The New India Assurance Company ... vs Smt. S. Vijay Laxmi And 5 Others
2021 Latest Caselaw 1333 Tel

            THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

                      MACMA.No.2631 of 2006
JUDGMENT:

The appellant-New India Assurance Company Limited (insurer)

is the respondent No.2 in OP.No.276 of 2005 on the file of the Motor

Accident Claims Tribunal cm The Principal District Judge, Medak at

Sangareddy. The respondents No.1 to 5 are the claimants and the

respondent No.6 (owner of the offending vehicle) is respondent No.1 in

the OP.

2. The parties are referred to as they were arrayed in the original

petition.

3. The claimants No.1 to 5 are the legal heirs of the deceased,

Sankuna Chandu Chary, who died in the motor accident that took

place on 28.12.2004 at Goods Shed Road, Moosapet, Hyderabad.

The claim petition was filed under Section 166 of the Motor Vehicles

Act, 1988 claiming compensation of Rs.5,00,000/- for the death of the

deceased.

4. The case of the claimants is that on 28.12.2004 at about 10 PM,

when the deceased was going by foot in front of the Eenadu Office,

a lorry bearing No.AP 9 U 1337 proceeding towards Goodshed from

Moosapet, driven by its driver in a rash and negligent manner, dashed

the deceased, due to which the accident occurred, the deceased

sustained injuries and succumbed to the same while undergoing

treatment at 1.20 AM in Gandhi Hospital, Secunderabad. The police,

Kukatpally registered a casein Cr.No.972 of 2004 for the offence

punishable under Section 304-A IPC against the driver of the lorry.

The deceased was stated to be doing goldsmith business in gold and

silver and earning Rs.15,000/- per month.

5. The respondent Nos.1 and 2 filed separate counters denying

the accident. It was also stated that the driver of the lorry was

observing all traffic rules and regulations. The deceased himself

contributed to the accident. The insurance company, in its counter,

additionally stated that the claimants did not report the accident to the

insurer, as such, the insurance company is not liable to pay

compensation. P.Ws.1 and 2 were examined and Exs.A1 to A5 were

marked on behalf of the claimants. R.W.1 was examined and Exs.B1

and B2 were marked on behalf of the insurance company.

6. Insofar as the income of the deceased is concerned, as there

was no documentary evidence, the tribunal below fixed the notional

income as Rs.3,000/- and after deducing 1/3rd towards his personal

expenses, the contribution to family was worked out to Rs.2,000/- per

month and Rs.24,000/- per annum. By applying the multiplier '16',

the loss of income was arrived at Rs.3,84,000/-. Rs.15,000/- was

awarded towards loss of consortium, Rs.15,000/- was awarded

towards loss of estate and total compensation was fixed at

Rs.4,14,000/-. The compensation towards loss of income, thus, cannot

be said to be on the higher side since the tribunal below fixed the

salary at basic minimum of Rs.3,000/- per month. The tribunal below

held that as per Ex.A4 the license of the driver of the lorry lapsed by

the date of the accident. The tribunal below relied on the decision of

this Court in United India Insurance Company Limited v. Tam

Tam Venkata Reddy [2004 (2) ALD 775], wherein the principle of

pay and recover was applied following the decision of the Supreme

Court in United India Insurance Co. Ltd. v. Lehru [2003 (3) ALD

20 (SC)].

7. Learned counsel for the appellant submitted that in the absence

of valid driving license the principle of pay and recover cannot be

applied. The said argument of the learned counsel is not accepted in

view of the authoritative pronouncements of the Supreme Court in

several cases including the latest decision in MANUARA KHATUN v.

RAJESH KR. SINGH1. Hence, this Court does not find any merit in the

appeal.

The civil miscellaneous appeal is dismissed. Pending

miscellaneous applications, if any, shall stand closed. There shall be no

order as to costs.

__________________ B. VIJAYSEN REDDY, J April 23, 2021 DSK

(2017) 4 SCC 796