Telangana High Court
Navaneetha Rao Takkallapally, vs Thipparapu Sunitha, on 12 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NOs.303 and 304 of 2023
COMMON JUDGMENT:
Heard Sri T.Mahender Rao, learned counsel for the
appellants, Sri S.Chalapathi Rao for respondent Nos.1 to 4 in
MACMA No.303 of 2023, Sri A.Ramakrishna Reddy for respondent
no.1-insurance company in both appeals.
2. Both the appeals are filed by the driver and owner of the
crime vehicle in an accident occurred on 09.09.2020.
3. Since the issue in the above appeals is arising out of the
same accident, both the appeals are heard together and disposed
of by this common judgment.
4. The claimants in both the appeals filed O.A.No.392 of 2020
and O.A.No.12 of 2021, respectively. MACMA No.303 of 2023 is
arising out of O.A.No.12 of 2021 and MACMA No.304 of 2023 is
arising out of O.A.No.392 of 2020.
5. The facts leading to filing of Appeals are,
(a) O.P.No.12 of 2021 is filed under Section 166 of Motor
Vehicles Act, 1988 by the wife, sons and daughter of the deceased-
Manegalla Narsaiah, claiming compensation of Rs.15,00,000/- on
account of death of the deceased in a motor vehicle fatal accident.
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(i) As per the averments of the petition, on 09.09.2020 at
about 5.30 p.m., the deceased-Manegalla Narsaiah started from his
house Pembarthy to go to his agricultural land through Tangutoor
X Roads on his cycle and when he reached the Tangutoor X road of
Pembarthy village on NH-163, one Innova Car bearing registration
No.TS-03-EV-4668, driven by its driver, who is appellant no.1, in
drunken condition dashed against the deceased-M.Narsaiah and
also one Thipparapu Narsiah @ Anand, who was going to his
village through Tangutoor on his motor cycle bearing registration
No.AP-36-AV-4565 and he has also dashed a passenger auto
bearing registration No.AP-20-TB02753. As a result of which, both
deceased received severe injuries and died on the spot and the
inmates of the Auto, namely, Jannu Bhaskar and Krishna received
severe injuries. The Police, P.S.Jangaon registered a case in Crime
No.282/2020 under Section 304-II IPC against the driver, who
drove the crime vehicle in a drunken state rashly and negligently.
(ii) According to the claimants, the deceased was aged
about 59 years at the time of accident, hale and healthy and was
doing agriculture and earning Rs.10,00,000/- per annum and
contributed the same to his family members and claimed
Rs.15,00,000/- towards compensation.
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MACMA Nos.303 & 304 of 2023
(b) O.P.No.392 of 2020 is filed under Section 166 of Motor
Vehicles Act, 1988 by the wife, daughter and parents of the
deceased-Thipparapu Narsaiah alias Anand, claiming
compensation of Rs.30,00,000/- on account of death of the
deceased in a motor vehicle fatal accident, the details of which are
narrated in the preceding paragraph.
6. Respondent no.3-insurance company filed written statement
denying all the averments made in the claim petitions and
contended that the driver of the crime vehicle was not holding a
valid and effective driving license at the time of alleged incident
and there is violation of Section 3(1) of M.V.Act and the respondent
no.2 who is the owner of crime vehicle is liable for compensation.
It is further contended that the Police filed charge sheet against the
driver under Sectiond 304(2)(n), 338, 279 of IPC and Section 185 of
M.V.Act by stating that he consumed ethyl alcohol, which is
evident from RFSL report, as such, the respondent no.3-insurance
company is not liable to pay any compensation and the owner is
liable to pay compensation.
7. Appellants 1 and 2 herein, who are the driver and owner of
crime vehicle, filed written statement denying the allegations made
in the claim petitions and contended that amounts claimed by the
claimants towards compensation for the death of deceased persons
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MACMA Nos.303 & 304 of 2023
is excessive. It is contended that the crime vehicle was insured
with the respondent no.3-insurance company and therefore,
appellants are not liable to pay any amount. Further, the allegation
against the driver that he consumed alcohol at the time of accident
is correct.
