Telangana High Court
Shriram General Insurance Co.Ltd. vs Smt.Reema Sulthana on 8 August, 2024
* THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+ M.A.C.M.A.No.150 OF 2023
% 0 --08--2024
# Shriram General Insurance Co. Ltd.
...Petitioner
and
$ Smt. Reema Sulthana and others.
... Respondents
! Counsel for the Petitioner : Kondadi Ajay Kumar
^Counsel for Respondents 1 to 4: Akkam Eshwar
<Gist :
>Head Note :
? Cases referred
1. 2011 (4) SCC 693
2. 2009 (13) SCC 530
3. AIR 2019 SC 994
4. (2008) 2 SCC 763
5. (2010) 12 SCC 378
6. 2017 (16) SCC 680.
7. 2009 ACJ 1298 (SC)
2
SP,J and RRN,J
MACMA No.150 of 2023
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
M.A.C.M.A.No.150 OF 2023
Between:
Shriram General Insurance Co. Ltd.
...Petitioner
and
Smt. Reema Sulthana and others.
... Respondents
JUDGMENT PRONOUNCED ON: 0 .08.2024
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : yes
____________________
SUJOY PAUL, J
_______________________________________________
NAMAVARAPU RAJESHWAR RAO, J
3
SP,J and RRN,J
MACMA No.150 of 2023
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.150 of 2023
JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
This Motor Accident Civil Miscellaneous Appeal is filed by the
appellant-Insurance Company, aggrieved by the order and decree
dated 15.10.2022 passed in MVOP.No.83 of 2021 on the file of the
Chairman, Motor Accidents Claims Tribunal-cum-Principal District
and Sessions Judge, Kamareddy (for short 'the Tribunal').
2. For convenience, the parties will be referred to as arrayed before
the Tribunal.
3. The brief facts of the case are as follows:
On 10.03.2021, the deceased (Shaik Mansoor) was proceeding
on his Motorcycle bearing No.AP-25-K-0521 from Kamareddy towards
Guru Raghavendra Colony side, and when he reached the TATA ACE
showroom situated on the National Highway, one new TATA ACE
came in the opposite direction and dashed against the motorcycle of
the deceased, as a result of which, he fell and sustained grievous
injuries, fracture injuries to the head and other parts of the body. He
was shifted to Osmania General Hospital, Hyderabad, where he
succumbed to injuries on 12.03.2021 while undergoing treatment.
SP,J and RRN,J
The Police Devanpally registered a case in Cr.No.92 of 2021 against
the driver of the offending vehicle under Section 304-A IPC. Hence,
the petitioners filed a claim petition seeking compensation of
Rs.75,00,000/-.
4. Before the Tribunal, the 1st respondent remained ex-parte.
5. Respondent No.2/Shriram General Insurance Company Ltd. filed
a counter denying the manner in which the accident took place and
also denied the deceased's age, avocation and income. It is also
contended that the accident did not occur with the alleged TATA ACE
Gold vehicle, and the accident took place due to gross negligence of
the deceased, who was riding the motorcycle bearing
No.AP-25-K-0521 without a valid driving license, and further, the said
motorcycle was not in a worthy condition to ply on the roads.
Further, the compensation claimed is excessive and prayed to dismiss
the claim petition.
6. To prove the petitioners' case, PWs.1 to 3 were examined, and
Exs.A1 to A10 and Ex.C1 were marked. RW.1 was examined for the
respondent Insurance Company, and Ex.B1-Copy of the Insurance
Policy was marked.
7. The Tribunal, after considering the oral and documentary
evidence available on record, allowed the claim petition by granting
SP,J and RRN,J
compensation of Rs.61,91,962/- with interest thereon @ 7.5% per
annum from the date of the petition till the date of realization to be
paid by Respondent Nos.1 and 2 jointly and severally to the
petitioners. Challenging the same, the present M.A.C.M.A. is filed by
the respondent Insurance Company.
8. Heard Sri Kondadi Ajay Kumar, learned counsel for the
respondent Insurance Company, and Sri Akkam Eshwar, learned
counsel for the petitioners/claimants, and perused the record.
9. Learned counsel for the respondent Insurance Company
contended that the Tribunal failed to appreciate the fact that the
accident took place due to the negligence of the deceased himself.
Since he was not wearing protecting head gear while falling down on
the road, he sustained a head injury and died subsequently.
10. Learned counsel appearing for the respondent Insurance
Company further contended that the Tribunal erred in coming to the
conclusion that the vehicle of the 1st respondent was involved in the
accident. However, the respondent Insurance Company proved that
the FIR was lodged with a delay of three days, while planting the said
vehicle in collusion with the 1st respondent. Further, the non-filing of
the medical record of the deceased pertaining to the alleged day of the
accident raises several inferences on the narration of the accident.
