Telangana High Court
The Bajaj Allianz General Insurance Co. ... vs Thammanaveni Padma on 30 August, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.760 OF 2019
JUDGMENT:
1. Aggrieved by the Award dated 20.08.2018 passed in
O.P.No.16 of 2017, on the file of the learned Motor Accidents
Claims Tribunal -cum- III Additional District Judge, Asifabad, the
3rd respondent in the said O.P./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, children and parents of the deceased-Sri T.Ilaiah,
filed a petition under Section 166 of the Motor Vehicles Act, 1988
against the respondents 1 to 3 claiming compensation of
Rs.23,60,000/- on account of the death of the deceased-T.Ilaiah in
a Motor vehicle accident that occurred on 04.05.2012 at about
09.30 p.m. and respondent No.4 is the General Manager of the
Auto Mobile Show Room, who got added as per orders in
I.A.No.659 of 2017, dated 18.01.2018. As stated by the
petitioners, on 04.05.2012 at about 9.30 p.m., when the deceased-
T.Ilaiah was proceeding on his Auto bearing No.AP-01-Y-803 and
when he crossed near Sowbhagya Toll Plaza at Kasipet, one Tractor
MGP,J
bearing No.AP-01-Y-3725, which came there in a rash and
negligent manner at high speed, dashed the Auto of the deceased.
As a result, the Auto fell down and the deceased sustained Head
injury and immediately, he was shifted to Sairam Multi Speciality
Hospital, Karimnagar, where he was treated as inpatient and while
undergoing treatment, the deceased succumbed to injuries on
05.05.2012 at 6.00 PM. It is further submitted by the petitioners
that at the time of accident, the deceased was aged 29 years and
was earning Rs.15,000/- per month by working as Auto driver and
was contributing the same for the welfare and maintenance of the
family and due to his untimely death in the accident, the
petitioners lost their source of income and put to sufferance.
Hence filed claim petition seeking compensation of Rs.23,60,000/-
against the respondent Nos.1 to 3, who are the driver, owner and
insurer of the subject Tractor bearing No.AP-01Y-3725.
4. Respondent No.1, who is the driver of the subject Tractor,
remained ex-parte. Respondent No.2, who is the owner of the
Tractor, filed his written statement stating that as the Tractor was
insured with respondent No.3 and that the policy was in force as
on the date of accident, as such, respondent No.2 is not liable to
pay any compensation. Respondent No.3, who is the insurer of the
subject Tractor, filed its counter stating that there is no insurance
policy given by respondent No.3 and that the cover note mentioned
MGP,J
in the petition was issued to another person, as such, respondent
No.3 is not liable to pay any compensation. It is further contended
that the driver of the subject Tractor do not possess valid driving
license and that the petitioners have to prove the manner of
accident, age, occupation, income of deceased and loss of income
and that the quantum of compensation sought is excess and
exorbitant and hence prayed to dismiss the claim against it.
5. Respondent No.4, who is General Manager of Auto Mobile
Show Room, filed his counter stating that respondent No.2
produced insurance policy of respondent No.3 in April, 2011 and
took the Tractor for Pooja and subsequently obtained Bank loan
and then paid sale consideration and took delivery of Tractor in the
month of June, 2011 and that the Insurance policy produced by
respondent No.2 was submitted to RTA officials and based on it,
registration was done and that respondent No.4 did not collect
insurance amount from respondent No.2 and that the petitioners
unnecessarily made him as a party to the petition, as such, the
claim petition is liable to be dismissed against him.
6. Based on the rival contentions made by the parties, the
learned Tribunal had framed the following issues for
consideration:-
MGP,J
1. Whether Thammanaveni Ilaiah died in the accident that
occurred on 04.05.2012 at about 9.30 p.m., near Toll
plaza, Kasipet, within the limits of P.S., Kasipet?
2. Whether the said accident occurred due to rash and
negligent driving of Tractor bearing No.AP-01-Y-3725?
