Telangana High Court

L And T General Insurance Company ... vs Mohd. Khaja Miya on 10 March, 2023

Bench: M.G.Priyadarsini

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

                   M.A.C.M.A.No.826 of 2019
JUDGMENT:

This appeal is preferred by the appellant-Insurance

Company, questioning the order and decree, dated

22.01.2019 made in M.V.O.P.No.730 of 2016 on the file of the

Chairman, Motor Accidents Claims Tribunal-cum-Principal

District Judge at Nizamabad (for short, the Tribunal).

2. For the sake of convenience, the parties have been

referred to as arrayed before the Tribunal.

3. The claimants filed a petition under Section 166 of the

Motor Vehicles Act claiming compensation of Rs.8,00,000/-

against the respondents for the death of one Mohammed

Khader (hereinafter referred to as "the deceased") in the motor

accident that occurred on 08.11.2016 at Badi Masjid turning

Yellareddy town. It is stated that on the fateful day, at about

10:30 a.m., the deceased along with other person, was

travelling on tractor bearing No.AP 07 BZ 1974, owned by

respondent No.1, from Yellareddy town to Kalyani village and

when they reached Badi Masjid turning Yellareddy, the driver

of the said tractor drove it in a rash and negligent manner, as

MGP, J Macma_826_2019

a result of which, the deceased fell down and sustained

grievous injuries and multiple fractures. Immediately, he was

shifted to Government Hospital, Yellareddy and he

succumbed to the injuries while taking to hospital. According

to the claimants, the deceased was aged about 26 years,

working as Labourer under respondent No.1 and earning

Rs.20,000/- per month and due to sudden demise of the

deceased, the claimants, who are the parents and sister of the

deceased, lost love and affection and their support. Therefore,

they laid claim against the respondent Nos.1 & 2, who are the

registered owner and insurer of the aforesaid Tractor.

4. Respondent No.1 filed counter stating that the vehicle

was insured with the respondent No.2 and the policy was in

force as on the date of accident and in case if any

compensation is awarded, respondent No.2 alone is liable to

pay the compensation.

5. Respondent No.2 filed counter denying the averments of

the petition, age, avocation and income of the deceased. It is

further contended that the deceased illegally boarded the

tractor and he was not the labourer of respondent No.1 and

MGP, J Macma_826_2019

the seating capacity of the tractor is only one and there is no

provision for seating apart from the driver of the tractor.

Therefore, the claimant is not entitled to claim compensation

and prays to dismiss the petition.

6. After considering the claim and the counters filed by

respondent Nos.1 and 2 and on evaluation of the evidence,

both oral and documentary, the learned Tribunal has partly

allowed the O.P. and awarded compensation of Rs.7,44,000/-

with interest at 7.5% per annum, holding that the respondent

Nos.1 and 2 are jointly and severally liable to pay the

compensation.

7. Heard the learned Standing Counsel for the appellant-

Insurance Company and the learned counsel for the

claimants and perused the record.

8. The main contention of the learned standing counsel for

the appellant/Insurance Company is that the owner of the

offending vehicle has violated the terms and conditions of the

Policy by allowing the deceased to travel on the mudguard of

the tractor and therefore, the Insurance Company cannot be

MGP, J Macma_826_2019

even fastened with the liability of pay and recovery. It is

further contended that the seating capacity of the tractor is

only one in number that is for the driver alone and the

deceased was traveled on the tractor engine and therefore,

prays to dismiss the petition.

9. Per contra, learned Counsel appearing for the claimants

submits that the Tribunal passed a well reasoned order which

needs no interference. He further submits that though the

deceased travelled in the tractor as an unauthorized

passenger, the liability of insurance company cannot be

exonerated and hence the Tribunal has rightly passed the

order, and the same does not need any interference. He

further contended that even, for the sake of argument, the

liability of insurance company is exonerated, the insurance

company is still liable to pay the claimants at the first

instance and then recover the same from the owner of the

vehicle, in accordance with the decisions of the Apex Court.

10. Insofar as the manner in which the accident took place

is concerned, a perusal of the impugned judgment shows that

MGP, J Macma_826_2019

the tribunal having framed Issue No.1, as to "whether the

accident took place due to rash and negligent driving of tractor

bearing No. AP 07 BZ 1974 by its driver causing death of

Mohammed Khader", and having considered the evidence of

P.W.3, eyewitness, coupled with the documentary evidence,

has categorically observed that the accident occurred due to

the rash and negligent act of the driver of the offending

tractor and has answered the issue in favour of the claimants

and against the respondents. Therefore, I see no reason to

interfere with the finding of the Tribunal in this regard.

11. As far as the quantum of compensation is concerned,

admittedly, the claimants have not let in any evidence, either

oral or documentary, to prove their claim that the deceased

was earning a sum of Rs.20,000/- per month by working as

labour on the tractor. In Latha Wadhwa vs. State of Bihar1,

the Apex Court has held that even there is no proof of income

and earnings, the income can be reasonably estimated. Since

the deceased was aged about 26 years at the time of accident

and he was able bodied person, the tribunal has assessed the

(2001) 8 SCC 197

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monthly income of the deceased at Rs.7,000/-, which, in the

opinion of this Court, cannot be said to be higher.

Admittedly, the deceased was 26 years at the time of the

accident. As there are three dependents, the tribunal ought

to have deducted 1/3rd but not ½ towards the personal

expenses of the deceased. Therefore, after deducting 1/3rd

from the monthly gross income of the deceased, the net

monthly income that was being contributed to the family

comes to Rs.4,666/- (Rs.7,000/- - Rs.2,333/- being 1/3rd

therefrom). Thus, the annual contribution to the family

comes to Rs.55,992/- (4666 x 12 = 55,992/-). As per Ex.A.3,

Post-Mortem Examination Report, the age of the deceased

was 26 years and therefore, the tribunal has rightly applied

the multiplier '17'. Thus, by applying the multiplier '17', the

loss of dependency comes to Rs.9,51,864/-. The other

amounts awarded by the Tribunal under conventional heads

appears to be less, which need to be modified by this Court.

In addition thereto, under the conventional heads, the

claimants are granted Rs.77,000/- as per the decision of the

Apex Court in National Insurance Company Limited Vs.

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Pranay Sethi and others2. Thus, in all the claimants are

entitled to Rs.10,28,864/-.

12. As seen from Ex.B.1 policy, the offending vehicle was

insured with respondent No.2 and the policy was in force as

on the date of accident. Even as per the evidence on record,

the deceased was sitting on the mudguard of the tractor and

he comes under the category of unauthorized passenger and

his risk is not covered by the policy. In similar

circumstances, in the case of Manuara Khatun v. Rajesh Kr.

Singh3, the Hon'ble Supreme Court dealt with the case of

gratuitous passengers and held that the claimants are

entitled for an order against the insurer to pay the awarded

sum to the claimants and then to recover the said amount

from the insured in the same proceedings. Further, in a

recent judgment in Anu Bhanvara v. Iffco Tokio General

Insurance Company Limited4, the Hon'ble Supreme Court

dealt with the similar issue by referring its earlier judgments

2017 ACJ 2700

(2017) 4 SCC 796

Laws (SC) 2019 840

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in National Insurance Co. Ltd. V. Baljit Kaur5 and Manuara

Khatun (supra) apart from other judgments, invoked the

principle of 'pay and recover', in the peculiar facts and

circumstances of the case. In Manuara Khatun (supra), the

Apex Court at para No. 16 held as under:-

"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view of the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".