Reliance General Insurance ... vs K. Mallesh,
2023 Latest Caselaw 3454 Tel

          THE HON'BLE SRI JUSTICE K.LAKSHMAN

                               AND

           THE HON'BLE SMT JUSTICE K. SUJANA


                  M.A.C.M.A.No.1140 OF 2019


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

      Aggrieved by the order and decree dated 22.12.2014 in

O.P.No.164 of 2011 passed by the Chairman, Motor Accident

Claims Tribunal-cum-XIV Additional Chief Judge (Fast Track

Court), City Civil Courts, Hyderabad (for short 'the Tribunal') the

Reliance General Insurance Company Ltd., filed this appeal.


2.    It is the contention of the appellant/Insurance company

that the Tribunal erred in holding that the appellant has to pay

compensation of Rs.3,60,000/- with interest @ 7.5% p.a., and

costs. The Tribunal erred in holding that the accident occurred

due to rash and negligent driving of the driver of the crime

vehicle. The Tribunal failed to appreciate that accident occurred

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

and the Mini Bus bearing No.AP 9V 9670 in which the deceased

was travelling and therefore, ought to have atleast held that the

accident took place due to the contributory negligence of the

drivers of Innova car and Mini bus and apportioned the liability
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accordingly. It is further contended that the Tribunal erred in

awarding lump sum amount of Rs.2,50,000/- for pecuniary and

non pecuniary damages without specifying the heads under

which the compensation is awarded. It is also contended that

the deceased was 8 years old young boy, therefore, neither his

income is capable for assessment on estimated basis for

financial loss suffered by the parents and relied on the

judgment of the Hon'ble Supreme Court in New                      India

Assurance Co., Ltd., Vs Satender and others 1, wherein the

Apex Court reduced the compensation from Rs.4,45,000/- to

Rs.1,80,000/- and further relied on the judgment in Oriental

Insurance Co. Ltd., Vs Syed Ibrahim and others 2 wherein the

Tribunal   awarded      Rs.51,500/-     which     was   enhanced      to

Rs.1,52,000/- by the High Court, but maintained the Tribunal's

award.     It is also contended that the Tribunal awarded

Rs.65,000/-       for   medical       expenses,    Rs.25,000/-       for

transportation and Rs.20,000/- for loss of love and affection,

pain and suffering and mental agony. It is also contended that

the rate of interest awarded by the Tribunal is on high side and

therefore, prayed to set aside the order of Tribunal.



1 2007 ACJ 160

2 2007 ACJ 2816
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3.    Heard Sri T.Mahender Rao, learned counsel appearing for

the appellant and Smt Annapurna Sreeram, learned counsel

representing Smt A.Chaya Devi, learned counsel appearing for

respondents 1 and 2.

4. Learned counsel for the appellant submits that the

Tribunal without properly appreciating the evidence on record

put negligence on the part of driver of the Mini bus bearing

No.AP 9V 9670, though there is negligence on the part of driver

of the Innova car. He also submitted that the amount awarded

by the Tribunal is very high without there being any evidence on

record and against the settled principles of law. The Tribunal

awarded an amount of Rs.3,60,000/- which is on high side.

Therefore, prayed the Court to set aside the award of the

Tribunal.

5. On the other hand, learned counsel for the respondents

supported the order of Tribunal.

6. The facts of the case before the Tribunal is that

petitioners who are parents of the deceased K. Mahesh Babu,

filed the above O.P., stating that on 07.11.2010 at about 11.00

hours when they were travelling in Mini bus bearing No.AP 9V

9670 from Hyderabad to Srisailam, when it reached near KL,J &SKS,J Macma_1140_2019

Debbaguda gate Culvert, the driver of Mini bus drove the same

in a rash and negligent manner at high speed and dashed the

Innova car, due to which K.Mahesh Babu sustained grievous

injuries. Immediately, he was shifted to Yashoda Hospital,

Hyderabad for treatment and while undergoing treatment, he

died on 09.11.2010 at about 5.45 hours. Thereafter the dead

body was shifted to Osmania General Hospital for post-mortem

examination. The police of Kandukur Police Station registered

case in Cr.No.184 of 2010 under Sections 337 and 304-A of IPC

against the driver of Mini bus. It is further stated that the

deceased was studying in 3rd class in Vidya Sree High School

Jiyaguda, Hyderabad. The petitioners suffered mental agony,

loss of love and affection and therefore, claimed compensation of

Rs.3,50,000/-.

