Telangana High Court
The Oriental Insurance Company Limited vs Noor Unnisa on 24 July, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.444 of 2024
JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao) This M.A.C.M.A. is filed by the appellant/Oriental Insurance Company aggrieved by the order and decree, dated 07.12.2023 passed in M.V.O.P.No.1584 of 2016 by the Chairman, Motor Accident Claims Tribunal-cum-III Additional Chief Judge, City Civil Court at Hyderabad (for short, "the Tribunal").
2. For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Tribunal.
3. Heard both sides. Perused the record.
4. The brief facts of the case are as follows :-
The petitioners-claimants, who are the wife and daughter of the deceased Md. Razak, filed a claim petition claiming compensation of Rs.60,00,000/- on account of the death of the deceased Md. Razak who died in a motor vehicle accident that occurred on 04.01.2016. According to the claimants, on 04.01.2016 at about 9.00 a.m., while the deceased Md. Razak, along with one Md. Mansur was proceeding from Hyderabad to 2 Kepal on their Pulsar Motorcycle bearing No.TS-12-EA-1202 and reached Ghatkesar bypass road after Edulabad bridge.
The driver of the car bearing No.AP-20-AM-0033 drove his vehicle at high speed in a rash and negligent manner, while proceeding in the same direction, dashed into the deceased's vehicle, and another vehicle bearing No.TS-08-EC-6505, as a result of which, all fell on the road, and sustained bleeding injuries and both the motorcycles and the front portion of the crime vehicle got damaged. The deceased received severe bleeding injuries and other injuries all over the body and was immediately shifted to Adithya Hospital for treatment. Thereafter, he was shifted to Owaisi Hospital for better treatment, and while undergoing treatment, he died on 21.01.2016. Hence, the claim petition.
5. Before the Tribunal, respondent Nos.1 and 2 remained ex parte.
6. Respondent No.3/Oriental Insurance Company filed a counter denying the manner in which the accident took place and also denied the age, avocation and income of the deceased. It is also contended that the accident took place due to gross negligence on the part of the rider of the two wheeler on which the deceased was stated to be travelling. They further 3 contended that the owner and Insurance Company with whom the vehicle, i.e. Motorcycle bearing No.TS-12EA-1202, was insured are also necessary parties to the proceedings and also that the compensation claimed is excessive and prayed to dismiss the claim petition.
7. On behalf of the claimants, P.Ws.1 to 3 were examined and marked Exs.A1 to A20. On behalf of respondent No.3, no oral evidence was adduced, but a copy of the insurance policy, Ex.B1, was marked with consent.
8. After considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the crime vehicle i.e. car bearing No.AP-20-AM-0033 and accordingly awarded an amount of Rs.63,08,972/- with interest @ 7% per annum from the date of petition till the date of realization to be paid by the respondents 1 to 3 jointly and severally to the petitioners. Challenging the same, the present M.A.C.M.A. is filed.
9. Learned counsel appearing for appellant/Oriental Insurance Company contended that the Tribunal failed to note that the documents i.e. Ex.A7/original service certificate, Ex.A8 4 to A10/salary certificates of the deceased were not procured through the Embassy channel of Bahrain, where the deceased was purportedly employed. Further, nobody was examined to prove the authenticity of those documents except the evidence of PW.1, the wife of the deceased, and the said documents have no attestation by an Attorney to establish its genuineness. Merely filing the certificates issued by the employer of the deceased cannot be relied upon to fix the salary of the deceased.
10. Learned counsel appearing for appellant/Oriental Insurance Company further contended that there was no evidence to come to the conclusion that the deceased was an employee in Bahrain, and in the said circumstances, the Tribunal ought not to have arrived at a conclusion that the deceased was earning 330 BHD every month. The Tribunal also erred by not deducting Income tax on the deceased's salary while assessing the loss of dependency.
