Telangana High Court
Bajaj Allianz General Insurance ... vs R Venkataiah, Nalgonda Dist And 5 Others on 6 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.Nos.836 and 3324 of 2017
COMMON JUDGMENT:
1. These Motor Accident Civil Miscellaneous Appeals are
directed against order and decree dated 05.01.2017 on the file of
the Chairman, Motor Accidents Claims Tribunal-cum-I Additional
District Judge at Nalgonda (hereinafter referred to as 'Tribunal').
The said claim petition was filed by the petitioners therein seeking
compensation for death of one Rainaboina Sathyanarayana
(hereinafter referred to as 'deceased') and the same was partly
allowed granting compensation of Rs.4,70,000/-. Aggrieved by the
said order, respondent No.2 before the Tribunal has filed
M.A.C.M.A.No.836 of 2017 seeking to set aside the impugned
order and dismiss the claim petition and the petitioners before the
Tribunal filed M.A.C.M.A.No.3324 of 2017 seeking enhancement of
compensation granted by the Tribunal. Since both the appeals
are arising out of same order and decree, they are being dealt with
by way of this common judgment.
2. The petitioners before the Tribunal are appellants in
M.A.C.M.A.No.3324 of 2017 and respondent Nos.1 to 5 in
M.A.C.M.A.No.836 of 2017. Respondent No.1 before the Tribunal
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
is respondent No.6 in M.A.C.M.A.No.836 of 2017 and respondent
No.1 in M.A.C.M.A.No.3324 of 2017. Respondent No.2 before the
Tribunal is appellant in M.A.C.M.A.No.836 of 2017 and
respondent No.2 in M.A.C.M.A.No.3324 of 2017. For the sake of
convenience, the parties are hereinafter referred to as they were
arrayed before the Commissioner.
3. It is the case of the petitioners that petitioner Nos.1 and 2
are parents, petitioner Nos.3 and 4 are brother and sister and
petitioner No.5 is grandmother of the deceased. On 02.11.2013,
the deceased boarded auto bearing No.AP 24 TC 0267 at Haliya in
order to go to his village Vaddipatla along with other passengers.
On the way, at about 08:30 am, when the said auto reached near
Thumma Chettu X road, Peddavoora Mandal, one DCM bearing
No.AP 21 W 0146 (hereinafter referred to as 'crime vehicle') coming
from Nagarjuna sagar side proceeding towards Peddavoora side
driven in rash and negligent manner at high speed dashed the
auto. As a result, accident occurred and the deceased along with
other inmates and driver of the said auto sustained injuries.
Immediately, the deceased was shifted to Kamala Nehru Hospital,
Nagarjuna Sagar, for treatment and subsequently, he was shifted
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
to Omni Hospital, Hyderabad, for better treatment. The accident
occurred due to rash and negligent driving of driver of DCM
bearing No.AP 21 W 0146. Hence, the matter was reported to
police and Police Peddavoora registered case in Crime No.134 of
2013.
4. It is further case of the petitioners that the deceased was
aged about 21 years as on the date of the accident and he was
earning an amount of Rs.400/- per day by working as a mason.
The deceased was hale and healthy before the accident and he
used to contribute the entire earnings to the petitioners, who are
his dependents. In the said circumstances, the present claim
petition is filed by the petitioners seeking compensation of
Rs.6,00,000/- under various heads from respondent Nos.1 and 2,
who are owner and insurer of the crime vehicle respectively.
5. Respondent No.1 remained ex parte. Respondent No.2 filed
its counter denying the manner of the accident, age, income and
health condition of the deceased. It is also contended that the
driver of the crime vehicle was not having valid driving license at
the time of the accident. Further, the compensation claimed by
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
the petitioners is excess. Hence, prayed to dismiss the claim
petition.
6. In support of their case, the petitioners got examined
petitioner No.2 as P.W.1 and also got examined P.W.2 and got
marked Exs.A-1 to A-5. On behalf of respondent No.2, R.Ws.1
and 2 were got examined and Exs.B-1 to B-4 were got marked.
Further, Exs.X-1 and X-2 were also got marked.
7. On the basis of the above pleadings, the following issues
were framed by the Tribunal:
"1. Whether the deceased died due to rash and negligent
driving of the driver of DCM bearing No.AP 21 W 0146?
2. Whether the petitioners are entitled for compensation, if so,
to what amount and from whom?
3. To what relief?"
8. After considering the pleadings and evidence on record, the
Tribunal held that the petitioners have successfully proved their
case. Hence, the claim petition was partly allowed holding that
respondent Nos.1 and 2 are jointly and severally liable to pay
compensation and granted an amount of Rs.4,70,000/- towards
compensation payable to the petitioners.
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
9. Heard both sides.
10. Learned counsel for the appellant in M.A.C.M.A.No.836 of
2017/respondent No.2 i.e., the insurance company contended
that the Tribunal erred in granting compensation without
considering that the driver of the crime vehicle was not holding
valid driving license as on the date of the accident. Hence, prayed
to allow the M.A.C.M.A.No.836 of 2017 and set aside the
impugned order passed by the Tribunal.
