Telangana High Court
Shriram General Insurance Company ... vs Livakath Begum on 2 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.1918 OF 2019
JUDGMENT:
1. Aggrieved by the order dated 21.12.2015 passed in
M.V.O.P.NO.412 of 2014, on the file of the Motor Accidents Claims
Tribunal (District Judge), Nizamabad, the 2nd respondent
therein/Insurance Company preferred the present Appeal seeking
to set-aside the order of the learned Tribunal.
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 daughters of the deceased-Mohd.Latheef, filed
a petition under Section 166 (1)(c) of the Motor Vehicles Act
against the Respondent Nos.1 & 2 claiming compensation of
Rs.10,00,000/- together with interest @ 24% per annum on
account of the death of the deceased-Mohd.Latheef in a motor
vehicle accident that occurred on 20.07.2014 at about 6.00 p.m.
As stated by the petitioners, on 20.07.2014 at about 6.00 p.m.,
when the deceased, as a labourer, was travelling on the Tractor
bearing No.AP-25-AD-1049 attached with Trolley bearing No.AP-
25-X-6628 from Varni Chowrastha towards Nagaram and when
reached Sainagar, Road No.3 at Varini Road, Nizamabad, the driver
of the said Tractor drove the same in a rash and negligent manner,
MGP,J
due to which, the deceased fell down from the Tractor attached to
the Trailer and sustained grievous injuries. Immediately, he was
shifted to Government Headquarters Hospital, Nizamabad, from
where he was referred to Osmania General Hospital, Hyderabad
and while undergoing treatment, he died on 30.07.2014 at about
2.30 AM. It is further submitted by the petitioners that at the time
of accident, the deceased was aged 35 years and was earning
Rs.15,000/- per month by doing Labour work and was
contributing the same for the welfare and maintenance of family
and due to his untimely death in the accident, the petitioners lost
their source of income and put to sufferance. Hence, filed the
claim petition seeking compensation of Rs.10,00,000/- along with
interest against Respondent No.1, being the owner and Respondent
No.2, being the insurer of the crime vehicle.
4. Respondent No.1, who is owner of the Crime vehicle i.e.,
Tractor and Trailer, filed his counter denying the averments made
in the claim petition which includes age, avocation, manner of
accident, rash and negligent driving of the driver of the subject
Tractor and Trailer and contended that the subject Tractor and
Trailer was insured with the 2nd respondent and hence, the 2nd
respondent alone is liable to pay compensation and that the
compensation claimed is excess and exorbitant and hence, prayed
to dismiss the claim against him.
MGP,J
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 of the
petitioner, involvement of the subject Tractor and Trailer and
contended that the deceased travelled as an unauthorized
passenger on the subject Tractor and Trailer and the driver of the
subject Tractor and Trailer do not possess valid driving license and
the subject tractor and trailer is not covered with valid fitness
certificate to ply on the route 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 the parties, the
learned Tribunal had framed the following issues for
consideration:-
1. Whether Mohd.Latheef died due to rash and negligent
driving of Tractor bearing No.AP-25-AD-1049 and
Trolley bearing No.AP-25-X-6628?
2. Whether the petitioners are entitled for compensation of
Rs.10,00,000/- from the respondents as prayed for?
3. To what relief?
7. Before the Tribunal, on behalf of the petitioners, PWs1 to 3
are examined and Exs.A1 to A6 were marked. On behalf of
Respondent No.2/Insurance Company, RW1 was examined and
Ex.B1-Copy of Insurance Policy was marked.
MGP,J
8. After considering the evidence and documents filed by both
sides, the learned Tribunal had allowed the claim petition by
awarding compensation of Rs.10,43,000/- with simple interest @
7.5% per annum from the date of filing of petition till the date of
deposit of amount which is payable by Respondent Nos.1 & 2
jointly and severally. Aggrieved by the same, the present Appeal is
filed by the Insurance Company, who is arrayed as respondent
No.2 in the O.P.
9. Heard both sides and perused the material available on
record.
10. The contentions of the learned Standing Counsel for
appellant/Insurance Company are that the learned Tribunal failed
to consider that there is delay of '8' days in registering FIR and that
the deceased travelled as an unauthorized passenger as Ex.B1-
Insurance policy shows that the seating capacity of the subject
Tractor is one, which is only for driver and that there is no
additional premium paid to cover the risk of the labourer, as such
Insurance Company is not liable to pay any compensation to the
appellant. It is also contended that the Tribunal ought to have
taken notional income while computing compensation. It is also
contended that the subject vehicle is prohibited for carrying
passengers as it is a goods vehicle. Finally, it also contended that
the learned Tribunal erred in granting compensation twice towards
MGP,J
loss of love and affection and hence, prayed to set-aside the same.