8. On the basis of the above pleadings, the Court below framed
the following issues:
In MVOP NO.392 of 2020:
i) Whether the accident occurred on 09.09.2020 at about 17.30
hours near Tangutoor X Road at Pembarthy village (NH-163) due
to rash and negligent driving of driver/R1 of Innova Car bearing
No.TS-03-AV-4668, causing the death of the deceased-
Thipparapu Narsaiah.
ii) Whether the respondent no.1 was not holding valid and
effective driving license at the time of the alleged incident?
iii) Whether petitioners are entitled for compensation, if so to
what amount and from whom?
iv) To what relief ?
In MVOP No.12 of 2021:
i) Whether the accident was occurred due to rash and
negligent driving of the vehicle Innova Car bearing No.TS-
03-AV-4668 ?
ii) Whether the petitioners are entitled for the
compensation? If so, to what amount and from whom?
iii) To what relief ?
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MACMA Nos.303 & 304 of 2023
9. In order to substantiate the case, on behalf of the claimants,
P.Ws.1 to 3 were examined and Exs.P1 to A6 were marked in
MVOP No.392 of 2020; and in MVOP No.12 of 2021, P.Ws.1 to 3
were examined and Exs.A1 to A9 were marked. On behalf of the
insurance company, RWs.1 to 3 were examined and Ex.B1 which is
the insurance policy was marked in both MVOPs.
10. The Tribunal, on conclusion of the pleadings and evidence
placed on record by the parties, awarded the following
compensation amount in respective O.Ps.
Sl.No. O.P.No. Compensation
amount awarded
1 392 of 2020 Rs.18,79,090/-
2 12 of 2021 Rs.10,20,000/-
11. The Tribunal had awarded interest at the rate of 6% per
annum from the date of the petitions till the date of realization. The
Tribunal further directed the respondent No.3-insurance company
to pay the above said awarded compensation amount and later the
insurance company is entitled to recover the same from the
respondents 1 and 2, who are the appellants herein.
12. During the course of hearing of appeals, the grounds of
challenge by the appellants in the present appeals are that the
Tribunal had gravely erred in awarding the above compensation
amount, payable by the 5th respondent-insurance company herein
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MACMA Nos.303 & 304 of 2023
and later to recover the same from the appellants even though the
criminal case filed against the driver of the crime vehicle was
acquitted by the Hon'ble Assistant Sessions Judge, Jangaon vide
judgment dated 12.12.2002 and the said finding of the Tribunal is
erroneous. The Tribunal also erred in fastening the liability on the
appellants herein even though respondents 1 to 4 herein have
clearly stated in their claims petitions that respondent no.5-
insurance herein is liable to pay compensation and the said finding
of the learned Tribunal is contrary to the pleadings and evidence
on behalf of respondents and that too acquittal of the criminal case
against the driver of the crime vehicle.
13. The learned counsel for appellants further submitted that
Hon'ble Tribunal without framing an issue whether the appellant
no.1 herein was driving the Innova Car bearing No.TS-03-EV-4668
in a drunken condition, gravely erred in finding that driver lost
consciousness and his senses were inferred intoxicated at the time
of accident in the absence of any evidence to substantiate the
same.
14. He further submitted that finding of learned Hon'ble
Tribunal that appellant no.1 herein drove the vehicle in rash and
negligent manner in a drunken state is not supported by any
cogent evidence. Therefore, the Tribunal erred in holding that
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MACMA Nos.303 & 304 of 2023
appellants herein violated the terms and conditions of the policy
and 5th respondent-insurance company has to pay the awarded
compensation amounts and recover the same from the appellants
herein, which is contrary to the pleadings and evidence adduced
on behalf of the respondents 1 to 4 herein.
15. He further submitted that the Tribunal gravely erred in
taking the income of the deceased as Rs.10,754/- and Rs.10,000/-
in MVOP Nos.392 of 2020 and 12 of 2021, respectively, merely on
the basis of an unmarked memo and without any justification
evidencing monthly income of the deceased. In support of the
contention that income cannot be estimated without any material,
the learned counsel for appellants placed reliance on the decisions
of Hon'ble Apex Court in State of Haryana and another vs. Jasbir
Kaur and others 1 and New India Assurance Co.Ltd., vs. Charlie
and another 2.
