Telangana High Court
Smt. K. Kanakalatha, Hyd And Another vs Shaik Assan Ali, R.R.Dist And Another on 23 April, 2024
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MGP,J
MACMA.No.1208 of 2017 and
MACMA.No.2563 of 2019
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1208 OF 2017
AND
M.A.C.M.A.No.2563 OF 2019
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.1208 of 2017 filed by claim petitioners, seeking for enhancement of compensation and M.A.C.M.A.No.2563 of 2019 filed by Respondent No.2/Insurance Company seeking to allow the appeal by setting aside the order of the learned trial Court, both are directed against the very same order dated 08.02.2016 passed in M.V.O.P.No.263 of 2012, on the file of the Court of XI Additional Chief Judge, City Civil Court, Hyderabad.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the trial Court.
3. The facts of the case in brief are that the claim petitioners, who are the parents of Sri K.Sarveshwar @ Babloo (hereinafter be referred as "the deceased"), filed a petition under Section 166 of M.V.Act against the Respondent Nos.1 & 2 claiming compensation of Rs.9,00,000/- for the death of their son (deceased) in a motor vehicle accident that occurred on 01.10.2011 at about 8.30 a.m. at Cherlapally 'X' Roads, Kushaiguda, Hyderabad. As stated by the 2 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 petitioners, on 01.10.2011 at about 8.30 a.m., when the deceased and his brother were going towards Cherlapally Market by walk and when reached Cherlapally X Roads, one Auto bearing No.AP- 29U-8725 which was driven by its driver in a rash and negligent manner at a high speed, came from back side and dashed the deceased. As a result, the deceased sustained grievous head injury and other serious injuries on vital party of the body. Immediately, he was shifted to Gandhi Hospital, Secunderabad for treatment and he succumbed to injuries while undergoing treatment. Based on the information, Police, Kushaiguda Police Station, registered a case in Crime No.625 of 2011 under Section 304-A IPC against the driver of the Auto bearing No.AP-29U-8725. It is stated by the petitioners that at the time of accident, the deceased was aged about 29 years and was earning Rs.12,000/- per month by working as a Supervisor in M/s.Safe Polymers, Hyderabad and used to contribute the same for maintenance of family. Due to sudden death of the deceased, the claimants have lost their sole bread winner, love and affection of the deceased and were put to mental shock and agony and finding it difficult to eke out their livelihood. Therefore, they filed a petition claiming compensation of Rs.9,00,000/- along with interest against Respondent No.1, being the owner and Respondent No.2, being the insurer of the crime vehicle.
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MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019
4. Respondent No.1, who is owner of the crime vehicle i.e., Auto, remained exparte.
5. Respondent No.2/Insurance Company filed its counter denying the averments made in the claim petition including, manner of accident, age, avocation, earning capacity, involvement of the Auto, negligence of the driver of the crime vehicle i.e., Auto bearing No.AP-29U-8725 and that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against it.
6. Based on the rival contentions made by both parties, the learned trial Court had framed the following issues:-
1. Whether the accident took place due to the rash and negligent driving of the vehicle bearing No.AP-29U-8725 causing death of Sri K.Sarveshwar @ Babloo?
2. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?
3. To what relief?
7. Before the trial Court, on behalf of the petitioners, petitioner No.1 was examined as PW1 and got marked Exs.A1 to A6 on their behalf. On behalf of Respondent No.2/Insurance Company, RW1 was examined and Exs.B1 to B3 were marked.
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MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019
8. After considering the evidence and documents available on record, the learned trial Court had partly allowed the claim petition of the petitioners awarding compensation of Rs.8,13,500/- with simple interest @ 7.5% per annum from the date of filing of petition till the date of realization which is payable by Respondent Nos.1 & 2 jointly and severally. It is further directed by the trial Court that Respondent No.2 shall pay the compensation in the first instance and shall later recover the amount so paid from Respondent No.1/owner of the Auto by filing execution petition. Challenging the same, the present appeals came to be filed by the claimants and Insurance Company respectively.
9. Heard both sides and perused the material available on record.
10. The contentions of the learned counsel for appellants/claim petitioners in M.A.C.M.A.1208 of 2017 are that the learned trial Court ought to have considered Ex.A6-Salary Certificate and ought to have granted compensation towards loss of love and affection and transportation and hence, prayed to allow the appeal by enhancing the compensation awarded by the learned trial Court.
