Telangana High Court

The New India Assurance Com. Ltd., ... vs Smt. E.Ramya, Hyd., And 4 Ano. on 1 November, 2023

Bench: P.Sam Koshy, Laxmi Narayana Alishetty

            HONOURABLE SRI JUSTICE P.SAM KOSHY
                             AND
        HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

             M.A.C.M.A.Nos.4758 of 2008 and 675 of 2017


COMMON JUDGMENT: (per Hon'ble Sri Justice Laxmi Narayana Alishetty)


      Heard     Sri   A.Ramakrishna      Reddy,    learned    counsel   for

insurance company and learned counsel Sri V.Atchuta Ram for the

claimants.


2.    M.A.C.M.A.No.4758 of 2008 is an appeal by the insurance

company and M.A.C.M.A.No.675 of 2017 is an appeal by the

claimants. Considering the fact that the two appeals arises out of

the same award dated 24.07.2008 between the same parties, we

have decided to take up the two appeals together and decide the

same by this common judgment.


3.    The facts leading to filing of these two Appeals are that,

MVOP No.687 of 2007 was filed under Section 166 of Motor

Vehicles Act, 1988 by the wife, children and mother of the

deceased-Emmadi Ramesh Reddy, claiming compensation on

account of death of the deceased in a motor vehicle fatal accident.

That on 05.01.2007 at about 1.00 p.m., while the deceased was

standing on the left side of the road at           Bachannapet, a lorry

bearing registration No.ABK-466, driven by its driver in a rash and
                                                                   PSK,J & LNA,J
                                                       MACMA Nos.4758 of 2008 &
                                                                     675 of 2017
                                    2

negligent manner and dashed him, as a result, he sustained

injuries. Immediately he was shifted to Government Hospital,

Jangaon, where he expired.


4.    According to the claimants, the deceased was aged 32 years

as on the date of accident and earning a sum of Rs.30,000/- per

month    by   doing     transport   business   and   agriculture         and

contributing his earnings to the claimants.


5.    The respondent no.1 owner of the crime vehicle filed counter

denying the allegations made in the claim petition and

contended that the crime vehicle was insured with 2nd

respondent-insurance company and as such, the 1st respondent

stands indemnified.

6. The respondent no.2-insurance company filed counter,

denying the allegations made in the claim petition and also

denied the manner of occurrence of accident, the age, the income

of the deceased and thus disputed the claim of claimants.

7. On the basis of the above pleadings, the Court below framed

the following issues:

i) Whether Sri Emmadi Ramesh Reddy died in the accident on 05.01.2007 due to rash and negligent driving of lorry No.ABK-466 ?

PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

ii) Whether the claimants are entitled for compensation? If so, against whom ?

iii) To what relief ?

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

P.Ws.1 to 3 were examined and Exs.A1 to A11 were marked. On

behalf of the insurance company, no witness was examined, but

copy of insurance policy was marked as Ex.B1.

9. The Tribunal, on conclusion of the pleadings and evidence

placed on record by the parties, vide impugned award, held that

the claimants to be entitled for compensation of Rs.11,40,000/-

with interest at the rate of 7.5% per annum from the date of the

petition till the date of realization, payable by the respondents 1

and 2 jointly and severally.

10. The primary ground of challenge by the insurance company

in MACMA No.4758 of 2008 was firstly, so far as doubting the

accident itself, in which the deceased died and secondly, the

quantum of compensation awarded by the Tribunal.

11. MACMA No.675 of 2017 is an appeal filed by the claimants

seeking for enhancement of compensation. The primary ground

seeking for enhancement of compensation was that the Tribunal

had not awarded the compensation as claimed by the claimants

and secondly, the Tribunal had erred in not awarding prospects of PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

the deceased so also the consortium to the claimants. During the

hearing of appeal, learned counsel for claimants submitted that the

Tribunal erred in taking the income of the deceased as Rs.10,000/-

, so also in deducting 1/3rd towards personal and living expenses

instead of 1/4th as the dependents in the present appeal are four in

number. He further submitted that Tribunal erred in applying

multiplier '15', instead of '16' as per the decision of Hon'ble

Supreme Court in Sarla Verma.

12. As regards the contention of the appellant-insurance

company in MACMA No.4758 of 2008 is concerned, it has been

argued by the learned counsel for insurance company that from

the perusal of the pleadings and evidence, which has come on

record, there appears to be many missing links to establish and

prove that the deceased-E.Ramesh Reddy died of an accident. It

was the contention of the insurance company that there is no

material made available before the Tribunal so as to establish that

the deceased had died on account of injuries suffered from a road

accident. Further, there was also no medical documents available

with the claimant to establish that the deceased was immediately

hospitalized or taken to a hospital and in the course of treatment,

he had succumbed.

PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

13. Coming to the first ground raised by the insurance company

i.e., doubting the accident that occurred on 05.01.2007, we find

that the insurance company has failed to discharge its obligations

so far as proving the contentions raised by it by placing cogent,

substantial material and evidence in support of its contention. The

insurance company, except filing Ex.B1-insurance policy, did not

choose to examine any oral evidence to support their contention.

14. PW.2-Subari Kishan, who has been examined as an eye

witness, in his chief-examination has categorically stated that he

noticed the accident, which occurred due to rash and negligent

driving of the drive of the crime vehicle. Though P.W.2 was cross-

examined, nothing was elicited to discredit his testimony.

15. In the absence of any material on the part of insurance

company, it is difficult to accept the contention of doubting the

accident and the accidental death of the deceased said to have

taken place on 05.01.2007. The said ground raised by the

appellant-insurance company thus stands answered in the

negative.

16. Coming to the appeal in MACMA No.675 of 2017 filed by the

claimants, on perusal of the entire award, we find that the Tribunal

had erred in not awarding of 40% of the income of the deceased PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

towards loss of future prospects in view of the decision of Hon'ble

National Insurance Co.Ltd., vs. Pranay Sethi and others 1.

17. In Pranay Sethi (supra), the Hon'ble Apex Court at

paragraph-59.4 had held as under:

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

18. In view of the above decision, we are of the considered

opinion that since the age of the deceased was 32 years as on the

date of the accident, an addition of 40% of the income of the

deceased be added towards his future prospects.

19. In so far as the contention raised by the learned counsel for

claimants that deceased was earning Rs.30,000/- per month, the

Tribunal had considered Exs.A8 to A10, and taken the income of

the deceased as Rs.10,000/- per month, which is just and proper.

20. Since the dependents of the deceased are four in number, one-

fourth of the income towards personal and living expenses is to be

deducted as per the decision of Hon'ble Supreme Court in Sarla

(2017) 16 SCC 680 PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

Verma and others vs. Delhi Transport Corporation and another 2

at paragraph-30, instead 1/3rd as deducted by the Tribunal.

21. With regard to the multiplier, as per the decision of Hon'ble

Supreme Court in Sarla Verma (supra), the multiplier is '16' for the

age groups of 31 to 35. In the instant appeal, as the age of the

deceased as on the date of the accident was 32 years, the appropriate

multiplier is '16', instead of '15' as applied by the Tribunal.

22. With regard to the award of consortium, the Hon'ble Supreme

Court very recently in the case of Anjali and others vs Lokendra

Rathod and others 3 decided on 06.12.2022, taking into

consideration the decision of the Constitutional Bench in the case of

Sarala Verma (supra), as also in the case of Pranay Sethi (supra),

has awarded a sum of Rs.44,000/- towards loss of parental

consortium. The said enhancement and revision has been done taking

into consideration, rise in the cost of expenses and cost of living that

has arisen during the intervening period from the date of decisions of

Sarla Verma and Pranay Sethi. Moreover, the Hon'ble Supreme

Court itself in its Constitutional Bench decision had said that there

shall be 10% hike on the compensation awarded under general

damages every three years.

(2009) 6 SCC 121

2023(1) ALD 107(SC) PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

23. The contention raised by the learned counsel for

claimants/appellant deserves to be allowed to the above extent.

We are of the considered opinion that the claimants are also

entitled to Rs.33,000/- towards loss of estate and funeral

expenses.

Conclusion:

24. In view of the above, the compensation amount is recalculated

as under:

Sl.No.     Head                                   Compensation awarded

1          Loss of dependency                     Rs.19,20,000/- [Rs.10,000/- x 12 x 16)
                                                  minus    one-fourth i.e.,Rs.4,80,000/-,
                                                  which comes to Rs.14,40,000/-.
2          Future prospects                       Rs.5,76,000/- (i.e., 40% of annual
                                                  income i.e., Rs.14,40,000/-)

3          Total loss of dependency               Rs.20,16,000/-
                                                  (Rs.14,40,000/- + Rs.5,76,000/-)

4          Loss of consortium                     Rs. 1,76,000/-
           (Rs.44,000/- x 4)
5          Funeral expenses                       Rs.     16,500/-

6          Loss of estate                         Rs.     16,500/-

           Total compensation to be paid :        Rs.22,25,000/-

25. The total compensation, which becomes payable to the

claimants is enhanced from Rs.11,40,000/- to Rs.22,25,000/-. The

enhanced amount shall also carry interest @ 7.5% per annum from

the date of the claim petition made before the Tribunal till the date

of the actual payment. The insurance company is directed to

ensure that the entire amount of compensation is deposited within PSK,J & LNA,J MACMA Nos.4758 of 2008 & 675 of 2017

a period of six weeks from the date of receipt of copy of this order,

duly adjusting the amount if any already paid by the insurance

company. The ratio of apportionment of amounts among the

appellants/claimants and the permission to withdrawal shall be

the same in terms of the award passed by the Tribunal.

26. In the result, MACMA No.4758 of 2008 stands dismissed and