Telangana High Court
Reliance General Insurance Co Ltd vs Emulla,Emula Veeramma And 8 Others on 16 April, 2024
1
MGP,J
MACMA.No.149 of 2019 and
MACMA.No.3201 of 2019
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.149 OF 2019
AND
M.A.C.M.A.No.3201 OF 2019
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.149 of 2019, filed by Respondent
No.5 in O.P./Insurance Company, seeking to allow the appeal by
setting aside the order of the learned Tribunal and
M.A.C.M.A.No.3201 of 2019, filed by claim petitioners in O.P.,
seeking for enhancement of compensation, both are directed
against the very same order dated 12.09.2018 passed in
M.V.O.P.No.30 of 2013, on the file of the Chairman, Motor
Accidents Claims Tribunal-cum-VI Additional District Judge,
Godavarikhani.
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the claim petitioners,
who are the wife and children of Sri Emulla @ Yemulla Komuraiah
(hereinafter be referred as "the deceased"), filed a petition claiming
compensation of Rs.25,00,000/- for the death of the deceased who
died in a road traffic accident that occurred on 25.05.2011. As
stated by the petitioners, on 25.05.2011, when the deceased was
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MACMA.No.149 of 2019 and
proceeding from Shirke bus stand towards his house by walk, at
about 9.00 p.m, when he reached the turning at Shirke quarters,
the Respondent No.1 drove one Innova Car bearing No.AP-29-AP-
789, in a rash and negligent manner, at a high speed and dashed
the deceased from his back. As a result, the deceased received
injuries all over the body. Immediately, he was shifted to SCCL
Area Hospital, Godavarikhani, from there, he was shifted to
Kamineni Hospital, Hyderabad, for better treatment. But he
succumbed to injuries on 05.06.2011. Based on a complaint, the
Police, Godavarikhani-II Town Police Station, registered a case in
Crime No.52 of 2011 under Section 337 IPC against the driver of
the crime vehicle i.e., one Md.Asif, who is arrayed as Respondent
No.2 and conducted investigation and subsequently laid charge
sheet under Section 304-A IPC which is marked as Ex.A4. It is
stated by the petitioners that the deceased used to work as a
Support man in 10-Incline Colony, RG-III area, SCC Limited and
used to draw income of Rs.27,508.12 paise and odd per month
apart from other perks and used to contribute the same for
maintenance of the family. Due to the sudden death of the
deceased, the claimants have lost their source of income, love and
affection of the deceased and were put to mental shock. Therefore,
they filed a petition claiming compensation of Rs.25,00,000/-
against the Respondents 1 to 5.
MGP,J
MACMA.No.149 of 2019 and
4. Respondent No.1, who was the driver of the Innova Car, filed
his counter denying the averments made in the claim petition
including, occurrence of accident, injuries sustained to the
deceased and etc. and deposed that one Bhaira Satheesh has
given complaint to SHO, Traffic Ramagundam Police on 26.05.2011
stating that his uncle met with an accident on 25.05.2011 and the
name of the car driver is Md.Aseef. Based on his complaint,
Ramagundam police registered a case in Crime No.74 of 2011 and
after investigation, it was transferred to Police, Godavarikhani II
Town and after transferring the above crime, the Godavarikhani II
Town police registered another Crime No.52 of 2011. As per the
statements of LW3, who is wife of the deceased and LW4- B.Manga,
who is an eye witness to the incident, one J.Srinivas was driving
the Innova car in a rash and negligent manner. It is further stated
by Respondent No.1 that he had not driven the crime vehicle at
any point of time as he is a student and more over, Respondent
No.1 is no way concerned with the above said accident and the
Police of Godavarikhani-II Town Police station, in collusion with
LWs1 & 3, filed a false case against him and that he is not liable to
pay any compensation to the petitioners and hence, prayed to
dismiss the claim against him.
MGP,J
MACMA.No.149 of 2019 and
3. Respondent No.2, who is the original driver of the crime
vehicle, filed counter denying the averments made in the claim
petition including, occurrence of the accident, involvement of the
deceased in the accident, injuries sustained to him in the alleged
accident, age, income, avocation and health condition of the
deceased at the time of accident. He further submitted that
Respondent No.3 is the owner of the Innova Car bearing No.AP-29-
AD-789 at the time of accident and Respondent No.4 was the
previous owner of the said Innova car (wrongly typed as
Respondent No.3) and the said Innova car was duly insured with
5th respondent (wrong typed as 4th respondent) and the driver was
holding valid driving license at the time of accident and hence, the
Insurance company is liable to indemnify him under the said
policy.
