Telangana High Court
Reliance General Insurance Co Ltd vs Emulla,Emula Veeramma And 8 Others on 16 April, 2024
1
MGP,J
MACMA.No.149 of 2019 and
MACMA.No.3201 of 2019
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.149 OF 2019
AND
M.A.C.M.A.No.3201 OF 2019
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.149 of 2019, filed by Respondent No.5 in O.P./Insurance Company, seeking to allow the appeal by setting aside the order of the learned Tribunal and M.A.C.M.A.No.3201 of 2019, filed by claim petitioners in O.P., seeking for enhancement of compensation, both are directed against the very same order dated 12.09.2018 passed in M.V.O.P.No.30 of 2013, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VI Additional District Judge, Godavarikhani.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the claim petitioners, who are the wife and children of Sri Emulla @ Yemulla Komuraiah (hereinafter be referred as "the deceased"), filed a petition claiming compensation of Rs.25,00,000/- for the death of the deceased who died in a road traffic accident that occurred on 25.05.2011. As stated by the petitioners, on 25.05.2011, when the deceased was 2 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 proceeding from Shirke bus stand towards his house by walk, at about 9.00 p.m, when he reached the turning at Shirke quarters, the Respondent No.1 drove one Innova Car bearing No.AP-29-AP- 789, in a rash and negligent manner, at a high speed and dashed the deceased from his back. As a result, the deceased received injuries all over the body. Immediately, he was shifted to SCCL Area Hospital, Godavarikhani, from there, he was shifted to Kamineni Hospital, Hyderabad, for better treatment. But he succumbed to injuries on 05.06.2011. Based on a complaint, the Police, Godavarikhani-II Town Police Station, registered a case in Crime No.52 of 2011 under Section 337 IPC against the driver of the crime vehicle i.e., one Md.Asif, who is arrayed as Respondent No.2 and conducted investigation and subsequently laid charge sheet under Section 304-A IPC which is marked as Ex.A4. It is stated by the petitioners that the deceased used to work as a Support man in 10-Incline Colony, RG-III area, SCC Limited and used to draw income of Rs.27,508.12 paise and odd per month apart from other perks and used to contribute the same for maintenance of the family. Due to the sudden death of the deceased, the claimants have lost their source of income, love and affection of the deceased and were put to mental shock. Therefore, they filed a petition claiming compensation of Rs.25,00,000/- against the Respondents 1 to 5.
3
MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019
4. Respondent No.1, who was the driver of the Innova Car, filed his counter denying the averments made in the claim petition including, occurrence of accident, injuries sustained to the deceased and etc. and deposed that one Bhaira Satheesh has given complaint to SHO, Traffic Ramagundam Police on 26.05.2011 stating that his uncle met with an accident on 25.05.2011 and the name of the car driver is Md.Aseef. Based on his complaint, Ramagundam police registered a case in Crime No.74 of 2011 and after investigation, it was transferred to Police, Godavarikhani II Town and after transferring the above crime, the Godavarikhani II Town police registered another Crime No.52 of 2011. As per the statements of LW3, who is wife of the deceased and LW4- B.Manga, who is an eye witness to the incident, one J.Srinivas was driving the Innova car in a rash and negligent manner. It is further stated by Respondent No.1 that he had not driven the crime vehicle at any point of time as he is a student and more over, Respondent No.1 is no way concerned with the above said accident and the Police of Godavarikhani-II Town Police station, in collusion with LWs1 & 3, filed a false case against him and that he is not liable to pay any compensation to the petitioners and hence, prayed to dismiss the claim against him.
4
MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019
3. Respondent No.2, who is the original driver of the crime vehicle, filed counter denying the averments made in the claim petition including, occurrence of the accident, involvement of the deceased in the accident, injuries sustained to him in the alleged accident, age, income, avocation and health condition of the deceased at the time of accident. He further submitted that Respondent No.3 is the owner of the Innova Car bearing No.AP-29- AD-789 at the time of accident and Respondent No.4 was the previous owner of the said Innova car (wrongly typed as Respondent No.3) and the said Innova car was duly insured with 5th respondent (wrong typed as 4th respondent) and the driver was holding valid driving license at the time of accident and hence, the Insurance company is liable to indemnify him under the said policy.
