Ifficotokio General Insurance ... vs Nimmanagottu Koteswara Rao
2022 Latest Caselaw 3378 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                  M.A.C.M.A.NO.2697 OF 2018

JUDGMENT:

This Miscellaneous Appeal is arising out of the orders

dated.8.6.2018 passed in O.P.No.1395 of 2012 on the file of the

M.A.C.T-cum-V Additional District Judge, Kothagudem,

whereunder an amount of Rs.5,31,000/- was awarded to the

claimants towards compensation for the death of their mother in a

motor vehicle accident. Aggrieved by the same, the insurance

company filed the appeal.

2. The Insurance company i.e. 2nd respondent in the O.P is

the appellant. The respondents 1 and 2 herein, who are the

sons of the deceased-N.Mahalaxmi, made a claim before the

Tribunal for compensation of Rs.3,00,000/- on account of the

death of the deceased in a motor vehicle accident, which

occurred on 24.06.2011 at 12.30 hours when the deceased was

travelling in an auto bearing No.AP-20-TA-5070 from Palvancha

town to Bhadrachalam. The Tribunal after considering the oral

and documentary evidence have granted compensation of

Rs.5,31,000/- with interest @ 7.5% per annum from the date of

petition till the date of deposit with costs and further decreed that

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the claimants 1 and 2 are entitled to receive an amount of

Rs.2,65,000/- each with interest and further directed the

claimants to pay deficit court fee within ten days from the date of

order.

3. Heard counsel for the appellant. In spite of receiving the

notice none appeared for the respondents.

4. The record reveals that initially claim petition was filed

under Section 166 of the Motor Vehicle Act for grant of

compensation of Rs.3,00,000/- with costs and interest @ 18%

per annum towards general and special damages for the death of

the deceased in the accident due to rash and negligent driving of

the auto bearing No.AP-20-TA-5070. The 3rd respondent herein,

who is owner of the auto involved in the accident, is arrayed as

1st respondent in the claim petition before the Tribunal. As the

Tribunal has granted Rs.5,31,000/-, the respondents 1 and 2

(claimants) were directed to pay the deficit court fee and on such

payment of court fee the decree shall be prepared.

5. It is urged by the learned Counsel for the appellant that the

Tribunal has granted excess compensation in spite of the prayer

being made and there is no absolute liability for payment of any

GAC, J MACMA No.2697 of 2018

compensation by the appellant-insurance company, as the driver

of the auto did not possess valid or effective driving licence as on

the date of accident. It is further contended by the learned

Counsel for the appellant that the Tribunal failed to consider that

RW1 issued notice to Respondent No.3 to produce driving licence

of the driver and the said notice returned as un-served. It is

further contended by the learned Counsel for the appellant that

the Tribunal erred in taking monthly income of the deceased as

Rs.5,000/- and added 15% future prospects of the deceased

which comes to Rs.5,750/- per month and such calculation was

made without proper evidence and the Tribunal ought not to have

taken multiplier as '11' for the age of 55 without any documentary

evidence and prayed to allow the appeal by setting side order of

the Tribunal in O.P.No.1395 of 2012 dated.8.6.2018.

6. It is relevant to mention that the Tribunal after considering

the claim petition and the counter of the insurance company

have framed the following issues:

1. Whether the accident had occurred due to rash and negligent driving of the driver of the auto bearing No.AP- 20-TA-5070?

GAC, J MACMA No.2697 of 2018

2. Whether the petitioners are entitled for compensation and if so, to what amount and from which respondents?

3. To what relief?

7. Before the Tribunal PWs.1 and 2 were are examined and

Ex.A1 to A5 were marked. RW1 was alone examined on behalf

of the insurance company and Exs.B1 to B3 were marked.

8. The evidence of PW1 disclose that the deceased was his

mother, who boarded the auto bearing No.AP-20-TA-5070 on

24.06.2011 at 12.30 Hours, and the driver of the auto drove it in

a rash and negligent manner and dashed to one Tata Ace vehicle

bearing No.AP-TB-1138 which came in opposite direction, as a

result of which his mother received fatal injuries and died on the

spot.

9. Ex.A1 is the copy of First Information Report, which

disclose that PW1 gave the report to the police, for which a case

was registered against the driver of the auto, in Crime

No.73/2011 under Section 304-A of Indian Penal Code. Ex.A2 is

the charge sheet which disclose that the accident occurred due to

rash and negligent driving of the driver of the auto. Ex.A3 is the

report issued by the Motor Vehicle Inspector which disclose that

GAC, J MACMA No.2697 of 2018

the accident did not occur due to any mechanical defect of the

vehicle. Ex.A4 is the inquest report. Col.15 of Ex.A4 disclose that

the inquest panchayathdars opined that the deceased died due to

the injuries sustained by her in the accident which occurred on

24.06.2011 and the accident took place due to the rash and

negligent driving of the auto. Ex.A5 is the Post-mortem

examination report of the deceased viz., N.Mahalaxmi and the

doctor opined that the deceased died due to hemorrhagic shock

due to chest injury.