4. Respondent No.3 did not file any counter and remained
exparte.
5. Respondent No.4, who is also arrayed as owner of Innova
car, filed his counter denying the averments made in the claim
petition including, occurrence of accident, injuries sustained to the
deceased, age, avocation and income of the deceased . He deposed
that with the consent of Respondent No.3, he took the vehicle and
appointed Respondent No.2 as driver of the vehicle who was
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MACMA.No.149 of 2019 and
holding valid license. But he was not aware that Respondent No.1
drove the vehicle and caused accident. He stated that as the crime
vehicle was insured with Respondent No.5, respondent No.5 is
liable to indemnify the risk and pay compensation to the
petitioners along with respondents 6 & 7.
6. Respondent No.5, who is the Insurance Company, filed its
counter denying the averments made in the claim petition and
deposed that the driver of the Toyota Innova Car was not holding a
valid and effective driving license at the time of accident and
further, Police of Godavarikhani-II Town police filed charge sheet
against Respondent No.1 under Section 304-A IPC and Section 3
read with 181 of M.V.Act for not possessing driving license at the
time of accident and further contended that as Respondent No.3
had not complied with the statutory provisions with regard to
furnishing of policy particulars, particulars of injured, place of
accident and etc., hence, the Insurance company is not liable to
pay any compensation. It is also stated by the Insurance company
that as per FIR, the name of the driver is mentioned as Md.Asif and
the name of the owner is mentioned as Volivoju Naresh Kumar.
But as per petition, it is clearly mentioned that the insurance is on
Dasari Shankar, but it was not transferred in the name of present
owner and that Respondent No.1, who is the driver by name
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MACMA.No.149 of 2019 and
J.Srinivas, is not holding any valid license and also contended that
the Police of Godavarikhani II Town Police Station failed to forward
documents within 30 days from the date of information and that
the compensation claimed is excess and exorbitant and hence,
prayed to dismiss the claim against it.
7. Respondent Nos.6 & 7, who are the parents of the deceased,
admitted the contents of the claim petition and admitted that the
death of the deceased was due to rash and negligent driving of the
driver of Innova Car bearing No.AP-29-AD-789 who is arrayed as
Respondent No.1 in O.P. and also deposed that Respondent No.2
was the actual driver of the vehicle duly appointed by Respondent
No.4 and that the Respondent No.3 is the registered owner of the
said vehicle and the said vehicle was duly insured with Respondent
No.5 covering the date of accident and as such, Respondents 1 to 5
are jointly liable to pay compensation to the claim petitioners along
with them.
8. Based on the rival contentions made by both the parties, the
learned Tribunal had framed the following issues:-
1. Whether the motor vehicle accident occurred due to the
negligence of the driver of the crime vehicle?
2. Whether the petitioners are entitled to compensation? To
what amount and if so, from whom?
3. To what relief?
MGP,J
MACMA.No.149 of 2019 and
9. Before the Tribunal, on behalf of the petitioners, PWs 1 to 3
were examined and Exs.A1 to A6 were marked. On behalf of
Respondents RWs1 to 4 were examined and Exs.B1 to B9 and
Exs.X1 & X2 were marked.
10. After considering the evidence and documents available on
record, the learned Tribunal had partly allowed the claim petition
awarding compensation to a tune of Rs.22,00,000/- which is
payable by Respondent Nos.1, 3 & 5 jointly and severally along
with interest @ 6 % per annum. The Tribunal further directed
Respondent No.5 to deposit the said amount at first within one
month from the date of award and then recover the said amount
from Respondent Nos.1 & 3. Challenging the same, the present
appeals came to be filed by the claimants and Insurance Company
respectively.
11. Heard both sides and perused the material available on
record.
12. The contentions of the learned counsel for appellants/claim
petitioners in M.A.C.M.A.3201 of 2019 are that the learned
Tribunal ought to have deducted ¼ amount towards personal
expenses instead of 1/3 as the number of dependants are five (5) in
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MACMA.No.149 of 2019 and
number; erred in fixing the monthly income @ Rs.16,000/-; ought
to have awarded Rs.40,000/- each to Respondents 6 & 7 under
filial consortium and ought to have awarded parental consortium
to Respondents 2 & 3 and hence, prayed to allow the appeal by
enhancing the compensation awarded by the Tribunal.
