The United India Insurance ... vs V. Prabhu
2023 Latest Caselaw 354 Tel

      THE HONOURABLE JUSTICE M.G. PRIYADARSINI

          M.A.C.M.A.Nos.252 of 2019 and 2092 of 2019

COMMON JUDGMENT:

      These two appeals are being disposed of by this common

judgment     since    M.A.C.M.A.No.252    of   2019    filed   by   the

claimants    and     M.A.C.M.A.No.2092    of   2019    filed   by   the

Insurance Company assailing the quantum of compensation,

are directed against the very same order and decree, dated

05.11.2018 made in M.V.O.P.No.2334 of 2015 on the file of the

Chairman,     the     Motor   Accidents   Claims      Tribunal-cum-II

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

"the Tribunal").


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

referred to as arrayed before the Tribunal.


3.    Brief facts of the case are that the claimants filed a claim

petition under Section 166 of the Motor Vehicles Act, 1989

against     the      respondents   claiming     compensation         of

Rs.12,00,000/- for the death of V. Manemma (hereinafter

referred to as "the deceased"), in the motor vehicle accident that

occurred on 13.07.2015. According to them, on the fateful day,

at 10:30 a.m., while the deceased was proceeding towards Fire

Station on N.H. No. 65, Patancheru by walk, the offending

vehicle i.e., Bus bearing NO. TS 15UA 3299, owned by

respondent No. 1, insured with respondent No. 2, being driven MGP, J 2 Macma_252_2019 and 2092_2019

by respondent No. 3 in a rash and negligent manner at high

speed, dashed the deceased, as a result of which, the deceased

fell down, sustained grievous injuries and died at Government

Hospital, Sangareddy while undergoing treatment on the same

day. According to the claimants, the deceased was 48 years,

working as coolie and earning Rs.9,000/- per month.

Therefore, they laid the claim-petition against the respondent

Nos.1 to 3, seeking compensation of Rs.12.00 lakhs.

4. Before the Tribunal, while the respondent Nos. 1 & 3

remained ex parte, respondent No. 2, Insurance Company,

contested the claim petition by filing counter. Considering the

claim and the counter filed by the insurance company, and on

evaluation of the evidence, both oral and documentary, the

learned Tribunal has partly allowed the M.V.O.P. awarding

compensation of Rs.5,38,000/- with 7.5% interest per annum to

be paid by the respondent Nos.1 to 3 jointly and severally.

5. Heard the learned counsel for the claimant and the

learned Standing Counsel for the insurance company. Perused

the material available on record.

6. The only contention of the learned counsel for the

claimants (appellants in MACMA No. 252 of 2019) is that

though the claimants have asserted that the deceased was

earning Rs.9,000/- per month as a coolie, in the absence of any MGP, J 3 Macma_252_2019 and 2092_2019

contra evidence adduced by the Insurance Company, the

tribunal ought not to have restricted the same to Rs.3,600/- per

month and the tribunal at least ought to have fixed the monthly

income of the deceased at Rs.5,000/-.

7. On the other hand, the learned Standing Counsel for the

Insurance Company (appellant in MACMA No. 2092 of 2019)

has contended 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 bus. In fact, the accident took place

due to the contributory negligence on the part of the deceased,

who was walking on the road without observing the traffic on

the road and therefore, the tribunal ought to have apportioned

contributory negligence on the part of the deceased also. As

regards the quantum of compensation, it is contended that in

the absence of any proof as to the income of the deceased, the

tribunal has rightly taken the monthly income of the deceased

at Rs.3,600/-.

8. It is the main contention of the learned Standing Counsel

for the appellant-Insurance Company that the accident occurred

due to the contributory negligence even on the part of the

deceased and therefore, the tribunal ought to have apportioned

contributory negligence. As seen from the record, Ex.A.1, FIR, MGP, J 4 Macma_252_2019 and 2092_2019

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, clearly stated that the accident

occurred only due to the rash and negligent driving of the bus

by its driver. The Insurance Company did not take any steps to

summon the driver of the offending bus 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. 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 bus by its driver, which needs no

interference by this Court.

9. As regards the quantum of compensation, though it is the

case of the claimants that the deceased was coolie and earning

Rs.9,000/- per month, the tribunal has fixed the income at

Rs.3,600/- per month, which is meagre in the opinion of this

Court. Considering the prevailing rate of wages at the relevant

point of time, this Court is inclined to fix the monthly income of MGP, J 5 Macma_252_2019 and 2092_2019

the deceased at Rs.5,000/-. Since the deceased was aged about

48 years, the claimants are entitled to addition of 25% towards

future prospects, as per the decision of the Hon'ble Supreme

Court in National Insurance Company Limited Vs. Pranay

Sethi and others1. Therefore, monthly income of the deceased

comes to Rs.6,250/- (Rs.5,000/- + Rs.1,250/-). Since there are

three dependants, after deducting 1/3rd towards personal and

living expenses of the deceased therefrom, the net monthly

contribution of the deceased to the family comes to Rs.4,167/-

(Rs.6,250 - Rs.2,083 = Rs.4,167). As the age of the deceased

was 48 years at the time of the accident, the appropriate

multiplier is '13' as per the decision reported in Sarla Verma v.

Delhi Transport Corporation2. Adopting multiplier 13, his

total loss of dependency comes to Rs.6,50,052/- (Rs.4,167/- x

12 x 13 = Rs.6,50,052/-). The claimants are also entitled to

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

Sethi's case (supra). Thus, in all the claimants are entitled to

Rs.7,27,052/- towards just compensation.

10. In the result, while dismissing M.A.C.M.A.No.2092 of

2019 filed by the insurance company, the M.A.C.M.A.No.252 of

2019 filed by the claimants is partly allowed enhancing the

compensation awarded by the Tribunal from Rs.5,38,000/- to

Rs.7,27,052/-. The enhanced amount shall carry interest at 6%

2017 ACJ 2700

2009 ACJ 1298 (SC) MGP, J 6 Macma_252_2019 and 2092_2019

p.a. from the date of the filing of the O.P. before the tribunal till

the date of realization, payable by respondent Nos. 1 to 3 in the

M.V.O.P. jointly and severally. Time to deposit the amount is

two months from the date of receipt of a copy of this order. On

such deposit, the claimants are entitled to withdraw the amount

without depositing any security. It is made clear that since the

claimant No. 1 is no more, his share of compensation shall be

distributed equally between the claimant Nos. 2 & 3. No order

as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G.PRIYADARSINI 27.01.2023 gms MGP, J 7 Macma_252_2019 and 2092_2019

THE HONOURABLE JUSTICE M.G. PRIYADARSINI

M.A.C.M.A.Nos.252 of 2019 and 2092 of 2019

27.01.2023

gms