Telangana High Court
Hdfc Ergo General Insurance Co. Ltd vs Mohammad Masood on 18 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.1075 OF 2023
JUDGMENT:
Heard learned standing counsel Sri A.Ramakrishna Reddy for the appellant-insurance company and Sri. Sourabh Agarwal, learned counsel for respondents-claimants.
2. The present appeal has been filed by the appellant/ insurance company challenging the award passed by the Chairman, Additional Motor Accident Claims Tribunal-cum-I Addl. District and Sessions Judge, Adilabad (for short, 'Tribunal') in M.V.O.P.No.172 of 2018, dated 17.03.2023, thereby seeking to set- aside the award against the insurance company.
3. The brief factual matrix of the present appeal is as under.
4. The deceased i.e., Mohammad Yusuf was working as Ginning Operator in Vishwataje Cotton Mill at Allirajpet and as usual, on 04.05.2017 after completion of his duty, he slept on cement floor in the said Cotton Mill along with his co-workers and on 05.05.2017 at about 7.00 a.m., the driver of the lorry bearing registration No.HR-56-B-3100 driven the lorry in rash and negligent manner with high speed and without observing the LNA,J MACMA No.1075 of 2023 2 deceased, who slept on cement floor along with others, dashed to his head, due to which, he sustained head injury and his brain came out from head and died on the spot. Later, the dead body of the deceased was shifted to Government Hospital, Gajwel for autopsy. The Police, Jagadevpur P.S., registered a case in Crime No.42/2017 under section 304-A IPC against the driver of the offending vehicle and filed charge sheet.
5. The claimants, i.e., respondent Nos.1 to 4 herein , who are father, mother and unmarried sisters of the deceased, have filed claim petition against owner, driver of the vehicle and insurance company under section 166 (1)(c) of Motor Vehicles Act before the MACT claiming compensation of Rs.25,00,000/- along with interest from the date of the petition till the date of deposit.
6. The deceased was aged about 27 years and unmarried as on the date of accident, hale and healthy and was working as Ginning Operator in Vishwateaja Cotton Mill, Allirajpet of Siddipet district and was getting an income of Rs.15,000/- per month and claimants lost the support of the deceased.
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7. The respondent Nos.5 & 6 herein, who are the driver and owner of the offending vehicle, remained ex-parte.
8. The appellant-Insurance Company filed counter denying all the allegations made in the claim petition and contended that the driver of the offending vehicle was not having valid and effective driving license to drive the vehicle and he was not qualified from holding or obtaining such driving license and further has not satisfied the requirements of the Rule-3 of the Central Motor Vehicle Rules, 1989 and that the offending vehicle was not Road worthy and was plying on the road by violating the M.V.Rules at the time of accident. As such, insurance company is not liable to pay any compensation. Thus, the conditions of the insurance policy were violated and finally, prayed for dismissal of the claim petition.
9. On the basis of the above pleadings, the Tribunal framed the following issues:
i) Whether the deceased Mohammad Yousuf died in motor vehicle accident occurred on 05.05.2017 at 7.00 a.m., in Vishwateja Cotton Mill, Allirajpet due to rash and negligent driving of lorry by its driver of the offending crime vehicle i.e., Lorry (bg.No.HR-56-B-
3100)?
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ii) Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
iii) To what relief?
10. In order to substantiate the case, on behalf of the claimants, mother of the deceased was examined as PW.1 and also examined Sayed Kaleem, who is eye witness, as PW.2 and Exs.A1 to A7 were marked. On behalf of the appellant-insurance company, RW.1 was examined and copy of insurance policy was marked as Ex.B1.
11. The Tribunal, on due consideration of the evidence and material placed on record, came to conclusion that the accident took place due to rash and negligent driving of the lorry bearing registration No.HR-56-B-3100 and awarded compensation of Rs.19,48,932/- along with interest @ 7.5% per annum from the date of petition till the date of deposit of amount. The driver and owner of the crime vehicle i.e., respondents 5 and 6 herein and appellant are liable to pay the same compensation amount.