13. The contentions made by the learned counsel for Respondent
No.5/Insurance Company, who is appellant in M.A.C.M.A.No.149
of 2019 are that, the driver of the crime vehicle do not hold a
driving license at the time of accident; the owner of the crime
vehicle committed breach of policy conditions and also contended
that the learned Tribunal erred in applying pay and recover policy;
erred in awarding Rs.2,00,000/- under the head of Non-pecuniary
damages instead of Rs.70,000/- as per Judgment of Hon'ble Apex
Court in the case of National Insurance Co. Ltd. Vs.Pranay Sethi &
others (2017 ACJ 2700) and also erred in considering the income
of the decea sed@ Rs.16,000/- per month and hence, prayed to
set-aside the order of the learned Tribunal.
14. Now the point that emerge for determination is,
Whether the order passed by the learned Tribunal requires
interference of this Court?
MGP,J
MACMA.No.149 of 2019 and
POINT:-
13. This Court has perused the entire evidence and documents
available on record. On behalf of the claim petitioners, PWs 1 to 3
were examined. The parents of the deceased were impleaded as
Respondent Nos.6 & 7 as per orders in I.A.No.283 of 2015 claiming
compensation. Petitioner No.1, who is the wife of the deceased,
was examined as PW1. She reiterated the contents made in the
claim petition and deposed about her relationship with the
deceased and employment of the deceased. PW2, who is
Superintendent in GDK 10 Incline, SCCL, was examined to depose
about the salary particulars of the deceased. He stated that as per
records, the deceased was appointed as Badli worker in SCCL and
was working as Support man at the time of accident and died on
05.06.2011 in a road accident. He produced salary particulars of
deceased from May 2010 to May 2011 and they are marked as
Ex.A7 (13 in number). PW3, who is an eye witness to the
incident, narrated about the occurrence of accident and stated that
the alleged accident occurred due to the rash and negligent driving
of the driver of Innova Car. He also stated that though he
witnessed the incident, but the police did not examine him.
14. On behalf of respondents, RWs 1 to 3 were examined.
Respondent No.1, who drove the crime vehicle at the time of
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MACMA.No.149 of 2019 and
accident, was examined as RW1. He deposed that the Police of
Godavarikhani II Town Police Station colluded with petitioner no.1
and filed charge sheet against him with false allegations. In fact,
he was acquitted from the said case which was registered as
C.C.No.327 of 2011 on 21.11.2017. During his cross-examination,
he denied the suggestion that in view of relationship with him, PW3
deposed in his favour. Respondent No.2, who is the original driver
of the crime vehicle, was examined as RW2. He stated that he do
not know whether one Bhaira Satheesh had given complaint before
SHO, Ramagundam on 26.06.2011 and he was not aware about
the transfer of said complaint to Godavari II Town Police Station
and also filing of charge sheet against Respondent No.1 and that
the petitioners made false allegations against him and that he is
not the owner and driver of the crime vehicle and is not liable for
payment of compensation to the petitioners. During the course of
cross-examination, he denied the suggestion that he took the car
from Respondent No.4 and handed over to Respondent No.1
unauthorizedly. RW3, who is working as Senior Assistant in RTA,
deposed in his evidence that Respondent No.1 is not having driving
license. RW4, who is working as Manager in Legal Claims,
Karimnagar, deposed in his evidence that they issued Insurance
policy bearing No.1805702311003703 in favour of 3rd respondent
pertaining to Innova Car bearing Registration No.AP-29-AD-0789
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MACMA.No.149 of 2019 and
which is subsisting as on the date of accident and stated that
Respondent No.1 is not having any driving license and he was
charged under Section 3 read with 181 of M.V.Act, as such,
Insurance company is not liable to pay any compensation.
