Andhra Pradesh High Court - Amravati

Aripaka Hymavathi And 3 Others vs Elike Rajesh And Another on 29 August, 2024

APHC011499912011

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI             [3367]
                          (Special Original Jurisdiction)

     THURSDAY ,THE TWENTY NINETH DAY OF AUGUST
          TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
                    NO: 2999/2018

Between:
Aripaka Hymavathi And 3 Others and Others      ...APPELLANT(S)

                             AND
Elike Rajesh And Another and Others          ...RESPONDENT(S)

Counsel for the Appellant(S):
  B V KRISHNA REDDY

Counsel for the Respondent(S):
  MAHESWARA RAO KUNCHEAM

The Court made the following:

JUDGMENT:

This appeal is directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-

Principal District Judge, West Godavari at Eluru (hereinafter

called as 'the Tribunal') in M.V.O.P.No.506 of 2009 dated

01.07.2011.

2. The claimants, who are the wife and children of one

A.Venkata Ratnam (hereinafter referred to as "deceased")

respectively, are the appellants. Respondent Nos.1 and 2 are

the owner and insurer of the Auto bearing No.AP 37 W 9063

(hereinafter referred to as "crime auto").

3. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the tribunal.

4. The case of the claimants, in the petition before the

Tribunal is that:

i). On 27.05.2009 at about 03.00 p.m., while the

deceased travelling in the crime auto and when they

reached Kakatiya Nagar of Pulaparru Village, the

driver of the said auto, drove the same in a rash and

negligent manner, applied sudden breaks, resulted

the deceased fell down on the road, sustained

grievous injuries. While undergoing treatment, he

succumbed to injuries on the same day.

ii). Being dependents, they claimed compensation of

Rs.9,00,000/- against the owner and insurer of the

crime vehicle.

5. The respondent No.2/insurer filed written statement

denying the averments in the petition and pleaded that there

is no rash and negligence on the part of the driver of the

crime vehicle in causing the incident; that the compensation

claimed by the claimants is excessive and thereby, prayed to

dismiss the petition.

6. The Tribunal settled the following issues for enquiry

basing on the material:

"1.Whether the accident dated 27.05.2009 in which the deceased Aripaka Venkata Ratnam died occurred due to the rash and negligent driving of the Auto bearing No.AP 37 W 9063 by the 1st respondent is alleged in the petition?

2.Whether the petitioners are entitled for compensation and if so, for what amount and from which of the respondents? and

3.To what relief?"

7. During enquiry, on behalf of the claimants, PWs.1 to 7

were examined and Exs.A.1 to A.7, X.2 and X.3 were marked.

On behalf of the 2nd respondent, R.Ws.1 and 2 were examined

and Exs.B.1 to B.4 and X.1 were exhibited.

8. On the material, the Tribunal, having come to the

conclusion that the accident occurred due to the rash and

negligent driving of the crime auto by its driver and the driver

of the said auto is not having valid driving license to drive the

auto rickshaw passenger carrying vehicle by the time of

incident, thereby, 2nd respondent is exonerated from its

liability, held that the claimants are entitled for the

compensation of Rs.5,02,000/-, with interest at 7.5% per

annum from the date of petition till the date of realization

against the respondent No.1 only, for the death of the

deceased in the accident.

9. It is against the said award; the present appeal was

preferred by the appellants/claimants.

10. Heard Sri B.V.Krishna Reddy, learned counsel for the

appellants/claimants and Sri Maheswara Rao Kuncheam,

learned counsel for the 2nd respondent/insurer.

11. Sri B.V.Krishna Reddy, learned counsel for the

appellants/claimants submits that the Tribunal failed to

consider the earnings of the deceased as Rs.15,000/- per

month and erroneously taken as Rs.4,000/- per month; that

the Tribunal ought to have granted compensation as claimed;

that even the 1st respondent is not having valid driving

license to drive the same, the insurer cannot be exonerated

from its liability, when the policy is in force and thereby,

prays to consider the present appeal. In support of the above

contentions, he relied upon various pronouncements of the

Hon'ble Supreme Court in National Insurance Company

Limited v. Swaran Singh1, New Indian Assurance

Company Limited v. Korukonda Apparao2, Gurmail

Singh v. Bajaj Allianz General Insurance Company

Limited3, Shamanna v. Divisional Manager, Oriental

Insurance Company Limited4, Neeta v. Divisional

1 2004 ACJ 1 2 2010 (2) ALT 229 3 2019 ACJ 713 4 2018 ACJ 2163

Manager, Maharashtra State Road Transport

Corporation5, Universal Sompo General Ins.Co.Ltd. v.

