Reliance General Insurance ... vs Chitrala Chandrakala And 7 Others
2021 Latest Caselaw 4708 Tel

             HON'BLE SRI JUSTICE P. NAVEEN RAO

                                   AND

             HON'BLE SMT. JUSTICE P. SREE SUDHA

                         MACMA No.471 of 2020


                               JUDGMENT

(per Justice P.Sree Sudha)

1. This appeal is preferred by Reliance General Insurance

Company Limited, appellant/third respondent, aggrieved by the

order and decree dated 19.12.2019 in M.V.O.P. No. 67 of 2017 on

the file of the learned Motor Vehicle Accidents Claims Tribunal-

cum-II Additional District Judge, Mancherial (hereinafter referred

to as 'the Tribunal').

2. The said M.V.O.P. was filed under Section 166 (1) (c), Sec.

163-A of the Motor Vehicles Act, r/w Rule 455 of A.P.M.V. Rules

1989 by the original petitioners (Respondents 1-5 herein) seeking a

compensation of 40,00,000/- with interest @ 12% per annum

from the date of petition till the date of realization on account of

the death of Chitrala Mallaiah in a Motor Vehicle accident from the

driver, owner and insurers of the crime vehicle that caused the

accident.

3. The deceased was working as a Mason in Singareni Collieries

Company Limited. Perusal of the impugned judgement shows that

he met with an accident on 30.05.2016 at about 7.30 PM while

returning to his home on his motor cycle bearing No. AP 01 AF

0960, due to the rash and negligent driving of the driver of the

tractor and trolley bearing No. TS 01 UB 1921 & TS 01 UB 4863,

as a result of which, he received bleeding injuries on his head and

other parts of the body, fracture to his right leg and died on the

spot. Therefore, Respondent Nos.1 to 5 herein filed a claim petition

seeking compensation of 40,00,000/-. The Tribunal after

appreciation of entire oral and documentary evidence on record

awarded compensation of 51,50,879/- with interest @ 7% p.a.

from the date of petition, till the date of deposit or realization.

4. The tribunal reached the said award of compensation relying

on the Judgement of the Apex court in Sarla Verma v. Delhi

Transport Corporation and Another1. The calculation made by

the tribunal is reflected in the table below.

Age of the deceased                               55-57 years


Income of the deceased                               51,221/- p.m.


                                                     6,14,652/- p.a.


Deduction towards personal expenses               1/4


                                                     1,53,663/-


Income after deduction (multiplicand)                4,60,989/- p.a.





Compensation under the head of loss of               50,70,879/-

estate/         loss        of      dependency

(Multiplier*Multiplicand)


Funeral Expenses                                     20000




1   2009 ACJ 1298





Transportation                                   20000


Loss of consortium                               40000


Total Compensation                               51,50,879/-

5. The learned counsel for the appellant herein contended that

the claim petition ought to have been dismissed by the Tribunal as

the driver of the Tractor and Trailer didn't have a valid and

effective driving license. Even the chargesheet was filed u/s 180

and 181 of the M.V. Act. S. 180 deals with allowing of

unauthorised persons to drive vehicles. The counsel for the

appellants submitted that the owner of the crime vehicle permitted

the driver to drive the vehicle despite knowing that he didn't

possess a valid driving license. The counsel relied on the

Judgement of the Apex Court in Sardari v. Sushil Kumar2,

wherein it was held that the owner of the vehicle has a statutory

obligation to see that the driver of the vehicle, whom he authorized

to drive the same, holds a valid license. The counsel also

submitted that this also constituted a violation of Sec. 3 of the

Motor Vehicles Act and these aspects were overlooked by the

tribunal while granting the award.

6. The counsel for appellant also contended that the tribunal

ought to have considered the fact that the Tractor is registered for

non-transportation purpose and to be used for agricultural

operations or personal usage of the registered owner, but it was

being used for commercial purpose by the owner, thereby

committing a fundamental breach of contract. It is also submitted 2 2008 ACJ 1307

that the trailer is not insured and is not having a policy, and thus

the owners of the trailer are liable to pay the entire compensation.

It was submitted that the appellant shall be exonerated, for the

reason of non-possessing of license by the driver authorised by the

owner and the trailer not having the policy.

7. The appellants also sought to invoke negligence on part of

the deceased as he was not wearing a helmet while riding a motor

cycle, which is violative of prevailing rules and regulations.

8. It has also been submitted by the Appellants that the

claimants/ Respondent Nos. 2-4 are majors and not dependents,

among whom Respondents 2 and 4 are married and staying

separately, whereas Respondent 3 is employed in Singareni

Collieries. It is also brought to the notice of the court that during

the pendency of the OP the Respondent 5 had passed away.

Hence, it was submitted that ½ shall be deducted as personal

expenses instead of ¼ as done by the Tribunal.

9. Another submission of the appellant was that the age of the

deceased was 57 years, which is substantiated with the evidence of

PW3 wherein his date of birth is seen as 11.02.1959 as per the

entry in the Service Register. Hence, it was contended that the

tribunal erred in granting a multiplier of 11 instead of 9.

Furthermore, the income considered by the tribunal was the gross

income of the deceased and included EPF, conveyance and other

allowances. The tribunal ought to have taken the net income of

the deceased. It was also submitted that interest should be

granted @ 6% p.a. which is the prevalent rate in the market, and

not @ 7%.

10. During the course of arguments, the learned counsel for

appellants confined themselves to the total compensation amount

and didn't get into the questions of violation of terms and

conditions. We shall restrict ourselves to the arguments which

were substantiated by the appellants.

