The Royal Sundaram Aliance Ins., ... vs A.Kumari E.G.Dist 7 Others
2022 Latest Caselaw 9547 AP

BVLNC,J                                                MACMA 478 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                       M.A.C.M.A.No.478 OF 2016

JUDGMENT:

This appeal is preferred by the Appellant/Insurance Company,

challenging the award dated 13.04.2015 passed in

M.V.O.P.No.182/2012 on the file of Motor Accidents Claims Tribunal-

cum-Prl.District Judge, East Godavari District at Rajahmundry,

wherein the Tribunal while allowing the petition, awarded

compensation of Rs.9,38,500/- with interest @ 8% p.a. from the date

of petition, till the date of realisation to the petitioners/claimants, for

the death of Appikonda Lova Babu, in a motor vehicle accident.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioners filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.9,00,000/- on account of the death of

Appikonda Lova Babu, who is the husband of the 1st petitioner, father

of the petitioners No.2 to 4, and son of the petitioners No.5 and 6, in a

motor vehicle accident that occurred on 08.01.2012.

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4. The facts show that on 08.01.2012 at about 08.00 p.m. the lorry

bearing registration No.AP 26X 6667 going from Vissannapeta side

towards Vemsoor being driven by the 1st respondent in a rash and

negligent manner and at high speed and when it reached near the NTR

canal on the outskirts of Venkatapuram village, drove the lorry under

the low laying live electrical wires, as a result, the lorry came in

contact with live electrical wires and the deceased Lova Babu was

sitting in the cabin tried to get down from the lorry, meanwhile he was

electrocuted and succumbed to injuries. The deceased was travelling

in the vehicle after loading sugar cane of one Bhimireddy Chenna

Reddy on the lorry. The Police of Vemsoor P.S. registered a case in

Cr.No.4/2012 for the offence punishable U/s.304-A I.P.C. The

deceased was hale and healthy, and he was 26 years old by the time of

accident, used to earn Rs.9,000/- per month as a loading and

unloading coolie.

5. Before the Tribunal, the 3rd respondent/Royal Sundaram

Alliance Insurance Company Limited, Rajahmundry, filed written

statement resisting, while traversing the material averments with

regard to proof of age, avocation, monthly earnings of the deceased,

manner of accident, rash and negligence on the part of the driver of

the offending vehicle, and liability to pay compensation, contended BVLNC,J MACMA 478 of 2016 Page 3 of 14 Dt: 12.12.2022

that the driver of lorry has no driving license as on the date of

accident, and the 2nd respondent is not having permit, fitness

certificate and registration certificate of crime vehicle at the time of

accident. Jattu coolies are not entitled to travel with the load on the

same vehicle and if anybody travels, it is a permit violation and also

the violation of terms and conditions of the policy. The subject vehicle

is a goods carriage and the seating capacity is three inclusive driver,

owner and cleaner. The deceased and others in the cabin are

unauthorised passengers, and the policy does not cover the risk of

unauthorised passengers. The compensation and interest claimed by

the petitioners is excessive. The respondents No.1 and 2 remained

exparte.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident arose due to rash and negligent driving of lorry bearing No.AP 26X 6667 by 1st respondent resulting death of the deceased?

2. Whether the petitioners are entitled to compensation? If so, to what amount and from whom?

3. To what relief?

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7. To substantiate their claim, the petitioners examined P.Ws-1 to

3 and got marked Exs.A-1 to A-5. On behalf of the 3rd respondent,

R.Ws-1 and 2 were examined and Ex.B-1, Exs.X-1 to X-4 were marked.

8. The Tribunal, taking into consideration the evidence of P.Ws-1 to

3, coupled with Exs.A-1 to A-5, held that the accident took place due

to the rash and negligent driving of the driver of the lorry, and further,

taking into consideration the evidence of P.Ws-1 and 2, corroborated

by Exs.A-1 to A-6, awarded a compensation of Rs.9,38,500/- with

interest @ 8% p.a. from the date of petition, till the date of realisation

against the respondents 1 to 3.