Ranu Mohapatra6, Priya v. P.Ramasamy7 and K.Ramya v.

National Insurance Company Limited8.

12. Sri Maheswara Rao Kuncheam, learned counsel for the

2nd respondent/insurer submits that the Tribunal after

considering the material on record rightly came to the

conclusion that the driver of the crime vehicle is not having

valid driving license to drive the same by the time of incident,

thereby, the insurer is exonerated from its liability and there

are no grounds to interfere with the said finding, as such,

prays to dismiss the appeal.

13. Now, the only point that arises for determination is

"whether the findings arrived by the Tribunal is liable to be

set aside, if so, to what extent?"

5 2015 ACJ 598 6 2020 ACJ 256 7 2024 ACJ 440 8 2022 LiveLaw (SC) 816

14. POINT:

It is not in dispute about the death of the deceased in

the accident, involvement of crime vehicle in the incident,

rash and negligence on the part of the driver of the crime

auto in causing the incident and the driver of the crime auto

was not having valid driving license to drive the same as well

the policy issued by the insurer for the crime auto is in force

by the time of incident. It is also an undisputed fact that the

insurer as well as the owner of the crime auto did not prefer

any appeal against the award passed by the Tribunal.

15. The foremost contention of the appellants/claimants is

that the Tribunal failed to appreciate the material on record

in proper perspective in awarding compensation, as such, the

claimants are entitled for compensation as claimed.

16. To prove the income of the deceased as claimed, the

claimants got examined P.Ws.4 to 6, who are village revenue

officers and sarpanch of Gudiwakalanka Village respectively

and relied upon Exs.A.5 and A.6 certificate regarding daily

income of the deceased Rs.300/- to R.400/- as carpenter.

But it is categorical that P.Ws.4 to 6 have no basis to issue

such certificates by assessing daily income of the deceased.

As such, the tribunal fixed the notional income of the

deceased as Rs.4,000/- per month. This Court cannot find

any fault with the conclusion arrived at by the Tribunal in

fixing the income of the deceased notionally in the absence of

substantial proof. Thereby, the actual income of the deceased

is determined at Rs.48,000/- per annum.

17. As per the decision of the Constitution Bench of the

Apex Court in National Insurance Company Limited v.

Pranay Sethi9, the deductions towards personal and living

expenses of the deceased, held at Paragraph No.39 as follows:

39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to

9 (2017) 16 SCC 680

deduction towards personal and living expenses. In paragraphs 30, Sarla Verma lays down: -

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

18. As per the Pranay Sethi case (referred supra), at para

59.4. it is held " In case the deceased was self-employed or on

a fixed salary, an addition of 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 the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be

regarded as the necessary method of computation."

(emphasis supplied)

19. In the present case as per the above said decision, 25%

of actual income has to be added to the income of the

deceased towards future prospects since the deceased is in

the age group of 46 to 50 years. After adding 25% to the

income of the deceased towards future prospects his income

is determined at Rs.60,000/-(Rs.48,000/- + Rs.12,000/-).

20. In the case on hand, the deceased was married, he had

wife and three children, thereby the deduction towards

personal and living expenses of the deceased, should be 1/4th

from the income of the deceased. Then the quantum is

determined as Rs.45,000/-.

21. Regarding just compensation, in a decision of Hon'ble

Supreme Court between Sandeep Khanuja vs Atul Dande

& Anr10, at Paragraph Nos.11 and 12 held as follows :

11.........it is now a settled principle, repeatedly stated and restated time and again by this Court, that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been

10 2017 (3) SCC 315

evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident.........

