Telangana High Court
The New India Assurance Company Limited vs M Shobha on 4 April, 2024
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
M.A.C.M.A.NO.494 OF 2019
AND
CROSS OBJECTIONS NO.63 OF 2019
COMMON JUDGMENT :
Being aggrieved by the Order dated 20.11.2017 in
M.V.O.P.No.2836 of 2011 on the file of XIV Additional Chief
Judge, City Civil Court, Hyderabad who was also acting as
Chairman, Motor Accident Claims Tribunal, by which the
Tribunal allowed the petition in part and awarded a sum of
Rs.13,26,000/- as compensation on account of death of one
Santosh Kumar in a road traffic accident, the 2nd
respondent in above said original petition i.e., New India
Assurance Company Limited had filed civil miscellaneous
appeal under Section 173 of M.V.Act., with a prayer to set
aside the award/reduced compensation. Whereas, the
claimants/petitioners in the said original petition being not
happy with the quantum of compensation awarded by the
Tribunal filed cross objections under Order 41 Rule 22 CPC
with a prayer to enhance the compensation.
2. Since both the appeal preferred by the Insurance
Company and cross objections filed by the
MACMA.No.494 of 2019 &
claimants/petitioners are in the same petition, a common
order would suffice for disposing both the appeal as well as
cross objections.
3. Before adverting to the grounds under which the
appeal as well as cross objections are filed, it is just and
necessary to give a brief history of the petition filed by the
claimants and as to how the same was disposed by the
Tribunal. For the sake of convenience, the parties will be
referred in the same ranking which was used in the original
petition.
4. The petitioner Nos.1 to 3 have filed
M.V.O.P.No.2836 2011 under Section 166 of M.V.Act., and
prayed for an amount of Rs.13,00,000/- as compensation
for the death of one Santosh Kumar (hereinafter be referred
as deceased) in a road traffic accident that occurred on
30.11.2010. The petitioners have claimed that when the
deceased was proceeding in a car bearing No.KA-14-M-3244
with his friends from Mansoorabad to Chilkur Balaji Temple
and when the car reached Sun city, the driver of the said
car drove the same in high speed, in a rash and negligent
manner and lost control, due to which the car dashed a
MACMA.No.494 of 2019 &
road divider and over turned. In view of the accident, the
deceased received grievous bleeding injuries and died on the
spot. A criminal case was registered against the driver of the
said car. The petitioners are parents and younger sister of
the deceased. By the time of accident, he was studying III
year B.Tech. (Computer Science). The petitioners have
claimed that he used to give tuitions in leisure time and was
earning Rs.15,000/- per month. The petitioners have filed
claim petition against the owner of the car as well as the
Insurance Company from which a policy was obtained
against the said car. The respondents have appeared, but
the 1st respondent/owner failed to file any counter.
Whereas, the Insurance Company contested the claim on
various grounds questioning the liability and quantum of
compensation.
5. The Tribunal has framed the following (3) issues:
1. Whether the accident occurred on 30.11.2010 due to the
rash and negligent driving of the driver of the car bearing
No.KA-14-M-3244 causing death of deceased?
2. Whether the petitioners are entitled to any compensation? If
so, to what extent and from whom?
3. To what relief?
MACMA.No.494 of 2019 &
6. During trial the petitioners have examined PWs
1 to 3 and marked Exs.A1 to A6. The 2nd
respondent/Insurance Company had examined RW1 and
marked copy of policy as Ex.B1. The Tribunal having
appreciated the pleadings and evidence, allowed the petition
in part and granted a sum of Rs.13,26,000/- as
compensation. In order to calculate the compensation, the
Tribunal assessed the income of the deceased as
Rs.12,000/- per month and since deceased was a bachelor,
deducted 50% of the said income as personal expenditure
and awarded Rs.13,26,000/- by adding Rs.15,000/-
towards loss of estate and Rs.15,000/- towards funeral
expenses.
7. The 2nd respondent/Insurance Company filed
M.A.C.M.A.No.494 of 2019 praying for setting aside the
order and claimed that the owner of the car obtained a
policy which is known as "private car liability policy" and
premium was paid to cover the risk of 3rd party. It is an act
policy and it does not cover the risk of inmates of the car.
The Tribunal committed an error by holding that the policy
issued against the car was in force as on the date of
MACMA.No.494 of 2019 &
accident and deceased can be treated as 3rd party and the
Insurance Company is liable to pay compensation. The 2nd
respondent has also claimed that Tribunal should have
exonerated the Insurance Company from payment of
compensation and the liability can be fixed against owner of
the vehicle. The 2nd respondent has contended that the
Tribunal committed an error by calculating the income of
the deceased as Rs.12,000/- per month, thereby awarded
excess amount of compensation.
8. The petitioners who have filed cross objections
have contended that the Tribunal ought to have consider
their claim that the deceased was earning Rs.15,000/- to
Rs.20,000/- per month by giving tuitions. The Tribunal
committed an error by assessing the notional income of the
deceased as Rs.12,000/- per month. The Tribunal did not
add any additional income towards future prospects of the
deceased, thereby they prayed for enhancement of the
compensation.
