Smt. Police Jyothi, R.R.Dist. 3 ... vs K. Swapna, Krishna Dist. 2 Othrs
2022 Latest Caselaw 7015 Tel

     THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

                   M.A.C.M.A.No.1561 of 2015
JUDGMENT:

Dissatisfied with the quantum of compensation awarded

in the judgment and decree, dated 30.03.2012 passed in

O.P.No.1576 of 2007 on the file of the Motor Accidents Claims

Tribunal-cum-VI Additional District and Sessions Judge (Fast

Track Court), Vikarabad, Ranga Reddy District (for short "the

Tribunal"), the appellants/claimants preferred the present

appeal seeking enhancement of the compensation.

2. For the sake of convenience, hereinafter, the parties will

be referred to as per their array before the Tribunal.

3. Brief facts of the case are that the claimants filed a

petition under Section 166 of the Motor Vehicles Act, 1988

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

P.Ranga Reddy (hereinafter referred to as "the deceased"), who

died in a motor vehicle accident that occurred on 30.11.2007.

According to the claimants, on 30.11.2007, the deceased was

returning from M.R.F. Factory in an auto bearing No.AP 23 X

5075 and when the auto reached the limits of Sadasivpet

Village, one Lorry bearing No.AP 16 TU 5153, being driven by

MGP, J Macma_1561_2015

its driver in a rash and negligent manner, dashed the Trolley

Auto bearing No.AP 13 X 1206 and also dashed the auto in

which the deceased was travelling and thereafter, the said

lorry was turned turtle. As a result, the deceased sustained

multiple injuries and died on the spot. According to the

claimants, the deceased was 28 years at the time of accident,

working as Contract Labour in M.R.F. Factory and was

earning Rs.4,500/- per month and therefore, they filed the

O.P. claiming compensation of Rs.5,00,000/- against the

respondents, who are the previous owner, insurer and the

registered owner of the offending vehicle.

4. Before the tribunal, while the owner of the vehicle,

respondent No. 1 stood ex parte, the insurance company,

respondent No. 2 filed counter denying the manner in which

the accident took place, including the age, avocation and

income of the deceased. It is specifically contended that the

present owner of the offending lorry was not made as party to

the petition. It is further contended that the driver of the

offending vehicle, lorry, was not having valid driving licence at

the time of the accident. It is also stated that the quantum of

MGP, J Macma_1561_2015

compensation claimed is excessive, baseless and prayed to

dismiss the petition.

5. Respondent No.3, who was impleaded as per the orders

in I.A.No.106 of 2011, dated 27.05.2011, filed counter

contending that the driver of the offending vehicle was having

valid and subsisting driving licence at the time of the

accident. It is also stated that he is the registered owner of

the crime lorry and that the offending vehicle was validly

insured with respondent No.2 and the policy was in force as

on the date of the accident, as such, respondent No.2 alone is

liable to pay the compensation.

6. Considering claim, counters and the oral and

documentary evidence available on record, the tribunal held

that the accident occurred due to the negligent driving of the

lorry by its driver and accordingly awarded an amount of

Rs.3,96,000/- with interest at 7.5% per annum payable by

respondent No.3 only while dismissing the claim against

respondent Nos.1 and 2 as there is breach of policy

conditions. Dissatisfied with the quantum of compensation

MGP, J Macma_1561_2015

and also exonerating the Insurance Company from its

liability, the claimants filed the present appeal.

7. Heard both sides and perused the record.

8. The contention of the learned counsel appearing for the

appellants is that the claimants have asserted that the

deceased was working as Contract Labour in M.R.F. Factory

and earning Rs.4,500/- per month, and in the absence of any

rebuttal evidence in relation thereto, the Tribunal ought to

have accepted the avocation and the income of the deceased,

but erroneously fixed the income of the deceased at

Rs.3,000/- per month. It is further contended that the

claimant Nos.2 and 3, being the minor children, and claimant

No. 4, being mother of the deceased, ought to have been

granted parental consortium of Rs.40,000/- each and filial

consortium of Rs.40,000/-, respectively, in view of the

judgment of the Apex Court in Magma General Insurance

Company Limited v. Nanu Ram @ Chuhru Ram and

others1. Further, as per the decision of the Apex Court in

National Insurance Company Limited Vs. Pranay Sethi

(2018) 18 SCC 130

MGP, J Macma_1561_2015

and others2, the claimants are entitled to addition of 40%

towards future prospects to the established income of the

deceased. It is further contended that as per the decision of

the Apex Court reported in Sarla Verma v. Delhi Transport

Corporation3, the appropriate multiplier, considering the age

of the deceased as 30 years, is '17', but not '16', as was

applied by the tribunal. It is further contended that though

the driver of the Lorry was having valid driving licence at the

time of the accident, the Tribunal erred in exonerating the

insurance company from the liability to pay the

compensation.

9. On the other hand, the learned Standing Counsel for

the respondent No.2, Insurance company, has contended that

in the absence of producing any evidence, either oral or

documentary, to prove the avocation of the deceased as

Contract Labour and his earnings, the Tribunal has rightly

assessed the income of the deceased Rs.3,000/- per month

and rightly awarded the just and reasonable compensation

which needs no interference by this Court. It is also

2017 ACJ 2700

2009 ACJ 1298 (SC)

MGP, J Macma_1561_2015

contended that the driver of the Lorry was not having valid

driving licence at the time of the accident and as there was

breach of terms and conditions of the Policy, the Tribunal has

rightly exonerating the Insurance Company from its liability.