11. Learned counsel appearing for appellant/Oriental Insurance Company further contended that the Tribunal erred by taking the incorrect exchange rate of Indian rupees for Bahrain Dinar, consequently computing 330 BH Dinars of 5 Bahrain to Rs.60,000/- per month in Indian currency, instead of Rs.53,334.60 ps.
12. A perusal of the impugned order discloses that the Tribunal, having framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, and having considered the evidence of P.W.2, an eyewitness to the accident, coupled with the documentary evidence i.e., Ex.A1-F.I.R., Ex.A2-Inquest report, Ex.A3-PME report, Ex.A4-MVI report and Ex.A5-charge sheet, came to the conclusion that the accident occurred due to the rash and negligent driving of driver of offending vehicle bearing No.AP- 20-AM-0033. As such, there are no reasons to interfere with the said finding.
13. To prove the nature of employment, the Tribunal has categorically discussed with regard to Ex.A7-Original Service Certificate issued by employer i.e. Bahrain Auto Services, Kingdom of Bahrain and Ex.A8 to A10/salary certificates of the deceased. It is pertinent to mention here that in United India Insurance Co. Ltd., Hyderabad V. K. Swaroopa Rani1, this Court held as follows:
1
2013(1) ALD 369 6 "18. The submission made by the learned Counsel for the respondent/insurance company that Ex.A6 salary certificate is not proved is unsustainable."
"21. The Motor Vehicles Act is a beneficial legislation intend to provide just and reasonable compensation to the victims of motor vehicle accidents to the extent possible. The provisions have to be construed liberally in favour of the claimants. The proceedings before the Tribunal are summary in nature and strict rules of evidence and pleadings are not necessary. When such is the position, the objection raised by the Counsel for the insurance company that marking of Ex.A6 is incorrect and not according to the provisions of the Indian Evidence Act is unsustainable. It may be noted here that the insurance company did not lead any evidence either documentary or oral to exonerate themselves from the liability of paying compensation as per the salary particulars mentioned in Ex.A6. No attempt is made even by suggesting to PW1 that the contents of the said document are incorrect or false. In that view of the matter and in view of the fact that the proceedings before the Tribunal are summary in nature, this Court holds that the contents of Ex.A6-salary certificate can be looked into."
The MV Act being a beneficial legislation, the standard of proof ought to be the preponderance of probability and not a strict standard of proof beyond all reasonable doubt. As such, the contention of the appellant/Oriental Insurance Company that the claimants did not prove the avocation of the deceased by examining the author of Ex.A7 is devoid of merit. Insofar as the deceased's income is concerned, according to the petitioners, the deceased was a Denter in Automobile Repairs Division at Bahrain Auto Services WLLCR No.21412, P.O. Box 20058 Kingdom of Baharain and used to earn a sum of BHD 330 (Bahrain Dinars per month), which arrives at INR 60,000/- per month. But, as per the calculation memo submitted by the 7 appellant/ Oriental Insurance Company, the exchange rate of BHD to INR was Rs.180.1176 for one Bahraini Dinar, which comes to Rs.59,438.808 per month and Rs.7,13,265.86ps. per annum, which has not been disputed by the claimants. Since the Tribunal did not assign any reason for considering the deceased's salary at Rs.60,000/- per month, this Court is inclined to take the salary of the deceased at the exchange rate of Bahrain one Dinar at Rs.180.1176 and Rs.59,438.808 per month rounded off to Rs.59,439/- per month, for assessing the loss of dependency. Thus, the annual income of the deceased comes to (Rs.59,439/- x 12) Rs.7,13,268/-. Therefore, this Court feels it appropriate to fix the annual income of the deceased at Rs.7,13,268/-.
