Telangana High Court
Nelloju Veera Shekar vs A Thirupathaiah,Antharam Thitupathi on 1 March, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
M.A.C.M.A.NO.182 OF 2019
JUDGMENT :
The petitioners in M.V.O.P.No.595 of 2015 have filed this appeal under Section 173 of M.V.Act and assailed the order dated 28.02.2017 whereunder the Tribunal allowed their petition, in part by granting an amount of Rs.5,85,000/- against their claim for Rs.10,00,000/- by exonerating the 3rd respondent/insurance company and by fixing the liability to pay compensation against the owner and driver of the offending vehicle.
2. As could be seen from the impugned Judgment, the appellants herein have filed the above said MVOP under Section 166 of M.V.Act for compensation of Rs.10,00,000/- in view of the death of one N.Bhagyamma, the wife of the 1st appellant and mother of other appellants in a road traffic accident. As per the material averments made by the appellants in their petition, it was claimed that the deceased attended labour work in a papaya garden at Makthal and when she along with other coolies returned in a lorry bearing No.AP-29-TC-0127, there was an accident 2 MACMA.No.182 of 2019 when the driver of vehicle drove it in high speed, in a rash and negligent manner and dashed another Eicher vehicle. The appellants have filed petition seeking compensation from the driver of the offending vehicle, its owner and also the insurance company. However, the Tribunal having accepted the death of the deceased in the above referred accident was of the opinion that the deceased was a gratuitous passenger in the above said vehicle. The respondent Nos.1 and 2 are not supposed to allow such a passenger to the vehicle, thereby it amount to violation of terms of policy, as such, the Tribunal having accepted the contention of the appellants to some extent and in spite of awarding compensation exonerated the insurance company and directed the owner and driver of the vehicle to pay compensation.
3. The appellants have filed this appeal on various grounds and contended that the Tribunal failed to note that the deceased was hale and healthy. She was earning Rs.15,000/- per month by attending labour work and she used to contribute the said income for the maintenance of the family. But, the Tribunal considered the income of the 3 MACMA.No.182 of 2019 deceased as Rs.4,000/- and granted only an amount of Rs.30,000/- towards loss of love and affection. The Tribunal failed to consider the claim in proper way and exonerated the insurance company only on the ground that the deceased was a gratuitous passenger. Even if such a conclusion is arrived, the Tribunal could have directed the insurance company to pay compensation amount and recover the same from respondent Nos.1 and 2, thereby sought for setting aside the impugned judgment and for enhancement of the compensation with a direction to all the respondents to pay the said compensation.
4. In support of this claim the appellants sought to rely on judgment between New India Insurance Company Limited vs Resha Devi and Ors. 1, and another Judgment between United India Insurance Company Limited, Guntur vs Vajja Sesharathnam and Others 2.
5. Learned counsel for the appellants has submitted that the evidence placed by the appellants clearly indicates that the deceased was a coolie and returned in the vehicle after 1 2016 Slaw Suit (All) 4172 2 2023 (1) ALD 367 (AP) 4 MACMA.No.182 of 2019 completing her work. Therefore, she cannot be treated as gratuitous passenger. Even otherwise if the Court finds that she is gratuitous passenger, in view of the above referred two Judgments it could have directed the 3rd respondent to pay compensation and recover the same from owner and driver of the vehicle. Learned counsel also claimed that the material placed before the Court indicates that the deceased was earning Rs.15,000/- per month, but the Tribunal failed to consider and appreciate the oral evidence of the witnesses and awarded a meager amount of compensation, thereby prayed for enhancement of the said amount.
6. The Tribunal while appreciating the oral and documentary evidence of the witnesses, found that the appellants herein could not place any material to show that the deceased was earning Rs.15,000/- per month.
