Pisati Rami Reddy vs Md. Quddus
2023 Latest Caselaw 1760 Tel

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

                 M.A.C.M.A.No.2021 of 2019

JUDGMENT:

Assailing the order and decree, dated 17.05.2016

rendered in M.V.O.P.No.564 of 2012, on the file of the

Motor Accident Claims Tribunal-cum-Principal District

Judge, Mahabubnagar (hereinafter referred to as 'the

learned Tribunal'), the appellant/respondent No.1, who is

the registered owner of the offending vehicle i.e. Lorry

bearing No.AP 24 TB 1717, has preferred this appeal.

2. The parties in this appeal are referred to as they

stood before the Tribunal.

3. The factual circumstances that lead to filing this

appeal are as follows:

The claimants, who are the parents and brothers of

one Md.Shakeel (hereinafter referred to as 'the deceased'),

filed claim-petition under Section 166 of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') claiming

compensation of Rs.6,00,000/- for the death of the

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deceased in a vehicular accident, which occurred on

21.07.2012. It is stated that on 21.07.2012 the deceased

as cleaner and respondent No.3 as driver of the crime

vehicle i.e. Lorry bearing No.AP 24 TB 1717 belonging to

respondent No.1 went to Chinthavaram Village of Chillakur

Mandal to load the Lorry with Silika sand, on that date, at

about 12.00 midnight, respondent No.3 not knowing the

loading point went to a different way, thereafter, when he

was reversing the Lorry in order to go to the loading point,

the deceased, who was behind the lorry, while giving

directions to respondent No.3, at that time, respondent

No.3 drove the Lorry in rash and negligent manner and the

rear side of the Lorry dashed the deceased. As a result, the

deceased fell down and the left side rear tyre of the Lorry

ran over the body of the deceased, due to which the

deceased sustained fatal injuries and while he was shifting

to Government Hospital, Gudur, on the way, he succumbed

to the injuries on 22.07.2012 at about 1.30 AM. The

concerned Police registered a case in Crime No.130 of 2012

for the offence under Section 304-A I.P.C. against

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respondent No.3. The claimants filed the aforesaid O.P.

against respondent Nos.1 to 3, who are the owner, insurer

and driver of the crime Lorry respectively.

4. Before the learned Tribunal, respondent Nos.1 and 3

filed separate counters denying all the allegations of the

petition including the age and income of the deceased,

manner of the accident. They also submitted that the

claim of the petitioners is excessive and respondent

No.2/insurer is liable to pay the compensation if any

awarded, as the driver of the crime Lorry was having valid

driving licence.

5. Though Respondent No.2/Insurer opposed the claim

petition but, did not file any counter.

6. Before the learned Tribunal, on behalf of the

petitioners, PWs 1 and 2 were examined and Exs.A-1 to A-8

were marked. On behalf of respondent No.2/Insurer, RW-1

was examined and Exs.B-1 and B-2 were marked.

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7. The learned Tribunal, considering the claim and the

counters filed by the owner and driver of the offending

vehicle, and on evaluation of the evidence, both oral and

documentary, has partly allowed the said claim petition

and awarded a total sum of Rs.5,92,000/- as compensation

along with the interest @ 9% per annum from the date of

filing of the claim petition to 06.05.2014 and from

11.12.2014 to till the date of realization payable by

respondent Nos.1 and 2 jointly and severally while

dismissing the claim against respondent No.3-driver and

respondent No.2/insurer has been directed to deposit the

above said compensation with interest and costs at first,

and then to recover the same from respondent No.1/owner.

Challenging the liability fastened on him to pay the

compensation, respondent No.1/owner preferred the

present appeal seeking to set aside the Award dated

17.05.2016 passed by the learned Tribunal by exonerating

him from the liability to pay compensation to the

petitioners.

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8. Learned counsel for the appellant/respondent No.1

vehemently submitted that the learned Tribunal ought not

to have given much importance to the discrepancy as to the

name of driver of the offending vehicle and the learned

Tribunal must ascertain admitted facts. He further

submitted that the name of driver of offending vehicle in

MVI Report mentioned as J.Papaiah @ Dakiya,

S/o.Shambaiah and in the cause title, the name of

respondent No.3 is mentioned as Jangili Papaiah @ Dakiya,

S/o.Shambaiah and in the charge-sheet in C.C.No.359 of

2012 the name of driver of the offending vehicle was shown

as Jangili Papaiah @ Dakiya, S/o.Shambaiah. The learned

Tribunal ought to have seen that respondent No.3/driver

was charge-sheeted for the offence under Section 304-A

I.P.C., after completion of the investigation of the crime and

except raising mere contention by respondent No.2/Insurer

that respondent No.3 is not a driver of the offending

vehicle, no evidence let in by respondent No.2/Insurer to

prove the said fact and Investigation Officer was also not

examined. He further stated that the complaint was given

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by one Jaryala Babu, S/o.Kokiya and the same was

