Telangana High Court

B.Peda Venkatesh Venkatesh 3 ... 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.1306 OF 2016
                                  AND
                     M.A.C.M.A. NO.1617 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.3110 of

2014.


MACMA No.1306 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.1306 & 1617 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.1306 & 1617 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.1306 & 1617 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. As regards the quantum of the compensation, the insurance

company is only challenging the monthly income of the deceased

adopted by the Tribunal at Rs.3,000/- per month. In the absence of any

evidence in this appeal to substantiate the same, this issue is taken up

along with MACMA No.1617 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.1306 of 2016 is accordingly partly allowed.

MACMA No.1617 of 2016:

8. The claimants filed this Appeal seeking enhancement of the

compensation. The deceased was 27 years of age at the time of the

accident and she was a mason/labourer engaged in construction of

buildings, roads and other civil works in Bangalore. The claimants

claimed that the deceased woman used to earn Rs.15,000/- per month

and would have earned Rs.20,000/- per month in due course. The

Tribunal, however, observing that the deceased was a coolie and belongs

to a remote village of Maganoor Mandal of Mahaboobnagar District, has MACMA Nos.1306 & 1617 of 2016

taken her notional income at Rs.3,000/- per month and applied the

multiplier of 17 and also allowed the deduction of 1/3rd of the income

towards her personal expenditure and accordingly arrived at a sum of

Rs.4,08,000/- as annual income of the deceased and awarded future

prospects at 25% and thus assessed loss of dependency at Rs.5,10,000/-.

9. Learned counsel for the appellants/claimants, Sri P. Ramakrishna

Reddy, submits that as per the Supreme Court Judgement in the case of

Kirti Vs. Oriental Insurance Company2, the notional income of a

house wife should be adopted at Rs.5,500/- per month.

10. However, on going through the said Judgement of the Hon'ble

Supreme Court, it is noticed that the accident therein had occurred in the

city of Delhi and it was in these circumstances that the Hon'ble Supreme

Court has held that the notional income of a house wife therein should

be considered at Rs.5,500/- per month. In the present case, the deceased

was from a rural area. Therefore, her notional income is directed to be

adopted at Rs.5,000/- per month.

11. It is submitted that as per the judgment of the Hon'ble Supreme

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

(2021) 2 SCC 166 MACMA Nos.1306 & 1617 of 2016

Transport Corporation and another3, the deduction towards personal

and living expenses of the deceased should be one-fourth (1/4th) where

the number of dependent family members is 4 to 6.

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

Mahender Rao, also agreed that the family members/dependents of the

deceased were 4 and therefore the deduction towards personal expenses

should be 1/4th and not 1/3rd as directed by the Tribunal. It is ordered

accordingly.

13. Learned Standing Counsel for the insurance company further

pointed out that the Tribunal awarded a sum of Rs.2,00,000/- towards

loss of love and affection and estate which is not allowable as per the

Judgment of the Hon'ble Supreme Court in the case of National

Insurance Co. Ltd. Vs. Pranay Sethi4. However, he agrees that the

consortium to the spouse as well as the children, if granted as per

Pranay Sethi (4 supra), it would amount to almost the same amounts.

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

(2009) 6 SCC 121

(2017) 16 SCC 680 MACMA Nos.1306 & 1617 of 2016

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 to 4/appellants 2 to 4 being

children of the deceased are entitled to parental consortium of

Rs.40,000/- + 10% enhancement thereon to each of them. The claimants

are also entitled to compensation towards loss of future prospects at

40% as against 25% 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:

   Head                                  Compensation awarded

   (1) Income                            Rs.5,000 per month

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

   (3) Deduction towards                 Rs.1,750 i.e. 1/4th of
       Personal Expenses                 (Rs.5,000 + 2,000 = 7,000)

   (4) Total income                      Rs.5,250 i.e. 3/4th of
                                         (Rs.5,000 + 2,000 = 7,000)



   (6) Loss of future income             Rs.10,71,000 (Rs.5,250x12x17)
                                                  MACMA Nos.1306 & 1617 of 2016


   (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.1,32,000 (40,000 + 10%
                                         thereof each) payable to claimants
                                         2 to 4

   Total compensation awarded            Rs.12,80,000 along with interest
                                         @ 7.5% per annum from the date
                                         of filing of the claim petition till
                                         payment.

In the result, the award dt.30.01.2016 in O.P.No.3110 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.12,80,000/- (Rupees Twelve Lakhs and Eighty 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.1617 of 2016. Out of the total compensation

of Rs.12,80,000/-, claimant No.1 is entitled to Rs.5,30,000/- (Rupees

Five Lakhs and Thirty Thousand only) and claimants 2 to 4 are each

entitled to Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only).

The 1st claimant is permitted to withdraw his entire part of compensation

of Rs.5,30,000/- on the deposit being made by the 2nd respondent and MACMA Nos.1306 & 1617 of 2016