Telangana High Court
Smt. K. Kanakalatha, Hyd And Another vs Shaik Assan Ali, R.R.Dist And Another on 23 April, 2024
1
MGP,J
MACMA.No.1208 of 2017 and
MACMA.No.2563 of 2019
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1208 OF 2017
AND
M.A.C.M.A.No.2563 OF 2019
COMMON JUDGMENT:
1. These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.1208 of 2017 filed by claim
petitioners, seeking for enhancement of compensation and
M.A.C.M.A.No.2563 of 2019 filed by Respondent No.2/Insurance
Company seeking to allow the appeal by setting aside the order of
the learned trial Court, both are directed against the very same
order dated 08.02.2016 passed in M.V.O.P.No.263 of 2012, on the
file of the Court of XI Additional Chief Judge, City Civil Court,
Hyderabad.
2. For the sake of convenience, the parties hereinafter be
referred as they were arrayed before the trial Court.
3. The facts of the case in brief are that the claim petitioners,
who are the parents of Sri K.Sarveshwar @ Babloo (hereinafter be
referred as "the deceased"), filed a petition under Section 166 of
M.V.Act against the Respondent Nos.1 & 2 claiming compensation
of Rs.9,00,000/- for the death of their son (deceased) in a motor
vehicle accident that occurred on 01.10.2011 at about 8.30 a.m. at
Cherlapally 'X' Roads, Kushaiguda, Hyderabad. As stated by the
MGP,J
MACMA.No.1208 of 2017 and
petitioners, on 01.10.2011 at about 8.30 a.m., when the deceased
and his brother were going towards Cherlapally Market by walk
and when reached Cherlapally X Roads, one Auto bearing No.AP-
29U-8725 which was driven by its driver in a rash and negligent
manner at a high speed, came from back side and dashed the
deceased. As a result, the deceased sustained grievous head injury
and other serious injuries on vital party of the body. Immediately,
he was shifted to Gandhi Hospital, Secunderabad for treatment
and he succumbed to injuries while undergoing treatment. Based
on the information, Police, Kushaiguda Police Station, registered a
case in Crime No.625 of 2011 under Section 304-A IPC against the
driver of the Auto bearing No.AP-29U-8725. It is stated by the
petitioners that at the time of accident, the deceased was aged
about 29 years and was earning Rs.12,000/- per month by
working as a Supervisor in M/s.Safe Polymers, Hyderabad and
used to contribute the same for maintenance of family. Due to
sudden death of the deceased, the claimants have lost their sole
bread winner, love and affection of the deceased and were put to
mental shock and agony and finding it difficult to eke out their
livelihood. Therefore, they filed a petition claiming compensation of
Rs.9,00,000/- along with interest against Respondent No.1, being
the owner and Respondent No.2, being the insurer of the crime
vehicle.
MGP,J
MACMA.No.1208 of 2017 and
4. Respondent No.1, who is owner of the crime vehicle i.e.,
Auto, remained exparte.
5. Respondent No.2/Insurance Company filed its counter
denying the averments made in the claim petition including,
manner of accident, age, avocation, earning capacity, involvement
of the Auto, negligence of the driver of the crime vehicle i.e., Auto
bearing No.AP-29U-8725 and that the compensation claimed is
excess and exorbitant and hence, prayed to dismiss the claim
against it.
6. Based on the rival contentions made by both parties, the
learned trial Court had framed the following issues:-
1. Whether the accident took place due to the rash and
negligent driving of the vehicle bearing No.AP-29U-8725
causing death of Sri K.Sarveshwar @ Babloo?
2. Whether the petitioners are entitled for compensation? If
so, to what extent and from whom?
3. To what relief?
7. Before the trial Court, on behalf of the petitioners, petitioner
No.1 was examined as PW1 and got marked Exs.A1 to A6 on their
behalf. On behalf of Respondent No.2/Insurance Company, RW1
was examined and Exs.B1 to B3 were marked.
MGP,J
MACMA.No.1208 of 2017 and
8. After considering the evidence and documents available on
record, the learned trial Court had partly allowed the claim petition
of the petitioners awarding compensation of Rs.8,13,500/- with
simple interest @ 7.5% per annum from the date of filing of petition
till the date of realization which is payable by Respondent Nos.1 &
2 jointly and severally. It is further directed by the trial Court that
Respondent No.2 shall pay the compensation in the first instance
and shall later recover the amount so paid from Respondent
No.1/owner of the Auto by filing execution petition. Challenging
the same, the present appeals came to be filed by the claimants
and Insurance Company respectively.
9. Heard both sides and perused the material available on
record.
10. The contentions of the learned counsel for appellants/claim
petitioners in M.A.C.M.A.1208 of 2017 are that the learned trial
Court ought to have considered Ex.A6-Salary Certificate and ought
to have granted compensation towards loss of love and affection
and transportation and hence, prayed to allow the appeal by
enhancing the compensation awarded by the learned trial Court.
