Telangana High Court
M/S United India Insurance Co. Ltd. vs Katkuri Padma And 4 Others on 8 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NO.112 OF 2021
JUDGMENT:
Heard learned standing counsel Sri A.Ramakrishna Reddy for the appellant-insurance company and Sri. Vladimeer Khatoon, learned counsel for respondents-claimants.
2. The present appeal has been filed by the appellant/ insurance company challenging the award passed by the Chairman, Motor Accident Claims Tribunal-cum-XII Additional Chief Judge, City Civil Court, Secunderabad (for short, 'Tribunal') in M.V.O.P.No.372 of 2017, dated 20.05.2020, thereby seeking to set-aside the award against the insurance company.
3. The brief factual matrix of the present appeal is as under.
4. On 17.07.2017 at about 11.00 a.m., while the deceased i.e., K.Lingaiah, was standing at Naspur gate on NH-63 in order to cross the road, the driver of the Bus bearing registration No.AP-09-T-0121, drive the bus in rash and negligent manner with high speed and dashed the deceased, as a result, he LNA,J MACMA No.112 of 2021 2 received grievous injuries. Immediately, he was shifted to Area Government Hospital, Mancherial and from there, he was shifted to Gandhi Hospital, Secunderabad for better treatment. On 08.08.2017 the deceased succumbed to the injuries while undergoing treatment. The Police, P.S. CCC Naspur registered a case in Crime No.132/2017 and filed charge sheet.
5. The claimants, i.e., wife and children of the deceased, have filed claim petition against driver, owner of the crime vehicle and insurance company under Section 166 of MV Act, 1988, Rules 475/18 of APMV Act Rules, 1989 r/w Section 140(c) of MV Act, before the Tribunal claiming compensation of Rs.15,00,000/- together with costs and interest from the date of accident till realization.
6. The deceased was aged 50 years and was doing fish business and thereby earning Rs.15,000/- per month and used to contribute the same to the welfare of his family and because of death of deceased, petitioners have lost their love and affection and they become destitute. The deceased was hale and healthy by the date of accident.
LNA,J MACMA No.112 of 2021 3
7. The respondent No.4 herein, who is the driver of the offending vehicle filed counter denying the averments of the claim petition and contended inter alia that accident occurred due to rash and negligence on the part of the deceased; that if assuming that accident occurred due to negligence of this respondent, it is for the insurance company to pay the compensation as the offending vehicle was insured with it and finally prayed to dismiss the claim petition. Respondent no.5 herein, who is the owner of the offending vehicle, filed counter with similar contentions as raised by respondent no.4.
8. The appellant-Insurance Company filed counter denying all the allegations made in the claim petition and contended inter alia that the owner of the vehicle did not inform to this respondent in respect of the factum of accident in collusion with the petitioners; that the driver of offending vehicle was not having license to drive the bus and therefore, insurance company is not liable to pay compensation; that the compensation amount claimed by the petitioners is highly LNA,J MACMA No.112 of 2021 4 excessive and exorbitant and finally, prayed to dismiss the claim petition.
9. On the basis of the above pleadings, the Tribunal framed the following issues:
i) Whether the deceased-K.Lingaiah died in the motor vehicle accident and whether such accident was occurred due to rash and negligent driving of the bus bearing No.AP-09-TA-0121 by its driver ?
ii) Whether the petitioners are entitled for any compensation? If so, at what quantum and what is the liability of the respondents ?
iii) To what relief?
10. In order to substantiate the case, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A6 were marked. On behalf of respondents 1 to 3, no oral evidence was adduced, however, on behalf of insurance company, Exs.B1 and B2 were marked.
11. The Tribunal, on due consideration of the evidence and material placed on record, came to conclusion that the accident took place due to rash and negligent driving of the Bus and awarded compensation of Rs.12,10,000/- along with costs and LNA,J MACMA No.112 of 2021 5 interest @ 7.5% per annum from the date of petition till the date of realization. The driver and owner of the crime vehicle i.e., respondent Nos.4 and 5 herein and appellant-insurance company are liable to pay the said compensation amount.
12. During the course of hearing of the appeal, learned counsel for appellant-insurance company submitted that Tribunal erroneously considered the age of the deceased at 50 years by relying on PME report (Ex.A5), even though the age of the wife of the deceased was shown as 65 years, which is evident from the Aadhaar card (Ex.B1). The age of the deceased was shown at 60 years in the FIR. Further, the age of the deceased was shown as 57 years at first, but later it was overwritten as 50 years. He submitted that deceased could not be the younger than his wife i.e., 15 years, as such, the Tribunal ought to have drawn inference that the age of the deceased is at least 65 years and same may be modified.