10. The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is

not challenged by either of the respondents.

11. As regards the quantum of compensation, though the

claimants claimed that the deceased was a Contract Labour

and earning Rs.4,500/- per month, since the claimants did

not substantiate the claim as such by adducing any evidence,

the Tribunal has taken the income of the deceased at

Rs.3,000/- per month. However, considering the age of the

deceased and the prevailing minimum wages at the relevant

point of time, this Court is inclined to fix the monthly income

of the deceased at Rs.4,500/- per month as claimed by the

claimants. Considering the fact that the age of the deceased

at the time of accident was below 40 years, the claimants are

entitled to addition of 40% towards future prospects to the

established income, as per the decision of the Hon'ble

MGP, J Macma_1561_2015

Supreme Court in Pranay Sethi (supra). Therefore, the

future monthly income of the deceased comes to Rs.6,300/-

(Rs.4,500/- + Rs.1800/-). From this, 1/4th is to be deducted

towards personal expenses of the deceased following the

decision in Sarla Verma (supra) since there are four

dependents. After deducting 1/4th therefrom towards his

personal and living expenses, the contribution of income by

the deceased to the family comes to Rs.4,725/- per month.

Since the age of the deceased was 30 years as held by the

Tribunal, the appropriate multiplier is '17' as per the

guidelines laid down by the Apex Court in Sarla Verma

(supra). Adopting multiplier '17', the total loss of dependency

would be Rs.4,725/- x 12 x 17 = Rs.9,63,900/-. That apart,

the claimants are entitled to Rs.77,000/- under the

conventional heads as per the decision of the Apex Court in

Pranay Sethi (supra). Further, since the claimant Nos. 2

and 3 are minor children of the deceased, this Court is

inclined to award a sum of Rs.40,000/- each to claimant Nos.

2 and 3 under the head of parental consortium as per the

decision of the Apex Court in Nanu Ram @ Chuhru Ram

MGP, J Macma_1561_2015

(supra). Thus, in all, the claimants are entitled to

Rs.11,20,900/-.

12. At this stage, the learned Counsel for the Insurance

company submits that the claimants claimed only a sum of

Rs.5,00,000/- as compensation and the quantum of

compensation which is now awarded would go beyond the

claim made which is impermissible under law.

13. In view of the Judgments of the Apex Court in Laxman

@ Laxman Mourya Vs. Divisional Manager, Oriental

Insurance Company Limited and another4 and Nagappa

Vs. Gurudayal Singh5 the claimants are entitled to get just

compensation even if it is more than the amount what was

claimed by the claimants.

14. Coming to the aspect of liability of payment of

compensation, admittedly, as seen from Ex.B3, Driving

Licence, the driver of the Lorry was having non-transport

licence valid upto 18.08.2017 and transport licence valid

upto 20.10.2007. Ex.B3 further discloses that the said

(2011) 10 SCC 756

2003 ACJ 12 (SC)

MGP, J Macma_1561_2015

licence was renewed on 04.12.2007. Since the accident

occurred on 30.11.2007 and the licence was renewed on

04.12.2007, there is breach of terms and conditions of the

Insurance Policy as rightly held by the Tribunal. But the fact

remains that by the time of accident, the offending vehicle

was insured with the 2nd respondent and Ex.B.2 policy was

very much in force. In the case of third party risks, as per the

decision in National Insurance Company Ltd. V. Swaran

Singh and others6, the insurer had to indemnify the

compensation amount payable to the third party and the

insurance company may recover the same from the insured.

In the said decision, the Apex Court considered the doctrine

of "pay and recover" examined the liability of the insurance

company in cases of breach of policy condition due to

disqualifications of the driver or invalid driving license of the

driver and held that in case of third party risks, the insurer

has to indemnify the compensation amount to the third party

and the insurance company may recover the same from the

insured. Recently, the Apex Court in the case of Shamanna

v. The Divisional Manager, the Oriental Insurance

(2004) 3 SCC 297

MGP, J Macma_1561_2015

Company Limited and Others7, following its earlier decision

in Swaran Singh (supra), reiterated that "even if the driver

does not possess any driving license, still the insurer is liable

to pay the compensation and that he can recover the award

amount from the owner of the offending vehicle after paying the

amount." In view of the above, the Insurance Company is

directed to pay the compensation amount at the first instance

and then recover the same from the registered owner of the

vehicle i.e., respondent No.3.

15. Accordingly, M.A.C.M.A. is allowed. The compensation

amount awarded by the Tribunal is enhanced from

Rs.3,96,000/- to Rs.11,20,900/-. The enhanced amount shall

carry interest at 7.5% p.a. from the date of petition till the

date of realization. The enhanced amount shall be

apportioned in the manner as ordered by the Tribunal. Time

to deposit the entire compensation is two months from the

date of receipt of a copy of this judgment. On such deposit,

the major claimants are entitled to withdraw their respective

share amounts without furnishing any security. However, the

2018 ACJ 2163

MGP, J Macma_1561_2015

claimants are directed to deposit the deficit court fee on the

enhanced amount. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ SMT. M.G.PRIYADARSINI, J 27.12.2022 Tsr

MGP, J Macma_1561_2015

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A.No.76 of 2014

DATE:76 of 2014

MGP, J Macma_1561_2015

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A.No.1561 of 2015

DATE: -12-2022