Telangana High Court

Maram Jyothi vs Mohd. Nusrath on 31 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.701 AND 1830 OF 2015



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

      Feeling      aggrieved        by    the   order   and   decree    dated

13.01.2015 in O.P.No.293 of 2011 passed by the VIII Additional

District & Sessions Judge, Ranga Reddy District at L.B.Nagar,

the   Reliance      General         Insurance      Company      Ltd.,     filed

M.A.C.M.A.No.701 of 2015, challenging the liability and also the

quantum      of     compensation.            The   appellants/petitioners/

claimants in the said O.P., filed M.A.C.M.A.No.1830 of 2015

seeking enhancement of the compensation.



2.    For    the     sake      of        convenience,   the   appellant     in

M.A.C.M.A.No.701 of 2015 is referred to as 'Insurance Company

and the appellants in M.A.C.M.A.No.1830 of 2015 are referred

to as 'Claimants'.



3.    M.A.C.M.A.No.701 of 2015 is filed by the Reliance General

Insurance Company, contending that the court below erred in
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                                  2


holding that the accident occurred due to the rash and negligent

driving of the driver of the Mini bus bearing No.AP 9V 9670; the

court below failed to appreciate that accident occurred due to

the involvement of Innova Car bearing No.AP 9 BX 324 and

ought to have atleast held that the accident took place due to

the contributory negligence of the deceased who was driving

Innova car and also the driver of Mini bus and apportioned the

liability accordingly.    It is further contended that the court

below grossly erred in taking the net income of the deceased as

Rs.80,000/- per month and annual income as Rs.9,60,000/-

after deducting 1/3rd of income towards personal expenses and

it also failed to see that as per the income tax returns under

Ex.A.8 the gross income of the deceased for the assessment year

2008-09    was    shown     as   Rs.19,40,665/-      which     includes

Rs.39,265/-      being   income       from   house    property       and

Rs.2,28,101/- being income from the interest on fixed deposits

and dividend on Margadarshi Chit, the remaining income comes

to Rs.16,73,299/- and after deducting Rs.5,67,860/- towards

income tax, the net income comes to Rs.11,05,439/-. It is also

contended that the court below ought to have seen that after

deducting 1/3rd of the income towards personal expenses of the

deceased, the multiplicand is Rs.7,36,959/-, the loss of
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                                               Macmas_701 & 1830_2015



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dependency comes to Rs.1,03,17,426/- and grossly erred in

awarding Rs.1,34,40,000/- as compensation.          It is further

contended that Rs.1,00,000/- awarded by the court below

towards loss of care and guidance for the children is also

excessive and interest @ 7.5% p.a., is also excessive. As such,

prayed the Court to set aside the impugned order.



4.    On the other hand, M.A.C.M.A.No.1830 of 2015 is filed by

the claimants contending that the court below gross erred in

awarding Rs.1,37,65,000/- instead of Rs.1,50,00,000/-. The

court below grossly erred in taking the income of the deceased

at Rs.1,20,000/- which is contrary to the material on record,

since the deceased was aged 45 years, future prospects had to

be considered in terms of the various judgments of the Hon'ble

Supreme Court.    As such, prayed the Court to enhance the

compensation.



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

the Reliance General Insurance Co., Ltd., and Sri Putta Krishna

Reddy, learned counsel appearing for the claimants.



6.    The facts of the case in the petition are that on

07.11.2010 at about 1100 hours, while the deceased M.Ajaypal
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                                4


Reddy was proceeding from Penimella Village to Hyderabad

along with his family members in his Innova car bearing No.AP

09 BX 324, when they reached Debbaguda gate, Kandukur near

a culvert, one Mini Bus bearing No.AP 9V 9670 while proceeding

towards Srisailam came in opposite direction at high speed in a

rash and negligent manner and dashed the Innova Car.

Consequently, the deceased and one Ritish Reddy, died on the

spot and immediately, the dead body of the deceased was

shifted to Osmania General Hospital, Hyderabad and the duty

doctor conducted postmortem examination.           It is further

contended that the deceased was aged 47 years at the time of

accident and he was working as a contractor and earning

Rs.1,50,000/-   per   month,   which   is   contributed    for    the

maintenance of his family.



