Reliance General Insurance ... vs Smt. Borra Gouri Ratna Kumari
2022 Latest Caselaw 3851 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                       M.A.C.M.A.No.665 of 2018

Between:
Reliance General Insurance Company,
Rep. by its Branch Manager, 4th Floor,
Surya Towers, MG Road, Labbipet,
Vijayawada, Krishna District

                                                           .. Appellant

And

Smt. Borra Gowri Ratna Kumari,
W/o Late Venkata Madana Mohana Rao,
Hindu, Female, Aged 53 years,
Housewife, R/o D.No.5-26, Srinagar Colony,
Dondapadu, Chodimella Panchayat,
Pedavegi Mandal, West Godavari District and five others.

                                                        .. Respondents

DATE OF JUDGMENT PRONOUNCED: 11.07.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment?

__________________________ U. DURGA PRASAD RAO, J

_____________________________ G. RAMAKRISHNA PRASAD, J

*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND

HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

+ M.A.C.M.A.No.665 of 2018

% 11.07.2022

# Reliance General Insurance Company, Rep. by its Branch Manager, 4th Floor, Surya Towers, MG Road, Labbipet, Vijayawada, Krishna District.

..Appellant

Vs.

$ Smt. Borra Gowri Ratna Kumari, W/o Late Venkata Madana Mohana Rao, Hindu, Female, Aged 53 years, Housewife, R/o D.No.5-26, Srinagar Colony, Dondapadu, Chodimella Panchayat, Pedavegi Mandal, West Godavari District and five others.

.. Respondents

<GIST:

>HEAD NOTE:

! Counsel for appellant: Sri Gudi Srinivasu

^ Counsel for respondents: Sri Kambhampati Ramesh Babu for respondents 1 to 4

? CASES REFERRED:

1. MANU/AP/0677/2009 = 2010 (3) ALT 433

2. MANU/SC/0469/1987 = 1987 ACJ 561

3. MANU/SC/0606/2009 = 2009 ACJ 1298

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

M.A.C.M.A. No.665 of 2018

JUDGMENT: (Per Hon'ble Sri Justice U.Durga Prasad Rao)

The challenge in this appeal at the instance of the Insurance

Company is to the order dated 27.11.2017 in M.V.O.P.No.162/2014

passed by the learned Chairman, MACT-Cum-VII Additional District

and Sessions Judge, West Godavari, Eluru awarding compensation of

Rs.20,92,204/- to the claimants, who are the wife and children of one

Borra Venkata Madana Mohana Rao, who died in a motor vehicle

accident on 07.10.2013, when he was proceeding from Samisrigudem

to Tanuku on his motor cycle bearing No.AP 37VK 7581 along with

one Matta Nagendra as pillion rider and when they crossed NH-16

road to enter Tanuku town from Undrajavaram Junction side, the lorry

bearing No.WB 23C 2745 dashed the motor cycle causing the death of

the said Mohan Rao. Alleging that the lorry driver was responsible

for the accident and due to the death of the deceased, his family lost

the breadwinner, claimants filed M.V.O.P.No.162/2014 claiming

Rs.26.00 lakhs as compensation against respondents 1 to 3 who are

driver, owner and insurer respectively of the offending lorry.

2. The respondents 1 and 2 remained ex parte and the 3rd

respondent/Insurance Company contested the O.P. Its main

contention is that the deceased himself was responsible for the

accident, as he suddenly tried to cross the NH-16 road and therefore,

the respondents are not answerable to the claim. It is further

contended that the claim is highly excessive and exorbitant. The

Tribunal having regard to the evidence on record, negatived its

contention and awarded compensation as stated supra.

Hence, the instant appeal.

3. Heard arguments of Sri Gudi Srinivasu, learned counsel for

appellant, and Sri Kambhampati Ramesh Babu, learned counsel for

the respondents 1 to 4 / claimants.

4. Severely fulminating the award, learned counsel for the

appellant would firstly argue that the Tribunal erred in fastening

liability on the lorry driver without having regard to the facts and

evidence, as they would clearly depict that the fault in the accident

squarely lies with the deceased himself, inasmuch as, he suddenly

tried to cross the NH-16 road unmindful of the vehicles passing on

either side and hit the lorry. Thus the trial Court ought to have held

the deceased was responsible for the accident and dismissed the claim

of the claimants.

(a) Nextly, he argued, Tribunal erred in accepting the gross

salary of the deceased as Rs.32,285/- basing on Ex.X2-Salary

Certificate though Ex.X3-Service Register shows that the pay of

deceased was Rs.27,500/- w.e.f. 01.08.2013 and thereby compensation

was unduly escalated.