SP,J and RRN,J
11. Learned counsel appearing for the respondent Insurance
Company further contended that the Tribunal erred by accepting the
deceased's salary certificate, thereby granted excessive compensation
by considering the deceased's salary as Rs.53,772/-. Further, the
Tribunal grossly erred by taking into account the deceased's net
salary without deducting any income-tax that was statutorily
applicable to him. Accordingly, he prayed to set-aside the order and
decree passed by the Tribunal and allow the present appeal.
12. Per contra, learned counsel appearing for the
petitioners/claimants contended that the Tribunal, after considering
the oral and documentary evidence available before it, rightly granted
compensation and no interference is required in the same.
13. The Hon'ble Apex Court in its judgment rendered in
Ravi vs. Badrinarayan & Ors 1, has dealt with the question of delay
in registration of F.I.R., wherein it held as follows:
"20. It is well-settled that delay in lodging FIR cannot be a ground to
doubt the claimant's case. Knowing the Indian conditions as they
are, we cannot expect a common man to first rush to the Police
Station immediately after an accident. Human nature and
family responsibilities occupy the mind of kith and kin to such
an extent that they give more importance to get the victim
treated rather than to rush to the Police Station. Under such
circumstances, they are not expected to act mechanically with
promptitude in lodging the FIR with the Police. Delay in lodging
2011 (4) SCC 693
SP,J and RRN,J
the FIR thus, cannot be the ground to deny justice to the victim.
In cases of delay, the courts are required to examine the evidence with a
closer scrutiny and in doing so; the contents of the FIR should also be
scrutinized more carefully. If court finds that there is no indication of
fabrication or it has not been concocted or engineered to implicate
innocent persons then, even if there is a delay in lodging the FIR, the
claim case cannot be dismissed merely on that ground."
(emphasis supplied)
14. It has thus been clearly held that delay in registration of F.I.R.
cannot be the sole ground to disbelieve the version of the claimants or
to deprive the claimants of compensation. It is needless to state that
the standard of proof in motor vehicle accident cases is that of the
preponderance of probability and not a strict standard of proof
beyond all reasonable doubts. The Hon'ble Apex Court in its
judgment in Bimla Devi & Ors vs Himachal Road Transport Corpn.
& Ors 2, observed:
"15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in a
particular manner may not be possible to be done by the
claimants. The claimants were merely to establish their case on
the touchstone of preponderance of probability. The standard of
proof beyond reasonable doubt could not have been applied. For
the said purpose, the High Court should have taken into consideration
the respective stories set forth by both the parties."
(emphasis supplied)
2009 (13) SCC 530
SP,J and RRN,J
15. This very aspect was dealt with in the judgment of the Hon'ble
Apex Court in Sunita & Ors. Rajasthan State Road Transport
Corporation & Anr. 3, wherein it was held:
"23. The Tribunal had justly accepted the appellants' contention that the
respondents did not challenge the propriety of the said FIR No.
247/2011 (Exh. 1) and charge sheet (Exh. 2) before any authority. The
only defence raised by the respondents to this plea was that the said
FIR No. 247/2011 was based on wrong facts and was filed in
connivance between the appellants/complainants and the police,
against which the respondents complained to the in charge of the police
station and the District Superintendent of Police but to no avail. Apart
from this bald assertion, no evidence was produced by the respondents
before the Tribunal to prove this point. The filing of the FIR was followed
by the filing of the chargesheet against respondent No.2 for offences
under u/Sections 279, 337 and 304A of the IPC and Sections 134/187
of the Act, which, again, reinforces the allegations in the said FIR
insofar as the occurrence of the accident was concerned and the role of
respondent No.2 in causing such accident. Be that as it may, the High
Court has not even made a mention, let alone record a finding, of any
impropriety against FIR 247/2011 (Exh. 1) or chargesheet (Exh. 2) or the
conclusion reached by the Tribunal in that regard. Yet, the FIR and the
Charge sheet has been found to be deficient by the High Court."
It further held:
"25. The Tribunal's reliance upon FIR 247/2011 (Exh. 1) and charge-
sheet (Exh. 2) also cannot be faulted as these documents indicate the
complicity of respondent No.2. The FIR and chargesheet, coupled
with the other evidence on record, inarguably establishes the
occurrence of the fatal accident and also point towards the
negligence of the respondent No.2 in causing the said accident.
Even if the final outcome of the criminal proceedings against
AIR 2019 SC 994
SP,J and RRN,J
respondent No.2 is unknown, the same would make no difference
atleast for the purposes of deciding the claim petition under the
Act. This Court in Mangla Ram (supra), noted that the nature of proof
required to establish culpability under criminal law is far higher than
the standard required under the law of torts to create liability.