7. As per the material record and according to the averments made in Ex.A1, the appellants did not file any proof of income of the deceased and the deceased was shown to be in the age group of 30-35 years. Therefore, the Tribunal rightly assessed the income of the deceased as Rs.4,000/- per month and deducted 1/3 of the said income 5 MACMA.No.182 of 2019 towards her personal expenditure. However, since there are (4) family members apart from the deceased, the Court below could have deducted ¼ of the said income towards the personal expenditure of the deceased. As rightly contended by the appellants herein, the Tribunal did not add appropriate amount towards loss of consortium. The description of the appellants clearly indicates that apart from the 1st appellant who is the husband of the deceased, she has got 3 children who were shown to be in the age group of 7-10 years and being minors, they were represented by their father. The Tribunal ought to have awarded appropriate compensation towards loss of consortium in favour of the appellant Nos.2 to 4.
8. With regard to the liability, the learned Chairman, Motor Accident Claims Tribunal opined that the evidence placed before him indicates that the deceased was a gratuitous passenger. Therefore, the 3rd respondent cannot be made liable to pay compensation. However in the above referred Judgment between New India Insurance Company Limited vs Resha Devi and Ors., whereunder the Court relied on the Judgment between Rajesh and Others vs 6 MACMA.No.182 of 2019 Rajbir Singh 3 and Kalpanaraj and Others vs Tamil Nadu State Road Transport Corporation 4, whereunder it was observed that grading principles for determining compensation is that it must be just and reasonable and the Court should not succumb to niceties or technicalities in such matters while considering the issue of award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to children and funeral expenses. Reliance was placed on the judgment between United India Insurance Company Limited vs Suresh K.K and Others 5 and another Judgment of this Court in The New India Assurance Company Limited vs. Smt.G.Kalamma and Others, wherein the Judgment larger bench of the Hon'ble Supreme Court in National Insurance Company Ltd., vs Baljit Kaur 6 and Judgment of High Court of Andhra Pradesh in Nagula Tulasamma and Another vs Bhupathi and Others in CMA 970 OF 2004 7, it was held that in case of death of gratuitous 3 2013 9 SCC 54 4 2014 AIR SC 2982 5 2008 6 ALD 87 6 2004 3 Bombay CR (SC) 578 72015 1 ALD 613 7 MACMA.No.182 of 2019 passenger traveling in a crime vehicle and though there was an observation that such passenger is not covered by policy, the insurance company can be directed to pay compensation and recover the same from owner and driver of the vehicle.
9. In the above referred Judgment in the case of United India Insurance Company vs Suresh K.K and Another, it was held that the insurance company shall pay the amount to the claimants and recover the same from the owner of the vehicle to meet the ends of justice as the claimant was a coolie/worker and is not in a position to realize the difference from the owner of the vehicle.
10. In another Judgment on which the reliance was placed the principle of pay and recovery was accepted in the case of gratuitous passengers. Therefore, the Tribunal even if it came to conclusion that the deceased was gratuitous passenger, could have directed the payment of compensation by the insurance company, giving liberty to recover the same from the owner of the vehicle. The evidence placed before the Tribunal clearly shows that the above referred accident occurred when the deceased was 8 MACMA.No.182 of 2019 travelling by sitting in papaya fruits that were transported from the garden, However, in the light of observations and findings arrived at by the Tribunal, even it is found that the deceased was a gratuitous passenger, still the insurance company cannot escape the payment of compensation, but it can recover the same after satisfying the decree.
11. In view of the above said findings, the appellants are entitled to the following amount:
The monthly income of the deceased was assessed as Rs.4,000/-. If ¼ of the said income is deducted towards personal expenditure of the deceased, the financial loss to the family would be Rs.3,000/- per month and Rs.36,000/- per annum. In view of the age of the deceased being 30-35 years, the appropriate multiplier is "15". Therefore, the appellants are entitled to an amount of Rs.5,40,000/- towards loss of dependency. They are also entitled to an amount of Rs.15,000/- towards funeral expenses, Rs.15,000/- towards loss of estate. Rs.1,60,000/- towards loss of consortium (petitioner Nos. 1 to 4 are entitled to Rs.40,000/- each). Accordingly, the appeal is allowed. 9 MACMA.No.182 of 2019
12. In the result, the appeal is allowed in part. The compensation is enhanced from Rs.5,85,000/- to Rs.7,30,000/- with costs and interest @7.5% per annum from the date of accident, till the entire amount is realized.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:01.03.2024 PSSK