THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2021 of 2019
JUDGMENT:
Assailing the order and decree, dated 17.05.2016 rendered in M.V.O.P.No.564 of 2012, on the file of the Motor Accident Claims Tribunal-cum-Principal District Judge, Mahabubnagar (hereinafter referred to as 'the learned Tribunal'), the appellant/respondent No.1, who is the registered owner of the offending vehicle i.e. Lorry bearing No.AP 24 TB 1717, has preferred this appeal.
2. The parties in this appeal are referred to as they stood before the Tribunal.
3. The factual circumstances that lead to filing this appeal are as follows:
The claimants, who are the parents and brothers of one Md.Shakeel (hereinafter referred to as 'the deceased'), filed claim-petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') claiming compensation of Rs.6,00,000/- for the death of the 2 MGP, J Macma_2021_2019 deceased in a vehicular accident, which occurred on 21.07.2012. It is stated that on 21.07.2012 the deceased as cleaner and respondent No.3 as driver of the crime vehicle i.e. Lorry bearing No.AP 24 TB 1717 belonging to respondent No.1 went to Chinthavaram Village of Chillakur Mandal to load the Lorry with Silika sand, on that date, at about 12.00 midnight, respondent No.3 not knowing the loading point went to a different way, thereafter, when he was reversing the Lorry in order to go to the loading point, the deceased, who was behind the lorry, while giving directions to respondent No.3, at that time, respondent No.3 drove the Lorry in rash and negligent manner and the rear side of the Lorry dashed the deceased. As a result, the deceased fell down and the left side rear tyre of the Lorry ran over the body of the deceased, due to which the deceased sustained fatal injuries and while he was shifting to Government Hospital, Gudur, on the way, he succumbed to the injuries on 22.07.2012 at about 1.30 AM. The concerned Police registered a case in Crime No.130 of 2012 for the offence under Section 304-A I.P.C. against 3 MGP, J Macma_2021_2019 respondent No.3. The claimants filed the aforesaid O.P. against respondent Nos.1 to 3, who are the owner, insurer and driver of the crime Lorry respectively.
4. Before the learned Tribunal, respondent Nos.1 and 3 filed separate counters denying all the allegations of the petition including the age and income of the deceased, manner of the accident. They also submitted that the claim of the petitioners is excessive and respondent No.2/insurer is liable to pay the compensation if any awarded, as the driver of the crime Lorry was having valid driving licence.
5. Though Respondent No.2/Insurer opposed the claim petition but, did not file any counter.
6. Before the learned Tribunal, on behalf of the petitioners, PWs 1 and 2 were examined and Exs.A-1 to A-8 were marked. On behalf of respondent No.2/Insurer, RW-1 was examined and Exs.B-1 and B-2 were marked. 4
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7. The learned Tribunal, considering the claim and the counters filed by the owner and driver of the offending vehicle, and on evaluation of the evidence, both oral and documentary, has partly allowed the said claim petition and awarded a total sum of Rs.5,92,000/- as compensation along with the interest @ 9% per annum from the date of filing of the claim petition to 06.05.2014 and from 11.12.2014 to till the date of realization payable by respondent Nos.1 and 2 jointly and severally while dismissing the claim against respondent No.3-driver and respondent No.2/insurer has been directed to deposit the above said compensation with interest and costs at first, and then to recover the same from respondent No.1/owner. Challenging the liability fastened on him to pay the compensation, respondent No.1/owner preferred the present appeal seeking to set aside the Award dated 17.05.2016 passed by the learned Tribunal by exonerating him from the liability to pay compensation to the petitioners.
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8. Learned counsel for the appellant/respondent No.1 vehemently submitted that the learned Tribunal ought not to have given much importance to the discrepancy as to the name of driver of the offending vehicle and the learned Tribunal must ascertain admitted facts. He further submitted that the name of driver of offending vehicle in MVI Report mentioned as J.Papaiah @ Dakiya, S/o.Shambaiah and in the cause title, the name of respondent No.3 is mentioned as Jangili Papaiah @ Dakiya, S/o.Shambaiah and in the charge-sheet in C.C.No.359 of 2012 the name of driver of the offending vehicle was shown as Jangili Papaiah @ Dakiya, S/o.Shambaiah. The learned Tribunal ought to have seen that respondent No.3/driver was charge-sheeted for the offence under Section 304-A I.P.C., after completion of the investigation of the crime and except raising mere contention by respondent No.2/Insurer that respondent No.3 is not a driver of the offending vehicle, no evidence let in by respondent No.2/Insurer to prove the said fact and Investigation Officer was also not examined. He further stated that the complaint was given 6 MGP, J Macma_2021_2019 by one Jaryala Babu, S/o.Kokiya and the same was registered as Crime No.130 of 2012 of Chillakur Police Station under Section 304-A I.P.C. against respondent No.3, but the said complainant was not examined as a witness by the claimants to explain the circumstances under which the accident took place and respondent No.2/Insurer also not examined him whether respondent No.3 is a driver or not, to substantiate its contentions. It is an obligation on part of the Insurance Company to summon the owner of the vehicle and driver of the vehicle and examine them to elicit the facts that whether they colluded with the claimants but respondent No.2 did not do so. Respondent No.2 failed to discharge its onus to prove its case by leading evidence. He further stated that the learned Tribunal ought to have seen that the driver of the offending vehicle has valid licence and insurance policy is existing in respect of the offending vehicle as on the date of the accident, therefore, the learned Tribunal ought to have fasten the liability upon respondent No.2/Insurer to pay compensation. The learned Tribunal erred in directing 7 MGP, J Macma_2021_2019 respondent No.2 to deposit the compensation amount and then recover the same from the appellant/respondent No.1. It is submitted that the learned Tribunal grossly erred in taking the monthly income of the deceased as Rs.3,500/- without any documentary evidence and also erred in adopting the multiplier while calculating the compensation. It is also submitted that the quantum of compensation and interest there on @ 9% per annum are on higher side and they can be modified. Therefore, prays for interference with the impugned award passed by the learned Tribunal.
