Telangana High Court

M/S United India Insurance Co. Ltd. vs Katkuri Padma And 4 Others on 8 February, 2024

      HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                    M.A.C.M.A.NO.112 OF 2021

JUDGMENT:

Heard learned standing counsel Sri A.Ramakrishna Reddy

for the appellant-insurance company and Sri. Vladimeer

Khatoon, learned counsel for respondents-claimants.

2. The present appeal has been filed by the appellant/

insurance company challenging the award passed by the

Chairman, Motor Accident Claims Tribunal-cum-XII Additional

Chief Judge, City Civil Court, Secunderabad (for short,

'Tribunal') in M.V.O.P.No.372 of 2017, dated 20.05.2020,

thereby seeking to set-aside the award against the insurance

company.

3. The brief factual matrix of the present appeal is as under.

4. On 17.07.2017 at about 11.00 a.m., while the deceased

i.e., K.Lingaiah, was standing at Naspur gate on NH-63 in order

to cross the road, the driver of the Bus bearing registration

No.AP-09-T-0121, drive the bus in rash and negligent manner

with high speed and dashed the deceased, as a result, he LNA,J

received grievous injuries. Immediately, he was shifted to Area

Government Hospital, Mancherial and from there, he was

shifted to Gandhi Hospital, Secunderabad for better treatment.

On 08.08.2017 the deceased succumbed to the injuries while

undergoing treatment. The Police, P.S. CCC Naspur registered a

case in Crime No.132/2017 and filed charge sheet.

5. The claimants, i.e., wife and children of the deceased,

have filed claim petition against driver, owner of the crime

vehicle and insurance company under Section 166 of MV Act,

1988, Rules 475/18 of APMV Act Rules, 1989 r/w Section

140(c) of MV Act, before the Tribunal claiming compensation of

Rs.15,00,000/- together with costs and interest from the date of

accident till realization.

6. The deceased was aged 50 years and was doing fish

business and thereby earning Rs.15,000/- per month and used

to contribute the same to the welfare of his family and because

of death of deceased, petitioners have lost their love and

affection and they become destitute. The deceased was hale and

healthy by the date of accident.

LNA,J

7. The respondent No.4 herein, who is the driver of the

offending vehicle filed counter denying the averments of the

claim petition and contended inter alia that accident occurred

due to rash and negligence on the part of the deceased; that if

assuming that accident occurred due to negligence of this

respondent, it is for the insurance company to pay the

compensation as the offending vehicle was insured with it and

finally prayed to dismiss the claim petition. Respondent no.5

herein, who is the owner of the offending vehicle, filed counter

with similar contentions as raised by respondent no.4.

8. The appellant-Insurance Company filed counter denying

all the allegations made in the claim petition and contended

inter alia that the owner of the vehicle did not inform to this

respondent in respect of the factum of accident in collusion with

the petitioners; that the driver of offending vehicle was not

having license to drive the bus and therefore, insurance

company is not liable to pay compensation; that the

compensation amount claimed by the petitioners is highly LNA,J

excessive and exorbitant and finally, prayed to dismiss the claim

petition.

9. On the basis of the above pleadings, the Tribunal framed

the following issues:

i) Whether the deceased-K.Lingaiah died in the motor vehicle accident and whether such accident was occurred due to rash and negligent driving of the bus bearing No.AP-09-TA-0121 by its driver ?

ii) Whether the petitioners are entitled for any compensation? If so, at what quantum and what is the liability of the respondents ?

iii) To what relief?

10. In order to substantiate the case, on behalf of the

claimants, P.Ws.1 and 2 were examined and Exs.A1 to A6 were

marked. On behalf of respondents 1 to 3, no oral evidence was

adduced, however, on behalf of insurance company, Exs.B1 and

B2 were marked.

11. The Tribunal, on due consideration of the evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the Bus and

awarded compensation of Rs.12,10,000/- along with costs and LNA,J

interest @ 7.5% per annum from the date of petition till the date

of realization. The driver and owner of the crime vehicle i.e.,

respondent Nos.4 and 5 herein and appellant-insurance

company are liable to pay the said compensation amount.

12. During the course of hearing of the appeal, learned

counsel for appellant-insurance company submitted that

Tribunal erroneously considered the age of the deceased at 50

years by relying on PME report (Ex.A5), even though the age of

the wife of the deceased was shown as 65 years, which is

evident from the Aadhaar card (Ex.B1). The age of the deceased

was shown at 60 years in the FIR. Further, the age of the

deceased was shown as 57 years at first, but later it was

overwritten as 50 years. He submitted that deceased could not

be the younger than his wife i.e., 15 years, as such, the Tribunal

ought to have drawn inference that the age of the deceased is at

least 65 years and same may be modified.

