Andhra Pradesh High Court - Amravati
The Oriental Insurance Co.Limited, vs Pemula Sarala Kumari Alias T.Sarala ... on 30 August, 2024
1
BSB, J
MACMA.No.472 of 2023
APHC011368112016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
FRIDAY, THE THIRTIETH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 472/2023
Between:
The Oriental Insurance Co.limited, ...APPELLANT
AND
Pemula Sarala Kumari Alias T Sarala Kumari and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. S A V Ratnam
Counsel for the Respondent(S):
1. Sivaprasad Reddy Venati
2.
The Court made the following:
ORDER:
This appeal is preferred against the decree and judgment dated
04.02.2016 in M.V.O.P.No.739 of 2012 on the file of the Principal Motor
Accidents Claim's Tribunal, Nellore filed under Section 166 of M.V.Act seeking
compensation of Rs.7,00,000/- with interest, whereas the Tribunal awarded
compensation of Rs.4,46,200/- with interest thereon @ 7.5%p.a from the date
of petition till the date of deposit.
2. The facts leading to filing of the appeal are briefly as follows.
On 23.08.2012, the deceased allegedly boarded an auto bearing No.AP
26 TA 7336 at Kavali, when the auto reached near Anjaneya Swamy Temple
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of Musunuru Village at about 10.00 p.m, the driver of the auto drove the auto
in rash and negligent manner with high speed, due to which he lost control
over it and hit a bus of APSRTC bearing No.AP 26Z 0119 coming in the
opposite direction and thereby the inmates of the auto, including the
deceased, sustained severe injuries and were shifted to government hospital,
Kavali for treatment, but the deceased succumbed to injuries on the same day
at 11:30 p.m. The mother of the deceased initially filed a claim petition stating
that the deceased was aged about 30 years and was working as a car driver
and earning Rs.8,000/- per month, and contributed his income for the family.
The 1st respondent before the Tribunal was the owner of the auto and the said
vehicle was insured with the 2nd respondent. Thus, the claim was sought
against both the respondents. Though the 1st respondent initially appeared
through an advocate, subsequently remained ex-parte on 14.03.2013. The
2nd respondent alone contested the claim by filing a counter denying the
contentions in the claim petition and further stating that the driver of the auto
has no negligence, but the accident occurred due to the negligence of the
driver of the bus and further that the claim is not maintainable for nonjoinder of
necessary parties relating to the bus and further that the driver of the auto had
no valid driving license at the time of the accident and the auto was not
roadworthy. The claim was challenged highly excessive.
3. On behalf of the claimant she got herself examined as PW-1, and also
examined an eyewitness to the accident as PW.2, and filed Exhibits A-1 to A-
5.
Ex.A1, dated 24.08.2012 Attested photocopy of FIR in
Crime No.183/2012 of Kavali Rural Police Station, registered on
24.08.2012 under Section 304-A IPC against the driver of the
auto bearing No.AP 26A 7336.
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Ex.A2, 24.08.2012 Attested photocopy of Inquest
Report dated 24.08.2012 relating to the dead body of the
deceased Pemula Ramesh Babu.
Ex.A3 Attested photocopy of postmortem report of
the deceased.
Ex.A4 Attested photocopy of charge-sheet in
C.C.No.608/2012 on the file of the Additional Judicial Magistrate
of First Class, Kavali, filed in connection with Crime No.183/2012
of Kavali Rural Police Station.
Ex.A5. Copy of Driving License of the deceased.
4. On behalf of the 2nd respondent, its officer was examined as RW-1 and
the Exhibits B-1 and B-2 have been marked.
Ex.B1. Attested copy of Insurance Policy for the auto bearing
registration No.AP 26TA 7336 issued by the 2nd respondent in favour of the 1st
respondent valid from 29.09.2011 to 28.09.2012.
Ex.B2. Extract of G. Rajesh which shows that he was possessing
driving license for LMV Auto Richshaw Non-transport valid from 23.04.2008 to
22.04.2028.
5. After hearing both parties the Tribunal held that the accident was
caused due to negligence of the driver of the auto in so far as quantum of
amount is concerned, the total amount of Rs.4,46,000/- is granted as follows;
DESCRIPTION CALCULATION AMOUNT (Rs.)
