Telangana High Court
Erraguntla Balraj, Mahabubnagar Dist. vs P. Sriramulu, Mahabubnagar Dist. And ... on 2 April, 2024
HON'BLE SRI JUSTICE K.SURENDER
MACMA.Nos.2940 of 2007, 1461 of 2008 AND 1774 OF 2012
COMMON JUDGMENT:
1. All these appeals are filed for enhancement of compensation aggrieved by the common order dt.05.09.2007 passed in OP.Nos.638, 818 and 819 of 2005 by the I Additional District Judge, Mahabubnagar. MACMA No.2940 of 2007 is arising out of OP.No.819 of 2005 filed by the claimant/injured for the injuries sustained by her in the accident. MACMA No.1461 of 2008 is arising out of OP.No.818 of 2005 filed by the claimants/legal heirs for the death of one Mohd.Mohammed in the accident. MACMA.No.1774 of 2012 is arising out of OP.No.638 of 2005 filed by the claimant/injured for the injuries sustained by him in the accident.
2. The 1st respondent in all the appeals is the owner of the offending vehicle and the 2nd respondent in all the appeals is the Insurance Company.
2. Since all the three appeals filed by the claimants arising out of the same accident and arising out of common order passed by the Tribunal, all the appeals are heard together and disposed off by this common order. .
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Briefly, the case of the claimants is that on 02.11.2004 the deceased (against whose death OP.No.818 of 2008 was filed by the claimants) was travelling along with her wife (claimant in OP.No.819 of 2005 for the injuries sustained by her) and niece on Hero Honda Motor Cycle bearing No.AP 22 F 7617 from chowderpally to Mahabubnagar, when they reached the limits of Appaipally village at Kodur bus stage, at 7.45 p.m., the offending Auto bearing No.AP 22 U 4712 came in the opposite direction at high speed in rash and negligent manner and dashed the motor cycle. As a result, the deceased sustained grievous injuries and died on the spot. However, his wife (claimant in OP.No.819/2005) sustained fracture injuries. The claimant in OP.No.638/2005 who was travelling in the offending Auto also sustained grievous injuries due to the accident. Aggrieved the same, the legal heirs of the deceased filed OP.No.818/2008. OP.No.819/2005 was filed by the wife of the deceased who was injured and travelling along with the deceased on the motor cycle. OP.No.638/2005 was filed by the injured who was travelling in the offending Auto.
3. Heard learned counsel appearing for the claimants in all the three appeals and learned Standing Counsel appearing for the 2nd respondent-Insurance Company.
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4. During trial, the Tribunal examined PWs.1 to 4 on behalf of the claimants and marked Exs.A1 to A12. PW.1 is the claimant/injured in OP.No.638/2005 who was travelling in the offending Auto. PW.3 is the claimant/injured in OP.No.819/2005 who was travelling on the motor cycle along with her deceased husband. On behalf of respondents RW1 was examined and Exs.B1- copy of the insurance police and B2 were marked.
The Tribunal after considering the evidence on record and documents, fixed contributory negligence @ 75% on the driver of the offending auto and 25% on the driver of the motor cycle who died in the accident.
Further, the Tribunal awarded Rs.2,70,000/- to the claimants in OP.No.818/2005 for the death of the deceased in the accident after deducting 1/4th towards contributory negligence. The Tribunal awarded Rs.10,000/- to the claimant who was travelling on the motor cycle along with the deceased and sustained injuries. The Tribunal awarded Rs.28,000/- to the claimant who was travelling in the offending auto and sustained injuries.
The Tribunal further found that since the offending Auto driver was holding a learners licence, it cannot be said that is a valid licence and accordingly the Tribunal found that there is no liability on the Insurance Company.
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Aggrieved by the compensation granted by the Tribunal present appeals are filed for enhancement of compensation.
The nature of injuries, the accident are not disputed by either of the parties.
Learned counsel appearing for the claimants, as far as MACMANo.1461/2008 arising out of OP.No.818/2005 filed by the claimants for the death of the deceased is concerned, would submit that it was specifically mentioned that the deceased was earning an amount of Rs.4,500/- per month as salary and including batta he was earning an amount of Rs.10,000/- per month, however, the Tribunal considered only Rs.3,000/- per month. The Tribunal erred in taking into consideration the age the deceased and multiplier adopted for calculating the loss of dependency. As far as MACMA.No.2940/2007 arising out of OP.No.819/2005 is concerned, the Tribunal has granted very less amount under the heads pain and suffering, medical expenses, transportation charges. Further, the Tribunal failed to grant compensation under the head attendant expenses and permanent disability. As far as MACMA No.1774/2012 arising out of OP.No.638/2005 is concerned, the counsel submits that the Tribunal has granted very meager compensation of Rs.28,000/- without considering the disability certificate @ 25% issued by the Medical Board. 5
As far as liability of the Insurance Company is concerned learned Counsel for the appellant submits that the Tribunal wrongly found that the Insurance Company is not liable to pay compensation. In support of his contention he relied on the Judgment of the Three Judge Bench of the Honourable Supreme Court in National Insurance Company Limited v. Swaran Singh and others 1 wherein the Honourable Supreme Court while dealing with the similar case directed the Insurance Company to pay at the first instance and recover the amount from the Owner. He also relied on another Judgment of Rajasthan High Court in Shivpal Singh v. lal Chand and others 2 wherein it was held that learners licence is a valid licence and compensation can be granted.
On the other hand, learned counsel appearing for the Insurance Company relied on the Judgment of Honourable Supreme Court in New India Assurance Company Limited v. Mandar Madhav Tambe and others 3.
