HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A. Nos.2781 of 2014 and 871 of 2015
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.2781 of 2014 filed by the claimants
seeking enhancement of compensation and M.A.C.M.A.No.871 of
2015 filed by the Reliance General Insurance Company Limited
challenging the quantum of compensation, are directed against the
very same award and decree, dated 01.02.2014 made in
M.V.O.P.No.154 of 2011 on the file of the Motor Accidents Claims
Tribunal-cum-X 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. According to the petitioners, on 18-01-2010 at about 6.00 p.m.
the deceased-K.Balappa was riding his hero Honda motorcycle
bearing No. AP.10.TH.T/R.3762 along with Narahari and Yella
Reddy as pillion riders from Brahmanapally towards Bibinagar and
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when they reached near Hindustan Godown in the outskirts of
Rahimkhangudem, one auto trolley bearing no. AP.24.W.7785 being
driven by its driver came from opposite direction in rash and negligent
manner with high speed and dashed their motorcycle. Due to which,
the deceased- Balappa, and the pillion riders fell down from the
motorcycle and Balappa sustained fatal injuries and died on the spot
whereas both the pillion riders sustained grievous injuries. Thus, they
are claiming compensation of Rs.30,00,000/- under various heads
against the respondent Nos.1 and 2 who are owner and insurer of the
auto trolley jointly and severally.
3. Respondent No.1 remained ex parte; Respondent No.2 filed counter disputing the manner of accident, age, avocation and income of the deceased. It is further contended that there is contributory negligence on the part of both the vehicles and that the driver of the auto trolley was not having valid driving license and therefore, prays to dismiss the petition.
4. Based on the above pleadings, the Tribunal framed the following issues:
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1. Whether the pleaded accident dated 18.01.2010 was occurred due to rash and negligent driving of the driver of crime vehicle i.e., auto trolley bearing No. AP.24.W.7785 and whether the deceased- K.Balappa died due to the said accident?
2. Whether the petitioners are entitled for compensation, and if so to what quantum and whether crime vehicle was owned by first respondent and insured with second respondent and what is the liability of the respondents?
3. To what relief?
5. In order to prove the issues, PWs.1 to 3 were examined and Exs.A1 to A15 got marked on behalf of the petitioners. On behalf of respondents, RW-1 was examined and Exs.B1 to B3 got marked.
6. Considering the oral and documentary evidence available on record, the Tribunal has awarded an amount of Rs.16,00,000/- towards compensation to the claimants along with proportionate costs and interest @ 7.5% per annum from the date of presentation of petition till the date of deposit or realization whichever is earlier, as against the claim of Rs.30,00,000/- laid by the claimants for the death of the deceased in a road accident. However, respondent No.2 is directed to satisfy the award amount at first and then recover the same from respondent No.1.
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7. Heard the learned counsel for the claimants and the learned Standing Counsel for the respondent No.2-Insurance Company. Perused the material available on record.
8. The learned counsel for the claimants has submitted that although the claimants established the fact that the accident occurred due to the rash and negligent driving of the driver of the auto trolley, and the death of the deceased-Balappa was caused in the accident, the Tribunal had taken the income of the deceased very less and did not consider the future prospects and awarded very meager amount under various heads.
9. The learned Standing Counsel appearing on behalf of second respondent-Insurance Company submitted that there is contributory negligence on both the vehicles as there was triple riding on the motorcycle at the time of accident and that the Tribunal grossly erred in making the Insurance Company liable to pay the compensation. It is further contended that the driver of the offending vehicle was not having valid driving license at the time of accident and therefore, prays to dismiss the petition.
