1 RRN,J
MACMA No.3555 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.3555 OF 2014
JUDGMENT:
This appeal is filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, aggrieved by the order and decree, dated 30.11.2012, passed in M.V.O.P.No.258 of 2011 on the file of the Motor Accident Claims Tribunal-cum-V Additional District Judge, Warangal (for short "the Tribunal").
2. Brief facts of the case are that respondents No.1 to 4 filed a claim petition under Section 166 (1) (c) of the Motor Vehicles Act, claiming compensation of Rs.23,75,000/- on account of the death of the deceased Kommula Harish (hereinafter referred to as "deceased") in the accident. He worked as A.P.S.P. Constable in 4th battalion, APSP, Mamnoor, and used to draw Rs.23,912/- per month. Respondents No.1 and 2 are parents, respondent No.3 is the brother and respondent No.4 is the elder sister of the deceased. On 05.03.2011, the deceased went to Jakaram Village to attend the first birthday celebration of his friend's son. To attend the same, three persons namely Kathi Suresh, Bharath and Suresh were also attended the celebration. After completion of the function, the deceased in order to go to duty along with Suresh was returning on 2 RRN,J M.A.C.M.A.No.3555 of 2014 his vehicle driven by him. Kathi Suresh and his friend Bharath were following the deceased in another Vehicle. When they reached near Balaji Nursing Home, Mallampally, at about 20.00 hours, the driver of a DCM Lorry bearing No.AP-25T-5250 came in opposite direction in a rash and negligent manner lost control over it and dashed the vehicle of the deceased, due to which, the deceased died on the spot and the pillion rider sustained injuries. The said accident was witnessed by Kathi Suresh and his friend Bharath, who were following the deceased, and immediately shifted them to MGM Hospital in 108 Ambulance. Due to the sudden and untimely death of the deceased, all the petitioners were put to shock, mental agony and lost the only earning member of the family. Hence the claim petition.
4. The appellant and respondent No.5 filed their respective counters denying all the averments of the petition, manner of the accident, age, avocation, earning capacity, involvement, negligence of DCM lorry driver, and the very existence of the Insurance policy is disputed and called for strict proof of the same. Hence, they prayed for the dismissal of the petition.
5. To prove their case, the respondents No.1 to 4 examined PWs.1 to 3 and got marked Ex.A1 to A5 and Exs.X1 to X3. On 3 RRN,J M.A.C.M.A.No.3555 of 2014 behalf of the appellant and respondent No.5, RWs 1 and 2 were examined and got marked Ex.B1 to B7.
6. After considering the oral and documentary evidence available on record, the Tribunal allowed the O.P. in part awarding a sum of Rs.21,65,534/- towards compensation with interest at 6% per annum, to be paid by the appellant and respondent No.5 jointly and severally. Aggrieved by the said Award, the Insurance Company filed the present appeal.
7. Heard both sides and perused the record.
8. Learned counsel for the appellant/Insurance Company vehemently contended that the appellant deserves to be exonerated from the liability as there was no valid insurance policy between the appellant and respondent No.1 as on the date of the accident. This is so, because the cheque issued by respondent No.5 to the appellant towards payment of premium, was dishonoured and in proof of the same, Ex.B2 and B3 were marked. Consequently, the appellant also issued letters intimating the cancellation of the policy to the Road Transport Authority and also respondent No.5 vide Ex.B4 and B5. He further contended that the very insurance policy stands cancelled and the Tribunal ought not to have made the 4 RRN,J M.A.C.M.A.No.3555 of 2014 appellant liable for payment of compensation. Hence, prayed to allow the appeal.
9. On the other hand, learned counsel for respondents No.1 to 4/claimants contended that the Tribunal was justified in passing the impugned order by fixing liability even on the liability. He further submitted that the compensation amount deserves to be enhanced as the Tribunal erroneously considered the multiplier "13" instead of "18" and did not award future prospects at 50% on the income of the deceased. Accordingly, prayed to dismiss the appeal by enhancing the compensation.