It also relied upon certain decisions which are reported in 1999(5)
ALD 138 (DB), 2011 Law Suit (AP) 1061, 2013 (1) ALD 41 and
2018 (3) ALD 531, wherein the Insurance Company is not liable to
pay any compensation under no fault liability.
11. On the other hand, learned counsel for the respondents
contended that the learned Tribunal after considering all the
aspects, has awarded reasonable compensation for which
interference of this Court is unwarranted. He also relied upon
certain decisions of the Hon'ble Apex Court which are reported in
2022 Law Suit (SC) 1575 and orders passed by this Court in
MACMA.2127 of 2019, dated 02.12.2022, wherein pay and
recovery principle was adopted directing the Insurance Company to
pay the compensation amount in the first instance and later
recover the same from the owner of the crime vehicle.
12. Now the point that emerges for determination is,
Whether the order passed by the learned Tribunal 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 wife of the deceased, examined herself as PW1
and got examined PWs 2 & 3. During the course of her
MGP,J
examination, PW1 reiterated the contents of the claim petition.
PW3, who is an eye witness to the accident, deposed that the
accident took place due to the rash and negligent driving of the
driver of the crime Tractor and Trailer. PW1, in support of her
evidence, got marked EXs.A1 to A6 on her behalf. A perusal of
Ex.A1-FIR shows that Police of V Towan, Nizamabad, registered a
case in Crime No.127 of 2014 under Section 337 IPC against the
driver of the crime Tractor and filed charge sheet under Ex.A2 for
the offence under Section 304-A IPC. Ex.A3 is the Post mortem
examination report. Ex.A4 is the inquest report. Ex.A5-Report of
the Motor Vehicle Inspector shows that the accident had not
occurred due to any mechanical defects in the Tractor and Trailer
and Ex.A6 is the Copy of Insurance policy which shows that the
policy was in force as on the date of accident. A perusal of
evidence of PW3, who is an eye witness to the incident coupled
with Exs.A1 to A5, confirms that the death of the deceased was
due to rash and negligent driving of the driving of the subject
Tractor bearing No.AP-25-AD-1049 attached with Trolley bearing
No.AP-25-X-6628. Though PWs1 to 3 were cross-examined at
length, nothing adverse was elicited from them to disbelieve their
testimony.
14. On behalf of Insurance Company, RW1 was examined. He
deposed that there was delay of 8 days in lodging complaint to the
MGP,J
Police and that the deceased was travelling as an unauthorized
passenger on the subject Tractor and Trailer and hence, Insurance
Company is not liable to pay any compensation to the petitioner. In
support of his evidence, he got marked Ex.B1- Insurance policy.
15. In this regard, it is pertinent to refer to the complaint
given by PW1 wherein, the reason stated by her for delay in lodging
FIR is that immediately after the accident, she thought that her
husband would recover from injuries. Hence, she did not lodge any
complaint immediately after the accident. However, immediately
after the death of her husband, she gave a complaint before the
Police. The said explanation is reasonable and would not make
any consequence in deciding the petition. It is also admitted fact
that delay in lodging of FIR cannot be a ground to dismiss the
claim petition as the family members will be engaged in providing
necessary treatment to the injured instead of rushing to police
station for giving a complaint regarding the accident.
16. In this regard, it is pertinent to refer to the judgment of the
Hon'ble Apex Court in the case of Ravi v. Badrinaryan 1, wherein,
the Hon'ble Apex Court at Para No.21 held as under:-
"21. The purpose of lodging the FIR in such type of cases is
primarily to intimate the police to initiate investigation of
criminal offences. Lodging of FIR certainly proves factum of
accident so that the victim is able to lodge a case for
(2011) 4 SCC 693
MGP,J
compensation but delay in doing so cannot be the main ground
for rejecting the claim petition. In other words, although lodging
of FIR is vital in deciding motor accident claim cases, delay in
lodging the same should not be treated as fatal for such
proceedings, if claimant has been able to demonstrate
satisfactory and cogent reasons for it. There could be variety of
reasons in genuine cases for delayed lodgment of FIR. Unless
kith and kin of the victim are able to regain a certain level of
tranquility of mind and are composed to lodge it, even if, there is
delay, the same deserves to be condoned. In such
circumstances, the authenticity of the FIR assumes much more
significance than delay in lodging thereof supported by cogent
reasons."