(b) Learned counsel further argued that the Tribunal erred in

deducting 1/4th of the income of the deceased towards his personal

expenditure on the premise that his dependants were four in number,

though, the 2nd respondent-claimant is a married daughter and not a

dependant of the deceased. The Tribunal therefore ought to have

deducted 1/3rd, instead of 1/4th, to arrive at his net contribution to the

family. He placed reliance on Oriental Insurance Company

Limited v. P.Sathyavathamma1. He thus prayed to allow the appeal.

5. Per contra, learned counsel for the respondents 1 to 4 Sri

Kambhampati Ramesh Babu would argued that the Tribunal having

regard to the evidence on record, particularly that of PW2 - eye

witness, has held that the lorry driver was responsible for the accident

and therefore, it is preposterous to contend that the deceased himself

was at fault. Nextly he would argue that the Tribunal while fixing the

monthly income of the deceased, has rightly taken into consideration

Ex.X2-Salary Certificate which depicts the gross salary of the

deceased for the month of September, 2013 i.e., previous month of his

death. He would further submit that on the other hand, Ex.X3-Service

Register shows only the enhanced pay of the deceased as Rs.27,500/-

w.e.f. 01.08.2013. Since the said amount is only 'basic pay' without

other allowances, the said amount of Rs.27,500/- was rightly not taken

as his gross monthly salary. Since Ex.X2-Salary Certificate shows the

basic pay and other allowances, which is naturally higher than the

MANU/AP/0677/2009 = 2010 (3) ALT 433

amount mentioned in Ex.X3, the Tribunal has considered Ex.X2-

Salary Certificate and fixed his monthly income as Rs.32,285/-.

Thirdly, he argued that merely because the 2nd claimant is a married

daughter, she cannot be excluded, because she is one of the legal

representatives of the deceased to claim compensation. He thus

prayed to dismiss the appeal.

6. The point for consideration is whether the order passed by the

lower Tribunal is factually and legally sustainable?

7. Point: As stated supra, the appellant/Insurance Company

repudiated its responsibility mainly on the argument that the fault in

the accident lies with the deceased, but not the lorry driver. In this

regard, its contention is that at the time of accident the deceased

carelessly tried to cross the NH-16 road at Tanuku, unmindful of the

traffic. We have perused the observation of the Tribunal. In para 9 of

its order, the Tribunal referred the evidence of PW2, who was the

pillion rider of the deceased's motorcycle. In the cross-examination,

he stated that the offending lorry was proceeding from Ravulapalem

towards Tadepalligudem and he denied the suggestion that the

deceased suddenly crossed the road without observing the vehicles

and thereby the accident was occurred. On the other hand, he clarified

that their motor cycle crossed the National Highway and one tyre of

the vehicle was on the Tanuku road and the second tyre was on the

National Highway and at that time the lorry dashed on the left side of

the second wheel. The Tribunal relied upon his evidence coupled with

Ex.A6-charge sheet which was filed against the lorry driver. We gave

our anxious consideration to the above finding of the Tribunal. If

PW2's version is true, the motor cycle driven by the deceased had

almost crossed the NH- road and one tyre was on the Tanuku road and

another tyre was on the highway and at that time, the lorry dashed the

left rear side of the motorcycle. To rebut the evidence of PW2, the

appellant/Insurance Company did not make any effort to examine the

lorry driver. Further, the lorry driver (R1) remained ex parte.

Admittedly, PW2 is a pillion rider and an eye witness to the accident.

Therefore, there is nothing on record to disbelieve his evidence which

clearly depicts that the accident was occurred only after the

motorcycle of the deceased crossed the NH-16 road. If the accident

had occurred while the motorcycle was at the starting point or on the

middle of the road while crossing it, negligence may be attributed to

the deceased for trying to cross the road without observing the

vehicles on either side. However, that is not the case here. It appears,

after observing the vehicles on either side, he almost crossed the road

and at that time the offending lorry went and dashed the rear side of

the motorcycle. Therefore, the evidence of PW2 clearly points out the

guilt of 1st respondent/lorry driver. His evidence gets support from

Ex.A6-charge sheet also. Hence, we are unable to accept the

contention of the appellant in this regard.