3. Whether the petitioners are entitled to claim
compensation for the death of Thammanaveni Ilaiah, if so
how much? and against which of the respondents?
4. Whether the tractor involved in the accident has valid
insurance on the date of accident?
5. To what relief?
7. Before the Tribunal, on behalf of the petitioners, the 1st
petitioner was examined as PW1, got examined PW2, who is an eye
witness to the accident and got marked Exs.A1 to A6 on their
behalf.
8. On behalf of Respondent No.3/Insurance Company, one
Senior Executive Legal Officer was examined as RW1 and through
him, Exs.B1 to B3 were marked.
9. Respondent No.2, who is the owner of the subject Tractor,
examined himself as RW2 and got marked Ex.B4 on his behalf.
10. On behalf of respondent No.4, one representative of their
Company was examined as RW3.
11. After considering the evidence and documents filed by both
sides, the learned Tribunal had partly-allowed the claim petition of
the petitioners by awarding compensation of Rs.8,66,200/- with
MGP,J
costs and interest @ 9% per annum from the date of filing of
petition till the date of realization against the respondent Nos.1 to
3 jointly and severally. Aggrieved by the same, the present Appeal
is filed by the Insurance Company, who is arrayed as respondent
No.3 in O.P.
12. Heard arguments on both sides and perused the material
available on record.
13. The contentions of the learned Standing Counsel for
appellant/Insurance Company are that the Insurance Company
never issued any policy to the crime vehicle and the cover note
produced before the Tribunal was fake and fabricated one. It is
also contended that the owner of the crime vehicle has created a
fake and fabricated cover note and a perusal of cover note bearing
No.MC1001490039 shows that it was issued in favour of
Mr.Vodeepalli Mallesh for the period from 10.06.2011 to
09.06.2012 for the Tractor and Trailer bearing Engine No.NCPLG
151 and Chassis No.NCPLG151, but not to the Tractor bearing
No.AP-01-Y-3725 and AP-01-Y-3726 belonging to Mr.Gopathi Raju.
It is further contended that the learned Tribunal erred in fixing
liability on par with the owner of the Tractor solely on the ground
that the Insurance Company has a tie up with respondent No.8
herein, who is the dealer of Tractor and who used to issue blank
cover notes and collects premium once in 15 days and hence, they
MGP,J
should be held responsible to indemnify the petitioners and hence,
the Insurance Company ought to have been exempted from its
liability. It is also contended that the learned Tribunal granted
excess amounts under the head of non-pecuniary damages which
is limited to Rs.70,000/- as per the judgment of the Hon'ble
Supreme Court in National Insurance Company Ltd., Vs. Pranay
Sethi & others and that the learned Tribunal ought not to have
awarded interest @ 9 % per annum and hence, prayed to allow the
appeal by setting aside the order of the learned Tribunal.
14. On the other hand, learned counsel for the
respondents/claim petitioners contended that it is clear from the
evidence of RWs 1 to 3 that there is insurance tie up with
respondent No.3/Insurance Company and respondent No.4/Dealer
of Mahindra Tractor to fill up the cover notes before giving them to
owner of vehicles and having undertaken to give insurance policies
based on the said cover notes, the mistake, if any, committed
would be by respondent No.3 or respondent No.4 for which the
third parties/claim petitioners cannot be made to suffer. Hence,
respondent No.3/Insurance Company is liable to pay
compensation to the petitioners and further contended that the
learned Tribunal erred in deducting 1/3rd towards personal
expenses instead of 1/4th and also erred in considering future
MGP,J
prospects @ 35% instead of 40% and hence prayed to enhance the
same by awarding just compensation to the petitioners.
15. Now the point that emerges for determination is,
Whether the order passed by the learned Tribunal suffers
from any irregularity?
