Telangana High Court
Md Afsar vs K Shankar Singh on 22 April, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.357 OF 2018
JUDGMENT:
1. Dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal - cum- The Court of Chief Judge, City Civil Court, Hyderabad, in M.V.O.P.No.2530 of 2011, dated 20.04.2017, the appellants/claim petitioners in O.P. filed the present Appeal seeking enhancement of compensation.
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 nutshell are that the petitioners, who are the sons of Smt.Abida Begum (hereinafter be referred as 'the deceased'), filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and Rule 455 of A.P.M.V Rules, 1989 seeking compensation of Rs.5,00,000/- against the respondents for the death of the deceased in a road traffic accident. It is stated by the petitioners that on 01.07.2011, the deceased along with her daughter and grand children went to Kowkur Darga and after visiting the said Darga and while returning to Hyderabad in an Auto bearing No.AP-9W-6222 and when reached near Bollaram Check post, another Auto bearing No.AP-28TA-4907 came from Risalbazar driven by its driver in a rash and negligent manner at a 2 MGP,J MACMA.No.357 of 2018 high speed and dashed the Auto in which the deceased and her family members were traveling. As a result, the Auto turned turtle and the deceased and her family members sustained grievous injuries and fractures on vital parts of the body. Immediately, she was shifted to Gandhi Hospital, Secunderabad for treatment. But, she was succumbed to injuries on 02.07.2011 at 01.30 hours while undergoing treatment. Police, Bollaram Police Station, registered a case in Crime No.69 of 2011 under Sections 304-A and 337 IPC against the driver of the Auto bearing No.AP-28TA-4907.
4. Respondent No.1, who is the owner of the crime vehicle, remained exparte.
5. Respondent No.2/Insurance Company filed its counter denying the averments made in the claim petition including, age of the deceased, manner of accident, involvement of the crime vehicle i.e., Auto, rash and negligent driving of the Auto bearing No.AP- 28TA-4907 and that the claim of compensation is excess and exorbitant and hence, prayed to dismiss the claim against it. In the additional counter filed by them, it is contended that the seating capacity of the Auto in which the deceased and her family traveled is four. But, at the time of accident, six persons travelled in the said Auto which is more than the permitted seating capacity. Hence, the accident occurred due to the said negligence and for not 3 MGP,J MACMA.No.357 of 2018 taking minimum precautionary measures by the driver of Auto bearing No.AP-9W-6222. Also, the owner and insurer of the said Auto bearing No.AP-9W-6222, who are necessary parties, were not added as parties to the petition. Therefore, the Insurance Company is not liable to pay any compensation.
6. Based on the above pleadings, the learned Tribunal had framed the following issues:
1. Whether the pleaded accident had occurred resulting in death of the deceased, Abida Begum, due to the rash and negligent driving of the motor vehicle ( Auto bearing registration No.AP-28TA-4907) by its driver?
2. Whether the petitioners are entitled to any compensation? If so, at what quantum and what is the liability of the respondents?
3. To what relief?
7. In order to prove the above issues, petitioner No.1 was examined as PW1. As he is not an eye witness to the incident, he got examined PW2, who is an eye witness to the incident and got marked Exs.A1 to A5 on their behalf. On behalf of 2nd respondent, RWs 1 to 4 were examined and Exs.B1 to B6 and Exs.X1 to X6 were got marked.
8. The learned Tribunal, after considering the evidence adduced on both sides and perusing the entire documents available on 4 MGP,J MACMA.No.357 of 2018 record, had partly allowed the claim petition filed by the petitioners by awarding compensation of Rs.4,22,000/- along with interest @ 9% per annum from the date of petition till the date of realization payable by Respondent No.1 alone. Dissatisfied with the said compensation amount, the appellants/petitioners filed the present Appeal.
9. Heard the submission of the learned counsel for appellants as well as learned Standing counsel for Respondent No.2- Insurance company. Perused the record.
10. The contentions of the learned counsel for Appellants are that the learned Tribunal erred in exonerating Respondent No.2 from its liability and attributing responsibility against Respondent No.1 only; erred in considering the income of the deceased as Rs.3,000/- instead of Rs.5,000/- as per the decision of the Hon'ble Apex Court in the case between Arun Kumar Agarwal Vs. National Insurance Co. Ltd. (2010(9) SCC 218); erred in not awarding future prospects to the earnings of the deceased and contended that though the driver of the crime vehicle do not possess driving license, when the insurance policy is in force, the insurance company shall pay at first instance and later recover the same from the owner of the crime vehicle and also contended that the 5 MGP,J MACMA.No.357 of 2018 claimants are entitled for grant of Rs.1,00,000/- each towards love and affection.