15. A perusal of Ex.A1-FIR shows that Police, Godavarikhani II
Town Police Station registered a case in Crime No.52 of 2011 under
Section 337 IPC against the driver of the Innova Car, who is
arrayed as Respondent No.2 herein. Ex.A2 is the inquest report
wherein the panchas opined that the death of the deceased was
due to the injuries sustained to him in an accident that occurred
on 25.05.2011 due to rash and negligent driving of the driver of the
Innova car bearing No.AP-29AD-0789. Ex.A3 is the post mortem
examination report wherein it is held that the death of the
deceased was due to head injury. Ex.A4 is the final report
wherein, it is stated that "the accused is not the original driver of
the car with which the accident took place. The Innova car is
owned by LW8-V.Naresh Kumar and its driver is Md.Aseef, who is
the friend of accused. On 25.05.2011, the said driver went to the
house of the accused along with Innova car and later, the accused
took the car from him and drove it in a rash and negligent manner
with high speed and dashed the deceased which resulted into his
death. Hence, the accused had committed offence punishable
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MACMA.No.149 of 2019 and
under Section 304-A IPC along with Section 3 read with 181 of MV
Act for not possessing license to drive the crime vehicle-Innova car.
In Ex.A5- Form -54, at Sl.no.7, the particulars of the driver were
shown as Javari Srinivas, who is arrayed as Respondent No.1 in
O.P. and particulars of owner of the vehicle were shown as
Shankar Dasari and is having valid license as on the date of
accident. Ex.A6 is the pay slip of the deceased for the month of
April, 2011 which shows the net monthly income of the deceased
as Rs.16,424/-
16. A perusal of Ex.B1-FIR shows that Police, Ramagundam
Traffic Police Station registered a case in Crime No.74 of 2011,
under Section 337 IPC. Ex.B2-FIR shows that Police,
Godavarikhani-II Town Police station registered a case in Crime
No.52 of 2011 on 28.05.2011. Exs.B3 to B6 are the depositions of
PWs 1 to 4 in CC.No.327 of 2011. Ex.B7 is the copy of insurance
policy. Exs.B8 & B9 are the legal notices issued to Respondents
1 & 3.
17. It is also pertinent to refer Ex.X1, which is the authorization
letter given by the Motor Vehicles Inspector and Additional
Licensing Authority, Ramagundam to Sri M.A.Khaleel, who is
working as Senior Assistant in their office and who was examined
as RW3 in the present case and Ex.X2 is the problem details form
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MACMA.No.149 of 2019 and
issued in the name of said Khaleel Mohd. These two documents
are marked through RW3 during the course of his evidence which
speaks about non-possession of driving license by Respondent
No.1, who caused the accident which resulted into the death of the
deceased.
18. Therefore, from the above evidence produced by both parties,
it is clear that an accident occurred due to the rash and negligent
driving of the driver of the crime vehicle who is arrayed as
Respondent No.1. As per Ex.A1-FIR, Respondent No.2 was working
as driver on the said Innova car, but at the time of accident, he
was not driving the said car and Respondent No.1, who do not
possess driving license, obtained the key and drove the car in rash
and negligent manner and dashed the deceased. There is no
dispute about the ownership of Respondent No.3 as per Ex.A5-
Insurance policy.
19. The main contention of the learned counsel for Appellant/
Insurance Company in M.A.C.M.A.No.149 of 2019 is that though
the driver of the crime vehicle do not hold a driving license at the
time of accident, but the owner of the crime vehicle had willfully
handed over the vehicle to him and committed breach of policy
conditions and hence, the insurance company is not liable to pay
any compensation to the petitioners.
MGP,J
MACMA.No.149 of 2019 and
20. In this regard, it is pertinent to refer the decision of the
Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s
United India Insurance Company and Another wherein, the
Hon'ble Supreme Court held that the Insurance Company is liable
to pay the victim even if the driver was unlicensed so that the
victim should not be deprived of the money due to him. Hence
Insurance Company has full rights to recover their money from the
owner of the vehicle. Further, the owner can make the unlicensed
driver to pay the compensation.
21. From the above decision, it is clear that the Insurance
Company cannot be exonerated from its liability to pay the
compensation amount. It shall pay the compensation at first and
then recover the same from the owner, who in turn can add the
unlicensed driver to pay the compensation. Hence, the contention
of the learned counsel that the Tribunal erred in applying pay and
recover policy is unsustainable.
22. The other contention made by the Insurance Company is
that the learned Tribunal erred in awarding Rs.2,00,000/- under
the head of Non-pecuniary damages instead of Rs.70,000/-. In this
regard, it is pertinent to refer the Judgment of Hon'ble Apex Court
in the case of National Insurance Co. Ltd. Vs.Pranay Sethi & others
(2017 ACJ 2700) wherein, the Hon'ble Apex Court had fixed
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MACMA.No.149 of 2019 and
reasonable figures on conventional heads, viz., loss of estate, loss
of consortium and funeral expenses as Rs. 15,000/-, Rs. 40,000/-
and Rs. 15,000/- respectively. In all, it comes to Rs.70,000/-
(which shall carry 10% enhancement for every three years). This
Court, by relying upon the said decision, reduces the amount
awarded under non-pecuniary heads from Rs.2,00,000/- to
Rs.70,000/- (which carries 10% enhancement for every three
years).