9. Per contra, the learned Standing Counsel appearing on behalf of the Insurance Company/respondent No.2, contended that the learned Tribunal after analyzing the evidence on record and on an elaborate discussion has rightly came to the conclusion that J.Papaiah was not the driver of the offending vehicle and one Dakya was the driver of the offending vehicle but by knowing the said Dakiya was not having valid driving licence, the name of the driver was changed as J.Papaiah @ Dakya collusively, and therefore, as there is clear violation of terms and 8 MGP, J Macma_2021_2019 conditions of insurance policy, the principle of pay and recovery was applied to this case. Therefore, submitted that the liability fixed on respondent No.1-owner of the offending vehicle is correct, which need not be interfered by this Court and, prays to dismiss the appeal.
10. Heard learned counsel appearing on behalf of the respective parties. Perused the impugned award passed by the learned Tribunal as well as the evidence on record.
11. The points that arise for consideration in this appeal are as follows:
(i). "Whether the learned Tribunal was justified in ordering pay and recovery of the compensation in the impugned award?
(ii). Whether the compensation awarded by the learned Tribunal is just and equitable"?
12. The 1st respondent, who is the registered owner of the offending vehicle i.e. Lorry bearing No.AP 24 TB 1717 is the appellant in this case. According to the appellant, he cannot be saddled with the liability to pay compensation to 9 MGP, J Macma_2021_2019 the claimants when the driver of offending vehicle was having valid driving licence and, therefore, 2nd respondent- Insurance Company is liable to pay compensation to the claimants.
13. It is not in dispute that respondent No.1 was the registered owner of the offending Lorry on the date of the accident. It is also admitted that the said Lorry was insured with respondent No.2 and the insurance policy- Ex.B-1 taken in the name of respondent No.1 was in force on the date of the accident. There is no denial of the fact by the Insurance Company that at the relevant point of time, the offending vehicle was insured with it and the policy was very much in force and in existence.
14. It has been contended by respondent No.2/Insurer that there has been violation of the terms and conditions of the policy. On the other hand, the contention of respondent No.1/owner is that the there is no violation of the terms and conditions of the policy, the driver of offending vehicle was having valid driving licence and the 10 MGP, J Macma_2021_2019 insurance policy is in existence as on the date of accident. It has been the further contention of respondent No.1/owner that there is discrepancy with regard to the name of the driver and the learned Tribunal ought not to have given much importance to the said discrepancy.
15. It is the case of the Insurance Company that the claimants filed collusive petition to enable them to get compensation from the insurer. The driver of offending vehicle is noted as Dakiya, who is a Lambada by caste, but by knowing the said Dakiya was not having valid driving licence, the claimants in collusion with the Police of Chillakur, got the name of the driver written as J.Papaiah @ Dakiya, S/o.Sambaiah in the charge-sheet. In Ex.A-8- copy of driving licence filed by the petitioners and in Ex. B-2-extract of driving licence filed by 2nd respondent, the name of the driver is noted as Papaiah J, S/o.J.Shambaiah. In Exs.A-5, A-8 and Ex.B-2, it is noted that the said J.Papaiah will also be called as Dakiya. When there is discrepancy as to the name of the driver of offending vehicle, respondent No.1/owner has to enter into 11 MGP, J Macma_2021_2019 witness box to give evidence and to produce the driving licence and the documents of the crime vehicle to prove that respondent No.3 by name Jangili Papaiah @ Dakiya was the driver of the offending vehicle and that the said driver was having valid driving licence at the time of accident. But, the 1st respondent/owner did not do so. The 1st respondent/owner has failed to discharge the onus cast upon him. Therefore, the learned Tribunal has come to a conclusion that J.Papaiah was not the driver of the offending vehicle and one Dakiya was the driver of the offending vehicle and as the said Dakiya was not having valid driving licence by the date of accident, directed the Insurance Company to pay the entire compensation and recover the same from the insured by relying upon the decision of Apex Court in National Insurance Company Limited vs. Swaran Singh and others1.
