Reliance General Insurance ... vs Arram Yerram Erram Sudeshna, ...
2022 Latest Caselaw 7075 Tel

         THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                           AND
       THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                      M.A.C.M.A.No.2875 of 2016

JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)


       This appeal, under Section 173 of the Motor Vehicles Act,

1988 (for short, 'the Act'), is filed by the appellant-Reliance

General Insurance Company Limited, challenging the order, dated

27.08.2016, passed in MVOP No.258 of 2015 by the Chairman,

Motor Accidents Claims Tribunal-cum-V Additional District Judge at

Karimnagar (for short, 'the Tribunal').


2.     We have heard the submissions of Sri T.Mahender Rao,

learned Standing Counsel for the appellant-Insurance Company,

Sri Rama Chandar Rao Vemuganti, learned counsel for the

respondent Nos.1 to 3/claimants and perused the record.

3. Learned Standing Counsel for the appellant-Insurance

Company would contend that the deceased Arram @ Yeeram @

Erram Rami Reddy @ Ram Reddy died in a motor accident that

occurred on 03.09.2014 due to his own rash and negligent driving

of the motorcycle bearing registration No.AP-15-S-8914, but not

due to the rash and negligent driving of the driver of Swaraz Dr.SA, J & NBK, J MACMA No.2875 of 2016

Mazda van bearing registration No.AP-15-X-5235. Though the

driver of the Swaraz Mazda van bearing registration No.AP-15-X-

5235 pleaded the same before the Tribunal by filing counter, the

Tribunal erroneously held that the subject accident occurred due to

rash and negligent driving of the driver of Swaraz Mazda van

bearing registration No.AP-15-X-5235. Such a finding by the

Tribunal is unsustainable under law. The Tribunal at least ought to

have held that the subject accident occurred due to contributory

negligence of the deceased who was driving the motorcycle.

Further, the Tribunal erred in taking the gross annual income of

the deceased as Rs.7,00,194/- relying on income tax returns under

Exs.A7, A12, X2 and X3 and further adding 15% towards future

prospects. The Tribunal failed to see that the land owned by the

deceased will be inherited by the claimants and therefore, the

normal rule of depravation of income is not applicable in the cases

of agriculturists. Further, the claimants would continue to get the

income from the rice mill business of the deceased, since there is

no evidence with regard to loss sustained by them after the death

of the deceased. Further, the wife of the deceased who deposed

as PW.1 admitted in her evidence that the deceased was a white

ration card holder and that his income was Rs.16,000/- per

annum. Further, the compensation of Rs.2,00,000/- awarded by Dr.SA, J & NBK, J MACMA No.2875 of 2016

the Tribunal towards 'love and affection' is exorbitant, so also

Rs.2,00,000/- awarded under the head 'loss of estate'. It is also

contended that the Tribunal ought to have taken the average

income of the deceased for the assessment years 2011-12 to

2013-2014, but not the income of the deceased for the

assessment year 2013-2014 and ultimately prayed to reduce the

compensation awarded by the Tribunal by taking the above

submissions into consideration.

4. On the other hand, the learned counsel for the respondent

Nos.1 to 3/claimants would contend that there is specific evidence

of PW.2/eye witness to the subject accident that the subject

accident took place due to the rash and negligent driving of the

driver of the Swaraz Mazda Van bearing registration No.AP-15-X-

5235. The criminal case records pertaining to the subject accident

under Ex.A1-certified copy of FIR and Ex.A2-certified copy of

charge sheet substantiates the same. Therefore, the Tribunal is

justified in holding that there was no contributory negligence on

the part of the deceased in the occurrence of the subject accident.

The deceased was an agriculturist and partner in a rice mill. He

owned agricultural lands and was raising commercial crops therein.

