Veeragoti Padma vs Vinod Chouksey
2023 Latest Caselaw 1207 Tel

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

                     M.A.C.M.A.No.2407 of 2018
JUDGMENT:

Dissatisfied with the quantum of compensation awarded

in the order and decree, dated 29.08.2017 passed in

M.V.O.P.No. 343 of 2008 on the file of the Family Court-cum-

VIII Additional District Judge, Mahabubnagar (for short "the

Tribunal"), the appellants/claimants preferred the present

appeal seeking enhancement of the compensation.

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

be referred to as per their array before the Tribunal.

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

petition under Section 166 of the Motor Vehicles Act, 1988

claiming compensation of Rs.8,00,000/- for the death of one

Veeragoti Venkatesh, husband of claimant No. 1, father of

claimant Nos.2 to 5 and son of claimant No. 6 (hereinafter

referred to as "the deceased"), who died in a motor vehicle

accident that occurred on 08.03.2008. According to the

claimants, on the fateful day, while the deceased Veeragoti

Venkatesh along with another deceased-Kurmaiah was

returning on motorcycle bearing No.AHY-1494 to Shadnagar

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from Yelikatta village after laying cement slab, when they were

proceeding on their two motorcycles and when they reached

near Vishnu Granite Factory in Shadnagar limits, the crime

vehicle i.e., Truck bearing No. MP 09HF 0720 being driven by

its driver came in rash and negligent manner and dashed the

motorcycle, as a result of which, the deceased fell down,

sustained multiple injuries and he succumbed to injuries

while undergoing treatment at Osmania Gandhi Hospital.

According to the claimants, the deceased was aged 35 years,

working as a mason and earning Rs.300/- per day.

Therefore, they filed the claim petition against the respondent

Nos. 1 to 3 claiming compensation of Rs.8.00 lakhs towards

compensation under different heads.

4. Before the tribunal, while the owner of the vehicle,

respondent No. 1 remained exparte, the insurance company,

respondent No.2 and respondent No.3-financier, filed separate

counters denying the manner in which the accident took

place, including the age, avocation and income of the

deceased. It is also stated that the quantum of compensation

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claimed is excessive, baseless and prayed to dismiss the

petition.

5. Considering claim, counters and the oral and

documentary evidence available on record, the tribunal held

that the accident occurred due to the negligent driving of the

Truck by its driver and accordingly awarded an amount of

Rs.4,30,000/- with interest at 9% per annum payable by

respondent No.1 only. Dissatisfied with the quantum of

compensation and dismissal of liability against the

respondent Nos.2 & 3, the claimants filed the present appeal.

6. Heard the learned counsel for the appellants, the

learned Standing Counsel for the respondent No.2 and the

learned Standing counsel for respondent No.3 and perused

the record.

7. The contention of the learned counsel appearing for the

appellants is that the Tribunal has erred in fixing liability

against the respondent No.1 only by dismissing the claim

against the respondent No.2 who is responsible and liable to

pay compensation to the petitioners. Further the tribunal did

not give any cogent reasons for dismissing the claim against

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the respondent No.2 and relied upon the technical and

typographical error in the policy, which was corrected by the

respondent No.2 and the respondent No.2 Insurance

Company did not clarify or rectify the same in spite of specific

order from the tribunal in I.A.no.752 of 2012. It is further

contention of the learned counsel for the claimants is that the

respondent No.2 intentionally avoid the liability. Hence

adverse inference can be drawn and prays to allow the appeal.

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

respondent-Insurance Company has contended that the

tribunal after considering the oral and documentary evidence

on record, rightly came to the conclusion and as such,

interference of this Court is not necessary and prays for

dismissal of the appeal.

9. A perusal of the judgment discloses that the tribunal

having framed issue No.1, as "Whether the accident occurred

on 08.03.2008 at about 10.30 O' Clock in the night near

Vishnu Granites Company, Shadnagar due to the rash and

negligent driving of driver of the vehicle i.e, Truck bearing No.

MP 09 HF 0720, after evaluating the oral and documentary

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evidence available on record, came to the correct conclusion

that the accident occurred due to the rash and negligent

driving of the driver of the auto. Therefore, I see no reason to

interfere on this aspect.

10. The main contention of the learned counsel for the

claimants is that the tribunal has erred in fixing the liability

against the respondent No.1 only on the ground that the

chassis number and engine number are not tallying even

though the petitioners have taken all steps to prove the

insurance policy.

11. This Court has perused the evidence adduced under

Exs.A.6, A.7, A.8 and B.1, B.2. As per Ex.A6, Copy of

insurance policy issued by oriental insurance company

discloses that the policy issued from 24.05.2007 to

25.05.2008 for the chassis No.100619 & engine

No.1224500826 and Ex.A.7, Copy of insurance policy issued

by New India Insurance Company, discloses that the policy

issued from 24.05.2006 to 23.05.20076 for the chassis

No.444026ETZ118431 & engine No.697TC57ETZ122452. A

perusal of Exs.A.6 & A.7 discloses that the vehicle number

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and policy numbers are one and the same. However, the

dispute is with the regard to the discrepancy of chassis

number and engine numbers. The chassis and engine number

as per Exs.A.7 and Ex.B.1. Though the insurance company

got examined RW-1, who categorically deposed that the

chassis number and engine numbers are matching with

policy issued under Ex.A.7, however, the same is not

matching with Ex.B.1, true copy of insurance policy.