11. The contentions made by the learned counsel for Respondent No.2/Insurance Company in M.A.C.M.A.No.2563 of 2019 are that the learned trial Court erred in adopting pay and recover policy; 5
MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 erred in deducting 50% towards future prospects as the deceased is working on a fixed salary and erred in granting Rs.1,25,000/- towards non-pecuniary damages and hence, prayed to allow the appeal by setting aside the order of the learned trial Court.
12. Now the point that emerges for determination is, Whether the order passed by the learned trial Court requires interference of this Court?
POINT:-
13. This Court has perused the entire evidence and documents available on record. On behalf of the claim petitioners, petitioner No.1, who is the mother of the deceased, was examined as PW1. She reiterated the contents made in the claim petition and got marked Exs.A1 to A6 on their behalf. Ex.A1-FIR shows that Police, Kushaiguda Police Station registered a case in Crime No.625 of 2011 under Section 337 IPC against the driver of the Auto bearing No.AP-29U-8725, conducted investigation and laid charge sheet under Ex.A2 wherein, it is held that the driver of the Auto bearing No.AP-29U-8725 drove his Auto in a rash and negligent manner and dashed the deceased which resulted in his death and as the accused had not produced driving license, he was committed offence punishable under Sections 3(1)(5) of M.V.Act, 1988 and 304A IPC. Ex.A3 is the report of the Motor Vehicle Inspector which shows that the accident had not occurred due to any 6 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 mechanical defect in the vehicle. Ex.A4 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 01.10.2011 due to rash and negligent driving of the driver of the Auto bearing No.AP-29U-8725. Ex.A5 is the post mortem examination report wherein it is held that the death of the deceased was due to 'Head injury'. Ex.A6 is the salary certificate of the deceased. Though PW1 was cross-examined at length, nothing adverse was elicited from her to disbelieve her testimony.
14. While considering the Appeal, this Court called for the records from the trial Court and on perusal of the record, it is found that one eye witness by name Sri Anil Kumar Das, was examined as PW2 on behalf of the claimants. But there was no recital about the said person in the impugned judgment as well as in the appendix of evidence appended to the impugned judgment.
15. A perusal of evidence of PW2, who is an eye witness to the incident, shows that on 01.10.2011, at about 8.30 hours, when himself and deceased were going towards Cherlapally market by walk, on the way, when they reached near Cherlapally X roads, one Auto bearing No.AP-29U-8725 driven by its driver in a rash and negligent manner, came from back side and dashed the deceased. As a result, the deceased fell down and sustained grievous head 7 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 injury and other serious injuries on vital parts of the body. Immediately he was shifted to Gandhi Hospital, Secunderabad for treatment and he was succumbed to injuries while undergoing treatment. He deposed that the said accident occurred due to rash and negligent driving of the driver of the said Auto. Though PW2 was cross-examined at length, nothing adverse was elicited to disbelieve his testimony.
16. On behalf of Respondent No.2, RW1, who is Assistant Manager working in the 2nd respondent/Insurance Company was examined. She deposed in her evidence that Respondent No.1 entrusted the crime vehicle to one Mr.M.Ramesh to drive the vehicle as his driving license in respect of transport vehicle was expired on 12.07.2007 which comes to violation of policy conditions. She stated that as per the final opinion given by Department of Forensic Medicine & Toxicology, Gandhi Medical College, Hyderabad, the deceased died due to Head injury associated with Ethyl Alcohol intoxication and hence, the Insurance Company is not liable to pay any compensation. In support of her evidence, she got marked Exs.B1 to B3.
17. During her cross-examination, she admitted that the policy was in force as on the date of accident.
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MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019
18. It is pertinent to note that there is no dispute with regard to occurrence of accident and death of the deceased. The only contention raised by the learned counsel for Appellant/Insurance Company in M.A.C.M.A. 2563 of 2019 is that the though the driver of the crime vehicle do not have any valid driving license, the learned trial Court fastened the liability upon insurance company by adopting pay and the recover policy.
19. In this regard, it is pertinent to refer the decision of the Hon'ble Supreme Court in the case between S.Iyyapan v.United Insurance Co.Ltd. 1, wherein the Hon'ble Court held as under:-
"... ... ... Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle, but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained. In the driving license in any case, it is statutory right of third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy."1
2013(5) ALD 62(SC) 9 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019
20. Also, in a decision reported by Bombay High Court, it is held as under:-
"An insurance company is liable to pay compensation to accident victim's kin even if the driving license of the offending vehicle's driver has expired and not renewed as an expired license would not make him an unskilled driver. The insurance company has to pay compensation first and later recover it from the owner of the vehicle."