13. He further submitted that the Tribunal considered the monthly income of the deceased at Rs.8,000/- without there being any documentary evidence and therefore, since no LNA,J MACMA No.112 of 2021 6 document is filed to prove the income of the deceased, the Tribunal ought to have taken Rs.4,500/- per month as notional income as per the decision of Ramachandrappa vs. Manager, royal Sundaram Alliance Insurance Co.Ltd., & others [AIR 2011 SC 2951]. He further submitted that the Tribunal having observed that wife of the deceased is only dependent on the income of the deceased and children are married daughters of the deceased are his dependents, erroneously deducted 1/3rd of the income towards personal expenses of the deceased, instead of deducting half of the income and finally, prayed to set aside the award passed by the Tribunal.
14. On the other hand, learned counsel for claimants submitted that the Tribunal, on due consideration of the evidence and material placed on record, had rightly awarded the compensation and there is no need to interfere with the award of the Tribunal and prayed to dismiss the appeal. Consideration:
15. The learned counsel for appellant submitted that with regard to the age of the deceased, the insurance company filed LNA,J MACMA No.112 of 2021 7 Ex.B1-Aadhaar card of the wife of the deceased in proof of her age, as per which, her age was shown as 65 years as on the date of accident. Admittedly, deceased was retired from Singareni Company and the age of superannuation in Singareni Company was 60 years. There is no clarity as to the date of retirement of the deceased. Traditionally, the age of the husband is more than the age of his wife. In the present case, wife of the deceased was aged 65 years as on the date of the accident, therefore, the age of the deceased should be considered at least one or two years more than his wife. Therefore, the Tribunal committed serious error in assessing the age of the deceased as 50 years based on PME report (Ex.A5), which is improper and incorrect. It is not the case of the respondents/claimants that deceased is younger than his wife. Therefore, in considered opinion of this Court, the age of the deceased can be taken as 66 years as on the date of the accident.
16. In view of the above, in considered opinion of this Court that considering the age of the wife of the deceased as 65 years LNA,J MACMA No.112 of 2021 8 as per Ex.B1, the age of the deceased can be taken as 66 years as on the date of the accident.
17. Insofar as the future prospects is concerned, as per the decision of Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others 1 , since the age of the deceased was taken as 66 years, no additional income of the actual salary of the deceased can be added towards future prospects. Therefore, an addition of 25% of the actual salary of the deceased awarded by the Tribunal is erroneous and the same is liable to be modified. As far as the multiplier is concerned, as per paragraph-42 of the said decision, the multiplier is '5' for the age groups of 66 to 70.
18. The other contention of the learned counsel for appellant is that Tribunal erred in taking the monthly income of the deceased at Rs.8,000/-. Insofar as the income of the deceased is concerned, the claimants have not placed any material evidencing that deceased was doing fish business and earning Rs.15,000/- per month and therefore, in the absence of any 1 (2017) 16 SCC 680 LNA,J MACMA No.112 of 2021 9 material on record, the Tribunal had taken the notional income of the deceased at Rs.8,000/- per month taking into consideration the occupation of the deceased. In view of the above, in considered opinion of this Court, the Tribunal had rightly assessed the income of the deceased and therefore, there is no need to interfere with the said contention of the appellant.
19. The other contention raised by the learned counsel for appellant with regard to living expenses of the deceased, as the Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another 2, the Hon'ble Apex Court at paragraph-30 held that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3th), where the number of dependent family members is 2 to 3. In considered opinion of this Court, the Tribunal had rightly deducted 1/3rd towards personal and living expenses of the deceased.
2 (2009) 6 SCC 121 LNA,J MACMA No.112 of 2021 10 Conclusion:
20. In view of the above discussion, the compensation amount is recalculated as under:
Sl.No. Head Compensation awarded
1 Income Rs.96,000/- per annum (Rs.8,000/-
per month)
2 Deduction towards personal Rs.32,000/- (i.e., one-third (1/3th)
expenses of Rs.96,000/-)
3 Total Income Rs.64,000/- (i.e., Rs.96,000/- (-)
Rs.32,000/-)
4 Multiplier 5
5 Loss of dependency Rs.3,20,000/- (i.e., Rs.64,000/- x 5)
6 Consortium (3 x Rs.40000/-) Rs. 1,20,000/-
6 Funeral expenses Rs. 15,000/-
7 Loss of estate Rs. 15,000/-
Total compensation to be Rs.4,70,000/-
paid:
21. In the result, Appeal is partly allowed and the impugned award passed by the Tribunal insofar as compensation amount is concerned, is modified. The above compensation amount shall carry interest @ 7.5% per annum from the date of the claim petition till the date of realization. The appellant is directed to deposit the above compensation amount within a period of six weeks from the date of receipt of copy of this order, duly LNA,J MACMA No.112 of 2021 11 adjusting the amount already deposited by the appellant. The claimants are entitled to the apportionment of the amount as directed by the Tribunal. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 08.02.2024 kkm LNA,J MACMA No.112 of 2021 12 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY M.A.C.M.A.NO.112 OF 2021 Date: 08.02.2024 kkm