The deceased was having two PAN cards, one in the name of the Dr.SA, J & NBK, J MACMA No.2875 of 2016

individual and the other in the name of HUF. The Tribunal rightly

took into consideration Ex.X2 and X3-income tax returns for the

assessment year 2013-2014 under the individual and under HUF

and rightly assessed the gross income of the deceased as

Rs.7,00,194/-. Further, the Tribunal rightly added 15% towards

future prospects and rightly assessed the annual income of the

deceased as Rs.7,53,498/-. Further, the Tribunal rightly took the

age of the deceased as 57 years 08 months 26 days, rightly

applied the multiplier '9' to the age of the deceased and justified in

granting a total compensation of Rs.50,55,988/- with interest @

7.5% per annum from the date of petition till the date of

realisation, by taking all the relevant factors into consideration.

There are no circumstances to interfere with the impugned order

and ultimately prayed to dismiss the appeal by confirming the

order under challenge.

5. In view of the above submissions, the points that arise for

determination in this appeal are as follows:

1) Whether the deceased died in the subject accident occurred on 03.09.2014 at Sulthanpur Cross Road due to the rash and negligent driving of the driver of the Swaraz Mazda Van bearing registration No.AP-15- X-5235? (or) Whether the deceased drove the vehicle, i.e., Hero Honda Passion Plus motorcycle bearing registration No.AP-15-S-8914 in a rash and negligent manner and was himself responsible for his death? (or) whether there was contributory Dr.SA, J & NBK, J MACMA No.2875 of 2016

negligence on the part of the driver of the Swaraz Mazda van bearing registration No.AP-15-X-5235 as well as the deceased in the occurrence of the subject accident?

2) Whether the Tribunal is justified in taking the gross annual income of the deceased as Rs.7,00,194/-?

3) Whether the Tribunal is justified in taking 15% of the gross annual income towards increase in income for future prospects?

4) Whether the Tribunal is justified in granting a total compensation of Rs.50,55,988/- to the respondent Nos.1 to 3/claimants?

5) Whether the impugned order, dated 27.08.2016, passed in MVOP No.258 of 2015 by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge at Karimnagar, is liable to be set aside or modified?

POINTS:-

6. The material placed on record reveals that on 03.09.2014 at

about 07:30 AM, the deceased left his house at Aitharajpalli Village

to go to his agricultural fields on his Hero Honda Passion Plus

Motorcycle bearing registration No.AP-15-S-8914 and when he

reached Sulthanpur Cross Road and while crossing the road, one

Swaraz Mazda Van/Bus bearing registration No.AP-15-X-5235

came with high speed in rash and negligent manner from opposite

direction and dashed against the motorcycle as a result of which,

the deceased died on the spot.

Dr.SA, J & NBK, J MACMA No.2875 of 2016

7. Before the Tribunal, the claimant No.1/wife of the deceased

was examined as PW.1, an eye witness to the subject accident was

examined as PW.2 and an Income Tax Inspector was examined as

PW.3 and Exs.A1 to A12 were marked. On behalf of the

respondents, RW.1 and RW.2 were examined and Ex.B1 was

marked. Exs.X1 to X3 were marked through PW.3.

8. Ex.A1 is the certified copy of the FIR. Ex.A2 is the certified

copy of charge sheet. Ex.A3 is the certified copy of Inquest

Report. Ex.A4 is the certified copy of PME Report. Ex.A5 is the

certified copy of MVI Report. Ex.A6 is certified copy of Form 54.

Ex.A7 is the attested online copy of individual income tax return

for the year 2011-12 vide Pan Card No.AFUPA 4829E obtained

from the Income Tax Office, Karimnagar. Ex.A8 is the attested

online copy of individual income tax return for the year 2012-13

vide Pan Card No.AFUPA 4829E obtained from Income Tax Office,

Karimnagar. Ex.A9 is the attested online copy of individual Income

Tax Return for the year 2013-13 vide Pan Card No.AFUPA 4829E

obtained from the income tax office Karimnagar. Ex.A10 is the

attested online copy of individual Income Tax Return for the year

2011-12 vide Pan Card No.AAFHA7710J obtained from the income

tax office, karimnagar. Ex.A11 is the attested online copy of Dr.SA, J & NBK, J MACMA No.2875 of 2016

individual income tax return for the year 2012-13 vide Pan Card

No.AAFHA7710J obtained from the income tax office, Karimnagar.