7. The respondent No.2 therein who is the appellant in this

appeal, filed counter stating that the O.P, is not maintainable.

The respondent is not aware of any criminal case registered by

the police against the driver of Mini bus and further submitted

that the accident took place due to the negligence on the part of

driver of Innova car bearing No.AP 9 BX 324 and there is no

negligence on the part of driver of Mini bus. He further

submitted that the claim of petitioners is excessive and KL,J &SKS,J Macma_1140_2019

exorbitant. As such, they are not liable to pay any

compensation. It is further submitted that the sketch of the

scene of offence clearly shows that Innova car came in high

speed and hit the Mini bus. Hence, there is negligence on the

part of the driver of Innova car and they are liable to pay the

compensation.

8. Basing on the evidence on record and after hearing both

sides, the Tribunal awarded an amount of Rs.3,60,000/- to the

petitioners.

9. To prove the case, on behalf of petitioners, Pws.1 to 3

were examined, Exs.A.1 to A.7 and Ex.X.1 are marked. On

behalf of respondent No.2, none of the witness was examined,

but Ex.B.1-policy was marked with consent.

10. Now, the points that arise for consideration is :

1. Whether the accident occurred due to the negligent driving of the driver of Mini bus and driver of the Innova car and there is contributory negligence on the part of the both the drivers ?

2. Whether the amount awarded by the Tribunal is excessive?

POINT NO.1 :

11. Before the Tribunal, Pw.1-father of the deceased was

examined himself and he filed affidavit stating that on KL,J &SKS,J Macma_1140_2019

07.11.2010 at about 11.00 hours, when they were travelling in

Mini bus bearing No.AP 09 V 9670 proceeding from Hyderabad

to Srisailam, when they reached Debbaguda gate Culvert, the

accident occurred due to the rash and negligent driving of the

driver of Mini bus, dashed the Innova car, due to which his son

Mahesh Babu sustained grievous injuries and immediately he

was shifted to Yashoda Hospital, Hyderabad. In support of his

contention he also filed Ex.A.1 certified copy of the FIR dated

07.11.2010, Ex.A.2 certified copy of inquest report dated

10.11.2010, Ex.A.3-certified copy of post mortem examination

dated 10.11.2010, Ex.A.4-certified copy of motor vehicle

inspector report dated 03.12.2010, Ex.A.5-certified copy of

charge sheet dated 21.12.2010, Ex.A.6-Death summary issued

by Yashoda Hospital, Hyderabad, Ex.A.7-Medical bills totaling

to Rs.71,654/- and Ex.X.1-case sheet.

12. The Insurance Company did not adduce any evidence in

support of its contention except filing Ex.B.1-policy with

consent.

13. As seen from the record, Ex.A.1-FIR was issued

immediately after the accident, Ex.A.5-charge sheet which is

filed after investigation shows that the accident occurred due to

the negligent driving of the driver of the Mini bus. Ex.A.2 KL,J &SKS,J Macma_1140_2019

certified copy of the inquest report shows that the deceased died

in a motor vehicle accident involving crime vehicle and Ex.A.3

post mortem report shows that deceased died in the accident.