7.    The petitioner No.1 is the wife of the deceased and

petitioners 2 and 3 are the children of the deceased.



8.    The respondent No.1 in the O.P., remained ex parte. The

respondent No.2 filed counter denying the manner in which the

accident occurred and involvement of the Mini bus and that the

alleged accident occurred due to the contributory negligence of

the driver of the Innova car, as such, the claim is not KL,J &SKS,J Macmas_701 & 1830_2015

maintainable and the petition is bad for non-joinder of

necessary parties i.e., owner and insurer of the Innova car. It

was further contended that the Mini bus was not insured with it

and the policy was not in existence on the date of alleged

accident. The driver of the Mini bus was not having valid

driving licence, though the owner of the Mini bus had full

knowledge about the said fact, he handed over his bus to such a

person in violation of the provisions of the Motor Vehicles Act.

As such, the Insurance Company is not liable to pay the

compensation. Therefore, prayed the Court to dismiss the

petition against the Insurance Company.

9. With regard to the accident, a case in Cr.No.184 of 2010

was registered under Section 304-A of the IPC in Kandukur

Police Station against the driver of the Mini bus.

10. To prove the claim, petitioner No.1, therein got examined

herself as Pw.1 and Exs.A.1 to A.8 are marked. On behalf of the

Insurance Company, one Syed Rehmathullah, Senior Executive

of the Insurance Company was examined as Rw.1 and Ex.B.1-

Policy was marked.

KL,J &SKS,J Macmas_701 & 1830_2015

11. Basing on the evidence on record, the court below opined

that the accident occurred due to the negligent driving of the

driver of the Mini bus. Against the said decision, the Insurance

Company filed M.A.C.M.A.No.701 of 2015 contending that there

is contributory negligence on the part of the driver of the Innova

Car, but no witness was examined on their behalf to prove the

same except examining the employee of Insurance Company.

12. Now, the points for consideration are :

1. Whether the accident occurred on 07.11.2010 due to the contributory negligence of the driver of the Mini bus and driver of the Innova car ?

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

POINT NO.1 :

13. On going through the documents filed by the claimants,

Ex.A.1 FIR is issued immediately after the accident and Ex.A.2

charge sheet, which was filed after due investigation, it is

evident that the driver of the Mini bus is responsible for the

accident. Ex.A.3 scene of offence panchanama also shows that

accident occurred due to the negligence of the driver of the Mini

bus. Though summons were served on the driver of the Mini

bus, he has not contested the claim and not denied the manner KL,J &SKS,J Macmas_701 & 1830_2015

in which the accident occurred. There is no dispute with regard

to occurrence of accident and the death of the deceased,

whereas, the Insurance Company disputed the liability and

claim contending that there is contributory negligence, whereas,

the evidence on record clearly shows that the accident occurred

due to the negligence of the driver of the Mini bus. The

Insurance Company relied on the judgment in Agnuru Jaya

Ramulu Vs Mohammed Afzal Miyan and another 1, wherein

the date of accident itself is in dispute though the accident

occurred on the intervening night of 12/13.7.1997, the medical

officer evidence would show that the accident occurred on the

intervening night of 11/12.7.1997. Therefore, the Court came

to the conclusion that the documents filed by the claimants are

not reliable. As such, the appeal was decided stating that there

is contributory negligence on the part of claimant also.

Whereas, in the present case, the documents filed by the

claimants clearly proves that the accident occurred due to the

negligent driving of the driver of the Mini bus, as such, the

observations made in the above judgment are not applicable to

this case. Apart from that the Insurance Company failed to

2006 ACJ 855 KL,J &SKS,J Macmas_701 & 1830_2015

examine any eye witness on its behalf to prove the negligence of

driver of Innova Car whereas, Pw.1 is the wife of the deceased

and one of the injured eye witness deposed the manner in which

the accident occurred. Therefore, there is no force in the

contention of the Insurance Company that accident occurred

due to the contributory negligence on the part of both the

drivers. As such, this issue is decided in favour of the

claimants and against the Insurance Company. Accordingly,

this point is answered.

