Telangana High Court
Orsu Padma And 3 Others vs E. Venkanna And Another on 24 June, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
MACMA No. 3601 OF 2008
Between:
1. Orsu Padma
2. Orsu Hari Charan
3. Orsu Vamshi Krishna
4. Orsu Ramulamma
... Appellants/
Claimants
And
1. E.Venkanna
2. The Bajaj Allianz General Insurance
... Respondents
DATE OF JUDGMENT PRONOUNCED: 24.06.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ MACMA No.3601 OF 2008
% Dated 24.06.2024
# 1. Orsu Padma
2. Orsu Hari Charan
3. Orsu Vamshi Krishna
4. Orsu Ramulamma
... Appellants/
Claimants
And
$ 1. E.Venkanna
2. The Bajaj Allianz General Insurance
... Respondents
! Counsel for the Appellants: Smt.K.Rajitha
^ Counsel for the Respondents: Sri T.Mahender Rao for R2
>HEAD NOTE:
? Cases referred
1
(2010) 11 Supreme Court Cases 153
2
(2000) 6 Supreme Court Cases 359
3
(2017) 16 SCC 680
4
(2009) 6 SCC 121
3
HONOURABLE SRI JUSTICE K.SURENDER
MACMA.No.3601 of 2008
ORDER:
1. This appeal is filed by the claimants who are the legal
representatives of the deceased seeking enhancement of the
compensation granted by the Tribunal in OP.No.885 of 2005,
dt.25.02.2008.
2. Respondent No.1 is the owner and respondent No.2 is the
insurer of the offending vehicle i.e. Hero Honda Passion Plus
Motor Cycle bearing No.AP.24 L 0116.
3. Heard.
4. When the case was taken for hearing learned counsel
appearing for the Insurance Company would submit that
MACMA.No.2787 of 2008 was filed by the Insurance Company and
the said appeal was dismissed by this Court on 16.03.2023. Since
it was not informed that the present appeal filed by the claimants
was pending though the counsel for the claimants was present, it
has to be held that the Judgment in MACMA No.2787 of 2008 had
attained finality and the cause in the present appeal would not
survive for the reason of the lower court Judgment being merged
with the High Court Judgment in MACMA No.2787/2008.
5. Learned Counsel appearing for the appellants/claimants
would submit that the ground raised by the counsel for the
Insurance Company is incorrect and not in accordance with the
doctrine of merger. Firstly, there was no reference to the present
appeal in the Judgment of this Court while disposing off the
appeal of the insurance company vide MACMA.No.2787/2008.
6. Secondly, in view of the Judgments of the Honourable
Supreme Court in Commissioner of Central Excise, Delhi v.
Pearl Drinks Limited 1 and Kunhayammed and others v.
State of Kerala and another 2, the present appeal for enhancing
the compensation can be considered irrespective of the dismissal
of the insurance appeal.
7. In Commissioner of Central Excise's (supra 1) the
Honourable Supreme Court held as follows;
"21. The Tribunal obviously failed to notice this distinction and
proceeded to apply the doctrine of merger rather mechanically.
It failed to take into consideration a situation where an order
may be partly in favour and partly against a party in which
event the part that goes in favour of the party can be separately
(2010) 11 Supreme Court Cases 153
assailed by them in appeal filed before the appellate court or
authority but dismissal on merits or otherwise of any such
appeal against a part only of the order will not foreclose the
right of the party who is aggrieved by the other part of this
order. If the doctrine of merger were to be applied in a pedantic
or wooden manner it would lead to anomalous results
inasmuch as a party who has lost in part can by getting his
appeal dismissed claim that the opposite party who may be
aggrieved by another part of the very same order cannot assail
its correctness no matter the appeal earlier disposed of by the
court or authority had not examined the correctness of that part
of the order."
8. In Kunhayammed and others's case (supra 2) the
Hnourable Supreme Court held as follows;
"7. The doctrine of merger is neither a doctrine of constitutional
law nor a doctrine statutorily recognized. It is a common law
doctrine founded on principles of propriety in the hierarchy of
justice delivery system. On more occasions than one this Court
had an opportunity of dealing with the doctrine of merger. It
would be advisable to trace and set out the judicial opinion of
this Court as it has progressed through the times.
