Telangana High Court

National Insurance Company Ltd., vs Hasma Begum Katika Hasmi Begum on 13 April, 2023

Bench: M.G.Priyadarsini

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

       M.A.C.M.A.Nos.3181 OF 2017 AND 3289 OF 2019

COMMON JUDGMENT:

       These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.3181 of 2017, filed by the

National Insurance Company Limited and M.A.C.M.A.No.3289 of

2019    filed   by      claimants,   challenging     the     quantum     of

compensation, are directed against the very same order and

decree, dated 14.07.2017 made in M.V.O.P.No.202 of 2014 on

the file of the Chairman, Motor Accidents Tribunal-cum-XI

Additional Chief Judge, City Civil Court, Hyderabad (for short

"the Tribunal").


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

referred to as per their array before the Tribunal.


3.     The facts, in brief, are that the claimants laid a claim

under Section 166 of the Motor Vehicles Act, 1988, claiming

compensation       of    Rs.20,00,000/-    for     the     death   of   one

M.D.Shakeel, husband of claimant No. 1, father of claimant

Nos. 2 to 5 (hereinafter referred to as "the deceased"), who died

in the accident that occurred on 15.11.2013. According to the

claimants, on the fateful day, while the deceased, along with his

younger brother, was proceeding on scooter bearing No. AP 07

8371 from Hythabad to Jiyaguda and at about 07:30 hours,
                                 2                              MGP, J
                                        Macma_3181_2017 and 3289_2019



when he reached near pillar No. 151 Hyderguda, suddenly one

TATA indica Car bearing No. AP 28 TV 4097, owned by

respondent No. 1, insured with respondent No. 2, being driven

by its driver in a rash and negligent manner at high speed,

dashed the deceased. Due to the said impact, the deceased fell

down on the road and sustained bleeding injuries all over the

body. Immediately, he was taken to Osmania General Hospital

and later, shifted to Care Hospital, wherein the deceased

succumbed to the injuries while undergoing treatment. On a

complaint, a case in Crime No.930 of 2013 was registered under

Section 304(A) IPC. According to the claimants, the deceased

was earning Rs.10,000/- per month by running a mutton and

chicken meat shop and used to contribute his earnings to the

welfare of the family. On account of the sudden demise of the

deceased, the claimants have lost their bread winner and love

and affection. Therefore, they laid the claim against the

respondent Nos.1 & 2, who are the owner and insurer of the

crime vehicle i.e., TATA indica Car bearing No. AP 28 TV 4097.

4. Before the Tribunal, while the respondent No. 1 remained

ex parte, the respondent No. 2, insurance company filed counter

stating that the driver of the crime vehicle did not possess valid

driving licence and denied all the averments made in the claim-

petition, including the manner in which the accident took place, 3 MGP, J Macma_3181_2017 and 3289_2019

age, avocation and earnings of the deceased. It is specifically

contended that the accident occurred only due to the

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

contended that the claim is excessive and exorbitant and prayed

to dismiss the petition.

5. After considering claim and counter filed by the

respondent No. 2 and the oral and documentary evidence

available on record, the Tribunal held that the accident occurred

due to the negligent driving of the crime vehicle i.e., TATA indica

Car and has awarded an amount of Rs.13,15,000/- with

interest at 9% per annum from the date of petition till the date

of realisation. Challenging the same, the present appeals came

to be filed by the Insurance Company and the claimants

respectively.

6. Heard both the learned counsel and perused the material

available on record.

7. The main contention raised by the learned Standing

Counsel for the Insurance Company (appellant in

M.A.C.M.A.No.3181 of 2017) is that the Tribunal did not

consider the evidence brought on record in proper perspective

and erroneously held that the accident had occurred due to the

rash and negligent driving of the driver of the TATA indica Car.

4 MGP, J Macma_3181_2017 and 3289_2019

In fact, the accident took place due to the contributory

negligence on the part of the deceased, who was riding the

scooter on the road without observing the moving vehicles on

the road. Therefore, the Tribunal ought to have apportioned

contributory negligence even on the part of the deceased. As

regards the quantum of compensation, although the claimants

failed to prove the income of the deceased by producing cogent

documentary evidence, the Tribunal erred in taking the income

of the deceased at Rs.1,00,000/- per annum. Therefore, the

Tribunal has granted excessive and exorbitant compensation,

which needs to be reduced. It is lastly contended that

inasmuch as the driver of the offending vehicle was not having

valid and effective driving license, at least, the Tribunal ought to

have ordered pay and recovery as per the decision of Apex

Court.

8. Per contra, learned counsel for the claimants (appellants

in M.A.C.M.A.No.3289 of 2019), has contended that since the

claimants have asserted that the deceased was running mutton

and chicken meat shop and filed Ex.A.7, income certificate,

which substantiated the income of the deceased, the Tribunal

ought to have fixed the income of the deceased at Rs.10,000/-

per month. He further contended that the claimants are entitled

for future prospects as per the decision of Apex Court. As 5 MGP, J Macma_3181_2017 and 3289_2019

regards the contributory negligence, it is contended that in light

of evidence of P.W.2, eyewitness to the accident, and the

documentary evidence i.e., Exs.A.1 and A.2, the Tribunal has

rightly held that there was no contributory negligence on the

part of the deceased and the same needs no interference.

