Telangana High Court
Shriram General Insurance Company ... vs Livakath Begum on 2 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1918 OF 2019
JUDGMENT:
1. Aggrieved by the order dated 21.12.2015 passed in M.V.O.P.NO.412 of 2014, on the file of the Motor Accidents Claims Tribunal (District Judge), Nizamabad, the 2nd respondent therein/Insurance Company preferred the present Appeal seeking to set-aside the order of the learned Tribunal.
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 daughters of the deceased-Mohd.Latheef, filed a petition under Section 166 (1)(c) of the Motor Vehicles Act against the Respondent Nos.1 & 2 claiming compensation of Rs.10,00,000/- together with interest @ 24% per annum on account of the death of the deceased-Mohd.Latheef in a motor vehicle accident that occurred on 20.07.2014 at about 6.00 p.m. As stated by the petitioners, on 20.07.2014 at about 6.00 p.m., when the deceased, as a labourer, was travelling on the Tractor bearing No.AP-25-AD-1049 attached with Trolley bearing No.AP- 25-X-6628 from Varni Chowrastha towards Nagaram and when reached Sainagar, Road No.3 at Varini Road, Nizamabad, the driver of the said Tractor drove the same in a rash and negligent manner, 2 MGP,J MACMA.No.1918 of 2019 due to which, the deceased fell down from the Tractor attached to the Trailer and sustained grievous injuries. Immediately, he was shifted to Government Headquarters Hospital, Nizamabad, from where he was referred to Osmania General Hospital, Hyderabad and while undergoing treatment, he died on 30.07.2014 at about 2.30 AM. It is further submitted by the petitioners that at the time of accident, the deceased was aged 35 years and was earning Rs.15,000/- per month by doing Labour work and was contributing the same for the welfare and maintenance of family and due to his untimely death in the accident, the petitioners lost their source of income and put to sufferance. Hence, filed the claim petition seeking compensation of Rs.10,00,000/- along with interest against Respondent No.1, being the owner and Respondent No.2, being the insurer of the crime vehicle.
4. Respondent No.1, who is owner of the Crime vehicle i.e., Tractor and Trailer, filed his counter denying the averments made in the claim petition which includes age, avocation, manner of accident, rash and negligent driving of the driver of the subject Tractor and Trailer and contended that the subject Tractor and Trailer was insured with the 2nd respondent and hence, the 2nd respondent alone is liable to pay compensation and that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against him.
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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 of the petitioner, involvement of the subject Tractor and Trailer and contended that the deceased travelled as an unauthorized passenger on the subject Tractor and Trailer and the driver of the subject Tractor and Trailer do not possess valid driving license and the subject tractor and trailer is not covered with valid fitness certificate to ply on the route 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 the parties, the learned Tribunal had framed the following issues for consideration:-
1. Whether Mohd.Latheef died due to rash and negligent driving of Tractor bearing No.AP-25-AD-1049 and Trolley bearing No.AP-25-X-6628?
2. Whether the petitioners are entitled for compensation of Rs.10,00,000/- from the respondents as prayed for?
3. To what relief?
7. Before the Tribunal, on behalf of the petitioners, PWs1 to 3 are examined and Exs.A1 to A6 were marked. On behalf of Respondent No.2/Insurance Company, RW1 was examined and Ex.B1-Copy of Insurance Policy was marked.
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8. After considering the evidence and documents filed by both sides, the learned Tribunal had allowed the claim petition by awarding compensation of Rs.10,43,000/- with simple interest @ 7.5% per annum from the date of filing of petition till the date of deposit of amount which is payable by Respondent Nos.1 & 2 jointly and severally. Aggrieved by the same, the present Appeal is filed by the Insurance Company, who is arrayed as respondent No.2 in the O.P.