26. Accordingly, we have no hesitation in upholding the finding recorded
by the Tribunal that there was an accident on 28102011 at around 7AM
between the motorcycle driven by Sitaram bearing registration number
RJ 25 SA 6923 and a bus belonging to respondent No.1. (the Rajasthan
State Road Transport Corporation) bearing registration number RJ-
26/P.A. 0042 coming from the opposite direction and being driven
rashly and negligently by respondent No.2, which resulted in the death
of Sitaram."
(emphasis supplied)
16. In the present case, there is a mere delay of three days in filing
the F.I.R. In view of the foregoing judgments, it is needless to
re-iterate that the near and dear of the deceased would not be in a
mindset to rush to the police station to register a complaint, since
their priority would obviously be to save the life of the victim. This
Court is not inclined to agree with the view taken by the learned
counsel for the respondent Insurance Company that the said delay of
three days in filing of F.I.R. and the non-filing of the medical reports
pertaining to the day of the accident would lead to some other
inferences, including that of suggesting that the crime vehicle was
planted in collusion with the 1st respondent. When it is evident that
the accident has occurred and the deceased has lost his life due to
such accident, the delay in registration of F.I.R., or the assumption
SP,J and RRN,J
that some other inference could be drawn, cannot be the basis to
reject the claimants' case for compensation.
17. A perusal of the impugned order discloses that the Tribunal,
having framed issue No.1 as to whether the accident had occurred
due to rash and negligent driving of the offending vehicle by its driver
and having considered the evidence of PW.2, an eye witness to the
accident, coupled with the documentary evidence i.e., Ex.A-1-FIR and
Ex.A-2-CC of final report, came to the conclusion that the accident
occurred due to the rash and negligent driving of the driver of the
offending vehicle and has answered in favour of the petitioners and
against the respondents. In view of the judgments mentioned above of
the Hon'ble Apex Court with regards to the credibility of F.I.R. even in
cases of delay, there are no reasons to interfere with the Tribunal's
finding that the accident occurred due to the rash and negligent
driving of the driver of the offending vehicle.
18. Insofar as the quantum of compensation is concerned, the
deceased was aged 51 years at the time of the accident. PW.3, the
drawing officer of the deceased, deposed that the deceased worked as
a Record Assistant in the office of the Zilla Parishad High School,
Gopalpet and drawing a net salary of Rs.53,772/- as per Ex.A-8-
Salary Certificate. Though the 2nd respondent cross-examined PW.3,
nothing is elicited to disbelieve the salary particulars of the deceased.
SP,J and RRN,J
Therefore, the Tribunal took the net monthly income of the deceased
at Rs.53,772/-, and the annual income as Rs.6,45,264/-.
19. The question involved in the present case is whether the gross
income or the net income of the deceased is to be considered for the
purpose of the computing the compensation. The said question was
answered by the Hon'ble Apex Court in National Insurance Co. Ltd.
v. Indira Srivastava 4, wherein it was held as follows:
"9. The term "income" has different connotations for different purposes.
A court of law, having regard to the change in societal conditions must
consider the question not only having regard to pay-packet the employee
carries home at the end of the month but also other perks which are
beneficial to the members of the entire family. Loss caused to the family
on a death of a near and dear one can hardly be compensated on
monetary terms."
20. A similar view was taken by the Hon'ble Apex Court in
Shyamwati Sharma v. Karam Singh 5, wherein it held:
"9. In this case as the annual income has been worked out as Rs.
2,48,292, appropriate deduction has to be made towards income tax.
The rate of income tax is a varying figure, with reference to taxable
income after permissible deductions and the year of assessment. The
High Court has assessed the deduction as 30% and on the facts, we do
not propose to disturb it. We however make it clear that while
ascertaining the income of the deceased, any deductions shown
in the salary certificate as deductions towards GPF, life
insurance premium, repayments of loans, etc. should not be
excluded from the income. The deduction towards income
tax/surcharge alone should be considered to arrive at the net
income of the deceased."