10. A careful perusal of the impugned order would reveal that the appellant failed to satisfy the Tribunal that intimation was given to respondent No.5/owner of the vehicle and to the R.T.A. with regard to the alleged cancellation of insurance policy. The Tribunal observed that the cheque which was filed as Ex.B1 was not proved that it was issued by respondent No.5 to the appellant for the purpose of payment of premium. The Tribunal also took note of the fact that Ex.B1/cheque for Rs.9,706/- whereas the premium as per cover-note bears the amount of Rs.9,698/- and it is the version of respondent No.5 that the premium was paid by way of cash to the 5 RRN,J M.A.C.M.A.No.3555 of 2014 agent of the appellant Insurance Company, which is accepted by the Tribunal. More importantly, the appellant failed to file postal receipts/acknowledgement card to prove that the cancellation of the insurance policy was intimated to respondent No.5. As such, it can be concluded that the Tribunal was justified in passing the impugned order holding the appellant liable to pay compensation along with respondent No.5.
11. This Court would now deal with the quantum of the awarded compensation. Respondents No.1 to 4 were granted Rs.21,65,534/- and the same is interfered with in the following manner with respect to the appropriate multiplier to be applied and future prospects on the earnings of the deceased, in view of the decisions of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others1 and Sarla Verma Vs. Delhi Transport Corporation2:
Head Amount arrived at by Amount arrived at by the Tribunal this Court Salary of deceased Rs.22,096/- p.m. Rs.22,096/- p.m. Annual income after Rs.1,32,576/- Rs.1,32,576/-
deduction 50% as deceased (Rs.22,096 x 12 - 50%) (Rs.22,096 x 12 - 50%) was a bachelor Future prospects Rs.39,772/- Rs.66,288/- (50% to (30% was considered) be taken as per 1 2017 ACJ 2700 2 2009 ACJ 1208(SC) 6 RRN,J M.A.C.M.A.No.3555 of 2014 Pranay Sethi supra) Age Multiplier "13" (Mother's age "17" (As per Sarla taken as per Trilok Verma supra) Chandra) Loss of dependency Rs.22,40,534/- Rs.33,80,688/-
(1,72,348/- x 13) (Rs.1,98,864/- x 17)
Loss of Estate Rs.15,000/- Rs.16,500/-
(Rs.15,000/- + 10% as
per Pranay Sethi)
Funeral Expenses Rs.10,000/- Rs.16,500/-
(Rs.15,000/- + 10% as
per Pranay Sethi)
Loss of Filial Consortium Nil Rs.80,000/-
(Rs.40,000/- to each
respondents No.1 and
2 as per Nanu Ram
alias Chuhru Ram)
Deduction in view of receipt Rs.1,00,000/-
of death benefits
Total Rs.21,65,534/- Rs.33,93,688/-
12. Accordingly, the compensation amount deserves to be enhanced from Rs.21,65,534/- to Rs.33,93,688/-.
13. Learned Counsel for the appellant/Insurance Company at the time of the hearing contended that the present appeal is filed by the Insurance Company and at worst, the same is to be dismissed, but enhancement of compensation cannot be done in the absence of cross-objections or a separate appeal by the claimants. However, this court is relying upon the decision of Hon'ble Supreme Court in Ranjana Prakash Vs 7 RRN,J M.A.C.M.A.No.3555 of 2014 Divisional Manager3. A careful reading of the said decision would reveal that an Appellate Court is enabled/empowered to pass any order which ought to have been passed by the trial Court even if the claimant had not filed any appeal or cross-objection and the Appellate Court is vested with the duty to do complete justice to the parties. As such, no irregularity would arise in the event the awarded compensation is enhanced.
14. In the result, the M.A.C.M.A. filed by the appellant/Insurance Company is hereby dismissed. However, the total compensation calculated and directed to be paid by the appellant/Insurance Company and respondent No.5 to respondents No.1 and 2 is hereby increased from Rs.21,65,534 to Rs.33,93,688/- (Rupees Thirty three Lakh, ninety three thousand, six hundred and eighty eight only) with interest at the rate of 6% p.a. from the date of petition till the date of realization. The compensation amount shall be apportioned among the respondents/claimants in the same proportion as directed to be apportioned by the Tribunal. The appellant/Insurance Company and respondent No.5 are 3 Civil Appeal No.6110 of 2011 decided on 29.07.2011 8 RRN,J M.A.C.M.A.No.3555 of 2014 directed to deposit the above said amount with interest and costs after deducting the amount, if any, deposited earlier, within two months from the date of receipt of a copy of this judgment. The respondents/claimants are directed to pay the deficit Court fee on the enhanced compensation amount within two months from the date of copy of the receipt of the judgment. There shall be no order as to costs.
As a sequel thereto, miscellaneous applications, if any, pending in this appeal, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 10th day of March, 2023 BDR