11. Per contra, the learned counsel for appellants in
M.A.C.M.A.No.3324 of 2017/petitioners contended that the
Tribunal considered the salary of the deceased on lower side and
granted meager amount towards compensation. It is also
contended that the Tribunal failed to grant future prospects and
also granted meager amounts under conventional heads. Hence,
prayed to allow the M.A.C.M.A.No.3324 of 2017 and enhance the
compensation granted by the Tribunal.
12. Now the point for determination is as follows:
"1. Whether the Tribunal erred in granting compensation
to the petitioners as contended by the respondent
No.2/insurance company?
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
2. Whether the petitioners are entitled for enhancement of
compensation, which is granted by the Tribunal as prayed
for?"
Point Nos.1 and 2:
13. This Court has perused the entire evidence and material
placed on record. Petitioner No.2 was examined as P.W.1 and she
got marked Exs.A-1 to A-5, in support of the case of the
petitioners. P.W.1 is mother of the deceased and she filed her
evidence affidavit reiterating the contents of the claim petition.
P.W.1 did not witness the accident, therefore, to prove the
occurrence of the accident, the petitioners got examined P.W.2,
who is eyewitness to the incident. P.W.2 deposed that while they
were going in the auto, the deceased was very much present in the
auto on the date of the accident and the accident occurred due to
the rash and negligent driving of the driver of the crime vehicle,
which came from Nagarjunasagar side and dashed the auto in
which they were travelling. As a result of the accident, all the
passengers in the auto sustained injuries and they were shifted to
Kamala Nehru Hospital, Nagarjunasagar, for treatment.
Subsequently, as the condition of the deceased was serious, the
deceased was shifted to Omni Hospital, for better treatment and
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
he died on the next day while undergoing treatment. Though,
P.Ws.1 and 2 were cross-examined, nothing contrary was elicited
to disprove the case set up by them.
14. Respondent No.2 got examined its Senior Executive Legal as
R.W.1. R.W.1 deposed that the accident took place due to rash
and negligent driving of the driver of auto bearing No.AP 24 TC
0267. He also deposed that the crime vehicle was goods carrying
commercial transport vehicle and at the time of the accident also
the vehicle was used for transportation of goods. However, the
driver of the crime vehicle was not holding valid and effective
driving license to drive a goods carrying commercial transport
vehicle. Therefore, there is breach of conditions of the insurance
policy, as such, respondent No.2 is not liable to pay compensation
to the petitioners for the death of the deceased. In the cross-
examination, he admitted that the police filed charge sheet
showing that the crime vehicle was at fault. He also admitted that
the driver of the crime vehicle was having driving license to drive
the DCM van, but it is non-transport driving license.
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
15. Respondent No.2 summoned Road Transport Authorities
and got examined R.W.2, who is Administrative Officer at R.T.O.
Office, Nagarkurnool. R.W.2 deposed that the driver of the crime
vehicle was holding driving license and was authorized to drive
LMV non-transport, MTL transport, MCWG non-transport, TVEH
transport. He stated that the driver of the crime vehicle was
holding LMV transport and non-transport category license and
stated that he was not authorized to drive heavy goods vehicle. He
further deposed that DCM does not come under Light Motor
Vehicle and that person holding license under the category of LMV
can driver the vehicle of upto 7500 kgs and the DCM vehicle
unladen weight is 10500 kgs. In the cross-examination, he
admitted that the DCM vehicle falls under medium goods vehicle.
16. Admittedly, Ex.A-1 copy of First Information Report, Ex.A-2
copy of inquest report, Ex.A-3 copy of postmortem examination
report, Ex.A-4 copy of charge sheet and Ex.A-5 copy of the Motor
Vehicle Inspector report clearly discloses that on 02.11.2013, the
deceased boarded auto bearing No.AP 24 TC 0267 at Haliya to go
to his village Vaddipatla along with other passengers and on the
way at about 08:30 AM, when the said auto reached near
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
Thumma Chettu X Road, Peddavoora Mandal, the crime vehicle
came from Nagarjunasagar side driven in rash and negligent
manner by its driver and dashed the auto. As a result of which,
the deceased and other inmates of the said auto sustained injuries
including the driver. Due to the said accident, the deceased
sustained injuries and died while undergoing treatment. The said
documents clearly establish the occurrence of the accident,
involvement of crime vehicle in the said accident driven by its
driver in rash and negligent manner and also death of the
deceased.
17. It is also pertinent to state that the Police Peddavoora have
registered FIR under Ex.A-1 and after thorough investigation filed
charge sheet under Ex.A-4. The said documents clearly disclose
that police filed charge sheet only against the driver of the crime
vehicle i.e., DCM bearing No.AP 21 W 0146 and not against any
other persons. This clearly shows that there was no negligence on
the part of the auto driver in which the deceased was travelling
and the negligence was only attributed to the driver of the crime
vehicle. Furthermore, the evidence of P.W.2 clearly shows that the
accident occurred due to rash and negligent driving of the driver of
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
the crime vehicle. Hence, this Court is of the opinion that the
Tribunal has rightly considered that the accident occurred only
due to the negligence on the part of the driver of the crime vehicle.