4. Respondent No.3 did not file any counter and remained exparte.
5. Respondent No.4, who is also arrayed as owner of Innova car, filed his counter denying the averments made in the claim petition including, occurrence of accident, injuries sustained to the deceased, age, avocation and income of the deceased . He deposed that with the consent of Respondent No.3, he took the vehicle and appointed Respondent No.2 as driver of the vehicle who was 5 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 holding valid license. But he was not aware that Respondent No.1 drove the vehicle and caused accident. He stated that as the crime vehicle was insured with Respondent No.5, respondent No.5 is liable to indemnify the risk and pay compensation to the petitioners along with respondents 6 & 7.
6. Respondent No.5, who is the Insurance Company, filed its counter denying the averments made in the claim petition and deposed that the driver of the Toyota Innova Car was not holding a valid and effective driving license at the time of accident and further, Police of Godavarikhani-II Town police filed charge sheet against Respondent No.1 under Section 304-A IPC and Section 3 read with 181 of M.V.Act for not possessing driving license at the time of accident and further contended that as Respondent No.3 had not complied with the statutory provisions with regard to furnishing of policy particulars, particulars of injured, place of accident and etc., hence, the Insurance company is not liable to pay any compensation. It is also stated by the Insurance company that as per FIR, the name of the driver is mentioned as Md.Asif and the name of the owner is mentioned as Volivoju Naresh Kumar. But as per petition, it is clearly mentioned that the insurance is on Dasari Shankar, but it was not transferred in the name of present owner and that Respondent No.1, who is the driver by name 6 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 J.Srinivas, is not holding any valid license and also contended that the Police of Godavarikhani II Town Police Station failed to forward documents within 30 days from the date of information and that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against it.
7. Respondent Nos.6 & 7, who are the parents of the deceased, admitted the contents of the claim petition and admitted that the death of the deceased was due to rash and negligent driving of the driver of Innova Car bearing No.AP-29-AD-789 who is arrayed as Respondent No.1 in O.P. and also deposed that Respondent No.2 was the actual driver of the vehicle duly appointed by Respondent No.4 and that the Respondent No.3 is the registered owner of the said vehicle and the said vehicle was duly insured with Respondent No.5 covering the date of accident and as such, Respondents 1 to 5 are jointly liable to pay compensation to the claim petitioners along with them.
8. Based on the rival contentions made by both the parties, the learned Tribunal had framed the following issues:-
1. Whether the motor vehicle accident occurred due to the negligence of the driver of the crime vehicle?
2. Whether the petitioners are entitled to compensation? To what amount and if so, from whom?
3. To what relief?7
MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019
9. Before the Tribunal, on behalf of the petitioners, PWs 1 to 3 were examined and Exs.A1 to A6 were marked. On behalf of Respondents RWs1 to 4 were examined and Exs.B1 to B9 and Exs.X1 & X2 were marked.
10. After considering the evidence and documents available on record, the learned Tribunal had partly allowed the claim petition awarding compensation to a tune of Rs.22,00,000/- which is payable by Respondent Nos.1, 3 & 5 jointly and severally along with interest @ 6 % per annum. The Tribunal further directed Respondent No.5 to deposit the said amount at first within one month from the date of award and then recover the said amount from Respondent Nos.1 & 3. Challenging the same, the present appeals came to be filed by the claimants and Insurance Company respectively.
11. Heard both sides and perused the material available on record.
12. The contentions of the learned counsel for appellants/claim petitioners in M.A.C.M.A.3201 of 2019 are that the learned Tribunal ought to have deducted ¼ amount towards personal expenses instead of 1/3 as the number of dependants are five (5) in 8 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 number; erred in fixing the monthly income @ Rs.16,000/-; ought to have awarded Rs.40,000/- each to Respondents 6 & 7 under filial consortium and ought to have awarded parental consortium to Respondents 2 & 3 and hence, prayed to allow the appeal by enhancing the compensation awarded by the Tribunal.