11. After making deductions of the various allowances from the

gross salary of the deceased, the deceased's net salary comes to

43,699/- p.m.

12. The tribunal had made a reduction of ¼ towards personal

expenses and the appellants argued that since P5 died during the

pendency of the OP and the P2-4 are majors and not dependants;

the deduction for personal expenses should be ½. The 5-Judge

Bench of the Apex court in National Insurance Company Limited v.

Pranay Sethi3, while upholding the principle laid down in Sarla

Verma held in case of married deceased the deduction would be

1/3 for 2-3 dependants, ¼ for 4-6 dependants and 1/5 for more

than 6 dependants. In this Judgement, the deduction of ½ was

reserved solely for bachelors. Considering the submissions made

by the appellant that the mother of the deceased had died and the

Claimants/ Respondents 2-4 seem to be independent, we shall

apply the maximum deduction which has been prescribed for

married persons by the Apex Court and grant a deduction of 1/3.

13. It is observed that the Tribunal erred in ignoring the

component of Future Prospects while calculating the compensation

amount. The Apex court in Pranay Sethi (supra) laid down the

(2017) 16 SCC 680

addition of future prospects for deceased with a permanent job,

aged between 50-60 years at 15%.

14. To calculate the multiplier, the age of the deceased has to be

conclusively decided. The tribunal didn't conclude on an age for

the deceased and held that it was between 55 and 57 years, basing

it on exhibits A8 and A10, the driving license and pan card of the

deceased, and went on to apply the multiplier of 11, which is

applicable up to the age of 55. The deceased was an employee of

Singereni Collieries and as per the evidence of PW3; the deceased

was born on 11.02.1959 as per the service records. It is the view

of this Court that the entry in the service record regarding the date

of birth of the deceased is more authentic and acceptable, when

compared to the entries in Exhibits A8 and A10. Hence, the age of

the accused as on the date of the accident i.e., 30.05.2016 was 57

years. As per the multiplier table approved by 3-judge bench of

the Apex Court in Reshma Kumari v. Madan Mohan4, which is

the settled position of law in this regard, the multiplier for age 56-

60 is 9. So, the multiplier to be applied in this matter would be 9,

as the age of the deceased was 57 years on the date of the

accident.

15. The Tribunal granted amounts of 20000 for funeral

expenses, 20000 for transportation and 40000 for loss of

consortium. The Apex Court in Pranay Sethi (Supra) fixed the

amounts for conventional heads at 16,500/- for funeral

expenses, 16,500/- for loss of estate and 44,000/- as loss of

consortium (enhanced in 2020) and the same shall be granted in

(2013) 9 SCC 65

the current case, instead of the amounts granted by the Tribunal.

Under these conventional heads, a total of 2,09,000/- is granted

to the deceased.

16. The calculation of compensation is drawn out in the table

below

Gross Income of the Deceased 51,221/- p.m.

Net Income of the Deceased 43,699/- p.m.

5,24,388/- p.a.

Deduction towards personal expenses 1/3

1,74,796/-

Loss of contribution to the family                3,49,592/- p.a.


Future Prospects                              15%


                                                  52,438.80/-


Loss of contribution + future prospects           4,02,030.80/-

(multiplicand)





Loss of dependency                                36,18,277.20/-


(Multiplicand*Multiplier)


Funeral Expenses                                  16,500/-


Loss of Estate                                    16,500/-





Loss of Consortium for P1-P4                           44,000/- each


                                                       1,76,000/-


Total Compensation                                     38,27,277/-

17. As seen from the table, the total compensation for the

claimants comes to 38,27,277/-. The counsel for the appellants

has disputed the interest rate imposed by the tribunal. In order to

determine the interest rate to be granted, we shall refer to the

interest rate granted by the Supreme Court in its recent

Judgements for Motor Vehicle Accident awards. In the case of

Rasmita Biswal v. Divisional Manager, National Insurance

Company Ltd.5, dated 08.12.2021 the apex court granted an

interest of 7.5%. In another case before the Supreme Court, N.

Jayasree v. Cholamandalam MS General Insurance Company

Ltd.6, decided on 25.10.2021, the interest granted was 7.5% as

well. By placing reliance on these recent judgements of the

Supreme Court, this Court is inclined to grant an interest at the

rate of 7.5% p.a.

18. The Appellant, R6 and R7, being held jointly and severally

liable are directed to deposit the entire amount of compensation

within a period of 1 month (30 days) from the date of receiving

orders.

19. The Tribunal while making the apportionment, granted a

'loss of love and affection' to the children of the deceased to the

2021 SCC OnLine SC 1193

2021 SCC OnLine SC 967

sum of 3,00,000/- each. In a recent 3-Judge bench of the Apex

court, in United India Insurance Company Ltd. v. Satinder

Kaur7, it has been laid down that "The tribunals and High Courts

are directed to award compensation for loss of consortium, which

is a legitimate head. There is no justification to award

compensation towards loss of love and affection as a separate

head."

20. As apportionment of the compensation, the children of the

deceased, P2-4 are permitted to withdraw an amount of

4,00,000/- each. P1 who was aged 51 years as on the date of the

incident is permitted to withdraw the balance amount along with

the interest accrued on it.

21. Accordingly, this appeal is disposed of. There shall be no

order as to costs.

22. Miscellaneous Petitions, if any, pending in this appeal shall

stand closed in the light of this final order.

___________________

P.NAVEEN RAO,J

___________________

P.SREE SUDHA, J

31st DECEMBER, 2021/pgs

AIR 2020 SC 3076