Telangana High Court

Reliance General Insurance ... vs Smt.Erramoni Vasantha And 2 Ors on 18 October, 2023

Bench: K.Lakshman, K. Sujana

             THE HON'BLE SRI JUSTICE K.LAKSHMAN
                             AND
              THE HON'BLE SMT JUSTICE K. SUJANA

               M.A.C.M.A.Nos.744 AND 635 OF 2015


COMMON JUDGMENT : (per Hon'ble Smt Justice K.Sujana)


       Being aggrieved by the order and decree dated 10.04.2015 in

M.V.O.P.No.649 of 2011 passed by the Family Court-Cum-VIII

Additional District Judge, Mahabubnagar, the Reliance General

Insurance Company Limited filed M.A.C.M.A.No.744 of 2015

challenging the liability and quantum of compensation, awarded

by the Court below. The appellants/petitioners/claimants in the

said   M.V.O.P.,     filed   M.A.C.M.A.No.635    of    2015   seeking

enhancement of compensation.

2.     Since both the appeals arise out of the same order and the

parties are also same, they are disposed of by this common

judgment.


3.     For     the   sake    of   convenience,   the   appellant   in

M.A.C.M.A.No.744 of 2015 is referred to as 'Insurance Company'

and the appellants in M.A.C.M.A.No.635 of 2015 are referred to as

'claimants'.
                                                        KL, J & SKS, J

                                               MACMA.Nos.744 & 635 of 2015
                                2


4.    Heard Sri T.Mahender Rao, learned counsel appearing for

Insurance Company, and Sri K.Venkatesh Gupta, learned counsel

for claimants.


5.    On considering the entire evidence on record, the Court

below held that the accident had occurred due to the negligence of

the driver of Indica car bearing No.AP-12F-1230. The Court below

vide order dated 10.04.2015 in M.V.O.P.No.649 of 2011 awarded a

sum of Rs.26,00,000/- (Twenty Six Lakhs only) together with

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

claim petition till the date of realization, to the claimants as

against respondent Nos.1 and 2 i.e., owner of the car, and

Insurance Company, respectively, against the claim of

Rs.40,00,000/- (Forty Lakhs only) claimed by the claimants for the

death of the deceased in a motor vehicle accident occurred on

22.09.2011.

6. The Insurance Company filed M.A.C.M.A.No.744 of 2015

disputing the liability and quantum of compensation, awarded by

the Court below. Per contra, the claimants filed M.A.C.M.A.No.635

of 2015 for enhancement of compensation.

7. M.A.C.M.A.No.744 of 2015 was filed claiming that the

accident occurred due to the involvement of motorcycle bearing KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

No.AP-28DD-1099 driven by the deceased with the Indica car

bearing No.AP-12F-1230. Therefore, the Insurance Company

prayed that the Court below ought to have at least held that the

accident took place due to the contributory negligence of the

deceased who was the rider of the motorcycle and the driver of the

Indica car bearing No.AP-12F-1230 and apportioned the

compensation accordingly, as head-on collision between two

vehicles takes place only when the drivers of both vehicles are

negligent, as held by this Court in A.Jaya Ramulu Vs. Md.Afzal

Miyan and Another 1. Further, the Insurance Company also

contended that the trial Court erred in taking the income of the

deceased as Rs.13,400/- per month by relying upon the salary

certificate (Ex.A10) while estimating the loss of dependency and

the learned Judge failed to see that where the annual income of

the deceased is in taxable range, the words 'actual salary', should

be read as 'actual salary less tax' and therefore, the income tax

and profession tax liability of the deceased has to be deducted

while estimating the loss of dependency as held by the Hon'ble

Supreme Court in Sarla Varma and Others Vs. Delhi Transport

Corporation and Another 2.

(2006) ACJ 855

(2009) 6 SCC 121 KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

8. On the other hand, the claimants filed M.A.C.M.A.No.635 of

2015 stating that the trial court erred materially in not awarding

any amount towards loss of estate of the deceased and has also

not awarded any amount towards care and protection of appellant

No.2 at the time of her old age. Further, the trial Court ought to

have taken into consideration the future prospects of the deceased

at 100% instead of adding 50%. It is contented that the trial Court

awarded very meager amount towards funeral expenses and the

trial Court ought to have awarded interest at the rate of 15% per

annum, as was being charged by the nationalized banks while

granting personal loans. As such, prayed this Court to award

enhanced compensation of Rs.40,00,000/-.