Further petitioners also filed Ex.A.7 medical bills for

Rs.71,654/- and also examined Pw.2-consultant surgeon at

Yashoda Hospital. Pw.2 deposed that the deceased Mahesh

Babu aged about 8 years was admitted in their hospital with

unconscious and blunt injury on chest, abdomen with crush

injury of both lower limbs, he was in shock, Blood pressure and

pulse was not recordable and resestation, intubation done,

and put him on ventilator, investigations done and suffered with

severe head injury with RT, Tentorial collection and SAHCT

Abdomen done. The deceased had liver Hematoma and RT side

Pnemothoriax was present, fracture of both bones of legs and

while undergoing treatment he died on 09.11.2010. Ex.A.10 is

the case sheet of the patient and he opined that the patient died

due to the injuries received in the accident.

14. The evidence on record shows that accident occurred due

to the negligent driving of the driver of Mini bus, though

appellant claims that there is contributory negligence on the

part of driver of Innova Car, no eye witness was examined on its

behalf to prove negligence on the part of driver of Innova car.

KL,J &SKS,J Macma_1140_2019

Even the driver of Mini bus was not examined to prove the

accident alleging negligence on the part of driver of Innova car.

Therefore, there is no illegality in the decision of the Tribunal

attributing negligence on the part of driver of Mini bus.

Accordingly, Point No.1 is answered.

POINT NO.2 :

15. The contention of learned counsel for the appellant is that

the amount awarded by the Tribunal is exorbitant which is

against principles of law.

16. According to respondents 1 and 2, the age of the deceased

is 8 years as on the date of accident. With regard to this issue,

the Hon'ble Supreme Court in Kishan Gopal and another Vs

Lala and others 3 took the notional income at Rs.30,000/- p.a.,

and awarded an amount of Rs.2,10,000/- towards

compensation for loss of love and affection of the deceased,

which is a meagre amount. Per contra, learned counsel for the

Insurance Company relied on the judgment of the Hon'ble

Supreme Court in Manju Devi & another Vs Musafir Paswan

3 2014 (1) Supreme Court Cases 244 KL,J &SKS,J Macma_1140_2019

and another 4. According to the said judgment, notional income

for non-earning person is Rs.15,000/- only and compensation

awarded is excessive. Whereas in the latest judgment of the

Hon'ble Supreme Court in Meena Devi Vs Munu Chand Mahto

alias Nemchan Mahto and others 5, the claimants therein have

claimed Rs.5,00,000/- for the death of the minor. In paragraph

No.16, the Hon'ble Supreme Court held as under :

"16. Thus applying the ratio of the said judgments, looking to the age of the child in the present case i.e. 12 years, the principles laid down in Kishan Gopal [Kishan Gopal v. Lala, (2014) 1 SCC 244 : (2014) 1 SCC (Civ) 184 : (2014) 1 SCC (Cri) 241] are aptly applicable to the facts of the present case. As per the ocular statement of the mother of the deceased, it is clear that the deceased was a brilliant student and studying in a private school. Therefore, accepting the notional earning Rs 30,000 including future prospect and applying the multiplier of 15 in view of the decision of this Court in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the loss of dependency comes to Rs 4,50,000 and if we add Rs 50,000 in conventional heads, then the total sum of compensation comes to Rs.5,00,000. As per the judgment of MACT, lump sum compensation of Rs 1,50,000 has been awarded, while the High Court enhanced it to Rs 2,00,000 up to the value of the claim petition. In our view, the said amount of compensation is not just and reasonable looking to the computation made hereinabove. Hence, we determine the total compensation as Rs 5,00,000 and on reducing the amount as awarded by the High Court i.e. Rs 2,00,000, the enhanced amount comes to Rs 3,00,000."

17. In view of the said judgment, there is no illegality in

awarding compensation of Rs.3,60,000/- which includes

4 2005 ACJ 99

5 (2023) 1 Supreme Court Cases 204 KL,J &SKS,J Macma_1140_2019

medical bills for Rs.71,654/- to the appellants/claimants for the

death of their minor son. Accordingly, Point No.2 is answered.

18. IN THE RESULT, the appeal is dismissed. No order as to

costs.

Miscellaneous applications, if any, pending in this

M.A.C.M.A, shall stand closed.

_________________ K.LAKSHMAN, J

______________ K. SUJANA, J Date : 31.10.2023 Rds