16. Learned counsel for respondent No.5-insurance company
admitted the fact that crime vehicle was duly insured with the
insurance company as on the date of accident, but contended that
the insurance company is not liable to indemnify the insured as
2003 ACJ 1800
2005 ACJ 1131
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MACMA Nos.303 & 304 of 2023
the driver of crime vehicle was driving the same under the
influence of alcohol.
17. Learned counsel for 5th respondent submitted that the driver
of the crime vehicle was charge sheeted for the offence under
Sections 304-II, 304-A, 308, 279 IPC and Section 185 of MV Act
showing the driver consumed ethyl alcohol at the time of accident.
He further submitted that when there was a violation of the terms
and conditions of policy, insurance company is not liable to make
any payment in respect of accident. He further submitted that
since the insurance is in force as on the date of accident and the
claimants are third parties, the insurance company is liable to
compensate them initially, later entitled to recover the same from
the appellants. He submitted that Hon'ble Tribunal had rightly
came to conclusion that insurance is liable to pay the
compensation initially and then entitled to recover the same from
the driver and owner of the crime vehicle.
18. Learned counsel for the 5th respondent-insurance company
relied on the decision of Hon'ble High Court of Kerala at
Ernakulam in Muhammed Rashid @ Rashid vs. Girivasan E.K.
and others [OP (MV) No.646 of 2014, dated 30.01.2023].
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MACMA Nos.303 & 304 of 2023
Consideration :
19. With regard to the main contention raised by the learned
counsel for appellants about fastening of the liability on the
appellants, the Tribunal, on appreciation of the evidence and
material placed on record, held that the driver of the crime vehicle
was driving it in a drunken state, amounts to violation of terms
and conditions of Ex.B1-policy by its owner. However, as per the
conditions contained in Ex.B1-policy, drunken drive exonerate
insurance company for personal accident cover of the owner and
driver, but not the third parties. In the present cases, the alcohol
percentage found in the blood sample was 273 and under Section
185 of MV Act, the permissible limit is only 30 Mg for 100 ml.
Considering the same, the Tribunal, by following the decision of
Traffic Police Lodhi Colony, New Delhi vs. Sanjeev Nanda,
popularly known as BMW Car, held that policy conditions were
violated by the appellants and therefore, they are liable to pay
compensation.
20. Further, the Tribunal directed the insurance company to pay
the compensation amount at the first instance and recover the
same from the driver and owner of the offending vehicle in view of
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MACMA Nos.303 & 304 of 2023
the decision of National Insurance Co. Ltd., vs. Swaran Singh
and others 3,
21. In Shamanna and another vs. Divisional Manager,
Oriental Insurance Company Limited and others 4, the Hon'ble
Apex Court held as under:
"13. Since the reference to the larger Bench in Parvathneni case
[National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed
of by keeping the questions of law open to be decided in an
appropriate case, presently the decision in Swaran Singh case
[National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National
Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007)
2 SCC (Cri) 142] and other cases hold the field. The award passed
by the Tribunal directing the insurance company to pay the
compensation amount awarded to the claimants and thereafter,
recover the same from the owner of the vehicle in question, is in
accordance with the judgment passed by this Court in Swaran
Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC
297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National
Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007)
2 SCC (Cri) 142] cases. While so, in our view, the High Court ought
not to have interfered with the award passed by the Tribunal
directing the first respondent to pay and recover from the owner of
the vehicle. The impugned judgment [Shamanna v. Laxman, 2016
SCC OnLine Kar 6928] of the High Court exonerating the insurance
company from its liability and directing the claimants to recover the
compensation from the owner of the vehicle is set aside and the
award passed by the Tribunal is restored."
22. In Muhammed Rashed @ Rashid (supra), the Hon'ble High
Court of Kerala at Ernakulam, by following the decisions of Hon'ble
Apex Court in New India Assurance Co. v. Kamala & Others 5,
(2004) 3 SCC 297
(2018) 9 SCC 650
(2001) 4 SCC 342
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MACMA Nos.303 & 304 of 2023
Oriental Insurance Company Limited v. Nanjappan 6 and the
decision of Hon'ble Division Bench of this Court in Bajaj Allianz
General Insurance Co.Ltd. rep. by its Deputy Manager (Legal) v.