11. Per contra, learned counsel for Respondent No.2 contended that the learned Tribunal, after considering all the aspects, had rightly exempted Insurance company from its liability by fixing liability against Respondent No.1 alone and awarded reasonable compensation for which interference of this Court is unwarranted.
12. Now, the point that emerges for determination is, Whether the order passed by the trial Court requires interference of this Court?
POINT:-
13. This Court has perused the entire evidence and documents available on record. Petitioner No.1 was examined as PW1. He reiterated the contents made in the claim petition. As he is not an eye witness to the incident, he got examined PW2, who is the daughter of the deceased and who travelled along with the deceased on the date of accident and deposed that on 01.07.2011, when she along with the deceased and her grand children after visiting Kowkur Darga and were returning to Hyderabad in an Auto bearing No.AP-9W-6222 during night hours, another Auto bearing No.AP-28TA-4907 came from Risalbazar which was driven by its 6 MGP,J MACMA.No.357 of 2018 driver in a high speed in a rash and negligent manner and dashed their Auto due to which, the Auto turned turtle and the deceased along with other members sustained grievous injuries and fractures. Immediately, the deceased was shifted to Gandhi Hospital, Secunderabad for treatment. But she was succumbed to injuries on 02.07.2011 at 1.30 hours while undergoing treatment. She deposed that the said accident occurred due to rash and negligent driving of the driver of Auto bearing No.AP-28TA-4907. During her cross-examination, she denied the suggestion that there were more passengers sitting in the Auto, due to which the driver of the auto could not able to control the auto and therefore, dashed another auto and that there was no negligence on part of the driver of Auto bearing No.AP-28TA-4907. She denied the suggestion that there was no light at the place of accident and that she could not identify the auto which dashed the auto of the deceased.
14. On behalf of 2nd respondent/Insurance Company, RW1, who is Senior Executive, Legal in 2nd respondent office was examined. He deposed that they issued policy bearing No.OG-11-9995 1803 00040121 for goods Auto bearing No.AP-28TA-4907 which is valid from 16.04.2011 to 15.04.2012 and the said policy was in existence as on the date of accident and it is marked as Ex.B1. He 7 MGP,J MACMA.No.357 of 2018 also stated that as the driver of the crime vehicle do not hold any valid driving license which is violation of Section 3(1) of Motor Vehicles Act, hence, Insurance Company is not liable to pay any compensation. Moreover, the MVI inspected the vehicle and imposed fine to Respondent No.1 for driving without driving license vide VCR.No.0532203, dated 25.07.2011 and as per RC records and police records, the seating capacity of Auto is four in all, but six persons were traveling in the said auto as per FIR.
15. RW2, who is Senior Assistant in RTA, Medchal, deposed in his evidence that the crime vehicle i.e., Auto bearing No.AP-28TA- 4907 was registered in the name of K.Shankar Singh during the period from 24.05.2010 to 09.05.2012 and Anand Metla was the registered owner from 09.05.2012 to 19.02.2015. As it is registered as three wheeler goods vehicle, the seating capacity is one and there is no permission for passengers to travel in such goods vehicle.
16. RW3, who is working as Junior Assistant in RTA Central zone, deposed in his evidence that Auto bearing No.AP-09W-6222 was registered in the name of Mohd. Yousufuddin Ghori under the clause of vehicle auto rickshaw transport and the seating capacity of the said auto rickshaw was four in all and there was no permit to claim as on 02.11.2011 i.e, the date of accident. 8
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17. RW4, who is MVI, RTA, Medchal, deposed in his evidence that he inspected Auto bearing No.AP-28TA 4907 on 25.07.2011 at P.S.Bollaram at 4.30 pm and noticed that the owner could not produce the license of owner-cum-driver and there is no proof of quarterly tax. Hence, he issued check report bearing No.0532203 dated 25.07.2011 and seized the vehicle and kept under the safe custody.