8. The next contention of the appellant is concerned, Ex.X2-salary

certificate shows the gross salary of the deceased as Rs.32,285/- for

the month of September, 2013 i.e., previous month of his death. Be

that it may, Ex.A3-Service Register shows his enhanced pay as

Rs.27,500/- w.e.f. 01.08.2013. The said amount only depicts the basic

pay of the deceased w.e.f. 01.08.2013. If really the said amount of

Rs.27,500/- was the total gross salary of the deceased by 01.08.2013,

it would be unlikely for Ex.X2-Salary Certificate to show his gross

salary as Rs.32,285/- in the next month i.e., September, 2013. So the

amount shown in Ex.A3-Service Register shall be regarded as only

'basic pay' and the amount depicted in Ex.X2 as the gross salary. The

Tribunal has rightly considered Ex.X2- Salary Certificate for fixing

the income of the deceased and to compute compensation.

9. The next contention of the appellant is that the 2nd claimant / 2nd

respondent in the appeal is a married daughter and hence, she cannot

be regarded as a dependant of the deceased for applying the rate of

deduction of personal expenditure of the deceased. In

P.Sathyavathamma's case (1 supra) relied upon by the petitioner, a

Division Bench of the common High Court of A.P. held that though in

terms of the decision of the Apex Court in Gujarat State Road

Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai2,

the legal representative of a deceased can maintain a claim petition for

compensation under Section 163 or 166 of the Motor Vehicles Act,

1988, however, such person must, besides showing that he / she is a

legal representative of the deceased, must also demonstrate that he /

MANU/SC/0469/1987 = 1987 ACJ 561

she is a dependant on the deceased or else in view of the decision in

Sarla Verma v. Delhi Transport Corporation3 he / she cannot be

regarded as dependants of the deceased while effecting quantum of

deduction towards personal expenses of deceased. Ultimately the

Division Bench opined that married sister and her daughters though

are legal representatives of the deceased and can file a claim petition

for compensation, however, since they are not dependants, they were

not entitled to compensation. In that case, the mother alone was held

to be entitled to compensation. So far as the rate of deduction towards

personal expenditure of the deceased is concerned, since in that case

the deceased was a bachelor, applying the dictum in Sarla Verma (3

supra) the Division Bench deducted 50% of his income towards living

and personal expenses.

10. Coming to the instant case, as already stated, the 2nd claimant /

2nd respondent in the appeal is admittedly a married daughter. The

appellant would contend that since she is not a dependant of the

deceased, the rest of the three claimants alone can be treated as

dependants and thereby 1/3rd instead of 1/4th has to be deducted from

the earnings of the deceased towards his personal expenditure.

11. We gave our anxious consideration to the above argument. In

Ramanbhai Prabhatbhai (2 supra), a fourteen year old boy was run

over by the bus belonging to Gujarat State Road Transport

Corporation (GSRTC). The two elder brothers of the deceased

MANU/SC/0606/2009 = 2009 ACJ 1298

instituted the claim petition under the Motor Vehicles Act. The

Tribunal awarded Rs.32,000/- as compensation to the claimants.

Aggrieved, the Corporation filed an appeal before the High Court

which was dismissed. Hence, the Corporation filed SLP before the

Apex Court on the main plank of contention that the brothers of the

deceased were not entitled to compensation under the provisions of

the Fatal Accidents Act, 1855 since the said Act says that an action

can be brought for the benefit of the wife, husband, parent and child

of the deceased in a fatal accident but not the siblings. However, the

Apex Court while referring to Section 110A of the Motor Vehicles

Act, 1939 observed that an application for compensation arising out of

a motor vehicle accident can be instituted by all or any of the legal

representatives of the deceased and Section 110A, in a way substituted

Section 1A of Fatal Accidents Act, 1855. The Apex Court further

observed that while the Fatal Accidents Act, 1855 provides that such

suit shall be for the benefit of the wife, husband, parent and child of

the deceased, Section 110A(1) of the Motor Vehicles Act says that

application shall be made on behalf of or for the benefit of the legal

representatives of the deceased and a legal representative in a given

case need not necessarily be a wife, husband, parent and a child. With

such observations, the Apex Court upheld the decision of the Gujarat

High Court and dismissed the appeal filed by the GSRTC. The Apex

Court incidentally observed that the Parliament did not choose to

amend Section 110A of the Act by defining expression "legal

representatives" in relation to claims under Chapter VIII of the Act as

"the spouses, parents and children" of the deceased as recommended

by the Law Commission and the fact that the Parliament declined to

take any action on the recommendation of the Law Commission of

India suggests that Parliament intended that the expression "legal

representatives" in Section 110A of the Act should be given a wider

meaning and it should not be confined to spouses, parent and children

of the deceased. It should be noted, Section 166(1)(c) and (d) of the

Motor Vehicles Act, 1988 which is in pari materia with Section 110A

of Motor Vehicles Act, 1939 would say that the legal representatives

of the deceased are entitled to institute an application for

compensation. Thus, the above jurisprudence would show that

irrespective of the dependency factor, the legal representatives of a

deceased can as well file the claim petition. Viewing in that angle, the

Division Bench judgment in P.Sathyavathamma (1 supra) holding

that the married sister would not be entitled to compensation cannot

be accepted and the Division Bench judgment to that extent is per

incuriam.