Manju Devi and others 7, held as under:
"22. Ext.B1, the insurance policy stipulates the condition that
the insurance company shall not be liable to make any payment
in respect of any accidental loss or damage suffered whilst the
insured or any person driving the vehicle with the knowledge and
consent of the insured is under the influence of intoxicating liquor
or drugs. Since the offending vehicle was validly insured with the
3rd respondent-insurance company and the appellant/claimant is
a third party, the company is liable to compensate him initially,
but the company is eligible to recover the same from respondents
1 and 2."
23. With regard to the further contention of the learned counsel
for appellants that even though there was a clear acquittal in
criminal case filed against the driver of the crime vehicle, the
Tribunal fastening the liability on the driver and owner of the crime
vehicle on the ground of driver of the crime vehicle driven the same
under the influence of the alcohol at the time of the accident, is
erroneous and contrary to law.
24. On perusal of record, it appears that the Hon'ble Tribunal
passed orders on 06.12.2022, whereas the Assistant Sessions
Judge, Jangaon, passed the judgment acquitting the driver of the
crime vehicle involved in the accident, on 12.12.2022. The present
appeals are filed on 06.03.2023. Therefore, the contention of
(2004) 13 SCC 224
2014 SCC Online AP 232
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MACMA Nos.303 & 304 of 2023
learned counsel for appellants that even though the driver of the
crime vehicle i.e., appellant no.1 herein, acquitted in criminal case,
the Tribunal failed to appreciate the evidence of the appellant no.1
as RW.1 that he was prepared to prove his non-involvement in the
alleged accident is not tenable.
25. Provision of claiming compensation under the Motor Vehicle
Act undoubtedly is a welfare legislation. It would not be the
requirement of law to have the standard of evidence and proof
strictly in terms of the provisions of the Indian Evidence Act. There
is a great element of the preponderance of probability which has to
be applied in some cases, more particularly, in fatal accident cases.
Therefore, mere acquittal in accidental case is not a ground to
exonerate the driver of the crime vehicle from civil liability, since
offence has to be established beyond reasonable doubt, therefore,
there is no merit on the said contention.
26. In the light of above decisions, in considered view of this
Court, the Ho'n'ble Tribunal had rightly fastened the liability on
the appellants and further directed the insurance company to first
satisfy the compensation amount awarded by Tribunal and
thereafter, the insurance company is entitled to recover the same
from the owner of the offending vehicle i.e., appellants herein.
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MACMA Nos.303 & 304 of 2023
27. With regard to the quantum of monthly income of the
deceased, insofar as the income of the deceased in MACMA No.303
of 2023 is concerned, claimants contended that deceased was an
agriculturist and earning Rs.10,00,000/- per annum. However,
claimants failed to place any material evidencing that deceased has
engaged in an agricultural activity and was earning Rs.10,00,000/-
per annum or any document evidencing ownership of agricultural
land. The Tribunal had taken Rs.10,000/- per month as monthly
income of the deceased without there being any evidence, proof
on record, which is unsustainable and therefore, requires
modification.
28. Insofar as the income of the deceased in MACMA No.304 of
2023 is concerned, claimants contended that deceased was
working as construction worker/mason work and placed on record
the Registration Card vide No.WAR/LIN/ALO.THOR-2805 issued
by Andhra Pradesh Building and Other Construction Workers
Welfare Board, wherein the annual income of the deceased was
shown as Rs.50,000/-. However, the Tribunal considered the
monthly income as Rs.10,754/- basing on memo, which is
contrary to certificate issued by the above Welfare Board and
further, without any justification evidencing monthly income of the
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MACMA Nos.303 & 304 of 2023
deceased. Therefore, the same is not sustainable and it requires
modification.
29. In Ramachandrappa vs. Manager, Rayal Sundaram
Alliance Insurance Company Limited 8, the Hon'ble Apex Court
at paragraphs-13 & 14 observed that,
"13..........appellant was aged about 35 years and was working
as coolie and was earning Rs.4,500/- per month at the time of
the accident.
......
