Telangana High Court
The New India Assurance Company Limited vs Smt. D.Shankaramma , Kavitha And 7 ... on 29 January, 2025
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.928 of 2016
AND
CROSS-OBJECTIONS No. 1 of 2016(X.OBJ.No.43690/2016)
COMMON JUDGMENT
1. Aggrieved by the order passed by the learned District Judge - cum- Motor Accident Claims Tribunal, Mahabubnagar, in O.P.No.669 of 2006, dated 30.01.2009, the 3rd respondent/Insurance Company in the said O.P. preferred the present Appeal seeking to allow the Appeal by setting aside the order of the learned Tribunal. Also, dissatisfied with the compensation awarded by the learned Tribunal, the Petitioners in the said O.P. filed Cross-Objections No.1 of 2016 seeking enhancement of compensation.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the learned Tribunal.
3. The brief facts of the case are that the claim petitioners, who are the wife, children and parents of Late D.N.Kondanna (hereinafter referred as 'the deceased') filed a petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/- for the death of the deceased in a motor vehicle accident that occurred on 27.06.2006 in the limits of Palem Village. It is stated by the petitioners that on 27.06.2006, in the 2 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) early morning at about 5.40 a.m., when the deceased was proceeding on his Bicycle from Palem Village to Kothakota on National Highway-7 and when reached near Chinna bridge in the limits of Palem, at about 6.00 hours, the driver of one Jeep bearing No.AP-7/U-6924 drove the said Jeep in a rash and negligent manner at a high speed, came towards the same direction in which the deceased was travelling and dashed the bicycle of the deceased, due to which, the deceased received severe injuries and on the way to Hospital, he succumbed to the said injuries.
4. Based on the complaint given by the father of the deceased, Police of Kothakota Police Station registered a case in Crime No.95 of 2006 under Section 304-A IPC, took up investigation and filed charge sheet against the driver of Jeep bearing No.AP-7/U-6924.
5. It is stated by the petitioners that prior to accident, the deceased was hale and healthy and was earning Rs.200/- per day by working as Hamali. Apart from this, the deceased was also having Ac.8.00 of land and he used to grow cotton and castor crops in the said land and used to earn Rs.40,000/-from Agriculture and contribute his entire earnings for maintenance of his family. Due to sudden and untimely death of the deceased, they were put to mental pain and agony and lost their earning support. Hence filed claim petition seeking compensation of Rs.5,00,000/- against the 3 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) respondents, who are the owners and insurer of subject Jeep bearing No.AP-7/U-6924.
6. Respondent Nos.1 & 2, who are alleged to be the owners of subject Jeep, remained ex-parte.
7. Respondent No.3/Insurance Company filed its counter denying the averments made in the claim petition including, manner of accident, involvement of the deceased, rash and negligent driving on part of the driver of Jeep bearing No.AP-7/U- 6924, earnings of the deceased, driver of the Jeep having valid license to drive the crime vehicle, ownership of the vehicle and denied the crime vehicle having valid insurance and further contended that the claim of compensation is excess and exorbitant and therefore, prayed to dismiss the claim against it.
8. Based on the contentions made by both parties, the learned Tribunal had framed the following issues for conducting trial: -
(i) Whether the accident occurred due to rash and negligent driving of the driver of Jeep bearing No.AP- 7/U-6924?
(ii) Whether the petitioners are entitled to claim compensation from the respondents and if so, to what amount and against whom?
(iii) To what relief.4
MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)
9. Before the Tribunal, on behalf of the petitioners, PWs.1 to 3 were examined and Exs.A1 to A9 were marked. On behalf of respondent No.3/Insurance Company, RW1 was examined and Exs.B1 to B3 were marked.
10. The Tribunal, after considering the entire evidence and documents available on record, partly-allowed the claim petition by awarding compensation of Rs.3,07,000/- along with interest @ 7.5% per annum payable by all the respondent Nos.1 to 3 jointly and severally. Aggrieved by the same, the respondent No.3/Insurance Company in the said M.V.O.P. preferred the present Appeal and the claim petitioners filed Cross-Objections No.1 of 2016.
