Telangana High Court

The Oriental Insurance Company Limited vs Noor Unnisa on 24 July, 2024

          THE HONOURABLE SRI JUSTICE SUJOY PAUL
                           AND
  THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


                      M.A.C.M.A.No.444 of 2024


JUDGMENT:

(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)

This M.A.C.M.A. is filed by the appellant/Oriental

Insurance Company aggrieved by the order and decree, dated

07.12.2023 passed in M.V.O.P.No.1584 of 2016 by the

Chairman, Motor Accident Claims Tribunal-cum-III Additional

Chief Judge, City Civil Court at Hyderabad (for short, "the

Tribunal").

2. For the sake of convenience, the parties are hereinafter

referred to as they are arrayed before the Tribunal.

3. Heard both sides. Perused the record.

4. The brief facts of the case are as follows :-

The petitioners-claimants, who are the wife and daughter

of the deceased Md. Razak, filed a claim petition claiming

compensation of Rs.60,00,000/- on account of the death of the

deceased Md. Razak who died in a motor vehicle accident that

occurred on 04.01.2016. According to the claimants, on

04.01.2016 at about 9.00 a.m., while the deceased Md. Razak,

along with one Md. Mansur was proceeding from Hyderabad to

Kepal on their Pulsar Motorcycle bearing No.TS-12-EA-1202

and reached Ghatkesar bypass road after Edulabad bridge.

The driver of the car bearing No.AP-20-AM-0033 drove his

vehicle at high speed in a rash and negligent manner, while

proceeding in the same direction, dashed into the deceased's

vehicle, and another vehicle bearing No.TS-08-EC-6505, as a

result of which, all fell on the road, and sustained bleeding

injuries and both the motorcycles and the front portion of the

crime vehicle got damaged. The deceased received severe

bleeding injuries and other injuries all over the body and was

immediately shifted to Adithya Hospital for treatment.

Thereafter, he was shifted to Owaisi Hospital for better

treatment, and while undergoing treatment, he died on

21.01.2016. Hence, the claim petition.

5. Before the Tribunal, respondent Nos.1 and 2 remained ex

parte.

6. Respondent No.3/Oriental Insurance Company filed a

counter denying the manner in which the accident took place

and also denied the age, avocation and income of the deceased.

It is also contended that the accident took place due to gross

negligence on the part of the rider of the two wheeler on which

the deceased was stated to be travelling. They further

contended that the owner and Insurance Company with whom

the vehicle, i.e. Motorcycle bearing No.TS-12EA-1202, was

insured are also necessary parties to the proceedings and also

that the compensation claimed is excessive and prayed to

dismiss the claim petition.

7. On behalf of the claimants, P.Ws.1 to 3 were examined

and marked Exs.A1 to A20. On behalf of respondent No.3, no

oral evidence was adduced, but a copy of the insurance policy,

Ex.B1, was marked with consent.

8. After considering the oral and documentary evidence

available on record, the Tribunal held that the accident

occurred due to the rash and negligent driving of the driver of

the crime vehicle i.e. car bearing No.AP-20-AM-0033 and

accordingly awarded an amount of Rs.63,08,972/- with

interest @ 7% per annum from the date of petition till the date

of realization to be paid by the respondents 1 to 3 jointly and

severally to the petitioners. Challenging the same, the present

M.A.C.M.A. is filed.

9. Learned counsel appearing for appellant/Oriental

Insurance Company contended that the Tribunal failed to note

that the documents i.e. Ex.A7/original service certificate, Ex.A8

to A10/salary certificates of the deceased were not procured

through the Embassy channel of Bahrain, where the deceased

was purportedly employed. Further, nobody was examined to

prove the authenticity of those documents except the evidence

of PW.1, the wife of the deceased, and the said documents have

no attestation by an Attorney to establish its genuineness.

Merely filing the certificates issued by the employer of the

deceased cannot be relied upon to fix the salary of the

deceased.