Ex.A12 is the attested online copy of individual income tax return

for the year 2013-14 vide Pan Card No.AAFHA7710J obtained from

the income tax office, Karimnagar. Ex.B1 is the true copy of policy.

Ex.X1 is the authorization letter. Ex.X2 is the Income Tax Returns

of A.Ram Reddy for the year 2011-12 to 2013-14 (individual PAN

No.AFUPA4829E) Ex.X3 is the Income Tax Returns of A.Ram Reddy

for the year 2011-12 to 2013-14 (HUF) with PAN No.AAFHA7710J.

9. P.W.1 reiterated all the facts in the claim petition in her chief

affidavit. She denied the negligence on the part of the deceased in

the occurrence of the subject accident. In the criminal case record

pertaining to the subject accident, i.e., Ex.A1-certified copy of FIR,

Ex.A2-certified copy of Charge Sheet, the name of driver of Swaraz

Mazda Van/Bus bearing registration No.AP-15-X-5235 was shown

as accused. Ex.A.2-charge sheet was filed after due investigation.

Further, Ex.A5-certified copy of MVI Report discloses that there

was no mechanical defect in the subject Swaraz Mazda Van/Bus

bearing registration No.AP-15-X-5235. Apart from the evidence of

PW.1 and the criminal case record pertaining to the subject

accident, PW.2, who is said to be an eye witness, was examined.

Dr.SA, J & NBK, J MACMA No.2875 of 2016

As per the chief affidavit of PW.2, on 03.09.2014, he went to

Sulthanpur village and while he was returning to his village, when

he reached at the outskirts of Aitharajpalli village, near Sulthanpur

Cross Road, at about 07.30 AM, the offending Swaraz Mazda

Van/Bus was proceeding ahead of him in rash and negligent

manner and dashed the deceased from opposite direction, which

resulted in spontaneous death of deceased. It is further deposed

that the subject accident was caused due to rash and negligent

driving of the driver of offending Swaraj Mazda Van/Bus and they

informed about the death of deceased to his family members. In

the cross examination, PW.2 denied that there was negligence of

deceased in occurrence of the subject accident as he suddenly

crossed the road. On behalf of the respondents, the driver of the

offending Swaraz Mazda Van/Bus bearing registration No.AP-15-X-

5235 was examined as RW.1. He is an interested witness.

Certainly he would try to save himself. The appellant/Insurance

Company did not choose to examine any independent witness to

prove that the deceased was responsible for the subject accident

or that there was contributory negligence in the occurrence of the

subject accident. In view of the same, it can be safely concluded

that the subject accident occurred due to rash and negligent Dr.SA, J & NBK, J MACMA No.2875 of 2016

driving of the driver of the Swaraz Mazda Van/Bus bearing

registration No.AP-15-X-5235.