9. The Appellant/Insurance Company contention is that the

deceased was an unauthorised passenger, and therefore, the Appellant

is not liable to indemnify the owner of the crime vehicle. The other

contention of the appellant is that the Tribunal below failed to fix the

compensation as per section 4 of Workmen's Compensation Act, 1923.

The Appellant also contended that the compensation amount awarded

by the Tribunal below is on higher side.

10. In the light of above contention of the appellant, the points that

would arise for consideration in the appeal are as under:

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1. Whether the deceased is an unauthorised passenger?

2. Whether the Tribunal ought to have fixed the compensation under section 4 of the Workmen's Compensation Act, 1923?

3. Whether the compensation awarded by the tribunal is excessive?

4. To what relief?

11. POINT No.1: The contention of the appellant/Insurance

Company is that the deceased is an unauthorised passenger travelling

in the crime vehicle at the time of accident, and therefore, it is not

liable to indemnify the owner of the crime vehicle, as terms of the

policy are violated.

12. The contention of the claimants is that the deceased was

travelling in the crime vehicle at the time of accident as a coolie to load

and unload the goods, and he was sitting in the cabin of the vehicle

and coolie is covered by the policy.

13. The Appellant contended that the coolies are not entitled to

travel with load, and if anybody travels, it is a permit violation, and

also of terms the policy.

14. It is an admitted fact that the crime vehicle involved in the

accident is a lorry bearing No.AP 26X 6667. Therefore, the subject BVLNC,J MACMA 478 of 2016 Page 6 of 14 Dt: 12.12.2022

vehicle is a goods carriage. The Tribunal on consideration of the

evidence held that the accident was occurred due to rash and

negligence driving of the 1st respondent/driver of the crime vehicle.

The appellant/Insurance Company did not adduce contra evidence to

disprove the same. Therefore, there are no grounds to interfere with

the findings of the Tribunal on the issue that the accident was

occurred due to rash and negligence of the 1st respondent/driver of the

crime vehicle.

15. There is no dispute that the crime vehicle was duly insured with

the appellant under Ex.B-1 copy of insurance policy. The claimants

contended that the deceased was travelling as a coolie for loading and

unloading of sugarcane, and the owner of the vehicle paid a premium

of Rs.25/- under Ex.X-4, and later the same policy was transferred in

favour of the 2nd respondent.

16. The claimants to prove their case, examined the owner of the

crime/2nd respondent as P.W-3, and Ex.X-4 original copy of the policy

was filed. It shows that the vehicle was insured with the appellant for

the period from 17.02.2011 to 16.02.2012. The original is in the name

of one Mr.P.Murali Mohan, and it was later transferred to one

Mr.Kondapalli Siva Prasad, and subsequently to the 2nd respondent

i.e., P.W-3. The evidence of P.W-3 establish that Mr.P.Murali Mohan BVLNC,J MACMA 478 of 2016 Page 7 of 14 Dt: 12.12.2022

was a resident of Nellore, and K.Siva Prasad purchased the lorry from

Mr.P.Murali Mohan on 16.06.2011, and subsequently, it was

purchased by the 2nd respondent i.e., P.W-3. The transfer of vehicle

from K.Siva Prasad to P.W-3 is also admitted, and the policy was also

transferred to him by paying transfer fee. The appellant admitted these

facts in the cross-examination of P.W-3.

17. The appellant filed Ex.B-1 said to be copy of the policy under

Ex.X-4. It does not contain any information about payment of

premium covering coolies. Ex.X-4 which is an original contains

transfer endorsements, it would show that an amount of Rs.25/- was

paid towards additional premium to cover the risk of coolie. The

appellant did not file copy of the policy issued in favour of Mr.P.Murali

Mohan. It filed only a copy of the policy standing in the name of P.W-3.