10. Learned counsel appearing for appellant/Oriental

Insurance Company further contended that there was no

evidence to come to the conclusion that the deceased was an

employee in Bahrain, and in the said circumstances, the

Tribunal ought not to have arrived at a conclusion that the

deceased was earning 330 BHD every month. The Tribunal

also erred by not deducting Income tax on the deceased's

salary while assessing the loss of dependency.

11. Learned counsel appearing for appellant/Oriental

Insurance Company further contended that the Tribunal erred

by taking the incorrect exchange rate of Indian rupees for

Bahrain Dinar, consequently computing 330 BH Dinars of

Bahrain to Rs.60,000/- per month in Indian currency, instead

of Rs.53,334.60 ps.

12. 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 vehicle

by its driver, and having considered the evidence of P.W.2, an

eyewitness to the accident, coupled with the documentary

evidence i.e., Ex.A1-F.I.R., Ex.A2-Inquest report, Ex.A3-PME

report, Ex.A4-MVI report and Ex.A5-charge sheet, came to the

conclusion that the accident occurred due to the rash and

negligent driving of driver of offending vehicle bearing No.AP-

20-AM-0033. As such, there are no reasons to interfere with

the said finding.

13. To prove the nature of employment, the Tribunal has

categorically discussed with regard to Ex.A7-Original Service

Certificate issued by employer i.e. Bahrain Auto Services,

Kingdom of Bahrain and Ex.A8 to A10/salary certificates of the

deceased. It is pertinent to mention here that in United

India Insurance Co. Ltd., Hyderabad V. K. Swaroopa

Rani1, this Court held as follows:

2013(1) ALD 369

"18. The submission made by the learned Counsel for the respondent/insurance company that Ex.A6 salary certificate is not proved is unsustainable."

"21. The Motor Vehicles Act is a beneficial legislation intend to provide just and reasonable compensation to the victims of motor vehicle accidents to the extent possible. The provisions have to be construed liberally in favour of the claimants. The proceedings before the Tribunal are summary in nature and strict rules of evidence and pleadings are not necessary. When such is the position, the objection raised by the Counsel for the insurance company that marking of Ex.A6 is incorrect and not according to the provisions of the Indian Evidence Act is unsustainable. It may be noted here that the insurance company did not lead any evidence either documentary or oral to exonerate themselves from the liability of paying compensation as per the salary particulars mentioned in Ex.A6. No attempt is made even by suggesting to PW1 that the contents of the said document are incorrect or false. In that view of the matter and in view of the fact that the proceedings before the Tribunal are summary in nature, this Court holds that the contents of Ex.A6-salary certificate can be looked into."

The MV Act being a beneficial legislation, the standard of proof

ought to be the preponderance of probability and not a strict

standard of proof beyond all reasonable doubt. As such, the

contention of the appellant/Oriental Insurance Company that

the claimants did not prove the avocation of the deceased by

examining the author of Ex.A7 is devoid of merit. Insofar as

the deceased's income is concerned, according to the

petitioners, the deceased was a Denter in Automobile Repairs

Division at Bahrain Auto Services WLLCR No.21412, P.O. Box

20058 Kingdom of Baharain and used to earn a sum of BHD

330 (Bahrain Dinars per month), which arrives at INR 60,000/-

per month. But, as per the calculation memo submitted by the

appellant/ Oriental Insurance Company, the exchange rate of

BHD to INR was Rs.180.1176 for one Bahraini Dinar, which

comes to Rs.59,438.808 per month and Rs.7,13,265.86ps. per

annum, which has not been disputed by the claimants. Since

the Tribunal did not assign any reason for considering the

deceased's salary at Rs.60,000/- per month, this Court is

inclined to take the salary of the deceased at the exchange rate

of Bahrain one Dinar at Rs.180.1176 and Rs.59,438.808 per

month rounded off to Rs.59,439/- per month, for assessing the

loss of dependency. Thus, the annual income of the deceased

comes to (Rs.59,439/- x 12) Rs.7,13,268/-. Therefore, this

Court feels it appropriate to fix the annual income of the

deceased at Rs.7,13,268/-.

