Vengal Suvarna, Nizamabad ... vs Mr.Santosh Reddy, Nizamabad ...
2023 Latest Caselaw 2815 Tel

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                   M.A.C.M.A.NO.1371 OF 2015

JUDGMENT:

Heard learned counsel Sri S.Surender Reddy for the

appellants/claimants and Sri. Akkam Eshwar, learned counsel for

respondent no.1.

2. The present appeal has been filed by the appellants/

claimants dissatisfied with the award passed by the Motor Accident

Claims Tribunal (District Judge) at Nizamabad (for short, 'MACT')

in M.V.O.P.No.715 of 2012, dated 06.05.2015 and thereby seeking

enhancement of compensation.

3. The brief factual matrix of the present appeal is as under.

4. On 26.04.2012 at about, while the deceased i.e., Vengal

Krishna Kumar proceeding towards his Auto bearing registration

No.AP-25-V-5562 on foot, which was parked by the side of road at

Dichpally, one Hero Honda motorcycle bearing registration No.AP-

25-R-6882 came in rash and negligent manner and dashed the

deceased and ran over him, due to which, the deceased received

multiple fractures to skull, fracture of right wrist, fracture of right

knee. He was shifted to Amrutha Laxmi Multi Specialty Hospital, LNA,J MACMA No.1371 of 2015

Nizamabad and later referred to Gandhi Hospital, Secunderabad.

On 29.04.2012 at 2.30 pm, the deceased expired while undergoing

treatment. The Police, Dichpally P.S., registered a case in Crime

No.87/2012 under Sections 304-A against the driver of the

offending vehicle and filed charge sheet.

5. The claimants, i.e., appellant No.1 is wife, appellant No.2 is

daughter and appellant No.3 is mother of deceased, have filed

claim petition against owner of the vehicle and insurance company

under Section 166 (1)(c) of M.V.Act, 1988 read with Rule 455 of

A.P.M.V.Rules, 1989 before the MACT, claiming compensation of

Rs.15,00,000/- along with interest @ 24% from the date of the

accident till the date of realization.

6. The deceased was aged about 28 years as on the date of

accident, hale and healthy and was running Auto on hire basis

and also doing agriculture and was earning Rs.30,000/- per month

and appellants lost the support of the deceased.

7. The respondent No.1 owner of offending vehicle filed counter

denying all the allegations made in the claim petition and further,

contended that the offending vehicle was insured with the 2nd LNA,J MACMA No.1371 of 2015

respondent-insurance company and it was in force on the date of

alleged accident and if the claimants are entitled for any

compensation, the same may be granted against the insurance

company and finally prayed for dismissal of the claim petition.

8. The 2nd respondent-Insurance Company filed counter

denying all the allegations made in the claim petition and

contended that the rider of the motor cycle was not having valid

and effective driving license and further, the deceased was

negligent in crossing the road and contributed to the occurrence of

accident. It was further contended that respondent no.1 colluded

with the claimants and did not intimate the occurrence of incident

to the respondent-insurance company and thus, violated the terms

and conditions of insurance policy and that the compensation

claimed by the claimants is highly exorbitant and excess and

therefore, prayed for dismissal of the claim petition.

9. On the basis of the pleadings, the MACT has framed the

following issues:

i) Whether the accident has taken place due to rash and negligent driving of Hero Honda Motorcycle bearing No.AP- 25-Respondent-6882 by its rider?

LNA,J MACMA No.1371 of 2015

ii) Whether the petitioners are entitled for compensation. If so, to what amount and against whom ?

iii) To what relief ?

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

P.Ws.1 & 2 were examined and Exs.A1 to A8 were marked. To

disprove the claim of the claimants, on behalf of the respondents,

RW.1, who is the Legal Officer of insurance company, R.W.2 who is

the rider of motor cycle and R.W.3 who is the Junior Assistant of

the RTA Office were examined and Exs.B1 to B6 were marked.

11. The MACT, after considering the evidence and material

placed on record, came to conclusion that the accident took place

due to rash and negligent driving of Hero Honda motorcycle

bearing registration No.AP-25-R-6882 and awarded compensation

as under:

Sl.No.     Head                                Amount awarded

1          Loss of dependency                 Rs. 8,16,000/-

2          Loss of consortium                 Rs. 1,00,000/-

3          Loss of love & affection           Rs. 1,00,000/-

4          Funeral expenses                   Rs.   25,000/-

           Total:                             Rs.10,41,000/-
                                                                       LNA,J
                                                      MACMA No.1371 of 2015

12. During the course of hearing of appeal, learned counsel for

appellants/claimants submitted that the MACT has erred in not

granting the total amount of compensation as claimed and that

MACT ought to have considered the earnings of deceased as

Rs.30,000/- per month which was being earned by running auto

on hire basis and also by doing agriculture. However, MACT failed

to consider the same and had considered an amount of Rs.6,000/-

per month, which is against the evidence on record and finally

prayed for enhancement of compensation as claimed by the

appellant in the claim petition.