The appellant did not give any reason why it has not filed copy of

Ex.X4. Ex.B-1 shows as if it was directly issued to P.W-3. It does not

reflect the fact that originally Mr.P.Murali Mohan insured the vehicle,

and later it was transferred to Mr.K.Siva Prasad, and subsequently to

the 2nd respondent i.e., P.W-3. The appellant for the reasons best

known to it, did not choose to produce the copy of original policy

issued in favour of Mr.P.Murali Mohan. It appears that the appellant

intentionally suppressed Ex.X-4, and filed Ex.B-1 only to avoid their BVLNC,J MACMA 478 of 2016 Page 8 of 14 Dt: 12.12.2022

liability. Ex.X-4 would show that an amount of Rs.25/- was paid

towards additional premium to cover a coolie travelling in the crime

vehicle. Admittedly, the deceased was travelling as a coolie to load and

unload sugarcane at the time of accident. There is no evidence also to

establish that terms of the permit were violated. Therefore, the

appellant is liable to indemnify the owner of the crime vehicle as per

the terms of Ex.X-4 insurance policy. Accordingly, this point is

answered.

18. POINT No.2: The appellant in the appeal grounds raised a plea

that the Tribunal has to determine the liability of the Insurance

Company in accordance with the provisions of Employees

Compensation Act/Workmen's Compensation Act, 1923. A perusal of

counter filed by the appellant before the Tribunal does not show any

such plea. Perusal of the evidence of R.W-1 examined by the appellant

before the Tribunal also does not disclose such a plea. The appellant

did not raise the said plea in the cross-examination of P.W-1 also.

Therefore, it is clear that before this Court only, the appellant raised

this plea.

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19. The Hon'ble Apex Court in National Insurance Company

Limited Vs. Mastan and others1 on section 165, 166 and 167 of

M.V.Act 1988, and the Workmen's Compensation Act 1923, held that if

the claimant opted to proceed under Motor Vehicles Act, he cannot

take a recourse to the Workmen's Compensation Act. The Hon'ble Apex

Court in the case of Oriental Insurance Company Limited Vs.

Dyamavva and others2, reiterated the above principle.

20. Therefore, if the claimant has opted to proceed under Motor

Vehicles Act, he cannot take a recourse to the Workmen's

Compensation Act and vice versa. In the case on hand, the claimants

filed the application under section 166 of Chapter-XI of the Motor

Vehicles Act, 1988. Therefore, the quantum of compensation has to be

decided as per the provisions under the Motor Vehicles Act, 1988. In

that view of the matter, the contention of the appellant/Insurance

Company is not tenable and valid. Accordingly, this point is answered.

21. POINT No.3: The evidence on record establish that the deceased

was working a coolie, and aged 26 years at the time of accident. As per

decision of the Hon'ble Apex Court in Sarla Verma and another Vs.

AIR 2006 SC 577

2013 (9) SCC 406 BVLNC,J MACMA 478 of 2016 Page 10 of 14 Dt: 12.12.2022

Delhi Transport Corporation and others 3, the relevant multiplier is

'22'. The claimants contended that the deceased was earning

Rs.9,000/- per month. The tribunal fixed the income of the deceased

at Rs.3,000/- per month i.e @ Rs.100/- only per day. The accident was

occurred in the year 2012. The deceased was working as loading and

loading coolie for the lorry. In that view of the matter, his income can

be considered as Rs.125/- per day, instead of Rs.100/- as reasonable

amount towards daily wages of a loading coolie of a goods vehicle, at

the relevant point in time.

22. The Tribunal has considered the loss of future prospects @ 50%.

It is not correct, view of the judgment of the Hon'ble Apex Court in

National Insurance Company Limited Vs. Pranay Sethi4, it shall be

at 40% only, since the deceased is below 40 years. The Tribunal

deduced 1/4th of the income towards his personal expenses of the

deceased, though he is having a wife, three children and both parents.