10. PW2, Ratna Kumari, is alleged to be the eye witness to the

accident. Her evidence disclose that she travelled along with the

deceased in the auto bearing No.AP-20-TA-5070 and when the

said auto reached near old Sarapaka village, the driver of the

auto drove it in a rash and negligent manner with high speed and

dashed one Tata Ace bearing No.AP-20-TV-1138 which is

coming in opposite direction and as a result of the said accident

the deceased sustained injuries and succumbed to injuries on the

spot. The evidence of PWs.1 and 2 and Exs.A1 to A5 reveal that

the accident occurred due to rash and negligent driving of the

auto belonging to the 3rd respondent herein. Ex.B1 is the attested

copy of insurance policy which clearly disclose that the auto was

GAC, J MACMA No.2697 of 2018

insured with the appellant and the insurance policy was in force

as on the date of accident.

11. In view of the principles laid down by the larger Bench of

the Apex Court in National Insurance Company Ltd., Pranay

Sethi and others1, even though there are deviations or

violations of conditions of policy issued by the concerned

insurance companies, the respective companies are liable to pay

compensation to third parties forthwith and they are at liberty to

recover the same from the owners of the vehicles. Though it is

pleaded there is no proper driving licence to the driver of the auto,

no evidence was placed by RW1 before the Tribunal except

Ex.B2 and B3 the legal notice and un-served legal notice which

would not help in any manner to prove about the violations.

Therefore, the appellant-insurance company is liable to pay

compensation to the claimants.

12. The age of the deceased is mentioned as 55 years in

Exs.A4 and A5. The oral evidence of PW1 further disclose that

the deceased used to earn Rs.10,000/- per month by doing kirana

business and spend the same for the maintenance of the family.

Admittedly, there is no documentary evidence before the Tribunal

(2017) 16 SCC 680

GAC, J MACMA No.2697 of 2018

to prove that the deceased used to earn Rs.10,000/- per month.

Moreover, Ex.A4 disclose the occupation of the deceased as

"Housewife". As per the Apex Court judgment in

Ramachandrarappa Vs Royal Sundaram Alliance Insurance

Company Limited2, at para No.15, it was observed that:

"In the present case, the appellant was working as a coolie and in an around the date of accident, the wage of a labourer was between 100 to Rs.150/- per day or Rs.4,500/- per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4,500/- to Rs.3,000/- per month. We, therefore, accept his statement that his monthly earnings was Rs.4,500/-.

Therefore, the income of the deceased has to be taken on

par with the men who are working outside.

13. The Tribunal have taken into consideration various citations

of the Apex Court i.e. Rajesh and others Vs.Rajbir Singh and

others3, Santosh Devi v. National Insurance Co. Ltd.4

Sarla Verma Vs. Delhi Transport Corporation5 and came to a

conclusion that there should be an addition of 15% to the actual

(2011) 13 SCC, 236,

2013 ACJ 1403,

2012 ACJ 1428 SC

(2009) ACJ 1298 (SC)

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income of the deceased while computing future prospects as the

deceased was in the age group of 55 and 60 years, and took the

income of the deceased at Rs.5,000/- per month + 15% future

prospects x 12 months, and arrived at the annual income of the

deceased as Rs.69,000/- and deducted 1/3rd towards personal

expenses of the deceased and observed that the contribution of

the deceased towards the family would be Rs.46,000/-. The

multiplier applied by the Tribunal for the age group of 55, is '11'

and came to a conclusion that the loss of dependency would

come to Rs.5,06,000/- (Rs.46,000/- x '11'). Apart from that, the

Tribunal has awarded Rs.25,000/- towards funeral expenses,

which had come to Rs.5,31,000/-.

14. Admittedly, there is no oral or documentary evidence on

record to prove the income of the deceased as Rs.5,000/- per

month. No reasoning was assigned by the Tribunal as to how the

income of the deceased was fixed at Rs.5,000/-. Even as per

the citation of Sarla Verma's case (5 Supra) Rs.100/- has to be

taken as the income of a non-earning person, which comes to

Rs.3,000/- per month. Even as per the Minimum Wages Act,

Rs.150/- per day has to be taken into consideration as the income

of a person, which comes to Rs.4,500/- per month. As the age of

GAC, J MACMA No.2697 of 2018

the deceased was 55 years, there is no error or irregularity in

taking the multiplier as '11' or granting '15% towards future

prospects. Therefore, the Tribunal ought to have taken the

monthly income of the deceased as Rs.4,500/- + 15% future

prospects, which would come to Rs.5,175/-. The annual income

of the deceased thus comes to Rs.62,100/- (Rs.5,175/- x 12) -. If

1/3rd is deducted towards personal expenses, the contribution of

the deceased to the family would be Rs.41,400/- (Rs.62,100/- x

1/3rd = Rs.20,700/-), The loss of dependency then comes to

Rs.4,55,400/- (Rs.41,400/- x 11 multiplier). Apart from that, the

claimants are entitled to Rs.25,000/- towards funeral expenses.

The trial court has not granted any amount towards love and

affection or loss of estate. Therefore, there is every necessity to

grant compensation to the claimants under the head of loss of

love and affection to a tune of Rs.50,000/-. Thus, the total

compensation comes to Rs.5,30,400/- .

15. The 1st and 2nd respondents being the sons of the

deceased are entitled to 50% each out of the compensation of

Rs.5,30,400/-. The appellant-insurance company shall deposit

the compensation within three months from the date of this order.

GAC, J MACMA No.2697 of 2018

On such deposit, the claimants are permitted to withdraw the

same.

16. Accordingly, the appeal is disposed of. No costs.

____________________________ G.ANUPAMA CHAKRAVARTHY, J Date:05.07.2022

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