Telangana High Court
Reliance General Insurance Company Ltd vs Smt.Pothula Bhagyamma , Bhagya Laxmi ... on 8 November, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.Nos.2824 of 2015 and 2876 of 2015
COMMON JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao) These two appeals are being disposed of by way of this common judgment since M.A.C.M.A.No.2824 of 2015 filed by the appellant/Reliance General Insurance Co. Ltd., and M.A.C.M.A.No.2876 of 2015 filed by the appellants/Petitioners, are directed against the very same order and decree, dated 25.06.2015 passed in M.V.O.P.No.02 of 2013 by the Chairman, Motor Vehicle Accidents Claims Tribunal-cum-IV Additional District Judge (FTC), Siddipet (for short, "the Tribunal").
2. Heard Sri. M. Ajay Kumar, Learned counsel appearing for Appellants/petitioners and Sri. T.Mahender Rao, Learned counsel appearing for respondent No.2/Insurance Company.
3. For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Tribunal.
4. The brief facts of the case are as follows:-
The petitioners filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and Rules 5785/1B of A.P.M.V. Rules, 1989 r/w Section 140 of M.V. Act, 1988 claiming 2 compensation of Rs.40,00,000/- on account of the death of Pothula Shankar (hereinafter referred to as "deceased") in a road accident that occurred on 19.10.2012.
4(i) On 19.10.2012, at about 7.00 p.m., the deceased was proceeding on his Motorcycle bearing No.AP-23AE-2556 from Lingareddipally "X" roads towards Siddipet side on Karimnagar road and when he reached in front of Mayuri Dhaba Hotel at Hanuman Nagar, Siddipet, meanwhile an Auto bearing No.AP- 26Y-5956, driven by its driver in a rash and negligent manner at high speed, suddenly turned it to the right side and dashed the motorcycle, due to which, the motorcyclist Pothula Shankar fell on the road and received severe head and other grievous injuries all over the body. Immediately, he was shifted to Area Hospital, Siddipet. After first aid, he was referred to Gandhi Hospital, Secunderabad, and while undergoing treatment, he succumbed to the injuries on 24.10.2012 at about 4.00 PM. On a complaint, the police Siddipet-II(Town) registered a case in Cr.No.129/2012, under Section 304-A of IPC against the driver of crime vehicle Auto bearing No.AP-26Y- 5956. Hence, the claim petition.3
5. 1st respondent remained ex parte. Respondent No.2/Insurance Company submitted before the Tribunal as under:
It is the contention of respondent No.2 that the claimants have not filed documentary evidence before the Tribunal in proof of the deceased's income. He further contended that according to the contents of the petitioners, at the time of the accident, the deceased was proceeding on his motorcycle bearing No.AP-26Y-5956, hence, the petitioners ought to have impleaded the owner and Insurance Company of the said motorcycle. Therefore, the claim petition must be dismissed for non-joinder of necessary parties. He further contended that as per the police records, the alleged accident took place on 19.10.2012, whereas he lodged a complaint on 25.10.2012 after the death of the deceased. So, it is clear that the crime vehicle is planted by the petitioners in collusion with concerned police to extract insurance amount from this respondent. As such, this respondent is not liable for any compensation.
Accordingly, prayed to dismiss the claim petition.
6. Based on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident was occurred due to rash and negligent driving of driver of crime vehicle Auto bearing 4 No.AP-26Y-59567?
2. Whether the petition is bad for non-joinder of owner and insurance company of Motorcycle bearing No.AF-23AE-
2536?
3. Whether the claimants are entitled for the compensation, if so, what extent and from whom?
7. To prove their claim, the petitioners examined P.Ws.1 to 3 and marked Exs.A1 to A14. On behalf of the 2nd respondent, examined RW.1 and got marked Ex.B1-copy of the insurance policy.
8. Regarding rash and negligent aspects, the Tribunal considered the evidence of PW.2/eyewitness to the occurrence who deposed that the Auto bearing No.AP-26Y-5956 took a "U" turn and hit the motorcycle of the deceased as such, the deceased fell and received injuries, Ex.A3/Scene of offence panchanama, wherein it was mentioned that the Auto bearing No.AP-26Y-5956 hit the Motorcycle, thereby, he was thrown out on the road and sustained injuries to the head; Ex.A4/postmortem examination report shows that the deceased died due to head injury and Ex.A5/chargesheet shows that the driver of Auto bearing No.AP- 26Y-5956 had surrendered before the police and he was arrested in the alleged crime. So, based on the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to rash and 5 negligent driving of the Auto bearing No.AP-26Y-5956 by its driver.
9. With regard to the non-joinder of the owner and insurance company of Motorcycle bearing No.AF-23AE- 2536, the Tribunal held that except oral assertion, the 2nd respondent had not placed any evidence on the above said aspect. As such, the Tribunal concluded that no material was found on record to add the owner and insurer of Motorcycle bearing No.AF-23AE-2536. Accordingly, it answered the issue No.2 in favour of the petitioners and accordingly awarded an amount of Rs.29,78,600/- with interest @ 7.5% per annum from the date of petition till the date of realization. Challenging the same, the present M.A.C.M.As are filed.
