Telangana High Court
The New India Assurance Company Limited vs M Shobha on 4 April, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
M.A.C.M.A.NO.494 OF 2019
AND
CROSS OBJECTIONS NO.63 OF 2019
COMMON JUDGMENT :
Being aggrieved by the Order dated 20.11.2017 in M.V.O.P.No.2836 of 2011 on the file of XIV Additional Chief Judge, City Civil Court, Hyderabad who was also acting as Chairman, Motor Accident Claims Tribunal, by which the Tribunal allowed the petition in part and awarded a sum of Rs.13,26,000/- as compensation on account of death of one Santosh Kumar in a road traffic accident, the 2nd respondent in above said original petition i.e., New India Assurance Company Limited had filed civil miscellaneous appeal under Section 173 of M.V.Act., with a prayer to set aside the award/reduced compensation. Whereas, the claimants/petitioners in the said original petition being not happy with the quantum of compensation awarded by the Tribunal filed cross objections under Order 41 Rule 22 CPC with a prayer to enhance the compensation.
2. Since both the appeal preferred by the Insurance Company and cross objections filed by the 2 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 claimants/petitioners are in the same petition, a common order would suffice for disposing both the appeal as well as cross objections.
3. Before adverting to the grounds under which the appeal as well as cross objections are filed, it is just and necessary to give a brief history of the petition filed by the claimants and as to how the same was disposed by the Tribunal. For the sake of convenience, the parties will be referred in the same ranking which was used in the original petition.
4. The petitioner Nos.1 to 3 have filed M.V.O.P.No.2836 2011 under Section 166 of M.V.Act., and prayed for an amount of Rs.13,00,000/- as compensation for the death of one Santosh Kumar (hereinafter be referred as deceased) in a road traffic accident that occurred on 30.11.2010. The petitioners have claimed that when the deceased was proceeding in a car bearing No.KA-14-M-3244 with his friends from Mansoorabad to Chilkur Balaji Temple and when the car reached Sun city, the driver of the said car drove the same in high speed, in a rash and negligent manner and lost control, due to which the car dashed a 3 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 road divider and over turned. In view of the accident, the deceased received grievous bleeding injuries and died on the spot. A criminal case was registered against the driver of the said car. The petitioners are parents and younger sister of the deceased. By the time of accident, he was studying III year B.Tech. (Computer Science). The petitioners have claimed that he used to give tuitions in leisure time and was earning Rs.15,000/- per month. The petitioners have filed claim petition against the owner of the car as well as the Insurance Company from which a policy was obtained against the said car. The respondents have appeared, but the 1st respondent/owner failed to file any counter. Whereas, the Insurance Company contested the claim on various grounds questioning the liability and quantum of compensation.
5. The Tribunal has framed the following (3) issues:
1. Whether the accident occurred on 30.11.2010 due to the rash and negligent driving of the driver of the car bearing No.KA-14-M-3244 causing death of deceased?
2. Whether the petitioners are entitled to any compensation? If so, to what extent and from whom?
3. To what relief?4
MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019
6. During trial the petitioners have examined PWs 1 to 3 and marked Exs.A1 to A6. The 2nd respondent/Insurance Company had examined RW1 and marked copy of policy as Ex.B1. The Tribunal having appreciated the pleadings and evidence, allowed the petition in part and granted a sum of Rs.13,26,000/- as compensation. In order to calculate the compensation, the Tribunal assessed the income of the deceased as Rs.12,000/- per month and since deceased was a bachelor, deducted 50% of the said income as personal expenditure and awarded Rs.13,26,000/- by adding Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.
7. The 2nd respondent/Insurance Company filed M.A.C.M.A.No.494 of 2019 praying for setting aside the order and claimed that the owner of the car obtained a policy which is known as "private car liability policy" and premium was paid to cover the risk of 3rd party. It is an act policy and it does not cover the risk of inmates of the car. The Tribunal committed an error by holding that the policy issued against the car was in force as on the date of 5 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 accident and deceased can be treated as 3rd party and the Insurance Company is liable to pay compensation. The 2nd respondent has also claimed that Tribunal should have exonerated the Insurance Company from payment of compensation and the liability can be fixed against owner of the vehicle. The 2nd respondent has contended that the Tribunal committed an error by calculating the income of the deceased as Rs.12,000/- per month, thereby awarded excess amount of compensation.
8. The petitioners who have filed cross objections have contended that the Tribunal ought to have consider their claim that the deceased was earning Rs.15,000/- to Rs.20,000/- per month by giving tuitions. The Tribunal committed an error by assessing the notional income of the deceased as Rs.12,000/- per month. The Tribunal did not add any additional income towards future prospects of the deceased, thereby they prayed for enhancement of the compensation.
