Andhra Pradesh High Court - Amravati

Smt. Namuduri Durga Annapurna vs Bonthu Yedukondalu on 23 October, 2024

APHC011403872016

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

    WEDNESDAY ,THE TWENTY THIRD DAY OF OCTOBER
         TWO THOUSAND AND TWENTY FOUR

                       PRESENT
          THE HONOURABLE SRI JUSTICE V SRINIVAS

     MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL
              NOS: 3375/2017 & 3468/2018

Between in MACMA No.3375 of 2017:
M/s. National Insurance Company Limited                ...APPELLANT
                            AND

Thummati Rajesh S/o Subba Rao and               ...RESPONDENT(S)
Others

Between in MACMA No.3468 of 2018:
Thummati Rajesh S/o Subba Rao and Others               ...APPELLANT

                                    AND

M/s. National Insurance Company Limited         ...RESPONDENT(S)

Counsel for the Appellant in MACMA No.3375 of 2017:
  RAMA MOHAN RAO KOTHA
Counsel for the Respondent(S) in MACMA No.3375 of 2017:
  V S K RAMA RAO
The Court made the following:

COMMON JUDGMENT:

These appeals are directed against the order of the

Chairman, Motor Vehicle Accident Claims Tribunal-cum-III

Additional District Judge, East Godavari at Kakinada

(hereinafter called as 'the Tribunal') in M.V.O.P.No.203 of 2014

dated 01.09.2016.

2. Since these appeals arise out of same accident and as the

material facts are common, the same are being disposed of by

this common judgment.

3. M.A.C.M.A.No.3375 of 2017 is preferred by the insurer of

the motorcycle bearing No.AP 05 BZ 8674 (hereinafter referred

as "crime motorcycle"). The respondent Nos.1, 2 and 5 herein

are wife, son and married daughter of one Namuduri Venkata

Subrahmanyam (hereinafter called as 'the deceased'). The

respondent Nos.3 and 4 are the driver and owner of the said

crime motorcycle.

4. M.A.C.M.A.No.3463 of 2018 is preferred by the claimants

as well 4th respondent before the Tribunal for enhancement of

compensation.

5. For the sake of convenience, the parties hereinafter

referred to as they arrayed before the tribunal.

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

Tribunal is that:

i). On 18.05.2013 at about 01.00 p.m., while the

deceased was proceeding on his motorcycle bearing

No.AP 05 BG 1570 and when he reached opposite to

Z.P.H. School, Kandikuppa main road, the rider of the

crime motorcycle driven the same in a rash and

negligent manner, without blowing horn dashed the

motorcycle of the deceased in opposite direction,

resulted, the deceased sustained severe injuries all

over the body. While undergoing treatment, he

succumbed to injuries on 17.06.2013.

ii). Being dependents, they claimed compensation of

Rs.30,00,000/- against the rider, owner and insurer of

the said crime motorcycle.

7. The respondent No.3/insurer filed written statement

denying the averments in the petition and pleaded that the

accident occurred due to the rash and negligent riding of the

deceased, but not 1st respondent; that the compensation

claimed by the claimants is excessive, thereby, prayed to

dismiss the petition.

8. The respondent No.4, who is married daughter of the

deceased, filed written statement and pleaded that the accident

occurred due to the rash and negligent driving of the 1st

respondent only and she has no objection to pass the award in

favour of the claimants.

9. The Tribunal settled the following issues for enquiry

basing on the material:

"1.Whether the deceased Namuduri Venkata Subrahmanyam, S/o.Krishna Murthy, died in a motor accident occurred on 18.05.2013 due to rash and negligent driving of motorcycle bearing No.AP 05 BZ 8674 driven by its driver/1st respondent?

2.What is the age and income of the deceased?

3.Whether the petitioners are entitled to claim compensation, if so, to what amount and from which of the respondents? and

3.To what relief?

10. During enquiry, on behalf of the claimants, PW.1 to 3

were examined and Exs.A.1 to A.10 and X.1 were marked. On

behalf of the respondent No.3, R.Ws.1 and 2 were examined and

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

11. On the material, the Tribunal, having concluded that the

accident occurred due to the negligent driving of the crime

motorcycle by its rider, held that claimants are entitled for the

compensation of Rs.22,58,828/-, with interest at 7.5% per

annum from the date of petition till the date of realization

against the respondent Nos.1 and 2, for the death of the

deceased in the accident and also directed the respondent

No.3 to deposit the said compensation amount within one

month and shall recover the same from the owner of the said

crime motorcycle.

