Telangana High Court
R Venkaiah And Others vs Mahamood Mahamad on 6 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.836 and 3324 of 2017
COMMON JUDGMENT:
1. These Motor Accident Civil Miscellaneous Appeals are directed against order and decree dated 05.01.2017 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge at Nalgonda (hereinafter referred to as 'Tribunal'). The said claim petition was filed by the petitioners therein seeking compensation for death of one Rainaboina Sathyanarayana (hereinafter referred to as 'deceased') and the same was partly allowed granting compensation of Rs.4,70,000/-. Aggrieved by the said order, respondent No.2 before the Tribunal has filed M.A.C.M.A.No.836 of 2017 seeking to set aside the impugned order and dismiss the claim petition and the petitioners before the Tribunal filed M.A.C.M.A.No.3324 of 2017 seeking enhancement of compensation granted by the Tribunal. Since both the appeals are arising out of same order and decree, they are being dealt with by way of this common judgment.
2. The petitioners before the Tribunal are appellants in M.A.C.M.A.No.3324 of 2017 and respondent Nos.1 to 5 in M.A.C.M.A.No.836 of 2017. Respondent No.1 before the Tribunal 2 MGP,J MACMA_836_2017 & MACMA_3324_2017 is respondent No.6 in M.A.C.M.A.No.836 of 2017 and respondent No.1 in M.A.C.M.A.No.3324 of 2017. Respondent No.2 before the Tribunal is appellant in M.A.C.M.A.No.836 of 2017 and respondent No.2 in M.A.C.M.A.No.3324 of 2017. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. It is the case of the petitioners that petitioner Nos.1 and 2 are parents, petitioner Nos.3 and 4 are brother and sister and petitioner No.5 is grandmother of the deceased. On 02.11.2013, the deceased boarded auto bearing No.AP 24 TC 0267 at Haliya in order to go to his village Vaddipatla along with other passengers. On the way, at about 08:30 am, when the said auto reached near Thumma Chettu X road, Peddavoora Mandal, one DCM bearing No.AP 21 W 0146 (hereinafter referred to as 'crime vehicle') coming from Nagarjuna sagar side proceeding towards Peddavoora side driven in rash and negligent manner at high speed dashed the auto. As a result, accident occurred and the deceased along with other inmates and driver of the said auto sustained injuries. Immediately, the deceased was shifted to Kamala Nehru Hospital, Nagarjuna Sagar, for treatment and subsequently, he was shifted 3 MGP,J MACMA_836_2017 & MACMA_3324_2017 to Omni Hospital, Hyderabad, for better treatment. The accident occurred due to rash and negligent driving of driver of DCM bearing No.AP 21 W 0146. Hence, the matter was reported to police and Police Peddavoora registered case in Crime No.134 of 2013.
4. It is further case of the petitioners that the deceased was aged about 21 years as on the date of the accident and he was earning an amount of Rs.400/- per day by working as a mason. The deceased was hale and healthy before the accident and he used to contribute the entire earnings to the petitioners, who are his dependents. In the said circumstances, the present claim petition is filed by the petitioners seeking compensation of Rs.6,00,000/- under various heads from respondent Nos.1 and 2, who are owner and insurer of the crime vehicle respectively.
5. Respondent No.1 remained ex parte. Respondent No.2 filed its counter denying the manner of the accident, age, income and health condition of the deceased. It is also contended that the driver of the crime vehicle was not having valid driving license at the time of the accident. Further, the compensation claimed by 4 MGP,J MACMA_836_2017 & MACMA_3324_2017 the petitioners is excess. Hence, prayed to dismiss the claim petition.
6. In support of their case, the petitioners got examined petitioner No.2 as P.W.1 and also got examined P.W.2 and got marked Exs.A-1 to A-5. On behalf of respondent No.2, R.Ws.1 and 2 were got examined and Exs.B-1 to B-4 were got marked. Further, Exs.X-1 and X-2 were also got marked.
7. On the basis of the above pleadings, the following issues were framed by the Tribunal:
"1. Whether the deceased died due to rash and negligent driving of the driver of DCM bearing No.AP 21 W 0146?
2. Whether the petitioners are entitled for compensation, if so, to what amount and from whom?
3. To what relief?"
8. After considering the pleadings and evidence on record, the Tribunal held that the petitioners have successfully proved their case. Hence, the claim petition was partly allowed holding that respondent Nos.1 and 2 are jointly and severally liable to pay compensation and granted an amount of Rs.4,70,000/- towards compensation payable to the petitioners. 5
MGP,J MACMA_836_2017 & MACMA_3324_2017
9. Heard both sides.
10. Learned counsel for the appellant in M.A.C.M.A.No.836 of 2017/respondent No.2 i.e., the insurance company contended that the Tribunal erred in granting compensation without considering that the driver of the crime vehicle was not holding valid driving license as on the date of the accident. Hence, prayed to allow the M.A.C.M.A.No.836 of 2017 and set aside the impugned order passed by the Tribunal.