11. Heard Smt. I.Maamu Vani, learned Standing Counsel for the Appellant/New India Assurance Company and Sri K.Venkatesh Gupta, learned counsel for the cross-objectors/claim petitioners. Perused the record including the grounds of Appeal and cross- objections.
12. The contentions of the learned Standing Counsel for appellant as stated in the grounds of Appeal are that the involvement of the vehicle in the alleged accident was not proved; the learned Tribunal erred in applying multiplier 16.51 for a person aged 30 years and contended that if really PW2 had 5 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) witnessed the accident, he would have been examined by the Police immediately after the accident and not after two months and hence, requested to allow the Appeal by setting aside the order of the learned Tribunal.
13. Per contra, learned Counsel for the respondents/cross- objectors/claim petitioners contended that there is no contra evidence produced by the Insurance Company and that there are no steps taken by the Insurance Company to rebut the evidence adduced by the petitioners and further contended that though the subject vehicle is referred as unknown vehicle, but the Police, after conducting detailed investigation, has filed charge sheet against the alleged crime vehicle and there is no challenge to the charge sheet. Further, the respondent/Insurance Company had not taken any steps challenging the alleged falsification of the vehicle. Learned counsel further contended that the learned Tribunal took the income of the deceased on lower side and failed to award future prospects and hence requested to enhance the compensation amount by allowing the X-objections petition.
14. After hearing the arguments on both sides, the point that emerges for determination is, Whether the order passed by the learned Tribunal requires interference of this Court?
6
MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) POINT:-
15. Since there is dispute regarding reference of the alleged crime vehicle as unknown vehicle, it is pertinent to refer to the evidence of PW2, an eye -witness to the incident, who deposed in his evidence that on 27.06.2006, when he started on his motor cycle from Kothakota to Kanimetta for engaging coolies for land work and when reached near Chinna bridge of NH.7 at about 6.00 a.m., he saw the deceased proceeding on his bicycle towards extreme left side in opposite direction. Meantime, one Jeep bearing No.AP-7/U-6924 which was driven by its driver in a rash and negligent manner at high speed hit the bicycle of the deceased from backside, due to which the deceased sustained fatal injuries on abdomen and died on the way to Hospital.
16. During his cross-examination, PW2 stated that he gave statement to Police under Ex.A4 immediately after coming to know about the death of the deceased through Narayana Reddy of Palem Based on the statement given by PW2, Police have conducted detailed investigation and filed charge sheet against the driver of the crime Jeep. Further, a perusal of Ex.A1-FIR clearly discloses that one Nellore Chinna Savaramma gave complaint to Police regarding the alleged incident immediately after the accident. Therefore, from the evidence of PWs 1 & 2 coupled with the documents marked under Exs.A1 to A4, it can be held that the 7 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) death of the deceased was due to rash and negligent driving of the driver of Jeep bearing No.AP-7/U-6924.
17. Further, PW2 in his statement under Ex.A4 clearly stated that as he was in a hurry to engage coolies for land work at Kanimetta, he could not give complaint to the Police immediately after the accident and after coming to know about the death of the deceased through Narayana Reddy of Palem, he informed the same to Police who recorded his statement after 2 months of the alleged accident. The said delay was neither willful nor wanton but only due to the reason stated above.
