THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.826 of 2019
JUDGMENT:
This appeal is preferred by the appellant-Insurance Company, questioning the order and decree, dated 22.01.2019 made in M.V.O.P.No.730 of 2016 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Principal District Judge at Nizamabad (for short, the Tribunal).
2. For the sake of convenience, the parties have been 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.8,00,000/- against the respondents for the death of one Mohammed Khader (hereinafter referred to as "the deceased") in the motor accident that occurred on 08.11.2016 at Badi Masjid turning Yellareddy town. It is stated that on the fateful day, at about 10:30 a.m., the deceased along with other person, was travelling on tractor bearing No.AP 07 BZ 1974, owned by respondent No.1, from Yellareddy town to Kalyani village and when they reached Badi Masjid turning Yellareddy, the driver of the said tractor drove it in a rash and negligent manner, as 2 MGP, J Macma_826_2019 a result of which, the deceased fell down and sustained grievous injuries and multiple fractures. Immediately, he was shifted to Government Hospital, Yellareddy and he succumbed to the injuries while taking to hospital. According to the claimants, the deceased was aged about 26 years, working as Labourer under respondent No.1 and earning Rs.20,000/- per month and due to sudden demise of the deceased, the claimants, who are the parents and sister of the deceased, lost love and affection and their support. Therefore, they laid claim against the respondent Nos.1 & 2, who are the registered owner and insurer of the aforesaid Tractor.
4. Respondent No.1 filed counter stating that the vehicle was insured with the respondent No.2 and the policy was in force as on the date of accident and in case if any compensation is awarded, respondent No.2 alone is liable to pay the compensation.
5. Respondent No.2 filed counter denying the averments of the petition, age, avocation and income of the deceased. It is further contended that the deceased illegally boarded the tractor and he was not the labourer of respondent No.1 and 3 MGP, J Macma_826_2019 the seating capacity of the tractor is only one and there is no provision for seating apart from the driver of the tractor. Therefore, the claimant is not entitled to claim compensation and prays to dismiss the petition.
6. After considering the claim and the counters filed by respondent Nos.1 and 2 and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.7,44,000/- with interest at 7.5% per annum, holding that the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
7. Heard the learned Standing Counsel for the appellant- Insurance Company and the learned counsel for the claimants and perused the record.
8. The main contention of the learned standing counsel for the appellant/Insurance Company is that the owner of the offending vehicle has violated the terms and conditions of the Policy by allowing the deceased to travel on the mudguard of the tractor and therefore, the Insurance Company cannot be 4 MGP, J Macma_826_2019 even fastened with the liability of pay and recovery. It is further contended that the seating capacity of the tractor is only one in number that is for the driver alone and the deceased was traveled on the tractor engine and therefore, prays to dismiss the petition.
9. Per contra, learned Counsel appearing for the claimants submits that the Tribunal passed a well reasoned order which needs no interference. He further submits that though the deceased travelled in the tractor as an unauthorized passenger, the liability of insurance company cannot be exonerated and hence the Tribunal has rightly passed the order, and the same does not need any interference. He further contended that even, for the sake of argument, the liability of insurance company is exonerated, the insurance company is still liable to pay the claimants at the first instance and then recover the same from the owner of the vehicle, in accordance with the decisions of the Apex Court.
10. Insofar as the manner in which the accident took place is concerned, a perusal of the impugned judgment shows that 5 MGP, J Macma_826_2019 the tribunal having framed Issue No.1, as to "whether the accident took place due to rash and negligent driving of tractor bearing No. AP 07 BZ 1974 by its driver causing death of Mohammed Khader", and having considered the evidence of P.W.3, eyewitness, coupled with the documentary evidence, has categorically observed that the accident occurred due to the rash and negligent act of the driver of the offending tractor and has answered the issue in favour of the claimants and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal in this regard.
