National Insurance Company Ltd., vs Mallela Madhavi 3 Others
2023 Latest Caselaw 219 AP

BVLNC,J                                            MACMA 568 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                    M.A.C.M.A.No.568 OF 2016

JUDGMENT:

This appeal is preferred by the Appellant/Insurance Company,

challenging the award dated 01.05.2015 passed in M.V.O.P.No.9/2013

on the file of Motor Accidents Claims Tribunal-cum-X Addl.District

Judge, Piler, wherein the Tribunal while allowing the petition, awarded

compensation of Rs.9,10,000/- with interest @ 9% p.a. from the date

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

the death of M.Diwakar Reddy, 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.5,00,000/- on account of the death of

M.Diwakar Reddy, who is husband of the 1st petitioner, and father of

the petitioners No.2 and 3 in a motor vehicle accident that occurred on

02.10.2010.

4. The facts show that on 02.10.2010 the deceased M.Diwakar

Reddy had gone to Marripadu village on his Bajaj CT motor cycle BVLNC,J MACMA 568 of 2016 Page 2 of 16 Dt:19.01.2023

bearing No.AP 03H 9854 along with one Patan Syed Valli to purchase

paddy. After completion of transaction, when they were returning, at

about 08.00 p.m., an Ape Luggage Auto bearing No.AP 03X 9141 came

in opposite direction, being driven in a rash and negligent manner,

collided against the motor cycle, resulting in Diwakar Reddy falling

down from the vehicle and sustained grievous injuries to his right

hand, leg and on his head, and died while he was being shifted to

Tirupati for better treatment on the advice of doctors of Vayalpad. The

said accident occurred due to rash and negligent driving of auto driver.

A case was registered in Cr.No.75/2010 for the offence punishable

U/s.304-A of Indian Penal Code against the driver of said auto. Due to

sudden demise of the deceased, the petitioners lost their sole bread

winner.

5. Before, the Tribunal, the 1st respondent/driver of auto filed

counter denying the averments of the petition, contended that there

was no negligence on the part of driver of auto, and the accident was

occurred due to negligence of rider of the motor cycle, and that the

auto is insured with the second respondent, and the second

respondent is liable to pay compensation.

6. The 2nd respondent/Insurance Company filed counter resisting,

while traversing the material averments with regard to proof of age, BVLNC,J MACMA 568 of 2016 Page 3 of 16 Dt:19.01.2023

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 that the driver of auto did not

possess effective and valid driving license at the time of accident, and

that the 1st respondent had paid a sum of Rs.500/- towards fine for

engaging an unlicensed person to drive the vehicle, and that the 1st

respondent had wilfully violated the terms and conditions of the policy,

therefore, the 2nd respondent is not liable to pay compensation.

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

framed the following issues:

1. Whether the accident occurred due to rash and negligent driving of the driver of Ape luggage auto bearing No.AP 03X 9141 which resulted in death of the deceased by name Mallela Diwakar Reddy?

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

3. To what relief?

8. To substantiate their claim, the petitioners examined P.Ws-1 and

2, and got marked Exs.A-1 to A-6. The 1 st respondent was examined as

R.W-1, and the 2nd respondent was examined as R.W-2 and got

marked Ex.B-1.

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

and 2, coupled with Exs.A-1 to A-6, held that the accident took place

due to the rash and negligent driving of the ape luggage auto driver,

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.9,10,000/- with interest @ 9% p.a. from the date of petition, till the

date of deposit against the respondents 1 and 2.

10. This is an appeal filed by the Insurance Company against the

order dated 01.05.2015 in MVOP 9/2013 of Motor Accidents Claims

Tribunal-cum-I Addl.District Judge, Piler, on the ground that the

driver of the vehicle did not possess effective and valid driving license

at the time of accident, and the owner of the vehicle knowingly handed

over the vehicle to the driver, and therefore, the appellant is not liable

to indemnify the compensation amount, and that the awarding

compensation of Rs.9,10,000/- with interest at 9% p.a. is excessive.