As per judgment of the Hon'ble Apex Court in Sarla Verma case, it

should be 1/5th, when the dependants are more than 5. In that view of

the matter, the compensation fixed by the Tribunal below has to be

reassessed. The monthly income of the deceased is Rs.3,750/- per

2009 ACJ 1298

(2017) 16 SCC 680 BVLNC,J MACMA 478 of 2016 Page 11 of 14 Dt: 12.12.2022

month, 1/5th of the said amount shall be deduced towards his

personal expenses. It comes to Rs.3,750 - 750 = Rs.3,000/- per

month. The annual income of the deceased comes to Rs.3,000 x 12 =

Rs.36,000/-. Adding future prospects @ 40%, it comes to Rs.36,000 +

14,400 = Rs.50,400/-. It is the multiplicand. The multiplier

applicable is '17'. Therefore, loss of dependency is multiplicand x

multiplier. It comes to Rs.50,400 x 17 = Rs.8,56,800/-.

23. As per the judgment of the Hon'ble Apex Court in National

Insurance Company Limited Vs. Pranay Sethi, the claimants are

entitled to Rs.15,000/- towards funeral expenses, Rs.15,000/- towards

loss of estate, and Rs.40,000/- towards loss of consortium. The total

comes to Rs.8,56,800 + 15,000 + 15,000 + 40,000 = Rs.9,26,800/-.

24. The Hon'ble Apex Court in the case of Magma General

Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and

others5 held that The Motor Vehicles Act is a beneficial legislation

aimed at providing relief to the victims or their families, in cases of

genuine claims parental consortium can be awarded to children who

lose their parents in motor vehicle accidents under the Act.

    2018 ACJ 2782
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25. In view of the above judgment of the Hon'ble Apex Court, C-2 to

C-4 are also entitled to parental consortium of Rs.40,000/-. Therefore,

the total compensation the claimants entitled to comes to Rs.9,66,800.

The Tribunal awarded Rs.9,38,500/- only towards total compensation.

In that view of the matter, the contention of the appellant/Insurance

Company that the compensation amount awarded by the Tribunal is

excessive is not a tenable plea. Accordingly, the point is answered.

26. The other contention of the appellant/Insurance Company is

that the Tribunal granted interest at 8% p.a., and therefore, it is

excessive. The Tribunal awarded interest at 8% p.a. from the date of

presentation of petition, till the date of deposit. The accident was

occurred in the year 2012, and the claimants filed the petition in the

year 2012. The Appellant/Insurance Company without admitting for a

just, fair and reasonable compensation, has been dragging the matter

for the last 10 years raising untenable pleas. In view of the judgment of

the Hon'ble Apex Court in Jakir Hussein Vs. Sabir6, and Municipal

Corporation of Delhi Vs. Association of Victims of Uphaar

Tragedy7 about granting interest @ 9% p.a. in cases under M.V Act

cases, there is no reason to modify the rate of interest awarded by the

(2015) 7 SCC 2154

(2011) 14 SC 481 BVLNC,J MACMA 478 of 2016 Page 13 of 14 Dt: 12.12.2022

Tribunal at 8% p.a., from the date of petition, till the date of deposit of

compensation amount. Accordingly, this point is answered.

27. POINT No.3: To what relief?

In the light of the findings on points No.1 and 2, I do not find

any grounds to interfere with the award passed by the Tribunal.

Therefore, the appeal is liable to be dismissed.

28. In the result, the appeal is dismissed, by confirming the award

13.04.2015 passed in M.V.O.P.No.182/2012 on the file of Motor

Accidents Claims Tribunal-cum-Prl.District Judge, East Godavari

District at Rajahmundry. There shall be no order as to the costs.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

                                       _________________________________
                                       B.V.L.N.CHAKRAVARTHI, J
12.12.2022

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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                M.A.C.M.A.No.478 OF 2016




                  12th December, 2022

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