K Padma, Hyd And 2 Others vs M. Aruna Devi, Nalgonda Dist ...
2022 Latest Caselaw 6054 Tel

       THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI


                      M.A.C.M.A.No. 645 of 2017
JUDGMENT:

Dissatisfied with the quantum of compensation awarded in

the order and decree, dated 15.11.2016 passed in

M.V.O.P.No.2120 of 2013 on the file of the Motor Vehicle Accident

Claims Tribunal-cum-X Additional Chief Judge, City Civil Cout at

Hyderabad (for short "the Tribunal") and in exonerating the

insurance company, respondent No. 2 herein from the liability of

payment of compensation, the appellants/claimants preferred the

present appeal.

2. For the sake of convenience, the parties will be hereinafter

referred to as arrayed before the Tribunal.

3. The facts, in issue, are as under:

The claimants filed a petition under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of Rs.15,00,000/- for

the death of one K. Srinivas (hereinafter referred to as "the

deceased"), who died in a motor vehicle accident that occurred on

10.02.2013. It is stated that on the fateful day, while the

deceased, along with his friends, was proceeding in an auto, at

1500 hours, when the auto reached near Pati Village outskirts, the

offending vehicle i.e., lorry bearing No. AP 24TB 0405, owned by

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respondent No. 1 and insured with respondent No. 2, coming from

Muthangi to Kolluru, being driven by its driver in a rash and

negligent manner at high speed, dashed the auto. The deceased

sustained severe injuries and while undergoing treatment at

Gandhi Hospital, succumbed to the injuries on 12.02.2013.

According to the claimants, the deceased was 25 years, working as

School Bus driver in Dr.KKR Goutham Concept School, Nizampet,

drawing monthly salary of Rs.9,500/- and thereore, they filed the

O.P. claiming compensation of Rs.15.00 lakhs against the

respondents.

4. Before the tribunal, while the respondent No. 1 remained ex

parte, respondent No. 2, insurance company, filed counter denying

the manner in which the accident took place, including the age,

avocation and income of the deceased. It was the specific case of

the respondent No. 2 that the driver of the offending vehicle was

not holding valid driving licence and therefore, no liability can be

fastened on it. It is also stated that the quantum of compensation

claimed is excessive, baseless and prayed to dismiss the petition.

5. Considering claim, counter and the oral and documentary

evidence available on record, the tribunal held that the accident

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

awarded an amount of Rs.9,97,000/- with interest @ 6% per

MGP, J Macma_645_2017

annum from the date of petition till the date of realization.

However, as the driver of the offending vehicle was found to be not

holding any valid driving licence, the liability was fixed alone on

the respondent No. 1 while exonerating the insurance company.

Challenging the quantum of compensation as meagre and

challenging the findings of the tribunal in exonerating the

insurance company from liability of payment of compensation, the

present appeal came to be filed by the claimants.

6. Heard both sides and perused the record.

7. The learned counsel for the claimants firstly contended that

the tribunal was not right in exonerating the insurance company

from the liability of payment of compensation merely because the

driver did not produce the licence before the police and in the

absence of any evidence adduced by the insurance company by

summoning the appropriate authority to prove that the driver was

not having valid driving licence, the tribunal ought not to have

exonerated the insurance company on mere assumption that the

driver was not holding valid driving licence.

8. Secondly, on the issue of quantum of compensation, it is

contended that although the tribunal has not relied on Ex.A.6,

salary certificate, for the reason that the employer, P.W.2, did not

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produce proper evidence, and having taken the monthly salary of

deceased at Rs.6,000/-, ought to have added 40% thereto, towards

future prospects as per the decision of the Apex Court in National

Insurance Company Limited Vs. Pranay Sethi and others1.

That apart, though claimant No. 2, father died during the

pendency of O.P., the claimant No.1, being the mother of the

deceased, ought to have been granted filial consortium of

Rs.40,000/- in view of the judgment of the Apex Court in Magma

General Insurance Company Limited v. Nanu Ram @ Chuhru

Ram and others2. It is lastly contended that the interest awarded

by the Tribunal at 6% is meagre and the same needs to be

enhanced to 7.5% per annum.

9. On the other hand, on the aspect of liability, the learned

Standing Counsel for the respondent No.2, Insurance company,

contended that after due investigation, police laid the charge sheet

against the driver of the offending vehicle for the offence under

Sections 304-A IPC and Section 181 of Motor Vehicles Act with a

clear finding that he was not holding valid driving licence and

therefore, the tribunal has rightly exonerated the insurance

company from the liability of payment of compensation. Coming

2017 ACJ 2700

(2018) 18 SCC 130

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to the quantum of compensation, it is contended that even though

the claimants have not established the income of the deceased, the

tribunal has taken the income as Rs.6,000/- per month. In fact,

the tribunal has erred in adding future prospects at 50%, but

considering the nature of job of the deceaesd, it should be 40%

only.

