Telangana High Court

United India Insurance Co.Ltd vs Orsu Sukkamma And 2 Others on 12 July, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
                 M.A.C.M.A.No.1678 of 2018
                           AND
              CROSS-OBJECTIONS No.40 of 2024

COMMON JUDGMENT:

1. Aggrieved by the order dated 14.02.2018 passed in

O.P.No.228 of 2011 on the file of the Chairman, Motor Accidents

Claims Tribunal-cum- Family Court Judge- cum- VI Additional

District & Sessions Judge, Nalgonda (for short, 'the Tribunal'),

M.A.C.M.A.1678 of 2018 is filed by the Insurance

Company/Respondent No.2 in O.P. seeking to allow the Appeal by

setting aside the order passed by the learned Tribunal. Also, being

not satisfied with the compensation granted by the learned

Tribunal, the claim petitioners in O.P. filed Cross Objections No.40

of 2024 seeking for enhancement of compensation.

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 petitioners, who are

the mother and father of a minor child by name Orsu Narsimha

(hereinafter be referred as 'the deceased'), filed a claim petition

under Section 163A of the Motor Vehicles Act, 1988 read with Rule

455 of A.P.M.V.Rules, 1989 for the death of a deceased body in a

fatal accident that occurred on 17.01.2011. It is stated by the

MGP,J MACMA.1678 of 2018 and X-obj.40 of 2024

petitioners that on 17.01.2011, at about 2.00 PM, as per the

instructions of respondent No.1, who is the owner of the subject

Tractor and Trailer bearing Nos.AP-24W-5516 and AP-24W-5517,

the deceased boy travelled on the said Tractor and Trailer to note

down the number of trips unloaded by the driver of the said

Tractor and Trailer. When the driver of the said Tractor and Trailer

unloaded the stones at Crusher Mill and returned to Pulya Thanda

for loading another trip and when the said Tractor and Trailer

reached the bridge of small canal on the Sagar Road of Bettal

Thanda outskirts, suddenly, the driver of the said Tractor and

Trailer drove the same in a rash and negligent manner and lost

control over the said Tractor and Trailer and took turn. Thereby,

the deceased boy fell down from the said Tractor and Trailer and

received serious head injury and multiple injuries and fractures on

vital parts of the body. Immediately after the accident, the

deceased was shifted to Kamala Nehru Hospital at Nagarjunasagar.

The duty Medical officer gave First-Aid and referred to Osmania

General Hospital at Hyderabad. Accordingly, the deceased was

shifted to Osmania General Hospital at Hyderabad and was

admitted as inpatient and while undergoing treatment, he

succumbed to injuries on the same day at about 11.30PM. Police

of Peddavoora Police Station, Nalgonda District, registered a case in

Crime No.5 of 2011 under Section 304-A IPC against the driver of

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the subject Tractor and Trailer for his rash and negligent driving.

It is further stated by the petitioners that the deceased boy was

hale and healthy and was aged about 10 years and is a brilliant

student at the time of accident. He used to help them in their

works. Due to sudden death of the deceased, they were put to

shock which cannot be measured in amounts. As the deceased is

the only son to the petitioners and as the accident occurred by

following the instructions of respondent No.1, who is the owner of

the subject Tractor and Trailer and as the said Tractor and Trailer

is insured with respondent No.2, as such, they filed a petition

seeking compensation of Rs.2,50,000/- along with interest @ 18%

per annum against the respondent Nos.1 & 2.

4. Respondent No.1 filed his counter and admitted that he is

the owner of the subject Tractor and Trailer bearing Nos.AP-24W-

5516 and AP-24W-5517 which is involved in the accident. He also

admitted that the deceased body died in a motor vehicle accident

and Police of Peddavoora Police Station, registered a case against

the driver of the said Tractor and Trailer. He also stated that he

had insured the subject Tractor and Trailer with respondent No.2

and the policy was in force as on the date of accident. As such,

respondent No.2 alone is liable to pay compensation to the

petitioners and prayed to dismiss the claim against him.