11. In the light of above contention of the appellant raised in the

appeal, the points that would arise for consideration in the appeal are

as under:

1. Whether the appellant is not liable to indemnify the owner of the crime vehicle?

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2. Whether the compensation awarded by the Tribunal is excessive?

3. To what relief?

12. POINT No.1:

The case of the claimants is that on 02.10.2010 at about 08.00

p.m. the deceased met with an motor accident, while travelling on a

motor cycle and sustained injuries and on the way to hospital, he died,

and the accident was occurred due to rash and negligence of the driver

of the auto owned by the 1st respondent and insured with the

appellant, and police registered a case against the driver and laid

police report (charge sheet) after investigation for the offence

punishable U/s.304-A of Indian Penal Code, and therefore, the

claimants, who are wife and two minor children of the deceased are

entitled to compensation U/s.166 of the M.V.Act.

13. The owner of the auto/1st respondent filed counter, contending

that the accident was occurred due to the negligence of the driver of

the motor cycle i.e., deceased, and that the auto is insured with the

2nd respondent, and the 2nd respondent is liable to indemnify the

1st respondent.

 BVLNC,J                                            MACMA 568 of 2016
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14. The appellant/2nd respondent filed counter, contending that the

driver of the auto did not possess effective and valid driving license,

and the 1st respondent paid a fine of Rs.500/- for engaging a person

not having license to drive the vehicle and therefore, the 1st respondent

wilfully violated the terms and conditions of the policy and as such,

the appellant is not liable to indemnify the owner i.e., 1st respondent.

15. The Tribunal upon considering the evidence available on record,

held that the accident was occurred due to rash and negligence of the

driver of the auto, and the deceased sustained injuries in the accident,

and he died due to injuries sustained in the accident. The Tribunal

upon consideration of the evidence, further held that the Insurance

Company failed to prove that the owner wilfully allowed the driver to

drive the crime vehicle and therefore, the Insurance Company is liable

to indemnify the owner.

16. The claimants to prove that the accident was occurred due to

rash and negligence driver of the auto, have examined P.W-2, who was

travelling as pillion rider on the motor cycle of the deceased at the time

of accident. He deposed about the way, in which the accident was

occurred. His evidence established that the accident was occurred due

to rash and negligence driving of the driver of the auto. The claimants

to corroborate their evidence filed Ex.A-1copy of FIR, Ex.A-2 copy of BVLNC,J MACMA 568 of 2016 Page 7 of 16 Dt:19.01.2023

police report (charge sheet), Ex.A-3 inquest report and Ex.A-4 copy of

accident register issued by Road Transport Officer and Ex.A-5 is copy

of post mortem certificate. The appellant in the cross-examination of

P.W-2 did not elicit any material fact in support of its plea that the

accident was not occurred due to negligence driving of the driver of the

auto.

17. The contention of the appellant is that the driver was not having

valid and effective driving license at the time of accident. The appellant

examined its Officer as R.W-2, but no document was produced from

the office of the concerned authorities to show that the driver was not

having valid driving license at the time of accident. Further, the 1st

respondent/owner of the auto in his counter denied the case of the

appellant that the owner wilfully permitted the driver to drive the crime

vehicle, knowing that he had no valid driving license at the time of

accident. The appellant did not examine concerned police officials to

prove that the 1st respondent paid the compounding fee as mentioned

in the charge sheet by admitting the offence. As rightly held by the

Tribunal as per principles laid down by the Hon'ble Apex Court in the

case of National Insurance Company Limited Vs. Swaran Singh &

Others1, the burden is upon the Insurance Company to prove its

2004 (3) SCC 297 BVLNC,J MACMA 568 of 2016 Page 8 of 16 Dt:19.01.2023

defence. The appellant failed to prove that the 1st respondent wilfully

allowed the driver to drive the vehicle, though he was not having valid

driving license at the time of accident. In that view of the matter, there

are no grounds to interfere with the finding of the Tribunal that the

appellant is liable to indemnify the insured for the compensation

awarded in the case. Accordingly, this point is answered.