11. The contentions made by the learned counsel for Respondent
No.2/Insurance Company in M.A.C.M.A.No.2563 of 2019 are that
the learned trial Court erred in adopting pay and recover policy;
MGP,J
MACMA.No.1208 of 2017 and
erred in deducting 50% towards future prospects as the deceased
is working on a fixed salary and erred in granting Rs.1,25,000/-
towards non-pecuniary damages and hence, prayed to allow the
appeal by setting aside the order of the learned trial Court.
12. Now the point that emerges for determination is,
Whether the order passed by the learned trial Court requires
interference of this Court?
POINT:-
13. This Court has perused the entire evidence and documents
available on record. On behalf of the claim petitioners, petitioner
No.1, who is the mother of the deceased, was examined as PW1.
She reiterated the contents made in the claim petition and got
marked Exs.A1 to A6 on their behalf. Ex.A1-FIR shows that Police,
Kushaiguda Police Station registered a case in Crime No.625 of
2011 under Section 337 IPC against the driver of the Auto bearing
No.AP-29U-8725, conducted investigation and laid charge sheet
under Ex.A2 wherein, it is held that the driver of the Auto bearing
No.AP-29U-8725 drove his Auto in a rash and negligent manner
and dashed the deceased which resulted in his death and as the
accused had not produced driving license, he was committed
offence punishable under Sections 3(1)(5) of M.V.Act, 1988 and
304A IPC. Ex.A3 is the report of the Motor Vehicle Inspector
which shows that the accident had not occurred due to any
MGP,J
MACMA.No.1208 of 2017 and
mechanical defect in the vehicle. Ex.A4 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 01.10.2011 due to rash and negligent driving of the driver of the
Auto bearing No.AP-29U-8725. Ex.A5 is the post mortem
examination report wherein it is held that the death of the
deceased was due to 'Head injury'. Ex.A6 is the salary certificate
of the deceased. Though PW1 was cross-examined at length,
nothing adverse was elicited from her to disbelieve her testimony.
14. While considering the Appeal, this Court called for the
records from the trial Court and on perusal of the record, it is
found that one eye witness by name Sri Anil Kumar Das, was
examined as PW2 on behalf of the claimants. But there was no
recital about the said person in the impugned judgment as well as
in the appendix of evidence appended to the impugned judgment.
15. A perusal of evidence of PW2, who is an eye witness to the
incident, shows that on 01.10.2011, at about 8.30 hours, when
himself and deceased were going towards Cherlapally market by
walk, on the way, when they reached near Cherlapally X roads, one
Auto bearing No.AP-29U-8725 driven by its driver in a rash and
negligent manner, came from back side and dashed the deceased.
As a result, the deceased fell down and sustained grievous head
MGP,J
MACMA.No.1208 of 2017 and
injury and other serious injuries on vital parts of the body.
Immediately he was shifted to Gandhi Hospital, Secunderabad for
treatment and he was succumbed to injuries while undergoing
treatment. He deposed that the said accident occurred due to rash
and negligent driving of the driver of the said Auto. Though PW2
was cross-examined at length, nothing adverse was elicited to
disbelieve his testimony.
16. On behalf of Respondent No.2, RW1, who is Assistant
Manager working in the 2nd respondent/Insurance Company was
examined. She deposed in her evidence that Respondent No.1
entrusted the crime vehicle to one Mr.M.Ramesh to drive the
vehicle as his driving license in respect of transport vehicle was
expired on 12.07.2007 which comes to violation of policy
conditions. She stated that as per the final opinion given by
Department of Forensic Medicine & Toxicology, Gandhi Medical
College, Hyderabad, the deceased died due to Head injury
associated with Ethyl Alcohol intoxication and hence, the
Insurance Company is not liable to pay any compensation. In
support of her evidence, she got marked Exs.B1 to B3.
17. During her cross-examination, she admitted that the policy
was in force as on the date of accident.
MGP,J
MACMA.No.1208 of 2017 and
18. It is pertinent to note that there is no dispute with regard to
occurrence of accident and death of the deceased. The only
contention raised by the learned counsel for Appellant/Insurance
Company in M.A.C.M.A. 2563 of 2019 is that the though the driver
of the crime vehicle do not have any valid driving license, the
learned trial Court fastened the liability upon insurance company
by adopting pay and the recover policy.
19. In this regard, it is pertinent to refer the decision of the
Hon'ble Supreme Court in the case between S.Iyyapan v.United
Insurance Co.Ltd. 1, wherein the Hon'ble Court held as under:-
"... ... ... Hence, in our considered opinion, the insurer
cannot disown its liability on the ground that although the
driver was holding a license to drive a light motor vehicle,
but before driving light motor vehicle used as commercial
vehicle, no endorsement to drive commercial vehicle was
obtained. In the driving license in any case, it is statutory
right of third party to recover the amount of compensation
so awarded from the insurer. It is for the insurer to
proceed against the insured for recovery of the amount in
the event there has been violation of any condition of the
insurance policy."
2013(5) ALD 62(SC)
MGP,J
MACMA.No.1208 of 2017 and
20. Also, in a decision reported by Bombay High Court, it is held
as under:-
"An insurance company is liable to pay compensation to
accident victim's kin even if the driving license of the
offending vehicle's driver has expired and not renewed as
an expired license would not make him an unskilled
driver. The insurance company has to pay compensation
first and later recover it from the owner of the vehicle."