9. In support of their claim, the petitioners have
placed reliance on Judgment between New India
Assurance Company Limited vs Shanthi Bopanna and
MACMA.No.494 of 2019 &
Others 1, wherein the Hon'ble Apex Court was pleased to
observe that when the vehicle was covered by package
policy which is known as comprehensive policy, it is not a
act policy under Section 147 of 1988 Act, thereby the
Insurance Company is liavble to pay compensation.
10. Heard both parties.
11. Now the following points would arose for
consideration in the appeal as well as cross objections:
1. Whether the Tribunal committed any wrong in fixing
the liability to pay compensation against the 2nd
respondent/Insurance Company? If so, whether the
Insurance Company can be exonerated from making
payment of the compensation?
2. Whether the Tribunal failed to appreciate the
evidence of petitioners and came to an incorrect
conclusion by assessing the monthly income of the
deceased as Rs.12,000/-, thereby awarded
insufficient amount of compensation?
3. Whether the petitioners are entitled to claim
additional compensation towards future prospects of
the deceased.
12. POINTS:
As per the respective pleadings of the petitioners as
well as the 2nd respondent and in view of their respective
oral and documentary evidence, there is no serious dispute
1 2018 12 SCC 540
MACMA.No.494 of 2019 &
about the accident in which the son of the petitioner No.s1
and 2 lost his life when the car owned by the 1st respondent
met with an accident near Suncity, Hyderabad.
13. According to the oral evidence of PW1 when the
deceased and his friends were proceeding towards Chilkur
Balaji Temple in a car, in view of rash and negligent driving
by its driver, there was an accident and as the car rammed
a road divider over turned causing the instantaneous death
of the deceased. Similarly, there is no serious dispute about
the educational qualifications of the deceased.
14. The petitioners have claimed that the deceased
was 3rd year B.Tech., student with Computer Science. The
Tribunal had considered all these aspects and assessed the
notional income of the deceased as Rs.12,000/- per month.
It is a fact that the Tribunal did not award any amount of
compensation towards future prospects. As on the date of
accident, the deceased was aged about 20 years and was
studying in B.Tech., in 3rd year. The 2nd respondent
Insurance company disputed the liability on the ground
that the policy obtained by the 1st respondent covered the
3rd party risk. Therefore, the inmates of the car cannot be
MACMA.No.494 of 2019 &
treated as 3rd parties and as such they need not pay any
compensation. But, the evidence produced by both the
parties and as per Ex.R1, admittedly the policy obtained
from the 2nd respondent was in force and it covers the risk
of 3rd party. It is not the case of 2nd respondent Insurance
Company that the deceased was owner of the car.
Therefore, he being a 3rd party, the 2nd respondent cannot
deny the compensation. The Tribunal rightly appreciated
the oral and documentary evidence and fixed the liability
against the Insurance Company. Therefore, on that ground
the appeal preferred by the 2nd respondent is liable to be
dismissed.
15. In view of the specific contentions of the
petitioners and as the age of the deceased was 20 years, he
being 3rd year Engineering student, if completes his
graduation he could have bright future. He might have
obtained employment in a reputed company or the chances
of his going abroad for further studies, so that obtaining a
better position in the life, cannot be ruled out.
16. Now a days a graduate from Engineering with
Computer Science stream, can easily earn Rs.15,000/- to
MACMA.No.494 of 2019 &
Rs.20,000/- per month which can be enhanced from time
to time depending upon his performance in the company.
Therefore, the Tribunal ought to have considered the
notional income of the deceased as Rs.15,000/- and could
have added 50% of the said income as future prospects.
Since the deceased was only 20 years, he has got minimum
40 years service, thereby the amount of compensation
awarded by the Tribunal needs to be enhanced.
17. It is true since the deceased was a bachelor 50 %
of the assessed income of the deceased must be deducted
towards his personal expenditure, thereby if the monthly
income of the deceased is assessed as Rs.15,000/- and 50%
of the said income is added towards future prospects, it
would be Rs.22,500/-. If 50% of the said income is
deducted towards his personal expenditure, the average
monthly contribution of the deceased would be Rs.11,250/-
and annual contribution would be Rs.1,35,000/-. Since the
deceased was aged about 20 years, the appropriate
multiplier is "18". As such, the monetary loss is
Rs.24,30,000/-. The petitioners are entitled to an amount of
Rs.15,000/- towards loss of estate, Rs.40,000/- towards
MACMA.No.494 of 2019 &
loss of consortium and Rs.15,000/- towards funeral
expenses, thereby the total compensation for which the
petitioners are entitled to is Rs.25,00,000/-.
18. In the result, the appeal preferred by the
Insurance Company vide M.A.C.M.A.No.494 of 2019 is
dismissed. The cross objections filed by the petitioners vide
Cross Objection No.63 of 2019 is allowed, and the
compensation amount is enhanced from Rs.13,26,000/- to
Rs.25,00,000/-. The Insurance Company shall pay the
balance amount after deducting the payments, if any, made
at the time of filing the appeal or subsequent thereto. ,
As a sequel, pending Miscellaneous Applications, if
any, shall stand closed.
___________________________________
JUSTICE SAMBASIVARAO NAIDU
Date:04.04.2024
PSSK