(emphasis supplied)
(2008) 2 SCC 763
(2010) 12 SCC 378
SP,J and RRN,J
21. The above mentioned judgments of the Hon'ble Apex Court
clearly held that the deductions shown in the salary certificate such
as deductions towards GPF, life insurance premium, etc., are
beneficial to the members of the victim's family, and they are not to
be excluded while considering the income of the deceased for the
purpose of granting compensation. The Tribunal erroneously
considered the net salary of the deceased while computing the income
and the same warrants the interference of this Court. Accordingly, the
deceased's gross salary is considered for the purpose of awarding the
compensation. A perusal of Ex-A.8 Salary Certificate shows the gross
monthly income of the deceased as Rs.61,137/-. Hence, the gross
annual income of the deceased comes to Rs.7,33,644/-. Further, the
Tribunal erred by not deducting the professional tax and the income
tax payable by the deceased. Accordingly, the income tax payable on
the said amount, i.e., Rs.7,33,644/- is:- upto Rs.2,50,000/-: NIL;
From 2,50,001 to Rs.5,00,000/- (5%): 12,500/-; Rs.5,00,001/- to
7,33,644/- (20%): 46,730/-. Hence, the total income tax liability
comes to Rs.59,230/- [Rs.12,500/-+Rs.46,730/-]. The professional
tax applicable is Rs.2,400/- [Rs.200/- x 12] and accordingly, the
annual income comes to Rs.6,72,014/- [Rs.7,33,644/- (minus)
Rs.59,230/- (minus) Rs.2,400/-]. The Tribunal rightly considered
15% towards future prospects as per the decision of the Hon'ble Apex
SP,J and RRN,J
Court in National Insurance Company Limited Vs. Pranay Sethi 6,
and accordingly, the annual income of the deceased arrives at
Rs.7,72,816/- [Rs.6,72,014/-+ Rs.1,00,802/-]. The Tribunal rightly
deducted 1/4rd towards the personal expenditure of the deceased
since the claimants are four in number, in terms of Pranay Sethi
(supra). After deducting 1/4th towards personal expenses of the
deceased, the income arrives at Rs.5,79,612/- [Rs.7,72,384/- (minus)
Rs.1,93,204/-]. Further, the Tribunal rightly took the multiplier as
'11' in terms of the decision of the Hon'ble Apex Court in Sarla
Verma v. Delhi Transport Corporation 7, and after applying the said
multiplier, the total loss of dependency comes to Rs.63,75,732/-.
22. The Tribunal granted an amount of Rs.40,000/- towards
consortium and Rs.15,000/- each towards loss of estate and funeral
expenses, which needs to be modified. As per Pranay Sethi (supra),
petitioner No.1 is entitled to a sum of Rs. 48,400/- (Rs. 40,000/-
+10%+10%) towards loss of spousal consortium. The petitioners are
also entitled to a sum of Rs. 36,300/- (Rs.15,000/- + Rs. 15,000/- +
10% + 10%) towards loss of estate and funeral expenses.
23. Therefore, the order dated 15.10.2022 passed by the Tribunal in
MVOP.No.83 of 2021 is modified as follows:-
2017 (16) SCC 680.
2009 ACJ 1298 (SC)
SP,J and RRN,J
S.No. Particulars Amount
1. Annual salary of the Rs.7,33,644/-
deceased(Rs.61,137/-X 12)
2. Less: Professional Tax (-)Rs.2,400/-
(Rs.200/- x 12)
3. Less: Income Tax (-)Rs.59,230/-
4. Net Income [1-(2+3)] Rs.6,72,014/-
4. Add: 15% Future Prospects Rs.1,00,802/-
5. Sub-Total Rs.7,72,816/-
6. Less: 1/4th towards Personal (-)Rs.1,93,204/-
Expenditure
7. Sub-Total [5-6] Rs.5,79,612/-
8. Total Loss of Dependency Rs.63,75,732/-
(Rs.5,81,682/- x 11)
9. Add : Conventional Heads Rs.36,300/-
(Funeral Expenses and Loss of
Estate)
(Rs.15,000/- + Rs.15,000/-
+10%+10%)
10. Add: Loss of spousal Rs.48,400/-
consortium (Rs.40,000/-
+10%+10%)
11. Total Compensation Rs.64,60,432/-
24. The Tribunal has rightly awarded the rate of interest at 7.5%
per annum, which requires no interference from this Court.
25. Accordingly, the M.A.C.M.A. is disposed of by modifying the
order and decree dated 15.10.2022 passed in MVOP No.83 of 2021.
The compensation amount awarded by the Tribunal is enhanced from
SP,J and RRN,J
Rs.61,91,962/- to Rs.64,60,432/- (Rupees Sixty Four Lakh Sixty
Thousand Four Hundred Thirty Two Only) with interest @ 7.5 % p.a.
from the date of petition till the date of realization. Respondent Nos. 1
and 2 are directed to deposit the said amount with costs and interest,
after giving due credit to the amount already deposited, if any, within
a period of two months from the date of receipt of a copy of this
judgment. On such deposit, the petitioners are permitted to withdraw
the said amount in the same manner and ratio as apportioned by the
Tribunal. No order as to costs.
As a sequel, miscellaneous petitions, if any pending, shall
stand closed.
________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
August 2024
Prv
Note:
L/R copy is to be marked
