Telangana High Court
Smt. P. Shivaneela vs Mohd. Naseer Ahmed on 14 July, 2022
Bench: G.Anupama Chakravarthy
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
M.A.C.M.A.No.1718 of 2018
JUDGMENT :
This appeal is filed by the claimants being aggrieved by the
order and decree dated 11.04.2017 in M.V.O.P.No.2809 of 2014 on
the file of Motor Accident Claims Tribunal-cum-XIII Additional
Chief Judge (FTC), City Civil Court, Hyderabad, for the death of
the deceased P.Kumar, who died in the road accident in front of
MDO office, Shadnagar on 13.09.2014 and the claimants being the
wife, son and mother of the deceased, filed the OP claiming
compensation of Rs.15,00,000/- together with interest and costs.
2. For the sake of convenience, the parties are referred to as
arrayed in the O.P.
3. On 13.09.2014 at about 7.00 p.m., while the deceased was
parking his vehicle in front of the MDO office, the driver of the 1st
respondent/Lorry bearing No.AP-29-TB-4543 came at a high speed
in a rash and negligent manner and dashed against the deceased,
due to which, he sustained grievous injuries and was shifted to
Vijaya hospital at Shadnagar, Gandhi hospital, Secunderabad and
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MACMA.No.1718 of 2018
from there to Osmania Government hospital, Hyderabad for
treatment and while undergoing treatment, he died on 14.09.2014.
Basing on the complaint of the 1st claimant, a case was registered
against the driver of the 1st respondent in Crime No.403 of 2014
under Section 304-A of IPC
4. A detailed counter affidavit was filed by the 2nd respondent
disputing the manner of accident, age, avocation, earning capacity
of the deceased and also about the medical expenses incurred by
them.
5. The Tribunal, on examining the oral and documentary
evidence on record i.e. PWs.1 and 2 and Exs.A-1 to A-6 on behalf
of claimants and RW-1 and Exs.B-1 to B-3 on behalf of
respondents, partly allowed the O.P., awarding a total
compensation of Rs.10,11,000/- along with costs and interest
@7.5% per annum from the date of petition till the date of
realization, payable only by respondent No.1, by exonerating
respondent No.2. Seeking enhancement of compensation
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MACMA.No.1718 of 2018
as well as aggrieved by exoneration of 2nd respondent from paying
the compensation, the claimants have filed this appeal.
6. Heard both sides and perused the record.
7. The learned Counsel for the appellants contended that the
Tribunal has erred in exonerating the 2nd respondent with an
observation that the driver of the vehicle, who was not having valid
licence, drove the lorry of the 1st respondent, and thus, violated the
terms of Ex.B-1/insurance policy. It is further contended by the
learned counsel for the appellants that as per the judgments of
Hon'ble Supreme Court in National Insurance Company Ltd. v.
Swaran Singh & others1 and National Insurance Co. Ltd. v.
Pranay Sethi & others2, the Insurance Company is liable to pay
the compensation and recover the same from the owner of the
vehicle in case there are any violations of the terms of the
insurance policy. It is further contended that the trial Court erred
in taking the income of the deceased as Rs.6,000/- per month
(2004) 3 SCC 297
2017 ACJ 2700
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MACMA.No.1718 of 2018
instead of Rs.12,000/- per month and prayed to set aside the orders
of the Tribunal and to pass appropriate orders.
