THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
M.A.C.M.A.Nos.744 AND 635 OF 2015
COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)
Being aggrieved by the order and decree dated 10.04.2015 in
M.V.O.P.No.649 of 2011 passed by the Family Court-Cum-VIII
Additional District Judge, Mahabubnagar, the Reliance General
Insurance Company Limited filed M.A.C.M.A.No.744 of 2015
challenging the liability and quantum of compensation, awarded
by the Court below. The appellants/petitioners/claimants in the
said M.V.O.P., filed M.A.C.M.A.No.635 of 2015 seeking
enhancement of compensation.
2. Since both the appeals arise out of the same order and the
parties are also same, they are disposed of by this common
judgment.
3. For the sake of convenience, the appellant in
M.A.C.M.A.No.744 of 2015 is referred to as 'Insurance Company'
and the appellants in M.A.C.M.A.No.635 of 2015 are referred to as
'claimants'.
KL, J & SKS, J
MACMA.Nos.744 & 635 of 2015
2
4. Heard Sri T.Mahender Rao, learned counsel appearing for
Insurance Company, and Sri K.Venkatesh Gupta, learned counsel
for claimants.
5. On considering the entire evidence on record, the Court
below held that the accident had occurred due to the negligence of
the driver of Indica car bearing No.AP-12F-1230. The Court below
vide order dated 10.04.2015 in M.V.O.P.No.649 of 2011 awarded a
sum of Rs.26,00,000/- (Twenty Six Lakhs only) together with
interest at the rate of 7.5% per annum from the date of filing of
claim petition till the date of realization, to the claimants as
against respondent Nos.1 and 2 i.e., owner of the car, and
Insurance Company, respectively, against the claim of Rs.40,00,000/- (Forty Lakhs only) claimed by the claimants for the death of the deceased in a motor vehicle accident occurred on 22.09.2011.
6. The Insurance Company filed M.A.C.M.A.No.744 of 2015 disputing the liability and quantum of compensation, awarded by the Court below. Per contra, the claimants filed M.A.C.M.A.No.635 of 2015 for enhancement of compensation.
7. M.A.C.M.A.No.744 of 2015 was filed claiming that the accident occurred due to the involvement of motorcycle bearing KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 3 No.AP-28DD-1099 driven by the deceased with the Indica car bearing No.AP-12F-1230. Therefore, the Insurance Company prayed that the Court below ought to have at least held that the accident took place due to the contributory negligence of the deceased who was the rider of the motorcycle and the driver of the Indica car bearing No.AP-12F-1230 and apportioned the compensation accordingly, as head-on collision between two vehicles takes place only when the drivers of both vehicles are negligent, as held by this Court in A.Jaya Ramulu Vs. Md.Afzal Miyan and Another 1. Further, the Insurance Company also contended that the trial Court erred in taking the income of the deceased as Rs.13,400/- per month by relying upon the salary certificate (Ex.A10) while estimating the loss of dependency and the learned Judge failed to see that where the annual income of the deceased is in taxable range, the words 'actual salary', should be read as 'actual salary less tax' and therefore, the income tax and profession tax liability of the deceased has to be deducted while estimating the loss of dependency as held by the Hon'ble Supreme Court in Sarla Varma and Others Vs. Delhi Transport Corporation and Another 2.
1 (2006) ACJ 855 2 (2009) 6 SCC 121 KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 4
8. On the other hand, the claimants filed M.A.C.M.A.No.635 of 2015 stating that the trial court erred materially in not awarding any amount towards loss of estate of the deceased and has also not awarded any amount towards care and protection of appellant No.2 at the time of her old age. Further, the trial Court ought to have taken into consideration the future prospects of the deceased at 100% instead of adding 50%. It is contented that the trial Court awarded very meager amount towards funeral expenses and the trial Court ought to have awarded interest at the rate of 15% per annum, as was being charged by the nationalized banks while granting personal loans. As such, prayed this Court to award enhanced compensation of Rs.40,00,000/-.
9. Now the points that arise for consideration are :
1. Whether the accident occurred due to negligence of the rider of hero honda passion plus motorcycle bearing No.AP-28DD-1099 ?