12. During the course of hearing of the appeal, learned counsel for appellant-insurance company submitted that the Tribunal ought to have seen that there are clear violations as to the terms and conditions of the insurance policy committed by the driver and LNA,J MACMA No.1075 of 2023 5 owner of crime vehicle and as such, appellant cannot be fastened with the liability and instead of dismissing O.P., against insurance company, it had directed the insurance company to pay compensation amount and later recover the same from the owner. The driver of the crime vehicle was not have driving license as on the date of accident and as such, the owner of the crime vehicle alone is liable to pay the compensation amount. He further submitted that the Tribunal erred in taking monthly income of the deceased at Rs.10,000/- without any proof of his income. The Tribunal ought to have deducted 50% of the income of the deceased towards personal expenditure, however, the Tribunal erred in deducting 1/3rd of his income and finally, prayed to set aside the award passed by the Tribunal.
Consideration:
13. The main contention raised by the appellant in the present appeal is that the driver of the offending vehicle was not having driving license, the Tribunal held that admittedly, the driver of the vehicle was not having driving license and mere absence of driving license will not absolve the liability of insurance company and thus, directed the insurance company to pay the compensation LNA,J MACMA No.1075 of 2023 6 amount and later, it can recover the compensation from the driver and owner of the crime vehicle by following the decision of Hon'ble Apex Court in Shamanna and another vs. Divisional Manager, Oriental Insurance Company Limited and others 1.
14. In view of the above, this Court is of the considered view that the Tribunal had rightly directed the insurance company to pay the compensation and later to recover the same from the driver and owner of the crime vehicles i.e., respondents 5 and 6 herein.
15. Insofar as the other contention of the learned counsel for appellant that Tribunal erred in taking the monthly income of the deceased at Rs.10,000/-, the Tribunal on due consideration of the present case, period of accident, the inflation, devaluation of rupee, cost of living etc., had taken the notional income of the deceased at Rs.10,000/- per month since he is working as Ginning Operator.
16. The other contention raised by the learned counsel for appellant with regard to living expenses of the deceased, the Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi Transport corporation and another 2, the Hon'ble Apex Court at 1 (2018) 9 SCC 650 2 (2009) 6 SCC 121 LNA,J MACMA No.1075 of 2023 7 paragraph-32 held that 'Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family'.
17. In view of the above decision, 50% of the income of the deceased should be deducted towards his personal and living expenses. Therefore, the Tribunal had erred in deducting 1/3rd instead of 50% of the income of the deceased towards his personal and living expenses and the same is liable to be modified.
18. Further, claimants are also entitled to Rs.15,000/- towards loss of estate and the mother of deceased is also entitled to Rs.40,000/- towards parental consortium in view of the decision of the decision of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi and others 3. Conclusion:
19. In view of the above, the claimants are entitled for the following compensation:
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(2017) 16 SCC 680 LNA,J MACMA No.1075 of 2023 8 Sl.No. Head Compensation awarded 1 Income Rs. 1,20,000/- per annum (Rs.10,000/- per month) 2 Future prospects Rs.48,000/- (i.e., 40% of the income) 3 Deduction towards personal Rs.84,000/- (i.e., 50% of expenses Rs.1,20,000/- + Rs.48,000/-) 4 Total Income Rs.84,000/- ( i.e., Rs.1,26,000/- + Rs.48,000/- (-) Rs.84,000/-) 5 Multiplier 17 6 Loss of dependency Rs.14,28,000/- (i.e., Rs.84,000/- x
17) 7 Transportation charges Rs. 10,000/-
8 Parental consortium Rs. 40,000/-
9 Funeral expenses Rs. 15,000/-
10 Loss of estate Rs. 15,000/-
Total compensation to be paid: Rs.15,08,000/-
20. In the result, Appeal is partly allowed and the impugned award passed by the Tribunal insofar as compensation amount is concerned, is modified. Insofar as direction of the Tribunal directing the appellant-insurance company to first pay and later recover the compensation amount from the driver and owner of the crime vehicle i.e., respondents 5 and 6 herein, is affirmed. The above compensation amount shall carry interest @ 7.5% per annum from the date of the claim petitions till the date of realization. The appellant is directed to deposit the above compensation amount within a period of six weeks from the date of LNA,J MACMA No.1075 of 2023 9 receipt of copy of this order, duly adjusting the amount already deposited by the appellant. The claimants are entitled to the apportionment of the amount as directed by the Tribunal. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 18.12.2023 kkm LNA,J MACMA No.1075 of 2023 10 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.NO.1075 OF 2023 Date: 18.12.2023 kkm