18. POINT No.2:

The claimants contended that the deceased was earning

Rs.2,00,000/- per annum on agriculture and Rs.10,000/- per month

by doing seasonal business, but the Tribunal upon consideration of

the fact that the claimants filed copies of pattadar passbooks and

having regard to the extent of the land possessed by the deceased,

notionally fixed his income at Rs.5,000/- per month only. The

deceased age was fixed at 44 years as per Ex.A-3 and Ex.A-5 copy of

inquest report and post mortem certificate by the Tribunal. Therefore,

the Tribunal calculated the compensation towards loss of dependency

at annual income of the deceased is Rs.5,000 x 12 = Rs.60,000/-.

Deducted 1/3 towards personal expenses of the deceased, which

would be Rs.60,000 - 20,000 = Rs.40,000/- per annum. The multiplier

applicable as per the age of deceased is '14' and the loss of dependency

would be Rs.40,000 x 14 = Rs.5,60,000/-.

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

Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and

others2 held in para 8.7 as follows:

"A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, consortium is a compendious term which encompasses spousal consortium, parental consortium, and filial consortium.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relation with the deceased spouse. 3 Spousal consortium is generally defined as rights pertaining to the relationship of a husband−wife which allows compensation to the surviving spouse for loss of company, society, co− operation, affection, and aid of the other in every conjugal relation.

4 Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and 3 Rajesh and

2018 ACJ 2782 BVLNC,J MACMA 568 of 2016 Page 10 of 16 Dt:19.01.2023

Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5 the d. 1979) family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world−over have recognized that the value of a childs consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.

Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.

A few High Courts have awarded compensation on this count5. However, there was no clarity with 5 Rajasthan High Court in BVLNC,J MACMA 568 of 2016 Page 11 of 16 Dt:19.01.2023

Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj);

Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors. respect to the principles on which compensation could be awarded on loss of Filial Consortium.

The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under Loss of Consortium as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium."

20. In the case on hand, the claimants are wife and minor children

of the deceased. Therefore, the claimants are entitled to Rs.40,000/-

each towards consortium as per the above judgment of the Hon'ble

Apex Court. Therefore, the claimants are entitled to a total consortium

would be Rs.40,000 + 40,000 + 40,000 = Rs.1,20,000/-.

21. In view of the judgment of the Hon'ble Apex Court in the case of

National Insurance Company Limited Vs. Pranay Sethi3, the

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

Rs.15,000/- towards loss of estate, and Rs.1,20,000/- towards loss of

(2017) 16 SCC 680 BVLNC,J MACMA 568 of 2016 Page 12 of 16 Dt:19.01.2023

consortium. It is further held that "taking into consideration the

cumulative factors, namely, passage of time, the changing society,

escalation of price, the change in price index, the human attitude to

follow a particular pattern of life, etc., an addition of 40% of the

established income of the deceased towards future prospects and where

the deceased was below 40 years an addition of 25% where the

deceased was between the age of 40 to 50 years would be reasonable."

Admittedly, the deceased is aged 44 years and therefore, the claimants

are entitled to an addition of 25% on the established income of

deceased towards future prospects. The loss of dependency arrived by

the Tribunal is Rs.5,60,000/-, and 25% on Rs.5,60,000/- towards

future prospects would be Rs.5,60,000 x 1/4 = Rs,1,40,000/-.The

Tribunal also awarded Rs.25,000/- towards legal expenses.

22. Thus, in all the claimants are entitled to a total compensation of

Rs.5,60,000 + 1,40,000 + 1,50,000 + 25,000 = Rs.8,75,000/-. The

Tribunal awarded total compensation of Rs.9,10,000/-.