10. As far as the quantum of compensation granted by the

Tribunal is concerned, the deceased claimed to be agriculturist and

partner in M/s.Venkata Sai Ram Industries Parboiled Rice Milling,

Durshed, and earning Rs.60,000/- per month. To prove the same,

the claimants adduced the evidence of PW.3. As per evidence of

PW.3, he was working as Income Tax Inspector, Ward IV,

Karimnagar, and he was authorized to give evidence vide Ex.X.1-

Authorization letter. He deposed that he brought income Tax

returns of deceased who was having two PAN Cards, one in the

name of individual and another in the name of his HUF. Ex.X2 is

the income tax returns of the deceased as individual for three

years, i.e., from 2011-12 to 2013-2014. Ex.X3 is the income tax

returns of deceased as HUF for three years, i.e., from 2011-2012

to 2013-2014. As per Ex.X2, the individual income of the deceased

for the assessment year 2011-2012 was Rs.1,58,023/-, for the

assessment year 2012-2013 it was Rs.2,38,752/- and for the

assessment year 2013-2014 it was Rs.2,77,954/-. He further

deposed that as per Ex.X.3 the HUF income of the deceased for the

year 2011-2012 was Rs.1,51,000/-, for the assessment year 2012-

Dr.SA, J & NBK, J MACMA No.2875 of 2016

2013 was Rs.2,26,316/- and for the assessment year 2013-2014

was Rs.2,22,067/-. He further deposed that Ex.A.7 to 12 are the

attested online copies of income tax returns. Nothing was elicited

in the cross examination of PW.3 to discredit his testimony.

11. Learned Standing Counsel for the appellant/Insurance

Company, relying on two judgments of the Hon'ble Apex Court in

State of Haryana and another Vs. Jasbir Kaur and others1

and New India Assurance Company Limited Vs. Yogesh Devi

and others2, would submit that the Tribunal failed to see that the

land owned by the deceased will be inherited by the claimants and

therefore, the normal rule of depravation of income is not

applicable in the cases of agriculturists. Further, the claimants

would continue to get the income from the rice mill business of the

deceased, since there is no evidence with regard to loss sustained

by them after the death of the deceased. We find force in the said

submission of the learned Standing Counsel. In Jasbir Kaur's

case (2 supra), the Hon'ble Apex Court held as follows:

"The land possessed by the deceased still remains with the claimants as his legal heirs. There is, however, a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to the cases where agricultural income is the source."

2003 ACJ 1800

2012 Law Suit (SC) 100 Dr.SA, J & NBK, J MACMA No.2875 of 2016

12. In Yogesh Devi's case (1 supra), the Hon'ble Apex Court

held as follows:

"Coming to the case on hand, the claim is based on the assertion that the deceased owned agricultural land apart from the abovementioned three mini-buses. The High Court rejected the claim insofar as it is based on the income from the land, on the ground that the income would still continue to accrue to the benefit of the family. Unfortunately, the High Court failed to see that the same logic would be applicable even to the income from the abovementioned three buses. The asset (three mini-buses) would still continue with the family and fetch income."

13. In the instant case, as regards the individual income of the

deceased, Ex.X2 is the income tax returns of the deceased for the

year 2011-12 to 2013-14 with PAN No.AFUPA4829E. As per the

evidence of PW.3, which is in consonance with Ex.X2, the annual

income of the deceased for the Assessment year 2011-2012 is

Rs.1,58,023/-; the annual income of the deceased for the

Assessment Year 2012-2013 is Rs.2,38,752/-; and the annual

income of the deceased for the Assessment Year 2013-2014 is

Rs.2,77,954/-. The deceased was a business man. It is common

knowledge that there would be ups and downs in business.

Therefore, this Court deems it appropriate to take the average

income of the three assessment years as the gross annual income

of the deceased in his individual capacity, which comes to

Rs.2,24,910/-.

