HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.No.1170 OF 2016
JUDGMENT:
Heard the learned counsel Sri N.Mohan Krishna for the appellant-insurance company and the learned counsel Sri K.Buchi Babu for the respondents 1 to 6.
2. This appeal has been filed by the appellant-insurance company assailing the award dated 10.12.2015 passed in O.P.No.1349 of 2009 by the Motor Accidents Claims Tribunal- cum-II Additional Chief Judge, City Civil Court at Hyderabad (for short, 'the Tribunal'), wherein the claim of respondents 1 to 6 herein was allowed, awarding compensation of Rs.20,00,000/- with costs and interest at 9% per annum from the date of petition till the date of the order and thereafter 6% per annum till payment.
3. The brief factual matrix of the present appeal is as under:
4. Respondents 1 to 6 herein filed the claim application seeking compensation of Rs.20,00,000/- on account of death of the deceased--Syed Anwar @ Anwar Pasha @ Mohd.Anwar s/o.Mazeer Ali, who died in a motor vehicle accident that occurred on 19.11.2007. The first claimant is wife and the 2 claimants 2, 4, 6 are the sons and claimants 3 and 5 are the daughters of the deceased. It is contended that on 19.11.2007 at about 4.30 p.m., an auto bearing registration No.AP-15-V- 5561, driven by respondent no.1-Mallesham, coming from Bejjanki side towards Dacharam village with school children with their bags in high speed on wrong side of the road, dashed against the motorcyclist i.e., deceased, who was going on his motorcycle bearing registration No.AP-15-N-2321 from opposite side at Mathannapet. As a result, the deceased sustained multiple injuries and he was shifted to Government Hospital, Kareemnagar and from there, he was shifted to private hospital and to Gandhi Hospital, Secunderabad, where he succumbed to injuries on 01.12.2007. A case in Crime No.117 of 2007 under Section 304-A IPC was registered by the Police, Bejjanki Police Station.
5. The owner-cum-driver of the Auto, the 7th respondent herein, remained ex parte.
6. The appellant-insurance company filed counter denying all the allegations made in the claim petition and further contended that the accident occurred due to rash and negligent driving of the deceased and hence, the appellant is not liable to 3 pay compensation. It was also contended by the appellant- insurer that the insurer of the motor cycle is not added as party to the petition and the owner of the Auto has violated Section1 134(C) of MV Act and the claim is high.
7. The appellant-insurance company filed additional counter contending that the driver of the auto was having only learner's driving license and not having a valid and effective driving license as on the date of the accident and as such, insurance company is not liable to pay compensation. It is further contended that the insurance company had issued a policy in respect of the auto, which is described as passenger carrying vehicle belongs to 1st respondent, under the driver's clause, any person can be authorized to drive the vehicle, who is having a valid and effective driving license, but, as per the copy of the driving license, one P.Ashok, aged about 19 years, was the driver of the said auto at the time of the accident and was having only learner's driving license and therefore, violated the procedure under rule (3) of the MV Rules. Therefore, insurance company is not liable to pay any compensation and prayed for dismissal of the claim petition.
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8. Based on the above pleadings, the Tribunal framed the following issues:
i) Whether the accident resulting in death of Syed Anwar @ Anwar Pasha @ Mohd. Anwar occurred owing to the rash and negligent driving of the driver of auto bearing No.AP-15-V-5561?
ii) Whether the petitioners are entitled for compensation ? If so, to what extent and form whom ?
iii) To what relief?
9. To substantiate the claim, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked. On behalf of the appellant-insurance company, RWs.1 and 2 were examined and Exs.B1 to B6 were marked.
10. On consideration of evidence and material placed on record, the Tribunal held that the accident occurred due to rash and negligent driving of the auto, resulting in death of the deceased. The Tribunal further held that the claimants are entitled for a total compensation of Rs.20,00,000/-. Accordingly, an award was passed for the said amount with interest at 9% per annum from the date of petition. Aggrieved by 5 the same, the present appeal is filed by the appellant-insurance company.
