Andhra Pradesh High Court - Amravati
Oriental Insurance Co Ltd vs Dr.Mundru Venkata Subba Rao 3 Ors on 10 September, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+MOTOR ACCIDENT CIVIL MISCELLANEOUS
APPEAL NO:1763 OF 2009
% 10.09.2024
# Oriental Insurance Co.Ltd.
......Appellant
And:
$1. Dr. M. Venkata Subba Rao
& others
....Respondents.
!Counsel for the appellant : Sri M. Solaman Raju
^Counsel for the respondents : Sri B. Parameswara Rao
<Gist:
>Head Note:
? Cases referred:
1AIR 2012 SUPREME COURT 945
2
(2003) 7 SCC 484
3
2022 SCC OnLine SC 1683
4
2024 SCC OnLine AP 3955
5
(2017) 16 SCC 680
6
(2017) 16 SCC 680
7
(2018) 18 SCC 130
8
(2022) SCC OnLine SC 1683
9
(2021) 11 SCC 780
10 (2015) 1 SCC 539
11
(2021) 6 SCC 188
12
(2021) 2 SCC 166
13
(2022) SCC OnLine SC 1683
14
(2020) 4 SCC 228
2
HIGH COURT OF ANDHRA PRADESH
****
MOTOR ACCIDENT CIVIL MISCELLANEOUS
APPEAL NO: 1763 OF 2009
DATE OF JUDGMENT PRONOUNCED: 10.09.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY,J
3
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYPATHY VIJAY
M.A.C.M.A.No.1763 OF 2009
JUDGMENT:
per the Hon‟ble Sri Justice Ravi Nath Tilhari:-
Heard Sri M. Solaman Raju, learned counsel for the
appellant-insurance company and Sri B. Parameswara Rao,
learned counsel for the claimants/respondents 1 to 3.
2. This appeal under Section 173 of the Motor Vehicles Act,
1988 (for short, "the M.V Act") was filed by the Oriental Insurance
Company Limited challenging the award dated 29.04.2008 in
M.V.O.P. No.954 of 2005 (in short, "M.V.O.P"), passed by the
Motor Accidents Claims Tribunal-cum-District Judge at Guntur
(for short, "the Tribunal"). By the said award, the claim of the
claimant-respondents 1 to 3 was partly allowed granting
compensation of Rs.32,40,000/- with interest thereon @ 7% p.a
from the date of the claim petition i.e., 01.07.2005 till date of
realization.
3. The claimants-respondents 1 to 3 filed the aforesaid
M.V.O.P No.954 of 2005 under Section 166 of the M.V. Act for
awarding the compensation of Rs.50,00,000/- for the death of one
Dr. M. Aruna on inter alia the averments that in a lorry accident
dated 10.03.2004 at 10.30 a.m in the middle of Kanaka Durga
Varadhi of Vijayawada, Dr. M. Aruna died. The deceased was
aged about 30 years and was working as Government Doctor and
was also running a private nursing home under the name and
style of Poojitha Hospital at Narasaraopet and was earning
Rs.4,00,000/- per annum. The accident was caused by the driver
of the lorry bearing registration No.A.P.12 T 3677 belonging to
the present 4th respondent, being driven by its driver rashly,
negligently and at a high speed, which hit the motorcycle on its
backside on which the deceased was a pillion rider, the rider
being Dr. Anil Kumar.
4. The 4th respondent (Respondent No.1 in M.V.O.P)
remained ex parte.
5. The appellant (respondent No.2 in M.V.O.P) filed written
statement denying the allegations in the claim petition and inter
alia contending that the claimants be put to strict proof of their
case in the claim petition. It was denied that the driver of the
offending lorry was rash and negligent. It was pleaded that the
accident occurred due to negligence of the motorcycle rider. It
was pleaded that Poojitha Hospital was started by the claimant
No.1, and it was denied that the deceased started the said
hospital and was doing private practice. The claim was said to be
highly exorbitant.
6. The Tribunal framed the following issues:
1) Whether the deceased died in the accident caused
due to rash and negligent driving of the lorry bearing
No.A.P.No.12 T 3677 by its driver?
2) Whether the petitioners are entitled for
compensation? If so, what would be the just amount
of compensation that the petitioners would be entitled
and against whom?
3) To what relief?
