Andhra Pradesh High Court - Amravati

Paragati Kumari vs U. Samabasiva Rao, on 9 May, 2023

HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

M.A.C.M.A. No.188 of 2013 &

MACMA.No. 2019 of 2014

COMMON JUDGMENT:

1. As both the Appeals arise out of the Order and decree dated

09.09.2011 in M.V.O.P. No.64 of 2009 passed by the Chairman,

Motor Accidents Claims Tribunal-cum-XIII Additional District

Judge, Narasaraopet, Guntur District (for short "the tribunal"),

the same are disposed of by common Judgment.

2. For convenience's sake, the parties will hereinafter be referred to

as arrayed in the M.V.O.P.

3. The claimants filed a petition under Section 163-A of the Motor

Vehicles Act, 1988 (for short 'M.V.Act') and Rules 455 and 476 of

A.P.M.V.Rules, for compensation of Rs.3,00,000/- on account of

the death of Paragati Rambabu (hereinafter will be referred to as

'the deceased') in a motor vehicle accident that occurred on

24.01.2008.

4. After completing the trial and hearing the arguments of both

sides, the Tribunal held that the accident occurred due to the

rash and negligent driving of the offending vehicle's driver. The

Tribunal awarded the compensation of Rs.2,15,000/- with

interest at 7.5% p.a., from the date of the petition till the date of

deposit of the award amount in favour of the claimants and
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against the 1st respondent and a direction given to the 2nd

respondent at first instance and then to recover the same from

the 1st respondent.

5. Aggrieved by the same, respondent No.2-New India Assurance

Company Limited, represented by its Divisional Manager, Guntur,

filed M.A.C.M.A. No.188 of 2013, questioning the liability fastened

on it. In contrast, the claimants have filed M.A.C.M.A. No.2019 of

2014, seeking enhancement of the compensation, not being

satisfied with the compensation and the rate of interest granted

by the Tribunal.

6. The Claimant's case is that on 24.12.2008 at about 11.00 PM, the

deceased was travelling with others in the auto bearing No.AP-7-

W-9756 (hereinafter referred to as 'the offending vehicle') to go to

prayer in the Church at Phirangipuram. When it reached the

outskirts of Repudi village, the offending vehicle's driver drove it

rashly and negligently at high speed without taking any care and

caution, dashed against the stationed tanker bearing No.AP-16-

W-7689 from its behind. As a result, the deceased and other

persons travelling in the offending vehicle received fatal injuries;

the deceased succumbed to the injuries while undergoing

treatment at Government General Hospital, Guntur. The Station

House Officer, Phirangipuram Police, Station registered a case in

Cr. No.116 of 2008 under sections 337, 338 and 304A of I.P.C.
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M.A.C.M.A. No.188 of 2013 &
M.A.C.M.A. No.2019 of 2014

7. The 1st respondent, the owner of the offending vehicle, remained

ex-parte.

8. The 2nd respondent-New India Assurance Company Limited filed a

written statement denying the manner of the accident, age and

income of the deceased and contended that the offending vehicle's

driver had no valid and effective valid driving licence at the time of

the accident. There was no permit or fitness certificate for the

offending vehicle. The offending vehicle is not insured by the

respondent. There was no negligence on the part of the offending

vehicle's driver. The negligence is on the part of the stationed

tanker. Hence the claimants are not entitled to the compensation.

This petition is bad for the non-joinder of necessary parties, who

are the owners and insurers of the stationed tanker. The

claimants are put to strict proof of their relationship with the

deceased and dependency. The quantum of compensation claimed

is excessive.

9. Based on the pleadings, the Tribunal framed appropriate issues.

Before the Tribunal, on behalf of the claimants, PWs.1 and 2 got

examined and marked Exs.A.1 to A.5. On behalf of the 2nd

respondent, RWs.1 and 2 got examined and marked Exs.B.1 to

B.7.

