Telangana High Court

Liberty Videcon General Insurance Co., ... vs Battu Mangamma And 6 Others on 16 April, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 M.A.C.M.A.NO.2073 OF 2017
JUDGMENT:

The present appeal has been filed by the appellants-

Insurance Company aggrieved by the order dated 18.04.2017 in

M.V.O.P.No.911 of 2014 passed by the Principal Motor

Accidents Claims Tribunal-cum-Prl.District Judge, Warangal

(for short, 'Tribunal') and thereby, seeking to set aside the

order of the Tribunal.

2. The appellants herein are respondent Nos.2 and 3-

Insurance Company and the respondent Nos.1 to 6 herein are

the claimants before the Tribunal. For convenience, the parties

hereinafter are referred to as they are arrayed before the

Tribunal.

3. The brief factual matrix of the present appeal is that on

28.12.2013, at about 1.30 p.m., Battu Narsimha (hereinafter

referred to as 'the deceased') after completing the official

works at Hanamkonda, along with one Sooraiah, was

returning on his Passion Pro Motor cycle bearing registration

No.AP-36-UD-2910 towards Narsampet and when the

deceased reached Rathiram Thanda Village of Geesugonda

Mandal, Warangal District, one DCM TATA Cargo vehicle

bearing registration No.AP-36-TB-3270 (hereinafter referred to

offending vehicle), being driven by its driver, in rash and

negligent manner at high speed, came from behind and dashed

the motorcycle of the deceased. As a result, the deceased

succumbed to the injuries on the spot. Based on the complaint,

a case was registered in Crime No.418 of 2013 before the

Geesugonda Police.

4. According to the claimants, the deceased was aged about

38 years as on the date of accident, hale and healthy and was

earning Rs.30,000/- per month by working as Supervisor in

Housekeeping Wing in L& T Company, Nellore. Due to the

sudden demise of the deceased, the claimants lost their only

breadwinner besides love and affection. Hence, they filed claim

petition claiming Rs.35,00,000/- towards compensation.

5. Before the Tribunal, respondent Nos.1 and 2 remained ex

parte. Respondent No.3-Insurance Company filed counter

denying all the allegations in the claim petition as regards the

accident to the deceased, age, avocation and income of the

deceased. It was further contended that the compensation

claimed is excessive and exorbitant and prayed to dismiss the

claim petition.

6. Basing on the above pleadings, the following issues are

framed for trial:

1. Whether on 28.12.2013 at 1.30 p.m., at Rathiram Thanda Village of Geesugonda Mandal, Warangal District, the driver of DCM Tata Cargo bearing No.AP-36-TB-3270, drove the same in a rash and negligent manner and caused accident, resulting in death of Battu Narsimha?

2. Whether the claimants are entitled to compensation, if so, what rate ?

3. To what relief ?

7. On behalf of the claimants, P.Ws.1 and 2 were examined

and Exs.A1 to Ex.A13 were marked. On behalf of the

respondent No.3-insurance company, none was examined,

however, insurance policy was marked as Ex.B1.

8. The Tribunal, on due consideration of oral evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the offending

vehicle by its driver and awarded total compensation of

Rs.22,50,000/- along with interest @ 7.5% per annum.

9. Heard Sri A.Ramakrishna Reddy, learned standing

counsel for the appellants-Insurance company and Sri Aitha

Prem Sai, learned counsel for the respondent Nos.1 to

6/claimants. Perused the record.

10. During the course of hearing of appeal, learned standing

counsel for appellants-Insurance company submitted that

Tribunal ought to have taken contributory negligence into

consideration as the case on hand is head on collision between

the offending vehicle and the motor cycle of the deceased. He

further submitted that the Tribunal erred in assessing the

monthly income of the deceased without there being any

evidence. He also submitted that Tribunal ought to have seen

that the deceased was not a permanent employee at the time of

accident and ought not to have added 50% of the income

towards future prospects on the compensation awarded, which

is highly excessive and as such, prayed the Court to set aside

the award passed by the Tribunal.

11. Per contra, learned counsel for the respondent Nos.1 to 6/

claimants submitted that on due consideration of the evidence

and material placed on record, the Tribunal had rightly

awarded the compensation and no grounds are made out to

interfere with the award passed by the Tribunal and prayed

the Court to dismiss the appeal.