POINT:-
16. 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 PW2, who is an eye witness to the accident and
got marked Exs.A1 to A8 on their behalf. On behalf of the
respondents, RWs 1 to 3 were examined and Exs.B1 to B4 were
marked. A perusal of Ex.A1-FIR discloses that Police of Kasipet
Police Station registered a case in Crime No.35 of 2012 under
Section 337 IPC against the driver of the Tractor and Trolley
bearing Nos.AP-01Y-3725 and AP-01Y-3726, conducted
investigation and laid charge sheet under Ex.A2 for the offence
punishable under Sections 304-A IPC and Section 181 of the
Motor Vehicles Act. Ex.A3 is the inquest report which says that
the death of the deceased was due to rash and negligent driving of
the driver of Tractor Bearing No.AP-01Y-3725. Ex.A4 is the Post-
mortem examination report wherein the cause of death was due to
'Haemorrhage and shock' on account of 'Head injury'. Ex.A5 is the
MGP,J
Motor Vehicle Inspector report wherein the occurrence of accident
was not due to any mechanical defect in the vehicle. Ex.A6 is the
Accident information report under Form 54. Ex.A7 is the original
SSC certificate of the deceased and Ex.A8 is the Driving license of
the deceased. (Ex.A7 & A8 are marked with consent).
17. PW2, who is working as a Toll Gate Cashier and who is an
eye witness to the incident, deposed in his evidence that on
04.05.2012 at about 9.15 P.M, near Sowbhagya Tole gate of
Somagudem Village of Kasipet Mandal, one Tractor bearing No.AP-
01Y-3725 along with Trolley bearing No.AP-01Y-3726, which is
loaded by sand, came in a rash and negligent manner and dashed
the Auto coming in the opposite direction. As a result, the driver of
the Auto fell down, sustained injuries and died.
18. Therefore, from the evidence of PWs 1 & 2 coupled with
Exs.A1 to A6, it is clear that the death of the deceased was due to
rash and negligent driving of the driver of the Tractor and Trolley
bearing Nos.AP-01Y-3725 and AP-01Y-372615 and the same is not
disputed by any of the parties.
19. It is the contention of the learned Standing Counsel for
appellant/Insurance Company that the Insurance Company never
issued any policy to the crime vehicle and the cover note produced
before the Tribunal was fake and fabricated one.
MGP,J
20. In this regard, it is pertinent to refer to the evidence of RW1,
who is working as Senior Executive Legal in their Company. He
deposed that their company never issued any policy in favour of
the respondent No.2-Gopathi Raju in respect of Tractor and Trailer
bearing No.AP-01Y-3725 and AP-01Y-3726 at any point of time,
more particularly the cover note bearing No.MC1001490039. He
further deposed that as per office records, the office copy of cover
note bearing No.MC1001490039 (Ex.B2) and its insurance policy
(Ex.B3) are related to one Mr.Vodeepalli Mallesh in respect of his
Tractor with Engine No.NCPLG151 and Chassis No.NCPLG151 vide
policy number OG-12-1810-1811-00000132 with coverage period
from 10.06.2011 to 09.06.2012. Hence, the subject Tractor and
Trailer bearing Nos.AP-01Y-3725 and AP-01Y-3726, which caused
the accident, was not at all insured with the respondent
No.3/Insurance Company. Further, there is no mention about
Tractor number or chassis number or Engine number in Ex.B4
which makes it clear that it is a fabricated one and the same
cannot be taken into consideration.
21. Further, a perusal of Ex.B4- Copy of cover note which was
marked through respondent No.2, who is the owner of the subject
Tractor, shows that it was not valid for risk starting before
16.03.2011 and after 15.06.2011. As the date of accident is
MGP,J
04.05.2012, the said cover note becomes invalid and the same
cannot be taken into consideration.
22. In view of the above discussion, this Court considers that
Ex.B4-cover note is false and fabricated one and as it is proved
that the Insurance Company has not issued any policy in favour of
respondent No.2 in O.P./owner of the Tractor, hence, it cannot be
made liable to pay compensation to the petitioners along with
respondent Nos.1 &2, who are the driver and owner of the subject
Tractor. Therefore, this Court is inclined to interfere with the
finding of the learned Tribunal and hereby exempts the Insurance
Company from its liability in paying compensation to the
petitioners.