12. It is against the said order; these appeals are preferred by

the insurer of the motorcycle and claimants along with 4th

respondent respectively.

13. Heard Sri Rama Mohan Rao Kotha, learned counsel for

the insurer/appellant in M.A.C.M.A.No.3375 of 2017 and Sri

V.S.K.Rama Rao, learned counsel for the claimants/appellants

in M.A.C.M.A.No.3463 of 2018.

14. Sri Rama Mohan Rao Kotha, learned counsel for the

insurer submits that when the 1st respondent is not having

valid driving license to ride the crime motorcycle, the insurer is

not liable to indemnify the owner of the said motorcycle; that

the Tribunal erred on ordering pay and recovery in the absence

of valid driving license to the 1st respondent; that the Tribunal

erred in calculating the compensation entitled by the claimant

and thereby, prays to consider the appeal preferred by the

insurer.

15. Sri V.S.K.Rama Rao, learned counsel for the claimants

submits that the tribunal after considering the material placed

on record, rightly concluded that the accident occurred only due

to the negligence of the driver of the crime motorcycle; that the

claimants are entitled for enhancement of compensation in view

of the settled legal position and thereby prays to enhance the

compensation as claimed by the claimants before the tribunal.

16. Now, the following points arise for determination:

1. Whether the appellant/insurer is liable to satisfy the award passed by the Tribunal at the first instance in the absence of valid driving license to ride the crime motorcycle by the 1st respondent?

2. Whether the compensation awarded to the claimants is just compensation? and

3. To what relief ?

17. POINT No.1:

On this point, the Tribunal categorically held that the 1st

respondent is not having valid driving license to drive the crime

motorcycle, thereby, the owner of the said motorcycle violated

the terms and conditions of the policy. Hence, the

appellant/insurer is not liable to pay compensation to the

claimants. However, in view of the ratio laid down by the

Hon'ble Supreme Court in S.Iyyapan v. M/s.United India

Insurance Company Limited1, ordered the insurer to pay the

award amount at first instance and then recovery the same from

the owner/insured of the crime motorcycle, which is now under

challenge in the appeal preferred by the insurer.

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

incident as well involvement of the crime motorcycle, rash and

negligent riding of the crime motorcycle in causing the incident

by the 1st respondent. It is a fact that either the 1st

respondent/driver or 2nd respondent/owner did not prefer any

appeal against the findings of the Tribunal. It is also not in

1 (2013) 7 SCC 62

dispute that by the date of incident, the 1st respondent is not

having valid driving license to ride the crime motorcycle.

19. Now it is relevant to refer the categorical observations

made by the Hon'ble Supreme Court in S.Iyyappan case

(referred to supra) that "...In any case, it is the statutory right of

a third party to recover the amount of compensation so awarded

from the insurer. It is for the insurer to proceed against the

insured for recovery of the amount in the event there has been

violation of any condition of the insurance policy". (emphasis

supplied)

20. In view of the above precedent, it is clear in vivid terms

that there is statutory right of a third party to recover the

amount of compensation so awarded from the insurer, then, the

insurer to proceed against the insured for recovery of the said

amount in the event there has been violation of any condition of

the insurance policy. Thereby, in the present case on hand, the

findings of the Tribunal that the insurer is liable to satisfy the

award at first instance and then recover the same from the

insured/owner in the absence of valid driving license to ride the

crime motorcycle by the date of incident warrants no

interference and holds good. Thus, this point is answered

accordingly.

21. POINT NO.2:

Coming to the just compensation, it is the not in dispute

that by the date of incident the deceased working as clerk in

Z.P.H. Schook, Kandikuppa on regular basis and drawing net

salary of Rs.21,095/- per month after deducting income tax.

Thereby, the Tribunal rightly determined the actual income of

the deceased at Rs.2,53,140/- per annum.

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

Apex Court in National Insurance Company Limited v.

Pranay Sethi2, 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 discernible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to

2 2017 (6) ALT 60 (SC)

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."

23. As per the Pranay Sethi case (referred supra), in case

the deceased has permanent job, an addition of 30% should

be made, if the age of the deceased was between the age of 40

to 50 years..... (emphasis supplied)

24. In the present case as per the above said decision, 30%

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

deceased towards future prospects as the deceased is aged

about 48 years by the date of incident, which is not in

dispute. After adding 30% to the income of the deceased

towards future prospects her income is determined at

Rs.3,29,082/-(Rs.2,53,140/- + Rs.75,942/-).

