Telangana High Court

Reliance General Insurance ... vs K. Shanthi on 16 June, 2022

Bench: P.Madhavi Devi

        THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                     M.A.C.M.A. NO.1307 OF 2016
                                  AND
                     M.A.C.M.A. NO.1614 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.3020 of

2014.


MACMA No.1307 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.1307 & 1614 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.1307 & 1614 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.1307 & 1614 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.6,000/- 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.25,000/- 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.1614 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.1307 of 2016 is accordingly partly allowed.

MACMA No.1617 of 2016:

8. The claimants filed this Appeal seeking enhancement of the

compensation. The deceased died in the accident that occurred on

20.08.2014 and was aged 25 years at the time of the accident. The

claimants submitted that the deceased was owner-cum-driver of a MACMA Nos.1307 & 1614 of 2016

Maruti Omni van bearing No. MH 02BQ 348 which he used for

transportation of school children from their residents to their school in

Mumbai and that he also used to hire his vehicle for transportation on

holidays to schools and used to earn Rs.25,000/- per month.

Accordingly, the claimants claimed that the deceased would have earned

Rs.35,000/- per month in due course. The Tribunal, however, adopted a

sum of Rs.6,000/- per month as his monthly income. While the

insurance company is seeking decrease in adoption of the said amount,

the learned counsel for the appellants, Sri P. Ramakrishna Reddy, is

seeking enhancement of the compensation.

9. However, it is noticed that the claimants have not been able to

produce any evidence to the effect that the deceased was driving the

vehicle and using it for transportation of school children in Mumbai.

The sum of Rs.6,000/- per month taken by the Tribunal also appears to

be too low considering the fact that the deceased was a driver in

Mumbai. The accident occurred in the year 2014 and the reasonable

monthly income of the driver in Mumbai during 2014 would be around

Rs.15,000/- per month. In view thereof, the monthly income of the

deceased is to be adopted at Rs.15,000/- and the compensation is to be

computed accordingly.

MACMA Nos.1307 & 1614 of 2016

10. As far as the deduction towards the personal expenditure of the

deceased is concerned, the learned counsel for the claimants submitted

that there are four (4) dependent family members and therefore the

deduction should be at one-fourth (1/4th) as against the one-third (1/3rd)

allowed by the Tribunal as per the judgment of the Hon'ble Supreme

Court in the case of Sarla Varma (Smt) and others Vs. Delhi

Transport Corporation and another2. Therefore, the deduction is

directed to be made at one-fourth (1/4th) of the income of the deceased.

11. Since the deceased was 25 years of age at the time of the accident,

the compensation towards future prospects has to be awarded at 40% of

the income so arrived at.

12. The learned Standing Counsel for the insurance company pointed

out that the compensation paid towards consortium to the 1st claimant is

very excessive and compensation towards love and affection and loss of

estate is also 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

(2009) 6 SCC 121 MACMA Nos.1307 & 1614 of 2016

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

parents of the deceased are entitled to filial consortium of Rs.40,000/- +

10% enhancement thereon to each of them, while the 4th claimant being

the daughter of the deceased is entitled to parental consortium of

Rs.40,000/- + 10% enhancement thereon. The claimants are also entitled

to compensation towards loss of future prospects at 40% as against

33.3% granted by the Tribunal. The compensation is accordingly

enhanced.

15. In the light of the abovementioned discussion, the claimants 1 to 4

are entitled to the following amounts:

(2017) 16 SCC 680 MACMA Nos.1307 & 1614 of 2016

Head Compensation awarded

(1) Income Rs.15,000 per month

(2) Future prospects Rs.6,000 (i.e. 40% of the income)

(3) Deduction towards Rs.5,250 i.e. 1/4th of Personal Expenses (Rs.15,000 + 6,000 = 21,000)

(4) Total income Rs.15,750 i.e. 3/4th of (Rs.15,000 + 6,000 = 21,000)

(6) Loss of future income Rs.34,02,000 (Rs.15,750x12x18)

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

(11) Parental consortium Rs.44,000 (40,000 + 10% thereof) payable to the 4th claimant

Total compensation awarded Rs.36,11,000 along with interest @ 7.5% per annum from the date of filing of the claim petition till payment.

16. In the result, the award dt.30.01.2016 in O.P.No.3020 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 MACMA Nos.1307 & 1614 of 2016

Rs.36,11,000/- (Rupees Thirty Six Lakhs and Eleven Thousand 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.1614 of 2016. As the

compensation payable to the claimants as per law was found to be

higher than the original claim of Rs.25,00,000/-, the enhanced

compensation of Rs.11,11,000/- is granted subject to payment of Court

fee by the claimants on such enhanced compensation. The compensation

of Rs.36,11,000/- is apportioned among the claimants in the following

manner:

      Claimant No.1            :       Rs.15,11,000/-

      Claimant No.2            :       Rs.4,50,000/-

      Claimant No.3            :       Rs.4,50,000/-

      Claimant No.4            :       Rs.12,00,000/-

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

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

and the compensation amount of the 4th claimant shall be kept in fixed

deposit in any nationalised bank till she attains majority. 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 MACMA Nos.1307 & 1614 of 2016

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., the auto for

recovery of the compensation paid by them to the extent of their

liability.