Reliance Gen Ins Co Ltd., ... vs K Mangamma Manga, Hyderabad 6 ...
2023 Latest Caselaw 1679 Tel

        HON'BLE SMT. JUSTICE M.G.PRIYADARSINI

           M.A.C.M.A. Nos.2781 of 2014 and 871 of 2015

COMMON JUDGMENT:

       These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.2781 of 2014 filed by the claimants

seeking enhancement of compensation and M.A.C.M.A.No.871 of

2015 filed by the Reliance General Insurance Company Limited

challenging the quantum of compensation, are directed against the

very   same    award    and   decree,    dated   01.02.2014   made   in

M.V.O.P.No.154 of 2011 on the file of the Motor Accidents Claims

Tribunal-cum-X 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.     According to the petitioners, on 18-01-2010 at about 6.00 p.m.

the deceased-K.Balappa was riding his hero Honda motorcycle

bearing No. AP.10.TH.T/R.3762 along with Narahari and Yella

Reddy as pillion riders from Brahmanapally towards Bibinagar and
                                       2



when they reached near Hindustan Godown in the outskirts of

Rahimkhangudem, one auto trolley bearing no. AP.24.W.7785 being

driven by its driver came from opposite direction in rash and negligent

manner with high speed and dashed their motorcycle. Due to which,

the deceased- Balappa, and the pillion riders fell down from the

motorcycle and Balappa sustained fatal injuries and died on the spot

whereas both the pillion riders sustained grievous injuries. Thus, they

are claiming compensation of Rs.30,00,000/- under various heads

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

auto trolley jointly and severally.

3. Respondent No.1 remained ex parte; Respondent No.2 filed

counter disputing the manner of accident, age, avocation and income

of the deceased. It is further contended that there is contributory

negligence on the part of both the vehicles and that the driver of the

auto trolley was not having valid driving license and therefore, prays

to dismiss the petition.

4. Based on the above pleadings, the Tribunal framed the

following issues:

1. Whether the pleaded accident dated 18.01.2010 was occurred due to rash and negligent driving of the driver of crime vehicle i.e., auto trolley bearing No. AP.24.W.7785 and whether the deceased- K.Balappa died due to the said accident?

2. Whether the petitioners are entitled for compensation, and if so to what quantum and whether crime vehicle was owned by first respondent and insured with second respondent and what is the liability of the respondents?

3. To what relief?

5. In order to prove the issues, PWs.1 to 3 were examined and

Exs.A1 to A15 got marked on behalf of the petitioners. On behalf of

respondents, RW-1 was examined and Exs.B1 to B3 got marked.

6. Considering the oral and documentary evidence available on

record, the Tribunal has awarded an amount of Rs.16,00,000/- towards

compensation to the claimants along with proportionate costs and

interest @ 7.5% per annum from the date of presentation of petition

till the date of deposit or realization whichever is earlier, as against the

claim of Rs.30,00,000/- laid by the claimants for the death of the

deceased in a road accident. However, respondent No.2 is directed to

satisfy the award amount at first and then recover the same from

respondent No.1.

7. Heard the learned counsel for the claimants and the learned

Standing Counsel for the respondent No.2-Insurance Company.

Perused the material available on record.

8. The learned counsel for the claimants has submitted that

although the claimants established the fact that the accident occurred

due to the rash and negligent driving of the driver of the auto trolley,

and the death of the deceased-Balappa was caused in the accident, the

Tribunal had taken the income of the deceased very less and did not

consider the future prospects and awarded very meager amount under

various heads.

9. The learned Standing Counsel appearing on behalf of second

respondent-Insurance Company submitted that there is contributory

negligence on both the vehicles as there was triple riding on the

motorcycle at the time of accident and that the Tribunal grossly erred

in making the Insurance Company liable to pay the compensation. It

is further contended that the driver of the offending vehicle was not

having valid driving license at the time of accident and therefore,

prays to dismiss the petition.

10. With regard to the manner of accident, PW-2 who is the pillion

rider on the motorcycle which was driven by the deceased at the time

of accident, deposed that on 18.01.2010 at about 6-00 p.m. while he

being the pillion rider was proceeding on the motorcycle and when

they reached near Hindustan Godowns in the outskirts of

Rahimkangudem on Bibinagar to Brahmanpally road, one auto trolley

bearing No. AP.24.W.7785 came from their opposite direction to its

wrong side from Bibinagar towards Brahmanapally side and dashed

their motorcycle, due to which the deceased sustained fatal injuries all

over the body and died on the spot. He and another pillion rider

Yellareddy sustained grievous injuries. Though PW-2 stated that on

the date of accident three persons were proceeding on the motorcycle

in which he was the pillion rider, no evidence has been adduced by the

insurer that the accident occurred because of the triple riding on

the motorcycle. In the absence of any evidence, it cannot be assumed

or presumed that the accident resulted because of the triple riding on

the motorcycle. The evidence of PW.2 is crystal clear that the auto

trolley came in high speed and dashed the motorcycle and as a result,

three persons travelling on the motorcycle fell on road and the

deceased died on the spot. Therefore, after evaluating the evidence of

PWs.1 and 2 coupled with documentary evidence available on record,

the Tribunal rightly held that the accident occurred due to the rash and

negligent driving of the driver of auto trolley and there are no grounds

to interfere with the findings given by the Tribunal on this aspect.

