THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2407 of 2018
JUDGMENT:
Dissatisfied with the quantum of compensation awarded in the order and decree, dated 29.08.2017 passed in M.V.O.P.No. 343 of 2008 on the file of the Family Court-cum- VIII Additional District Judge, Mahabubnagar (for short "the Tribunal"), the appellants/claimants preferred the present appeal seeking enhancement of the compensation.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the Tribunal.
3. Brief facts of the case are that the claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.8,00,000/- for the death of one Veeragoti Venkatesh, husband of claimant No. 1, father of claimant Nos.2 to 5 and son of claimant No. 6 (hereinafter referred to as "the deceased"), who died in a motor vehicle accident that occurred on 08.03.2008. According to the claimants, on the fateful day, while the deceased Veeragoti Venkatesh along with another deceased-Kurmaiah was returning on motorcycle bearing No.AHY-1494 to Shadnagar 2 MGP, J Macma_2407_2018 from Yelikatta village after laying cement slab, when they were proceeding on their two motorcycles and when they reached near Vishnu Granite Factory in Shadnagar limits, the crime vehicle i.e., Truck bearing No. MP 09HF 0720 being driven by its driver came in rash and negligent manner and dashed the motorcycle, as a result of which, the deceased fell down, sustained multiple injuries and he succumbed to injuries while undergoing treatment at Osmania Gandhi Hospital. According to the claimants, the deceased was aged 35 years, working as a mason and earning Rs.300/- per day. Therefore, they filed the claim petition against the respondent Nos. 1 to 3 claiming compensation of Rs.8.00 lakhs towards compensation under different heads.
4. Before the tribunal, while the owner of the vehicle, respondent No. 1 remained exparte, the insurance company, respondent No.2 and respondent No.3-financier, filed separate counters denying the manner in which the accident took place, including the age, avocation and income of the deceased. It is also stated that the quantum of compensation 3 MGP, J Macma_2407_2018 claimed is excessive, baseless and prayed to dismiss the petition.
5. Considering claim, counters and the oral and documentary evidence available on record, the tribunal held that the accident occurred due to the negligent driving of the Truck by its driver and accordingly awarded an amount of Rs.4,30,000/- with interest at 9% per annum payable by respondent No.1 only. Dissatisfied with the quantum of compensation and dismissal of liability against the respondent Nos.2 & 3, the claimants filed the present appeal.
6. Heard the learned counsel for the appellants, the learned Standing Counsel for the respondent No.2 and the learned Standing counsel for respondent No.3 and perused the record.
7. The contention of the learned counsel appearing for the appellants is that the Tribunal has erred in fixing liability against the respondent No.1 only by dismissing the claim against the respondent No.2 who is responsible and liable to pay compensation to the petitioners. Further the tribunal did not give any cogent reasons for dismissing the claim against 4 MGP, J Macma_2407_2018 the respondent No.2 and relied upon the technical and typographical error in the policy, which was corrected by the respondent No.2 and the respondent No.2 Insurance Company did not clarify or rectify the same in spite of specific order from the tribunal in I.A.no.752 of 2012. It is further contention of the learned counsel for the claimants is that the respondent No.2 intentionally avoid the liability. Hence adverse inference can be drawn and prays to allow the appeal.
8. On the other hand, the learned Standing Counsel for respondent-Insurance Company has contended that the tribunal after considering the oral and documentary evidence on record, rightly came to the conclusion and as such, interference of this Court is not necessary and prays for dismissal of the appeal.
9. A perusal of the judgment discloses that the tribunal having framed issue No.1, as "Whether the accident occurred on 08.03.2008 at about 10.30 O' Clock in the night near Vishnu Granites Company, Shadnagar due to the rash and negligent driving of driver of the vehicle i.e, Truck bearing No. MP 09 HF 0720, after evaluating the oral and documentary 5 MGP, J Macma_2407_2018 evidence available on record, came to the correct conclusion that the accident occurred due to the rash and negligent driving of the driver of the auto. Therefore, I see no reason to interfere on this aspect.
10. The main contention of the learned counsel for the claimants is that the tribunal has erred in fixing the liability against the respondent No.1 only on the ground that the chassis number and engine number are not tallying even though the petitioners have taken all steps to prove the insurance policy.
11. This Court has perused the evidence adduced under Exs.A.6, A.7, A.8 and B.1, B.2. As per Ex.A6, Copy of insurance policy issued by oriental insurance company discloses that the policy issued from 24.05.2007 to 25.05.2008 for the chassis No.100619 & engine No.1224500826 and Ex.A.7, Copy of insurance policy issued by New India Insurance Company, discloses that the policy issued from 24.05.2006 to 23.05.20076 for the chassis No.444026ETZ118431 & engine No.697TC57ETZ122452. A perusal of Exs.A.6 & A.7 discloses that the vehicle number 6 MGP, J Macma_2407_2018 and policy numbers are one and the same. However, the dispute is with the regard to the discrepancy of chassis number and engine numbers. The chassis and engine number as per Exs.A.7 and Ex.B.1. Though the insurance company got examined RW-1, who categorically deposed that the chassis number and engine numbers are matching with policy issued under Ex.A.7, however, the same is not matching with Ex.B.1, true copy of insurance policy. Therefore, the learned standing counsel for the respondent No.2 contended that the policy is a fake policy.
