Telangana High Court
Bikku Sab And 3 Others vs Sriram , Sriramul And Another on 2 April, 2024
HON'BLE SRI JUSTICE K.SURENDER
MACMA.Nos.2940 of 2007, 1461 of 2008 AND 1774 OF 2012
COMMON JUDGMENT:
1. All these appeals are filed for enhancement of compensation
aggrieved by the common order dt.05.09.2007 passed in
OP.Nos.638, 818 and 819 of 2005 by the I Additional District Judge,
Mahabubnagar. MACMA No.2940 of 2007 is arising out of
OP.No.819 of 2005 filed by the claimant/injured for the injuries
sustained by her in the accident. MACMA No.1461 of 2008 is arising
out of OP.No.818 of 2005 filed by the claimants/legal heirs for the
death of one Mohd.Mohammed in the accident. MACMA.No.1774 of
2012 is arising out of OP.No.638 of 2005 filed by the
claimant/injured for the injuries sustained by him in the accident.
2. The 1st respondent in all the appeals is the owner of the
offending vehicle and the 2nd respondent in all the appeals is the
Insurance Company.
2. Since all the three appeals filed by the claimants arising out of
the same accident and arising out of common order passed by the
Tribunal, all the appeals are heard together and disposed off by this
common order. .
Briefly, the case of the claimants is that on 02.11.2004 the
deceased (against whose death OP.No.818 of 2008 was filed by the
claimants) was travelling along with her wife (claimant in OP.No.819
of 2005 for the injuries sustained by her) and niece on Hero Honda
Motor Cycle bearing No.AP 22 F 7617 from chowderpally to
Mahabubnagar, when they reached the limits of Appaipally village at
Kodur bus stage, at 7.45 p.m., the offending Auto bearing No.AP 22
U 4712 came in the opposite direction at high speed in rash and
negligent manner and dashed the motor cycle. As a result, the
deceased sustained grievous injuries and died on the spot. However,
his wife (claimant in OP.No.819/2005) sustained fracture injuries.
The claimant in OP.No.638/2005 who was travelling in the
offending Auto also sustained grievous injuries due to the accident.
Aggrieved the same, the legal heirs of the deceased filed
OP.No.818/2008. OP.No.819/2005 was filed by the wife of the
deceased who was injured and travelling along with the deceased on
the motor cycle. OP.No.638/2005 was filed by the injured who was
travelling in the offending Auto.
3. Heard learned counsel appearing for the claimants in all the
three appeals and learned Standing Counsel appearing for the 2nd
respondent-Insurance Company.
4. During trial, the Tribunal examined PWs.1 to 4 on behalf of
the claimants and marked Exs.A1 to A12. PW.1 is the
claimant/injured in OP.No.638/2005 who was travelling in the
offending Auto. PW.3 is the claimant/injured in OP.No.819/2005
who was travelling on the motor cycle along with her deceased
husband. On behalf of respondents RW1 was examined and Exs.B1-
copy of the insurance police and B2 were marked.
The Tribunal after considering the evidence on record and
documents, fixed contributory negligence @ 75% on the driver of the
offending auto and 25% on the driver of the motor cycle who died in
the accident.
Further, the Tribunal awarded Rs.2,70,000/- to the claimants
in OP.No.818/2005 for the death of the deceased in the accident
after deducting 1/4th towards contributory negligence. The Tribunal
awarded Rs.10,000/- to the claimant who was travelling on the
motor cycle along with the deceased and sustained injuries. The
Tribunal awarded Rs.28,000/- to the claimant who was travelling in
the offending auto and sustained injuries.
The Tribunal further found that since the offending Auto
driver was holding a learners licence, it cannot be said that is a
valid licence and accordingly the Tribunal found that there is no
liability on the Insurance Company.
Aggrieved by the compensation granted by the Tribunal
present appeals are filed for enhancement of compensation.
The nature of injuries, the accident are not disputed by either
of the parties.
