Telangana High Court

Hdfc Ergo General Insurance Co. Ltd vs Mohammad Masood on 18 December, 2023

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 M.A.C.M.A.NO.1075 OF 2023

JUDGMENT:

Heard learned standing counsel Sri A.Ramakrishna Reddy

for the appellant-insurance company and Sri. Sourabh Agarwal,

learned counsel for respondents-claimants.

2. The present appeal has been filed by the appellant/

insurance company challenging the award passed by the

Chairman, Additional Motor Accident Claims Tribunal-cum-I Addl.

District and Sessions Judge, Adilabad (for short, 'Tribunal') in

M.V.O.P.No.172 of 2018, dated 17.03.2023, thereby seeking to set-

aside the award against the insurance company.

3. The brief factual matrix of the present appeal is as under.

4. The deceased i.e., Mohammad Yusuf was working as Ginning

Operator in Vishwataje Cotton Mill at Allirajpet and as usual, on

04.05.2017 after completion of his duty, he slept on cement floor

in the said Cotton Mill along with his co-workers and on

05.05.2017 at about 7.00 a.m., the driver of the lorry bearing

registration No.HR-56-B-3100 driven the lorry in rash and

negligent manner with high speed and without observing the LNA,J

deceased, who slept on cement floor along with others, dashed to

his head, due to which, he sustained head injury and his brain

came out from head and died on the spot. Later, the dead body of

the deceased was shifted to Government Hospital, Gajwel for

autopsy. The Police, Jagadevpur P.S., registered a case in Crime

No.42/2017 under section 304-A IPC against the driver of the

offending vehicle and filed charge sheet.

5. The claimants, i.e., respondent Nos.1 to 4 herein , who are

father, mother and unmarried sisters of the deceased, have filed

claim petition against owner, driver of the vehicle and insurance

company under section 166 (1)(c) of Motor Vehicles Act before the

MACT claiming compensation of Rs.25,00,000/- along with

interest from the date of the petition till the date of deposit.

6. The deceased was aged about 27 years and unmarried as on

the date of accident, hale and healthy and was working as Ginning

Operator in Vishwateaja Cotton Mill, Allirajpet of Siddipet district

and was getting an income of Rs.15,000/- per month and

claimants lost the support of the deceased.

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7. The respondent Nos.5 & 6 herein, who are the driver and

owner of the offending vehicle, remained ex-parte.

8. The appellant-Insurance Company filed counter denying all

the allegations made in the claim petition and contended that the

driver of the offending vehicle was not having valid and effective

driving license to drive the vehicle and he was not qualified from

holding or obtaining such driving license and further has not

satisfied the requirements of the Rule-3 of the Central Motor

Vehicle Rules, 1989 and that the offending vehicle was not Road

worthy and was plying on the road by violating the M.V.Rules at

the time of accident. As such, insurance company is not liable to

pay any compensation. Thus, the conditions of the insurance

policy were violated and finally, prayed for dismissal of the claim

petition.

9. On the basis of the above pleadings, the Tribunal framed the

following issues:

i) Whether the deceased Mohammad Yousuf died in motor vehicle accident occurred on 05.05.2017 at 7.00 a.m., in Vishwateja Cotton Mill, Allirajpet due to rash and negligent driving of lorry by its driver of the offending crime vehicle i.e., Lorry (bg.No.HR-56-B-

3100)?

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ii) Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

iii) To what relief?

10. In order to substantiate the case, on behalf of the claimants,

mother of the deceased was examined as PW.1 and also examined

Sayed Kaleem, who is eye witness, as PW.2 and Exs.A1 to A7 were

marked. On behalf of the appellant-insurance company, RW.1 was

examined and copy of insurance policy was marked as Ex.B1.