18. The main contention of the learned counsel for the appellant
in M.A.C.M.A.No.836 of 2017/respondent No.2 i.e., the insurance
company is that the Tribunal erred in granting compensation
without considering that the driver of the crime vehicle was not
holding valid driving license as on the date of the accident, as
such respondent No.2 is not liable to pay compensation, more
particularly in view of the violation of policy conditions. It is
pertinent to state that the driver of the crime vehicle was holding
driving license and extract of the same was marked through R.W.1
under Ex.B-2 and also through R.W.2 under Ex.X-2. However,
the driver of the crime vehicle was authorized to drive LMV non-
transport, MTL transport, MCWG non-transport, TVEH transport.
The driver of the crime vehicle was holding LMV transport and
non-transport category license. The crime vehicle is DCM van,
which is a Medium Motor Vehicle - transport for commercial use.
However, R.Ws.1 and 2 clearly admitted in their cross-
examination that the driver of the crime vehicle was holding
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
driving license. R.W.2 also admitted that he is not technically
qualified person. It is pertinent to note that if at all the driver of
the crime vehicle was not holding valid and effective driving
license, certainly the Police, Peddavoora Police Station would have
registered the case against the driver of the crime vehicle for
violation of the provisions of Motor Vehicle Act, 1988 also, but
there is no such instance in the present case.
19. It is also pertinent to state that even for the sake of
arguments if we accept the contention of the learned counsel for
appellant in M.A.C.M.A.No.836 of 2017/respondent No.2 as true,
mere absence, fake or invalid driving licence or disqualification of
the driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. Moreover, the policy conditions regarding driver not
holding valid and effective driving license at the time of accident
cannot be considered as fundamental breach that had contributed
to the cause of the accident to discharge the respondent
No.2/insurance company from the liability. In the said
circumstances, this Court is of the considered opinion that the
Tribunal after considering all the aspects has held that petitioners
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
have successfully proved their case beyond reasonable doubt and
held that both the respondents are jointly and severally liable to
pay compensation. The appeal filed by respondent No.2 i.e.,
insurance company is devoid of merits and the same is liable to be
dismissed.
20. Coming to the quantum of compensation, it is the case of the
petitioners that the deceased was working as mason and was
earning an amount of Rs.400/- per day. However, the Tribunal
did not consider the same as no income proof was filed by the
petitioners in support of their contention. Hence, the Tribunal
has taken the income of the deceased as Rs.4,000/- per month.
This Court is of the considered opinion that the said income is on
lower side. Therefore, this Court is inclined to consider the
monthly income of the deceased at Rs.5,000/- per month.
21. The Tribunal based on the postmortem examination report
under Ex.A-3 determined the age of the deceased as 21 years.
Admittedly, the Tribunal has not granted any amount towards
future prospects of the deceased. The monthly salary of the
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
deceased is considered at Rs.5,000/- per month. In view of the
decision of the Apex Court in Sarla Varma v. Delhi Transport
Corporation and another 1, 50% of the salary has to be deducted
towards personal expenses of the deceased, as he was bachelor.
Hence, after deduction of personal expenses, the monthly salary of
the deceased comes to Rs.2,500/- (50% of Rs.5,000/-). Further,
as per the decision of the Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and others 2,
40% towards future prospects can duly be added to the
established income of the deceased. The monthly income of the
deceased comes to Rs.3,500/- [Rs.2,500/- + Rs.1,000/-(40% of
Rs.2,500/-)]. Further, as per Sarla Varma (cited 2nd supra), the
appropriate multiplier is '18' as the deceased was 21 years old at
the time of the accident. Thus, applying the multiplier '18', the
total loss of dependency comes to Rs.7,56,000/- (Rs.3,500/- X 12
months X 18). In addition to that, the deceased being a bachelor
is entitled for Rs.30,000/- under conventional heads. Hence, in
all the total quantum of compensation comes to Rs.7,86,000/-.
2009 (6) SCC 121
2017 ACJ 2700
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
The Tribunal has granted an amount of Rs.4,70,000/- towards
compensation. Hence, the same is enhanced to Rs.7,86,000/-.
22. Coming to the interest on compensation amount, the
Tribunal has awarded interest at 7.5% per annum on the amount
of compensation. This Court does not find any reason to interfere
into the same as the same is reasonable.
23. In the result, M.A.C.M.A.No.836 of 2017 is dismissed and
M.A.C.M.A.No.3324 of 2017 is allowed by enhancing
compensation granted by the Tribunal from Rs.4,70,000/- to
Rs.7,86,000/- along with interest as granted by the Tribunal
payable by both the respondents jointly and severally. The
respondents are directed to deposit the enhanced amount to the
credit of O.P. along with accrued interest within a period of two
months from the date of receipt of copy of this judgment. On such
deposit, the petitioners before the Tribunal are permitted to
withdraw the entire amounts as apportioned to them by the
Tribunal. The enhanced amount shall be paid to the petitioners
subject to payment of deficit Court fee, if any. There shall be no
MGP,J
MACMA_836_2017
&
MACMA_3324_2017
order as to costs. Miscellaneous applications, if any, pending
shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 06.02.2024
GVR