17. In view of the above, the contention of the learned counsel
for appellant/Insurance Company that the learned Tribunal took a
lenient view with regard to delay in lodging FIR is unsustainable.
18. It is further contention of the learned Standing Counsel for
Appellant/Insurance Company that the learned Tribunal failed to
see that the deceased travelled as an unauthorized passenger on
the subject Tractor and further contended that Ex.B1-Insurance
policy does not cover risk of the labourer and therefore, the
insurance company is not liable to pay any compensation. In this
regard, it is pertinent to refer to the decision of High Court of
Gujarat in a case between United India Insurance Co.Ltd.
Vs.Fatmaben Ismailbhai 2 wherein the Court, at Para 12 of the
Judgment, held as under:-
LAWS (GIH)-2009-4-160
MGP,J
"12. As discussed hereinabove, the vehicle in question was
a goods vehicle and the deceased was an unauthorized
passenger in the vehicle in question and therefore, the
insurance company is not liable to pay the amount of
compensation. However, as the manifest object of the
provisions of the MV Act is to ensure that the party, who
suffers injuries due to the use of the motorcycle, and may be
able to get the damages for the injuries sustained/death. If
the goods vehicle is used for carrying the passengers, against
the terms of insurance policy, as is in the case on hand, the
claimants cannot suffer for the technicalities of whether the
owner/insurance company should pay the amount. As the
vehicle is insured with the insurance company, the insurance
company shall first pay the compensation and it is for the
insurance company to recover from the owner if it so wishes."
19. From the above referred 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. Moreover, a perusal of
Ex.A6=Ex.B1-Insurance policy shows that the policy was in force
as on the date of accident. Therefore, the Insurance Company is
liable to pay compensation.
20. It is the further contention of the learned counsel for the
appellant/Insurance Company is that the learned Tribunal erred in
taking the monthly income of the deceased as Rs.6,000/- without
any substantial proof. In this regard, it is pertinent to refer the
evidence of PW1 wherein she deposed that his husband used to do
labour work and also had Rice business and used to earn
MGP,J
Rs.15,000/- per month. Further, there is a mention in Ex.A4-
Inquest Report that the occupation of the deceased as "Rice
Business". Hence, the learned Tribunal came to a conclusion that
the deceased, as an abled bodied man, can earn not less than
Rs.6,000/- per month by doing labour work and Rice business.
Hence, interference of this Court is not necessary in this regard.
21. Coming to the aspect of compensation, the learned Tribunal
fixed the monthly income of the deceased @ Rs.6,000/- and
deducted 1/3rd towards personal expenses as the number of
dependents are three and applied multiplier '16' for the deceased
being aged 38 years , which comes to Rs.7,68,000/-. Apart from
this the learned Tribunal had awarded a sum of Rs.25,000/-
towards funeral expenses and also awarded compensation towards
loss of love and affection twice which needs interference of this
Court. This Court by relying upon 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), is inclined to award a sum of Rs.77,000/- towards non-
pecuniary damages. Further, considering the fact that the claim
MGP,J
petitioners 2 & 3 being minor children of the deceased, this Court
is inclined to award a sum of Rs.40,000/- each under the head of
parental consortium as per the decision of the Apex Court in
Magma General Insurance Company Limited v. Nanu Ram @
Chuhru Ram and others 3 . Thus, in all, the claimants are
entitled for a total compensation of Rs.9,25,000/-.
22. In the result, the Appeal filed by the Insurance Company is
partly-allowed reducing the amount of compensation granted by
the Tribunal from Rs.10,43,000/- to Rs.9,25,000/- which carries
interest @ 7.5% per annum payable by Respondent Nos.1 & 2
jointly and severally within a period of two months from the date of
receipt of a copy of this order. The Respondent No.2/Insurance
Company (appellant herein) shall pay the compensation in the first
instance and later recover the same from Respondent No.1. Upon
such payment made, the respondents/claim petitioners are
entitled to withdraw the same as per the apportionment made by
the learned Tribunal. There shall be no order as to costs.
23. Miscellaneous petitions pending, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.02.08.2024
ysk
(2018) 18 SCC 130