7. The claimants examined P.W.1 Dr. M.V. Subba Rao, P.W.2
Shaik Kari Mullah, P.W.3 V. Suresh, P.W.4 T. Subose Chandra
Bose. Ex.A.1 C.C of F.I.R, Ex.A.2 C.C of Charge sheet, Ex.A.3,
C.C of P.M report, Ex.A.4 C.C of Inquest report, Ex.A.5 M.V.I
report, Ex.A.6 Income tax assessments for the years 2002-2003,
2003-2004, 2004-2005, Ex.A.7 original M.B.B.S. Degree
certificate of the deceased, Ex.A.8 income tax returns for the year
2002-2003, Ex.A.9 office copy of income tax returns for the year
2004-2005 and Ex.X.1 statement issued by S.B.I, Narasaraopet
and Ex.X.2 statement issued by Margadarsi Chit Fund,
Narasaraopet were marked.
8. On behalf of the respondents 1 and 2 in M.V.O.P, no
evidence was adduced, but Ex.B.1 photograph was marked in the
cross-examination of P.W.1.
9. The Tribunal recorded the finding that the accident
occurred in the manner stated in the claim petition. In other
words, the finding of the Tribunal on issue No.1 is that the
accident was caused due to rash and negligent driving of the
offending lorry by its driver.
10. On the point of compensation, the Tribunal determined the
monthly income of the deceased not less than Rs.15,000/- from
the private practice and Rs.10,000/- as salary, in total Rs.25,000/,
per month. The annual income was determined as Rs.3,00,000/.
1/3rd was deducted towards her personal expenses. The
contribution towards maintenance of the claimants was arrived at
Rs.2,00,000/- per annum. The multiplier of 16 was applied. The
loss of dependency was determined as Rs.32,00,000/-. It
awarded Rs.15,000/- towards loss of consortium to the 1st
claimant and Rs.15,000/- towards loss of estate and Rs.10,000/-
towards transportation and funeral expenses. In total it thus
awarded Rs.32,40,000/- with interest thereon @ 7% p.a as
aforesaid. The Tribunal further recorded that there was valid
insurance coverage for the offending lorry and consequently, the
appellant and the respondent No.4 herein were held jointly and
severally liable to pay the compensation.
11. The learned counsel for the appellant submitted that the
monthly income of the deceased has been incorrectly
determined, on the higher side. The Tribunal should have
considered only Rs.10,000/- per month and not Rs.25,000/- by
adding Rs.15,000/- more, per month, from the private practice, for
which there was no evidence. Learned counsel for the appellant
thus submitted that the amount of compensation awarded is
excessive and is not just and fair compensation.
12. No other point was argued for the appellant.
13. We have considered the aforesaid submissions and
perused the material on record.
14. The point for determination is as under:
"Whether the compensation awarded to the claimant-
respondents is just and fair or it is exorbitant?"
15. The appellant insurance company did not lead any
evidence before the Tribunal.
16. The monthly income of the deceased of Rs.10,000/- from
the contract employment in the Government hospital is admitted
to the insurance company. The Tribunal has also so observed in
its judgment in issue No.2. The same has not been disputed
before us. The submission of the learned counsel for the
appellant is that, that was the only income that should have been
taken into consideration.
17. The only argument is with respect to addition of Rs.15,000/-
per month from private practice.
18. The Tribunal recorded that the deceased during her life
time did not file any income tax returns. After her death for the
first time P.W.1 filed Ex.A.8 to A.10 income tax returns in the
name of the deceased, on 15.12.2004. The date of death is
10.03.2004. So, the Tribunal drew the inference that the
deceased did not get such a huge amount of Rs.4,00,000/- p.a as
claimed in the claim petition. However, considering the evidence
of P.W.3 the Manager of the State Bank of India, Narasaraopet
Branch that the deceased borrowed a sum of Rs.5,00,000/- from
the State Bank of India on 26.02.2002 for purchasing equipment
for Poojitha Hospital and that she was paying Rs.5,000/- every
month towards discharge of the State Bank of India equipment
loan and also considering that Rs.6,000/- per month was being
paid towards subscription to Margadarshi Chit Fund Company by
the deceased, and in the absence of any evidence to show that
these amounts were being paid by the deceased‟s husband
(P.W.1), the Tribunal assessed additional monthly income of the
deceased „not less than Rs.15,000/-„. The Tribunal observed that
it is the minimum income, a senior medical practitioner could get
from that practice. It has not been argued before us that the
deceased was not making the payment of the installment of the
loan amount taken from the State Bank of India towards the
purchase of equipments or the payment of Rs.6,000/- per month
towards payment to Margadarshi Chit Fund. The Tribunal has
drawn inference from the material on record, a reasonable, and
possible one. Rs.15,000/- per month, taken on that count also
appears to be a reasonable amount.