12......... While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be.......

....... there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of 'just' compensation since the multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and

certainty of the awards made all over the country.".......

22. In the present case, the appropriate multiplier

applicable to the age ground of the deceased i.e., between 46

to 50 years is 13. The total loss of dependency is determined

at Rs.5,85,000/- (Rs.45,000/- x 13). Apart from that, as per

the Pranay Sethi case (referred to supra) as well New

India Assurance Company Limited v. Somwati11, an

amount of Rs.1,60,000/- towards spousal and parental

consortium, an amount Rs.15,000/- towards funeral

expenses and Rs.15,000/- towards love and affection are

awarded. In total the claimants are entitled to compensation

of Rs.7,75,000/-. The remaining heads as claimed and

awarded by the Tribunal are not applicable to the present

case on hand, in view of the above pronouncement of Hon'ble

Supreme Court.

11 (2020) 9 SCC 644

23. A brief exposition of the calculation made to arrive at

the compensation is set out infra:

 S.No. Heads                         Calculation

 1      The annual income of the Rs.48,000/- per annum
        deceased.

 2      25% of above(1) to be (Rs.48,000/-            +
        added     as    future
        prospects              Rs.12,000/-) Rs.60,000/-


 3      1/4th to be deducted as Rs.45,000/-.
        personal   expenses  of
        deceased.

 4      Compensation arrived at (Rs.45,000/-        x     13)
        on      application  of
        multiplier 13.          Rs.5,85,000/-

 5      Loss of spousal and Rs.1,60,000/-
        parental consortium

 6      Loss of estate               Rs.15,000/-

 7      Funeral expenses             Rs.15,000/-

        Total    compensation Rs.7,75,000/-
        awarded(Rows 4+5+6+7)

24. Now, coming to the liability of insurer to pay the

compensation is concerned, as stated supra, it is not in

dispute that the policy issued to the crime vehicle is in force

by the time of incident as well the driver of the crime auto is

not having valid driving license to drive the same at the time

of accident. As such, the Tribunal exonerated the insurer

from its liability to indemnify the 1st respondent/owner.

However, it is settled legal law by the Hon'ble Supreme Court

in plethora of pronouncements that even the driver of the

crime vehicle is not having valid license to drive the same by

the time of incident, the Tribunal can direct the insurer to

satisfy the award at first instance and then recover the same

from the insured. To fortify the same, the learned counsel for

the claimants relied upon various decisions of the Hon'ble

Supreme Court as stated supra.

25. Now, it is relevant to refer a pronouncement of Hon'ble

Supreme Court in Shamanna case (referred to supra),

which is also relied upon by the learned counsel for the

claimants, wherein referred various earlier pronouncements

of Apex Court and held at paragraph No.7 and 8 as follows:

"7. As per the decision in Swaran Singh's case, 2004 ACJ 1(SC), onus is always upon the insurance company to prove that the driver had no valid driving license and that there was breach of policy conditions. Where the driver did not possess the valid driving license and there is breach of the policy conditions, 'pay and recover' can be ordered in case of third-party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving license produced by the driver fulfils the requirements of law or not will have to be determined in each case.

8. The Supreme Court considered the decision of Swaran Singh's case in subsequent decision in National Insurance Co. Ltd. V. Laxmi Narain Dhut, 2007 ACJ 721 (SC), wherein this court held that "the decision in Swaran Singh's case has no application to cases other than third part risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured". The same principle was reiterated in Prem Kumari v. Prahlad Dev, 2008 ACJ 776 (SC)."

26. In view of the above, it is categorical that this Court can

direct the insurer to pay the compensation to the claimants

at first instance and then recover the same from the owner of

the crime auto, even in the absence of valid driving license to

the driver of the crime auto by the time of incident.

27. Having regard to the above discussion, this Court is of

the considered opinion that the order of the tribunal can be

modified enhancing the compensation from Rs.5,02,000/-

to Rs.7,75,000/- and to the extent of directing the insurer to

pay the compensation as entitled above to the claimants at

first instance and then recover the same from the

insured/owner of the crime auto by filing execution petition.