M/S National Insurance Co Ltd., ... vs Narsuri Sudarshan Rao, Adilabad ...
2022 Latest Caselaw 1118 Tel

                THE HON'BLE JUSTICE G. SRI DEVI

                   M.A.C.M.A.No.4221 of 2014

JUDGMENT:

This appeal is preferred by the appellant-National Insurance

Company Limited, questioning the order and decree, dated

16.08.2014 passed in M.V.O.P.No.243 of 2013 on the file of the

Motor Vehicle Accidents Claims Tribunal-cum-Principal District

Judge, Medak At Sangareddy (for short, the Tribunal).

2. For the sake of convenience, the parties have been referred

to as arrayed before the Tribunal.

3. The claimants filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.30,00,000/- for the death

of the deceased-Narsuri Kiran Kumar, who died in a motor vehicle

accident that occurred on 28.02.2013. It is stated that on that day

while the deceased and his friends were going towards Basar in a

Car bearing No.AP 10 AZ 3863 and reached near Railway Station on

Basar-Bhainsa road, hit a lorry bearing No.AP 25 T 7887 which was

parked on the middle of the road without any indicators and

signals, from its behind, due to which, one person byname

Srikanth, who was driving the Car died on the spot and other

inmates of the Car sustained injuries and they were shifted to

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Government Hospital, Basar and from there, the deceased was

shifted to Yashoda Hospital, Hyderabad and while undergoing

treatment he succumbed to the injuries. Basing on a complaint, a

case in Crime No.13 of 2013 has been registered against the driver

of the Lorry. It is also stated that the deceased was M.C.A.

graduate and was doing job, besides running Wine shop and doing

agriculture personally and was earning Rs.50,000/- per month. It is

further stated that the deceased was an income tax assessee

having PAN card. Due to the sudden death of the deceased, the

claimants lost their source of income and love and affection.

Therefore, the claimants filed the above O.P. against the

respondents 1 to 4, who are the owner and insurer of the Lorry and

owner and insurer of the Car respectively.

4. Before the Tribunal, respondents 1 and 3 remained exparte.

5. The 2nd respondent, insurer of the Lorry, filed counter

denying the averments in the petition. It is also stated that the

accident occurred due to the negligence of the driver of the Car,

who had no control over the Car and the Car was turned turtle and

that there was no involvement of the Lorry. It is further contended

GSD, J Macma_4221_2014

that there was contributory negligence on the part of the

deceased.

6. The 4th respondent, insurer of the Car, filed counter

contending that the deceased was holding a valid and effective

driving licence and that the police registered a case against the

driver of the Lorry and the owner and insurer of the Car were

impleaded as proforma parties. It is also stated that if for any

reason, the deceased was found to be responsible for causing the

accident due to his self negligence the claimants were not entitled

for any compensation.

7. Basing on the above pleadings, the Tribunal framed the

following issues:-

1. Whether the death of the deceased occurred due to the rash and negligent driving of the driver of the crime vehicle?

2. Whether the petitioners are entitled for compensation, if so, at what amount and from whom?

3. To what relief?

8. During trial, on behalf of the claimants, P.Ws.1 and 2 were

examined and Exs.A1 to A16 and Exs.X1 and X2 were marked. On

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behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B1

and B2 were marked.

9. After considering the oral and documentary evidence on

record, the Tribunal came to the conclusion that the accident

occurred due to negligent parking of the lorry by its driver and

awarded total compensation of Rs.24,71,500/- together with

interest @ 6% per annum from the date of petition till the date of

realization payable by the respondents 1 and 2 jointly and

severally. Aggrieved by the said order, the appellant, who is the

insurer of the Lorry, filed the present appeal.

10. Heard and perused the record.

11. Learned Standing Counsel appearing for the appellant would

submit that this is a clear case of contributory negligence of the

deceased and the 4th respondent is equally liable in equal ratio by

virtue of the contributory negligence on the part of the deceased.

It is also submitted that at the time of accident, the Car was

overloaded and as per the charge sheet five persons were traveling

in the said Car. It is further submitted that the sketch report of

the police, clearly shows that the Lorry was parked on the corner

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of the road and the deceased dashed his Car from behind/rear and

the impact was so great that his Car was thrown to the opposite

end of the road, which shows that the deceased was driving the

Car at high speed in the mid-night and dashed to a parked lorry.

Therefore, the deceased himself was responsible for the accident.

It is also submitted that though there was no evidence with regard

to the annual income derived from agriculture at Rs.1,00,000/-,

the Tribunal erroneously took the income of the deceased at

Rs.2,89,000/- per annum and wrongly applied multiplier '17' by

taking into the age of the deceased and since the deceased was

unmarried, the age of his mother is to be taken for applying

multiplier. Therefore, prayed to allow the appeal.