Learned counsel appearing for the claimants, as far as
MACMANo.1461/2008 arising out of OP.No.818/2005 filed by the
claimants for the death of the deceased is concerned, would submit
that it was specifically mentioned that the deceased was earning an
amount of Rs.4,500/- per month as salary and including batta he
was earning an amount of Rs.10,000/- per month, however, the
Tribunal considered only Rs.3,000/- per month. The Tribunal erred
in taking into consideration the age the deceased and multiplier
adopted for calculating the loss of dependency. As far as
MACMA.No.2940/2007 arising out of OP.No.819/2005 is
concerned, the Tribunal has granted very less amount under the
heads pain and suffering, medical expenses, transportation charges.
Further, the Tribunal failed to grant compensation under the head
attendant expenses and permanent disability. As far as MACMA
No.1774/2012 arising out of OP.No.638/2005 is concerned, the
counsel submits that the Tribunal has granted very meager
compensation of Rs.28,000/- without considering the disability
certificate @ 25% issued by the Medical Board.
As far as liability of the Insurance Company is concerned
learned Counsel for the appellant submits that the Tribunal wrongly
found that the Insurance Company is not liable to pay
compensation. In support of his contention he relied on the
Judgment of the Three Judge Bench of the Honourable Supreme
Court in National Insurance Company Limited v. Swaran Singh
and others 1 wherein the Honourable Supreme Court while dealing
with the similar case directed the Insurance Company to pay at the
first instance and recover the amount from the Owner. He also
relied on another Judgment of Rajasthan High Court in Shivpal
Singh v. lal Chand and others 2 wherein it was held that learners
licence is a valid licence and compensation can be granted.
On the other hand, learned counsel appearing for the
Insurance Company relied on the Judgment of Honourable Supreme
Court in New India Assurance Company Limited v. Mandar
Madhav Tambe and others 3.
In the present case the driver of the offending Auto was
holding learners licence. In the said circumstances, it cannot be
said that the Insurance Company is not liable. It can be ordered
that the Insurance Company makes the payment towards
compensation at the first instance and recover the same from the
2004 (3) SCC 297
2010 (83) ACJ 1120
Owner of the offending vehicle, following the Judgment of
Honourable Supreme Court in Swaran Singh case (supra 1).
As far as compensation awarded by the Tribunal in
OP.No.818/2005 challenging which MACMA.No.1461/2008 was
filed, is concerned, the deceased was working as Cook and earning
Rs.4,500/- per month and Rs.50/-per day as batta and having four
dependents in the family. As such, it can be reasonably concluded
that an amount of Rs.4,500/- per month can be taken as the
income of the deceased. In view of the law laid down by the
Honourable Supreme Court in National Insurance Company
Limited v. Pranay Sethi and others 4, future prospects @ 40% of
the income of the deceased has to be added which comes to
Rs.1,800/- per month. Then the total income of the deceased per
month is Rs.6,300/-. The annual income of the deceased comes to
Rs.75,600/-p.a. (6,300 x 12). Since the dependents are 4 members,
1/3 of the income i.e. Rs.25,200/-(75,600x1/3) has to be deducted
towards personal expenses which comes to Rs.50,400/-p.a.(75,600-
25,200). As per PME report the age of the deceased was 35 years.
Then, as per the Judgment of Honourable Supreme Court in Sarla
Verma v. Delhi Transport Corporation 5 the relevant multiplier for
1996 AIR 1150
(2017) 16 SCC 680
(2009) 6 SCC 121
the age group of 31-35 is '17' and then the loss of income due to the
death of the deceased comes to Rs.8,56,800/- (50,400 x 17).
8. As per the decision of the Constitutional Bench of Apex court
in case of Pranay Sethi's case, the conventional heads namely loss
of estate, loss of consortium and funeral expenses should be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively and the
same should be enhanced on percentage basis in every three years
and the enhancement should be at the rate of 10%. Then the total
consortium comes to Rs.1,93,600/- (40,000 x 4 = 1,60,000 + 10%)
and Loss of Estate and funeral expenses comes to Rs.36,300/-
(15,000 + 15,000 + Add 10% for every three years).