11. Per contra, the learned counsel for appellants in M.A.C.M.A.No.3324 of 2017/petitioners contended that the Tribunal considered the salary of the deceased on lower side and granted meager amount towards compensation. It is also contended that the Tribunal failed to grant future prospects and also granted meager amounts under conventional heads. Hence, prayed to allow the M.A.C.M.A.No.3324 of 2017 and enhance the compensation granted by the Tribunal.
12. Now the point for determination is as follows:
"1. Whether the Tribunal erred in granting compensation to the petitioners as contended by the respondent No.2/insurance company?6
MGP,J MACMA_836_2017 & MACMA_3324_2017
2. Whether the petitioners are entitled for enhancement of compensation, which is granted by the Tribunal as prayed for?"
Point Nos.1 and 2:
13. This Court has perused the entire evidence and material placed on record. Petitioner No.2 was examined as P.W.1 and she got marked Exs.A-1 to A-5, in support of the case of the petitioners. P.W.1 is mother of the deceased and she filed her evidence affidavit reiterating the contents of the claim petition. P.W.1 did not witness the accident, therefore, to prove the occurrence of the accident, the petitioners got examined P.W.2, who is eyewitness to the incident. P.W.2 deposed that while they were going in the auto, the deceased was very much present in the auto on the date of the accident and the accident occurred due to the rash and negligent driving of the driver of the crime vehicle, which came from Nagarjunasagar side and dashed the auto in which they were travelling. As a result of the accident, all the passengers in the auto sustained injuries and they were shifted to Kamala Nehru Hospital, Nagarjunasagar, for treatment. Subsequently, as the condition of the deceased was serious, the deceased was shifted to Omni Hospital, for better treatment and 7 MGP,J MACMA_836_2017 & MACMA_3324_2017 he died on the next day while undergoing treatment. Though, P.Ws.1 and 2 were cross-examined, nothing contrary was elicited to disprove the case set up by them.
14. Respondent No.2 got examined its Senior Executive Legal as R.W.1. R.W.1 deposed that the accident took place due to rash and negligent driving of the driver of auto bearing No.AP 24 TC 0267. He also deposed that the crime vehicle was goods carrying commercial transport vehicle and at the time of the accident also the vehicle was used for transportation of goods. However, the driver of the crime vehicle was not holding valid and effective driving license to drive a goods carrying commercial transport vehicle. Therefore, there is breach of conditions of the insurance policy, as such, respondent No.2 is not liable to pay compensation to the petitioners for the death of the deceased. In the cross- examination, he admitted that the police filed charge sheet showing that the crime vehicle was at fault. He also admitted that the driver of the crime vehicle was having driving license to drive the DCM van, but it is non-transport driving license. 8
MGP,J MACMA_836_2017 & MACMA_3324_2017
15. Respondent No.2 summoned Road Transport Authorities and got examined R.W.2, who is Administrative Officer at R.T.O. Office, Nagarkurnool. R.W.2 deposed that the driver of the crime vehicle was holding driving license and was authorized to drive LMV non-transport, MTL transport, MCWG non-transport, TVEH transport. He stated that the driver of the crime vehicle was holding LMV transport and non-transport category license and stated that he was not authorized to drive heavy goods vehicle. He further deposed that DCM does not come under Light Motor Vehicle and that person holding license under the category of LMV can driver the vehicle of upto 7500 kgs and the DCM vehicle unladen weight is 10500 kgs. In the cross-examination, he admitted that the DCM vehicle falls under medium goods vehicle.
16. Admittedly, Ex.A-1 copy of First Information Report, Ex.A-2 copy of inquest report, Ex.A-3 copy of postmortem examination report, Ex.A-4 copy of charge sheet and Ex.A-5 copy of the Motor Vehicle Inspector report clearly discloses that on 02.11.2013, the deceased boarded auto bearing No.AP 24 TC 0267 at Haliya to go to his village Vaddipatla along with other passengers and on the way at about 08:30 AM, when the said auto reached near 9 MGP,J MACMA_836_2017 & MACMA_3324_2017 Thumma Chettu X Road, Peddavoora Mandal, the crime vehicle came from Nagarjunasagar side driven in rash and negligent manner by its driver and dashed the auto. As a result of which, the deceased and other inmates of the said auto sustained injuries including the driver. Due to the said accident, the deceased sustained injuries and died while undergoing treatment. The said documents clearly establish the occurrence of the accident, involvement of crime vehicle in the said accident driven by its driver in rash and negligent manner and also death of the deceased.
17. It is also pertinent to state that the Police Peddavoora have registered FIR under Ex.A-1 and after thorough investigation filed charge sheet under Ex.A-4. The said documents clearly disclose that police filed charge sheet only against the driver of the crime vehicle i.e., DCM bearing No.AP 21 W 0146 and not against any other persons. This clearly shows that there was no negligence on the part of the auto driver in which the deceased was travelling and the negligence was only attributed to the driver of the crime vehicle. Furthermore, the evidence of P.W.2 clearly shows that the accident occurred due to rash and negligent driving of the driver of 10 MGP,J MACMA_836_2017 & MACMA_3324_2017 the crime vehicle. Hence, this Court is of the opinion that the Tribunal has rightly considered that the accident occurred only due to the negligence on the part of the driver of the crime vehicle.