9. Heard both sides and perused the material available on record.
10. The contentions of the learned Standing Counsel for appellant/Insurance Company are that the learned Tribunal failed to consider that there is delay of '8' days in registering FIR and that the deceased travelled as an unauthorized passenger as Ex.B1- Insurance policy shows that the seating capacity of the subject Tractor is one, which is only for driver and that there is no additional premium paid to cover the risk of the labourer, as such Insurance Company is not liable to pay any compensation to the appellant. It is also contended that the Tribunal ought to have taken notional income while computing compensation. It is also contended that the subject vehicle is prohibited for carrying passengers as it is a goods vehicle. Finally, it also contended that the learned Tribunal erred in granting compensation twice towards 5 MGP,J MACMA.No.1918 of 2019 loss of love and affection and hence, prayed to set-aside the same. It also relied upon certain decisions which are reported in 1999(5) ALD 138 (DB), 2011 Law Suit (AP) 1061, 2013 (1) ALD 41 and 2018 (3) ALD 531, wherein the Insurance Company is not liable to pay any compensation under no fault liability.
11. On the other hand, learned counsel for the respondents contended that the learned Tribunal after considering all the aspects, has awarded reasonable compensation for which interference of this Court is unwarranted. He also relied upon certain decisions of the Hon'ble Apex Court which are reported in 2022 Law Suit (SC) 1575 and orders passed by this Court in MACMA.2127 of 2019, dated 02.12.2022, wherein pay and recovery principle was adopted directing the Insurance Company to pay the compensation amount in the first instance and later recover the same from the owner of the crime vehicle.
12. Now the point that emerges for determination is, Whether the order passed by the learned Tribunal 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 wife of the deceased, examined herself as PW1 and got examined PWs 2 & 3. During the course of her 6 MGP,J MACMA.No.1918 of 2019 examination, PW1 reiterated the contents of the claim petition. PW3, who is an eye witness to the accident, deposed that the accident took place due to the rash and negligent driving of the driver of the crime Tractor and Trailer. PW1, in support of her evidence, got marked EXs.A1 to A6 on her behalf. A perusal of Ex.A1-FIR shows that Police of V Towan, Nizamabad, registered a case in Crime No.127 of 2014 under Section 337 IPC against the driver of the crime Tractor and filed charge sheet under Ex.A2 for the offence under Section 304-A IPC. Ex.A3 is the Post mortem examination report. Ex.A4 is the inquest report. Ex.A5-Report of the Motor Vehicle Inspector shows that the accident had not occurred due to any mechanical defects in the Tractor and Trailer and Ex.A6 is the Copy of Insurance policy which shows that the policy was in force as on the date of accident. A perusal of evidence of PW3, who is an eye witness to the incident coupled with Exs.A1 to A5, confirms that the death of the deceased was due to rash and negligent driving of the driving of the subject Tractor bearing No.AP-25-AD-1049 attached with Trolley bearing No.AP-25-X-6628. Though PWs1 to 3 were cross-examined at length, nothing adverse was elicited from them to disbelieve their testimony.
14. On behalf of Insurance Company, RW1 was examined. He deposed that there was delay of 8 days in lodging complaint to the 7 MGP,J MACMA.No.1918 of 2019 Police and that the deceased was travelling as an unauthorized passenger on the subject Tractor and Trailer and hence, Insurance Company is not liable to pay any compensation to the petitioner. In support of his evidence, he got marked Ex.B1- Insurance policy.
15. In this regard, it is pertinent to refer to the complaint given by PW1 wherein, the reason stated by her for delay in lodging FIR is that immediately after the accident, she thought that her husband would recover from injuries. Hence, she did not lodge any complaint immediately after the accident. However, immediately after the death of her husband, she gave a complaint before the Police. The said explanation is reasonable and would not make any consequence in deciding the petition. It is also admitted fact that delay in lodging of FIR cannot be a ground to dismiss the claim petition as the family members will be engaged in providing necessary treatment to the injured instead of rushing to police station for giving a complaint regarding the accident.
16. In this regard, it is pertinent to refer to the judgment of the Hon'ble Apex Court in the case of Ravi v. Badrinaryan 1, wherein, the Hon'ble Apex Court at Para No.21 held as under:-
"21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for 1 (2011) 4 SCC 693 8 MGP,J MACMA.No.1918 of 2019 compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."