registered as Crime No.130 of 2012 of Chillakur Police

Station under Section 304-A I.P.C. against respondent

No.3, but the said complainant was not examined as a

witness by the claimants to explain the circumstances

under which the accident took place and respondent

No.2/Insurer also not examined him whether respondent

No.3 is a driver or not, to substantiate its contentions. It is

an obligation on part of the Insurance Company to

summon the owner of the vehicle and driver of the vehicle

and examine them to elicit the facts that whether they

colluded with the claimants but respondent No.2 did not do

so. Respondent No.2 failed to discharge its onus to prove

its case by leading evidence. He further stated that the

learned Tribunal ought to have seen that the driver of the

offending vehicle has valid licence and insurance policy is

existing in respect of the offending vehicle as on the date of

the accident, therefore, the learned Tribunal ought to have

fasten the liability upon respondent No.2/Insurer to pay

compensation. The learned Tribunal erred in directing

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respondent No.2 to deposit the compensation amount and

then recover the same from the appellant/respondent No.1.

It is submitted that the learned Tribunal grossly erred in

taking the monthly income of the deceased as Rs.3,500/-

without any documentary evidence and also erred in

adopting the multiplier while calculating the compensation.

It is also submitted that the quantum of compensation and

interest there on @ 9% per annum are on higher side and

they can be modified. Therefore, prays for interference

with the impugned award passed by the learned Tribunal.

9. Per contra, the learned Standing Counsel appearing

on behalf of the Insurance Company/respondent No.2,

contended that the learned Tribunal after analyzing the

evidence on record and on an elaborate discussion has

rightly came to the conclusion that J.Papaiah was not the

driver of the offending vehicle and one Dakya was the

driver of the offending vehicle but by knowing the said

Dakiya was not having valid driving licence, the name of

the driver was changed as J.Papaiah @ Dakya collusively,

and therefore, as there is clear violation of terms and

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conditions of insurance policy, the principle of pay and

recovery was applied to this case. Therefore, submitted

that the liability fixed on respondent No.1-owner of the

offending vehicle is correct, which need not be interfered by

this Court and, prays to dismiss the appeal.

10. Heard learned counsel appearing on behalf of the

respective parties. Perused the impugned award passed by

the learned Tribunal as well as the evidence on record.

11. The points that arise for consideration in this appeal

are as follows:

(i). "Whether the learned Tribunal was justified in ordering pay and recovery of the compensation in the impugned award?

(ii). Whether the compensation awarded by the learned Tribunal is just and equitable"?

12. The 1st respondent, who is the registered owner of the

offending vehicle i.e. Lorry bearing No.AP 24 TB 1717 is the

appellant in this case. According to the appellant, he

cannot be saddled with the liability to pay compensation to

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the claimants when the driver of offending vehicle was

having valid driving licence and, therefore, 2nd respondent-

Insurance Company is liable to pay compensation to the

claimants.

13. It is not in dispute that respondent No.1 was the

registered owner of the offending Lorry on the date of the

accident. It is also admitted that the said Lorry was

insured with respondent No.2 and the insurance policy-

Ex.B-1 taken in the name of respondent No.1 was in force

on the date of the accident. There is no denial of the fact

by the Insurance Company that at the relevant point of

time, the offending vehicle was insured with it and the

policy was very much in force and in existence.

14. It has been contended by respondent No.2/Insurer

that there has been violation of the terms and conditions of

the policy. On the other hand, the contention of

respondent No.1/owner is that the there is no violation of

the terms and conditions of the policy, the driver of

offending vehicle was having valid driving licence and the

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insurance policy is in existence as on the date of accident.

It has been the further contention of respondent

No.1/owner that there is discrepancy with regard to the

name of the driver and the learned Tribunal ought not to

have given much importance to the said discrepancy.

15. It is the case of the Insurance Company that the

claimants filed collusive petition to enable them to get

compensation from the insurer. The driver of offending

vehicle is noted as Dakiya, who is a Lambada by caste, but

by knowing the said Dakiya was not having valid driving

licence, the claimants in collusion with the Police of

Chillakur, got the name of the driver written as J.Papaiah

@ Dakiya, S/o.Sambaiah in the charge-sheet. In Ex.A-8-

copy of driving licence filed by the petitioners and in Ex.

B-2-extract of driving licence filed by 2nd respondent, the

name of the driver is noted as Papaiah J,

S/o.J.Shambaiah. In Exs.A-5, A-8 and Ex.B-2, it is noted

that the said J.Papaiah will also be called as Dakiya. When

there is discrepancy as to the name of the driver of

offending vehicle, respondent No.1/owner has to enter into

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witness box to give evidence and to produce the driving

licence and the documents of the crime vehicle to prove

that respondent No.3 by name Jangili Papaiah @ Dakiya

was the driver of the offending vehicle and that the said

driver was having valid driving licence at the time of

accident. But, the 1st respondent/owner did not do so.