16. In view of the facts and circumstances of the case, this Court find no fault with the impugned award insofar 1 (2004) 3 SCC 297 12 MGP, J Macma_2021_2019 as fixing the liability is concerned and there is no reason to interfere with the same.
17. Insofar as the quantum of compensation is concerned, the compensation, which the dependants of deceased Md.Shakeel would be entitled, has to be calculated again in the light of established parameters.
18. Though the claimants asserted that the deceased was aged 23 years and was earning Rs.1,200/- per month by working as cleaner of the Lorry and dance master in New Dragon Dance Academy as on the date of accident, there is no evidence on record to that effect. In Ex.A-3-Inquest Panchanama and in Ex.A-4-Post Mortem Examination Certificate, the age of the deceased was shown as 23 years. In the absence of any proof, considering the age and avocation of the deceased, the Tribunal has rightly taken the income of the deceased at Rs.3,500/- per month. Since the age of the deceased at the time of accident was 23 years, the claimants are entitled to addition of 40% towards future prospects to the established income, as per the 13 MGP, J Macma_2021_2019 decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others2. Therefore, the future monthly income of the deceased comes to Rs.4,900/- (Rs.3,500/- + Rs.1,400/-). From this, as the deceased was a bachelor, 50% is to be deducted towards personal expenses of the deceased following the decision in Sarla Verma v. Delhi Transport Corporation3. After deducting 50% therefrom towards his personal and living expenses, the contribution of income by the deceased to the family comes to Rs.2,450/- per month. Since the age of the deceased was 23 years, as held by the Tribunal, the appropriate multiplier is '18' as per the guidelines laid down by the Apex Court in Sarla Verma (supra). Adopting multiplier '18', the total loss of dependency comes to Rs.5,29,200/- (Rs.2,450 x 12 x 18). That apart, the claimants are entitled to Rs.33,000/- under the heads of 'funeral expenses' and 'loss of estate'. The claimant Nos.1 and 2 being the parents of the deceased are entitled to Rs.40,000/- each towards filial consortium in 2 2017 ACJ 2700 3 2009 ACJ 1298 (SC) 14 MGP, J Macma_2021_2019 view of the judgment of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others4.
DESCRIPTION AMOUNT (Rs.)
Loss of dependency 5,29,200.00
Loss of filial consortium to claimant Nos.1 80,000.00
and 2
Funeral expenses and loss of estate 33,000.00
Total: 6,42,200.00
19. Thus, in all, the claimants are entitled to
Rs.6,42,200/- towards compensation. The learned
Tribunal awarded a sum of Rs.5,92,000/- as
compensation. However, the just compensation, which the claimants are entitled to Rs.6,42,200/-.
20. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another5 and Nagappa Vs. Gurudayal Singh6 the claimants are entitled to get just compensation even if it is more than the amount what was claimed by the claimants. 4 (2018) 18 SCC 130 5 (2011) 10 SCC 756 6 2003 ACJ 12 (SC) 15 MGP, J Macma_2021_2019
21. Insofar as the interest awarded by the learned Tribunal is that the claimants are entitled to interest @ 7.5% per annum on the compensation awarded by this Court from the date of petition till realization, as per the decision of the Apex Court in Rajesh and others v. Rajbir Singh and others7. Hence, the interest granted by the learned Tribunal @ 9% per annum is reduced to 7.5% per annum on the awarded amount of Rs.6,42,200/- from the date of petition till the date of realization.
22. In the result, the M.A.C.M.A. is dismissed. The compensation amount awarded by the Tribunal is enhanced from Rs.5,92,000/- to Rs.6,42,200/-. 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 appellant/respondent No.1 and respondent No.5/Insurer jointly and severally. Respondent No.5/Insurer is directed to deposit the above said compensation with interest and costs at first within a 7 2013 ACJ 1403 = 2013 (4) ALT 35 16 MGP, J Macma_2021_2019 period of one month from the date of receipt of a copy of this order, and then recover the same from the appellant/respondent No.1. On such deposit, the claimants are entitled to withdraw their respective share amounts without furnishing any security. However, the claimants shall pay the deficit Court Fee on the enhanced compensation. No order as to costs.
Pending miscellaneous application, if any, shall stand closed.
_____________________________ SMT. M.G.PRIYADARSINI, J Dt.25.04.2023 svl 17 MGP, J Macma_2021_2019 THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A. No.2021 of 2019 DATE: 25-04-2023 svl