referred to as per their array before the Tribunal.
3. The facts, in brief, are that the claimants laid a claim
under Section 166 of the Motor Vehicles Act, 1988, claiming
compensation of Rs.20,00,000/- for the death of one
M.D.Shakeel, husband of claimant No. 1, father of claimant
Nos. 2 to 5 (hereinafter referred to as "the deceased"), who died
in the accident that occurred on 15.11.2013. According to the
claimants, on the fateful day, while the deceased, along with his
younger brother, was proceeding on scooter bearing No. AP 07
8371 from Hythabad to Jiyaguda and at about 07:30 hours,
2 MGP, J
Macma_3181_2017 and 3289_2019
when he reached near pillar No. 151 Hyderguda, suddenly one
TATA indica Car bearing No. AP 28 TV 4097, owned by
respondent No. 1, insured with respondent No. 2, being driven
by its driver in a rash and negligent manner at high speed, dashed the deceased. Due to the said impact, the deceased fell down on the road and sustained bleeding injuries all over the body. Immediately, he was taken to Osmania General Hospital and later, shifted to Care Hospital, wherein the deceased succumbed to the injuries while undergoing treatment. On a complaint, a case in Crime No.930 of 2013 was registered under Section 304(A) IPC. According to the claimants, the deceased was earning Rs.10,000/- per month by running a mutton and chicken meat shop and used to contribute his earnings to the welfare of the family. On account of the sudden demise of the deceased, the claimants have lost their bread winner and love and affection. Therefore, they laid the claim against the respondent Nos.1 & 2, who are the owner and insurer of the crime vehicle i.e., TATA indica Car bearing No. AP 28 TV 4097.
4. Before the Tribunal, while the respondent No. 1 remained ex parte, the respondent No. 2, insurance company filed counter stating that the driver of the crime vehicle did not possess valid driving licence and denied all the averments made in the claim- petition, including the manner in which the accident took place, 3 MGP, J Macma_3181_2017 and 3289_2019 age, avocation and earnings of the deceased. It is specifically contended that the accident occurred only due to the contributory negligence on the part of the deceased. It is lastly contended that the claim is excessive and exorbitant and prayed to dismiss the petition.
5. After considering claim and counter filed by the respondent No. 2 and the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the negligent driving of the crime vehicle i.e., TATA indica Car and has awarded an amount of Rs.13,15,000/- with interest at 9% per annum from the date of petition till the date of realisation. Challenging the same, the present appeals came to be filed by the Insurance Company and the claimants respectively.
6. Heard both the learned counsel and perused the material available on record.
7. The main contention raised by the learned Standing Counsel for the Insurance Company (appellant in M.A.C.M.A.No.3181 of 2017) is that the Tribunal did not consider the evidence brought on record in proper perspective and erroneously held that the accident had occurred due to the rash and negligent driving of the driver of the TATA indica Car.
4 MGP, J Macma_3181_2017 and 3289_2019 In fact, the accident took place due to the contributory negligence on the part of the deceased, who was riding the scooter on the road without observing the moving vehicles on the road. Therefore, the Tribunal ought to have apportioned contributory negligence even on the part of the deceased. As regards the quantum of compensation, although the claimants failed to prove the income of the deceased by producing cogent documentary evidence, the Tribunal erred in taking the income of the deceased at Rs.1,00,000/- per annum. Therefore, the Tribunal has granted excessive and exorbitant compensation, which needs to be reduced. It is lastly contended that inasmuch as the driver of the offending vehicle was not having valid and effective driving license, at least, the Tribunal ought to have ordered pay and recovery as per the decision of Apex Court.
8. Per contra, learned counsel for the claimants (appellants in M.A.C.M.A.No.3289 of 2019), has contended that since the claimants have asserted that the deceased was running mutton and chicken meat shop and filed Ex.A.7, income certificate, which substantiated the income of the deceased, the Tribunal ought to have fixed the income of the deceased at Rs.10,000/- per month. He further contended that the claimants are entitled for future prospects as per the decision of Apex Court. As 5 MGP, J Macma_3181_2017 and 3289_2019 regards the contributory negligence, it is contended that in light of evidence of P.W.2, eyewitness to the accident, and the documentary evidence i.e., Exs.A.1 and A.2, the Tribunal has rightly held that there was no contributory negligence on the part of the deceased and the same needs no interference.
9. As regards the manner of accident, it is the main contention of the learned Standing Counsel for the Insurance Company (appellant in MACMA No.3181 of 2017) that the accident occurred due to the contributory negligence even on the part of the deceased as the deceased riding the scooter on the road without observing the moving traffic and therefore, the Tribunal should have apportioned contributory negligence. As seen from the record, Ex.A.1, FIR, was registered against the driver of the crime vehicle. Further, after due investigation into the crime, police laid the charge sheet, Ex.A.2, against the driver of the offending vehicle stating that the accident occurred due to the rash and negligent driving of the offending vehicle and the driver was charged for the offence under Sections 304-A IPC. That apart, P.W.2, the eyewitness to the accident, who was also co-traveller along with the deceased, clearly stated that the accident occurred only due to the rash and negligent driving of the TATA indica Car by its driver. Though it is the case of the Insurance Company that there was contributory negligence on 6 MGP, J Macma_3181_2017 and 3289_2019 the part of the deceased, for the reasons best known to it, the Insurance Company did not take any steps to summon the driver of the offending car to prove that there was contributory negligence on the part of the deceased, who is the best person to speak in this regard. Further, no contra evidence was elicited in the cross-examination of P.W.2, eyewitness to the accident to discredit his testimony. Therefore, considering the evidence of P.W.2 and Exs.A.1 & A.2, FIR and charge sheet, the Tribunal has rightly held that the accident occurred only due to the rash and negligent driving of the Car by its driver and as such, the contention of learned standing counsel for the Insurance Company that there is contributory negligence on the part of the deceased, is hereby rejected.
