Telangana High Court
United India Ins. Co. Ltd., ... vs Smt. S.Vanitha, Nizamabad Dist., ... on 16 December, 2021
Bench: G Sri Devi
THE HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.5381 of 2008
And
X-Objection No.5288 of 2009
JUDGMENT :
M.A.C.M.A.No.5381 of 2008 is filed by the appellant-
Insurance Company, aggrieved of the order and decree dated
10.06.2008 in O.P.No.819 of 2005 on the file of Motor Accident
Claims Tribunal-cum-District Judge, Nizamabad, by which, a
total compensation of Rs.9,43,704/- was awarded by the
Tribunal, whereas, X-Objection No.5288 of 2009 is filed by the
claimants seeking enhancement of compensation from
Rs.9,43,704/- to Rs.20,00,000/-.
2. On 11.12.2004 at about 6.30 p.m., the 1st respondent drove the
two wheeler bearing temporary registration No.AP-25/C-T/R-3964 at
a high speed and in a rash and negligent manner, due to which, the
bike fell down and the deceased, who was sitting on the bike as pillion
rider, also fell down, sustained multiple injuries and died on the way
to hospital.
3. The Tribunal, on examining the oral and documentary evidence
on record, allowed the O.P., awarding a total compensation of
Rs.9,43,704/- along with costs and interest @ 7.5% per annum from
the date of petition till the date of realization, to be deposited within
one month from the date of said order.
GSD, J
MACMA.No.5381 of 2008 and
X-Obj.No.5288 of 2009
4. Heard both sides and perused the record.
5. The main ground raised by the appellant-Insurance
Company is that even as per the FIR, charge sheet and other
documents filed by the claimants, the deceased was only pillion
rider of the offending vehicle, hence, as per the policy, the pillion
rider is not covered under 3rd party risk as he is only a gratuitous
passenger. However, the Tribunal has failed to appreciate the
said fact and wrongly fastened liability upon the appellant-
Insurance Company. Hence, the judgment and award passed by
the learned Tribunal to this extent is liable to be set aside.
6. On the other hand, the learned counsel for respondents 1 to
3/claimants has vehemently argued that in para 26 of the
impugned Award, the learned Tribunal has vividly discussed
about the contention raised by the appellants and came to the
conclusion that since the 1st respondent-owner of the motorcycle
has taken comprehensive policy, wherein, risk for the death of or
bodily injury to any person including person conveyed in or on
the motorcycle, provided such person is not carried for hire or
reward. It is further held that in Ex.B-3/policy, as admitted by
Rw-1, nowhere it is specifically mentioned that the policy does
not cover the risk of pillion rider, indeed, when the policy itself
recognizes that the seating capacity of the motorcycle is 1+1, it is
GSD, J
MACMA.No.5381 of 2008 and
X-Obj.No.5288 of 2009
reasonable to infer that the policy covers the pillion rider as well.
It is also held that the 2nd respondent also did not choose to file
the proposal form of the 1st respondent and thus drawn adverse
inference against the 2nd respondent. It is further observed that in
view of the clear clarification made in the conditions of the
policy that 2nd respondent/Insurance Company will indemnify the
1st respondent/insured in the event of an accident caused or
arising out of the use of the motorcycle against all sums which
the insured shall become legally liable to pay in respect of death
of or bodily injury to any person including person conveyed in or
on the motorcycle, therefore, it cannot be said that risk of the
pillion rider is not covered under the policy and that in the
absence of such evidence, relying on the conditions of the Policy,
it is held that the 2nd respondent/Company cannot escape its
liability and it is liable to indemnify the 1st respondent and is
liable to pay compensation to the claimants.
7. In view of the above categorical finding of the Tribunal
with regard to the conditions of policy, I do not find any merit in
the contentions raised by the learned Standing Counsel for the
appellant/Insurance Company. There is no illegality or manifest
error in the conclusions arrived at by the Tribunal.
8. Accordingly, MACMA.No.5381 of 2008 is dismissed.
GSD, J
MACMA.No.5381 of 2008 and
X-Obj.No.5288 of 2009
9. In Cross Objection No.5288 of 2009, the claimants sought
for enhancement of compensation from Rs.9,43,704/- to
Rs.20,00,000/- on the ground that the Tribunal has ignored the
relevant facts of the case and given its findings against law,
equity, good conscience and probabilities/weight of evidence. It
is contended that the Tribunal ought to have awarded interest at
the rate of 12% per annum and it ought to have applied the
maximum multiplier and that it ought to have awarded
conventional amounts of Rs.25,000/- each to the claimants. It is
further contended that the Tribunal has failed to appreciate
properly the future prospects of the deceased, who was a
Government employee. Accordingly, prayed for enhancement of
compensation.
10. In this case, undisputedly, the salary of deceased was
Rs.9,372/- per month. After deducting 1/3rd towards the personal
and living expenses of deceased, it comes to Rs.6,248/- per
month and Rs.74,976/- per annum. Applying the multiplier 15, it
comes to Rs.11,24,640/-. The future prospects at 40% would
come to Rs.6,74,784/- (Rs.9372 x 40/100 x 12 x 15). Thus, the
total loss of dependency comes to Rs.17,99,424/-.
11. Thus, this Court feels that the appellants-claimants are entitled
to the following amount towards compensation under various heads:
GSD, J
MACMA.No.5381 of 2008 and
X-Obj.No.5288 of 2009
Sl. Name of Head Awarded by Awarded by this
No. Tribunal Court
Rs. Ps. Rs. Ps.
1. Loss of earnings 9,23,704.00 17,99,424.00
2. Loss of consortium to 15,000.00 15,000.00
Claimant No.1.
3. Loss of love and affection 80,000.00
to Claimant Nos.2 and ------
3/minors.
4. Funeral expenses 5,000.00 15,000.00
5 Conventional amount ------- 70,000.00
TOTAL 9,43,704.00 Rs.19,79,424.00
12. In the result, the Cross Objections No.5288 of 2009 is allowed
by enhancing the compensation amount awarded by the Tribunal from
Rs.9,43,704/- to Rs.19,79,424/-. The enhanced amount will carry
interest at 7.5% p.a. from the date of order passed by the Tribunal i.e.
10.06.2008 till the date of realization, payable by respondents 1 and 2
jointly and severally. The amount of compensation shall be
apportioned amongst the claimants in the ratio as ordered by the
Tribunal.
13. Accordingly, MACMA.No.5381 of 2008 is dismissed and
Cross-Objection No.5288 of 2009 is allowed. There shall be no order
as to costs. Pending miscellaneous applications, if any, shall stand
closed.
____________________
JUSTICE G.SRI DEVI
GSD, J
MACMA.No.5381 of 2008 and
X-Obj.No.5288 of 2009
Date: 16.12.2021
ajr
