Bajaj Allianz General Insurance ... vs A Vara Laxmi And 4 Others
2023 Latest Caselaw 2605 Tel

         IN THE HIGH COURT FOR THE STATE OF TELANGANA

                              HYDERABAD
                                  ****

+ M.A.C.M.A. No. 3943 OF 2014 & M.A.C.M.A.No. 4264 OF 2014

Between:

# A. Vara Laxmi & others

....Appellants/petitioners

Vs.

$ V.Markandeyulu & and another .... Respondents/Respondents

JUDGMENT PRONOUNCED ON: 22.09.2023

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

1. Whether Reporters of Local newspapers may be allowed to see the Judgments? : Yes

2. Whether the copies of judgment may be Marked to Law Reporters/Journals? : Yes

3. Whether His Lordship wishes to see the fair copy of the Judgment? : Yes

__________________________________ NAMAVARAPU RAJESHWAR RAO, J 2 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

+ M.A.C.M.A. No. 3943 OF 2014 & M.A.C.M.A.No. 4264 OF 2014 % 22-09-2023 # A. Vara Laxmi & others

....Appellants/petitioners

Vs.

$ V.Markandeyulu & and another .... Respondents/Respondents

! Counsel for the petitioner : Sri Kasireddy Jagathpal Reddy

Counsel for the Respondent No.2: A. Ramakrishna Reddy

<Gist :

>Head Note:

? Cases referred:

1.        (2017) 16 SCC 680
2.        (2009) 6 SCC 121
3.        2018 Law Suit (SC) 904
                             3                                          RRN,J
                                                     COMMON JUDGMENT IN
                                        MACMA No.3943 of 2014 & 4264 OF 2014

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

M.A.C.M.A No.3943 OF 2014 & M.A.C.M.A No.4264 OF 2014

COMMON JUDGMENT:

Both these Motor Accidents Civil Miscellaneous Appeals

are being disposed of by way of this common judgment as both

these appeals are directed against the award dt.25.06.2014 in

O.P. No.2406 of 2010 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-IX Additional Chief Judge,

City Civil Courts, Hyderabad (Hereinafter referred to as 'the

Tribunal').

2.            In   M.A.C.M.A     No.3943        of      2014,          the

Appellants/petitioners    have   challenged    the     award        being

aggrieved by the quantum of compensation and prayed to

enhance the same. In M.A.C.M.A No.4264 of 2014, the

Appellant/Insurance Company had challenged the Award and

prayed to set aside the same.

3. For convenience, the facts in M.A.C.M.A No.3943 of

2014 are discussed hereunder, and the parties hereinafter will

be referred to as they are arrayed before the Tribunal.

                           4                                          RRN,J
                                                   COMMON JUDGMENT IN
                                      MACMA No.3943 of 2014 & 4264 OF 2014

4. Brief facts of the case are that on the intervening

night of 16/17.5.2010 at about 2.30 a.m. near Kharkana

Secunderabad Main road, opposite G. Pulla Reddy Sweet Shop,

Trimulgherry, Secunderabad, the deceased A. Lova Raju was

proceeding as a pillion rider and Markandeyulu was riding the

Bajaj Pulsar Motorcycle bearing No.AP-10-T/R-1646 as they

were returning from Macha Bollaram side towards Kharkhana

side, and when they reached near G. Pulla Reddy Sweet shop,

Karkhana, at the same time, the rider of the said Pulsar

Motorcycle drove the same with high speed in a rash and

negligent manner and dashed the road divider. Due to the

sudden impact, the deceased fell down from the motorcycle,

and the deceased sustained fatal injuries, and he succumbed

to injuries on the same day while undergoing treatment at

Gandhi Hospital, Hyderabad. The Police of Karkhana have

registered a case in Cr.No.96 of 2010 under Sections 304 and

337 IPC against the rider of the crime vehicle. Accordingly,

filed a claim petition claiming compensation of Rs.25,00,000/-.

5. Before the Tribunal, respondent No.1 remained ex

parte. Whereas respondent No.2 filed a Written Statement

denying the averments of the petition. They contended that

the rider of the Pulsar Motorcycle bearing No.AP-10-T/R-1646 5 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

was not holding a valid driving license at the time of the

alleged accident, and he was not qualified for holding or

obtaining such driving license. Further, he still needs to

satisfy the requirements of Rule No.3 of the Central Motor

Vehicles Rules, 1989. One can drive the motorcycle if he

should have an MCWG license, but the rider of said Pulsar did

not possess a valid and effective driving license as on the date

of the accident. Accordingly, prayed to dismiss the claim

petition.