10. Learned counsel appearing for the petitioners contended that the Tribunal failed to award compensation under conventional heads as per the judgment of Reshma Kumari and Rajesh wherein the petitioners are entitled to Rs.1,00,000/- for the consortium and were granted only Rs.10,000/-, whereas love and affection for each child to be granted Rs.1,00,000/-, but granted only Rs.20,000/-, whereas the Tribunal failed to award loss of guidance to the minor children at Rs.1,00,000/- 6 each, and granted Rs.10,000/- instead of Rs.25,000/- as funeral expenses.
11. Learned counsel appearing for the petitioners further contended that the Tribunal failed to consider that the judgment of Harsha Varms and Md. Mansoor Vs. United India, wherein the mother was also entitled to Rs.50,000/- towards loss of love and affection towards the mother by the son.
12. Learned counsel appearing for the petitioners further contended that the Tribunal failed to consider the future prospects of the deceased, who was working as an employee in Municipal Corporation and taken monthly income of Rs.20,337/- without adding future prospects and granted compensation against the principles laid down in Sarala Varma as well as Rajesh as the deceased was aged about 39 years and got 18 years of service and increasing of the present salary.
13. Per contra, learned counsel for respondent No.2/Insurance Company contended that the Tribunal erred in holding that respondent No.2/Insurance Company is liable to pay compensation of Rs.29,78,600/- along with interest @7.5% p.a. with proportionate costs. He further contended that the Tribunal failed to see that the alleged accident took place on 7 19.10.2012, but lodged the complaint before the police on 25.10.2012, and the insured auto was planted by the petitioners Nos.1 to 5 in collusion with the police in order to claim compensation against the Insurance Company.
14. Learned counsel for respondent No.2/Insurance Company further contended that the Tribunal failed to appreciate that the accident occurred due to a collision of the motorcycle bearing No.AP-23AE-2536 was driven by the deceased, and the auto bearing No.AP-26Y-5956 and, therefore, ought to have at least held that the accident took place due to the contributory negligence of the deceased and the driver of the auto and apportioned the compensation accordingly, as a head-on collision between two vehicles coming from opposite directions takes place only when the drivers of both vehicles are negligent.
15. Learned counsel for respondent No.2/Insurance Company further contended that the Tribunal gravely erred in taking the gross income of Rs. 20,337/- per month to estimate the loss of dependency. The Tribunal failed to see that income tax and professional tax are liable to be deducted from the deceased's income while estimating the loss of dependency to petitioners Nos. 1 to 5.
8
16. Learned counsel for respondent No.2/Insurance Company further contended that the Tribunal, having observed that there are 5 dependents, gravely erred in ducting 1/5th of the income towards personal expenses of the deceased. The Tribunal failed to see that the deduction for personal and living expenses of the deceased should be 1/4th, where the dependent family members are 4 to 6, as per the judgment of the Supreme Court in Smt. Sarla Varma and others Vs. Delhi Transport Corporation and another (2009 ACJ 1298).
Findings of this Court:
17. The main contention of the learned counsel for respondent No.2 is that as per the police records, the alleged accident took place on 19.10.2012, whereas complaint was lodged on 25.10.2012 after the death of the deceased. So, it is clear that the crime vehicle was planted by the petitioners in collusion with concerned police to extract insurance amount from this respondent. But, a perusal of the impugned order of the Tribunal goes to show that the Tribunal made it clear that the claimants have not explained the reason for the delay in giving a complaint. However, there is no proof that the crime vehicle was involved in the accident. In the cross-examination, RW-1 admitted that they had not filed any protest petition and 9 documentary evidence in regard to the planting of a crime vehicle. Moreover, it is natural that when an accident occurs, the concerned persons are in a hurry to provide the better treatment to the injured, and they give the least importance to lodge a complaint immediately after the accident. For the said reasons, the contention of learned counsel for respondent No.2 does not hold water.
18. Insofar as the deceased's income is concerned, according to the petitioners, the deceased worked as a driver in Municipal Council, Siddipet, earning Rs.18,000/- per month. In support of their contention, the petitioners examined PW.3, Junior Assistant in Municipal Council, Siddipet, and produced a Service Register of the deceased, which is marked as Ex.A14. According to it, the last paid salary to the deceased was Rs.12,550/-. The Tribunal observes that as per Ex.A12/original salary certificate of the deceased, the gross income of the deceased was Rs.20,337/- per month and under deductions, an amount of Rs.150/- is shown towards professional tax. The Tribunal took the gross salary of the deceased without deducting professional tax. Thus, after deducting professional tax, it comes to Rs.20,187/- (Rs.20,337/- minus Rs.150/- 10 towards professional tax. Thus, the annual income comes to Rs.2,42,244/- (Rs.20,187/- x 12).