Dr.SA, J & NBK, J MACMA No.2875 of 2016

14. As regards the income of the deceased pertaining to HUF,

Ex.X3 is the income tax returns of the deceased (under HUF) for

the year 2011-12 to 2013-14 with PAN No.AAFHA7710J. As per

the evidence of PW.3, which is consonance with Ex.X3, the HUF

income of the deceased for the Assessment year 2011-2012 is

Rs.1,51,000/-; the HUF income for the Assessment Year 2012-

2013 is Rs.2,26,316/-; and the HUF income for the Assessment

Year 2013-2014 is Rs.2,22,067/-. It is common knowledge that

there would ups and down in business. Therefore, this Court

deems it appropriate to take the average income of the three

assessment years as the gross annual income of the deceased

pertaining to HUF, which comes to Rs.1,99,795/- rounded off to

Rs.1,99,800/-. Further, the deceased, being the head of the

family and Karta of the HUF, was managing the agricultural

operations and maintaining the joint family business. Hence, this

Court deems it appropriate to take 1/3rd of the gross annual

income of the deceased pertaining to HUF towards his services

rendered to the joint family, which comes to Rs.66,600/-. So, the

total annual income of the deceased (from HUF as well as

individual income) comes to Rs.2,91,510/- (Rs.2,24,910 +

Rs.66,600/-) Dr.SA, J & NBK, J MACMA No.2875 of 2016

15. As per the decision of the Hon'ble Apex Court in Rajesh and

others Vs. Rajbir Singh and others3, the future prospects for

the age group of 50 to 60 years should be taken as 15%. So, by

following the said principle, if 15% future prospects is added to the

income of the deceased, the gross annual income of the deceased

comes to Rs.3,35,237/- rounded off to Rs.3,35,240/-. From the

said annual income of the deceased, Rs.2,50,000/- is tax

exempted towards statutory deduction and from the income

ranging from Rs.2,50,000/- to Rs.5,00,000/-, 10% tax will be

deducted. So, the income tax on the annual income comes to

Rs.8,524/-. So, after deducting Rs.8,524/-, the actual annual

income of the deceased comes to Rs.3,26,716/- rounded off to

Rs.3,26,720/-. The age of the deceased as on the date of the

subject accident was 57 years 08 months 26 days and as such, the

appropriate multiplier applicable to the age of the deceased is '9'.

Thus, the total loss of dependency would come to Rs.29,40,480/-

(Rs.Rs.3,26,720/- x 9). Further, following the decision of the

Hon'ble Apex Court in National Insurance Company Limited

Vs. Pranay Sethi and others4, we deem it appropriate to grant

Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of

consortium and Rs.15,000/- towards funeral expenses. Thus, the

2013 ACJ 1403

(2017) 16 SCC 680 Dr.SA, J & NBK, J MACMA No.2875 of 2016

respondent Nos.1 to 3/claimants are entitled for a total

compensation of Rs.30,10,480/- (Rs.29,40,480 + Rs.70,000/-).

16. Ex.B1 is the true copy of the Insurance policy of the

offending Swaraj Mazda Van/Bus bearing registration No.AP-15-X-

5235, which was insured with the appellant herein. Further, while

answering point No.1, the Tribunal held that there was rash and

negligent driving on the part of the driver of the offending Swaraj

Mazda Van/Bus bearing registration No.AP-15-X-5235 and there

was no contributory negligence on the part of the deceased. The

material placed on record reveals that there is no violation of the

terms and conditions of the insurance policy. Therefore, the

respondent Nos.1 and 2, being the driver and the owner of the

offending Swaraj Mazda Van/Bus bearing registration No.AP-15-X-

5235 respectively and the appellant herein, being the insurer, are

jointly and severally liable to pay the aforementioned

compensation awarded to the claimants.

17. Accordingly, the appeal is allowed in part, modifying the

order, dated 27.08.2016, passed in MVOP No.258 of 2015 by the

Chairman, Motor Accidents Claims Tribunal-cum-V Additional

District Judge at Karimnagar, by reducing the compensation from

Rs.50,55,988/- to Rs.30,10,480/-. The said amount of Dr.SA, J & NBK, J MACMA No.2875 of 2016

compensation carries interest at the rate of 7.5% per annum from

the date of petition till realisation, besides costs. On deposit of the

compensation, the respondent Nos.1 to 3/claimants are permitted

to withdraw the entire amount along with the accrued interest.

The other terms of the order under challenge, including

apportionment, remain unaltered.

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

stand closed. There shall be no order as to costs.

____________________ Dr. SHAMEEM AKTHER, J

___________________ NAGESH BHEEMAPAKA 28th December, 2022 Bvv