23. Coming to the quantum of compensation, as there is no
documentary proof filed by the petitioners to show that the
deceased used to earn Rs.15,000/- per month by working as Auto
driver, the learned Tribunal took the wages of daily wage earner
and considering the date of accident, fixed the monthly income of
the deceased @ Rs.4,000/-, which this Court finds reasonable and
needs no interference. As the age of the deceased is less than 40
years, 40% is added towards his future prospects. Hence, the net
monthly income of the deceased comes to Rs.5,600/-. Though the
number of dependants are five in number, but the learned Tribunal
did not consider petitioner No.5, who is father of the deceased, as a
MGP,J
dependant as he is a retired employee of Singareni Collieries
Company Limited and is drawing monthly pension and hence
deducted 1/3rd of income by considering the number of
dependants as 4. This Court, by relying upon the decision of the
Hon'ble Apex Court in Smt.Sarla Verma & Ors. Vs. Delhi Transport
Corporation & Anr. 1 , wherein, it is held that if the number of
dependant family members is 4-6, then 1/4th of the income should
be deducted towards personal and living expenses of the deceased,
is inclined to interfere with the finding of the learned Tribunal and
hereby deduct 1/4th of the income instead of 1/3rd. towards the
personal and living expenses of the deceased which comes to
Rs.4,200/- per month Rs.50,400/- per annum. After applying the
relevant multiplier '16' as per the age of the deceased, then the
total loss of income comes to Rs.8,06,400/-.
24. It is the contention of the learned Standing Counsel for
Insurance Company that the learned Tribunal granted excess
amounts under the head of non-pecuniary damages which is
limited to Rs.70,000/- as per the judgment of the Hon'ble Supreme
Court in National Insurance Company Ltd., Vs.Pranay Sethi &
others and also awarded excess interest @ 9 % per annum. 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
AIR 2009 SUPREME COURT 3104
MGP,J
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 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 Hon'ble Apex Court in
Magma General Insurance Company Limited v. Nanu Ram @
Chuhru Ram and others 2. Hence, the total compensation comes
to Rs.9,63,400/-.
25. This Court by relying upon the decision of the Hon'ble Apex
Court in Surekha & Ors. Vs.Santosh & Ors 3, wherein the Hon'ble
Apex Court held that the claimants are entitled to just
compensation even though there is no cross-appeal or cross-
objections, hereby award total compensation of Rs.9,63,400/- to
the claimants.
26. Also, this Court, by relying upon the decision of the Hon'ble
Apex Court in Rajesh and others v. Rajbir Singh and others 4,
(2018) 18 SCC 130
2020 ACJ 2156
4 2013 ACJ 1403 = 2013 (4) ALT 35
MGP,J
reduces the rate of interest granted by the Tribunal from 9% per
annum to 7.5% per annum.
27. In the result, the Appeal filed by the Insurance Company is
partly-allowed by reducing the amounts awarded under the Head
of Non-pecuniary damages from Rs.1,75,000/- to Rs.77,000/- and
also reducing the rate of interest granted by the Tribunal from 9%
per annum to 7.5% per annum. However, the respondents/claim
petitioners are awarded a total compensation of Rs.9,63,400/-
which was enhanced from Rs.8,66,200/- and which carries
interest @ 7.5% per annum payable by respondent Nos.6 & 7 in the
Appeal, who are the Driver and Owner of the Tractor, within a
period of 2 months from the date of receipt of a copy of this order.
Upon such payment made, the respondents/claim petitioners are
entitled to withdraw the enhanced compensation as per the
apportionment made by the learned Tribunal. However, it is also
made clear that the liability imposed against the
appellant/Insurance Company shall stand dismissed. There shall
be no order as to costs.
28. Miscellaneous petitions pending, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Dt.30.08.2024
ysk
