The New India Assurance Co. ... vs Samyuktha
2023 Latest Caselaw 1452 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        M.A.C.M.A.Nos.2778 OF 2019 AND 3499 OF 2019

COMMON JUDGMENT:

        These two appeals are being disposed of by this common

judgment since M.A.C.M.A.No.3499 of 2019 filed by New India

Assurance Company Limited and M.A.C.M.A.No.2778 of 2019,

filed   by    the   claimants,   challenging   the    quantum     of

compensation, are directed against the very same order and

decree, dated 27.03.2019 made in M.V.O.P.No.201 of 2014 on

the file of the Chairman, Motor Accidents Tribunal-cum-X

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

"the Tribunal").


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

referred to as per their array before the Tribunal.


3.      The facts, in brief, are that the claimants laid a claim

under Section 166 of the Motor Vehicles Act, 1988, claiming

compensation of Rs.10,00,000/- for the death of one B.Ram

Reddy, husband of claimant No. 1, father of claimant No. 2

(hereinafter referred to as "the deceased"), who died in the

accident that occurred on 14.08.2013.            According to the

claimants, on the fateful day, while the deceased was proceeding

on motor bike bearing No. AP 28 AU 0616 from Erragadda to

Avanthi nagar Thota, at about 11:00 p.m., when he reached
                                      2                              MGP, J
                                             Macma_2778_2019 and 3499_2019



near Meter factory, motinagar side road, Erragadda, one Eicher

Goods vehicle No. AP 10 W 0831, owned by respondent No. 1,

insured with respondent No. 2, being driven by its driver in a

rash and negligent manner at high speed, dashed the deceased

from rear side. Due to the said impact, the deceased sustained

bleeding injuries to the head and died on the spot. On a

complaint, a case in Crime No.454 of 2013 was registered under

Section 304(A) IPC. According to the claimants, the deceased

was earning Rs.22,000/- by running a food grains and general

stores namely, M/s. Shyam Traders at Kalyan Nagar,

Borabonda, Hyderabad. On account of the sudden death of the

deceased, the claimants have lost their bread winner and love

and affection. Therefore, they laid the claim against the

respondent Nos.1 & 2, who are owner and insurer of the crime

vehicle i.e., Eicher goods vehicle bearing No. AP 10 W 0831.

4. Before the Tribunal, respondent No. 1 remained

ex parte. Respondent No. 2, insurance company filed counter

stating that the driver of the offending vehicle did not possess

valid driving licence and respondent No. 1 did not possess valid

documents and denied all the averments made in the claim-

petition, including the manner in which the accident took place,

age, avocation and earnings of the deceased and prayed to

dismiss the petition.

3 MGP, J Macma_2778_2019 and 3499_2019

5. Considering claim and counter filed by the respondent

No. 2 and the oral and documentary evidence available on

record, the Tribunal held that the accident occurred due to the

negligent driving of the crime vehicle i.e., Eicher goods vehicle

bearing No. AP 10 W 0831 and has awarded an amount of

Rs.5,45,200/- with interest at 7.5% per annum from the date of

petition till the date of realisation. Challenging the same, the

present appeals came to be filed by the claimants and the

Insurance Company respectively.

6. Heard both the learned counsel and perused the material

available on record.

7. The main contention raised by the learned Standing

Counsel for the Insurance Company (appellant in

M.A.C.M.A.No.3499 of 2019) is that the Tribunal should have

considered that as per Ex.B.1, copy of Insurance Policy, the

policy was valid from 16.08.2013 to 15.08.2014 and the

accident occurred on 14.08.2013 i.e., two days prior to the

commencement of the policy and as such, as on the date of the

accident, there is no coverage of risk at all. The learned counsel

further contended that though the cheque issued towards the

payment of premium was received on 13.08.2013 but the policy

was issued only on 16.08.2013 and as per the terms and 4 MGP, J Macma_2778_2019 and 3499_2019

conditions of the policy, the risk coverage would be from

16.08.2013 to 15.08.2014. However, the Tribunal erroneously

held that once cheque issued towards premium is received from

owner/insured, the policy would commence from the date of

receiving of the cheque. As regards the quantum of

compensation, although the claimants failed to prove the

income of the deceased by producing cogent documentary

evidence, the Tribunal erred in fixing the monthly income of the

deceased at Rs.6,000/-. Therefore, the Tribunal has granted

excessive and exorbitant compensation, which needs to be

reduced.

8. Per contra, learned counsel for the claimants (appellants

in M.A.C.M.A.No.2778 of 2019), has firstly contended that the

Tribunal awarded meagre amounts towards consortium and loss

of estate and funeral expenses and the same need to be

enhanced. Secondly, it is contended that the Tribunal should

have fixed the income of the deceased even by adding the other

income sources.

9. As regards the manner of accident, the Tribunal after

evaluating the evidence of PW. 2, coupled with the documentary

evidence available on record i.e., Exs.A1, First Information

Report, A.2, charge sheet, A.3, inquest report, A.4, post mortem 5 MGP, J Macma_2778_2019 and 3499_2019

examination report, A.5, MVI report, held that the accident

occurred due to rash and negligent driving of the driver of

Eicher goods vehicle No. AP 10 W 0831. Therefore, this Court is

not inclined to interfere with the said findings of the Tribunal

which are based on appreciation of evidence in proper

perspective.

