Telangana High Court

Annapurna Sunder Shetty 3 Others vs Md. Moinuddin Raju Another on 16 June, 2022

Bench: P.Madhavi Devi

        THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                     M.A.C.M.A. NO.1414 OF 2016
                                  AND
                     M.A.C.M.A. NO.1704 OF 2016

                        COMMON JUDGMENT


        These two are cross Appeals filed by the insurance company as

well as the claimants respectively against the award dt.30.01.2016

passed by the Motor Accident Claims Tribunal-cum-Chief Judge, City

Civil Court, Hyderabad (for short 'the Tribunal') in O.P.No.3021 of

2014.


MACMA No.1414 of 2016:


2.      In this Appeal filed by the insurance company, the grounds raised

are with regard to the sole liability of the insurance company to pay the

compensation to the claimants when there was composite negligence on

the part of both the vehicles which were involved in the accident, and

also on the quantum of compensation awarded by the Tribunal.


3.      Learned Standing Counsel for the insurance company, Sri T.

Mahender Rao, submitted that the deceased along with others were

travelling in an auto on 20.08.2014 and the auto and the lorry collided
                                                 MACMA Nos.1414 & 1704 of 2016
                                     2

resulting in an accident and the deceased along with 6 others died on the

spot. He submitted that it is only the owner and the insurance company

of the lorry that have been made party respondents to the O.P. by the

claimants, and though the other vehicle, i.e., the auto is also responsible

for the accident, neither the owner of the auto nor its insurance company

have been made parties. He submitted that when there is composite

negligence on the part of both the vehicles, the insurance companies and

owners of both the vehicles are equally, jointly and severally liable for

payment of the compensation. He submitted that the Tribunal has

directed payment of the entire compensation by the insurance company

of the lorry alone and therefore he sought a direction/liberty from this

Court to proceed against the other vehicle's (auto) owner and insurance

company who are also liable to pay the compensation. For this

proposition, he placed reliance upon the judgment of the Hon'ble

Supreme Court in the case of Khenyei Vs. New India Assurance

Company Limited and others dt.07.05.20151.

4. Learned counsel for the claimants, Sri P. Ramakrishna Reddy, is

also heard.

2015 LawSuit SC 469 MACMA Nos.1414 & 1704 of 2016

5. Having regard to the finding of the Tribunal at para-14 of its

award that the drivers of both the vehicles have driven their vehicles in

high speed and in a negligent manner causing the accident, the

composite negligence of the drivers of both the vehicles is established

and both are jointly and severally liable. Therefore, this Court is of the

opinion that the owner and insurance company of the other vehicle, i.e.,

the auto, ought to have been made parties to the claim petition.

However, as held by the Hon'ble Supreme Court in the case of Khenyei

Vs. New India Assurance Company Limited and others (1 supra), it

would not be appropriate for the Court/Tribunal to determine the extent

of composite negligence of the drivers of the two vehicles, in the

absence of impleadment of the other joint tort feasors. It was held that in

such a case, impleaded joint tort feasor should be left, in case he so

desires, to sue the other joint tort feasor in independent proceedings after

passing of the decree or award. Respectfully following the same, liberty

is granted to the insurance company of the lorry to proceed against the

owner and the insurance company of the other vehicle, i.e., the auto for

recovery of the compensation paid by it in proportion to their liability.

It is however clarified that the insurance company of the lorry shall pay

the entire compensation as awarded by the Tribunal to the claimants and MACMA Nos.1414 & 1704 of 2016

if they so desire, they may recover from the owner and insurance

company of the auto which is also involved in the subject accident.

6. With regard to the compensation awarded by the Tribunal in this

case, the insurance company is objecting to adopting of the monthly

income of the deceased at Rs.3,000/- per month. According to the

learned Standing Counsel for the insurance company, there was no

evidence produced by the claimants with regard to the monthly income

claimed by the claimants at Rs.20,000/- per month. Since the

compensation awarded by the Tribunal is under challenge in both the

appeals of the insurance company as well as the claimants, this issue is

taken up along with MACMA No.1704 of 2016 which is the appeal filed

by the claimants who are seeking enhancement of compensation by

adopting the monthly income of the claimants therein at a higher figure.

7. M.A.C.M.A.No.1414 of 2016 is accordingly partly allowed.

MACMA No.1704 of 2016:

8. The claimants filed this Appeal seeking enhancement of the

compensation. The deceased died in the accident that took place on

20.08.2014 and was aged 55 years at the time of the accident. The

claimants submitted that the deceased was doing milk vending business MACMA Nos.1414 & 1704 of 2016

and was earning Rs.20,000/- per month and that in due course he would

earn around Rs.35,000/-. The Tribunal has adopted a sum of Rs.3,000/-

per month as the monthly income of the deceased.