9. Now the points that arise for consideration are :

1. Whether the accident occurred due to negligence of the rider of hero honda passion plus motorcycle bearing No.AP-28DD-1099 ?

2. Whether the driver of indica car bearing No.AP-12F-1230 is having valid driving license on the date of incident ?

3. Whether the claimants are entitled for enhancement of compensation as prayed for ?

4. To what relief ?

KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

POINT Nos.1 to 4 :

10. To prove the accident, the petitioners in the O.P., relied on

the evidence of PWs.1 and 2 and got marked Exs.A1 to A10.

Petitioner No.1 is the wife of the deceased. Petitioner No.2 is the

mother of the deceased. Petitioner No.1 got herself examined as

PW.1 and PW.2 was examined as the eye witness to the accident.

PW.3 is the Principal of Mahatma Gandhi Institute of Technology,

where the deceased used to work as watchman. Ex.A1 is the

certified copy of the First Information Report, Ex.A2 is the certified

copy of inquest report, Ex.A3 is the certified copy of postmortem

examination report, Ex.A4 is the certified copy of crime details

form, Ex.A5 is the certified copy of M.V.I., report, Ex.A6 is the

certified copy of charge sheet, Ex.A7 is the copy of policy, Ex.A8 is

the copy of R.C., Ex.A9 is the copy of driving license and Ex.A10 is

the original service salary certificate.

11. PW.1 is the wife of the deceased. She reiterated the version

as averred in the claim petition. She deposed that she is not eye

witness to the accident. PW.2 - Venkataiah, supported the version

of PW.1 saying that he is witness to the accident. He stated that

on 22.09.2011 the deceased was proceeding from Hyderabad

towards Telugupally Village of Amrabad Mandal on hero honda

passion plus motorcycle bearing No.AP-28DD-1099 and on the KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

way at about 04:50 P.M., when the deceased was proceeding near

culvert in between Maisigandi and Kadthal Village, a indica car

bearing No.AP-12F-1230 came in the opposite direction, driven by

its driver at high speed, in a rash and negligent manner, and

dashed against the deceased, due to which the deceased sustained

severe bleeding injuries. Immediately, the deceased was shifted to

the hospital at Amangal and from there he was shifted to Prime

Hospital for better treatment, where he succumbed to injuries

while undergoing treatment. PW.1 in her cross examination denied

the suggestion that her husband did not drive the motorcycle and

that they colluded with the police officials got foisted the case

against the respondent No.1. PW.2 in his cross examination stated

that the police has not examined him about the accident on hand

and he did not state before the police about the accident.

12. The Insurance Company did not choose to examine itself or

anybody to show that there was no rash and negligent driving on

the part of the driver of the crime vehicle. The contention of

insurance company was that PW.2 is not figured as eye witness to

the accident and his evidence cannot be taken into consideration

and it can be brushed aside. On that ground, the counsel for

petitioner in the trial Court placed reliance on the decision in

Kollipara Veera Raghavamma and Another Vs. S.Raghavaraju KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

and Others 3, wherein at paragraph No.5 it was observed that "we

do not think merely because the witness was not examined in the

criminal case his evidence can be rejected". Except that suggestion,

nothing was elicited to discredit the testimony of PW.2.

13. Further, the Insurance Company, in support of their version

filed certified copies of FIR, inquest, postmortem report, crime

details form, MVI report and charge sheet vide Exs.A1 to A5,

respectively. The Insurance Company claims contributory

negligence on the part of the rider of the motorcycle and the driver

of the indica car. In support of the said claim, reliance was placed

on the decision taken in the case of Agnuru Jaya Ramulu Vs.