Therefore, the learned standing counsel for the respondent

No.2 contended that the policy is a fake policy.

12. It is pertinent to state that I.A.No.752 of 2012 was filed

and allowed and the Court ordered to produce the proposal

form and cover note and RW.1 was recalled. But in his

evidence, he has stated that he did not bring the proposal

form or cover note furnished by the owner of the crime vehicle

and also stated that he does not know whether the insured

addressed a letter to Branch to correct the engine number

and chassis number of the vehicle. It is also important to note

that though the insurance company disputed the policy as a

fake policy, it has not taken any steps to give complaint in the

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Police station nor taken any other steps for correcting fake

policy. Furthermore, the RW.1 in spite of giving opportunity,

has not produced the cover note or proposal form and simply

stated that he has no knowledge about letter addressed by the

insured to their branch officer. In these circumstances, an

adverse interference can be drawn. It is also important to note

that there is no dispute regarding issuance of policy by the

Insurance company for the year 2006-2007. However, during

the renewal of policy issuance of Ex.A6, for the year 2007-

2008 is only, the dispute with regard to chassis number and

engine number arises. As per claimants, the respondent

No.1/owner of the crime vehicle has addressed a letter for

correction of the chassis number and engine number but the

same was not in the knowledge of the RW.1. In view of the

above, this Court is of the considered opinion that the

Tribunal has erred in exonerating the liability against

respondent Nos. 2 & 3 and fixing liability only on respondent

No.1. Therefore, respondent Nos.1 to 3 are jointly and

severally liable to pay the compensation.

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13. As regards the quantum of compensation, the claimants

claimed that the deceased was earning Rs.300/- per day by

working as a mason. However, no documentary evidence was

produced to establish the income of the deceased. Such being

the case and as the year of the accident, 2008, this Court is

inclined to fix the monthly income of the deceased at

Rs.4,500/- per month. Considering the fact that the age of

the deceased at the time of accident was below 35 years, the

claimants are entitled to addition of 40% towards future

prospects to the established income, as per the decision of the

Hon'ble Supreme Court in National Insurance Company

Limited Vs. Pranay Sethi and others1. Therefore, the

future monthly income of the deceased comes to Rs.6,300/-

(Rs.4,500/- + Rs.1800/-). From this, 1/4th is to be deducted

towards personal expenses of the deceased following the

decision in Sarla Verma v. Delhi Transport Corporation2,

since there are six dependents (claimant Nos. 1 to 6). After

deducting 1/4th therefrom towards his personal and living

expenses, the contribution of income by the deceased to the

2017 ACJ 2700

2009 ACJ 1298 (SC)

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family comes to Rs.4,725/- per month. Since the age of the

deceased was 35 years as held by the Tribunal, the

appropriate multiplier is '16' as per the guidelines laid down

by the Apex Court in Sarla Verma (supra). Adopting

multiplier '16', the total loss of dependency comes to

Rs.9,07,200/- (Rs.4,725/- x 12 x 16). That apart, the

claimants are entitled to Rs.77,000/- under the conventional

heads as per the decision of the Apex Court in Pranay Sethi

(supra). Further, since the claimant Nos. 2 and 3 are minor

children of the deceased, this Court is inclined to award a

sum of Rs.40,000/- each to claimant Nos. 2 to 5 under the

head of parental consortium as per the decision of the Apex

Court in Nanu Ram @ Chuhru Ram (supra). Thus all, the

claimants are entitled to Rs.11,44,200/-. Insofar as the

interest awarded by the Tribunal is concerned, the claimants

are entitled to interest @ 7.5% per annum on the

compensation awarded by the Tribunal from the date of filing

of O.P. till realization, as per the decision of the Apex Court in

Rajesh and others v. Rajbir Singh and others3. Hence, the

3 2013 ACJ 1403 = 2013 (4) ALT 35

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interest granted by the Tribunal @ 9% per annum is reduced

to 7.5% per annum.

14. At this stage, the learned standing Counsel for the

Insurance company submits that the claimants claimed only

a sum of Rs.8,00,000/- as compensation and the quantum of

compensation which is now awarded would go beyond the

claim made which is impermissible under law.

15. In view of the Judgments of the Apex Court in Laxman

@ Laxman Mourya Vs. Divisional Manager, Oriental

Insurance Company Limited and another4 and Nagappa

Vs. Gurudayal Singh5 the claimants are entitled to get just

compensation even if it is more than the amount what was

claimed by the claimants.

16. Accordingly, M.A.C.M.A. is allowed. The compensation

amount awarded by the Tribunal is enhanced from

Rs.4,30,000/- to Rs.11,44,200/-. The enhanced amount

shall carry interest at 7.5% p.a. from the date of filing of the

petition till the date of realization. The enhanced amount

(2011) 10 SCC 756

2003 ACJ 12 (SC)

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shall be apportioned in the manner as ordered by the

Tribunal. Time to deposit the entire compensation is two

months from the date of receipt of a copy of this judgment.

On such deposit, the major claimants are entitled to withdraw

their respective share amounts without furnishing any

security. However, the claimants are directed to deposit the

deficit court fee on the enhanced amount. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_____________________________ SMT. M.G.PRIYADARSINI, J .03.2023 gms

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

M.A.C.M.A.No.2407 of 2018

DATE: -03-2023