18. The main contention of the learned counsel for the appellant in M.A.C.M.A.No.836 of 2017/respondent No.2 i.e., the insurance company is that the Tribunal erred in granting compensation without considering that the driver of the crime vehicle was not holding valid driving license as on the date of the accident, as such respondent No.2 is not liable to pay compensation, more particularly in view of the violation of policy conditions. It is pertinent to state that the driver of the crime vehicle was holding driving license and extract of the same was marked through R.W.1 under Ex.B-2 and also through R.W.2 under Ex.X-2. However, the driver of the crime vehicle was authorized to drive LMV non- transport, MTL transport, MCWG non-transport, TVEH transport. The driver of the crime vehicle was holding LMV transport and non-transport category license. The crime vehicle is DCM van, which is a Medium Motor Vehicle - transport for commercial use. However, R.Ws.1 and 2 clearly admitted in their cross- examination that the driver of the crime vehicle was holding 11 MGP,J MACMA_836_2017 & MACMA_3324_2017 driving license. R.W.2 also admitted that he is not technically qualified person. It is pertinent to note that if at all the driver of the crime vehicle was not holding valid and effective driving license, certainly the Police, Peddavoora Police Station would have registered the case against the driver of the crime vehicle for violation of the provisions of Motor Vehicle Act, 1988 also, but there is no such instance in the present case.
19. It is also pertinent to state that even for the sake of arguments if we accept the contention of the learned counsel for appellant in M.A.C.M.A.No.836 of 2017/respondent No.2 as true, mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Moreover, the policy conditions regarding driver not holding valid and effective driving license at the time of accident cannot be considered as fundamental breach that had contributed to the cause of the accident to discharge the respondent No.2/insurance company from the liability. In the said circumstances, this Court is of the considered opinion that the Tribunal after considering all the aspects has held that petitioners 12 MGP,J MACMA_836_2017 & MACMA_3324_2017 have successfully proved their case beyond reasonable doubt and held that both the respondents are jointly and severally liable to pay compensation. The appeal filed by respondent No.2 i.e., insurance company is devoid of merits and the same is liable to be dismissed.
20. Coming to the quantum of compensation, it is the case of the petitioners that the deceased was working as mason and was earning an amount of Rs.400/- per day. However, the Tribunal did not consider the same as no income proof was filed by the petitioners in support of their contention. Hence, the Tribunal has taken the income of the deceased as Rs.4,000/- per month. This Court is of the considered opinion that the said income is on lower side. Therefore, this Court is inclined to consider the monthly income of the deceased at Rs.5,000/- per month.
21. The Tribunal based on the postmortem examination report under Ex.A-3 determined the age of the deceased as 21 years. Admittedly, the Tribunal has not granted any amount towards future prospects of the deceased. The monthly salary of the 13 MGP,J MACMA_836_2017 & MACMA_3324_2017 deceased is considered at Rs.5,000/- per month. In view of the decision of the Apex Court in Sarla Varma v. Delhi Transport Corporation and another 1, 50% of the salary has to be deducted towards personal expenses of the deceased, as he was bachelor. Hence, after deduction of personal expenses, the monthly salary of the deceased comes to Rs.2,500/- (50% of Rs.5,000/-). Further, as per the decision of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others 2, 40% towards future prospects can duly be added to the established income of the deceased. The monthly income of the deceased comes to Rs.3,500/- [Rs.2,500/- + Rs.1,000/-(40% of Rs.2,500/-)]. Further, as per Sarla Varma (cited 2nd supra), the appropriate multiplier is '18' as the deceased was 21 years old at the time of the accident. Thus, applying the multiplier '18', the total loss of dependency comes to Rs.7,56,000/- (Rs.3,500/- X 12 months X 18). In addition to that, the deceased being a bachelor is entitled for Rs.30,000/- under conventional heads. Hence, in all the total quantum of compensation comes to Rs.7,86,000/-. 1 2009 (6) SCC 121 2 2017 ACJ 2700 14 MGP,J MACMA_836_2017 & MACMA_3324_2017 The Tribunal has granted an amount of Rs.4,70,000/- towards compensation. Hence, the same is enhanced to Rs.7,86,000/-.
22. Coming to the interest on compensation amount, the Tribunal has awarded interest at 7.5% per annum on the amount of compensation. This Court does not find any reason to interfere into the same as the same is reasonable.
23. In the result, M.A.C.M.A.No.836 of 2017 is dismissed and M.A.C.M.A.No.3324 of 2017 is allowed by enhancing compensation granted by the Tribunal from Rs.4,70,000/- to Rs.7,86,000/- along with interest as granted by the Tribunal payable by both the respondents jointly and severally. The respondents are directed to deposit the enhanced amount to the credit of O.P. along with accrued interest within a period of two months from the date of receipt of copy of this judgment. On such deposit, the petitioners before the Tribunal are permitted to withdraw the entire amounts as apportioned to them by the Tribunal. The enhanced amount shall be paid to the petitioners subject to payment of deficit Court fee, if any. There shall be no 15 MGP,J MACMA_836_2017 & MACMA_3324_2017 order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 06.02.2024 GVR