13. The contentions made by the learned counsel for Respondent No.5/Insurance Company, who is appellant in M.A.C.M.A.No.149 of 2019 are that, the driver of the crime vehicle do not hold a driving license at the time of accident; the owner of the crime vehicle committed breach of policy conditions and also contended that the learned Tribunal erred in applying pay and recover policy; erred in awarding Rs.2,00,000/- under the head of Non-pecuniary damages instead of Rs.70,000/- as per Judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs.Pranay Sethi & others (2017 ACJ 2700) and also erred in considering the income of the decea sed@ Rs.16,000/- per month and hence, prayed to set-aside the order of the learned Tribunal.
14. Now the point that emerge for determination is, Whether the order passed by the learned Tribunal requires interference of this Court?
9
MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 POINT:-
13. This Court has perused the entire evidence and documents available on record. On behalf of the claim petitioners, PWs 1 to 3 were examined. The parents of the deceased were impleaded as Respondent Nos.6 & 7 as per orders in I.A.No.283 of 2015 claiming compensation. Petitioner No.1, who is the wife of the deceased, was examined as PW1. She reiterated the contents made in the claim petition and deposed about her relationship with the deceased and employment of the deceased. PW2, who is Superintendent in GDK 10 Incline, SCCL, was examined to depose about the salary particulars of the deceased. He stated that as per records, the deceased was appointed as Badli worker in SCCL and was working as Support man at the time of accident and died on 05.06.2011 in a road accident. He produced salary particulars of deceased from May 2010 to May 2011 and they are marked as Ex.A7 (13 in number). PW3, who is an eye witness to the incident, narrated about the occurrence of accident and stated that the alleged accident occurred due to the rash and negligent driving of the driver of Innova Car. He also stated that though he witnessed the incident, but the police did not examine him.
14. On behalf of respondents, RWs 1 to 3 were examined.
Respondent No.1, who drove the crime vehicle at the time of 10 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 accident, was examined as RW1. He deposed that the Police of Godavarikhani II Town Police Station colluded with petitioner no.1 and filed charge sheet against him with false allegations. In fact, he was acquitted from the said case which was registered as C.C.No.327 of 2011 on 21.11.2017. During his cross-examination, he denied the suggestion that in view of relationship with him, PW3 deposed in his favour. Respondent No.2, who is the original driver of the crime vehicle, was examined as RW2. He stated that he do not know whether one Bhaira Satheesh had given complaint before SHO, Ramagundam on 26.06.2011 and he was not aware about the transfer of said complaint to Godavari II Town Police Station and also filing of charge sheet against Respondent No.1 and that the petitioners made false allegations against him and that he is not the owner and driver of the crime vehicle and is not liable for payment of compensation to the petitioners. During the course of cross-examination, he denied the suggestion that he took the car from Respondent No.4 and handed over to Respondent No.1 unauthorizedly. RW3, who is working as Senior Assistant in RTA, deposed in his evidence that Respondent No.1 is not having driving license. RW4, who is working as Manager in Legal Claims, Karimnagar, deposed in his evidence that they issued Insurance policy bearing No.1805702311003703 in favour of 3rd respondent pertaining to Innova Car bearing Registration No.AP-29-AD-0789 11 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 which is subsisting as on the date of accident and stated that Respondent No.1 is not having any driving license and he was charged under Section 3 read with 181 of M.V.Act, as such, Insurance company is not liable to pay any compensation.