21. From the above referred decisions, 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. Moreover, the Insurance company had not taken any steps to examine the RTO Authorities in support of their contention. A perusal of Ex.B3- driving licence of the driver of Auto bearing No.AP-29U-8725 shows that the same was issued on 06.07.1998 and it was valid upto 12.07.2007 for a transport vehicle and upto 05.07.2018 for a non- transport vehicle. As the vehicle of Respondent No.1 is a transport vehicle, the license of the said vehicle got expired. Hence, considering the same, the learned trial Court adopted pay and recover policy for which this Court is not inclined to interfere with the said finding.
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MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019
22. The further contention of the learned counsel for the appellant/Insurance Company is that the learned trial Court erred in granting Rs.1,25,000/- under the Head of non-pecuniary damages. 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 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, which in all comes to Rs.70,000/- (which shall carry 10% enhancement for every three years). This Court, by relying upon the said decision, is inclined to interfere with the order of the trial Court and reduces the amount awarded under non-pecuniary heads from Rs.1,25,000/- to Rs.77,000/- .
23. It is also contended that the learned trial Court erred in deducting 50% towards future prospects of the deceased as he is not a permanent employee. A perusal Ex.A6-Salary certificate issued by the Managing Partner of Safe Polymers shows that the deceased used to work as a Supervisor in their firm and used to be paid Rs.12,000/- per month towards salary. As per the decision of the Hon'ble Supreme Court in National Insurance Company 11 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 Limited Vs. Pranay Sethi and others 2, if the deceased was aged below 40 years and is working on fixed wages, he is entitled for addition of 40% towards future prospects. But the learned trial court had awarded 50% towards future prospects. This Court is inclined to interfere with the said finding and hereby reduce the percentage awarded under future prospects from 50% to 40%.
24. Now, coming to the income of the deceased, it is the contention of the learned counsel for the appellants/claim petitioners in M.A.C.M.A.1208 of 2017 that though the deceased used to earn Rs.12,000/- per month by working as Supervisor in Safe Polymers and produced documentary proof to that effect, but the learned trial Court, without considering the same, had taken the income of the deceased @ Rs.4,500/- per month which is very meagre. This Court, taking into consideration the fact that even though the person who issued Ex.A6-Salary Certificate was not examined, but there was no objection reported by the other side in marking the said document, is inclined to fix the monthly income of the deceased @ Rs.8,000/-. As the deceased was aged 29 years at the time of accident, he is entitled for addition of 40% towards future prospects to the established income as per the decision of 2 2017 ACJ 2700 12 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others 3. Hence, the future monthly income of the deceased comes to Rs.11,200/-. Since the deceased was a bachelor, 50% of the established income is deducted towards his personal and living expenses. Hence, the net monthly income of the deceased comes to Rs.5,600/- per month. As the age of the deceased is 29 years, the suitable multiplier is '17' as per the decision reported in Sarla Verma v. Delhi Transport Corporation 4, the total loss of dependency works out to Rs.11,42,400/- (Rs.5,600 x 12 x 17). That apart, the claim petitioners are also entitled for an amount of Rs.77,000/- under conventional heads. Thus, in all, the appellants/claim petitioners in M.A.C.M.A.No.1208 of 2017 are entitled for a total compensation of Rs.12,19,400/-
25. In the result, M.A.C.M.A.No.1208 of 2017, filed by claim petitioners, is allowed enhancing the compensation awarded by the trial Court from Rs.8,13,500/- to Rs.12,19,400/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of petition till the date of realization payable by Respondent Nos.1 & 2 3 2017 ACJ 2700 4 2009 ACJ 1298 (SC) 13 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 jointly and severally within a period of two months from the date of receipt of a copy of this order. The Respondent No.2 shall pay the enhanced amount in the first instance and later recover the same from Respondent No.1. On such deposit, the appellants in M.A.C.M.A.1208 of 2017 are entitled to withdraw the same as per the apportionment made by the trial Court by paying the deficit Court fee.
26. M.A.C.M.A.No.2563 of 2019 filed by Insurance company is partly allowed reducing the amount granted under non-pecuniary damages from Rs.1,25,000/- to Rs.77,000/- and also reducing the amount granted under future prospects from 50% to 40%. There shall be no order as to costs in both the appeals.
27. Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.23.04.2024 ysk 14 MGP,J MACMA.No.1208 of 2017 and MACMA.No.2563 of 2019 THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI M.A.C.M.A.No.1208 OF 2017 AND M.A.C.M.A.No.2563 OF 2019 Dt.23.04.2024 ysk