10. Insofar as the quantum of compensation is concerned, the case of the claimants is that deceased was earning Rs.10,000/- per month by running mutton and chicken meat shop. In support of their claim, they filed Ex.A.7, income certificate issued by the Tahasildar, Shabad Mandal, showing the annual income of the deceased at Rs.1,00,000/-. It reflects that the deceased used to earn Rs.90,000/- from the mutton and chicken meat shop and Rs.10,000/- from the lands which works out to Rs.8,333/- as monthly income. The Tribunal has taken the annual income at Rs.1,00,000/-. Considering the evidence 7 MGP, J Macma_3181_2017 and 3289_2019 and duly taking into consideration the age of the deceased, this Court is inclined to fix the income of the deceased at Rs.9,000/- per month. Since, the deceased was aged 38 years, 40% needs to be added towards future prospects as per the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, which works out to Rs.12,600/- per month (Rs.9,000 + Rs.3,600). As there are five dependents, 1/4th has to be deducted towards personal expenses. After deducting 1/4th towards personal expenses and living expenses, the net monthly income of the deceased works out to Rs.9,450/- (Rs.12,600 - Rs.3,150). Since the age of the deceased was 38 years, as held by the Tribunal, the appropriate multiplier is '15' as per the guidelines laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation2. Adopting multiplier '15', the total loss of dependency comes to Rs.17,01,000/- (Rs.9,450 x 12 x 15). That apart, the claimants are entitled to Rs.77,000/- under the conventional heads as per the decision of the Apex Court in Pranay Sethi (Supra). Further, the claimant Nos.4 & 5 being the minor children of the deceased, are entitled to Rs.40,000/- each towards parental consortium as per the decision of the Apex Court in Magma General Insurance 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 8 MGP, J Macma_3181_2017 and 3289_2019 Company Limited v. Nanu Ram @ Chuhru Ram and others3. Thus, in all, the claimants are entitled to compensation of Rs.18,58,000/-.
11. As regards the liability, the main contention of the learned Standing Counsel for the respondent No. 2-Insurance Company is that the driver of the crime vehicle was not having valid driving licence at the time of the accident. In support of the said contention, he relied on the evidence of R.Ws.1 & 2, Junior Assistance in District Transport Office, R.R. District, who deposed that the driver of the crime vehicle has no driving licence to drive the vehicle by the date of the accident. As such, there was breach of terms and conditions of the Policy. However, it is true that by the time of accident, the offending vehicle was insured with respondent No. 2 - the Insurance Company, which was supported by the evidence of R.Ws.1 & 2 and Ex.B.2, policy, was in force. In the case of third party risks, as per the decision in National Insurance Company Ltd. V. Swaran Singh and others4, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" 3
(2018) 18 SCC 130 4 (2004) 3 SCC 297 9 MGP, J Macma_3181_2017 and 3289_2019 examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others5, following its earlier decision in Swaran Singh (supra), reiterated that "even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount." In view of the above, this Court is inclined to direct the respondent No. 2-Insurance Company to pay the compensation amount at the first instance and then recover the same from the respondent No. 1-owner of the vehicle, thereafter.
12. Insofar as the interest awarded by the Tribunal is concerned, in light of the decision of the Apex Court in Rajesh and others v. Rajbir Singh and others6 the rate of interest is hereby reduced to 7.5% per annum from 9% on the 5 2018 ACJ 2163 6 2013 ACJ 1403 = 2013 (4) ALT 35 10 MGP, J Macma_3181_2017 and 3289_2019 compensation awarded by the Tribunal from the date of petition till the date of realization.
13. Accordingly, both the M.A.C.M.A.Nos.3181 of 2017 of 2017 and 3289 of 2019 are partly allowed. The quantum of compensation awarded by the Tribunal is hereby enhanced from Rs.13,15,000/- to Rs.18,58,000/-. However, by invoking the doctrine of 'pay and recover', the respondent No. 2 is directed to deposit the said compensation amount at first instance and to recover the said amount from the respondent No. 1 without initiating any separate proceedings. The rate of interest awarded by the tribunal on the quantum of compensation is hereby reduced from 9% to 7.5% per annum. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous applications, if any, pending shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI 13.04.2023 gms/tsr 11 MGP, J Macma_3181_2017 and 3289_2019 THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.Nos.3181 of 2017 and 3289 of 2019 13.04.2023 gms/tsr