Magma Hdi General Insurance Co Ltd vs Kannavenikannaboina Mallavva
2022 Latest Caselaw 3309 Tel

    HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

                   M.A.C.M.A.NO.995 of 2018

JUDGMENT:

This appeal has been preferred by the Insurance Company is

shown as respondents No.3 and 4 in M.V.O.P.No.151 of 2015

before the Principal District Judge, Karimnagar. The appellants

have preferred this appeal against the award in the above said

O.P., challenging the finding of the Court below by which an

amount of Rs.8,27,500/- was awarded towards compensation for

the death of one K.Lachaiah in a road accident.

2. The appellants have pleaded that though it is alleged

that the deceased died in a tractor accident, the driver of the said

tractor has no valid driving license. Therefore, the insurance

company is not liable to pay any compensation. The appellants

have further pleaded that the Court below considered the income

of the deceased as Rs.7,500/- per month but it could have

assessed the monthly income of the deceased as Rs.6,000/- per

month, which is quite reasonable. It is also the case of the

appellants that the Court below added 50% of the above said

income as future prospects but in the light of the Judgments of

Hon'ble Supreme Court, only 40% can be added as future 2 SSRN,J MACMA No.995 of 2018

prospects. In addition to that they disputed the other amounts

awarded by the Court below. On the ground that they are against

findings of Judgment in "National Insurance Co. Ltd., Vs.

PranaySethi"1.

3. M.V.O.P.No.151 of 2015 has been filed by the mother

and brother of the above said Lachaiah with an allegation that on

17.12.2014, while he was proceeding on a motorcycle along with

one M.Balaraju and when they reached the outskirts of Lachapet

Village, the driver of a tractor driving the tractor in high speed and

in a rash and negligent manner, while coming behind the motor

bike, dashed the same and run over the head of the deceased

causing his spot death and causing injuries to the other rider of the

bike. Mother and brother of deceased, who are petitioners in the

said O.P. have pleaded that the deceased was a Shepard, aged

about 35 years, he has got Ac.3-20 gts.,of land, therefore, earning

Rs.15,000/- per month. The deceased was a divorcee, whose wife

left him about 20 years back and married another person. The

mother and brother of the deceased have filed above said petition

for compensation. The insurance company, which is shown as

respondents No.3 and 4 in the O.P. contested the claim, mainly on

the ground that the driver of the tractor was not qualified for

2017 ACJ 2700 3 SSRN,J MACMA No.995 of 2018

holding a driving license and the owner of the vehicle though got

knowledge that the driver had no license, handed over him the

vehicle. Therefore, it amounts to violation of the policy conditions.

They have also disputed the age of the deceased and sought for

dismissal of the petition.

4. The Court below having accepted the contention of the

petitioners therein, partly allowed the claim and awarded

Rs.8,27,500/- towards compensation with costs and interest @

7.5% per annum.

5. Now the point for consideration is :

Whether the amount awarded by the trial Court in M.V.O.P.No.151 of 2015 is excess, if so, whether the same can be reduced or whether the award passed by the Court below is liable to be set aside?

6. This appeal is contested mainly on the ground that the

driver of the tractor/trolley, which caused the accident had no

license. The other ground according to the learned counsel for the

appellant is the Court below committed wrong in considering the

income of the deceased as Rs.7,500/- and adding 50% as future

prospects. According to the material placed before the Court, the

age of the deceased is shown as 35 years, he was a divorcee living

along with his mother and elder brother. Since the elder brother is 4 SSRN,J MACMA No.995 of 2018

shown as 35 years old, the Court below did not accept the claim

that he was a dependent of the deceased. However, held that he

is entitled to compensation for loss of estate, caused due to the

death of the deceased and awarded Rs.37,500/- out of the total

amount.

7. The appellants/insurance company even though took a

specific stand that the driver of the tractor did not possess any

license could not place any evidence in support of the said

contention. RW.1, who was examined on behalf of appellant

herein relied on the averments in the charge sheet wherein, it is

shown that the tractor driver committed an offence under Section

304-A and also Section 181 of Motor Vehicles Act. Simply because

there is an allegation in the charge sheet about the commission of

offence under Section 181 of Motor Vehicles Act, it is not

conclusive proof that the driver of the tractor had no license. As

per the award passed by the Court below, it is very clear that a

copy of the driving license has been produced. In the said copy, it

shows the driver of the tractor had license to drive tractor and

trailer. The Court below relied on a Judgment reported in

"MukundDewangan Vs. Oriental Insurance Co. Ltd.",2 was of

the opinion that if a driver was holding an effective license to drive

(2017) ACJ 2011 5 SSRN,J MACMA No.995 of 2018

the tractor, he could validly drive a tractor attached to a trailer.

Therefore, the Court below did not accept the claim of appellants

with regard to the possession of driving license and I see no

reason to reverse the said finding.

8. The next contention of the appellant is with regard to

income of the deceased. It is true, there is no evidence to believe

that he has got agricultural land of Ac.3-20 gts, he was having 200

sheep but there is no dispute about the age of the deceased.

According to the evidence placed before the Court at the time of

the accident, he was seen on the motor-bike. In order to prove

their claim, the respondents/claimants have examined the

Sarpanch of Kothapally as PW.3. According to his evidence, the

source of livelihood of the deceased as sheep and agriculture.

PW.4 is a Veterinary Asst. Surgeon and according to his evidence,

the deceased was having more than 200 sheep and that he used

to treat them and issued Ex.A6 certificate. However, the Court

below did not accept the evidence of these two witnesses but

believing the version that he was an agriculturist and a Shepard,

assessed his income as Rs.7,500/- per month i.e., Rs.250/- per

day. Being abled bodied, young man of 35 to 38 years of age, it

may not be difficult for the deceased to earn that amount. It 6 SSRN,J MACMA No.995 of 2018

appears that he was maintaining motor-bike also. Therefore, the

finding of the Court below about his income is reasonable one.

However, according to the Judgment in PranaySethi (supra)

case,the Court below could not have added 50% of the income as

future prospects. In the light of his age which is below 40, an

amount of 40% of his assessed income can be added as future

prospects to that extent, the contention of the appellant can be

considered.

9. It is true, the Court below having considered the

income of the deceased as Rs.7,500/-, added 50% towards future

prospects. In fact, the amount of Rs.30 per day can be calculated

as income of the deceased. In view of his age and his occupation

as a Shepard, if Rs.9000/- is taken into consideration as his

monthly income and if, as contended by the learned counsel for

the appellant 40% is added, it would be more than Rs.11,250/-.

Therefore, simply because the Court below added 50% of the

future income, there is no necessity to alter all the figures. Even in

the absence of cross appeal by the claimants, if the monthly

income of the deceased is taken as Rs.9,000/- and adding 40% of

the same as future prospects still the respondents/claimants are

entitled to Rs.7,42,500/-. The Court below deducted 50% of the 7 SSRN,J MACMA No.995 of 2018

income of the deceased as his personal expenditure on the ground

that he was a divorcee and he has to maintain his aged mother

only. Therefore, I am of the opinion that the Court below rightly

awarded the compensation amount and as such, appeal is liable to

be dismissed.

10. Therefore, Appeal is dismissed.

Consequently, Miscellaneous applications if any, are closed.

No costs.

__________________________ JUSTICE SAMBASIVA RAO NAIDU

Date: 04.07.2022 PLV 8 SSRN,J MACMA No.995 of 2018