14. In Sarla Verma and others v. Delhi Transport

Corporation 2, the Apex Court has categorically held that while

assessing the deceased's income for compensation, the gross

salary minus income tax shall be taken as the income. Hence,

the income tax payable on the said amount, i.e., Rs.7,13,268/-

is:- upto Rs.2,50,000/-: NIL; From 2,50,001 to Rs.5,00,000/-

(10%): 25,000/-; Rs.5,00,001/- to 7,13,268/- (20%): 42,654/-.

Hence, the total income tax liability comes to Rs.67,654/-

2009 ACJ 1298 (SC)

[Rs.25,000/-+Rs.42,653/-]. So, the loss of dependency comes

to Rs.6,45,614/- (Rs.7,13,268/- minus Rs.67,654/-).

15. The Tribunal has taken the age of the deceased as 51

years and thus, rightly added future prospects of 10%; and the

annual income accordingly comes to Rs.7,10,175.40/-

[Rs.6,45,614/- + Rs.64,561.40 ps] rounded off Rs.7,10,175/-.

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

living expenses of the deceased. After deducting the 1/3rd

amount, the contribution of the deceased would be

Rs.4,73,450/-[Rs.7,10,175/- (minus) Rs.2,36,725/-]. Since

the age of the deceased was 51 years at the time of the

accident, the Tribunal rightly considered the multiplier as '11'

as per the decision of the Apex Court reported in Sarla Verma

(supra). Adopting multiplier '11', the total loss of dependency

comes to Rs.4,73,450/- x 11 = Rs.52,07,950/-.

16. Further, as per the decision of the Apex Court in

National Insurance Company Ltd. Vs. Pranay Sethi 3,

petitioner no.1 is entitled to a sum of Rs.48,400/- (Rs.40,000/-

+10%+10%) towards spousal consortium and the claimants are

further entitled to Rs.36,300/- (Rs.15,000/- +Rs.15,000/-

+10% +10%) towards loss of estate and funeral expenses.

(2017) 16 SCC 680.

Therefore, the order dated 07.12.2023 passed by the Tribunal

in M.V.O.P.No.1584 of 2016 is modified as follows:-

      S.No.           Particulars                     Amount

       1.     Annual    salary  of   the          Rs. 7,13,268/-
              deceased (Rs.59,439/-X 12)
       2.     Less: Income Tax                    (-) Rs. 67,654/-

       3.     Net Income                           Rs.6,45,614/-

       4.     Add: 10% Future Prospects          Rs.64,561.40 ps.

       5.     Sub-Total                      Rs.7,10,175.40/- (Rounded
                                                off to Rs.7,10,175/-)
       6.     Less:     1/3rd    towards          (-) Rs.2,36,725/-
              Personal Expenditure
       7.     Sub-Total [5-6]                     Rs. 4,73,450/-

       9.     Total Loss of Dependency            Rs.52,07,950/-
              (Rs. 4,73,451/- x 11)
       10.    Add : Conventional Heads               Rs.36,300/-
              (Funeral    Expenses     and
              Loss of Estate)
              (Rs.15,000/- + Rs.15,000/-
              +10%+10%)
       11.    Add:    Loss    of   spousal           Rs.48,400/-
              consortium      (Rs.40,000/-
              +10%+10%)
       12.    Medical bills                        Rs.3,79,972/-

              Total Compensation                  Rs.56,72,622/-

17. The Tribunal awarded interest at the rate of 7% per

annum, and the same is enhanced to 7.5% p.a. from the date

of petition till the date of realization.

18. As a result, this M.A.C.M.A. is partly allowed by setting

aside the order and decree dated 07-12-2023 in

M.V.O.P.No. 1584 of 2016 passed by the Tribunal by reducing

the compensation awarded by the Tribunal from

Rs.63,08,972/- to Rs.56,72,622/- (Rupees Fifty Six Lakhs,

Seventy two Thousands, Six Hundred and Twenty two only)

with interest @ 7.5 % p.a. from the date of petition till the date

of realization. On such deposit, the said compensation amount

is to be apportioned in the same manner and proportion as