12. Be that it may, in Sarla Verma (3 supra) the dependency factor

of the claimants of a deceased in a motor vehicle accident was

considered in a different context. In order to deduct certain portion of

the income of the deceased towards his personal and living

expenditure, the Apex Court considered the dependency of the

claimants as a relevant factor. Having considered its own decisions,

the Apex Court held that if the deceased was married, the deduction

towards his personal and living expenses should be 1/3rd where the

number of dependant's family members is 2 to 3; 1/4th where the

number of dependant's family members is 4 to 6; 1/5th where the

number of dependant's family members exceed 6. It was further

observed that if the deceased was a bachelor, 50% is to be deducted

towards his personal and living expenses. It must be noted that in

Sarla Verma (3 supra), the Apex Court did not specifically held that

non-dependant legal representatives are not entitled to compensation.

Thus, the dependency factor is confined to decide the rate of

deduction towards personal and living expenses of the deceased, but

nothing more.

13. Therefore, both the above decisions i.e., Ramanbhai

Prabhatbhai (2 supra) as well as Sarla Verma (3 supra) of the Apex

Court should be harmoniously applied.

14. When the above decisions are applied to the instant case, the 2nd

claimant / 2nd respondent in the appeal though, is a married daughter,

still she being the legal representative of the deceased, entitled to

compensation and the lower Tribunal rightly awarded compensation to

her also along with other dependant claimants of the deceased. So far

as the deduction towards personal or living expenses of the deceased

is concerned, the Tribunal erroneously included the 2nd claimant and

took the total number of dependants as 4 and deducted 1/4th of the

income of the deceased towards his personal and living expenditure

by following Sarla Verma (3 supra). The 2nd claimant / 2nd

respondent being a married daughter, she cannot be regarded as a

dependant on her deceased father. Therefore, the total number of

dependants is only three in this case. As such following the Sarla

Verma (3 supra), 1/3rd, instead of 1/4th, has to be deducted towards the

personal expenses of the deceased. In such a case, the compensation

will be as follows:

(a) The gross monthly salary of the deceased as per Ex.X2-

Salary Certificate is Rs.32,285/-. Adding future prospects of 15%, his

gross monthly income comes to Rs.37,128/- (32,285 + 4843). The

gross annual income of the deceased is Rs.4,45,536/-. Then the lower

Tribunal has rightly applied the deduction of income tax as

Rs.19,451/- and arrived at the net annual income as Rs.4,26,085/-

(4,45,536 - 19,451). To this extent the Tribunal was right. Thereafter,

the Tribunal erroneously applied 1/4th deduction, instead of 1/3rd,

towards personal and living expenditure of the deceased. If 1/3rd is

deducted, the net contribution of the deceased to his family comes to

Rs.2,84,057/- (4,26,085 - 1,42,028). Applying the multiplier '11', the

loss of dependency comes to Rs.31,24,627/- (2,84,057 x 11). Now,

the compensation under other heads have to be added and the Tribunal

has rightly fixed them. Therefore, the compensation of Rs.40,000/-

towards loss of consortium to 1st petitioner, Rs.15,000/- towards loss

of estate and Rs.15,000/- towards funeral expenses plus 10%

enhancement are awarded which comes to Rs.77,000/-. Thus, the

total compensation payable to the petitioners is Rs.32,01,627/-

(31,24,627 + 77,000). The claimants will be entitled to said

compensation with costs and interest @ 7.5% p.a. from the date of

O.P. till the date of realization. Out of the said amount, first claimant

will be entitled to Rs.24,01,627/- with costs and interest, whereas 2nd

claimant is entitled to Rs.1,00,000/- with interest, and claimants 3 & 4

are entitled to Rs.3,50,000/- each with interest to their respective

shares. The claimants 1, 3 & 4 are entitled to withdraw Rs.2,00,000/-

with interest and their balance amount shall be kept in separate Fixed

Deposits in a nationalized bank for a period of three years. The 2nd

claimant is entitled to withdraw her compensation amount.

The appeal is allowed to the extent mentioned above.

Interlocutory applications, if any pending, also stand closed.

__________________________ U. DURGA PRASAD RAO, J

_____________________________ G. RAMAKRISHNA PRASAD, J 11.07.2022 MVA

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

M.A.C.M.A. No.665 of 2018

11th July, 2022 mva/krk