18. So far as cross-objection petition filed by the petitioners is concerned, it is the contention of the learned counsel for petitioners that the learned Tribunal, had awarded meager amount towards the income of the deceased. In this regard, it is pertinent to state that though the petitioners filed Ex.A8-Certificate issued by President of Hamali Society showing that the deceased used to earn Rs.150/- per day, but the learned Tribunal did not consider the same and assessed his monthly income @ Rs.2,100/- which appears to be very meager. This Court, considering the date of accident and by relying upon the judgment of the Hon'ble Apex Court in Latha Wadhwa vs. State of Bihar 1, wherein it is held that even though there is no proof of income and earnings, the 1 (2001) 8 SCC 197 8 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) income can be reasonably estimated by considering the age, avocation and year of accident, hereby fix the monthly income of the deceased @ Rs.4,500/-. Since the Tribunal failed to award future prospects to the established income of the deceased, this Court, by relying upon the judgment of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others, is inclined to add 40% towards future prospects to the income of the deceased for the deceased being below 40 years. Hence the future monthly income of the deceased comes to Rs.6,300/-. If 1/4th amount is deducted towards personal and living expenses of the deceased as the number of dependents being six, then the net monthly income comes to Rs.4,725/- and the annual income comes to Rs.56,700/-. Since the deceased was aged 30 years at the time of the accident, the appropriate multiplier is '17' as per the guidelines laid down by the Apex Court in Sarla Verma v. Delhi Transport Corporation 2. Therefore, the total loss of dependency on account of the death of the deceased comes to Rs.9,63,900/-. Apart from this, the learned Tribunal granted an amount of Rs.15,000/- towards consortium and an amount of Rs.14,632/- towards loss of love and affection which this Court finds to be meager and is inclined to interfere with the same by awarding a sum of Rs.77,000/- under Conventional 2 2009 ACJ 1298 (SC) 9 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) Heads as per Judgment of Hon'ble Apex Court in Pranay Sethi (cited supra) . Considering the fact that the petitioner Nos.2 to 4 being minor children of the deceased, this Court is inclined to award a sum of Rs.40,000/- each to them under the head of parental consortium as per the decision of the Apex Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others 3 . Thus, in all, the claim petitioners/Cross objectors are entitled for a total compensation as indicated under:-
S.No. Name of the Head Amount
awarded
1 Monthly income Rs.4,500/-
2 Addition of 40% Rs.6,300/-
towards future
prospects as the
deceased being self-
employed and below
40 years
3 Income arrived after Rs.4,725 /-
Deducting 1/4th
towards personal &
living expenses of
the deceased as
there are 4
dependants
4 Total loss of Rs.9,63,900/-
dependency
calculated after
application of
relevant multiplier
i.e., 17
5 Conventional Heads Rs.77,000/-
6 Parental consortium to Rs.1,20,000/-
minor child (3 in no.)
TOTAL COMPENSATION Rs.11,60,900/-
3
(2018) 18 SCC 130
10
MGP,J
MACMA.No.928 of 2016 and
CROSS-OBJECTIONS No. 1 of 2016
(X.OBJ.No.43690/2016)
19. Since the compensation arrived is more than the claim amount, it is pertinent to refer to the decision of the Hon'ble Supreme Court in the case between Nagappa Vs.Gurudayal Singh and others 4 wherein the Hon'ble Apex Court held that compensation can be granted more than the claim made based on cogent and convincing evidence.
20. In view of the above discussion and keeping in view the settled principle of law laid down by the Hon'ble Apex Court, this Court deems fit and proper to allow the cross-objections petition.
21. In the result, M.A.C.M.A.No.928 of 2016 filed by the Insurance Company is dismissed and the Cross-objections petition No.1 of 2016 (X.OBJ.No.43690/2016) filed by the claim petitioners is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.3,07,000/- to Rs.11,60,900/- along with interest @ 7.5% p.a. from the date of petition till the date of realization payable by all the respondents 1 to 3 jointly and severally. The respondents Nos.1 to 3 are directed to deposit the enhanced compensation within a period of 2 months from the date of receipt of a copy of this judgment. Upon such deposit, the cross-objectors/claim petitioners are entitled to withdraw the same 4 AIR 2003 SC 674 11 MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016) as per the apportionment made by the learned Tribunal by paying deficit Court fee. There shall be no order as to costs.
22. Miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Dt.29.01.2025 ysk