14. In Sarla Verma and others v. Delhi Transport Corporation 2, the Apex Court has categorically held that while assessing the deceased's income for compensation, the gross salary minus income tax shall be taken as the income. Hence, the income tax payable on the said amount, i.e., Rs.7,13,268/- is:- upto Rs.2,50,000/-: NIL; From 2,50,001 to Rs.5,00,000/- (10%): 25,000/-; Rs.5,00,001/- to 7,13,268/- (20%): 42,654/-. Hence, the total income tax liability comes to Rs.67,654/- 2 2009 ACJ 1298 (SC) 8 [Rs.25,000/-+Rs.42,653/-]. So, the loss of dependency comes to Rs.6,45,614/- (Rs.7,13,268/- minus Rs.67,654/-).
15. The Tribunal has taken the age of the deceased as 51 years and thus, rightly added future prospects of 10%; and the annual income accordingly comes to Rs.7,10,175.40/- [Rs.6,45,614/- + Rs.64,561.40 ps] rounded off Rs.7,10,175/-. The Tribunal rightly deducted 1/3rd towards the personal and living expenses of the deceased. After deducting the 1/3rd amount, the contribution of the deceased would be Rs.4,73,450/-[Rs.7,10,175/- (minus) Rs.2,36,725/-]. Since the age of the deceased was 51 years at the time of the accident, the Tribunal rightly considered the multiplier as '11' as per the decision of the Apex Court reported in Sarla Verma (supra). Adopting multiplier '11', the total loss of dependency comes to Rs.4,73,450/- x 11 = Rs.52,07,950/-.
16. Further, as per the decision of the Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi 3, petitioner no.1 is entitled to a sum of Rs.48,400/- (Rs.40,000/- +10%+10%) towards spousal consortium and the claimants are further entitled to Rs.36,300/- (Rs.15,000/- +Rs.15,000/- +10% +10%) towards loss of estate and funeral expenses. 3 (2017) 16 SCC 680.
9Therefore, the order dated 07.12.2023 passed by the Tribunal in M.V.O.P.No.1584 of 2016 is modified as follows:-
S.No. Particulars Amount
1. Annual salary of the Rs. 7,13,268/-
deceased (Rs.59,439/-X 12)
2. Less: Income Tax (-) Rs. 67,654/-
3. Net Income Rs.6,45,614/-
4. Add: 10% Future Prospects Rs.64,561.40 ps.
5. Sub-Total Rs.7,10,175.40/- (Rounded
off to Rs.7,10,175/-)
6. Less: 1/3rd towards (-) Rs.2,36,725/-
Personal Expenditure
7. Sub-Total [5-6] Rs. 4,73,450/-
9. Total Loss of Dependency Rs.52,07,950/-
(Rs. 4,73,451/- x 11)
10. Add : Conventional Heads Rs.36,300/-
(Funeral Expenses and
Loss of Estate)
(Rs.15,000/- + Rs.15,000/-
+10%+10%)
11. Add: Loss of spousal Rs.48,400/-
consortium (Rs.40,000/-
+10%+10%)
12. Medical bills Rs.3,79,972/-
Total Compensation Rs.56,72,622/-
17. The Tribunal awarded interest at the rate of 7% per annum, and the same is enhanced to 7.5% p.a. from the date of petition till the date of realization.
18. As a result, this M.A.C.M.A. is partly allowed by setting aside the order and decree dated 07-12-2023 in 10 M.V.O.P.No. 1584 of 2016 passed by the Tribunal by reducing the compensation awarded by the Tribunal from Rs.63,08,972/- to Rs.56,72,622/- (Rupees Fifty Six Lakhs, Seventy two Thousands, Six Hundred and Twenty two only) with interest @ 7.5 % p.a. from the date of petition till the date of realization. On such deposit, the said compensation amount is to be apportioned in the same manner and proportion as determined by the Tribunal.
(b) Respondent Nos.1 to 3 are directed to deposit the said amount with costs and interest after giving due credit to the amount already deposited, if any, within a period of two months from the date of receipt of a copy of this judgment. On such deposit, the petitioners are permitted to withdraw the said amount in the manner as indicated above. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall stand closed.
________________ SUJOY PAUL, J _____________________________________ NAMAVARAPU RAJESHWAR RAO, J 24th day of July 2024 BDR