6. To prove their case, on behalf of the petitioners,

PWs.1 to 3 were examined and got marked Exs.A1 to A5. On

behalf of respondent No.2, RW.1 was examined and got

marked Ex.B1 to B3.

7. After considering the claim and the Written

Statement filed by respondent No.2, and on evaluation of the

evidence, both oral and documentary, the Tribunal has found

that there was contributory negligence on the part of the

deceased @ 25% and remaining 75% on the part of the rider of

the motorcycle, and allowed the O.P. partly awarding

compensation of Rs.12,39,000/- and deducted 25% of

contributory negligence on the part of the deceased i.e. at

Rs.3,09,750/- and rest of the amount i.e. Rs.9,29,250/- with 6 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

interest at 7% per annum payable by the respondents jointly

and severally was awarded to the petitioners. Dissatisfied with

the quantum of compensation, the petitioners filed the present

appeal.

8. Heard both sides. Perused the record.

9. Learned counsel for the petitioners contended that

the Tribunal was not justified in fastening contributory

negligence against the deceased to the extent of 25% by

observing that the rider of the motorcycle, pillion rider, and

another person accompanied the due. Thus, three persons

were riding on the motorcycle at the time of the accident. He

further contended that the Tribunal erred in fixing the income

of the deceased @ Rs.6,000/- per month despite the fact that

the deceased used to work in Kalaniketan, a reputed textile

outlet and earn Rs.10,000/- per month as a salesman and had

a bright future in the said organization and in order to

substantiate these contentions, the petitioners also examined

PW.3, who categorically deposed in his evidence that they used

to pay a monthly net salary of Rs.7,090/- to the deceased. The

Tribunal, brushing aside Ex.A5/salary certificate, assessed the

deceased's salary at Rs.6,000/- per month. He relied upon

the judgment of the Hon'ble Supreme Court in Mohammed 7 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

Siddique and another Vs. National Insurance Co. Ltd.,

and others 1.

9(1) Learned counsel for the petitioners further

contended that the Tribunal ought to have deducted 1/4th

from the income of the deceased for calculation purposes

instead of 1/3rd, which is contrary to law, and that the

Tribunal ought to have awarded Rs.1,00,000/- each towards

loss of consortium to the widow, and loss of estate each

Rs.5,000/-. He further contended that the Tribunal should

not have deducted a sum of Rs.3,09,750/- being the 25% of

the contributory negligence from out of the compensation

amount arrived at Rs.12,39,000/-. Accordingly, prayed to

allow the appeal.

10. Learned counsel for respondent No.2 has

contended that they have no liability to pay compensation to

the petitioner as the driver of the insured vehicle did not have

the license to drive the motorcycle and plying the vehicle

without valid registration. The Tribunal failed to appreciate

the fact that a specific plea of the Insurance Company that the

driver did not have the license to drive the insured vehicle and

to prove the said fact, it had filed Ex.B1 and B3 i.e. letter and

2020(1) ALD 231(SC) 8 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

notice issued to the insured, wherein the insured was

requested to produce the driving license. In spite of receipt of

the notice, neither the owner appeared before the Court nor

produced the license. He further contended that the Tribunal

failed to appreciate that it also sent a summons to the address

given by the insured at the time of obtaining the policy, and

the same were returned. Therefore, an adverse inference can

be drawn that the motorcycle rider did not have any license at

all. But, the Tribunal, without considering Ex.B2 and B3 and

summons sent through Court, erroneously passed the award,

fastening the liability on par with the insured is bad and order

of the Tribunal is liable to be set aside.

10(1) Learned counsel for respondent No.2 has further

contended that the insured vehicle was plying without valid

registration. It is clear violation of Section 39 of M.V. Act.

Since the insured has violated the policy's terms and

conditions, the insurer can avoid liability to pay compensation

as per Sec.149(2) of the M.V. Act. He vehemently argued that

the Insurance Company examined its official as RW.1 and

exhibited Ex.B1 to B3 and pleaded and proved the case beyond

reasonable doubt that the driver had no valid driving license at

the time of the alleged accident and the vehicle was plying 9 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

without valid registration. He further contended that the

Tribunal ought to have taken the notional income at

Rs.4,500/- per month, but taking the income at Rs.6,000/-

per month is excessive. Accordingly, prayed to dismiss the

appeal filed by the petitioners.