11. The Tribunal, on due consideration of the evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the lorry bearing

registration No.HR-56-B-3100 and awarded compensation of

Rs.19,48,932/- along with interest @ 7.5% per annum from the

date of petition till the date of deposit of amount. The driver and

owner of the crime vehicle i.e., respondents 5 and 6 herein and

appellant are liable to pay the same compensation amount.

12. During the course of hearing of the appeal, learned counsel

for appellant-insurance company submitted that the Tribunal

ought to have seen that there are clear violations as to the terms

and conditions of the insurance policy committed by the driver and LNA,J

owner of crime vehicle and as such, appellant cannot be fastened

with the liability and instead of dismissing O.P., against insurance

company, it had directed the insurance company to pay

compensation amount and later recover the same from the owner.

The driver of the crime vehicle was not have driving license as on

the date of accident and as such, the owner of the crime vehicle

alone is liable to pay the compensation amount. He further

submitted that the Tribunal erred in taking monthly income of the

deceased at Rs.10,000/- without any proof of his income. The

Tribunal ought to have deducted 50% of the income of the

deceased towards personal expenditure, however, the Tribunal

erred in deducting 1/3rd of his income and finally, prayed to set

aside the award passed by the Tribunal.

Consideration:

13. The main contention raised by the appellant in the present

appeal is that the driver of the offending vehicle was not having

driving license, the Tribunal held that admittedly, the driver of the

vehicle was not having driving license and mere absence of driving

license will not absolve the liability of insurance company and

thus, directed the insurance company to pay the compensation LNA,J

amount and later, it can recover the compensation from the driver

and owner of the crime vehicle by following the decision of Hon'ble

Apex Court in Shamanna and another vs. Divisional Manager,

Oriental Insurance Company Limited and others 1.

14. In view of the above, this Court is of the considered view that

the Tribunal had rightly directed the insurance company to pay the

compensation and later to recover the same from the driver and

owner of the crime vehicles i.e., respondents 5 and 6 herein.

15. Insofar as the other contention of the learned counsel for

appellant that Tribunal erred in taking the monthly income of the

deceased at Rs.10,000/-, the Tribunal on due consideration of the

present case, period of accident, the inflation, devaluation of rupee,

cost of living etc., had taken the notional income of the deceased at

Rs.10,000/- per month since he is working as Ginning Operator.

16. The other contention raised by the learned counsel for

appellant with regard to living expenses of the deceased, the

Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi

Transport corporation and another 2, the Hon'ble Apex Court at

(2018) 9 SCC 650

(2009) 6 SCC 121 LNA,J

paragraph-32 held that 'Thus even if the deceased is survived by

parents and siblings, only the mother would be considered to be a

dependant, and 50% would be treated as the personal and living

expenses of the bachelor and 50% as the contribution to the

family'.

17. In view of the above decision, 50% of the income of the

deceased should be deducted towards his personal and living

expenses. Therefore, the Tribunal had erred in deducting 1/3rd

instead of 50% of the income of the deceased towards his personal

and living expenses and the same is liable to be modified.

18. Further, claimants are also entitled to Rs.15,000/- towards

loss of estate and the mother of deceased is also entitled to

Rs.40,000/- towards parental consortium in view of the decision

of the decision of the Hon'ble Apex Court in National Insurance

Company Limited v. Pranay Sethi and others 3.

Conclusion:

19. In view of the above, the claimants are entitled for the

following compensation:

(2017) 16 SCC 680 LNA,J

Sl.No. Head Compensation awarded

1 Income Rs. 1,20,000/- per annum (Rs.10,000/- per month) 2 Future prospects Rs.48,000/- (i.e., 40% of the income) 3 Deduction towards personal Rs.84,000/- (i.e., 50% of expenses Rs.1,20,000/- + Rs.48,000/-) 4 Total Income Rs.84,000/- ( i.e., Rs.1,26,000/- + Rs.48,000/- (-) Rs.84,000/-)

6 Loss of dependency Rs.14,28,000/- (i.e., Rs.84,000/- x