MGP,J MACMA.1678 of 2018 and X-obj.40 of 2024

5. Respondent No.2/Insurance Company filed its counter

denying the averments made in the claim petition including,

manner, method and depiction of the accident alleged to have

taken place on 17.01.2011 and also denied the age, avocation and

health condition of the deceased body. It also contended that they

are not liable to pay any compensation to the petitioners because,

at the time of accident, the deceased was travelling as a passenger

in the subject Tractor and Trailer which is meant for transportation

of goods and passengers are not permitted to travel in the said

vehicle as the seating capacity of the vehicle is only one i.e., driver.

Hence, respondent No.1/owner of the subject Tractor and Trailer

had violated the policy conditions. Therefore, Insurance Company

is not liable to pay any compensation. It also denied the insurance

of the subject Tractor and Trailer and contended that as the

petitioners have failed to implead the driver of the subject Tractor

and Trailer in the claim petition, hence, the petition is liable to be

dismissed for non-joinder of necessary parties and hence, prayed

to dismiss the claim against it.

6. Based on the above pleadings, the learned Tribunal had

framed the following issues:-

i. Whether the accident occurred on 17.01.2011 due to the rash and negligent driving of the driver of Tractor and Trailer bearing No.AP-24W-5516 and AP-24W-5517 and

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whether the deceased-Orsu Narsimha sustained injuries and died?

ii. Whether the claimants are entitled for compensation? If so, to what amount and from whom?

iii. To what relief?

7. Before the Tribunal, petitioner No.1, who is the mother of the

deceased boy, was examined as PW1 on behalf of the petitioners

and got marked Exs.A1 to A6 on their behalf.

8. On behalf of the respondent No.2, RWs 1 & 2 were examined

and Exs.B1 to B4 were marked.

9. After considering the entire evidence and documents marked

on both sides, the learned Tribunal had partly allowed the claim

petition by awarding compensation of Rs.1,04,000/- along with

interest @ 6% per annum payable by Respondent Nos.1 & 2.

Aggrieved by the same, the respondent No.2 in O.P./Insurance

Company filed M.A.C.M.A.No.1678 of 2018 and the claim

petitioners filed Cross Objections No.40 of 2024.

10. Heard the submissions made by the learned Standing

Counsel for Appellant/Insurance Company in MACMA.1678 of

2018 as well as the learned counsel for the respondent Nos.1 & 2

/claim petitioners/Cross-Objectors.

MGP,J MACMA.1678 of 2018 and X-obj.40 of 2024

11. The contentions of the learned Standing Counsel for

Appellant/Insurance Company are that, the learned Tribunal had

grossly erred in fixing liability upon Insurance Company as the

deceased body was neither working as a Coolie nor an employee on

the insured Tractor and Trailer, but was an unauthorized

passenger and further contended that Ex.B4/Insurance policy does

not cover risk of the deceased body. It is further contended by the

Insurance Company that when the driver of the subject Tractor

and Trailer, who do not possess any driving license, is held

responsible for the alleged accident and was charge sheeted, the

learned Tribunal ought to have fastened the liability on the owner

of the subject Tractor and Trailer for violating the policy conditions

and should have exonerated the Insurance company from its

liability to pay compensation.

12. Per contra, the contention of the learned counsel for the

respondents/cross-objectors is that the learned Tribunal ought to

have awarded compensation more than the claim amount as per

the decision of the Hon'ble Supreme Court in 2023(1)SCC 204 and

ought to have awarded interest @ 12% per annum instead of 6 %

per annum as per the decision reported in Magma General

Insurance Co.Ltd.Vs.Nanuram (2018 ACJ 2782 SC) and hence,

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prayed to allow the cross-objection petition by enhancing the

compensation.

13. Now the points that emerge for consideration is,

(i) Whether the order passed by the learned Tribunal requires interference of this Court?

(ii) Whether the cross-objectors are entitled for enhancement of compensation?