11. As regards the contention of learned counsel for

respondent No.2/Insurance Company that the driver of the

insured vehicle did not have the license to drive the motorcycle

and plying the vehicle without valid registration, the Tribunal

had discussed this contention that the Insurance Company did

not file any proof that the driver of the insured vehicle did not

have the license to drive the motorcycle and plying the vehicle

without valid registration and it further observed that Ex.A2-

chargesheet shows that the accused was not charged for any of

the violation under the M.V. Act. On the other hand, he is

only charged for the offence under Section 304-A and 337 IPC.

The Tribunal also observed that Ex.B2 is the letter issued to

respondent No.1 and Ex.B3 is the office copy of the notice

issued to the driver of the vehicle for the production of the

documents along with the postal receipt, but there is no proof

that they acknowledged these two letters. Therefore, in the

absence of any proof filed by respondent No.2, the contention 10 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

made by respondent No.2 for Ex.B2 and B3 were served on the

addresses mentioned thereon was not accepted. Hence, the

Tribunal has rightly rejected the contention of learned counsel

for respondent No.2/Insurance Company, and no interference

is required in this behalf.

12. Coming to the deceased's earning capacity, the

petitioners contended that the deceased was working in M/s

Kalaniketan as a salesman and used to earn Rs.10,000/- per

month as salary. To corroborate the same, the petitioners

have examined PW.3, who is H.R. Manager at Kalaniketan

Textiles & Jewellers Pvt. Ltd., Somajidguda, and he deposed

that the deceased, during his lifetime, worked as Pattu

Salesman and used to earn Rs.10,000/- per month as salary.

He produced a salary certificate/Ex.A5, which shows that the

net pay shown as Rs.7,090/-. He further admitted that Ex.A5

does not contain his signature. Whereas respondent No.2

contended that Ex.A5/salary certificate was not proved as

required under the Evidence Act i.e. no wage register or

acquaintance register has been placed before the Court. In the

absence of filing of any proof, only notional income has to be

taken into consideration. In view of the same, the Tribunal did

not consider the income as alleged by the petitioners and 11 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

notionally fixed the deceased's income at Rs.6,000/- per

month. At this juncture, learned counsel for petitioners relied

upon in the case of Mohammed Siddique (supra) wherein the

Hon'ble Apex Court held as under:

"The case of claimants that deceased, aged 23 years at time of accident, though not even a matriculate, was employed in a propriety concern on monthly salary of Rs.9,600/-. Proprietor of concern was examined as PW.2 and salary certificate marked as Ex.PW.1/8. Finding recorded by Tribunal that there was no reason to discord testimony of PW.2. Hon'ble Apex Court held that records were not available, cannot be ground for High Court to hold that testimony of PW.2 is unacceptable. And that in absence of other record, salary certificate and oral testimony of employer could not be accepted. In absence of any allegation that PW.2 was set up for purpose of case, and there being no contradictions in his testimony, High Court should not have proceeded to take minimum wages paid for unskilled workers at relevant point of time as benchmark. Interference made by High Court with findings of Tribunal with regard to monthly income of deceased, was therefore, uncalled for.

13. The Motor Vehicles Act is a welfare legislation, the

protects the interests of the legal representatives of the 12 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

deceased and when the Tribunal found the petition under

section 166 of the Act to be maintainable and adjudicated the

same, it is clear that the petitioners are entitled to claim

compensation under the head 'loss of dependency' on the

actual income i.e. the salary of the deceased. Thus, this Court

is inclined to consider the deceased's monthly income at

Rs.7,090/- as per Ex.A5/Salary Certificate.

14. The annual income of the deceased would come to

Rs.85,080/- (Rs.7,090/- x 12). To this, future prospects of

40% i.e. Rs.34,032/- is to be added as per the decision of the

Hon'ble Supreme Court in National Insurance Company Ltd.

Vs. Pranay Sethi 2 as the deceased was aged 28 years. Since

the dependants are 4 in number, a deduction of 1/4th of the

deceased's income towards personal expenses, which the

deceased might have spent for himself, is proper. The

appropriate multiplier as per the decision of Sarla Verma Vs.

Delhi Transport Corporation 3 is "17". Thus, the total loss

of dependency would come to Rs.15,18,678/- (Rs.85,080/- +

40% Minus 1/4th x 17).

(2017) 16 SCC 680.