12. With regard to the manner of accident, P.W.2-B.Sooraiah,

who is cited as eye witness to the accident, was examined and

he deposed that he witnessed the accident and the accident

was caused due to rash and negligent driving of the offending

vehicle by its driver. The evidence of P.W.2 is corroborated

with the documentary evidence i.e., Ex.A1-FIR, Ex.A2-inquest

report, Ex.A3-postmortem examination report and Ex.A6-

Motor Vehicle Inspector's report, which clearly show that

accident occurred due to rash and negligent driving of the

driver of the offending vehicle. Therefore, it is clear that there

is no contributory negligence on the part of the deceased.

13. Insofar as quantum of compensation is concerned, it is

contended by the learned standing counsel for the appellants-

Insurance company that without there being any evidence, the

Tribunal assessed the income of the deceased as Rs.10,000/-.

However, it is pertinent to mention that the claimants filed

documentary evidence to substantiate their claim that the

deceased was working as Supervisor in House Keeping Wing

in L & T Company, Nellore at the time of accident. Therefore,

in considered opinion of this Court, the Tribunal had rightly

assessed the income of the deceased at Rs.10,000/- per month

and the same needs no interference by this Court.

14. The other contention raised by the learned standing

counsel for appellants with regard to the future prospects is

concerned, in National Insurance Company Limited vs.

Pranay Sethi and others 1, decided on 31.10.2017, the Hon'ble

Apex Court at paragraph 59.4 held as under:

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

15. In view of the above legal position, in considered opinion

of this Court, since the deceased was about 38 years as on the

date of the accident and was a private employee, 40% of the

monthly income can be added as future prospects. However,

the Tribunal erred in adding 50% of the income of the deceased

towards future prospects and same needs to be modified to the

extent of 40%.

16. Insofar as the quantum of compensation under

conventional heads, perusal of the record, the Tribunal

awarded Rs.1,00,000/- towards loss of consortium and further

(2017) 16 SCC 680

Rs.1,00,000/- towards loss of love and care and guidance. In

Pranay Sethi (supra), the Hon'ble Apex Court held as under:

"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 :

(2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect.

Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on 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. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.

Xxx

59.8. Reasonable figures on 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

17. In view of the above, the award of the amount under the

conventional heads by the Tribunal is not in tune with the ratio

laid down by the Hon'ble Apex Court in Pranay Sethi (supra),

and the same needs to be modified to the extent of Rs.15,000/-

towards loss of estate, Rs.15,000/- towards loss of funeral

expenses and Rs.40,000/- each claimant towards consortium.

18. In view of the above, the compensation amount is

recalculated as under:

Sl.No.                Head                   Compensation awarded

1        Income                         Rs.1,20,000/- per annum
                                        (Rs.10,000/- per month)
2        Future prospects               Rs.48,000/-
                                        (40% of income)
3        Total income                   Rs.1,68,000/- (i.e., Rs.1,20,000/-
                                        + Rs.48,000/-)
4        Deduction towards personal     Rs.42,000/- (one-fourth of total
         and living expenses            income)

5        Net Income                     Rs.1,26,000/-
                                        (i.e., Rs.1,68,000/- (-) Rs.42,000/-)





7         Loss of dependency               Rs.18,90,000/-
          (Sl.No.1 to 6)                   (i.e., Rs.1,26,000/- x 15)
8         Consortium (Rs.40,000/- x 6)     Rs. 2,40,000/-

9         Loss of estate                   Rs.    15,000/-

10        Funeral expenses                 Rs.    15,000/-

Total compensation to be paid: Rs.21,60,000/-

19. In the result, Appeal is partly allowed reducing the

compensation amount from Rs.22,50,000/- to Rs.21,60,000/-

with interest @ 7.5.% per annum from the date of the claim

petition till the date of realization. The appellants-insurance

company herein are directed to pay the said compensation

amount within a period of six weeks from the date of receipt of

copy of this order, duly deducting the amount, if any, already

deposited. The respondent Nos.1 to 6/claimants are entitled to

the apportionment and withdrawal of the amount as directed

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

Pending miscellaneous applications if any shall stand