Telangana High Court
The United India Insurance Co.Ltd., vs Thuma , Merugu Rajitha on 4 September, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.Nos.49 of 2019 and 88 of 2019
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.49 of 2019 is filed by the appellant/The United India Insurance Co. Ltd., M.A.C.M.A.No.88 of 2019 is filed by the appellants/claimants, are directed against the very same order and decree, dated 31.08.2018 passed in M.V.O.P.No.903 of 2016 by the Chairman, Motor Vehicle Accidents Claims Tribunal-cum-Principal District Judge, Warangal (for short, "the Tribunal").
2. For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Tribunal.
3. The brief facts of the case are as follows:-
On 07.09.2016, the deceased Thumma Suresh was proceeding to his house at Kareemabad, Warangal, on his Splendor Plus Motorcycle bearing No.AP-36-AR-4614, on the way, when he reached Chatrapathi Colony at Hasanparthy at about 20.40 hours, the driver of the Lorry bearing No.AP-31-TC- 4166, parked the lorry in the middle of the road without taking 2 any precautions, such as putting on indicators or parking lights. Due to the darkness, the deceased could not observe the said lorry and hit the same. Resultantly, the deceased sustained fatal injuries and succumbed to the same while undergoing treatment in M.G.M. Hospital, Warangal, on the same day, at about 21.30 hours.
The Police of P.S. Hasanparthy registered a case in Cr.No.196/2016 against the driver of the said Lorry bearing No.AP-31-TC-4166 for the offence punishable under Section 304-A IPC. At the time of the accident, the deceased was aged 44 years, and was earning Rs.40,944/- per month as a Junior Assistant in the Office of Special Deputy Collector, LA, SRSP, State-I & II, Unit-I, Warangal. Hence, the wife and two minor children of the deceased claimed compensation of Rs.68,00,000/-. The mother of the deceased was arrayed as respondent No.4.
4. Before the Tribunal, respondents No.1 and 2, the driver and owner of the said lorry, respectively, filed separate counters denying the allegations made in the claim petition and submitted that respondent No.2 was the owner of the lorry bearing No.AP-31-TC-4166 and respondent No.1 was the driver of the said lorry on the accident date. They denied the accident 3 and involvement of the said lorry. They further submitted that the said lorry was insured with the 3rd respondent, and the policy was in force on the date of the accident. As such, compensation, if any awarded, the same was liable to be paid by the 3rd respondent alone, and therefore, prayed to dismiss the claim petition.
5. Respondent No.3/Insurance Company filed a counter denying the manner in which the accident took place and contended that the driver of the offending vehicle, i.e., respondent No.1, had no valid driving license and further he was not eligible to hold such license. Further, the accident occurred due to the negligence of the deceased, who rode his motorcycle unmindful of the stationed lorry on the extreme left side of the road. Accordingly, prayed to dismiss the claim petition with costs.
6. Respondent No.4/mother of the deceased also filed a counter stating that the deceased used to provide her a sum of more than Rs.10,000/- per month towards her maintenance, and owing to his demise, she is suffering from starvation. Further, petitioner No.1/wife of the deceased was working as a Government Teacher and earning Rs.40,000/- as salary and petitioner No.2, who is her elder grandson, would get a 4 compassionate appointment in the Department and thus, the respondent Nos.1 to 3 are jointly and severally liable to pay compensation to the petitioners and herself. Further, prayed to award 30% of the decretal amount towards compensation in her favour.
7. On behalf of the claimants, P.Ws.1 to 3 were examined and marked Exs.A1 to A8 and Ex.X-1 to X-3. On behalf of the 3rd respondent, no oral evidence was adduced, but got marked Ex.B1-copy of the insurance policy.
8. After considering the oral and documentary evidence available on record, the Tribunal held that the accident occurred due to negligent parking by the driver of the lorry bearing No.AP-31-TC-4166 and accordingly awarded an amount of Rs.61,73,566/- 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.A.s are filed.
9. Learned counsel appearing for the appellant/Insurance Company contended that the Tribunal erred by not considering the fact that the deceased himself went and dashed the backside of the stationed lorry and thus, the Tribunal ought not to have fixed the total liability on the respondent Insurance 5 Company. Further, in view of the facts, the Tribunal should have apportioned the negligence at 50:50 on the two vehicles since the lorry bearing No.AP-31-TC-4166 was stationed/parked and was not moving. Further, the driver of the said lorry did not possess a valid and effective driving license as on the date of the accident.
