Telangana High Court
The New India Assurance Company ... vs Sada Yadagiri And Another on 22 October, 2021
Bench: N.Tukaramji
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A. No.56 of 2015
JUDGMENT:
The insurer / 2nd respondent filed this Appeal challenging the
decree and order dt.05.10.2005 in MVOP. No.1582 of 2003 on the file of
Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car
Bomb Blast Case - cum - Additional Family Court - cum - XXIII
Additional Chief Judge, Hyderabad on the aspects of liability and the
quantum granted by the lower Court.
Brief facts:
2. The case of 1st respondent / petitioner is that on 01.02.2003, at
about 12:45 p.m. while he was proceeding on his motor-cycle bearing
No.AP-28-S-2436 as rider along with his friend, from Bhagyanagar
Water Works Section to JNTU Water Works Section, one seven-seater
Auto bearing No.AP-9-W-1098 came in high speed and dashed the
petitioner's vehicle. As a result, he suffered injuries and was shifted to
Kavya Hospital, later to Nizam's Institute of Medical Sciences for
treatment. Further, a case was registered in Cr.No.70/2003 by the P.S.
Kukatpally; that the injured suffered in the accident caused permanent
disability, hence filed petition claiming compensation under different
heads.
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MVOP.No.1582 of 2003
3. The 1st respondent / petitioner filed O.P.No.1582 of 2003 seeking
compensation for the injuries sustained by him during the accident
which occurred on account of rash and negligent driving of the driver of
2nd respondent / 1st respondent.
4. In the counter, the appellant / 2nd respondent disputed the manner
of accident, involvement of the offending vehicle and rash and negligent
driving of driver of the vehicle; and also the nature of work, occupation
and income of petitioner, and insisted for strict proof.
5. Before the Court below, the petitioner / claimant examined
himself as P.W.1, and Exs.A.1 to A.11 were marked. A Civil Surgeon in
Orthopaedics was also examined as P.W.2.
6. After considering the rival contentions of the parties and after due
enquiry, the Court below partly allowed the claim petition by granting
proportionate costs by awarding a sum of Rs.3,70,234/- with subsequent
interest at 6 per cent per annum from the date of petition till the date of
realization payable by both the respondents with joint and several
liability.
7. Aggrieved thereby, the appellant / 2nd respondent / insurer herein
filed the present Appeal.
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Grounds of Appeal :
8. The counsel for appellant / 2nd respondent contended that the
driver of the offending vehicle was not having a valid and effective
Driving License at relevant point of time, which is policy violation, as
such, the insurer shall not be held liable. Even otherwise, the multiplier
applied to evaluate the loss of future earnings is improper, and the
amount awarded is excessive. Further, he relied on the decision of Sarla
Verma and others v. Delhi Transport Corporation and another1.
9. The 1st respondent / claim petitioner was served notice and also
given opportunities for hearing but he did not chose to avail.
Points for determination :
10. In view of the contentions raised, the following points arise for
examination, viz.,
(a) Whether the appellant / insurer established the fact of policy
violation to absolve its liability ?
(b) Whether the multiplier employed in determining the compensation
is proper and whether the awarded amount is excessive ?
Point (a) :
11. The appellant / 2nd respondent pleaded that as the driver of the
offending vehicle has no proper and effective driving license, it is
violation of the policy condition. In this regard, it is well-settled law that
the burden lies on the insurer to prove the policy violation including the
2009 ACJ 1298
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invalid / ineffective driving license. In the enquiry before the Tribunal,
the appellant / insurer placed no material to substantiate its contention on
the driving licence. Be that as it may, it is to be noted here that the 1st
respondent / petitioner is a third-party to the offending vehicle.
12. In National Insurance Co. Ltd. Vs. Swaran Singh and others2,
the Supreme Court held as follows :
"110. ... ... ...
(iii) The breach of policy condition e.g. disqualification of the driver or invalid
driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149,
has to be proved to have been committed by the driving licence or disqualification of
the driver for driving at the relevant time, are not in themselves defences available
to the insurer against either the insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in the manner of fulfilling the
condition of the policy regarding use of vehicles by a duly licensed driver or one
who was not disqualified to drive at the relevant time."
13. In the light of the above noted factual, legal position, and as there
is no other tenable evidence to consider otherwise and as the 1st
respondent / petitioner is third party to the offending vehicle, it shall be
held that the appellant / insurer's claim on this point fails on merit.
Point (b) :
14. The counsel for appellant / 2nd respondent fairly submitted that
there is no dispute as to the amounts awarded under the other heads,
except the multiplier put in for computing the loss of future earning
2004 (3) SCC 297
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capacity / income, wherein the Tribunal ought to have applied the
multiplier as enumerated in Sarla Verma (1 supra).
15. On this aspect, the record is disclosing that the claim petition was
filed under Section 166 of Motor Vehicles Act, 1988. But, the Tribunal,
while evaluating the loss of future earnings, applied the multiplier in the
Schedule II prescribed under Section 163-A of the M.V. Act. In Sarla
Verma (1 supra), the Hon'ble Supreme Court analysed the structured
formula prescribed in Schedule II for Section 163-A of the Act and the
multipliers employed in different authorities and propounded the
multipliers for the claims under Section 166 of Motor Vehicles Act,
1988 as in U.P. State Road Trans. Corpn. v. Trilok Chandra3,
clarified in New India Assurance Co. Ltd. v. Charlie4.
16. In view of the above settled law, the discord raised by the
appellant / insurer shall succeed. Therefore, the assessment of loss of
future earnings of the 1st respondent / petitioner shall be assessed with
the appropriate multiplier in the Column No.4 of the multiplier
tabulation given in Sarla Verma (1 supra).
17. Accordingly, the loss of future earnings awarded to the 1st
respondent / claimant shall be re-calculated. Further, in absence of any
dispute over the awarded amounts under other heads by the Tribunal, the
same are liable to be confirmed.
1996 ACJ 831 (S.C.)
2005 ACJ 1131 (S.C.)
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18. Thus, the 1st respondent / petitioner is entitled to compensation in
the following terms :
Description Amount (Rs.)
Loss of future earnings @ 15 as 3,10,770/-
multiplier ::
Rs.41,436 x 15 =6,21,540/-
(-) 50% of Rs.6,21,540/-
=3,10,770/-
Pain and suffering 15,000/-
Loss of amenities 5,000/-
Transportation and nourishment 15,000/-
Medical Bills 3,747/-
TOTAL :: 3,49,517/-
19. In the result, the Appeal is partly allowed by modifying the
multiplier to 15% in assessment of loss of future earnings for the
physical disability. The amounts under other heads and the interest
awarded by the Tribunal are confirmed.
20. The rest of the Appeal is dismissed. No costs.
21. In the result, the MACMA is party allowed as above.
22. As a sequel, miscellaneous petitions pending if any in this Appeal,
shall stand closed.
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N. TUKARAMJI, J
Date: 22.10.2021
Ndr