Points-

14. This Court has perused the entire evidence and documents

filed by both sides. Petitioner No.1 in claim petition, who is the

mother of the deceased boy, was examined as PW1. She filed

affidavit in lieu of her chief-examination and reiterated the

contents made in the claim application and also deposed about the

manner of accident, including rash and negligent driving of the

driver of the subject Tractor and Trailer. She stated that her minor

son succumbed to injuries while undergoing treatment at Osmania

General Hospital, Hyderabad and also stated about registration of

Ex.A1-FIR and charge sheet filed against the driver of the subject

Tractor and Trailer under Ex.A6.

15. During the course of her cross-examination, she denied the

suggestion that respondent No.1/owner of the subject Tractor and

Trailer engaged the services of her deceased son to count the trips.

MGP,J MACMA.1678 of 2018 and X-obj.40 of 2024

16. On behalf of Insurance Company/respondent No.2 in O.P.,

RWs 1 & 2 were examined. RW1, who is working as Senior

Assistant in the O/o. Regional Transport Authority, Nalgonda,

deposed in her evidence that the subject Tractor and Trailer is

meant for commercial purpose and it does not contain any

permission to allow the passengers in the Tractor and Exs.B2 & B3

are the Registration numbers of the subject Tractor and Trailer.

17. During the course of her cross-examination, she admitted

that there is a mention in Ex.B2 that the subject Tractor bearing

No.AP-24W-5516 comes under the purview of LMV transport,

where passengers can travel in the Trailer.

18. RW2, who is working as Branch Manager in Insurance

Company, deposed in his evidence that the subject Tractor and

Trailer was insured with their company vide Ex.B4 policy and the

driver of the subject Tractor and Trailer do not possess valid

license and the respondent No.1/owner of the subject Tractor and

Trailer had violated the terms and conditions of the policy by

handing over the subject Tractor and Trailer to a driver who do not

possess any driving license and also stated that the subject Tractor

and Tractor is meant for transporting goods but not to carry any

passengers.

MGP,J MACMA.1678 of 2018 and X-obj.40 of 2024

19. During the course of his cross-examination, he admitted that

he had not issued any notice to respondent No.1/owner of the

subject Tractor and Trailer to produce the relevant documents. He

also did not deny the manner of accident, avocation of deceased

and existence of Ex.B4 policy as on the date of accident.

20. A perusal of Exs.A1 & A2, which are FIR and scene of

offence, disclose about the manner of accident and death of the

deceased boy on account of Head injury sustained to him and rash

and negligent act on part of the driver of the subject Tractor and

Trailer. Ex.A3 is the inquest report wherein the opinion expressed

by the inquestdars is that the accident occurred due to rash and

negligent act on part of the driver of the subject Tractor and

Trailer, who drove the same at high speed and who suddenly took

cut/curve which resulted in severe Head injury to the deceased

boy. Ex.A4- Post mortem examination report shows that the cause

of death of the deceased boy was on account of Head injury

associated with other injuries. Ex.A5 is the Motor Vehicle

Inspector's report which shows that the accident had not occurred

due to any mechanical defects in the vehicle. Ex.A6 is the charge

sheet filed against the driver of the subject Tractor and Trailer for

his rash and negligent driving which resulted into the death of the

deceased.

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21. Therefore, from the above documents coupled with evidence

of PW1, it is clear that the death of the deceased boy was on

account of rash and negligent act on part of the driver of the

subject Tractor and Trailer who drove the same the same in a high

speed without taking proper care and caution and caused accident

at the outskirts of Bethal Thanda. Further, there is no dispute

that respondent No.1 in O.P. is the owner of the subject Tractor

and Trailer and Ex.B4-Insurance policy was in force as on the date

of accident.

22. It is the contention of the learned Standing Counsel for

Appellant/Insurance Company that the learned Tribunal had

grossly erred in fixing liability upon Insurance Company as the

deceased boy was an unauthorized passenger on insured Tractor

and Trailer and further contended that Ex.B4/Insurance policy

does not cover risk of the deceased body 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 1 wherein the Court, at Para 12 of the

Judgment, held as under:-

"12. As discussed hereinabove, the vehicle in question was a goods vehicle and the deceased was an unauthorized

LAWS (GIH)-2009-4-160

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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."