10. Per contra, learned counsel for the petitioners contended that the Tribunal failed to consider the larger Bench judgment of the erstwhile Andhra Pradesh High Court in Adam Indur Muthamma and others Vs. Rathore Reddia and another 1, wherein it was observed that when the claimants are entitled to more compensation than the claimed amount. Even without making any amendment to the claim application, the claimants are entitled more compensation. The Tribunal failed to consider the income of the deceased, and taken at Rs.40,744/- who was a Junior Assistant in SRSP working since 23.09.2008 and his promotion and future prospect including the service benefits who was aged 44 years at the time of his death and got 16 years of service, was not taken into consideration. The Tribunal erred while computing the compensation payable to the petitioners by not considering future prospects as applicable since the 1 (2015) 4 ALD 585 (1) 6 deceased was a government employee, and the Tribunal ought to have awarded future prospects at 30% instead of 25%.
11. A perusal of the impugned order discloses that the Tribunal has framed Issue No.1 as to whether the accident occurred out of the use of the vehicle i.e. lorry bearing No.AP- 31-TC-4166, resulting in the death of the deceased Thumma Naresh. The Tribunal while answering the above issue, discussed that the evidence of PW.2, who is listed as an eyewitness/LW.7 in the chargesheet under Ex.A5, deposed that he had witnessed the accident and narrated the manner in which the accident occurred i.e. the deceased who was going on a Motor bike got hit against the Lorry which was stationed in the middle of the road without taking any precautionary measures, and taking into consideration of the evidence of PW.2 coupled with documentary evidence i.e., Ex.A5-chargesheet, came to the conclusion that the accident occurred due to the negligent parking of the lorry bearing No.AP-31-TC-4166 in the middle of the road by respondent No.1 and that there was no negligence on the part of the deceased in driving his Motorcycle, resulting in death of Thumma Suresh. The Insurance Company, having pleaded that the driver of the said lorry had no valid driving license and that accident occurred due to the sole 7 negligence on the part of the deceased, has not adduced either oral or documentary evidence, except filing Ex.B1/Copy of insurance policy. As such, the Tribunal has rightly held that the accident occurred due to the negligent parking of the lorry bearing No.AP-31-TC-4166 in the middle of the road by respondent No.1, which requires no interference by this Court.
12. Insofar as the deceased's income is concerned, according to the petitioners, the deceased was working as a Junior Assistant in LA, SRSP, Stage-I & II, Unit-I, Warangal, and was earning Rs.40,944/- per month. In support of their contention, the petitioners examined PW.3, who is the then Special Deputy Collector, Land Acquisition, SRSP, Stage-I & II, Unit-I, Warangal, and he deposed that the deceased worked as a Junior Assistant in their office and that he joined on 06.01.1993 as an Attender and was promoted as Junior Assistant on 23.09.2008. Ex.X1 is the true extract of the Service Register ascertaining the said facts, wherein his date of birth is shown as 4.2.1971. Ex.X2 is the salary certificate revealing the gross salary as Rs.40,944/- and Ex.X3 is the service particulars of the individual showing the date of joining and the dates of promotion. The monthly income of the deceased as per Ex.X2 salary certificate and Ex.A7/pay-slip, corresponding to Ex.X2, is 8 Rs.40,944/- and under deductions, an amount of Rs.200/- is shown towards professional tax. The Tribunal took the actual salary of the deceased as Rs.40,744/- i.e. Rs.40,944/- minus Rs.200/- towards professional tax. Thus, the annual income comes to Rs.4,88,928/- (Rs.40,744/- x 12).
13. The Tribunal further observed that as per the Income Tax Act for the financial year 2016-17, the income tax was exempted up to Rs.2,50,000/- and thereafter from Rs.2,50,001/- to Rs.5,00,000/- there was 10% tax and from Rs.5,00,001/- to Rs.10,000/- 20% tax. Therefore, in the present case Rs.2,38,928/- is the taxable income. From the annual income of Rs.4,88,928/-, Rs.23,893/- is deducted, then the income comes to Rs.4,65,035/-, which is fixed towards annual income of the deceased for computing the compensation.