The appellant was working as a coolie and, therefore, we cannot
expect him to produce any documentary evidence to
substantiate his claim. In the absence of any other evidence
contrary to the claim made by the claimant, in our view, in the
facts of the present case, the Tribunal should have accepted the
claim of the claimant.
"14..........the Hon'ble Apex Court observed that the Tribunal
need not accept the claim of the claimant in the absence of
supporting material. It depends on the facts of each case. In a
given case, if the claim made is so exorbitant or if the claim
made is contrary to ground realities, the Tribunal may not
accept the claim and may proceed to determine the possible
income by resorting to some guesswork, which may include the
ground realities prevailing at the relevant point of time."
30. The Motor Vehicle Act is a beneficial legislation aimed at
providing relief to the victims or their families, therefore, in view of
the judgment of Hon'ble Apex Court in Ramachandrappa (supra),
this Court is of the considered view that MACT had rightly taken
the monthly salary of the deceased as Rs.4,500/-, even in the
absence of any evidence.
(2011) 13 SCC 236
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31. In view of the above decision, the monthly income of the
deceased in both the appeals can be taken as Rs.4,500/-.
32. With regard to award of compensation towards future
prospects, the claimants in MACMA No.303 of 2023 are entitled to
addition of 10% of the income of the deceased (since the deceased
was self-employed and was aged 59 years as on the date of
accident) and the claimants in MACMA No.304 of 2023 are entitled
to addition of 40% (since the deceased was self-employed and was
aged 30 years as on the date of accident) of the income of the
deceased towards loss of future prospects in view of paragraph-
59.4 of the decision of Hon'ble Apex Court in National Insurance
Company Limited vs. Pranay Sethi and others 9. Further, the
claimants are entitled to Rs.40,000/- each toward consortium,
Rs.15,000/- towards loss of estate and Rs.15,000/- towards
funeral expenses and also Rs.15,000/- towards transport charges.
33. In view of the above, the compensation amounts are
recalculated as under:
Sl. Head Compensation awarded Compensation awarded
No. in MACMA No.303 of in MACMA No.304 of
2023 2023
1 Income Rs.54,000/- (Rs.4,500/- Rs.54,000/- (Rs.4,500/-
per month) per month)
2 Future prospects Rs.5,400/- (i.e., 10% of Rs.21,600/- (i.e., 40% of
the income) the income)
3 Deduction towards Rs.14,850/- (i.e., one- Rs.18,900/- (i.e., one-
personal expenses fourth of Rs.54,000/- + fourth of Rs.54,000/- +
Rs.5,400/-) Rs.21,600/-)
(2017) 16 SCC 680
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MACMA Nos.303 & 304 of 2023
4 Total Income Rs.44,550/- Rs.56,700/-
(i.e., Rs.54,000/- + (i.e., Rs.54,000/- +
Rs.5,400/- (-) Rs.14,850/-) Rs.21,600/- (-) Rs.18,900/-)
6 Loss of dependency Rs.4,00,950/- (i.e., Rs.9,63,700/- (i.e.,
Rs.44,550/- x 9) Rs.56,700/- x 17)
7 Compensation for Rs. 1,60,000/- Rs. 1,60,000/-
loss of consortium
(Rs.40,000/- x 4)
8 Loss of estate Rs. 15,000/- Rs. 15,000/-
9 Funeral expenses Rs. 15,000/- Rs. 15,000/-
10 Transport charges Rs. 15,000/- Rs. 15,000/-
Total compensation Rs. 6,05,950/- Rs.11,68,700/-
to be paid :
34. In the result, the Appeals are partly allowed and the
impugned awards of the Tribunal insofar as compensation
amounts are concerned, are modified. Insofar as direction of the
Tribunal directing the respondent No.5-insurance company to first
pay and thereafter recover the compensation amount from the
driver and owner of the crime vehicle i.e., appellants, is affirmed.
The above compensation amounts shall carry interest @ 6% per
annum from the date of the claim petitions till the date of
realization. There shall be no order as to costs.
35. Pending miscellaneous applications if any shall stand closed.
___________________________________
LAXMI NARAYANA ALISHETTY,J
Date: 12.12.2023
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