10. I have heard the arguments of the learned counsel for both parties

and perused the record.
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M.A.C.M.A. No.2019 of 2014

11. Learned counsel for the appellant/respondent No.2-Insurance

company in M.A.C.M.A.No.188 of 2013 contends that the Tribunal

failed to see that two passengers were allowed to sit on the

driver's side; the auto was overcrowded; all the passengers and

owner-cum-driver were fully in a drunken state. The offending

vehicle's driver did not hold a valid driving licence to drive it. The

Tribunal erred in fastening the entire liability on the insurance

company. The Tribunal has not followed the guidelines of the

Hon'ble Supreme Court fixed in the case of 'Nanjappa'. In the

connected case, i.e., M.V.O.P. No.549 of 2009, which arose from

the same accident, the Tribunal has exonerated the Insurance

Company from liability.

12. Learned counsel for appellants/claimants in M.A.C.M.A. No.2019

of 2014 contends that the Tribunal ought to have taken into

consideration the Judgment in Lakshmi Devi and others Vs.

Mohd. Tabbar and another1. The Tribunal ought to have granted

interest at 12% per annum instead of awarding 7.5% per annum,

contrary to the Supreme Court's Judgment. The Tribunal failed to

note that M.V.Act is a welfare and beneficial legislation.

13. Now, the points that arise for consideration are:

I. Whether the Tribunal justified in fastening
the liability on the Insurance company?

1 2008 (2) LS Page No.103 (S.C.)
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M.A.C.M.A. No.188 of 2013 &
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II. Whether the quantum of compensation fixed
by the Tribunal is just and reasonable and
requires enhancement?

III. Whether the interest awarded by the
Tribunal is just and reasonable or contra to
the Judgments of the Supreme Court?

POINT NO.I:

14. As seen from the Tribunal order, while answering issue No.1, it

held that the accident occurred due to the rash and negligent

driving of the offending vehicle's driver. Admittedly, the deceased

was travelling in the offending vehicle during the accident. The

counsel appearing for the 2nd respondent-Insurance company

contends that the offending vehicle's driver was in a drunken

state of mind at the time of the accident. No oral or documentary

evidence is placed in support of the said contention. As such, the

said contention is unsustainable.

15. It is pertinent to refer to the case of United India Insurance

Company Limited Vs. Sunil Kumar and another 2, the Apex

Court observed as follows:

Unable to agree with the reasoning and the conclusion of a two-
Judge Bench of this Court in National Insurance Company
Ltd. v. Sinitha3, a coordinate Bench of this Court by Order dated
29-10-20134 Has referred the instant matter for a resolution of
what appears to be the following question of law:
"Whether in a claim proceeding under Section 163-A of the
Motor Vehicles Act, 1988 (hereinafter referred to as "the

2 (2019) 12 SCC 398
3 (2012) 2 SCC 356 : (2012) 1 S.C.C. (Civ) 881 : (2012) 1 S.C.C. (Cri) 659
4 United India Insurance Co. Ltd. v. Sunil Kumar, (2014) 1 SCC 680 : (2014) 1 S.C.C. (Civ) 642
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M.A.C.M.A. No.188 of 2013 &
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Act") it is open for the insurer to raise the defence/plea of
negligence?"
........

In the Sinitha case, a two-Judge Bench of this Court understood the scope of Section 163-A of the Act to enable an insurer to raise the defence of negligence to counter a compensation claim. The principal basis on which the conclusion in the Sinitha case was reached and recorded is the absence of a provision similar to sub-section (4) of Section 140 of the Act in Section 163-A of the Act. Such absence has been understood by the Bench to be a manifestation of a clear legislative intention that, unlike in a proceeding under Section 140 of the Act where the defence of the insurer based on negligence is shut out, the same is not the position in a proceeding under Section 163-A of the Act. ........

In fact, in Hansrajbhai V. Kodala5, the Bench had occasion to observe that : (S.C.C. pp. 188-89, para 15) "15. ... Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no-fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured-formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles."