2. Whether the driver of indica car bearing No.AP-12F-1230 is having valid driving license on the date of incident ?
3. Whether the claimants are entitled for enhancement of compensation as prayed for ?
4. To what relief ?
KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 5 POINT Nos.1 to 4 :
10. To prove the accident, the petitioners in the O.P., relied on the evidence of PWs.1 and 2 and got marked Exs.A1 to A10. Petitioner No.1 is the wife of the deceased. Petitioner No.2 is the mother of the deceased. Petitioner No.1 got herself examined as PW.1 and PW.2 was examined as the eye witness to the accident. PW.3 is the Principal of Mahatma Gandhi Institute of Technology, where the deceased used to work as watchman. Ex.A1 is the certified copy of the First Information Report, Ex.A2 is the certified copy of inquest report, Ex.A3 is the certified copy of postmortem examination report, Ex.A4 is the certified copy of crime details form, Ex.A5 is the certified copy of M.V.I., report, Ex.A6 is the certified copy of charge sheet, Ex.A7 is the copy of policy, Ex.A8 is the copy of R.C., Ex.A9 is the copy of driving license and Ex.A10 is the original service salary certificate.
11. PW.1 is the wife of the deceased. She reiterated the version as averred in the claim petition. She deposed that she is not eye witness to the accident. PW.2 - Venkataiah, supported the version of PW.1 saying that he is witness to the accident. He stated that on 22.09.2011 the deceased was proceeding from Hyderabad towards Telugupally Village of Amrabad Mandal on hero honda passion plus motorcycle bearing No.AP-28DD-1099 and on the KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 6 way at about 04:50 P.M., when the deceased was proceeding near culvert in between Maisigandi and Kadthal Village, a indica car bearing No.AP-12F-1230 came in the opposite direction, driven by its driver at high speed, in a rash and negligent manner, and dashed against the deceased, due to which the deceased sustained severe bleeding injuries. Immediately, the deceased was shifted to the hospital at Amangal and from there he was shifted to Prime Hospital for better treatment, where he succumbed to injuries while undergoing treatment. PW.1 in her cross examination denied the suggestion that her husband did not drive the motorcycle and that they colluded with the police officials got foisted the case against the respondent No.1. PW.2 in his cross examination stated that the police has not examined him about the accident on hand and he did not state before the police about the accident.
12. The Insurance Company did not choose to examine itself or anybody to show that there was no rash and negligent driving on the part of the driver of the crime vehicle. The contention of insurance company was that PW.2 is not figured as eye witness to the accident and his evidence cannot be taken into consideration and it can be brushed aside. On that ground, the counsel for petitioner in the trial Court placed reliance on the decision in Kollipara Veera Raghavamma and Another Vs. S.Raghavaraju KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 7 and Others 3, wherein at paragraph No.5 it was observed that "we do not think merely because the witness was not examined in the criminal case his evidence can be rejected". Except that suggestion, nothing was elicited to discredit the testimony of PW.2.
13. Further, the Insurance Company, in support of their version filed certified copies of FIR, inquest, postmortem report, crime details form, MVI report and charge sheet vide Exs.A1 to A5, respectively. The Insurance Company claims contributory negligence on the part of the rider of the motorcycle and the driver of the indica car. In support of the said claim, reliance was placed on the decision taken in the case of Agnuru Jaya Ramulu Vs. Mohammed Afzal Miyan and Another 4. The relevant paragraph No.10 reads as under:
"10. The entry dated 13.7.1997 in Ex. X. 1 extracted above shows that there was a head on collision between the two vehicles. A head on collision between two vehicles takes place only when the drivers of both the vehicles involved in the accident are negligent. So, from the above entiry it is easy to see that appellant himself should have contributed to the accident. His contribution to the accident can in no event be less than 50%. Since the police did not send the 3 1996 (2) T.A.C. 531 (AP) 4 2004 SCC OnLine AP 754 KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 8 vehicles involved in the accident for examination by a Motor Vehicles Inspector, the lorry that allegedly caused the accident is not known. Therefore, appellant in collusion with the first respondent and the police, with the help of P.W. 2 must have filed a collusive petition to enable him to get compensation from the insurer of the lorry of the first respondent i.e., second respondent. For reasons best known to it, second respondent did not obtain permission under Section 170 of the Motor Vehicles Act, 1988, to contest the case on all the grounds."
14. In the present case, the crime record shows that the accident occurred due to the negligence of Indica car bearing No.AP-12F-1230 and no oral evidence was placed before the Court below to substantiate the contention that there was no negligence on the part of the driver of the crime vehicle or there is contributory negligence on the part of the rider of bike. In absence of any evidence on behalf of Insurance Company and in view of the evidence of PW.2 apart from Ex.A1 to A9, it can be held that the accident occurred due to negligent driving of the driver of Indica car bearing No.AP-12F-1230. Further, the Insurance Company submitted that the driver of Indica car bearing No.AP-12F-1230 had no valid driving license on the date of accident, whereas, Ex.A9 copy of driving license shows that the driver of car had valid driving license on the date of accident.
KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 9
15. The Insurance Company contended that while computing the income of the deceased, the trial Court failed to deduct the tax from salary and also contended that the Court below awarded 7.5% interest instead of 6%, whereas, the professional tax of Rs.100/- is deducted from salary.
16. As seen from the record, the gross salary of the deceased was Rs.13,533/-, out of which after deducting professional tax of Rs.100/-, the gross salary comes to Rs.13,433/- per month. The age of the deceased at the time of accident was 33 years and the same is not disputed by the Insurance Company. As such, he is entitled for 50% future prospects as held by the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and Others 5. Therefore, it would be Rs.6,716/- + Rs.13,433/- totaling to Rs.20,100/- per month and Rs.2,41,200/- per annum. Since the deceased had two dependents, his 1/3rd income shall be deducted towards his personal expenditure which would come to Rs.80,400/-. After the said amount is deducted from the annual income, the same would come to Rs.1,60,800/-. The appropriate multiplier applicable for the age group of 30 to 35 years is 16 as per the Judgment of the Hon'ble Supreme Court in Sarla Verma 5 2017 16 SCC 680 KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 10 and Others Vs Delhi Transport Corporation and another 6. Therefore, the income of the deceased when multiplied with 16 (1,60,800 x 16) would come to Rs.25,72,800/-. Apart from that, the claimants are also entitled to Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of consortium to both the claimants each, and Rs.15,000/- towards funeral expenses.
17. Thus, in view of the above discussion, the compensation awarded to claimants under various heads are as follows:
Loss of dependency/contribution to family Rs.25,72,800/-
Loss of consortium to claimant No.1 Rs.40,000/-
Loss of consortium to claimant No.2 Rs.40,000/-
Loss of estate Rs.15,000/-
Funeral expenses Rs.15,000/-
Transportation Rs.5,000/-
Damage to clothes Rs.1,000/-
------------------------------------------------------ -------------------Total Compensation Rs.26,88,800/-
18. As far as the issue of rate of interest is concerned, the Insurance Company submitted that 7.5% per annum interest is 6 2009 6 SCC 121 KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 11 high, but 6% is reasonable interest. Whereas, the Apex Court in Sonal Gupta and another Vs United India Insurance Co., Ltd. and another 7, in paragraph No.31 it was observed as under :
"31. As far as issue of rate of interest is concerned, it should be 7.5 per cent in view of the latest decision of the Apex Court in National Insurance Co. Ltd., V Mannat Johal, 2019 ACJ 1849 (SC), wherein the Apex Court has held as under :
"(13) The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12 per cent per annum but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5 per cent per annum and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
Accordingly, point Nos.1 to 4 are answered.
19. IN THE RESULT, M.A.C.M.A.No.744 of 2015 is dismissed and M.A.C.M.A.No.635 of 2015 is partly allowed. Accordingly, the order and decree dated 10.04.2015 in M.V.O.P.No.649 of 2011 passed by the Family Court-Cum-VIII Additional District Judge, Mahabubnagar is modified enhancing the compensation to Rs.26,88,800/- (Rupees Twenty Six Lakhs Eighty Eight Thousand and Eight Hundred only) from Rs.26,00,000/- (Rupees Twenty Six 7 2023 ACJ 1013 KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 12 Lakhs only) with interest @ 7.5% per annum from the date of petition till realization. The owner and Insurance company are jointly and severally liable to pay the said compensation. As such, the compensation amount shall be apportioned among the claimants in the same proportion in which original compensation amounts were directed to be apportioned by the Court below. As far as loss of consortium amounts are concerned, the respective claimants alone are entitled to receive from out of the above said total compensation. The owner and insurer of the offending vehicle are directed to deposit the above said amount with interest and costs, after deducting the amount which was already deposited, within one month from the date of receipt of certified copy of this judgment. No order as to costs.
Miscellaneous applications, if any, pending in these M.A.C.M.As, shall stand closed.
__________________ K. LAKSHMAN, J _______________ K. SUJANA, J Date :18.10.2023 PT KL, J & SKS, J MACMA.Nos.744 & 635 of 2015 13 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA P.D. COMMON JUDGMENT IN M.A.C.M.A.Nos.744 AND 635 OF 2015 (Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana) Date:18.10.2023 PT