Royal Sundaram Alliance ... vs Tati Konda Sirisha 2 Others
2023 Latest Caselaw 4279 AP

                                    1




       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                                   AND

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

                    M.A.C.M.A.No.946 OF 2010

JUDGMENT

(Per Hon'ble Sri Justice B.V.L.N.Chakravarthi)

1. Heard Sri Kota Subba Rao, learned counsel for the appellant and

Sri P.Jagadish Chandra Prasad, learned counsel for the

1st Respondent.

2. This appeal is preferred by the 2nd respondent-Roayl Sundaram

Alliance Insurance Company Limited, Hanuman Junction Branch,

represented by its Branch Manager, (in short the Royal Sundaram),

U/s.173 of the Motor Vehicles Act (in short, the M.V.Act), challenging

the judgment and decree dated 13.04.2010 passed in

M.V.O.P.No.335/2007 on the file of Motor Accidents Claims Tribunal-

cum-Prl.District Judge, Ongole, (in short, the Tribunal). The learned

Tribunal allowed the claim petition partly, awarded total compensation

of Rs.61,52,000/- and by applying the principle of pay and recovery

directed the appellant to pay 75% of the said amount which comes to

Rs.46,14,000/-, with interest @ 9% p.a. from the date of petition, till

the date of realisation, for the death of T.Sreedhar in a motor vehicle

accident occurred on 29.04.2007.

3. The present Appellant is the 2nd respondent in MVOP

No.335/2007 before the learned Tribunal; The 1st respondent in the

appeal is the claimant; The 2nd respondent in the appeal is owner of

lorry bearing No.AP 37 W 1012; The 3rd respondent in the appeal is the

mother of the deceased.

4. The case of the claimant is that on 29.04.2007 at about 07.30

a.m., T.Sreedhar (in short, the deceased) along with his wife

(petitioner) and other relatives were proceeding to a marriage function

at Mellacheruvu village from Hyderabad in a Maruthi car bearing

No.AP 28 AS 5792; when they reached a place near Kamineni Hospital,

Narkatpally, a lorry bearing No.AP 37W 1012 belonging to the 1 st

respondent (owner) insured with the 2nd respondent-insurance

company, came in a rash and negligent manner, in opposite direction

and dashed the Maruthi car; as a result all the in-mates of the car

sustained severe injuries and were shifted to nearby hospital;

T.Sreedhar (deceased) died in the hospital on the same day; police

registered a case in Cr.No.49/2007 of Narkatpally Police Station for the

offence punishable U/secs.337 and 304-A of Indian Penal Code;

Hence, the wife of the deceased filed the claim petition claiming

compensation of Rs.1,00,00,000/-; The 3rd respondent is the mother of

the deceased.

5. The Appellant-Insurance Company contested the claim petition

by filing counter on the ground that the driver of the crime lorry was

not having effective driving license at the time of accident; and that the

driver of the Maruthi car was also not having valid driving license; and

the claim is excessive and arbitrary; and prayed to dismiss the claim

petition.

6. The 1st respondent remained exparte.

7. The learned Tribunal basing on the rival contentions, framed the following issues:

1. Whether the deceased died due to rash and negligent driving of the driver of the lorry of 1st respondent or that of Maruthi car or that contributory negligence of both the driver?

2. What is the correct age and income of deceased as on the date of accident

3. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?

4. To what relief?

8. On behalf of the claimant, P.Ws-1 and 2 were examined and

Exs.A-1 to A-14 were marked apart from Exs.X-1 to X-5. On behalf of

the respondents, the 3rd respondent was examined as R.W-1 and on

behalf of the appellant-2nd respondent, R.Ws-2 and 3 were examined

and Exs.B-1 to B-8 were marked.

9. The learned Tribunal recorded finding on issue No.1 that there

was head on collision between the two vehicles i.e., lorry and the car,

which contributed to the accident, and that the main negligence was

on the part of the crime lorry and arrived the contributory negligence

of the lorry at 75%, and the driver of the car at 25%.

10. The learned Tribunal on issue No.2, estimated income of the

deceased as Rs.45,000/- per month, and considered his age as 34

years as on the date of accident.

11. The learned Tribunal further applied multiplier '17' considering

the age of deceased as '34' years, and deducted 1/3 of income out of

the earnings of the deceased towards personal and living expenses of

the deceased, and considering the other conventional heads i.e., loss of

estate, funeral expenses and consortium at Rs.32,000/-, in all

awarded a sum of Rs.61,52,000/- towards just compensation.