18. A perusal of Ex.X6 shows that the driver of the crime vehicle has no driving license at the time of accident. As it is violation of terms of insurance policy, the insurance company is not liable to pay any compensation and respondent No.1 alone is liable to pay compensation. Further, the Insurance Company had addressed letters dated 16.02.2012 and 02.04.2012 to Respondent No.1/owner of the Auto bearing NO.AP-28TA-4907 requesting to furnish copies of certain documents such as Copy of RC, Copy of TC, copy of policy, copy of driving license of the driver at the time of accident within a period of 15 days and 10 days. But, there was no response from respondent No.1 regarding the same.
19. Hence, from the above discussion, it is clear that Respondent No.1 failed to act upon the letters addressed by the Insurance Company and also failed to prove that there is no negligence on his part and also violated the terms and conditions of Ex.B1-Insurance 9 MGP,J MACMA.No.357 of 2018 policy. Hence, the learned Tribunal had rightly fixed liability upon Respondent No.1 in paying compensation to the petitioners. Therefore, this Court is not inclined to interfere with the said finding arrived at by the learned Tribunal which is in proper perspective.
20. Now coming to the quantum of compensation and income fixed by the Tribunal, it is the contention of the learned counsel for appellants that the learned Tribunal erred in considering the income of the deceased as Rs.3,000/- instead of Rs.5,000/- as per the decision of the Hon'ble Apex Court in the case between Arun Kumar Agarwal Vs. National Insurance Co. Ltd. 1 A perusal of the said judgment shows that the deceased therein used to earn Rs.50,000/- per month by engaging herself in paintings and handicrafts. Here, in the present case, there is no evidence to show that the deceased was earning by doing any other work apart from the duty of Home Maker. This Court by relying upon the decision of the Hon'ble Supreme Court in the case between Kirti & another Vs.Oriental Insurance Company Limited 2 and Arum Kumar Agrawal Vs.National Insurance Company & others 3 is inclined to fix the income of the deceased as Rs.5,000/- per month. As per the 1 (2010(9) SCC 218) 2 2021(2)ALD1 SC 3 2010 AIR (SC)3426 10 MGP,J MACMA.No.357 of 2018 decision of the Hon'ble Apex Court in Kirti v. Oriental Insurance Company Ltd. 4, the Hon'ble Apex Court held as under:-
The principle of awarding of future prospects must apply with equal vigor, particularly with respect to homemakers.
Once notional income is determined, the effects of inflation would equally apply.
21. From the above decision, it is clear that the deceased is entitled for future prospects. As the age of the deceased was 54 years at the time of accident, she is entitled for addition of 10% towards 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 5. Hence, the future monthly income of the deceased comes to Rs.5,500/-. As the number of dependants are four in number, if 1/4th amount is deducted towards personal and living expenses of the deceased, the net monthly income of the deceased comes to Rs.4,125/- per month. As the age of the deceased was 54 years at the time of the accident, the appropriate multiplier is '11' as per the decision reported in Sarla Verma v. Delhi Transport 4 2021 SCC OnLine SC 3 5 2017 ACJ 2700 11 MGP,J MACMA.No.357 of 2018 Corporation 6. Therefore, adopting multiplier '11', the total loss of dependency works out to Rs.5,44,500/-(Rs.4125 x 12 x 11). That apart, the appellants are entitled for an amount of Rs.77,000/- under conventional heads. Thus, in all, the appellants/claim petitioners are entitled for compensation to a sum of Rs.6,21,500/-
22. So far as awarding of interest is concerned, the learned Tribunal granted interest @ 9 % per annum from the date of petition till the date of realization. This Court, by relying upon the decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir Singh and others 7, reduces the rate of interest awarded by the Tribunal from 9% per annum to 7.5% per annum.
23. In the result, the Appeal is allowed enhancing the compensation awarded by the Tribunal from Rs.4,22,000/- to Rs.6,21,500/-. The enhanced amount shall carry interest @7.5% per annum from the date of filing of petition till the date of realization payable by Respondent No.1 alone. Respondent No.1 is directed to deposit the enhanced compensation within a period of two months from the date of receipt of a copy of this order. Upon such deposit made by the respondent No.1, the appellants are entitled to withdraw the same as per the apportionment made by 6 2009 ACJ 1298 (SC) 7 2013 ACJ 1403 = 2013 (4) ALT 35 12 MGP,J MACMA.No.357 of 2018 the Tribunal. However, the appellants are directed to pay the deficit Court fee on the enhanced compensation amount. There shall be no order as to costs.
24. Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.22.04.2024 ysk