Now the only dispute is enhancement of compensation.

11. With regard to the quantum of compensation is concerned,

according to the petitioners, the deceased used to run poultry business

in the name and style of Shivamani Poultry Farm, Brahmanpally

village, Bibinagar Mandal, Nalgonda District and used to earn net

profit of Rs.2,00,000/- per annum. Exs.A11 and A12 are the income

tax returns for the financial year 2006-07 and 2008-09, Ex.A13 is the

business income statement and Ex.A14 is the statement of accounts of

the deceased. However, as there is no definite evidence regarding the

exact income, the Tribunal has taken the income of the deceased at

Rs.10,000/- per month, which is very less. Therefore, considering the

age and avocation of the deceased, the income of the deceased can be

taken at Rs.12,500/- per month. Further, in light of the principles laid

down by the Apex Court in National Insurance Company Limited

Vs. Pranay Sethi and others1, the claimants are also entitled to the

future prospects and since the deceased was aged about 40 years at the

time of accident, 40% of the income is added towards future

prospects. Then it comes to Rs.17,500/- (12,500 + 5,000 = 17,500/-).

Since the deceased left as many as six persons as the dependants,

1/4th of his income is to be deducted towards his personal and living

expenses. Then the contribution of the deceased would be Rs.13,125/-

(17,500 - 4,375 = 13,125/-) per month. Since the deceased was aged

about 40 years at the time of accident, the appropriate multiplier in

light of the judgment of the Apex Court in Sarla Verma v. Delhi

Transport Corporation2 would be "15". Then the loss of dependency

would be Rs.13,125/- x 12 x 15 =Rs.23,62,500/-. In addition thereto,

under the conventional heads, the claimants are granted Rs.77,000/- as

per the decision of the Apex Court in Pranay Sethi (supra). Further

the petitioner Nos.2 to 5 are also entitled to filial consortium at

Rs.40,000/- each as per the Magma General Insurance Company

Limited vs. Nanu Ram Alias Chuhru Ram3. Thus, in all, the

petitioners are entitled for Rs.25,99,500/-.

2017 ACJ 2700

2009 ACJ 1298 (SC)

2018 Law Suit (SC) 904

11. With regard to the liability, with regard to its contention that

the driver of the offending vehicle had no valid driving licence, the

insurance company had taken steps by way of issuing notice to

respondent No. 1 as seen from Ex.B.2. Ex.B.3 is the postal

acknowledgement. However, the respondent No.1 did not choose to

put up his appearance. Such being the case, it can safely be presumed

that the driver of the offending vehicle had no valid driving licence.

That apart, after completion of investigation, the police filed the

charge sheet against the driver for the offence under Section 181 of

M.V. Act. Considering all these circumstances, the tribunal has

rightly held that there was violation of terms and conditions of the

policy by the owner, respondent No. 1 and by invoking the doctrine

'pay and recover' and by following the judgments of the Apex Court

in this regard, has rightly directed the respondent No. 2 to first pay the

compensation to the claimants and then recover the same from the

owner, respondent No. 1 without initiating any separate proceedings.

Therefore, this Court sees no ground to disturb the said findings in this

regard.

13. In the result, the M.A.C.M.A.No.2781 of 2014 is partly allowed

by enhancing the compensation amount awarded by the Tribunal from

Rs.16,00,000/- to Rs.25,99,500/-. The enhanced amount shall carry

interest at 7.5% p.a. from the date of petition till the date of

realization. As directed by the tribunal, the respondent No.2 is

directed to first pay the compensation to the claimants and then

recover the same from the owner, respondent No.1. The amount of

compensation shall be apportioned among the claimants in the ratio as

ordered by the Tribunal. The amount shall be deposited within a

period of one month from the date of receipt of a copy of this order.

On such deposit of compensation amount, the claimants are at liberty

to withdraw the same without furnishing any security.

M.A.C.M.A.No.871 of 2015 is hereby dismissed. The petitioners are

not entitled for interest during the delay period. No costs.

Miscellaneous petitions, if any pending, shall stand closed.

_____________________ M.G.PRIYADARSINI,J

28.12.2022 pgp