13. He further submitted that the Tribunal considered the

monthly income of the deceased at Rs.8,000/- without there

being any documentary evidence and therefore, since no LNA,J

document is filed to prove the income of the deceased, the

Tribunal ought to have taken Rs.4,500/- per month as notional

income as per the decision of Ramachandrappa vs. Manager,

royal Sundaram Alliance Insurance Co.Ltd., & others [AIR 2011

SC 2951]. He further submitted that the Tribunal having

observed that wife of the deceased is only dependent on the

income of the deceased and children are married daughters of

the deceased are his dependents, erroneously deducted 1/3rd of

the income towards personal expenses of the deceased, instead

of deducting half of the income and finally, prayed to set aside

the award passed by the Tribunal.

14. On the other hand, learned counsel for claimants

submitted that the Tribunal, on due consideration of the

evidence and material placed on record, had rightly awarded the

compensation and there is no need to interfere with the award of

the Tribunal and prayed to dismiss the appeal.

Consideration:

15. The learned counsel for appellant submitted that with

regard to the age of the deceased, the insurance company filed LNA,J

Ex.B1-Aadhaar card of the wife of the deceased in proof of her

age, as per which, her age was shown as 65 years as on the date

of accident. Admittedly, deceased was retired from Singareni

Company and the age of superannuation in Singareni Company

was 60 years. There is no clarity as to the date of retirement of

the deceased. Traditionally, the age of the husband is more than

the age of his wife. In the present case, wife of the deceased was

aged 65 years as on the date of the accident, therefore, the age

of the deceased should be considered at least one or two years

more than his wife. Therefore, the Tribunal committed serious

error in assessing the age of the deceased as 50 years based on

PME report (Ex.A5), which is improper and incorrect. It is not

the case of the respondents/claimants that deceased is younger

than his wife. Therefore, in considered opinion of this Court, the

age of the deceased can be taken as 66 years as on the date of

the accident.

16. In view of the above, in considered opinion of this Court

that considering the age of the wife of the deceased as 65 years LNA,J

as per Ex.B1, the age of the deceased can be taken as 66 years

as on the date of the accident.

17. Insofar as the future prospects is concerned, as per the

decision of Hon'ble Apex Court in National Insurance Company

Limited vs. Pranay Sethi and others 1 , since the age of the

deceased was taken as 66 years, no additional income of the

actual salary of the deceased can be added towards future

prospects. Therefore, an addition of 25% of the actual salary of

the deceased awarded by the Tribunal is erroneous and the

same is liable to be modified. As far as the multiplier is

concerned, as per paragraph-42 of the said decision, the

multiplier is '5' for the age groups of 66 to 70.

18. The other contention of the learned counsel for appellant

is that Tribunal erred in taking the monthly income of the

deceased at Rs.8,000/-. Insofar as the income of the deceased is

concerned, the claimants have not placed any material

evidencing that deceased was doing fish business and earning

Rs.15,000/- per month and therefore, in the absence of any

(2017) 16 SCC 680 LNA,J

material on record, the Tribunal had taken the notional income

of the deceased at Rs.8,000/- per month taking into

consideration the occupation of the deceased. In view of the

above, in considered opinion of this Court, the Tribunal had

rightly assessed the income of the deceased and therefore, there

is no need to interfere with the said contention of the appellant.

19. The other contention raised by the learned counsel for

appellant with regard to living expenses of the deceased, as the

Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi

Transport Corporation and another 2, the Hon'ble Apex Court

at paragraph-30 held that where the deceased was married, the

deduction towards personal and living expenses of the deceased

should be one-third (1/3th), where the number of dependent

family members is 2 to 3. In considered opinion of this Court,

the Tribunal had rightly deducted 1/3rd towards personal and

living expenses of the deceased.

(2009) 6 SCC 121 LNA,J

Conclusion:

20. In view of the above discussion, the compensation amount

is recalculated as under:

Sl.No.                Head                    Compensation awarded

1        Income                         Rs.96,000/- per annum (Rs.8,000/-
                                        per month)
2        Deduction towards personal     Rs.32,000/- (i.e., one-third (1/3th)
         expenses                       of Rs.96,000/-)
3        Total Income                   Rs.64,000/-       (i.e.,   Rs.96,000/-     (-)
                                        Rs.32,000/-)


5        Loss of dependency             Rs.3,20,000/- (i.e., Rs.64,000/- x 5)

6        Consortium (3 x Rs.40000/-)    Rs. 1,20,000/-

6        Funeral expenses               Rs.    15,000/-

7        Loss of estate                 Rs.    15,000/-

Total compensation to be Rs.4,70,000/-

paid:

21. In the result, Appeal is partly allowed and the impugned

award passed by the Tribunal insofar as compensation amount

is concerned, is modified. The above compensation amount shall

carry interest @ 7.5% per annum from the date of the claim

petition till the date of realization. The appellant is directed to

deposit the above compensation amount within a period of six

weeks from the date of receipt of copy of this order, duly LNA,J

adjusting the amount already deposited by the appellant. The

claimants are entitled to the apportionment of the amount as

directed by the Tribunal. There shall be no order as to costs.