11. During the course of hearing of appeal, the appellant mainly contended that the accident occurred due to sole/contributory negligence on the part of the deceased, that the Tribunal has failed to see that the driver of the insured auto had leaner's driving license at the time of the accident and the Tribunal failed to examine the concerned RTO to prove the driving license violation and, therefore, the appellant is not liable to pay any compensation and prayed to set aside the award and allow the appeal.
Consideration:
12. A perusal of the award passed by the Tribunal shows that the contentions raised by the appellant herein have been considered and detailed reasons were recorded by the Tribunal at paragraph No.16 of the award, which reads as under:-
"16. To exonerate the second respondent from liability the Tribunal has consider that the license held by the driver was the main cause for causing the accident and the owner of the vehicle knowing fully well that the driver was not legally authorized to drive the vehicle and intentionally committed breach of terms and conditions of the insurance policy. I am not able to convince with the 6 submissions of the learned counsel for the second respondent that first respondent committed breach of conditions of insurance policy knowing fully well about the legal implication and difference between learner's license holder cannot drive the vehicle at all on road in the traffic. It is only a hyper technical aspect that was pleaded by the second respondent. In fact the mode of driving vehicle has not caused the accident as per the FIR. The bags hanged to the auto hit the deceased, consequently he was fallen and received injuries. So in this particular case the mode of the driving the auto is not the actual cause of the accident. The negligence on the part of the driver of the vehicle while driving it hanged bags of the school children and not taken proper care in that regard that resulted the accident, while using the motor vehicle. It is to be noted not only driving of the vehicle but also using the motor cycle attracts the claim, if there was an accident resulted in death or injuries. Therefore, I disagree with the submissions of the learned counsel for the second respondent that second respondent is not liable to pay compensation, for the reason that first respondent's driver was holding only learner's license."
13. It is clear from the above that the Tribunal recorded detailed reasons for rejection of contention of appellant and this Court do not find any fault with the said reason recorded by the Tribunal nor the appellant could convince this Court to interfere with the said finding of the Tribunal.
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14. With regard to the contention of the appellant that the Tribunal ought not to have granted compensation of Rs.20,00,000/- to the claimants in light of providing job to one of the claimants of the deceased on compassionate grounds. The Tribunal at paragraph No.17 observed that the salary received by respondent No.4 on compassionate ground cannot be taken into account while computing the compensation. In any event, the deduction towards the personal expenses of the deceased will not change even if the respondent No.4 held to be non dependent of the deceased.
15. It is relevant to mention that as per the Hon'ble Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another 1, where the deceased was married, the deduction towards personal and living expenses of the deceased should be as under:
i) one-third (1/3rd) where the number of dependent family members is 2 to 3;
ii) one-fourth (1/4th) where the number of dependent family members is 4 to 6; and
iii) one-firth (1/5th) where the number of dependent family members exceeds six.
1 (2009) 6 SCC 121 8
16. In the present case, dependents are six and even if respondent No.4 is not considered as dependent, the standard deduction towards personal and living expenses of the deceased will remain one-fourth.
17. With regard to employment of deceased, as per Ex.A6-pay slip, the deceased was working as Assistant Lineman in NPDC of AP Ltd., Operation Circle, Karimnagar. Thus, the deceased was government employee working in Electricity Department of erstwhile State of Andhra Pradesh. As per Ex.A6, the deceased was drawing gross salary of Rs.15,415/- and net salary of Rs.7437/-. The Tribunal observed that the main deductions are with regard to vehicle installment and PF contribution and other deductions are very minor amounts and therefore, the Tribunal has considered the salary of deceased as Rs.15,000/- per month and applied multiplier '13' considering the age of the deceased as 47. Thus, this Court do not find any irregularity in computation of the compensation by the Tribunal.
18. In view of the above discussion, this Court do not find any merit in the contention of the appellant and accordingly, the appeal fails and hereby dismissed. There shall be no order as to costs.
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19. The appellant-insurance company is directed to deposit the compensation amount within a period of eight (8) weeks from the date of receipt of copy of this order by duly adjusting the amount, if any, already paid by the appellant-insurance company to the claimants.
20. Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 29.09.2023 kkm 10 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.NO.1170 OF 2016 Date: 29.09.2023 Ktm/kkm