Income Per Month 4,000.00
Income Per Annum 4000 x 12 48,00,000.00
Less: Income Tax (10%) 48 X 10% 4,800.00
Annual Income After 48,000 - 30% 43,200.00
Deduction of Income
Tax
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Add: Future Prospects 43,200 x 30% 12,960.00
on Actual Income After
Tax (30%)
Actual Income 43,200 + 12960 56,160.00
Personal Expenses 51160 x50% 28,080.00
(50%)
Contribution to Family 56160-28080 28,080.00
Compensation on 28080 x 15 4,21,200.00
applying multiplier
Funeral Expenses 20,000.00
Transport Expenses 5,000.00
COMPENSATION 4,46,200.00
PAYABLE
and the Tribunal considered that the deceased was aged about 30 years and
adopted multiplicand as per the decision of the Supreme Court in Santosh
Devi Vs National Insurance Company Limited and Others. The Tribunal
fixed the notional income of the deceased at Rs.8,000/- p.m as he was
working as a car driver and after deducting his personal expenses, the
contribution is taken at Rs.4,000/- p.m and added 30% of the income as future
prospects. Regarding the driving license, the Tribunal observed that there is
no evidence that the non-possession of valid and effective driving license was
the root cause of the accident and constituted fundamental breach that would
absolve the liability of the insurer. Therefore, in view of the evidence of RW-1,
coupled with Ex.B-1 policy which was inforce as on the date of accident, the
liability to pay compensation was fastened on both the respondents with joint
and several liability.
6. Aggrieved by the decree and judgment this appeal is preferred mainly
contending that the decree is erroneous as the driver of the insured vehicle
not possessing valid driving license and that the deceased, being unmarried
son, the age of the petitioner ought to have been taken for selecting the
multiplier applicable to calculate the amount of compensation and further that
there are two more sons to the petitioner/claimant, besides the deceased, and
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therefore, the claimant is not a dependent solely on the deceased and also
that the amount of compensation awarded is on high side. Considering 30%
of the future prospects is also challenged.
7. Pending the appeal, which was initially filed in 2016, but registered in
2023, the 1st respondent/claimant died. Therefore, her legal representatives
were brought on record as respondent Nos.3 and 4.
8. By an order dated 30.12.2016 in MACMAMP.No.6116 of 2016, the
appellant was directed to deposit 50% of the awarded amount with
proportionate interest and costs within a period of eight weeks from the date of
receipt of copy of that order as a condition for the interim stay granted.
Pursuant thereto, when as the amount was kept in deposit, the
respondents/claimants filed I.A.No.2 of 2024 seeking permission to withdraw
the said amount.
9. As the appeal, though registered in the year 2023, being filed in 2016
and a old case and both parties are ready to advance arguments, the matter is
taken for hearing and final disposal.
10. The learned counsel for the appellant, appearing through video
conferencing, submitted that the Tribunal erred in fastening liability on the
insurance company inspite of the evidence placed that the driver of the auto
had no driving license and further that the Tribunal ought to have, at least,
directed the insurance company to first pay and later recover from the insured.
Regarding the other aspect of the compensation, she has stuck to the grounds
taken in the appeal.
11. With regard to the violation of terms of policy for want of driving license,
no witness from road transport authority was examined. Thus, except the
evidence of RW-1 and Ex.B-1 and B-2, there is no evidence at all to prove that
the driver of the auto had no valid driving license at the time of the accident.
Therefore, the Tribunal has rightly fastened liability against both the
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respondents. As such, there is no need to direct the insurer to first pay and
later recover the same from the insured.
12. Regarding quantum of compensation, the Tribunal has rightly taken the
age of the deceased for the purpose of identifying the proper multiplier. The
quantum of notional income is also not on high side considering his
occupation. Future prospects are also rightly adopted inconsonance with the
principle of law laid down by the Supreme Court in various cases. Thus, no
illegality or irregularity is found in the impugned result of the decree and
judgment in the appeal.
13. Accordingly, the appeal is dismissed. There shall be no orders as to
costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in this
Petition shall stand closed.
___________________ ___
JUSTICE B.S. BHANUMATHI
Date:30.08.2024
KMS
BSB, J
THE HONOURABLE MS JUSTICE B S BHANUMATHI
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 472/2023
Date: 30.08.2024
KMS