15. A perusal of Ex.A1-FIR shows that Police, Godavarikhani II Town Police Station registered a case in Crime No.52 of 2011 under Section 337 IPC against the driver of the Innova Car, who is arrayed as Respondent No.2 herein. Ex.A2 is the inquest report wherein the panchas opined that the death of the deceased was due to the injuries sustained to him in an accident that occurred on 25.05.2011 due to rash and negligent driving of the driver of the Innova car bearing No.AP-29AD-0789. Ex.A3 is the post mortem examination report wherein it is held that the death of the deceased was due to head injury. Ex.A4 is the final report wherein, it is stated that "the accused is not the original driver of the car with which the accident took place. The Innova car is owned by LW8-V.Naresh Kumar and its driver is Md.Aseef, who is the friend of accused. On 25.05.2011, the said driver went to the house of the accused along with Innova car and later, the accused took the car from him and drove it in a rash and negligent manner with high speed and dashed the deceased which resulted into his death. Hence, the accused had committed offence punishable 12 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 under Section 304-A IPC along with Section 3 read with 181 of MV Act for not possessing license to drive the crime vehicle-Innova car. In Ex.A5- Form -54, at Sl.no.7, the particulars of the driver were shown as Javari Srinivas, who is arrayed as Respondent No.1 in O.P. and particulars of owner of the vehicle were shown as Shankar Dasari and is having valid license as on the date of accident. Ex.A6 is the pay slip of the deceased for the month of April, 2011 which shows the net monthly income of the deceased as Rs.16,424/-
16. A perusal of Ex.B1-FIR shows that Police, Ramagundam Traffic Police Station registered a case in Crime No.74 of 2011, under Section 337 IPC. Ex.B2-FIR shows that Police, Godavarikhani-II Town Police station registered a case in Crime No.52 of 2011 on 28.05.2011. Exs.B3 to B6 are the depositions of PWs 1 to 4 in CC.No.327 of 2011. Ex.B7 is the copy of insurance policy. Exs.B8 & B9 are the legal notices issued to Respondents 1 & 3.
17. It is also pertinent to refer Ex.X1, which is the authorization letter given by the Motor Vehicles Inspector and Additional Licensing Authority, Ramagundam to Sri M.A.Khaleel, who is working as Senior Assistant in their office and who was examined as RW3 in the present case and Ex.X2 is the problem details form 13 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 issued in the name of said Khaleel Mohd. These two documents are marked through RW3 during the course of his evidence which speaks about non-possession of driving license by Respondent No.1, who caused the accident which resulted into the death of the deceased.
18. Therefore, from the above evidence produced by both parties, it is clear that an accident occurred due to the rash and negligent driving of the driver of the crime vehicle who is arrayed as Respondent No.1. As per Ex.A1-FIR, Respondent No.2 was working as driver on the said Innova car, but at the time of accident, he was not driving the said car and Respondent No.1, who do not possess driving license, obtained the key and drove the car in rash and negligent manner and dashed the deceased. There is no dispute about the ownership of Respondent No.3 as per Ex.A5- Insurance policy.
19. The main contention of the learned counsel for Appellant/ Insurance Company in M.A.C.M.A.No.149 of 2019 is that though the driver of the crime vehicle do not hold a driving license at the time of accident, but the owner of the crime vehicle had willfully handed over the vehicle to him and committed breach of policy conditions and hence, the insurance company is not liable to pay any compensation to the petitioners.
14
MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019
20. In this regard, it is pertinent to refer the decision of the Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s United India Insurance Company and Another wherein, the Hon'ble Supreme Court held that the Insurance Company is liable to pay the victim even if the driver was unlicensed so that the victim should not be deprived of the money due to him. Hence Insurance Company has full rights to recover their money from the owner of the vehicle. Further, the owner can make the unlicensed driver to pay the compensation.
21. From the above decision, it is clear that the Insurance Company cannot be exonerated from its liability to pay the compensation amount. It shall pay the compensation at first and then recover the same from the owner, who in turn can add the unlicensed driver to pay the compensation. Hence, the contention of the learned counsel that the Tribunal erred in applying pay and recover policy is unsustainable.