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

that the Tribunal granted interest at 9% p.a., and therefore, it is

excessive. The Tribunal awarded interest at 9% p.a. from the date of

petition, till the date of realisation. The accident occurred in the year

2010, and the claimants filed petition in the year 2013, and the BVLNC,J MACMA 568 of 2016 Page 13 of 16 Dt:19.01.2023

Appellant/Insurance Company without admitting for just, fair and

reasonable compensation has been dragging the matter for the last 9

years. Hon'ble Apex Court in the case of Jakir Hussein Vs. Sabir4

which referred another judgment of the Hon'ble Apex Court in

Municipal Corporation of Delhi Vs. Association of Victims of

Uphaar Tragedy5 granted interest @ 9% p.a.

24. In that view of the matter, this Court do not find any ground to

interfere with the rate of interest awarded by the Tribunal at 9% p.a.

from the date of petition, till the date of deposit of compensation

amount.

25. The Hon'ble Apex Court in the case of Mona Baghel and others

Vs. Sajjan Singh Yadaav and others6, held that in the matter of

compensation, the amount actually due and payable is to be awarded

despite the claimants having sought for a lesser amount and the claim

petition being valued at a lesser value. The law is well settled that in

the matter of compensation, the amount actually due and payable is to

be awarded despite the claimants having sought for a lesser amount

and the claim petition being valued at a lesser value. Therefore, though

(2015) 7 SCC 2154

(2011) 14 SC 481

2022 LiveLaw (SC) 734 BVLNC,J MACMA 568 of 2016 Page 14 of 16 Dt:19.01.2023

the claimants sought for a lesser amount, and the claim petition being

valued at lesser value for Rs.5,00,000/-, the amount actually due and

payable is to be awarded is Rs.8,75,000/-. Accordingly, this point is

answered.

26. POINT No.3: To what relief?

In the light of the findings on points No.1 and 2, the award

passed by the Tribunal has to be modified partly.

27. In the result, the appeal is partly allowed, modifying the award

dated 01.05.2015 passed in M.V.O.P.No.9/2013 on the file of Motor

Accidents Claims Tribunal-cum-X Addl.District Judge, Piler. It is held

that the claimants are entitled to a compensation of Rs.8,75,000/-

(Rupees Eight Lakhs and Seventy Five Thousand only) with interest @

9% p.a. from the date of petition, till the date of deposit, instead of

Rs.9,10,000/- (Rupees Two Lakhs and Ninety Four Thousand only)

The respondents 1 and 2 are jointly and severally liable to pay the

compensation amount. The 2nd respondent/Insurance Company is

directed to deposit the entire compensation amount of Rs.8,75,000/-

(Rupees Eight Lakhs and Seventy Five Thousand only), along with the

accrued interest thereon, within one month from the date of judgment.

In the event of the 2nd respondent/Insurance Company already

deposited some amount, the said amount has to be excluded, and the BVLNC,J MACMA 568 of 2016 Page 15 of 16 Dt:19.01.2023

balance amount shall be deposited within one month from the date of

judgment.

28. On such deposit, the 1st claimant being the wife of the deceased

is permitted to withdraw an amount of Rs.2,95,000/- (Rupees Two

Lakhs and Ninety Five Thousand only) along with accrued interest

thereon, the 2nd claimant being the minor daughter of the deceased is

permitted to withdraw an amount of Rs.2,90,000/- (Rupees Two Lakhs

and Ninety Thousand only) along with accrued interest thereon, the

3rd claimant being the minor daughter of the deceased is permitted to

withdraw an amount of Rs.2,90,000/- (Rupees Two Lakhs and Ninety

Thousand only) along with accrued interest thereon. The claimants are

directed to pay the required court fee before the Tribunal, as per Rule

475(2) of A.P.M.V.Rules 1989, within one month from the date of

receipt of certified copy of judgment. There shall be no order as to

costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.

                                       _________________________________
                                       B.V.L.N.CHAKRAVARTHI, J
19.01.2023

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




                M.A.C.M.A.No.568 OF 2016




                   19th January, 2023

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