19. In the exercise of the first appellate jurisdiction, this court is
not inclined to interfere with the finding of income from private
practice, as it is well settled in law that if the Tribunal/court has
taken a possible view based on material on record, the appellate
court would be loath to interfere. In Sharanamma and others vs.
Managing Director, Divisional Contr., North-East Karnataka
Road Transport Corporation1, the Hon‟ble Apex Court has held
as under:
"12. Generally, a finding of fact recorded by the Tribunal
should not be interfered with in an appeal until and unless it
is proved that glaring discrepancy or mistake had taken
place. If the assessment of compensation by the Tribunal
was fair and reasonable and the award of the Tribunal was
neither contrary nor inconsistent with the relevant facts as
per the evidence available record then as mentioned
hereinabove, the High Court would not interfere in the
appeal."
20. Consequently, we do not find it a case for interference with
the finding of the Tribunal on the point of monthly income that is
fixed as Rs.25,000/- i.e., (Rs.10,000/- + Rs.15,000/-)
21. Though there is no representation for the respondent/
claimants but the legal position is settled that the claimants are
entitled for just and fair compensation, which it is the duty of the
court to award.
22. In New India Assurance Co.Ltd vs Yogesh Devi & Ors,2
the Hon'ble Apex Court held that the claimants are entitled for just
and reasonable compensation in a motor vehicles accident claim.
It referred to the case of State of Haryana and another V.
(2013) 11 SCC 517
AIR 2012 SUPREME COURT 945
Jasbir Kaur and others,3 wherein it was held that "compensation
must be "just", and it cannot be a bonanza: not a source of profit;
but the same should not be a pittance." The Hon‟ble Supreme
Court in Anjali and Others Vs Lokendra Rathod and Others4
while referring to Sarla Verma (Supra) observed that, "The
provisions of the Motor Vehicles Act, 1988 (for short, "MV Act")
gives paramount importance to the concept of „just and fair‟
compensation. It is a beneficial legislation which has been framed
with the object of providing relief to the victims or their families.
Section 168 of the MV Act deals with the concept of „just
compensation‟ which ought to be determined on the foundation of
fairness, reasonableness and equitability. Although such
determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and fair
compensation irrespective of the amount claimed by the
applicant/s." It referred to Sarla Verma & Ors. Vs. Delhi
Transport Corporation & Anr., in which it was laid down that
..."Just compensation" is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as
(2003) 7 SCC 484
2022 SCC OnLine SC 1683
money can do so, by applying the well settled principles relating
to award of compensation. It is not intended to be a bonanza,
largesse or source of profit."
23. It is also well settled that even in the absence of, any
appeal or cross-objection filed in the appeal by the insurance
company or the owner, the claimants can be awarded just
compensation.
24. In United India Insurance Co. Ltd., vs. Susubelli Bapuji
and others5, the Hon‟ble Apex Court held in paras 13 to 19 as
under:
"13. In N. Jayasree v. Cholamandalam Ms General Insurance
Company Limitecf', the Hon'ble Apex Court held that the provisions of
the Motor Vehicles Act, 1988, give paramount importance to the
concept of "just and fair" compensation. It is a beneficial legislation
which has been framed with the object of providing relief to the victims
or their families. Section 168 of the MV Act deals with the concept of
"just compensation" which ought to be determined on the foundation of
fairness, reasonableness and equitability. Although such determination
can never be arithmetically exact or perfect, an endeavour should be
made by the Court to award just and fair compensation irrespective of
the amount claimed by the applicant(s).
14. Para Nos.9 and 10 in N.Jayasree (3^^ supra) reads as
under;
2024 SCC OnLine AP 3955
09. The provisions of the Motor Vehicles Act, 1988 (for short "the MV
Act") give paramount importance to the concept of "just and fair"
compensation. It is a beneficial legislation which has been framed with
the object of providing relief to the victims or their families. Section
168 of the MV Act deals with the concept of just compensation' which
ought to be determined on the foundation of fairness, reasonableness
and equitability. Although such determination can never be
arithmetically exact or perfect, an endeavor should be made by the
Court to award just and fair compensation irrespective of the amount
claimed by the applicant(s).