22. The other contention made by the Insurance Company is that the learned Tribunal erred in awarding Rs.2,00,000/- under the head of Non-pecuniary damages instead of Rs.70,000/-. In this regard, it is pertinent to refer the Judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs.Pranay Sethi & others (2017 ACJ 2700) wherein, the Hon'ble Apex Court had fixed 15 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 reasonable figures on conventional heads, viz., loss of estate, loss of consortium and funeral expenses as Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. In all, it comes to Rs.70,000/- (which shall carry 10% enhancement for every three years). This Court, by relying upon the said decision, reduces the amount awarded under non-pecuniary heads from Rs.2,00,000/- to Rs.70,000/- (which carries 10% enhancement for every three years).
23. The contention of the learned counsel for claim petitioners as well as Respondents 6 & 7, who are parents of the deceased, who were brought no record as per orders in I.A.No.273 of 2015 is that the learned Tribunal erred in deducting 1/3 amount towards personal expenses though the number of dependants are 5 in number and also contended that the learned Tribunal ought to have granted Rs.40,000/- to petitioner No.3 as she is minor and ought to have awarded filial consortium to parents.
24. In this regard, it is pertinent to refer to the quantum of compensation awarded by the learned Tribunal. Learned Tribunal upon considering Ex.A6-Pay slip of the deceased-Komuraiah issued by Singareni Collories Company Limited, fixed the monthly income of the deceased as Rs.16,000/-. As the deceased was aged 48 years at the time of accident, he is entitled for addition of 30% towards 16 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 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 others 1. Hence, the future monthly income of the deceased comes to Rs.20,800/-. This Court, by considering the number of dependants as five in number, is inclined to deduct 1/4th amount towards personal and living expenses of the deceased. Hence, the net monthly income that was being contributed to the family of the deceased comes to Rs.15,600/- per month. As the age of the deceased was 48 years at the time of the accident, the appropriate multiplier is '13' as per the decision reported in Sarla Verma v. Delhi Transport Corporation 2. Therefore, adopting multiplier '13', the total loss of dependency works out to Rs.24,33,600/- (Rs.15,600/- x 12 x 13). That apart, the petitioners are entitled for an amount of Rs.77,000/- under conventional heads and further, considering the fact that the appellant No. 3, being a minor child of the deceased, this Court is inclined to award a sum of Rs.40,000/- to her under the head of parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. 1 2017 ACJ 2700 2 2009 ACJ 1298 (SC) 17 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 Nanu Ram @ Chuhru Ram and others 3. Thus, in all, the appellants/claim petitioners along with Respondents 6 & 7 in M.A.C.M.A.No.3201 of 2019 are entitled for compensation to an amount of Rs.25,50,600/-.
25. As far as interest is concerned, the learned Tribunal granted interest @ 6% per annum which is meagre. This Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 4, enhances the interest granted by the Tribunal from 6% per annum to 7.5% per annum.
26. In the result, M.A.C.M.A.No.3201 of 2019 is allowed enhancing the compensation awarded by the Tribunal from Rs.22,00,000/- to Rs.25,50,600/- and M.A.C.M.A.No.149 of 2019 filed by Insurance company is partly allowed reducing the amount awarded under conventional heads from Rs.2,00,000/- to Rs.77,000/-. The enhanced amount shall carry interest at 7.5% per annum from the date of filing of petition till the date of realization payable by Respondent Nos.1, 3 & 5 jointly and severally. Respondent No.5 is directed to deposit the enhanced amount at first instance within a period of two months from the date of receipt of a copy of this order and is entitled to recover the 3 (2018) 18 SCC 130 4 2013 ACJ 1403 = 2013 (4) ALT 35 18 MGP,J MACMA.No.149 of 2019 and MACMA.No.3201 of 2019 same from Respondent Nos.1 & 3. On such deposit, the appellants and Respondent Nos.6 & 7, who are the parents of the deceased in M.A.C.M.A.3201 of 2019 are entitled to withdraw the same as per the apportionment made by the Tribunal. However, the appellants shall pay the deficit court fee on the enhanced compensation. There shall be no order as to costs.
27. Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.16.04.2024 ysk