13. On the other hand, learned counsel for respondent no.1

submitted that the MACT erred in fixing the liability on the

respondent no.1 alone and MACT ought not to have fixed the

liability on the respondent no.2 alone as the offending vehicle was

insured with the respondent no.2 and therefore, prayed this Court

to dismiss the appeal in respect of the 1st respondent.

Consideration:

14. With regard to the quantum of monthly income of the

deceased, the appellants/claimants except claiming monthly LNA,J MACMA No.1371 of 2015

income of the deceased as Rs.30,000/- per month, have not placed

any material or evidence before the Tribunal in proof of monthly

income of the deceased. In the absence of any proof with regard to

the income of the deceased, this Court is of the view that the MACT

has rightly considered the monthly income of the deceased as

Rs.6,000/- and thus, does not warrant interference by this Court.

15. With regard to dismissal of the claim against insurance

company is concerned, it is relevant to mention that respondent

no.2-insurance contended that driver of the crime vehicle was not

having driving license and in support of the same, respondent

no.2-insurance company examined RW.3 i.e., P.Raghunath Raju,

Junior Assistant, working in the office of RTA, Nizamabad. RW.3 in

his evidence deposed that as per the office records, the driver of

the crime vehicle did not obtain license from their office. Though

the appellants have contended that driver of the offending vehicle

i.e., Praveen Kumar is having valid driving license, they have failed

to file the same before the Tribunal. Basing on the evidence of

RW.3 and other material, the Tribunal has come to conclusion that

driver of the offending vehicle was not having driving license as on LNA,J MACMA No.1371 of 2015

the date of accident and thus, violated the terms of Ex.B1-

insurance policy.

16. In the light of evidence and the material placed on record,

this Court does not find any reason to interfere with the conclusion

arrived at by the Tribunal insofar as driving license of driver of

offending vehicle is concerned.

17. With regard to exoneration of insurance company from its

liability for payment of compensation amount. The Motor Vehicles

Act is beneficial legislation aimed at providing relief to victims and

their families. In National Insurance Co. Ltd., vs. Swaran Singh

and others 1, the Hon'ble Apex Court held as under:

"107. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the

(2004) 3 SCC 297 LNA,J MACMA No.1371 of 2015

driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.

108. Although, as noticed hereinbefore, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent."

18. In the light of decision of Hon'ble Apex Court in Swaran

Singh (supra), in considered view of this Court, the insurance

company has to satisfy the award passed by the Tribunal and

thereafter, the insurance company is entitled to recover the same

from the owner of the offending vehicle.

19. With regard to award of compensation towards future

prospects, the MACT erred in not awarding of 40% of the income of

the deceased towards loss of future prospects in view of the

decision of Hon'ble National Insurance Co. Ltd., vs. Pranay Sethi

and others 2.

(2017) 16 SCC 680 LNA,J MACMA No.1371 of 2015

20. In Pranay Sethi (supra), Hon'ble Apex Court at paragraph

59.4 held that in case the deceased self employed or on a fixed

salary an addition of 40% of established income should be warrant

where the deceased was below the age of 40 years. Since the

dependents of the deceased are three, one-third of the income

towards personal and living expenses to be deducted as per the

decision of Hon'ble Supreme Court in Sarla Verma (supra) at

paragraph-30.

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

Supreme Court in Sarla Verma (supra), the multiplier is '17' for

the age groups of 26 to 30.

22. In view of the above, the appellants are entitled for the

following compensation:

Sl.No.    Head                           Compensation awarded

1         Loss of dependency             Rs.12,24,000/-(Rs.6,000/- x 12 x
                                         17) minus one-third i.e.,
                                         Rs.4,08,000/-, which comes to
                                         Rs.8,16,000/-
2         Future prospects               Rs.3,26,400/- (i.e., 40% of
                                         annual income i.e., Rs.8,16,000/-)

3         Total loss of dependency       Rs.8,16,000/- + Rs.3,26,400 =
                                           Rs.11,42,400/-

4         Loss of estate                 Rs.    15,000/-
                                                                              LNA,J
                                                             MACMA No.1371 of 2015




5          Loss of consortium               Rs. 1,00,000/-

6          Loss of love and affection       Rs. 1,00,000/-

7          Funeral expenses                 Rs.   25,000/-

8          Total compensation to be Rs.13,82,400/-
           paid


23.   The     Appeal    is   allowed    enhancing   compensation           from

Rs.10,41,000/- to Rs.13,82,400/- with interest @ 7.5% per annum

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

no.2-Insurance Company is directed to deposit the compensation

amount within a period of eight (8) weeks from the date of receipt

of a copy of this order and thereafter recover the same from the

owner of the offending vehicle i.e., respondent no.1. The ratio of

apportionment of amounts among the appellants/claimants and

the permission to withdrawal shall be in terms of the award passed

by the MACT. There shall be no order as to costs.

24. Pending miscellaneous applications if any shall stand closed.

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____________________________________ LAXMI NARAYANA ALISHETTY,J Date: 29.09.2023 Ktm/kkm