12. The logic underlying the doctrine ofmerger is that there
cannot be more than one decree or operative orders governing
the same subject-matter at a given point of time. When a decree
or order passed by an inferior court, tribunal or authority was
subjected to a remedy available under the law before a superior
forum then, though the decree or order under challenge
continues to be effective and binding, nevertheless its finality is
put in jeopardy. Once the superior court has disposed of the lis
(2000) 6 Supreme Court Cases 359
before it either way __ whether the decree or order under
appeal is set aside or modified or simply confirmed, it is the
decree or order of the superior court, tribunal or authority which
is the final, binding and operative decree or order wherein
merges the decree or order passed by the court, tribunal or the
authority below. However, the doctrine is not of universal or
unlimited application. The nature of jurisdiction exercised by
the superior forum and the content or subject-matter of
challenge laid or which could have been laid shall have to be
kept in view."
9. In the present case, admittedly, appeals were filed by both
the insurance company and the claimants. Notices were served on
either side in both the appeals. In the said circumstances, when
the Insurance Company appeal was heard, it was the duty of both
the parties to bring to the notice of the learned Judge regarding
pendency of the appeal of the claimants. However, for the reasons
unknown, it was not brought to the notice of the learned Judge
regarding the present appeal. As seen from the order, it is not the
finding of this Court in MACMA.No.2787 of 2008 that the award
passed by the Tribunal was adequate or that it cannot be
enhanced. Though, no such observation would be made in the
appeal filed by the Insurance Company, however, nothing is
indicated in the order that the present appeal filed by the
appellants could not be taken up either expressly or impliedly.
10. Following the aforesaid Judgments of the Honourable
Supreme Court, I find that the ground raised by the counsel for
the Insurance Company is not tenable.
11. Insofar as the enhancement of compensation claimed by the
claimants in the present appeal is concerned, the deceased was
earning Rs.10,000/- per month as civil contractor. Exs.A8 and A9
reflects that he was a diploma holder having passed X class
examination. In the said circumstances, this Court is inclined to
consider the income of the deceased at Rs.5,000/- per month and
accordingly grant compensation.
12. In view of the law laid down by the Honourable Supreme
Court in National Insurance Company Limited v. Pranay Sethi
and others 3, since the deceased was aged 26 years as on the date
of accident, future prospects @ 40% of the income of the deceased
has to be added which comes to Rs.2,000/-. Then the total income
comes to Rs.7,000/-(5,000 + 40%). The annual income of the
deceased comes to Rs.84,000/-p.a. (7,000 x 12). Since the
dependents are 4 in number, 1/4 of the income of the deceased
i.e. Rs.21,000/-(84,000 x 1/4) has to be deducted towards
personal expenses which comes to Rs.63,000/- (84,000 - 21,000).
(2017) 16 SCC 680
As per the PME report, the deceased was aged 26 years on the
date of accident. Then, as per the Judgment of Honourable
Supreme Court in Sarla Verma v. Delhi Transport Corporation 4
the relevant multiplier is '18' and then the loss of income due to
the death of the deceased comes to Rs.11,34,000/- (63,000 x 18).
13. As per the decision of the Constitutional Bench of Apex court
in case of Pranay Sethi's case, the conventional heads namely
loss of estate, loss of consortium and funeral expenses should be
Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively and the
same should be enhanced on percentage basis in every three years
and the enhancement should be at the rate of 10%. Then the total
consortium granted to wife and mother comes to Rs.96,800/-
(40,000 x 2 + 10% for every three years) and Loss of Estate and
funeral expenses comes to Rs.36,300/- (15,000 + 15,000 + Add
10% for every three years).
14. In total claimants are entitled to a total amount of
compensation of Rs.12,67,100/-( 11,34,000 + 96,800 + 36,300).
15. Accordingly, the appeal is allowed and the compensation
granted by the Tribunal to the claimants is enhanced from
Rs.4,51,383/- to Rs.12,67,100/-with interest @ 7.5% on the
(2009) 6 SCC 121
enhanced amount from the date of petition till realization payable
by respondents 1 and 2 in the OP. The amount shall be deposited
within 6 weeks from the date of receipt of a copy of this order. The
said amount of Rs.12,67,100/- shall be apportioned among the
claimants in the same proportion in which original compensation
amounts were directed to be apportioned by the Tribunal and the
claimants are permitted to withdraw their respective shares
without furnishing any security. The claimants have to pay the
deficit Court fee or the Tribunal may deduct the amount required
for the purpose of Court fee from the amount awarded to the
claimants after respondents Insurance Company deposits the
amount.
As a sequel, miscellaneous applications, if any, pending in
this appeal shall stand closed.
___________________
K.SURENDER, J
Date: 24.06.2024
Note:L.R .copy to be marked.
tk