10. The finding of the Tribunal with regard to the manner in

which the accident took place has become final as the same is not

challenged by either of the respondents. However, based on the

contents of the charge sheet, which was filed by the police stating

that the driver did not produce any copy of his licence and as he

was booked for the offence under Section 181 of Motor Vehicles

Act, the tribunal has exonerated the insurance company holding

that the driver of the offending vehicle was not holding valid driving

licence. It is to be noted that as per Section 149(2) of the Motor

Vehicles Act, 1988, heavy burden lies upon the insurer to prove

that the driver of the vehicle had no valid driving license at the

time of the accident. The evidence of RW-1 does not establish that

the driver of the offending vehicle was having a valid and effective

driving license as on the date of the accident or not. But the

evidence discloses the fact that the driver has been prosecuted for

not producing the driving license. In such circumstance and as

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the concerned RTA authority was not examined, the evidence of

RW-1 is not of much assistance to the insurer in order to establish

the fact that the driver of the offending vehicle did not possess a

valid and effective driving license at the time of the alleged

accident. Even it is not the case of the insurance company that

they have issued any notices to the owner in this regard. This

evidence of R.W.1 does not come to the aid of the insurer to

discharge its primary duty to establish that there was breach of

terms of the policy. As per the principles laid down by the Apex

Court in Rukmani and Others V. New India Assurance Co. and

Others3, when the insurer had failed to prove the defence raised

in the statement of objections, such a plea cannot be accepted.

When the police officer or the records are not summoned from the

transport authority to establish the fact that the driver of the

offending vehicle was not having a valid and effective driving

license, then, under such circumstances, it has to be held that the

insurer has failed to discharge its burden. Under these

circumstances, the contention of the learned counsel for the

appellant/Insurance Company cannot be sustained and it is

hereby rejected. Further, the Motor Vehicles Act is a beneficial

piece of legislation. Time and again, it has been held by the Apex

(1998) 9 SCC 160

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Court that trappings of civil and criminal proceedings cannot be

applied in a very strict manner. Therefore, in view of the above

discussion, this Court is of the opinion that the tribunal was not

right in holding that the driver of the offending vehicle was not

holding driving licence. Hence, the said findings of the tribunal in

this regard are set aside holding that both the respondents are

jointly and severally liable to pay the compensation.

11. As regards the quantum of compensation, though the

claimants claimed that the deceased was earning Rs.9,500/- per

month as school bus driver, in the absence of any documentary

evidence adduced by P.W.2, the tribunal has rightly fixed the

monthly income of the deceased at Rs.6,000/-. Considering the

fact that the deceased was 25 years old at the time of the accident

and was driver, the claimants are entitled to addition of 40%

towards future prospects to the established income but not 50%,

as per the decision of the Hon'ble Supreme Court in Pranay Sethi

(supra). Therefore, the future monthly income of the deceased

comes to Rs.8,400/- (Rs.6,000/- + Rs.2,400/-). From this, 50% is

to be deducted towards personal expenses of the deceased

following Sarla Verma v. Delhi Transport Corporation4 since he

was a bachelor. After deducting 50% therefrom towards his

2009 ACJ 1298 (SC)

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personal and living expenses, the contribution of the deceased to

the family would be Rs.4,200/- per month. Since the age of the

deceased was 25 years at the time of the accident, the appropriate

multiplier is '18' as per the guidelines laid down by the Apex Court

in Sarla Verma (supra). Adopting multiplier '18', the total loss of

dependency would be Rs.4,200/- x 12 x 18 = Rs.9,07,200/-. That

apart, the claimants are entitled to Rs.33,000/- under the

conventional heads as per the decision of the Apex Court in Pranay

Sethi (supra). Further, under the head of filial consortium, the

claimant No.1, being mother of the deceased, is entitled to

Rs.40,000/- as per the decision of the Apex Court in Nanu Ram @

Chuhru Ram (supra). Thus, in all, the claimants are entitled to

Rs.9,80,200/-.

12. Insofar as the interest awarded by the Tribunal is concerned,

as per the decision of the Apex Court in Rajesh and others v.

Rajbir Singh and others5, the claimants are entitled to interest @

7.5% per annum on the compensation awarded by the Tribunal

from the date of petition till realization but not 6% as was awarded

by the Tribunal.

5 2013 ACJ 1403 = 2013 (4) ALT 35

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13. Accordingly, M.A.C.M.A. is allowed in part. The claimants

are granated compensation of Rs.9,80,200/- to be paid by both the

respondents jointly and severally. The compensation amount shall

carry interest at 7.5% p.a. from the date of passing of order by the

Tribunal till the date of realization. The amount shall be

apportioned in the manner as ordered by the Tribunal. Time to

deposit the entire compensation is two months from the date of

receipt of a copy of this judgment. On such deposit, the claimants

are entitled to withdraw their respective share amounts. There

shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

____________________________ SMT. M.G.PRIYADARSINI, J 22.11.2022 Tsr

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THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

M.A.C.M.A.No. 645 of 2017

DATE: 22-11-2022