9. Learned counsel for the claimants submits that the deceased was

doing independent business of milk and his monthly income should be

at least taken at Rs.6,500/- per month as per the decision of the Hon'ble

Supreme Court in the case of Syed Sadiq and others Vs. Divisional

Manager, United India Insurance Co. Ltd.2.

10. On going through the said judgment, it is noticed that the injured

therein was a vegetable vendor and therefore, there is similarity in work

carried on by the injured before the Hon'ble Supreme Court and also

before the Court herein. Therefore, it is felt that Rs.6,500/- is to be taken

as reasonable monthly income of the deceased in the case before this

Court.

11. As regards future prospects, since the deceased was 55 years of

age at the time of the accident, the same can be allowed at 10% of his

annual income. It is ordered accordingly.

2014 ACJ 627 MACMA Nos.1414 & 1704 of 2016

12. Learned Standing Court for the insurance company, Sri T.

Mahender Rao, pointed out that the consortium paid to the 1st claimant

and compensation towards loss of love and affection and estate are

excessive.

13. It is noticed that the compensation towards consortium and the

compensation towards funeral expenses and loss of estate are not

granted in accordance with the Judgment of the Hon'ble Supreme Court

in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3 and

therefore they are accordingly granted.

14. After going through the table giving details of the compensation

by the Tribunal, it is noticed that funeral expenses have been granted at

Rs.10,000/- as against Rs.15,000/- with 10% enhancement thereon

awarded by the Hon'ble Supreme Court in the case of Pranay Sethi (4

supra) and loss of estate is also to be awarded at Rs.15,000/- + 10%

enhancement thereon. The spousal consortium to the spouse, i.e., 1st

claimant/1st appellant is to be awarded at Rs.40,000/- + 10%

enhancement thereon and claimants 2 and 3/appellants 2 and 3 being the

sons of the deceased are entitled to parental consortium of Rs.40,000/- +

(2017) 16 SCC 680 MACMA Nos.1414 & 1704 of 2016

10% enhancement thereon to each of them. The compensation is

accordingly enhanced.

15. In the light of the abovementioned discussion, the claimants 1 to 3

are entitled to the following amounts:

   Head                                  Compensation awarded

   (1) Income                            Rs.6,500 per month

   (2) Future prospects                  Rs.650 (i.e. 10% of the income)

   (3) Deduction towards                 Rs.2,383 i.e. 1/3rd of
       Personal Expenses                 (Rs.6,500 + 650 = 7,150)

   (4) Total income                      Rs.4,767 i.e. 3/4th of
                                         (Rs.6,500 + 650 = 7,150)



   (6) Loss of future income             Rs.6,29,244 (Rs.4,767x12x11)

   (7) Funeral expenses                  Rs.16,500 (15,000 + 10% thereof)

   (8) Loss of estate                    Rs.16,500 (15,000 + 10% thereof)

   (9) Spousal consortium                Rs.44,000 (40,000 + 10% thereof)
                                         payable to the 1st claimant

   (10)   Parental consortium            Rs.88,000 (40,000 + 10% thereof
                                         each) payable to claimants 2 & 3


   Total compensation awarded            Rs.7,94,244 along with interest
                                         @ 7.5% per annum from the date
                                         of filing of the claim petition till
                                         payment.
                                                 MACMA Nos.1414 & 1704 of 2016

16. In the result, the award dt.30.01.2016 in O.P.No.3021 of 2014 on

the file of the Motor Accident Claims Tribunal-cum-Chief Judge, City

Civil Court, Hyderabad is modified by awarding a total compensation of

Rs.7,94,244/- (Rupees Seven Lakhs Ninety Four Thousand Two

Hundred and Forty Four only) with costs and interest thereon at 7.5%

per annum from the date of the claim petition till the date of realisation

against respondents 1 and 2 jointly and severally in MACMA No.1704

of 2016. The compensation of Rs.7,94,244/- is apportioned among the

claimants in the following manner:

      Claimant No.1              :       Rs.4,94,244/-

      Claimant No.2              :       Rs.1,50,000/-

      Claimant No.3              :       Rs.1,50,000/-

The claimants 1 to 3 are permitted to withdraw their entire apportioned

shares of compensation on the deposit being made by the 2nd respondent.

The deposit shall be made by the 2nd respondent within a period of 120

days from the date of receipt of a copy of this judgment, after giving

credit to the amount, if any, already deposited by the 2nd respondent. It is

also made clear that the 2nd respondent insurance company shall make

the payment to the claimants and thereafter it is at liberty to proceed

against the owner and the insurance company of the other vehicle, i.e., MACMA Nos.1414 & 1704 of 2016

the auto for recovery of the compensation paid by them to the extent of

their liability.

17. M.A.C.M.A.No.1704 of 2016 is partly allowed accordingly.

18. Both the Appeals are partly allowed with the above directions. No