12. Learned Counsel appearing for the claimants would submit

that after considering the material available on record the Tribunal

has categorically observed that the accident occurred due to the

negligent parking of the Lorry by its driver, therefore, there was no

contributory negligence on the part of the deceased. It is also

submitted that as per the principles laid down by the Apex Court in

National Insurance Company Limited Vs. Pranay Sethi and

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others1, the claimants are entitled to future prospects. It is also

submitted that though the claimants have not filed any cross

objections/appeal, the claimants are entitled to seek

enhancement. In support of his contention he relied upon the

judgment of the Apex Court in Surekha and others v. Santosh and

others2. Therefore, it is argued that the income of the deceased

may be taken into consideration reasonably after adding the future

prospects.

13. A perusal of the impugned order would show that the

Tribunal has framed the Issue No.1 as to whether the accident had

occurred due to rash and negligent driving of the driver of the

crime vehicle, to which the Tribunal has categorically observed

that as per Ex.A6-Crime Details Form, the place of accident was

not wide enough and it was on the road leading from Basar to

Bhainsa and the lorry was parked in the middle of the road,

without any indicator lights. Therefore, considering the evidence

of P.W.2 (eye witness to the accident) coupled with Exs.A1 to A6,

the Tribunal held that the deceased died due to the injuries

sustained in the road traffic accident that occurred due to

2017 ACJ 2700

Manu/SC/0803/2020

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negligent parking of the lorry by its driver and answered issue No.1

in favour of the claimants as against the 2nd respondent, who is the

appellant herein. Therefore, I see no reason to interfere with the

finding of the Tribunal that the accident occurred due to the

negligent parking of the driver of the Lorry in the middle of the

road without indicator lights.

14. Insofar as the quantum of compensation is concerned,

admittedly, the claimants have not filed any cross objections/cross

appeal. However, in Surekha and others case (2 supra) the Apex

Court while dealing with the said issue held as under:-

"2. This appeal takes exception to the judgment and order, dated 04.01.2019 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in First Appeal No.2564 of 2016, whereby the High Court, even though agreed with the stand of the appellants that just compensation amount ought to be Rs.49,85,376.00, however, declined to grant enhancement merely on the ground that the appellants had failed to file cross-appeal.

3. By now, it is well settled that in the matter of insurance claim compensation in reference to the motor accidents, the Court should not take hyper- technical approach and ensure that just compensation is awarded to the affected person or the claimants.

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4. As a result, we modify the order passed by the High Court to the effect that compensation amount payable to the appellants is determined at Rs.49,85,376/- with interest thereon as awarded by the High Court."

15. In the light of the said judgment, the claimants are entitled

to just compensation.

16. A perusal of the impugned order would show that the income

tax returns of the deceased for the year 2012-2013 the income of

the deceased was shown only Rs.1,89,700/- per annum from other

sources and Rs.1,00,000/- towards agriculture income. Though the

income tax returns shows the entire amount of Rs.2,89,700/-,

Rs.1.00 lakh which was shown as agriculture income is not a loss to

the dependents. Thus, as rightly pointed out by the learned

Standing Counsel for the appellant that the Tribunal ought to have

considered the said fact and ought to have shown the loss of

income at Rs.1,90,000/- instead of Rs.2,89,000/-. As stated supra,

in view of the judgment of the Apex Court Surekha and others

case (2 supra), the claimants are entitled to just compensation.

Admittedly, at the time of his death, the deceased was running a

Wine Shop by name Laxmi Sai Wines at Basar and he was 27 years

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old at the time of accident. The deceased is also M.C.A. graduate

at the time of his death. Therefore, in the light of the judgment of

the Apex Court in Pranay Sethi (1 supra), the claimants are

entitled to 50% of the future prospects. Therefore, the income of

the deceased comes to Rs.2,85,000/-(Rs.1,90,000/- + Rs.95,000/-).

Since the deceased was a bachelor, his personal and living

expenses shall be 50% of the said amount, i.e., Rs.1,42,500/- per

annum. In view of the decision of the Apex Court in Munna Lal

Jain v. Vipin Kumar Sharma and others3 when the deceased was

a bachelor, the age of the deceased has to be considered while

determining the multiplier and not the age of the mother,

therefore the Tribunal has rightly adopted the multiplier as '17'

since the deceased was 27 years old at the time of the accident.

Adopting multiplier '17', the loss of dependency would be

Rs.1,42,500/- x 17 = Rs.24,22,500/-. The claimants are also

entitled to Rs.33,000/- towards loss of estate and funeral

expenses, as per Pranay Sethi's case (1 supra). Thus, in all the

claimants are entitled to only Rs.24,55,500/-.

2015 (6) SCC 347,

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17. Accordingly, the M.A.C.M.A. is disposed of and the

compensation amount awarded by the Tribunal is reduced from

Rs.24,71,500/- to Rs.24,55,500/-. There shall be no order as to

costs.

18. Miscellaneous petitions, if any, pending shall stand closed.

__________________ JUSTICE G. SRI DEVI 10.03.2022 gkv