17. In view of the above, the contention of the learned counsel for appellant/Insurance Company that the learned Tribunal took a lenient view with regard to delay in lodging FIR is unsustainable.
18. It is further contention of the learned Standing Counsel for Appellant/Insurance Company that the learned Tribunal failed to see that the deceased travelled as an unauthorized passenger on the subject Tractor and further contended that Ex.B1-Insurance policy does not cover risk of the labourer and therefore, the insurance company is not liable to pay any compensation. In this regard, it is pertinent to refer to the decision of High Court of Gujarat in a case between United India Insurance Co.Ltd. Vs.Fatmaben Ismailbhai 2 wherein the Court, at Para 12 of the Judgment, held as under:-
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LAWS (GIH)-2009-4-160 9 MGP,J MACMA.No.1918 of 2019 "12. As discussed hereinabove, the vehicle in question was a goods vehicle and the deceased was an unauthorized passenger in the vehicle in question and therefore, the insurance company is not liable to pay the amount of compensation. However, as the manifest object of the provisions of the MV Act is to ensure that the party, who suffers injuries due to the use of the motorcycle, and may be able to get the damages for the injuries sustained/death. If the goods vehicle is used for carrying the passengers, against the terms of insurance policy, as is in the case on hand, the claimants cannot suffer for the technicalities of whether the owner/insurance company should pay the amount. As the vehicle is insured with the insurance company, the insurance company shall first pay the compensation and it is for the insurance company to recover from the owner if it so wishes."
19. From the above referred 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. Moreover, a perusal of Ex.A6=Ex.B1-Insurance policy shows that the policy was in force as on the date of accident. Therefore, the Insurance Company is liable to pay compensation.
20. It is the further contention of the learned counsel for the appellant/Insurance Company is that the learned Tribunal erred in taking the monthly income of the deceased as Rs.6,000/- without any substantial proof. In this regard, it is pertinent to refer the evidence of PW1 wherein she deposed that his husband used to do labour work and also had Rice business and used to earn 10 MGP,J MACMA.No.1918 of 2019 Rs.15,000/- per month. Further, there is a mention in Ex.A4- Inquest Report that the occupation of the deceased as "Rice Business". Hence, the learned Tribunal came to a conclusion that the deceased, as an abled bodied man, can earn not less than Rs.6,000/- per month by doing labour work and Rice business. Hence, interference of this Court is not necessary in this regard.
21. Coming to the aspect of compensation, the learned Tribunal fixed the monthly income of the deceased @ Rs.6,000/- and deducted 1/3rd towards personal expenses as the number of dependents are three and applied multiplier '16' for the deceased being aged 38 years , which comes to Rs.7,68,000/-. Apart from this the learned Tribunal had awarded a sum of Rs.25,000/- towards funeral expenses and also awarded compensation towards loss of love and affection twice which needs interference of this Court. This Court by relying upon 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), is inclined to award a sum of Rs.77,000/- towards non- pecuniary damages. Further, considering the fact that the claim 11 MGP,J MACMA.No.1918 of 2019 petitioners 2 & 3 being minor children of the deceased, this Court is inclined to award a sum of Rs.40,000/- each under the head of parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 3 . Thus, in all, the claimants are entitled for a total compensation of Rs.9,25,000/-.
22. In the result, the Appeal filed by the Insurance Company is partly-allowed reducing the amount of compensation granted by the Tribunal from Rs.10,43,000/- to Rs.9,25,000/- which carries interest @ 7.5% per annum payable by Respondent Nos.1 & 2 jointly and severally within a period of two months from the date of receipt of a copy of this order. The Respondent No.2/Insurance Company (appellant herein) shall pay the compensation in the first instance and later recover the same from Respondent No.1. Upon such payment made, the respondents/claim petitioners are entitled to withdraw the same as per the apportionment made by the learned Tribunal. There shall be no order as to costs.
23. Miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.02.08.2024 ysk 3 (2018) 18 SCC 130