12. The learned Tribunal further on issue No.3 held that the insurer

and the insured are jointly liable to pay compensation, though the

driver of the lorry was not holding effective driving license on the date

of accident, and the insurer shall pay the amount, and can recover the

same from the insured in the same proceedings. and held that out of

the said amount, the respondents No.1 and 2 are jointly liable to pay

75% towards contributory negligence of the lorry, and arrived the said

amount at Rs.46,14,000/-, and awarded interest at 9% p.a. on the

said amount, from the date of petition, till the date of deposit, and

further held that the petitioner and the 3rd respondent are entitled to

the said amount equally.

13. The details of the compensation amount awarded by the learned

Tribunal under various heads discussed above are as under:

Sl.No. Description of the head Amount awarded in Rs.

   1     Estimated Salary                                      45,000-00

   2     1/3 of income deducted as                      45,000-15,000 =
         personal expenses of deceased                      Rs.30,000/-
   3     Annual income of deceased                          30,000x12 =
                                                          Rs.3,60,000/-
   4     Compensation after multiplier 17                  61,20,000-00
         is applied
   5     Loss of estate, loss of consortium                    32,000-00
         and funeral expenses
                                 TOTAL = Rs.               61,52,000-00

                75% of compensation in Rs.                 46,14,000-00

Thus, the claim petition was partly allowed by the learned Tribunal as

per judgment and decree dated 13.04.2010 in MVOP 335/2007.

14. The learned counsel for Appellant would submit that the

appellant challenging the judgment and decree of the learned Tribunal

on the ground that the driver of the lorry was not holding effective

driving license on the date of accident, and therefore, the insurer is not

liable to indemnify the insured, and the second ground is that the

learned Tribunal erred in fixing the liability of the appellant as 75%

without any evidence.

15. The learned counsel for 1st respondent/claimant would submit

that the learned Tribunal rightly fixed the contributory negligence of

the lorry as 75% basing on the facts and circumstances placed before

the learned Tribunal, and the learned Tribunal on considering the

judgments of the Hon'ble Apex Court in the following cases:

1) National Insurance Company limited Vs. Swaran Singh and others1

2) Nanjappa Vs. State of Karnataka2

3) United India Insurance Company Vs. Lehru and others3

and held that the insurer and the insured are jointly liable and applied

the principle of pay and recovery, and therefore, there are no grounds

to interfere with the finding of the learned Tribunal.

16. The learned counsel for appellant would submit that the rate of

interest awarded at 9% p.a. and it is excessive and usurious. The

learned counsel for 1st respondent-claimant would submit that in view

2004 ACJ 1

2004 SAR (Civil) 290

2003 ACJ 611

of the judgment of the 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, the rate of interest awarded by the

Tribunal does not require any modification or interference by this

Court.

17. The learned counsel for 1st respondent-claimant would further

submit that in view of the principles laid down by the Hon'ble Apex

Court in the case of Sarla Verma and another Vs. Delhi Road

Transport Corporation and others6 and National Insurance

Company Limited Vs. Pranay Sethi and others7, the claimant is

entitled to future prospects. He would further submit that in view of

the judgment of the Hon'ble Apex Court in the case of Nagappa Vs.

Gurudayal Singh and others8, the same can be awarded even in the

appeal filed by the Insurance Company, though no appeal or cross-

objections are filed by the claimants, as the compensation awarded

should be a just compensation.

(2015) 7 SCC 2154

(2011) 14 SC 481

2009 ACJ 1298

(2017) 16 SCC 680

AIR 2003 SC 674

18. We have considered the above submissions advanced by

respective counsel and also perused the material available on record.

19. The following points would arise for our consideration:

1) "Whether the impugned award suffers from any illegality so as to warrant our interference in the exercise of appellate jurisdiction, on the grounds that the learned Tribunal awarded excess compensation including rate of interest?"

2) "Whether the claimant is entitled to ask for enhancement of compensation awarded by the learned Tribunal on the ground that the claimant is entitled for future prospects?"

20. POINT No.1:

The contention of the appellant is that the driver of the lorry was

not having valid driving license or effects license at the time of accident

and therefore, the appellant is not liable to indemnify the insured.

Second ground is that the learned Tribunal having found contributory

negligence on the part of the driver of Maruthi car, should not have

apportioned negligence in the ratio of 75% on the lorry and 25% on the

Maruthi car, without evidence.

21. The learned Tribunal considered the question of contributory

negligence basing on the evidence of the witnesses to the accident, and

the rough sketch of scene of offence prepared by the police during

investigation in Cr.No.49/2007 of Narkatpally Police Station. The

learned Tribunal basing on the evidence placed before it, came to the

conclusion that the lorry was on the middle of the road, and the car

was pushed aside due o impact of the collision of both vehicles, which

were coming in opposite direction at the time of accident. The learned

Tribunal also considered the fact that the car was laying at its left side

on the road margin, and among the five in-mates of the car, four died,

except the claimant, who sustained fractures, which would indicate

that she was sitting on the rear left side of the car.

