HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
M.A.C.M.A. No.15 of 2016
JUDGMENT:
Aggrieved by the award and decree, dated 08.10.2015 made in M.V.O.P.No.411 of 2012 on the file of the Chairman, Motor Vehicle Accident Claims Tribunal-cum- Principal District Judge, Karimnagar (for short "the Tribunal"), the appellants/claimants preferred the present appeal.
2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal.
3. The claimants filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of the deceased, Adepu Sadanandam, who died in a motor vehicle accident that occurred on 27.09.2008. According to the claimants, on the fateful day, while the deceased was proceeding in Lorry bearing No.AP 27 X 6021 along with his goods i.e., cloth bundles and when the Lorry reached B.T.Road near I.B. Tandoor, it dashed against a stationed tipper lorry bearing 2 No.AP 1 W 3957. As a result, the deceased sustained injuries and he succumbed to injuries while undergoing treatment in M.G.M. Hospital, Warangal. It is stated that prior to the accident, the deceased was hale and healthy and was earning Rs.10,000/- per month by doing business and agriculture. Due to sudden demise of the deceased, the claimants lost their source of income, love and affection and therefore, they filed the claim-petition seeking compensation of Rs.10.00 lakhs towards compensation under various heads. Respondent No.1 is the driver, respondent No.2 is the owner and respondent No.3 is the insurer of the offending Lorry. Respondent No.4 is the owner and respondent No.5 is the insurer of the Tipper Lorry, which was negligently parked on the middle of the road, therefore, all the respondents are jointly and severally liable to pay the compensation.
4. After considering the claim and the counters filed by the respondents, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of 3 Rs.9,25,000/- with interest at 7.5% per annum payable by respondent Nos.1 and 2 only while dismissing the claim against respondent Nos.3 to 5. Dissatisfied with the quantum of compensation and also in exonerating the Insurance Company from its liability, the claimants filed the present appeal, seeking enhancement of the same.
5. Heard both sides and perused the record.
6. It has been submitted by the learned counsel for the claimants that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are also entitled to the future prospects. As regards the liability, it is contended that though the deceased was travelling in the offending Lorry as un-authorised passenger, the insurance company is still liable to pay the compensation at first instance and then recover the same from the owner of the offending vehicle as the policy was in force as on the date of the accident and therefore, prayed to allow the appeal. 1 2017 ACJ 2700 4
7. Learned Standing Counsel appearing for the insurance company i.e., respondent No. 3, has submitted that the deceased was travelling in the offending Lorry as gratuitous passenger and therefore, the Tribunal has rightly exonerated the insurance company from the liability. It is further submitted that the Tribunal awarded excess amount of Rs.1,00,000/- towards consortium to claimant No.1 and Rs.25,000/- each to claimant Nos.2 to 6 and Rs.25,000/- towards funeral expenses. However, the claimants are entitled to only a sum of Rs.77,000/- under the conventional heads as per decision in Pranay Sethi' (supra) and therefore, prayed to dismiss the appeal.
8. The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by the respondents.
9. As regards the quantum of compensation, considering the age and avocation of the deceased, the Tribunal has rightly fixed the income of the deceased at Rs.5,000/- per month. Apart from the same, the claimants are entitled to addition of 40% towards future prospects, as 5 per the decision of the Hon'ble Supreme Court in Pranay Sethi (supra). Therefore, monthly income of the deceased comes to Rs.7,000/- (Rs.5,000/- + Rs.2,000/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation2 as the dependents are six in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family comes to Rs.5,250/- per month. As the age of the deceased was 39 years at the time of the accident, the appropriate multiplier is '15'. Adopting multiplier 15, his total loss of earnings comes to Rs.5,250/- x 12 x 15 = Rs.9,45,000/-. The claimants are further entitled to Rs.77,000/- towards loss of estate and funeral expenses, as per Pranay Sethi's case (supra). That apart, considering the fact that the claimant Nos.3 and 4 are the minor children of the deceased, this Court is inclined to award a sum of Rs.40,000/- each under the head of parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu 2 2009 ACJ 1298 (SC) 6 Ram @ Chuhru Ram and others3. Thus, in all, the claimants are entitled to only Rs.10,62,000/-.
10. Insofar as the liability is concerned, as seen from Ex.B1, the policy was in force as on the date of the accident. Even as per the contents of the counter itself, the deceased was proceeding in the offending lorry as un- authorised passenger at the time of the accident. In Anu Bhanvara v. Iffco Tokio General Insurance Company Limited4, the Hon'ble Supreme Court while dealing with the similar issue, by referring its earlier judgments in National Insurance Co. Ltd. V. Baljit Kaur5 and Manuara Khatun and others v. Rajesh Kumar and others6 apart from other judgments, invoked the principle of 'pay and recover', in the peculiar facts and circumstances of the case. In view of the above, the Insurance Company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.
3 (2018) 18 SCC 130 4 Laws (SC) 2019 840 5 2004 ACJ 428 6 (2017) 4 SCC 796 7
11. At this stage, the learned Standing Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.10,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
12. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another7 and Nagappa Vs. Gurudayal Singh8, the claimants are entitled to get more amount than what has been claimed. Further, the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimants is a paramount consideration the Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent.
13. Accordingly, M.A.C.M.A. is allowed in part. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.9,25,000/- to Rs.10,62,000/-. The 7 (2011) 10 SCC 756 8 2003 ACJ 12 (SC) 8 compensation amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization. The enhanced amount shall be apportioned among the claimants in the same proportion in which original compensation amounts were directed by the Tribunal. However, following the doctrine 'pay and recover', respondent No.3-Insurance Company is directed to pay the compensation amount to the claimants, at the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the 2nd respondent without initiating any separate proceedings. Time for depositing the amount is two months from the date of receipt of a copy of this judgment. On such deposit, the claimants are permitted to withdraw their respective share amounts without furnishing any security. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI 19.04.2023 Tsr 9 HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI M.A.C.M.A. No.15 of 2016 DATE: 19-04-2023