12. It is pertinent to state that I.A.No.752 of 2012 was filed and allowed and the Court ordered to produce the proposal form and cover note and RW.1 was recalled. But in his evidence, he has stated that he did not bring the proposal form or cover note furnished by the owner of the crime vehicle and also stated that he does not know whether the insured addressed a letter to Branch to correct the engine number and chassis number of the vehicle. It is also important to note that though the insurance company disputed the policy as a fake policy, it has not taken any steps to give complaint in the 7 MGP, J Macma_2407_2018 Police station nor taken any other steps for correcting fake policy. Furthermore, the RW.1 in spite of giving opportunity, has not produced the cover note or proposal form and simply stated that he has no knowledge about letter addressed by the insured to their branch officer. In these circumstances, an adverse interference can be drawn. It is also important to note that there is no dispute regarding issuance of policy by the Insurance company for the year 2006-2007. However, during the renewal of policy issuance of Ex.A6, for the year 2007- 2008 is only, the dispute with regard to chassis number and engine number arises. As per claimants, the respondent No.1/owner of the crime vehicle has addressed a letter for correction of the chassis number and engine number but the same was not in the knowledge of the RW.1. In view of the above, this Court is of the considered opinion that the Tribunal has erred in exonerating the liability against respondent Nos. 2 & 3 and fixing liability only on respondent No.1. Therefore, respondent Nos.1 to 3 are jointly and severally liable to pay the compensation. 8
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13. As regards the quantum of compensation, the claimants claimed that the deceased was earning Rs.300/- per day by working as a mason. However, no documentary evidence was produced to establish the income of the deceased. Such being the case and as the year of the accident, 2008, this Court is inclined to fix the monthly income of the deceased at Rs.4,500/- per month. Considering the fact that the age of the deceased at the time of accident was below 35 years, the claimants are entitled to addition of 40% towards future prospects to the established income, as per the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others1. Therefore, the future monthly income of the deceased comes to Rs.6,300/- (Rs.4,500/- + Rs.1800/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following the decision in Sarla Verma v. Delhi Transport Corporation2, since there are six dependents (claimant Nos. 1 to 6). After deducting 1/4th therefrom towards his personal and living expenses, the contribution of income by the deceased to the 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 9 MGP, J Macma_2407_2018 family comes to Rs.4,725/- per month. Since the age of the deceased was 35 years as held by the Tribunal, the appropriate multiplier is '16' as per the guidelines laid down by the Apex Court in Sarla Verma (supra). Adopting multiplier '16', the total loss of dependency comes to Rs.9,07,200/- (Rs.4,725/- x 12 x 16). That apart, the claimants are entitled to Rs.77,000/- under the conventional heads as per the decision of the Apex Court in Pranay Sethi (supra). Further, since the claimant Nos. 2 and 3 are minor children of the deceased, this Court is inclined to award a sum of Rs.40,000/- each to claimant Nos. 2 to 5 under the head of parental consortium as per the decision of the Apex Court in Nanu Ram @ Chuhru Ram (supra). Thus all, the claimants are entitled to Rs.11,44,200/-. Insofar as the interest awarded by the Tribunal is concerned, the claimants are entitled to interest @ 7.5% per annum on the compensation awarded by the Tribunal from the date of filing of O.P. till realization, as per the decision of the Apex Court in Rajesh and others v. Rajbir Singh and others3. Hence, the 3 2013 ACJ 1403 = 2013 (4) ALT 35 10 MGP, J Macma_2407_2018 interest granted by the Tribunal @ 9% per annum is reduced to 7.5% per annum.
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 another4 and Nagappa Vs. Gurudayal Singh5 the claimants are entitled to get just compensation even if it is more than the amount what was claimed by the claimants.
16. Accordingly, M.A.C.M.A. is allowed. The compensation amount awarded by the Tribunal is enhanced from Rs.4,30,000/- to Rs.11,44,200/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of filing of the petition till the date of realization. The enhanced amount 4 (2011) 10 SCC 756 5 2003 ACJ 12 (SC) 11 MGP, J Macma_2407_2018 shall be apportioned in the manner as ordered by the Tribunal. Time to deposit the entire compensation is two months from the date of receipt of a copy of this judgment. On such deposit, the major claimants are entitled to withdraw their respective share amounts without furnishing any security. However, the claimants are directed to deposit the deficit court fee on the enhanced amount. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________ SMT. M.G.PRIYADARSINI, J .03.2023 gms 12 MGP, J Macma_2407_2018 THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.No.2407 of 2018 DATE: -03-2023