22. The learned Tribunal further considered Ex.A-6 Motor Vehicle

Inspection Report, which would establish the damage caused to right

side bumper and wind screen glass of the lorry and held that these

facts would establish that there was a head on collision between the

two vehicles that contributed the accident, and that the main

negligence was on the part of the lorry, and therefore, estimated it at

75%. Nothing has been demonstrated by the appellant to establish

that finding of the Tribunal is perverse. In that view of the clear

finding based on facts, we do not find any reason to interfere with the

said finding of the learned Tribunal.

23. The other ground raised by the learned counsel for appellant

was that the driver of the lorry was not having any effective driving

license at the time of accident. The learned counsel for appellant would

further submit that the insurance company is not liable to indemnify,

as there was a clear violation of terms of insurance policy, which

mandates that the driver of the vehicle shall have a valid driving

license. The learned Tribunal considering the evidence placed before it,

held that there was nothing on record to show that the insured i.e., the

1st respondent had knowledge that the driver was not holding effective

driving license, and allowed him to drive the vehicle, and therefore,

applied the principle of 'pay and recovery' relying on the judgments of

the Hon'ble Apex Court in the following cases:

1) National Insurance Company limited Vs. Swaran Singh and others.

2) Nanjappa Vs. State of Karnataka.

3) United India Insurance Company Vs. Lehru and others.

24. We have considered the material available on record. The

appellant failed to establish that the 1st respondent/owner of the crime

vehicle had knowledge that the driver of the lorry was not having valid

driving license on the date of accident and wilfully allowed the driver to

drive the lorry. The Hon'ble Apex Court in the cases of United India

Insurance Company Limited Vs.Lehru and others, and Oriental

Insurance Company Limited Vs. Shri Nanjappan and others, laid

down the principle that non-availability of a driving license for the

driver would not amount to violation of the provisions of the insurance

policy, unless it is demonstrated that the owner was fully aware of this

and permitted the driver to drive the vehicle, in clear violation of such

policy.

25. We therefore hold that the order of the learned Tribunal

directing the insurance company to pay the compensation first and to

recover the same later from the owner of the vehicle in the same

proceedings, does not warrant our interference..

26. The Hon'ble Apex Court in the case of Jakir Hussein Vs. Sabir

relying another judgment of the Hon'ble Apex Court in Municipal

Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy,

awarded interest @ 9% per annum. In that view of the matter, we do

not find any merit in the contention of the insurance company that the

interest awarded by the learned Tribunal @ 9% per annum is

excessive. Therefore, we hold that there are no merits in the grounds

urged by the appellant-insurance company, and hence, the appeal is

liable to be dismissed. Accordingly, the point No.1 is answered.

27. POINT No.2:

The learned counsel for claimant would submit that the claimant

is entitled to enhanced compensation on the ground that the learned

Tribunal did not award future prospects basing on the established

income of the deceased. He would further submit that in view of the

judgment of the Hon'ble Supreme Court in the case of National

Insurance Company Limited Vs. Pranay Sethi and others, the

claimant is entitled to future prospects @ 40%, as the deceased has

been working as 'System Analyst' and aged 34 years on the date of

accident, come under the category of 'employee on a fixed salary and

below the age of 40 years'. The learned counsel for claimant-1st

respondent would further submit that the Appellate Court can award

the same in the appeal filed by the insurance company also, though

the appeal is not filed by the claimant in view of the judgment of the

Hon'ble Apex Court in the case of Nagappa Vs. Gurudayal Singh and

others.

28. The learned Tribunal estimated the monthly income of deceased

at Rs.45,000/- per month. The learned Tribunal deducted 1/3 towards

personal expenses of deceased and arrived the monthly income of

deceased at Rs.30,000/- (Rs.45,000 - 15,000). Thus, the annual

income of deceased would be Rs.3,60,000/- (Rs.30,000 x 12). The

learned Tribunal considered the age of deceased as '34 years' at the

time of death, and applied multiplier '17' as per the judgment of

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

Road Transport Corporation and others, and arrived the loss of

dependency at Rs.61,20,000/- (Rs.3,60,000 x 17). The learned

Tribunal awarded Rs.32,000/- towards funeral expenses, loss of estate

and loss of consortium and in all, awarded a total sum of

Rs.61,52,000/- towards just compensation, and directed the appellant

and the 1st respondent to pay 75% of the said amount towards their

liability.

29. The learned Tribunal did not award future prospects on the

established income of the deceased. The claimant is entitled to future

prospects on the established income of the deceased in view of the

principles laid down by the Hon'ble Apex Court in the case of Sarla

Verma and another Vs. Delhi Road Transport Corporation and

others, and National Insurance Company Limited Vs. Pranay Sethi

and others, as rightly contended by the learned counsel for claimant.