...........

From the above discussion, it is clear that the grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication there is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the section mentioned above of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the Claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind the introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame based on the structured formula to overcome situations where the claims of compensation based on fault

5 Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, (2001) 5 SCC 175: 2001 S.C.C. (Cri) 857

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

liability were taking an unduly long time. To understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act, which would not only be self-contradictory but also defeat the very legislative intention.

For the reasons mentioned above, we answer the question by holding that in a proceeding under Section 163-A of the Act; it is not open for the insurer to raise any defence of negligence on the victim's part.

16. Sub-section (1) of Section 163-A of M.V.Act contains a non-

obstante clause in terms of which, notwithstanding anything

contained in this Act or any other law for the time being in force

or instrument having the force of law, the owner of the motor

vehicle or the authorized insurer shall be liable to pay in the case

of death or permanent disablement due to accident arising out of

the use of motor vehicle, compensation, as indicated in the

second schedule, to the legal heirs or the victim, as the case may

be.

17. Given the settled legal position on the subject, the claimants need

not plead or prove the aspect of negligence in a claim under

Section 163-A of the M.V.Act. When the claimants need not plead

or prove the aspect of negligence, the issue of negligence will not

arise while considering the claim under Section 163-A of the

M.V.Act.

18. Following the above principles of law laid down, this Court views

that in a petition filed under section 163-A of the M.V.Act, the

cause of the accident is not at all the question to be decided, and

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

mere involvement of the vehicle is sufficient to entitle a person

claiming compensation.

19. The 2nd respondent-Insurance company has not disputed the

involvement of the offending vehicle at the time of the accident.

20. The other contention is that the offending vehicle's driver had no

valid driving licence at the time of the accident. To establish the

said contention, the insurance company mainly relied on the

evidence of RWs.1 and 2. RW.1-C.Prabhudas testified that the

driving licence of the 1st respondent shows that he has a driving

licence for a non-transport light motor vehicle. RW.2-S.Naga

Maheswara Rao, Junior Assistant in the office of the Regional

Transport Department, testified that the driver-cum-owner of the

offending vehicle/respondent No.1 had a non-transport driving

licence. The evidence of RW.1 and RW.2 clearly shows that 1st

respondent had a non-transport driving licence at the time of the

accident. Regarding violating the policy conditions, the Tribunal

observed by relying on the principles in National Insurance

Company Limited Vs. Swaran Singh and others 6, ordered pay

and recovery.

21. Before the Tribunal, the 2nd respondent-Insurance company

relied on Ex.B.6-copy of the Judgment in M.V.O.P. No.549 of

6 2004 A.C.J. 1 (S.C.)

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

2009 on the file of IX Additional District Court, Guntur. The said

case arose out of the same accident. The Tribunal dismissed the

said O.P. by accepting the Insurance company's case regarding

the violations of the insurance policy, i.e., not holding a valid

driving licence. Simply because the Tribunal in M.V.O.P. No.549

of 2009 had not fastened the liability without appreciating the

law correctly, it cannot be said that the Tribunal is not right in

fixing the liability on the Insurance company. The Tribunal has

rightly not followed the Tribunal's Order in M.V.O.P. No.549 of

2009 by observing that it might not have brought to the notice of

the learned Chairman the ratio laid down in National Insurance

Company Limited Vs. Swaran Singh.

22. The Apex Court in State of Punjab v. Bakshish Singh 7, the

order 41 rule 33 of CPC would make it clear that the Appellate

Court has got wide power to do complete justice between the

parties and which enables this Court to pass such decree or

order as ought to have been passed or as the nature of the case

may require notwithstanding that the party in whose favour the

power is sought to be exercised has not filed any Appeal or cross-

objection.

1998 (8) S.C.C. 222

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

23. The Hon'ble Apex Court in Mahant Dhangir And Another vs

Madan Mohan And Others8, be referring Order 41, Rule 33,

would make the following observation:

The appellate court could exercise the power under R. 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may require" used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under R. 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.

