Telangana High Court

M/S United India Insurance Company Ltd. vs Thakur Shiva Ratan Singh, on 7 June, 2024

 HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                 M.A.C.M.A.NO.2739 OF 2017
JUDGMENT:

The present appeal has been filed by the appellant-

Insurance Company aggrieved by the order dated 18.07.2017

in M.V.O.P.No.370 of 2015 passed by the Chairman, Motor

Accidents Claims Tribunal-cum-XII Additional Chief Judge,

City Civil Court, Secunderabad (for short, 'Tribunal') and

thereby, seeking to set aside the order of the Tribunal.

2. The appellant herein is the respondent No.2-insurance

company, respondent Nos.1 to 3 herein are the petitioners/

claimants, respondent no.4 herein is the respondent no.1-

owner of the crime vehicle and respondent no.5 herein is the

respondent no.3-driver of the crime vehicle before the

Tribunal. For convenience, the parties hereinafter are referred

to as they are arrayed before the Tribunal.

3. The brief factual matrix of the present appeal is that on

03.05.2014 at about 6.00 p.m., Thakur Savithri Singh LNA,J

(hereinafter referred to as 'the deceased') along with her

mother went for walking from B.S.Maqtha, Begumpet towards

Greenlands on extreme left side of the road and when they

reached Greenlands bus stop, one DCM van bearing

registration No.AP-26-T-8503 (hereinafter referred to as crime

vehicle) came in rash and negligent manner at high speed and

dashed against the deceased, due to which, she sustained

injuries and succumbed to injuries while undergoing treatment

in Yashoda hospital, Hyderabad. Based on the complaint, a

case was registered in Crime No.527 of 2014 before Panjagutta

Police Station.

4. According to the claimants, who are the husband and

daughters of the deceased, deceased was aged about 45 years

as on the date of accident, hale and healthy and was working

as cook in Catering team and earning Rs.9,000/- per month

besides other perks and she used to contribute the same for the

maintenance of the family; and that the claimants are

depending on the earnings of deceased.

LNA,J

5. Before the Tribunal, respondent No.3 remained ex parte.

Respondent no.1-owner of crime vehicle filed counter denying

the averments of the claimants and further contended that

crime vehicle did not involve in any accident; that if at all any

accident occurred, it is for the negligence of the deceased; that

DCM van was insured with the 2nd respondent, as such, 1st

respondent is not liable to pay any compensation.

6. Respondent No.2-Insurance Company filed counter

denying all the allegations in the claim petition as regards the

accident to the deceased, age, avocation and income of the

deceased. It was further contended that driver of the crime

vehicle was not having valid and effective driving licence to

drive LMV goods carriage at the time of accident; that the 1st

respondent violated the conditions of the policy and as such,

insurance company is not liable to pay any compensation and

prayed to dismiss the claim petition.

7. Basing on the above pleadings, the following issues are

framed for trial:

LNA,J

1. Whether the pleaded accident occurred resulted in death of the deceased due to rash and negligent driving of the vehicle i.e., DCM Van bearing No.AP-

26-T-8503, by its driver ?

2. Whether the petitioners are entitled for any compensation and if so, at what quantum and what is the liability of the respondents ?

3. To what relief ?

8. On behalf of the claimants, P.Ws.1 and 2 were examined

and Exs.A1 to Ex.A6 were marked. On behalf of the respondent

No.2-insurance company, RW.1 was examined and Exs.B1 to

B3 were marked.

9. The Tribunal, on due consideration of oral evidence and

material placed on record, came to conclusion that the accident

took place due to rash and negligent driving of the crime

vehicle by its driver and awarded total compensation of

Rs.13,44,200/- along with interest @ 9% per annum.

10. Heard Sri V.Sambasiva Rao, learned counsel for the

appellant-Insurance company and Sri M.Ajay Kumar learned LNA,J

counsel for respondent nos.1 to 3 and Sri Ajgal Ravi Babu,

learned counsel for the respondent No.4. Perused the record.