In total claimants in MACMA.No.1461/2008 are entitled to a
total amount of compensation of Rs.10,86,700/-( 8,56,800 +
1,93,600 + 36,300).
As far as amount of compensation awarded by the Tribunal in
OP.No.819 of 2005 challenging which MACMA No.2940 of 2007 was
filed, the claimant received grievous injury which is fracture shaft
right femur middle 1/3rd. She was treated in Mahabubnagar
Government Hospital and X-ray copy Ex.A12 is also filed. In the
said circumstances , the amount of compensation granted by the
Tribunal under the heads pain and suffering of grievous injury, pain
and suffering of simple injury, medical expenses, extra nourishment
and transportation expenses is enhanced to Rs.25,000/-, 10,000/-,
5,000/-, 5,000/- and 5,000/-, respectively.
12. Thus, the appellant/injured in MACMA No.2940/2007 is
entitled to a total compensation of Rs.50,000/-.
found that in a similar cases such cases direction to pay and
recover
Aggrtrclaimant is entitled to compensation of Rs.34,000/-
payable by both the respondents, jointly and severally.
MACMA.No.1802 of 2014 is preferred by the claimant for
enhancement of the compensation. MACMA.No.797 of 2015 is
preferred by the Insurance Company aggrieved by the grant of
compensation to the claimant.
2. Since both the appeals are arising out of same accident and
filed aggrieved by the order of the Tribunal dated 13.11.2013 in
MV.OP.No.505 of 2011, both the appeals are heard together and
disposed off by this common order.
3. Heard learned counsel appearing for the claimant who
submits that though the Tribunal found that there were 8 grievous
injuries, erred in granting only Rs.50,000/-for the said injuries. He
further submits that the amount granted under the heads pain and
suffering and loss of income are on lesser side.
4. The manner of accident and injuries are not disputed by the
Insurance company.
5. As seen from the evidence of the Doctor-PW1, the claimant
sustained fractures of ribs 2 to 7th on the right side and also
fracture of clavicle. In addition he had sustained head injury of
tempero peritel contusion and all the injuries are categorized as
grievous in nature. Hence the claimant is granted Rs.1,00,000/-
towards grievous injuries. Since PW2-Doctor stated that six months
time is required for rest, and the income of the claimant fixed by the
Tribunal at Rs.4,500/- per month is not disputed, an amount of
Rs.27,000/- (4,500 x 6) can be granted under the head loss of
income. Keeping in view the injuries sustained by the claimant, the
amount granted under the head pain and suffering is enhanced
from Rs.10,000/- to Rs.30,000/-.
6. The amount awarded by the Tribunal under the heads
Hospitalization, Medicines and Incidental Charges of Rs.50,000/-,
Loss of comfort of Rs.10,000/-; Extra Nourishment of Rs.4,000/-
and Transportation and clothing of Rs.3,000/- and 1,000/-
respectively, remain unaltered.
7. Thus in total, the claimant is entitled to compensation of
Rs.2,25,000/-.
8. Accordingly, MACMA.No.1802 of 2014 is allowed and the
compensation granted by the Tribunal to the claimant is enhanced
from Rs.1,37,000/- to Rs.2,25,000/-with interest @ 7.5% on the
enhanced amount from the date of petition till realization payable by
respondents 1 and 2 in the OP within 6 weeks from the date of
receipt of a copy of this order. On such deposit, the claimant is
permitted to withdraw the entire amount without furnishing any
security. The claimant has to pay the deficit Court fee or the
Tribunal may deduct the amount required for the purpose of Court
fee from the amount awarded to the claimant after respondents
Insurance Company deposits the amount.
9. In view of findings by this Court that the claimant is eligible
for enhanced compensation, the appeal filed by the Insurance
Company i.e. MACMA No.797 of 2015, is devoid of merits and
accordingly, dismissed.
As a sequel, miscellaneous applications, if any, pending in this
appeal shall stand closed.
___________________
K.SURENDER, J
Date: 22.03.2024
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