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10. With regard to the manner of accident, PW-2 who is the pillion rider on the motorcycle which was driven by the deceased at the time of accident, deposed that on 18.01.2010 at about 6-00 p.m. while he being the pillion rider was proceeding on the motorcycle and when they reached near Hindustan Godowns in the outskirts of Rahimkangudem on Bibinagar to Brahmanpally road, one auto trolley bearing No. AP.24.W.7785 came from their opposite direction to its wrong side from Bibinagar towards Brahmanapally side and dashed their motorcycle, due to which the deceased sustained fatal injuries all over the body and died on the spot. He and another pillion rider Yellareddy sustained grievous injuries. Though PW-2 stated that on the date of accident three persons were proceeding on the motorcycle in which he was the pillion rider, no evidence has been adduced by the insurer that the accident occurred because of the triple riding on the motorcycle. In the absence of any evidence, it cannot be assumed or presumed that the accident resulted because of the triple riding on the motorcycle. The evidence of PW.2 is crystal clear that the auto trolley came in high speed and dashed the motorcycle and as a result, three persons travelling on the motorcycle fell on road and the 6 deceased died on the spot. Therefore, after evaluating the evidence of PWs.1 and 2 coupled with documentary evidence available on record, the Tribunal rightly held that the accident occurred due to the rash and negligent driving of the driver of auto trolley and there are no grounds to interfere with the findings given by the Tribunal on this aspect. Now the only dispute is enhancement of compensation.
11. With regard to the quantum of compensation is concerned, according to the petitioners, the deceased used to run poultry business in the name and style of Shivamani Poultry Farm, Brahmanpally village, Bibinagar Mandal, Nalgonda District and used to earn net profit of Rs.2,00,000/- per annum. Exs.A11 and A12 are the income tax returns for the financial year 2006-07 and 2008-09, Ex.A13 is the business income statement and Ex.A14 is the statement of accounts of the deceased. However, as there is no definite evidence regarding the exact income, the Tribunal has taken the income of the deceased at Rs.10,000/- per month, which is very less. Therefore, considering the age and avocation of the deceased, the income of the deceased can be taken at Rs.12,500/- per month. Further, in light of the principles laid down by the Apex Court in National Insurance Company Limited 7 Vs. Pranay Sethi and others1, the claimants are also entitled to the future prospects and since the deceased was aged about 40 years at the time of accident, 40% of the income is added towards future prospects. Then it comes to Rs.17,500/- (12,500 + 5,000 = 17,500/-). Since the deceased left as many as six persons as the dependants, 1/4th of his income is to be deducted towards his personal and living expenses. Then the contribution of the deceased would be Rs.13,125/- (17,500 - 4,375 = 13,125/-) per month. Since the deceased was aged about 40 years at the time of accident, the appropriate multiplier in light of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation2 would be "15". Then the loss of dependency would be Rs.13,125/- x 12 x 15 =Rs.23,62,500/-. In addition thereto, under the conventional heads, the claimants are granted Rs.77,000/- as per the decision of the Apex Court in Pranay Sethi (supra). Further the petitioner Nos.2 to 5 are also entitled to filial consortium at Rs.40,000/- each as per the Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram3. Thus, in all, the petitioners are entitled for Rs.25,99,500/-.
1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 3 2018 Law Suit (SC) 904 8
11. With regard to the liability, with regard to its contention that the driver of the offending vehicle had no valid driving licence, the insurance company had taken steps by way of issuing notice to respondent No. 1 as seen from Ex.B.2. Ex.B.3 is the postal acknowledgement. However, the respondent No.1 did not choose to put up his appearance. Such being the case, it can safely be presumed that the driver of the offending vehicle had no valid driving licence. That apart, after completion of investigation, the police filed the charge sheet against the driver for the offence under Section 181 of M.V. Act. Considering all these circumstances, the tribunal has rightly held that there was violation of terms and conditions of the policy by the owner, respondent No. 1 and by invoking the doctrine 'pay and recover' and by following the judgments of the Apex Court in this regard, has rightly directed the respondent No. 2 to first pay the compensation to the claimants and then recover the same from the owner, respondent No. 1 without initiating any separate proceedings. Therefore, this Court sees no ground to disturb the said findings in this regard.
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13. In the result, the M.A.C.M.A.No.2781 of 2014 is partly allowed by enhancing the compensation amount awarded by the Tribunal from Rs.16,00,000/- to Rs.25,99,500/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. As directed by the tribunal, the respondent No.2 is directed to first pay the compensation to the claimants and then recover the same from the owner, respondent No.1. The amount of compensation shall be apportioned among the claimants in the ratio as ordered by the Tribunal. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. On such deposit of compensation amount, the claimants are at liberty to withdraw the same without furnishing any security. M.A.C.M.A.No.871 of 2015 is hereby dismissed. The petitioners are not entitled for interest during the delay period. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
_____________________ M.G.PRIYADARSINI,J 28.12.2022 pgp