14. The Tribunal further observed that as per Ex.A3/certified copy of the postmortem report, the age of the deceased was 44 years. As rightly contended by the learned counsel for appellants/claimants, the Tribunal erred by taking the future prospects @ 25% of the established income instead of 30%, since the deceased was a Government employee. In terms of the decision of the Apex Court in National Insurance Company 9 Ltd. Vs. Pranay Sethi 2, the future prospects of the deceased shall be computed at 30%, and accordingly, the annual income comes to Rs.6,04,545/- [Rs.4,65,035/-+Rs.1,39,510/-]. There are four dependents. Therefore, taking 1/4th of the deceased's income towards his personal and living expenses, the contribution of the deceased would be Rs.4,53,409/- [Rs.6,04,545/- (minus) Rs.1,51,136/-]. Further, considering the age of the deceased at the time of the accident, the Tribunal rightly considered the multiplier as '14' as per the decision of the Apex Court reported in Sarla Verma Vs. Delhi Transport Corporation 3. Adopting a multiplier of '14', the total loss of dependency comes to Rs.4,53,409/- x 14 = Rs.63,47,726/-.
15. Learned counsel for appellants/claimants further contended that the Tribunal had wrongly awarded Rs.40,000/- towards loss of consortium to petitioner No.1, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and the same need to be enhanced in view of the decision rendered by the Hon'ble Supreme Court in N. Jayasree and others V. Cholamandalam MS General Insurance Co. Ltd., 4 wherein at para No.34, it was held as under: 2
(2017) 16 SCC 680.3
(2009) 6 SCC 121.4
2022(1) ALD 10(SC) 10 "A three Judge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors, 2020(6) ALD 39 (SC) = 2020 SCC Online SC 410 = AIR 2020 SC 3076, after considering Pranay Sethi's case (supra), has awarded spousal consortium at the rate of Rs.40,000/ (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/ (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/ (Forty four thousand only), and towards parental consortium at the rate of Rs.44,000/ each (Total Rs.88,000/-) is awarded to the two children."
It is pertinent to mention here that the Tribunal by accurately following the judgment in Pranay Sethi (supra) decided on 31.10.2017, has rightly awarded Rs.40,000/- towards loss of consortium to the petitioner No.1, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, which needs no interference as the Tribunal pronounced its order on 31.08.2018, which is not beyond three years. Further, in view of the judgment of the Hon'ble Apex Court Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 5, the petitioner Nos.2 and 3 are entitled to Rs.44,000/- each towards parental consortium and respondent No.4 is entitled to Rs.44,000/-.
Therefore, the order dated 31.08.2018 passed by the Tribunal in M.V.O.P.No.903 of 2016 is modified as follows:- 5
(2018) 18 SCC 130 11 S.No. Particulars Amount
1. Annual income Rs.4,65,035/-
2. Add: 30% Future Prospects Rs.1,39,510/-
3. Sub-Total Rs.6,04,545/-
4. Less: 1/4th towards (-)Rs.1,51,136/-
Personal Expenditure
5. Sub-Total [3-4] Rs.4,53,409/-
6. Total Loss of Dependency Rs.63,47,726/-
(Rs.4,53,409/- x 14)
7. Add : Conventional Heads Rs.30,000/-
(Funeral Expenses and
Loss of Estate)
(Rs.15,000/- + Rs.15,000/- )
8. Add: Loss of consortium Rs.40,000/-
(Rs.40,000/-) to petitioner
No.1
9. Add: Parental Consortium Rs.88,000/-
to Petitioner Nos. 2 and 3
[Rs.44,000/-+Rs.44,000/-]
10. Add: Filial Consortium to Rs.44,000/-
Respondent No.4
Total Compensation Rs.65,49,726/-
16. The Tribunal has rightly awarded the rate of interest at 7.5% per annum which needs no interference by this Court.
17. Accordingly, M.A.C.M.A. No.88 of 2019 is partly allowed by enhancing the compensation awarded by the Tribunal from Rs.61,73,566/- to Rs.65,49,726/- (Rupees Sixty five Lakh, Forty Nine thousand, Seven Hundred and twenty six only) with interest @7.5 % p.a. from the date of petition till the date of 12 realization. Respondent Nos.1 to 3 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. There shall be no order as to costs.
M.A.C.M.A.No.49 of 2019
In view of the judgment passed in M.A.C.M.A.No.88 of 2019, this M.A.C.M.A. filed by the appellant/respondent no.3/United India Insurance Company is hereby dismissed. 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 4th day of September 2024 BDR