11. During the course of hearing of appeal, learned counsel

for appellant-Insurance company submitted that Tribunal

ought to have seen that it is a case of violation of terms and

conditions of policy on the part of 1st respondent as he has

allowed the respondent no.3 to drive the crime vehicle, who

did not have valid and effective driving licence to drive goods

transport vehicle, which is evident from Ex.A2-certified copy

charge sheet and Ex.A6-certified copy of MV report, which

clearly show that driver of the crime vehicle did not have any

valid and effective driving licence as on the date of accident,

and in the circumstances, Tribunal ought to have fixed the

entire liability on the respondent no.1 and the insurance

company would have been exonerated from its liability.

12. He further submitted that the Tribunal not only erred in

taking the monthly income of the deceased at Rs.7,000/-

without there being any supporting evidence; but also erred in LNA,J

adding 30% of the income towards future prospects. He further

submitted that respondents 2 and 3, who are the daughters of

the deceased, are majors and therefore, they are not the

dependents on the deceased mother and therefore, the Tribunal

instead of rejecting their case on this count, erred in awarding

and apportioning the amount and the same is without any

basis and contrary to law. He further submitted that Tribunal

grossly erred in granting interest at the rate of 9% instead of

7.5% as envisaged in Sarla Verma case and therefore, the rate

of interest is liable to be reduced to the extent of 7.5% only and

finally, prayed to set aside the award passed by the Tribunal

against the insurance company.

13. Per contra, learned counsel for the respondent Nos.1 to 3/

claimants submitted that on due consideration of the evidence

and material placed on record, the Tribunal had rightly

awarded the compensation and no grounds are made out to

interfere with the award passed by the Tribunal and prayed

the Court to dismiss the appeal.

LNA,J

14. On behalf of respondent no.4, written submissions are

filed contending that the appellant filed the present appeal on

two grounds i.e., liability and quantum of compensation and

contended the burden is on the insurance company to prove

that the driver is not holding a valid and effective driving

licence at the time of accident since the insurer has taken a plea

that terms and conditions of the policy were violated; that the

appellant though pleaded that driver was not holding valid

driving licence, but failed to take appropriate steps in framing

the issues with regard to that extent and to examine the

concerned RTO to establish that the driver of the vehicle has no

driving licence at the time of accident and therefore, the

allegations of the appellant are baseless and without any

evidence and finally, prayed to dismiss the appeal.

15. In support of his contentions, learned counsel for 4th

respondent placed reliance on the following decisions:

i) IFFCO Tokio General Insurance Co. Ltd., vs. Geeta Devi and others1;

2023 SCC Online SC 1398 LNA,J

ii) Common judgment of this Hon'ble Court in MACMA Nos.836 and 324 of 2017 dated 06.02.2024;

iii) Oriental Insurance Co. Ltd., vs. Pamarthi Gangadhara Rao and others2;

iv) Judgment of Hon'ble High Court of A.P., in

16. Insofar as the first contention of learned counsel for

appellant that the driver of the crime vehicle was not having

valid licence is concerned, on behalf of the appellant-insurance

company, RW.1 was examined and he deposed that they

issued notice to the 1st respondent to produce driving licence of

the deceased and on its behalf Ex.B2-office copy of legal notice

and Ex.B3-postal acknowledgment were marked. Except taking

a plea that driver of the crime vehicle was not having valid

driving licence and Exs.B2 and B3, appellant failed to take

further steps including examining the RTO to establish that the

driver of the crime vehicle was not having valid driving

licence. Perusal of the record would show that the 1st

respondent insured the crime vehicle with the 2nd respondent-

insurance company under Ex.B1-insurance policy and

2022 SCC Online AP 2569 LNA,J

therefore, the insurance company is liable to indemnify the

owner of the crime vehicle as per terms of the policy, as no

evidence and material was placed on record to the effect that

the insured violated the terms of the policy. Furthermore, the

criminal case i.e., CC No.1445 filed against the driver of the

crime vehicle under Section 304-A IPC and Section 181 of

Motor Vehicles Act ended in acquittal of driver of the

offending vehicle by the learned XIV Additional Chief

Metropolitan Magistrate, Hyderabad on 12.04.2016. In view of

the above discussion, this Court does not find any reason to

interfere with the finding of the Tribunal on the above aspect

and therefore, the contention of the appellant-insurance

company that driver of offending vehicle does not have valid

and effective driving licence, cannot be accepted.