POINT NO.2 :

14. According to the claimants, the age of the deceased is 47

years as on the date of accident, whereas, the court below has

taken the age of the deceased as 45 years basing on the

postmortem examination. When the claimants themselves

contend that the age of the deceased as 47 years, the court

below cannot take the age of the deceased as 45 years and as

per the judgment of the Hon'ble Apex Court in Sarla Verma and

Others Vs Delhi Transport Corporation and another for the

age group of 47 years, the appropriate multiplier is 13.

15. According to the claimants, the deceased was doing

contract business and he was earning an income of KL,J &SKS,J Macmas_701 & 1830_2015

Rs.1,50,000/- per month. Ex.A.8- income tax returns filed by

the deceased for the assessment year 2008-09 shows the gross

income of the deceased as Rs.19,40,665/- and along with

income returns, balance sheet and the profit and loss account

pertaining to the period from 01.04.2007 to 31.03.2008 are also

furnished and the amount received by the deceased from

parking receipts collected at the Airport during that year was

Rs.6,54,96,423/- and after deducting license fee of

Rs.5,95,66,961/- and various other expenses, the net income

was Rs.17,27,535/- and the income from other sources is

Rs.2,28,101/-. As such, the gross income was Rs.19,55,636/-

(mistakenly shown as Rs.19,40,665/-). Ex.A.8 copies of income

tax returns of the deceased for the financial year 2006-2007

(assessment year 2007-2008) and for the financial year 2007-

2008 (assessment year 2008-2009) shows that the income of the

deceased was Rs.26,18,971/- and after deductions it has taken

at Rs.25,18,871/-. The court below came to the conclusion and

took the monthly income of the deceased at Rs.1,20,000/-,

whereas, learned counsel for the claimants disputed the same,

stating that the income after all deductions comes to

Rs.14,00,452/- p.a., and as per Ex.A.8, the gross income for the

year 2007-2008 is Rs.26,18,971/-. Hence, we deem it proper to KL,J &SKS,J Macmas_701 & 1830_2015

take the annual income of the deceased at Rs.14,00,452/-.

Further, as the deceased was a contractor and was aged about

47 years, he is entitled for 25% future prospects. If 25% of

future prospects is added to the annual income of the deceased,

it comes to Rs.17,50,565/- (Rs.14,00,452/- + 3,50,113/- (25%

of Rs.14,00,452/-). If 1/3rd of his annual income is deducted

towards his personal expenses, it would come to Rs.

11,67,044/- (Rs.17,50,567/- Minus 5,83,521/- (Rs.1,00,452/-

X 1/3). Hence, the total annual income of the deceased is taken

as Rs.11,67,044/-. The appropriate multiplier for the age group

of 47 years is 13. Therefore, after applying multiplier 13, the

loss of dependency comes to Rs.1,51,71,572/- (Rs.11,67,044/-

X 13).

16. As per the principle laid down by the Apex Court in

Magma General Insurance Company Limited Vs Nanu Ram

alias Chuhru Ram 2 the spouse is entitled to Rs.40,000/-

towards spousal consortium and children are entitled for

Rs.40,000/-each towards filial consortium and Rs.30,000/-

towards funeral expenses and Rs.1000/- towards damage to

clothing.

(2018) 18 SCC 130 KL,J &SKS,J Macmas_701 & 1830_2015

17. Thus, in all the claimants are entitled to Rs.

Rs.1,53,22,572/- as compensation under the following heads :

Loss of dependency : Rs.1,51,71,572/-

Spousal consortium                            :      Rs. 40,000/-

Filial Consortium                             :      Rs.80,000/-

Funeral expenses                              :      Rs.30,000/-

Damage to clothing                            :      Rs.1000/-
                                                    ___________________
                    Total                     :      Rs.1,53,22,572/-
                                                    ___________________

The said amount is rounded off to Rs.1,53,22,600/-

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

Insurance Company submitted that 7.5% per annum interest is

high, but 6% p.a, is reasonable interest. Whereas, the Apex

Court in Sonal Gupta and another Vs United India Insurance

Co., Ltd. and another 3, 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

2023 ACJ 1013 KL,J &SKS,J Macmas_701 & 1830_2015

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."