(2009) 6 SCC 121.

                               13                                          RRN,J
                                                        COMMON JUDGMENT IN
                                           MACMA No.3943 of 2014 & 4264 OF 2014


15.   The     Tribunal     awarded   Rs.5,000/-      towards        funeral

expenses and Rs.5,000/- towards loss of estate to the

petitioners which are very meagre. However, the petitioners

are entitled to compensation under conventional heads as per

the decision of the Hon'ble Apex Court in Pranay Sethi (supra)

and Magma Insurance Company Ltd. Vs. Nanu Ram @

Chuhru Ram 4. petitioner No.1, being the wife of the deceased,

is entitled to Rs.44,000/- towards spousal consortium,

petitioners No.2 and 3, being minor children, and petitioner

No.4, being mother of the deceased, are entitled to Rs.40,000/-

each i.e. Rs.1,20,000/- towards loss of parental consortium

and towards loss of filial consortium, and petitioners are also

entitled to Rs.16,500/- (Rs.15,000/- + 10%) towards loss of

estate and Rs.16,500/- (Rs.15,000/- + 10%) towards funeral

expenses. With regard to interest, the Tribunal granted

interest @ 7% p.a. However, this Court is inclined to grant

interest at 7.5% p.a. on the enhanced amount.

16. In all, the petitioners/appellants are entitled to

Rs.17,15,678/- towards compensation. But, the Tribunal

found that there was contributory negligence on the part of the

deceased as it considered the evidence of eyewitness PW.2,

42018 Law Suit (SC) 904 14 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

who deposed that on 16/17.5.2010 in the intervening night at

about 2.30 a.m., he, along with one Markendeyulu and A. Lova

Raju were returning from Macha Bollarm after attending a

function on Bajaj Pulsar Motorcycle bearing No.AP-10-T/R-

1646 and Markendeyulu were riding the said vehicle. He sat

behind Markendeyulu, and when they reached near G. Pulla

Reddy Sweet shop, Karkhana, at the same time, their

motorcycle rider, Markendeyulu drove the vehicle at high

speed in a rash and negligent manner and dashed the road

divider. Due to the sudden impact, they all were fell down

from the motorcycle, and they sustained severe injuries. He

further deposed that as A. Love Raju received fatal injuries, he

was immediately shifted to Gandhi Hospital, Hyderabad, and

while undergoing treatment, he died. As there was triple

riding, apart from it, there was rash and negligent driving on

the part of the deceased, as such, there was contributory

negligence on the part of the deceased also. However, with

regard to contributory negligence on the part of the rider of the

motorcycle at 75% and the remaining 25% on the part of the

deceased. The Tribunal rightly appreciated the evidence with

regard to contributory negligence and rightly apportioned the

negligence, which needs no interference by this Court. Since 15 RRN,J COMMON JUDGMENT IN MACMA No.3943 of 2014 & 4264 OF 2014

there was contributory negligence on the part of the deceased

@ 25%, the petitioners are entitled to an amount of

Rs.12,86,758/- (Rs.17,15,678 x 25% = Rs.4,28,920/-)

(Rs.17,15,678/- minus Rs.4,28,920/- = 12,86,758/-).

17. Accordingly, M.A.C.M.A No.3943 of 2014 filed by the

petitioners is allowed in part, enhancing the compensation

amount from Rs.9,29,250/- to Rs.12,86,758/-(Rupees Twelve

Lakh, eighty six thousand, seven hundred and fifty eight only)

with costs and interest @ 7.5% p.a on the enhanced amount

from the date of petition till the date of realization. The

respondents are directed to deposit the awarded amount along

with interest and costs, after deducting the amount if any

already deposited, within (02) months from receipt of a copy of

this judgment. On such deposit, the petitioners are permitted

to withdraw the same according to their apportionment as

determined by the Tribunal. There shall be no order as to

costs.

M.A.C.M.A NO. 4264 OF 2014

In view of findings on M.A.C.M.A. No.3943 of 2014, this

M.A.C.M.A. No.4264 of 2014 is dismissed. There shall be no

order as to costs.

                           16                                          RRN,J
                                                    COMMON JUDGMENT IN
                                       MACMA No.3943 of 2014 & 4264 OF 2014

As a sequel, miscellaneous applications, if any pending

in both the appeals, shall stand closed.

______________________________________ NAMAVARAPU RAJESHWAR RAO, J

22nd day of September 2023.

BDR