21. From the above referred decisions, 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. Moreover, the
Insurance company had not taken any steps to examine the RTO
Authorities in support of their contention. A perusal of Ex.B3-
driving licence of the driver of Auto bearing No.AP-29U-8725 shows
that the same was issued on 06.07.1998 and it was valid upto
12.07.2007 for a transport vehicle and upto 05.07.2018 for a non-
transport vehicle. As the vehicle of Respondent No.1 is a transport
vehicle, the license of the said vehicle got expired. Hence,
considering the same, the learned trial Court adopted pay and
recover policy for which this Court is not inclined to interfere with
the said finding.
MGP,J
MACMA.No.1208 of 2017 and
22. The further contention of the learned counsel for the
appellant/Insurance Company is that the learned trial Court erred
in granting Rs.1,25,000/- under the Head of non-pecuniary
damages. 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 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, which in
all comes to Rs.70,000/- (which shall carry 10% enhancement for
every three years). This Court, by relying upon the said decision, is
inclined to interfere with the order of the trial Court and reduces
the amount awarded under non-pecuniary heads from
Rs.1,25,000/- to Rs.77,000/- .
23. It is also contended that the learned trial Court erred in
deducting 50% towards future prospects of the deceased as he is
not a permanent employee. A perusal Ex.A6-Salary certificate
issued by the Managing Partner of Safe Polymers shows that the
deceased used to work as a Supervisor in their firm and used to be
paid Rs.12,000/- per month towards salary. As per the decision of
the Hon'ble Supreme Court in National Insurance Company
MGP,J
MACMA.No.1208 of 2017 and
Limited Vs. Pranay Sethi and others 2, if the deceased was aged
below 40 years and is working on fixed wages, he is entitled for
addition of 40% towards future prospects. But the learned trial
court had awarded 50% towards future prospects. This Court is
inclined to interfere with the said finding and hereby reduce the
percentage awarded under future prospects from 50% to 40%.
24. Now, coming to the income of the deceased, it is the
contention of the learned counsel for the appellants/claim
petitioners in M.A.C.M.A.1208 of 2017 that though the deceased
used to earn Rs.12,000/- per month by working as Supervisor in
Safe Polymers and produced documentary proof to that effect, but
the learned trial Court, without considering the same, had taken
the income of the deceased @ Rs.4,500/- per month which is very
meagre. This Court, taking into consideration the fact that even
though the person who issued Ex.A6-Salary Certificate was not
examined, but there was no objection reported by the other side in
marking the said document, is inclined to fix the monthly income
of the deceased @ Rs.8,000/-. As the deceased was aged 29 years
at the time of accident, he is entitled for addition of 40% towards
future prospects to the established income as per the decision of
2017 ACJ 2700
MGP,J
MACMA.No.1208 of 2017 and
the Hon'ble Supreme Court in National Insurance Company
Limited Vs. Pranay Sethi and others 3. Hence, the future
monthly income of the deceased comes to Rs.11,200/-. Since the
deceased was a bachelor, 50% of the established income is
deducted towards his personal and living expenses. Hence, the net
monthly income of the deceased comes to Rs.5,600/- per month.
As the age of the deceased is 29 years, the suitable multiplier is
'17' as per the decision reported in Sarla Verma v. Delhi
Transport Corporation 4, the total loss of dependency works out
to Rs.11,42,400/- (Rs.5,600 x 12 x 17). That apart, the claim
petitioners are also entitled for an amount of Rs.77,000/- under
conventional heads. Thus, in all, the appellants/claim petitioners
in M.A.C.M.A.No.1208 of 2017 are entitled for a total compensation
of Rs.12,19,400/-
25. In the result, M.A.C.M.A.No.1208 of 2017, filed by claim
petitioners, is allowed enhancing the compensation awarded by the
trial Court from Rs.8,13,500/- to Rs.12,19,400/-. The enhanced
amount shall carry interest @ 7.5% per annum from the date of
petition till the date of realization payable by Respondent Nos.1 & 2
2017 ACJ 2700
2009 ACJ 1298 (SC)
MGP,J
MACMA.No.1208 of 2017 and
jointly and severally within a period of two months from the date of
receipt of a copy of this order. The Respondent No.2 shall pay the
enhanced amount in the first instance and later recover the same
from Respondent No.1. On such deposit, the appellants in
M.A.C.M.A.1208 of 2017 are entitled to withdraw the same as per
the apportionment made by the trial Court by paying the deficit
Court fee.
26. M.A.C.M.A.No.2563 of 2019 filed by Insurance company is
partly allowed reducing the amount granted under non-pecuniary
damages from Rs.1,25,000/- to Rs.77,000/- and also reducing the
amount granted under future prospects from 50% to 40%. There
shall be no order as to costs in both the appeals.
27. Miscellaneous petitions, if any, pending shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.23.04.2024
ysk
MGP,J
MACMA.No.1208 of 2017 and
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1208 OF 2017
AND
M.A.C.M.A.No.2563 OF 2019
Dt.23.04.2024
ysk