Thus, the future prospects @ 40% on the established income of

deceased would be Rs.61,20,000 x 40/100 = Rs.24,48,000/-, in

addition to the amount awarded by the learned Tribunal towards loss

of dependency.

30. The claimant is also entitled for Rs.15,000/- towards funeral

expenses, Rs.15,000/- towards loss of estate and Rs.40,000/- loss of

spouse consortium as per the principles laid down by the Hon'ble Apex

Court in the case of National Insurance Company Limited Vs.

Pranay Sethi and others, and total would be Rs.70,000/-. Thus, in all

the claimant is entitled to Rs.61,20,000 + 24,48,000 + 70,000 =

Rs.86,38,000/- and 75% of the said amount would come to

Rs.64,78,500/- (Rs.86,38,000 x3/4) towards just compensation as

shown in the table.

Sl.No. Description of the head Amount entitled in Rs.

   1        Salary                                                     45,000-00

   2        1/3 of income deducted as                       45,000-15,000 =
            personal expenses of deceased                       Rs.30,000/-
   3        Annual income of deceased                           30,000x12 =
                                                              Rs.3,60,000/-
   4        Compensation after multiplier 17                   61,20,000-00
            is applied
   5        40% of income to be added as                          24,48,000-00
            future prospects
   6        Loss of consortium                                         40,000-00

   7        Funeral expenses                                           15,000-00

   8        Loss of estate                                             15,000-00

                                     TOTAL = Rs.                  86,38,000-00

                75% of the said amount is Rs.                 64,78,500-00

31. Therefore, the just compensation entitled by the claimant and

the 3rd respondent would be Rs.64,78,500/- towards 75% share of

compensation payable by the respondents No.1 and 2. But the learned

Tribunal awarded only Rs.46,14,000/-.

32. In this case, the learned Tribunal awarded a sum of

Rs.46,14,000/- only towards compensation to the claimant and 3 rd

respondent, who is wife and mother of deceased respectively. After

re-assessing the loss of dependency, the claimant and the 3rd

respondent are entitled to Rs.64,78,500/- towards just compensation.

33. The Hon'ble Apex Court in the case of Nagappa Vs. Gurudayal

Singh and others held that the Appellate Court shall award just

compensation, which is entitled by the claimants, even in the appeal

filed by the insurance company. In that view of the matter, we are of

the considered opinion that the 1st respondent/insured (owner of crime

vehicle) is liable to pay the said amount to the claimant and the

3rd respondent, towards just compensation with interest @ 9% per

annum, from the date of petition, till the date of deposit. The

appellant/insurer shall first pay the same and can later recover from

the insured in the same proceedings.

34. It is pertinent to note down that the claim was made for

Rs.1,00,00,000/-. In that view of the matter, we are of the considered

opinion that it is a fit case to modify the award and decree passed by

the learned Tribunal, to the extent of amount of compensation

awarded by the learned Tribunal. Accordingly, the point No.2 is

answered.

35. In the light of above discussion, we find that the appeal is liable

to be dismissed, but by modifying the order and decree passed by the

learned Tribunal dated 13.04.2010 passed in MVOP 335/2007, to the

extent holding that the claimant and the 3rd respondent are entitled to

Rs.64,78,500/- towards just compensation, instead of Rs.46,14,000/-

towards 75% share of total compensation, with interest @ 9% p.a. from

the date of petition, till the date of deposit. The appellant/insurer shall

first pay the same and can later recover from the insured in the same

proceedings.

36. In the result, the appeal is dismissed, by modifying the order

and decree passed by the learned Tribunal dated 13.04.2010 passed in

MVOP 335/2007, to the extent holding that the claimant and the

3rd respondent are entitled to Rs.64,78,500/- towards just

compensation, instead of Rs.46,14,000/- as awarded by the learned

Tribunal, with interest @ 9% p.a. from the date of petition, till the date

of deposit. The appellant/insurer shall first pay the same and can later

recover from the insured in the same proceedings.

Out of the said compensation amount of Rs.64,78,500/-, the

claimant being the wife of deceased is entitled to a sum of

Rs.32,78,500/- (Rupees Thirty Two Lakhs, Seventy Eight Thousand

and Five Hundred only) and she is permitted to withdraw the said

amount along with accrued interest thereon.

The 3rd respondent being mother of deceased is entitled to a sum

of Rs.32,00,000/- (Rupees Thirty Two Lakhs only), and she is

permitted to withdraw the said amount along with interest accrued

thereon. There shall be no order as to costs.

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

stand closed.

____________________________ RAVI NATH TILHARI, J

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

15.09.2023

psk

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

AND

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

M.A.C.M.A.No.946 OF 2010

Note: Mark L.R.Copy psk

15th September, 2023

psk