10. In Sarla Verma, this Court has laid down as
under: (SCC pp.131-132, para 16) "16. ..."Just
compensation" is adequate compensation which is
fair and equitable, on the facts and circumstances of
the case, to make good the loss suffered as a "(2022)
14 SCC 712 result of the wrong, as far as money can
do so, by applying the well-settled principles relating
to award of compensation. It is not intended to be a
bonanza, largesse or source of profit. "
15. In Surekha v. Santosh\ where the High Court of Bombay
though agreed with the stand of the appellants therein that just
compensation amount ought to be Rs.49,85,376/-, declined to grant
enhancement merely on the ground that the appellants had failed to file
cross-appeal, the Hon'ble Apex Court observed in para-2 is as under:
2. By now, it is well-settled llial in the matter of insuranco claim
compensation in reference to the motor accident, the court should not
take hypertechnical approach and ensure that just compensation is
awarded to the affected person or the claimants.
16. In Meena Pawaia v. Ashraf Air', the Hon'ble Apex Court held
that the claimants are entitled to just compensation Merely because In
the execution proceedings they accepted the amount as awarded may
be as full and final settlement, that shall not take away the right of the
claimants to claim just compensation and shall not preclude them from
claiming the enhanced amount of compensation. The Motor Vehicles
Act is a benevolent Act and claimants are entitled to just compensation.
17. Para No. 17 of Meena Pawaia (5'^ supra) read as under;
17. Now so far as the submission on behalf of the Union of India
that as in the execution proceedings the claimants accepted the
amount due and payable under the impugned judgment and
order and accepted the same as full and final settlement
thereafter the claimants ought not to have preferred appeal for
enhancement of the compensation is concerned, the aforesaid
cannot be accepted. The claimants are entitled to Just
compensation. Merely because in the execution proceedings
they ''(2021) 16 see 467 ^(2021) 17 see 148 might have
accepted the amount as awarded by the High Court, may be as
full and final settlement, it shall not take away the right of the
claimants to claim just compensation and shall not preclude
them from claiming the enhanced amount of compensation
which they as such are held to be entitled to. /As such,
the Motor Vehicles Act is a benevolent Act and as observed
hereinabove the claimants are entitled to just compensation. As
such, the Union of India ought not to have taken such a
plea/defence.
18. In Smt. Anjali v. Lokendra Rathotf, the Hon'ble Apex Court
observed and held as under;
10. The provisions of the Motor Vehicles Act, 1988 (for short,
"MV Act") gives paramount importance to the concept of just and fair'
compensation. It is a beneficial legislation which has been framed
with the object of providing relief to the victims or their
families. Section 168 of the MV Act deals with the concept of just
compensation' which ought to be determined on the foundation of
fairness, reasonableness and equitability. Although such
determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and fair
compensation irrespective of the amount claimed by the applicant(s).
11. In Sarla Verma & Ors. \/s. Delhi Transport Corporation & Anr, this
Court has laid down as under:
"16. ..."Just compensation" is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to make
good the loss suffered as a result of the wrong, as far as money can
do so, by applying the well settled principles relating to award of
compensation. It is not intended to be a bonanza, largesse or source
of profit. "
19. From the aforesaid judgments it is settled in law that the
claimants are entitled for just and fair compensation. Endeavour should
be made by the court to award just and fair compensation irrespective
of
a) that they have not preferred any appeal for enhancement nor filed
any cross objection in the appeal filed by the owner/insurance
company.
b) that even after they accepted the amount in execution proceedings
they can claim the just compensation in the proper proceedings, and ®
2022 LiveLaw (SC) 1012
c) that the amount of compensation claimed in their petition, is less
than the amount of the compensation determined by the
Tribunal/Court."
25. We find from the perusal of the judgment/award, that under
some heads, the award of the compensation amount is either not
granted or is not according to the law. We cannot ignore that
aspect while considering just and fair compensation.
26. Future prospectus have not been awarded at all. In
National Insurance Company Limited vs. Pranay Sethi and
others,6 the Constitution Bench of the Hon'ble Apex Court, has
held as under in Paras 59.3 and 59.4 :-
"59.3. While determining the income, an addition of
50% of actual salary to the income of the deceased
towards future prospects, where the deceased had a
permanent job and was below the age of 40 years,
should be made. The addition should be 30%, if the age
of the deceased was between 40 to 50 years. In case
the deceased was between the age of 50 to 60 years,
the addition should be 15%. Actual salary should be
read as actual salary less tax.