10. Insofar as the quantum of compensation is concerned, the

case of the claimants is that deceased was earning Rs.22,000/-

per month by running food grains and general stores namely,

M/s.Shyam Trader. However, in support of their claim, they

filed Exs.A.7, return of turnover tax for the period of January,

2012 to March, 2012 along with payment challan; A.8, Return

of turnover tax for the period of April to June, 2013 along with

payment challan; A.9, return of turnover of tax for the period of

January to March, 2013; A.10, return of turnover tax for the

period of April to June, 2012; A.11, return of turnover tax for

the period of October to December, 2012; A.12, Bank account

statement of Shyam Traders from 01.08.2011 to 04.09.2013

issued by Indian Overseas Bank, Kalyan Nagar Branch, which

only discloses the turn over tax reports but did not reveal the

specific income of the deceased. However, Ex.A.13, registration

of M/s. Shyam Traders, discloses that PW.1 was Proprietor and

was unable to run the business due to the death of her husband 6 MGP, J Macma_2778_2019 and 3499_2019

and therefore, she closed down her business. Considering the

oral and documentary evidence available on record and duly

taking into consideration the age of the deceased as 60 years as

reflected under Exs.A.3 & A.4, the Tribunal has rightly fixed the

income of the deceased at Rs.6,000/- per month. In view of the

Apex Court judgment in Sarla Verma v. Delhi Transport

Corporation1, the Tribunal has rightly deducted 1/3rd amount

towards personal and living expenses of the deceased as there

are two dependents and fixed the net income at Rs.4,000/- per

month. As the deceased was 60 years old at the time of the

accident, the Tribunal rightly has added 10% towards future

prospects as per the decision of the Apex Court in National

Insurance Company Limited Vs. Pranay Sethi and others2.

Considering the age and avocation of the deceased, the Tribunal

awarded Rs.4,75,200/- by applying multiplier '9'. Even the

amount of Rs.70,000/- awarded by the Tribunal towards

conventional heads needs no interference.

11. As regards the liability, it is the main contention of

learned Standing Counsel for the Insurance Company that the

Insurance Company has issued a policy to the respondent No. 1

i.e., Eicher vehicle bearing No. AP 10 W 0831 covering the risk

2009 ACJ 1298 (SC)

2017 ACJ 2700 7 MGP, J Macma_2778_2019 and 3499_2019

for the period from 16.08.2013 to 15.08.2014. The accident

occurred on 14.08.2013. However, Ex.B.1, insurance policy

was issued on 16.08.2013 i.e., subsequently to the date of

accident. Even Ex.B.2, letter of authorization, shows the period

of covering of insurance was from 16.08.2013 to 15.08.2014.

But the fact remains that RW.1, the employee of the Insurance

Company, in his cross-examination admitted that the Insurance

Company has deposited collection receipt-cum-adjustment

voucher dated 13.08.2013 for an amount of Rs.15,807/-

regarding the payment of premium under policy No.

6133031130200001543, which was marked as Ex.A.15,

received from respondent No. 1, the owner of the crime vehicle.

It is the main contention of learned counsel for the claimants

that liability of insurer comes into effect from the date of

issuance of receipt of the premium and therefore, the policy

becomes effective from the date and time of the issuance of

receipt of the premium and to support his contention, the

learned counsel relied upon the decision of the Apex Court in

Oriental Insurance Company Limited vs. Dharam Chand

and others3. The Tribunal duly considering Ex.A.15, collection

receipt-cum-adjustment voucher, which shows the date of

issuance of receipt of premium as 13.08.2013 from the

2010 ACJ 2659 8 MGP, J Macma_2778_2019 and 3499_2019

respondent No. 1, came to the conclusion that the policy

becomes effective from the date and time of receipt of the

premium and as such, the respondent No. 2 being the insurer of

offending and respondent No. 1, owner of the offending vehicle,

are liable to pay the compensation jointly and severally. No

illegality or infirmity is discernable with the findings of the

Tribunal in holding that the risk of the insurance company

commences from the date of issuance of receipt of the collection

of premium. Therefore, I see no reason to interfere with the

award passed by the Tribunal and the contention of the learned

standing counsel for the Insurance Company in this regard is

hereby rejected.

12. Accordingly, both the M.A.C.M.A.Nos.2778 of 2019 and

3499 of 2019 are dismissed confirming the award and decree

passed by the Tribunal. There shall be no order as to costs.

Miscellaneous applications, if any, pending shall stand

closed.

___________________________________ JUSTICE SMT M.G.PRIYADARSINI

29.03.2023 gms/tsr 9 MGP, J Macma_2778_2019 and 3499_2019

THE HONOURABLE JUSTICE SMT M.G. PRIYADARSINI

M.A.C.M.A.Nos.2778 OF 2019 AND 3499 OF 2019

29.03.2023

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