23. The contention of the learned counsel for claim petitioners as
well as Respondents 6 & 7, who are parents of the deceased, who
were brought no record as per orders in I.A.No.273 of 2015 is that
the learned Tribunal erred in deducting 1/3 amount towards
personal expenses though the number of dependants are 5 in
number and also contended that the learned Tribunal ought to
have granted Rs.40,000/- to petitioner No.3 as she is minor and
ought to have awarded filial consortium to parents.
24. In this regard, it is pertinent to refer to the quantum of
compensation awarded by the learned Tribunal. Learned Tribunal
upon considering Ex.A6-Pay slip of the deceased-Komuraiah issued
by Singareni Collories Company Limited, fixed the monthly income
of the deceased as Rs.16,000/-. As the deceased was aged 48 years
at the time of accident, he is entitled for addition of 30% towards
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MACMA.No.149 of 2019 and
future prospects to the established income, as per the decision of
the Hon'ble Supreme Court in National Insurance Company
Limited Vs. Pranay Sethi and others 1. Hence, the future
monthly income of the deceased comes to Rs.20,800/-. This
Court, by considering the number of dependants as five in number,
is inclined to deduct 1/4th amount towards personal and living
expenses of the deceased. Hence, the net monthly income that
was being contributed to the family of the deceased comes to
Rs.15,600/- per month. As the age of the deceased was 48 years at
the time of the accident, the appropriate multiplier is '13' as per
the decision reported in Sarla Verma v. Delhi Transport
Corporation 2. Therefore, adopting multiplier '13', the total loss of
dependency works out to Rs.24,33,600/- (Rs.15,600/- x 12 x 13).
That apart, the petitioners are entitled for an amount of
Rs.77,000/- under conventional heads and further, considering
the fact that the appellant No. 3, being a minor child of the
deceased, this Court is inclined to award a sum of Rs.40,000/- to
her under the head of parental consortium as per the decision of
the Apex Court in Magma General Insurance Company Limited v.
2017 ACJ 2700
2009 ACJ 1298 (SC)
MGP,J
MACMA.No.149 of 2019 and
Nanu Ram @ Chuhru Ram and others 3. Thus, in all, the
appellants/claim petitioners along with Respondents 6 & 7 in
M.A.C.M.A.No.3201 of 2019 are entitled for compensation to an
amount of Rs.25,50,600/-.
25. As far as interest is concerned, the learned Tribunal granted
interest @ 6% per annum which is meagre. This Court, by relying
upon the decision of the Hon'ble Apex Court in Rajesh and others
v. Rajbir Singh and others 4, enhances the interest granted by the
Tribunal from 6% per annum to 7.5% per annum.
26. In the result, M.A.C.M.A.No.3201 of 2019 is allowed
enhancing the compensation awarded by the Tribunal from
Rs.22,00,000/- to Rs.25,50,600/- and M.A.C.M.A.No.149 of 2019
filed by Insurance company is partly allowed reducing the amount
awarded under conventional heads from Rs.2,00,000/- to
Rs.77,000/-. The enhanced amount shall carry interest at 7.5%
per annum from the date of filing of petition till the date of
realization payable by Respondent Nos.1, 3 & 5 jointly and
severally. Respondent No.5 is directed to deposit the enhanced
amount at first instance within a period of two months from the
date of receipt of a copy of this order and is entitled to recover the
(2018) 18 SCC 130
4 2013 ACJ 1403 = 2013 (4) ALT 35
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MACMA.No.149 of 2019 and
same from Respondent Nos.1 & 3. On such deposit, the appellants
and Respondent Nos.6 & 7, who are the parents of the deceased in
M.A.C.M.A.3201 of 2019 are entitled to withdraw the same as per
the apportionment made by the Tribunal. However, the appellants
shall pay the deficit court fee on the enhanced compensation.
There shall be no order as to costs.
27. Miscellaneous petitions, if any, pending shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.16.04.2024
ysk