Mohammed Afzal Miyan and Another 4. The relevant paragraph

No.10 reads as under:

"10. The entry dated 13.7.1997 in Ex. X. 1 extracted above shows that there was a head on collision between the two vehicles. A head on collision between two vehicles takes place only when the drivers of both the vehicles involved in the accident are negligent. So, from the above entiry it is easy to see that appellant himself should have contributed to the accident. His contribution to the accident can in no event be less than 50%. Since the police did not send the

1996 (2) T.A.C. 531 (AP)

2004 SCC OnLine AP 754 KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

vehicles involved in the accident for examination by a Motor Vehicles Inspector, the lorry that allegedly caused the accident is not known. Therefore, appellant in collusion with the first respondent and the police, with the help of P.W. 2 must have filed a collusive petition to enable him to get compensation from the insurer of the lorry of the first respondent i.e., second respondent. For reasons best known to it, second respondent did not obtain permission under Section 170 of the Motor Vehicles Act, 1988, to contest the case on all the grounds."

14. In the present case, the crime record shows that the

accident occurred due to the negligence of Indica car bearing

No.AP-12F-1230 and no oral evidence was placed before the Court

below to substantiate the contention that there was no negligence

on the part of the driver of the crime vehicle or there is

contributory negligence on the part of the rider of bike. In absence

of any evidence on behalf of Insurance Company and in view of the

evidence of PW.2 apart from Ex.A1 to A9, it can be held that the

accident occurred due to negligent driving of the driver of Indica

car bearing No.AP-12F-1230. Further, the Insurance Company

submitted that the driver of Indica car bearing

No.AP-12F-1230 had no valid driving license on the date of

accident, whereas, Ex.A9 copy of driving license shows that the

driver of car had valid driving license on the date of accident.

KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

15. The Insurance Company contended that while computing

the income of the deceased, the trial Court failed to deduct the tax

from salary and also contended that the Court below awarded

7.5% interest instead of 6%, whereas, the professional tax of

Rs.100/- is deducted from salary.

16. As seen from the record, the gross salary of the deceased

was Rs.13,533/-, out of which after deducting professional tax of

Rs.100/-, the gross salary comes to Rs.13,433/- per month. The

age of the deceased at the time of accident was 33 years and the

same is not disputed by the Insurance Company. As such, he is

entitled for 50% future prospects as held by the Hon'ble Supreme

Court in National Insurance Company Limited Vs. Pranay Sethi

and Others 5. Therefore, it would be Rs.6,716/- + Rs.13,433/-

totaling to Rs.20,100/- per month and Rs.2,41,200/- per annum.

Since the deceased had two dependents, his 1/3rd income shall be

deducted towards his personal expenditure which would come to

Rs.80,400/-. After the said amount is deducted from the annual

income, the same would come to Rs.1,60,800/-. The appropriate

multiplier applicable for the age group of 30 to 35 years is 16 as

per the Judgment of the Hon'ble Supreme Court in Sarla Verma

2017 16 SCC 680 KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

and Others Vs Delhi Transport Corporation and another 6.

Therefore, the income of the deceased when multiplied with 16

(1,60,800 x 16) would come to Rs.25,72,800/-. Apart from that,

the claimants are also entitled to Rs.15,000/- towards loss of

estate, Rs.40,000/- towards loss of consortium to both the

claimants each, and Rs.15,000/- towards funeral expenses.

17. Thus, in view of the above discussion, the compensation

awarded to claimants under various heads are as follows:

Loss of dependency/contribution to family Rs.25,72,800/-

Loss of consortium to claimant No.1 Rs.40,000/-

Loss of consortium to claimant No.2 Rs.40,000/-

        Loss of estate                                           Rs.15,000/-

        Funeral expenses                                         Rs.15,000/-

        Transportation                                           Rs.5,000/-

        Damage to clothes                                        Rs.1,000/-

------------------------------------------------------ -------------------

Total Compensation Rs.26,88,800/-

18. As far as the issue of rate of interest is concerned, the

Insurance Company submitted that 7.5% per annum interest is

2009 6 SCC 121 KL, J & SKS, J

MACMA.Nos.744 & 635 of 2015

high, but 6% is reasonable interest. Whereas, the Apex Court in

Sonal Gupta and another Vs United India Insurance Co., Ltd.

and another 7, in paragraph No.31 it was observed as under :

"31. As far as issue of rate of interest is concerned, it should be 7.5 per cent in view of the latest decision of the Apex Court in National Insurance Co. Ltd., V Mannat Johal, 2019 ACJ 1849 (SC), wherein the Apex Court has held as under :

"(13) The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12 per cent per annum but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5 per cent per annum and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."