59.4. 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
(2017) 16 SCC 680
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. The established income means
the income minus the tax component."
27. The deceased was working as doctor on contract basis in a
Government Hospital. She died at the age of 30 years. The
claimants are therefore entitled for addition of future prospects @
40% of the established income in terms of Para 59.4 of Pranay
Sethi (supra), we award 40% of the income towards future
prospectus.
28. On conventional heads, as per the judgment in National
Insurance Company Limited V. Pranay Sethi and
Others,7Magma National Insurance Company Limited vs
Nanu Ram @ Chuhru Ram and Ors.8and Smt. Anjali and
Others V. Lokendra Rathod and Others,9 the claimants are
entitled for an amount of Rs.48,000/- to each of the claimants,
being Rs.1,44,000/- towards loss of consortium, towards funeral
expenses Rs. 18,000/- and towards loss of estate Rs. 18,000/-, in
view of the Hon‟ble Apex Court judgment in United India
(2017) 16 SCC 680
(2018) 18 SCC 130
(2022) SCC OnLine SC 1683
Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and
Ors,10 as well, by revising the amount every three years @ 10%
i.e., @ 20% as on today.
29. The amount of just and fair compensation would come to
as follows:
S. Head Compensation
No. Awarded
1. Net Annual Income Rs. 3,00,000/-
(As per Tribunal)
2. Future Prospects Rs. 1,20,000/-
(40% of the Income) Total = Rs.
4,20,000/-
3. Deduction towards personal expenditure Rs. 1,40,000/-
(i.e. 1/3rd of income)
4. Total income Rs. 2,80,000/-
5. Multiplier of 16 at the age of 30 years i.e. 16 x 2,80,000/-
= Rs.44,80,000/-
6. Conventional Heads:
i) Loss of Consortium Rs. 1,44,000/-
(Rs. 48,000/- x 3)
ii) Loss of Estate Rs. 18,000/-
iii) Funeral expenses Rs. 18,000/-
Total Compensation Rs. 46,60,000/-
(2021) 11 SCC 780
30. The Tribunal granted interest at the rate of @ 7% p.a. In
Kumari Kiran vs. Sajjan Singh and others,11 the Hon‟ble Apex
Court set aside the judgment of the Tribunal therein awarding
interest @ 6% as also the judgment of the High Court awarding
interest @7.5% and awarded interest @ 9% p.a. from the date of
the claim petition. In Rahul Sharma & Another vs. National
Insurance Company Limited and Others,12the Hon‟ble Apex
Court awarded @ 9% interest p.a. from the date of the claim
petition. Also, in Kirthi and another vs. Oriental Insurance
Company Limited,13 the Apex Court allowed interest @ 9% p.a.
and in Smt. Anjali and Others V. Lokendra Rathod and
Others,14 the Hon‟ble Apex Court while referring toMalarvizhi &
Ors. Vs. United India Insurance Co. Ltd. & Ors.15allowed
interest @ 9% p.a.
31. Accordingly, on the aforesaid amount the claimants are
granted interest @ 9 % p.a. from the date of the claim petition
till realisation.
RESULT:
32. In the result:
(2015) 1 SCC 539
(2021) 6 SCC 188
(2021) 2 SCC 166
(2022) SCC OnLine SC 1683
(2020) 4 SCC 228
i) The appeal of the Insurance Company is dismissed.
ii) The claimants/respondent Nos.1 to 3 are granted enhanced
compensation of Rs.46,60,000/- as just and fair compensation,
with interest @ 9% per annum thereon from the date of the claim
petition till realization;
iii) The appellant/insurance company shall deposit the amount as
aforesaid, adjusting the amount already deposited if any, before
the Tribunal within one month, failing which the amount shall be
recovered as per law;
iv) On such deposit being made, the claimants/respondents 1 to 3
shall be entitled to withdraw the same in the proportion as per the
award,
v) The costs throughout is allowed in favour of the
Claimants/respondent Nos.1 to 3, and against the appellant.
Consequently, the Miscellaneous Petitions, if any, pending
shall also stand closed.
________________________
RAVI NATH TILHARI,J
_______________________
NYPATHY VIJAY,J
Date:10.09.2024.
Note:
L.R copy to be marked.
B/o.Gk.
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYPATHY VIJAY
M.A.C.M.A.No.1763 OF 2009
Date:10.09.2024.
Gk.