9. As regards the manner of accident, it is the main

contention of the learned Standing Counsel for the Insurance

Company (appellant in MACMA No.3181 of 2017) that the

accident occurred due to the contributory negligence even on

the part of the deceased as the deceased riding the scooter on

the road without observing the moving traffic and therefore, the

Tribunal should have apportioned contributory negligence. As

seen from the record, Ex.A.1, FIR, was registered against the

driver of the crime vehicle. Further, after due investigation into

the crime, police laid the charge sheet, Ex.A.2, against the

driver of the offending vehicle stating that the accident occurred

due to the rash and negligent driving of the offending vehicle

and the driver was charged for the offence under Sections 304-A

IPC. That apart, P.W.2, the eyewitness to the accident, who was

also co-traveller along with the deceased, clearly stated that the

accident occurred only due to the rash and negligent driving of

the TATA indica Car by its driver. Though it is the case of the

Insurance Company that there was contributory negligence on 6 MGP, J Macma_3181_2017 and 3289_2019

the part of the deceased, for the reasons best known to it, the

Insurance Company did not take any steps to summon the

driver of the offending car to prove that there was contributory

negligence on the part of the deceased, who is the best person to

speak in this regard. Further, no contra evidence was elicited in

the cross-examination of P.W.2, eyewitness to the accident to

discredit his testimony. Therefore, considering the evidence of

P.W.2 and Exs.A.1 & A.2, FIR and charge sheet, the Tribunal

has rightly held that the accident occurred only due to the rash

and negligent driving of the Car by its driver and as such, the

contention of learned standing counsel for the Insurance

Company that there is contributory negligence on the part of the

deceased, is hereby rejected.

10. Insofar as the quantum of compensation is concerned, the

case of the claimants is that deceased was earning Rs.10,000/-

per month by running mutton and chicken meat shop. In

support of their claim, they filed Ex.A.7, income certificate

issued by the Tahasildar, Shabad Mandal, showing the annual

income of the deceased at Rs.1,00,000/-. It reflects that the

deceased used to earn Rs.90,000/- from the mutton and

chicken meat shop and Rs.10,000/- from the lands which works

out to Rs.8,333/- as monthly income. The Tribunal has taken

the annual income at Rs.1,00,000/-. Considering the evidence 7 MGP, J Macma_3181_2017 and 3289_2019

and duly taking into consideration the age of the deceased, this

Court is inclined to fix the income of the deceased at Rs.9,000/-

per month. Since, the deceased was aged 38 years, 40% needs

to be added towards future prospects as per the decision of the

Apex Court in National Insurance Company Limited Vs.

Pranay Sethi and others1, which works out to Rs.12,600/- per

month (Rs.9,000 + Rs.3,600). As there are five dependents,

1/4th has to be deducted towards personal expenses. After

deducting 1/4th towards personal expenses and living expenses,

the net monthly income of the deceased works out to Rs.9,450/-

(Rs.12,600 - Rs.3,150). Since the age of the deceased was 38

years, as held by the Tribunal, the appropriate multiplier is '15'

as per the guidelines laid down by the Apex Court in Sarla

Verma v. Delhi Transport Corporation2. Adopting multiplier

'15', the total loss of dependency comes to Rs.17,01,000/-

(Rs.9,450 x 12 x 15). That apart, the claimants are entitled to

Rs.77,000/- under the conventional heads as per the decision of

the Apex Court in Pranay Sethi (Supra). Further, the claimant

Nos.4 & 5 being the minor children of the deceased, are entitled

to Rs.40,000/- each towards parental consortium as per the

decision of the Apex Court in Magma General Insurance

2017 ACJ 2700

2009 ACJ 1298 (SC) 8 MGP, J Macma_3181_2017 and 3289_2019

Company Limited v. Nanu Ram @ Chuhru Ram and others3.

Thus, in all, the claimants are entitled to compensation of

Rs.18,58,000/-.

11. As regards the liability, the main contention of the learned

Standing Counsel for the respondent No. 2-Insurance Company

is that the driver of the crime vehicle was not having valid

driving licence at the time of the accident. In support of the said

contention, he relied on the evidence of R.Ws.1 & 2, Junior

Assistance in District Transport Office, R.R. District, who

deposed that the driver of the crime vehicle has no driving

licence to drive the vehicle by the date of the accident. As such,

there was breach of terms and conditions of the Policy. However,

it is true that by the time of accident, the offending vehicle was

insured with respondent No. 2 - the Insurance Company, which

was supported by the evidence of R.Ws.1 & 2 and Ex.B.2, policy,

was in force. In the case of third party risks, as per the decision

in National Insurance Company Ltd. V. Swaran Singh and

others4, the insurer had to indemnify the compensation amount

payable to the third party and the insurance company may

recover the same from the insured. In the said decision, the

Apex Court considered the doctrine of "pay and recover"

(2018) 18 SCC 130

(2004) 3 SCC 297 9 MGP, J Macma_3181_2017 and 3289_2019

examined the liability of the insurance company in cases of

breach of policy condition due to disqualifications of the driver

or invalid driving license of the driver and held that in case of

third party risks, the insurer has to indemnify the compensation

amount to the third party and the insurance company may

recover the same from the insured. Recently, the Apex Court in

the case of Shamanna v. The Divisional Manager, the

Oriental Insurance Company Limited and Others5, following

its earlier decision in Swaran Singh (supra), reiterated that

"even if the driver does not possess any driving license, still the

insurer is liable to pay the compensation and that he can recover

the award amount from the owner of the offending vehicle after

paying the amount." In view of the above, this Court is inclined

to direct the respondent No. 2-Insurance Company to pay the

compensation amount at the first instance and then recover the

same from the respondent No. 1-owner of the vehicle, thereafter.