In the present case the driver of the offending Auto was holding learners licence. In the said circumstances, it cannot be said that the Insurance Company is not liable. It can be ordered that the Insurance Company makes the payment towards compensation at the first instance and recover the same from the 1 2004 (3) SCC 297 2 2010 (83) ACJ 1120 6 Owner of the offending vehicle, following the Judgment of Honourable Supreme Court in Swaran Singh case (supra 1).
As far as compensation awarded by the Tribunal in OP.No.818/2005 challenging which MACMA.No.1461/2008 was filed, is concerned, the deceased was working as Cook and earning Rs.4,500/- per month and Rs.50/-per day as batta and having four dependents in the family. As such, it can be reasonably concluded that an amount of Rs.4,500/- per month can be taken as the income of the deceased. In view of the law laid down by the Honourable Supreme Court in National Insurance Company Limited v. Pranay Sethi and others 4, future prospects @ 40% of the income of the deceased has to be added which comes to Rs.1,800/- per month. Then the total income of the deceased per month is Rs.6,300/-. The annual income of the deceased comes to Rs.75,600/-p.a. (6,300 x 12). Since the dependents are 4 members, 1/3 of the income i.e. Rs.25,200/-(75,600x1/3) has to be deducted towards personal expenses which comes to Rs.50,400/-p.a.(75,600- 25,200). As per PME report the age of the deceased was 35 years. Then, as per the Judgment of Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation 5 the relevant multiplier for 3 1996 AIR 1150 4 (2017) 16 SCC 680 5 (2009) 6 SCC 121 7 the age group of 31-35 is '17' and then the loss of income due to the death of the deceased comes to Rs.8,56,800/- (50,400 x 17).
8. As per the decision of the Constitutional Bench of Apex court in case of Pranay Sethi's case, the conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively and the same should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10%. Then the total consortium comes to Rs.1,93,600/- (40,000 x 4 = 1,60,000 + 10%) and Loss of Estate and funeral expenses comes to Rs.36,300/- (15,000 + 15,000 + Add 10% for every three years).
In total claimants in MACMA.No.1461/2008 are entitled to a total amount of compensation of Rs.10,86,700/-( 8,56,800 + 1,93,600 + 36,300).
As far as amount of compensation awarded by the Tribunal in OP.No.819 of 2005 challenging which MACMA No.2940 of 2007 was filed, the claimant received grievous injury which is fracture shaft right femur middle 1/3rd. She was treated in Mahabubnagar Government Hospital and X-ray copy Ex.A12 is also filed. In the said circumstances , the amount of compensation granted by the Tribunal under the heads pain and suffering of grievous injury, pain and suffering of simple injury, medical expenses, extra nourishment 8 and transportation expenses is enhanced to Rs.25,000/-, 10,000/-, 5,000/-, 5,000/- and 5,000/-, respectively.
12. Thus, the appellant/injured in MACMA No.2940/2007 is entitled to a total compensation of Rs.50,000/-.
found that in a similar cases such cases direction to pay and recover Aggrtrclaimant is entitled to compensation of Rs.34,000/- payable by both the respondents, jointly and severally. MACMA.No.1802 of 2014 is preferred by the claimant for enhancement of the compensation. MACMA.No.797 of 2015 is preferred by the Insurance Company aggrieved by the grant of compensation to the claimant.
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2. Since both the appeals are arising out of same accident and filed aggrieved by the order of the Tribunal dated 13.11.2013 in MV.OP.No.505 of 2011, both the appeals are heard together and disposed off by this common order.
3. Heard learned counsel appearing for the claimant who submits that though the Tribunal found that there were 8 grievous injuries, erred in granting only Rs.50,000/-for the said injuries. He further submits that the amount granted under the heads pain and suffering and loss of income are on lesser side.
4. The manner of accident and injuries are not disputed by the Insurance company.
5. As seen from the evidence of the Doctor-PW1, the claimant sustained fractures of ribs 2 to 7th on the right side and also fracture of clavicle. In addition he had sustained head injury of tempero peritel contusion and all the injuries are categorized as grievous in nature. Hence the claimant is granted Rs.1,00,000/- towards grievous injuries. Since PW2-Doctor stated that six months time is required for rest, and the income of the claimant fixed by the Tribunal at Rs.4,500/- per month is not disputed, an amount of Rs.27,000/- (4,500 x 6) can be granted under the head loss of income. Keeping in view the injuries sustained by the claimant, the 10 amount granted under the head pain and suffering is enhanced from Rs.10,000/- to Rs.30,000/-.
6. The amount awarded by the Tribunal under the heads Hospitalization, Medicines and Incidental Charges of Rs.50,000/-, Loss of comfort of Rs.10,000/-; Extra Nourishment of Rs.4,000/- and Transportation and clothing of Rs.3,000/- and 1,000/- respectively, remain unaltered.
7. Thus in total, the claimant is entitled to compensation of Rs.2,25,000/-.
8. Accordingly, MACMA.No.1802 of 2014 is allowed and the compensation granted by the Tribunal to the claimant is enhanced from Rs.1,37,000/- to Rs.2,25,000/-with interest @ 7.5% on the enhanced amount from the date of petition till realization payable by respondents 1 and 2 in the OP within 6 weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the entire amount without furnishing any security. The claimant has to pay the deficit Court fee or the Tribunal may deduct the amount required for the purpose of Court fee from the amount awarded to the claimant after respondents Insurance Company deposits the amount.
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9. In view of findings by this Court that the claimant is eligible for enhanced compensation, the appeal filed by the Insurance Company i.e. MACMA No.797 of 2015, is devoid of merits and accordingly, dismissed.
As a sequel, miscellaneous applications, if any, pending in this appeal shall stand closed.
___________________ K.SURENDER, J Date: 22.03.2024 tk