24. In the light of above settled legal position and the evidence on

record when the facts and evidence in the instance case are

considered as rightly observed by the Tribunal, it is not a case of

driver not holding the license at the time of accident. Basing on

the said fact, the learned counsel appearing for the

appellants/claimants tried to convince the court that the

A.I.R. 1988 S.C. 54

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

Tribunal ought to have fastened the entire liability on the

insurance company instead of ordering pay and recover the

compensation. Identical question came to be considered by the

Hon'ble Supreme Court in the case of Santalal Appellant Vs.

Rajesh and others9. The Hon'ble Supreme Court observed and

held as follows:

"this Court has considered the question whether the holder of licence for light motor vehicle can drive tractor attached to the trolley carrying goods and also whether separate endorsement is required authorizing him to drive such a transport vehicle?

We have answered the question that driver having licence to drive light motor vehicle can drive such a transport vehicle of LMV class and there is no necessity to obtain separate endorsement, since tractor attached with the trolley was transport vehicle of the category of light motor vehicle. Hence, there was no breach of the conditions of the policy.

Accordingly, in view of the answer given to reference by the three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be allowed and are hereby allowed. The right given to the insurer to recover amount from owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer.

25. By following the aforesaid settled law laid down, it cannot be said

that the learned Tribunal has committed any error in holding that

the insurance company is liable to pay compensation. However,

the Tribunal ought to have fastened the entire liability on the

Insurance company instead of ordering pay and recovery.

Accordingly, this point is answered.

2017 AIR (civil 734)

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

POINT No.II:

26. It is the evidence of PW.1 that her son, i.e., the deceased, used

to do coolie works and earn Rs.100/- per day. But the Tribunal

fixed the deceased's annual earnings at Rs.15,000/-. This

Court views that there is no specific evidence concerning the

deceased's income. In a case like this, where there is no clear

evidence as to the deceased's income, the Hon'ble Apex Court,

in Lakshmi Devi and others Vs. Mohammad Tabber10 held

that, in today's world, even common labour can earn Rs.100/-

per day. Based on the above principle, this Court can safely

assess the monthly earnings of the deceased at Rs.3,000/-. But

the Tribunal wrongly considered the deceased's income

notionally at Rs.15,000/- per annum.

27. In the case of R.K.Malik and others vs Kiran Paul 11, the

Apex Court has held in paragraph 32 that denying

compensation towards future prospects seems unjustified.

Accordingly, the Apex Court awarded compensation for future

prospects in a claim under section 163-A of the M.V.Act, 1988.

Following the same, the annual earnings of the deceased,

including future prospects, can be assessed.

10 2008 ACJ 488 11 2009 A.C.J. 1924 (S.C.)

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

28. In National Insurance Company Ltd. vs Pranay Sethi 12 the

Apex Court, at paragraph 61, held that,

(iv) If the deceased was self-employed or on a fixed salary, an additional 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between 40 to 50 years and 10% where the deceased was between 50 to 60 years should be regarded as the necessary computation method. The established income means the income minus the tax component.

29. Accordingly, this Court assessed the monthly earnings,

including the future prospectus of the deceased, at Rs.4,200/-

(Rs.3,000/- + Rs.3,000/- x 40%).

30. In a decision reported in Bajaj Allianz General Insurance

Company Limited, V. Anil Kumar13, wherein the High Court

of Punjab and Haryana held that,

under the second schedule, after assessing compensation without applying the deduction, it is laid down by way of a note that 1/3rd has to be deducted from the total compensation in consideration of the expenses of the deceased himself.

31. As seen from the Tribunal's Order and by relying on the above

principle, this Court views that the Tribunal has correctly

deducted the 1/3rd earnings of the deceased towards personal

and living expenses.