11. As far as the quantum of compensation is concerned, admittedly, the claimants have not let in any evidence, either oral or documentary, to prove their claim that the deceased was earning a sum of Rs.20,000/- per month by working as labour on the tractor. In Latha Wadhwa vs. State of Bihar1, the Apex Court has held that even there is no proof of income and earnings, the income can be reasonably estimated. Since the deceased was aged about 26 years at the time of accident and he was able bodied person, the tribunal has assessed the 1 (2001) 8 SCC 197 6 MGP, J Macma_826_2019 monthly income of the deceased at Rs.7,000/-, which, in the opinion of this Court, cannot be said to be higher. Admittedly, the deceased was 26 years at the time of the accident. As there are three dependents, the tribunal ought to have deducted 1/3rd but not ½ towards the personal expenses of the deceased. Therefore, after deducting 1/3rd from the monthly gross income of the deceased, the net monthly income that was being contributed to the family comes to Rs.4,666/- (Rs.7,000/- - Rs.2,333/- being 1/3rd therefrom). Thus, the annual contribution to the family comes to Rs.55,992/- (4666 x 12 = 55,992/-). As per Ex.A.3, Post-Mortem Examination Report, the age of the deceased was 26 years and therefore, the tribunal has rightly applied the multiplier '17'. Thus, by applying the multiplier '17', the loss of dependency comes to Rs.9,51,864/-. The other amounts awarded by the Tribunal under conventional heads appears to be less, which need to be modified by this Court. In addition thereto, under the conventional heads, the claimants are granted Rs.77,000/- as per the decision of the Apex Court in National Insurance Company Limited Vs. 7 MGP, J Macma_826_2019 Pranay Sethi and others2. Thus, in all the claimants are entitled to Rs.10,28,864/-.
12. As seen from Ex.B.1 policy, the offending vehicle was insured with respondent No.2 and the policy was in force as on the date of accident. Even as per the evidence on record, the deceased was sitting on the mudguard of the tractor and he comes under the category of unauthorized passenger and his risk is not covered by the policy. In similar circumstances, in the case of Manuara Khatun v. Rajesh Kr. Singh3, the Hon'ble Supreme Court dealt with the case of gratuitous passengers and held that the claimants are entitled for an order against the insurer to pay the awarded sum to the claimants and then to recover the said amount from the insured in the same proceedings. Further, in a recent judgment in Anu Bhanvara v. Iffco Tokio General Insurance Company Limited4, the Hon'ble Supreme Court dealt with the similar issue by referring its earlier judgments 2 2017 ACJ 2700 3 (2017) 4 SCC 796 4 Laws (SC) 2019 840 8 MGP, J Macma_826_2019 in National Insurance Co. Ltd. V. Baljit Kaur5 and Manuara Khatun (supra) apart from other judgments, invoked the principle of 'pay and recover', in the peculiar facts and circumstances of the case. In Manuara Khatun (supra), the Apex Court at para No. 16 held as under:-
"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view of the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".5
2004 ACJ 428 9 MGP, J Macma_826_2019
13. In view of the above, the Tribunal has rightly directed the respondent No.2- Insurance Company to deposit the compensation at first instance and recover the said amount from respondent No.1 thereafter, which is not be interfered with by this Court.
14. At this stage, the learned standing Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.8,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
15. In view of the Judgments of the Apex Court in Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another6 and Nagappa Vs. Gurudayal Singh7 the claimants are entitled to get just compensation even if it is more than the amount what was claimed by the claimants.
6 (2011) 10 SCC 756 7 2003 ACJ 12 (SC) 10 MGP, J Macma_826_2019
16. Accordingly, the Motor Accident Civil Miscellaneous Appeal stands dismissed. However, the compensation awarded by the Tribunal is enhanced from Rs.7,44,000/- to Rs.10,28,864/-. The enhanced amount shall carry interest at the rate of 7.5% per annum from the date of petition till the date of realization. The amount of compensation shall be apportioned among the appellants-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, the claimants are permitted to withdraw the said amount. However, the claimants shall pay the deficit court fee on the enhanced compensation. No order as to costs.
_______________________ M.G.PRIYADARSINI, J 10.03.2023 Gms 11 MGP, J Macma_826_2019 THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.No.826 of 2019 DATE: 10.03.2023 gms