25. In the case on hand, there are two claimants depending

on the deceased, thereby, the deduction towards personal

and living expenses of the deceased should be 1/3rd from the

income of the deceased. Then the quantum is determined as

Rs.2,19,388/-.

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

Supreme Court between Sandeep Khanuja vs Atul Dande

& Anr3, 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 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

3 2017 (3) SCC 315

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."....... (emphasis supplied)

27. The appropriate multiplier applicable to the age of the

deceased i.e., 48 years is 13. The total loss of dependency is

determined at Rs.28,52,044/- (Rs.2,19,388/- x 13).

28. CONVENTIONAL HEADS:-

On the point of the conventional heads, as per the

judgment in Pranay Sethi (supra), Magma National

Insurance Company Limited v. Nanu Ram @ Chuhru Ram

and Ors.4, Smt. Anjali and Others v. Lokendra Rathod

and Others5, United India Insurance Co. Ltd v. Satinder

Kaur @ Satwinder Kaur and ors.6 and Rojalini Nayak

and others v. Ajit Sahoo and others7, this Court can award

the enhanced amounts under the conventional heads of loss

of estate, loss of consortium and funeral expenses. The

claimants are also entitled for an amount of Rs.48,400/- to

each of the claimants, being Rs.96,800/- for loss of

consortium, towards funeral expenses Rs.18,150/- and

4 (2018) 18 SCC 130 5(2022) SCC OnLine SC 1683 6 (2022) SCC OnLine SC 1683

17 (2021) 11 SCC 780

towards loss of estate Rs.18,150/-, respectively as was

awarded in Rojalini Nayak case (referred to supra).

29. 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 Rs.2,53,140/- per annum
       the deceased.

2      30% of above(1) to be (Rs.2,53,140/-             +
       added     as    future Rs.75,942/-) Rs.3,29,082/-
       prospects

3      1/3rd to be deducted as Rs.2,19,388/-
       personal expenses of
       deceased.

4      Compensation   arrived (Rs.2,19,388/-           x   13)
       at on application of Rs.28,52,044/-
       multiplier 13.

5      Spousal and      Parental Rs.96,800/-
       consortium
                                   (Rs.48,400/- X 2)
       (wife and son)

6      Loss of estate              Rs.18,150/-

7      Funeral expenses            Rs.18,150/-





         Total   compensation Rs.29,85,144/-
         awarded(Rows
         4+5+6+7)

30. Therefore, in view of the forgoing discussion, this Court

is of the considered opinion that the award passed by the

Tribunal warrants interference by enhancing the

compensation from Rs.22,58,828/- to Rs.29,85,144/-.

31. The claimants also claimed compensation under the

head of pain and suffering, but the same cannot be granted

since the pain and suffering are not considered as a separate

head of compensation in death cases, which includes in loss

of earnings as observed by the Hon'ble Supreme Court in

United Insurance Company Limited v. Satinder Kaur @

Satwinder Kaur8, thereby, the claim made by the claimants

on this head cannot be considered. It is needless to say that

the compensation as claimed on the remaining heads is not

AIR 2020 SC 3076

entitled by the claimants. Thus, this appoint is answered

accordingly.

32. POINT No.3:

In view of the findings on point Nos.1 and 2, the order

passed by the Tribunal warrants interference regarding

quantum of compensation only and with regard to the

remaining aspects there is no need to disturb the order passed

by the Tribunal. As such, the appeal filed by the insurer is

liable for dismissal and the appeal preferred by the claimants is

liable to be considered partly.

33. In the result, the M.A.C.M.A.No.3375 of 2017 is

dismissed. There shall be no order as to costs.

34. In the result, the M.A.C.M.A.No.3463 of 2018 is partly

allowed, with proportionate costs, enhancing the

compensation from Rs.22,58,828/- to Rs.29,85,144/- with

interest at 7.5% per annum, from the date of petition till the

date of realization against respondent Nos.1 and 2/driver and

owner of the crime motorcycle. The respondent No.3/insurer

shall deposit the compensation amount within two months from

the date of this judgment before the Tribunal and then entitled

to recover the same from the 2nd respondent/owner. On such

deposit, the claimants Nos.1 and 2 as well 4th