32. After the deduction of 1/3rd of the earnings as observed above,

the annual earnings, including the future prospectus of the

deceased after deducting personal expenses, would arrive at

Rs.33,600/- (i.e., Rs.50,400/-(-) Rs.50,400/-(x) 1/3).

12 (2017) 16 SCC 680 13 2015 ACJ 268

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33. The Tribunal has taken the age of the deceased as 22 years.

The said finding of the Tribunal is not disputed.

34. As seen from the Order of the Tribunal, it has applied the

multiplier '18' by considering the deceased's age.

35. Per the second schedule for compensation for third-party fatal

accidents/injury case claims, the multiplier '17' will apply to

the age group above '20' but not exceeding '25' years. The age of

the deceased is '22' years as of the date of the accident, so this

Court considers the multiplier '17' in calculating the loss of

income of the deceased. Therefore, the loss of dependency

would arrive at Rs.5,71,200/- (Rs.33,600/- x 17).

36. As this is a petition under section 163-A of M.V.Act, this Court

is inclined to award Rs.2,000/- and Rs.2,500/- under the

heads of Funeral expenses and loss of estate, respectively, as

per the second schedule.

37. In all, the claimants are entitled to the compensation as

detailed below:

Towards loss of dependency Rs. 5,71,200/-

           Towards funeral expenses          Rs.      2,000/-
           Loss of Estate                    Rs.      2,500/-
                                             -------------------------
                  Total:                     Rs. 5,75,700/-
                                             -------------------------

38. After considering the material on record, this Court holds that the

claimants are entitled to Rs. 5,75,700/- with interest as awarded

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

by the Tribunal.

39. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental

Insurance Company Limited and another14, the Apex Court

while referring to Nagappa v. Gurudayal Singh15 held as under:

"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa v. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident."

40. In Ramla Vs National Insurance Co. Ltd.,16 the Apex Court held

no restriction to award compensation exceeding the amount

claimed. Given the principle laid down by the Apex Court, the

claimants are entitled to Rs.5,75,700/- exceeding the claimed

amount. However, the claimants shall pay the requisite court fee

over and above the compensation awarded.

41. Following the principles laid down by the Apex Court in a catena

of judgments, this Court can safely conclude that the claimants

are entitled to get more than what has been claimed. Further, the

Motor Vehicles Act is a beneficial piece of legislation where the

interest of the claimants is a paramount consideration. The

Courts should always endeavour to extend the benefit to the

claimants to a just and reasonable extent. Accordingly, this point

is answered.

14 (2011) 10 SCC 756 15 2003 A.C.J. 12 (SC) 274 16CIVIL APPEAL No.11495 OF 2018

M.A.C.M.A. No.188 of 2013 & M.A.C.M.A. No.2019 of 2014

POINT NO.III:

42. The claimants' counsel contends that the Tribunal ought to have

granted interest at 12% per annum instead of 7.5% per annum.

43. In National Insurance Company Ltd., v. Mannat Johal 17, the

Apex Court held in paragraph 13 is extracted here under:

"13. The aforesaid features equally apply to the contentions urged on behalf of the Claimant as regards the rate of interest. The Tribunal had awarded interest at the rate of 12 percent per annum but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5 per cent per annum and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court".

44. No material is placed before the Court showing the prevailing

bank rate of interest as of the date of the accident; as such, it

cannot hold that awarding of interest rate at 7.5% p.a., is not just

and reasonable. The Tribunal, at its discretion, granted 7.5 % p.a.

As such, this Court views the interest need not be modified, as the

Tribunal has exercised its discretion appropriately. Accordingly,

the point is answered.

45. As a result, the appeal in M.A.C.M.A.No.188 of 2013 filed by the

2nd respondent-New India Assurance Company Limited, Guntur,

is dismissed. The appeal in M.A.C.M.A. No.2019 of 2014 filed by

claimants is allowed, enhancing the compensation from an

amount of Rs.2,15,000/- to an amount of Rs.5,75,700/- (Rupees