9. In support of their claim, the petitioners have placed reliance on Judgment between New India Assurance Company Limited vs Shanthi Bopanna and 6 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 Others 1, wherein the Hon'ble Apex Court was pleased to observe that when the vehicle was covered by package policy which is known as comprehensive policy, it is not a act policy under Section 147 of 1988 Act, thereby the Insurance Company is liavble to pay compensation.
10. Heard both parties.
11. Now the following points would arose for consideration in the appeal as well as cross objections:
1. Whether the Tribunal committed any wrong in fixing the liability to pay compensation against the 2nd respondent/Insurance Company? If so, whether the Insurance Company can be exonerated from making payment of the compensation?
2. Whether the Tribunal failed to appreciate the evidence of petitioners and came to an incorrect conclusion by assessing the monthly income of the deceased as Rs.12,000/-, thereby awarded insufficient amount of compensation?
3. Whether the petitioners are entitled to claim additional compensation towards future prospects of the deceased.
12. POINTS:
As per the respective pleadings of the petitioners as well as the 2nd respondent and in view of their respective oral and documentary evidence, there is no serious dispute 1 2018 12 SCC 540 7 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 about the accident in which the son of the petitioner No.s1 and 2 lost his life when the car owned by the 1st respondent met with an accident near Suncity, Hyderabad.
13. According to the oral evidence of PW1 when the deceased and his friends were proceeding towards Chilkur Balaji Temple in a car, in view of rash and negligent driving by its driver, there was an accident and as the car rammed a road divider over turned causing the instantaneous death of the deceased. Similarly, there is no serious dispute about the educational qualifications of the deceased.
14. The petitioners have claimed that the deceased was 3rd year B.Tech., student with Computer Science. The Tribunal had considered all these aspects and assessed the notional income of the deceased as Rs.12,000/- per month. It is a fact that the Tribunal did not award any amount of compensation towards future prospects. As on the date of accident, the deceased was aged about 20 years and was studying in B.Tech., in 3rd year. The 2nd respondent Insurance company disputed the liability on the ground that the policy obtained by the 1st respondent covered the 3rd party risk. Therefore, the inmates of the car cannot be 8 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 treated as 3rd parties and as such they need not pay any compensation. But, the evidence produced by both the parties and as per Ex.R1, admittedly the policy obtained from the 2nd respondent was in force and it covers the risk of 3rd party. It is not the case of 2nd respondent Insurance Company that the deceased was owner of the car. Therefore, he being a 3rd party, the 2nd respondent cannot deny the compensation. The Tribunal rightly appreciated the oral and documentary evidence and fixed the liability against the Insurance Company. Therefore, on that ground the appeal preferred by the 2nd respondent is liable to be dismissed.
15. In view of the specific contentions of the petitioners and as the age of the deceased was 20 years, he being 3rd year Engineering student, if completes his graduation he could have bright future. He might have obtained employment in a reputed company or the chances of his going abroad for further studies, so that obtaining a better position in the life, cannot be ruled out.
16. Now a days a graduate from Engineering with Computer Science stream, can easily earn Rs.15,000/- to 9 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 Rs.20,000/- per month which can be enhanced from time to time depending upon his performance in the company. Therefore, the Tribunal ought to have considered the notional income of the deceased as Rs.15,000/- and could have added 50% of the said income as future prospects. Since the deceased was only 20 years, he has got minimum 40 years service, thereby the amount of compensation awarded by the Tribunal needs to be enhanced.
17. It is true since the deceased was a bachelor 50 % of the assessed income of the deceased must be deducted towards his personal expenditure, thereby if the monthly income of the deceased is assessed as Rs.15,000/- and 50% of the said income is added towards future prospects, it would be Rs.22,500/-. If 50% of the said income is deducted towards his personal expenditure, the average monthly contribution of the deceased would be Rs.11,250/- and annual contribution would be Rs.1,35,000/-. Since the deceased was aged about 20 years, the appropriate multiplier is "18". As such, the monetary loss is Rs.24,30,000/-. The petitioners are entitled to an amount of Rs.15,000/- towards loss of estate, Rs.40,000/- towards 10 MACMA.No.494 of 2019 & Cross Obj.No.63 of 2019 loss of consortium and Rs.15,000/- towards funeral expenses, thereby the total compensation for which the petitioners are entitled to is Rs.25,00,000/-.
18. In the result, the appeal preferred by the Insurance Company vide M.A.C.M.A.No.494 of 2019 is dismissed. The cross objections filed by the petitioners vide Cross Objection No.63 of 2019 is allowed, and the compensation amount is enhanced from Rs.13,26,000/- to Rs.25,00,000/-. The Insurance Company shall pay the balance amount after deducting the payments, if any, made at the time of filing the appeal or subsequent thereto. , As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:04.04.2024 PSSK