19. It is to be noted that as per the Income Tax slab for the financial year 2013-14, the income tax was exempted up to INCOME SLABS INCOME TAX RATES Upto Rs.2,00,000 NIL Rs.2,00,000 to 10% of the amount exceeding Rs.2,00,000 5,00,000 Rs.5,00,000 to Rs.30,000 + 20% of the amount exceeding 10,00,000 Rs.5,00,000 Rs.10,00,000 & Rs.1,30,000 + 30% of the amount exceeding above Rs.10,00,000 Therefore, in the present case, Rs.42,244/- is the taxable income and 10% of the said amount comes to Rs.4,224/-. Thus, after deducting 10% of the taxable income, it comes to Rs.2,38,020/- (Rs. 2,42,244/- minus Rs.4,224/-), which is fixed towards the annual income of the deceased for computing the compensation.
20. The Tribunal further observed that as per Ex.A14/Service Register of the deceased, the date of birth of the deceased is 01.06.1973, and he was 39 years old at the time of his death. As rightly contended by the learned counsel for petitioners the Tribunal failed to consider the future prospects of the deceased. Since the deceased was a Government employee, in terms of the 11 decision of the Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi 1, the future prospects of the deceased shall be computed at 50% as the deceased was aged below 40 years, and accordingly, the annual income comes to Rs.3,57,030/- [Rs.2,38,020/-+Rs.1,19,010/-]. Though there are five dependents, the Tribunal wrongly deducted 1/5th of the deceased's income towards his personal and living expenses instead of 1/4th. Therefore, taking 1/4th of the deceased's income towards his personal and living expenses, the contribution of the deceased towards his family would be Rs.2,67,773/-[ Rs.3,57,030/- (minus) Rs.89,257/-]. Further, considering the age of the deceased at the time of the accident, the Tribunal rightly considered the multiplier as '15' as per the decision of the Apex Court reported in Sarla Verma Vs. Delhi Transport Corporation 2. Adopting a multiplier of '15', the total loss of dependency comes to Rs.2,67,773/- x 15 = Rs.40,16,595/-.
21. As rightly contended by the learned counsel for petitioners, the Tribunal had wrongly awarded the amounts under conventional heads. It is pertinent to mention here that as per the judgment in Pranay Sethi (supra), petitioners are 1 (2017) 16 SCC 680.
2(2009) 6 SCC 121.
12entitled to a sum of Rs.36,300/- (Rs.15,000/- +Rs.15,000/- +10%+10%) towards loss of estate and funeral expenses. Further, in view of the judgment of the Hon'ble Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 3, the petitioners are entitled to Rs.40,000/- each towards spousal consortium, parental consortium and filial consortium. Therefore, the order dated 25.06.2015 passed by the Tribunal in M.V.O.P.No.02 of 2013 is modified as follows:-
S.No. Particulars Amount
1. Total Loss of Dependency Rs.40,16,595/-.
2. Add : Conventional Heads Rs. 36,300/-
(Funeral Expenses and Loss
of Estate)
(Rs.15,000/- + Rs.15,000/-
+10% + 10%)
3. Add: Loss of spousal Rs. 48,400/-
consortium (Rs.40,000/-+
10%) to petitioner No.1
4. Add: Loss of parental Rs. 1,45,200/-
consortium to petitioner
Nos.2 to 4 (Each Rs.48,400/-)
5. Add: Loss of filial consortium Rs. 48,400/-
(Rs.40,000/-+ 10%) to
petitioner No.5
Total Compensation Rs.42,94,895/-
22. Though the claimed amount is Rs.40,00,000/-, invoking the principle of just compensation, and in view of the law laid 3 (2018) 18 SCC 130 13 down by the Hon'ble Supreme Court in Rajesh vs. Rajbir Singh 4 and in a catena of decisions, this Court is empowered to grant compensation beyond the claimed amount.
23. The Tribunal has rightly awarded the rate of interest at 7.5% per annum which needs no interference by this Court.
24. Accordingly, M.A.C.M.A. No.2876 of 2015 is allowed by enhancing the compensation awarded by the Tribunal from Rs.29,78,600/- to Rs.42,94,895/- (Rupees Forty two Lakhs, Ninety four thousand, Eight hundred and ninety five only) with interest @7.5 % p.a. from the date of petition till the date of realization. Respondent Nos.1 and 2 are directed to deposit the said amount with 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 same manner and proportion as determined by the Tribunal. However, the petitioners shall pay the deficit court fee on the enhanced amount. There shall be no order as to costs. 4 MANU/SC/0480/2013 14 M.A.C.M.A.No. 2824 of 2015 In view of the above findings, this M.A.C.M.A. is partly allowed. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall stand closed.
________________ SUJOY PAUL, J _____________________________________ NAMAVARAPU RAJESHWAR RAO, J 8th day of November 2024 BDR