23. It is the further contention of the learned counsel for

Appellant/ Insurance Company in M.A.C.M.A.No.1678 of 2018 that

though the driver of the subject Tractor and Trailer do not hold a

driving license at the time of accident, but the owner of the said

Tractor and Trailer had willfully handed over the vehicle to him

and committed breach of policy conditions and hence, the

insurance company is not liable to pay any compensation to the

petitioners.

24. In this regard, it is pertinent to refer the decision of the

Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s

United India Insurance Company and Another 2 wherein,

the Hon'ble Supreme Court held that the Insurance Company is

2013(7) SCC 62

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liable to pay the victim even if the driver was unlicensed so that the

victim should not be deprived of the money due to him. Hence, the

Insurance Company has full rights to recover their money from the

owner of the vehicle. Further, the owner can make the unlicensed

driver to pay the compensation.

25. Therefore, from the above referred two decisions, 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, who in turn can

add the unlicensed driver to pay the compensation. Moreover,

RW1, who is an employee of RTA office, did not state in her

evidence that the driver of the subject Tractor and Trailer do not

hold driving license to drive the subject Tractor and Trailer.

Hence, the Insurance Company cannot absolve its liability to pay

compensation.

26. Now, coming to the cross-objections petition filed by the

petitioners/claimants, it is the contention of the learned counsel

for the petitioners that the learned Tribunal ought to have granted

more compensation than the claim amount and referred to the

decision of the Hon'ble Supreme Court in a case between MEENA

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DEVI VS.NUNU CHAND MAHTO @ NEMCHAND MAHTO & ORS 3 in

support of his contention. It is also contended that the learned

Tribunal ought to have granted interest @ 12% instead of 6% per

annum as per decision of the Hon'ble Apex Court in a case between

Magma General Insurance Co.Ltd. Vs.Nanuram 4.

27. A perusal of the decision of the Hon'ble Apex Court in the

case of Meena Devi (cited supra) shows that the Hon'ble Apex

Court had fixed the notional income for a minor child as

Rs.30,000/- including future prospects and applied relevant

multiplier and also awarded compensation under conventional

heads. Para 13 of the judgment of the Hon'ble Apex Court in the

said case is as follows:-

"13. Thus, applying the ration of the said judgments, looking to the age of the child in the present case i.e. 12 years, the principles laid down in the case of Kishan Gopal and another Vs.Lala and others 5 are aptly applicable to the facts of the present case. As per the ocular statement of the mother of the deceased, it is clear that deceased was a brilliant student and studying in a private school. Therefore, accepting the notional earning Rs.30,000/- including future prospect and applying the multiplier of 15 in view of the decision of this Court in Sarla Verma & others Vs.Delhi Transport Corporation and another 6 , the loss of dependency comes to Rs.4,50,000/- and if we add Rs.50,000/- in conventional heads, then the total sum of

2023(1)SCC 204 or 2022 Live Law (SC) 841

2018 ACJ 2782 SC

(2014) 1 SCC 244

(2009) 6 SCC.121

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compensation comes to Rs.5,00,000/-. As per the judgment of MACT, lump sum compensation of Rs.1,50,000/- has been awarded, while the High Court enhanced it to Rs.2,00,000/-

upto the value of the claim petition. In our view, the same amount of compensation is not just and reasonable looking to the computation made hereinabove. Hence, we determine the total compensation as Rs.5,00,000/- and on reducing the amount as awarded by the High Court i.e. Rs.2,00,000/-, the enhanced amount comes to Rs.3,00,000/-."

28. This Court, by relying upon the above cited decision, is

inclined to interfere with the finding of the learned Tribunal and

hereby enhances the compensation awarded by the Tribunal from

Rs.1,04,000/- to Rs.5,00,000/- .

29. So far as granting of interest by the Tribunal is concerned, It

is the contention of the learned counsel for the cross-objectors that

the learned Tribunal ought to have granted interest @ 12% instead

of 6% per annum as per judgment reported in Magma General

Insurance Co. Ltd. (cited supra). This Court, by relying upon the

decision of the Hon'ble Apex Court in Rajesh and others v. Rajbir

Singh and others 7, is inclined to enhance the rate of interest from

6% per annum to 7.5% per annum which is payable from the date