8. The record reveals that the wife of the deceased was
examined as PW-1. It is an admitted fact that PW-1 is not the
eyewitness to the incident. The Tribunal, after appreciating the
entire evidence on record, gave a finding that the accident occurred
due to the rash and negligent driving of the driver of the lorry
which dashed against the deceased. Exs.A-2 and A-3 are the
inquest and postmortem reports of the deceased respectively, which
disclose the age of the deceased as 30 years as on the date of the
accident. Except the oral evidence of PW-1, there is no other
evidence on record to show the avocation or income of the
deceased, though it is pleaded that the deceased used to earn
Rs.12,000/- per month being the owner and driver of the Tata
Magic vehicle bearing No.AP-22-TV-1199. No documents were
filed before the Tribunal to prove that the deceased was the owner
of the vehicle or of his driving licence. Even in the absence of the
evidence, the Tribunal has taken the income of the deceased as
Rs.80,000/- per annum. In Kala Devi & others v. Bhagwan Das
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MACMA.No.1718 of 2018
Chauhan & others3, their Lordships have taken Rs.9,000/- per
month as the income of the deceased, who was a driver. There is
no specific reasoning given by the Tribunal as to how the income
of the deceased was arrived at Rs.80,000/- per annum. However,
taking into consideration that the appeal is filed by the claimants
for enhancement of compensation and no cross-appeal is filed by
the Insurance Company, this Court is of the considered view that
the same income can be taken into consideration to decide this
appeal.
9. On perusal of the order of the Tribunal, it is evident that the
Tribunal has awarded the following amounts under different heads;
1. Loss of dependency Rs.9,06,000/-
2. Consortium Rs.50,000/-
3. Loss of estate Rs.25,000/-
4. Funeral expenses Rs.30,000/-
TOTAL Rs.10,11,000/-
10. Admittedly, the deceased was aged about 30 years as on the
date of the accident and there is no dispute raised by the Insurance
Company as to the age of the deceased. As discussed above, the
annual income of the deceased be taken as Rs.80,000/-. As per the
(2015) 2 SCC 771
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MACMA.No.1718 of 2018
judgment of the Hon'ble Supreme Court in Smt.Sarla Verma v.
Delhi Transport Corporation & another4, the multiplier
applicable is '17' for the age group of 26 to 30 years. If 40% is
added towards future prospects, it would come to Rs.1,12,000/-
(Rs.80,000 + Rs.32,000/-). If 1/3rd is deducted towards personal
expenses, his contribution to the family would come to Rs.74,667/-
(Rs.1,12,000 - Rs.37,333). If the multiplier '17' is applied, it
would come to Rs.12,69,339/- (Rs.74,667 X 17). Therefore, the
appellants are entitled to Rs.12,69,339/- towards loss of
dependency.
11. As per the judgment of Hon'ble Supreme Court in Pranay
Sethi's case (2 supra), claimants 1 to 3 are entitled to Rs.40,000/-
each towards consortium and Rs.15,000/- towards funeral expenses
and another Rs.15,000/- towards loss of estate.
12. Thus, the claimants are entitled to compensation under the
following heads;
1. Loss of dependency Rs.12,69,339/-
2. Funeral expenses Rs.15,000/-
3. Consortium (Rs.40,000/- each) Rs.1,20,000/-
(2009) 6 SCC 121
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MACMA.No.1718 of 2018
4. Loss of estate Rs.15,000/-
TOTAL Rs.14,19,339/-
13. As per the Rulings in Pranay Sethi's case (2 supra) and
Swaran Singh's case (1 supra), the Insurance Company is liable to
pay compensation to the 3rd parties and recover the same from the
insured. The Tribunal ought to have given a finding that both the
respondents are liable to pay compensation to the claimants though
the conditions of the policy are violated by the 1st respondent.
14. Accordingly, the appeal is disposed of, granting a total
compensation of Rs.14,19,339/- with costs and interest at the rate
of 7.5% per annum from the date of petition till the date of
realization and both the respondents are jointly and severally liable
to pay the said amount within two months from the date of receipt
of this order. The 1st claimant, being the wife of the deceased, is
entitled to Rs.5,00,000/- and the 3rd claimant, being the mother of
the deceased, is entitled to Rs.2,19,339/- and both are permitted to
withdraw the amount along with costs and interest as the accident
took place in the year 2014. The 2nd claimant, being the minor son
of the deceased, is entitled to Rs.7,00,000/- and the same shall be
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MACMA.No.1718 of 2018
deposited in a fixed deposit in any Nationalised bank till he attains
majority.
Pending miscellaneous applications, if any, shall stand
closed.
________________________________
G.ANUPAMA CHAKRAVARTHY, J
Date: 14.07.2022
ajr