The 1st respondent/owner has failed to discharge the onus

cast upon him. Therefore, the learned Tribunal has come

to a conclusion that J.Papaiah was not the driver of the

offending vehicle and one Dakiya was the driver of the

offending vehicle and as the said Dakiya was not having

valid driving licence by the date of accident, directed the

Insurance Company to pay the entire compensation and

recover the same from the insured by relying upon the

decision of Apex Court in National Insurance Company

Limited vs. Swaran Singh and others1.

16. In view of the facts and circumstances of the case,

this Court find no fault with the impugned award insofar

(2004) 3 SCC 297

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as fixing the liability is concerned and there is no reason to

interfere with the same.

17. Insofar as the quantum of compensation is

concerned, the compensation, which the dependants of

deceased Md.Shakeel would be entitled, has to be

calculated again in the light of established parameters.

18. Though the claimants asserted that the deceased was

aged 23 years and was earning Rs.1,200/- per month by

working as cleaner of the Lorry and dance master in New

Dragon Dance Academy as on the date of accident, there is

no evidence on record to that effect. In Ex.A-3-Inquest

Panchanama and in Ex.A-4-Post Mortem Examination

Certificate, the age of the deceased was shown as 23 years.

In the absence of any proof, considering the age and

avocation of the deceased, the Tribunal has rightly taken

the income of the deceased at Rs.3,500/- per month. Since

the age of the deceased at the time of accident was 23

years, the claimants are entitled to addition of 40% towards

future prospects to the established income, as per the

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decision of the Hon'ble Supreme Court in National

Insurance Company Limited Vs. Pranay Sethi and

others2. Therefore, the future monthly income of the

deceased comes to Rs.4,900/- (Rs.3,500/- + Rs.1,400/-).

From this, as the deceased was a bachelor, 50% is to be

deducted towards personal expenses of the deceased

following the decision in Sarla Verma v. Delhi Transport

Corporation3. After deducting 50% therefrom towards his

personal and living expenses, the contribution of income by

the deceased to the family comes to Rs.2,450/- per month.

Since the age of the deceased was 23 years, as held by the

Tribunal, 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 comes to Rs.5,29,200/- (Rs.2,450 x 12 x 18).

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

the heads of 'funeral expenses' and 'loss of estate'. The

claimant Nos.1 and 2 being the parents of the deceased are

entitled to Rs.40,000/- each towards filial consortium in

2017 ACJ 2700

2009 ACJ 1298 (SC)

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view of the judgment of the Apex Court in Magma General

Insurance Company Limited v. Nanu Ram @ Chuhru

Ram and others4.

                DESCRIPTION                              AMOUNT (Rs.)
Loss of dependency                                         5,29,200.00
Loss of filial consortium to claimant Nos.1                  80,000.00
and 2
Funeral expenses and loss of estate                              33,000.00
                                      Total:                   6,42,200.00

19.     Thus,         in    all,   the    claimants    are     entitled   to

Rs.6,42,200/-              towards     compensation.         The    learned

Tribunal        awarded            a     sum   of     Rs.5,92,000/-       as

compensation. However, the just compensation, which the

claimants are entitled to Rs.6,42,200/-.

20. In view of the Judgments of the Apex Court in

Laxman @ Laxman Mourya Vs. Divisional Manager,

Oriental Insurance Company Limited and another5 and

Nagappa Vs. Gurudayal Singh6 the claimants are

entitled to get just compensation even if it is more than the

amount what was claimed by the claimants.

(2018) 18 SCC 130

(2011) 10 SCC 756

2003 ACJ 12 (SC)

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21. Insofar as the interest awarded by the learned

Tribunal is that the claimants are entitled to interest @

7.5% per annum on the compensation awarded by this

Court from the date of petition till realization, as per the

decision of the Apex Court in Rajesh and others v. Rajbir

Singh and others7. Hence, the interest granted by the

learned Tribunal @ 9% per annum is reduced to 7.5% per

annum on the awarded amount of Rs.6,42,200/- from the

date of petition till the date of realization.

22. In the result, the M.A.C.M.A. is dismissed. The

compensation amount awarded by the Tribunal is

enhanced from Rs.5,92,000/- to Rs.6,42,200/-. The

enhanced amount shall carry interest at 7.5% p.a. from the

date of petition till the date of realization to be payable by

the appellant/respondent No.1 and respondent

No.5/Insurer jointly and severally. Respondent

No.5/Insurer is directed to deposit the above said

compensation with interest and costs at first within a

7 2013 ACJ 1403 = 2013 (4) ALT 35

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period of one month from the date of receipt of a copy of

this order, and then recover the same from the

appellant/respondent No.1. On such deposit, the

claimants are entitled to withdraw their respective share

amounts without furnishing any security. However, the

claimants shall pay the deficit Court Fee on the enhanced

compensation. No order as to costs.

Pending miscellaneous application, if any, shall stand

closed.

_____________________________ SMT. M.G.PRIYADARSINI, J

Dt.25.04.2023 svl

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

M.A.C.M.A. No.2021 of 2019

DATE: 25-04-2023

svl