17. Insofar as the contention of the learned counsel for

appellant that Tribunal erred in taking the notional income of

the deceased at Rs.7,000/- per month is concerned, as per the

record, it is contended that the deceased was working as Cook LNA,J

in a catering team and was earning a sum of Rs.9,000/- per

month besides other perks prior to the accident. Though

petitioners claimed that deceased was earning Rs.9,000/- per

month, they did not produce any material to show that the

deceased was working as cook in a catering team and earning

Rs.9,000/- per month. Perusal of the record would show that

the Tribunal observed that now-a-days, a Cook can easily earn

not less than Rs.6,000/- to Rs.9,000/- per month and therefore,

assessed the monthly earnings of the deceased at Rs.7,000/-. In

considered opinion of this Court, taking into consideration the

facts and circumstances of the present case, the relevant date of

accident, the inflation, devaluation of rupee, cost of living etc.,

this Court does not find any reason to interfere with the

monthly income assessed by the Tribunal.

18. Insofar as addition of income of the deceased towards

future prospects is concerned, the Tribunal had added 30% of

the income of the deceased towards loss of future prospects.

LNA,J

19. In National Insurance Co. Ltd., vs. Pranay Sethi and

others3, the Hon'ble Apex Court held as under:

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

20. In view of the above decision, an addition of 25% of the

income of the deceased requires to be added towards future

prospects where the deceased was self-employed and was aged

about 45 years as on the date of accident. In the present case

since the age of the deceased was 45 years, an addition of 25%

of the established income of the deceased should be warrant. In

considered opinion of this Court, the Tribunal erred in adding

30% of income of the deceased towards future prospects,

instead of 25% and the same needs to be modified to the extent

of 25% only.

21. The other contention raised by the learned counsel for

appellant is that the petitioners 2 and 3, who are the

(2017) 16 SCC 680 LNA,J

daughters of the deceased, are admittedly majors, and

therefore, they are not the dependents on their deceased

mother.

22. The Hon'ble Supreme Court in the case of National

Insurance Co. Ltd. Vs. Birender and others 4 , held as

under:

"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependent on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the legal representative concerned. Notably, the expression "legal representative"

has not been defined in the Act. In Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 :

(2008) 1 SCC (Cri) 585] , the Court observed thus: (SCC pp.

647-48, paras 9-12)

"9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub- section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view [Manjuri Bera v. Oriental Insurance Co. Ltd., 2003 SCC OnLine Cal 523 : (2004) 2 CHN 370] that the appellant could maintain a claim petition in terms of Section 166 of the Act.

10. ... The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.

11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and

(2020) 11 SCC 356 LNA,J

includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g).

12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique [Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275] the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234 : 1987 SCC (Cri) 482] a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."

13. In para 15 of Manjuri Bera [Manjuri Bera v. Oriental Insurance Co. Ltd., (2007) 10 SCC 643 : (2008) 1 SCC (Cri) 585] , while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of S.H. Kapadia, J., as his Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of Respondents 1 and 2 (claimants) even though they are major sons of the deceased and also earning.

14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs 1,00,000 and Rs 1,50,000 per annum. In that sense, they were largely LNA,J

dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.

23. In view of the aforesaid judgment of the Hon'ble

Supreme Court, this Court is not inclined to interfere with

the award and apportionment of compensation to respondent

Nos.2 and 3 herein only on the ground that they are major

daughters of the deceased. The major daughters of the

deceased also have undisputedly lost their mother in the

tragic accident. Therefore, the contention of learned counsel

for appellant that major daughters of the deceased are not

the dependents of the deceased mother is not tenable and the

same stands rejected.

24. The other contention of the learned counsel for appellant