Telangana High Court
Royal Sundaram General Insurance Co. ... vs Chinthala Rama on 28 June, 2024
* THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+M.A.C.M.A.No.2875 OF 2019
% 28-06-2024
# Royal Sundaram General Insurance Co. Ltd.,
....Appellant
Vs.
Chinthala Rama and others.
.... Respondents
!Counsel for the appellant : Sri A.Ramakrishna Reddy
Counsel for the Respondents : Sri Y.Swaroop Sai representing
Sri C.M.R.Velu
<Gist :
>Head Note:
? Cases referred:
1. 2003 (5) ALD 162 (AP)
2. 2017 (16) SCC 680
3. 2009 ACJ 1298 (SC)
2 SP,J and RRN,J
MACMA No.2875 of 2019
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
M.A.C.M.A.No.2875 OF 2019
Between:
Royal Sundaram General Insurance Co. Ltd.,
....Appellant
Vs.
Chinthala Rama and others.
.... Respondents
ORDER PRONOUNCED ON: 28.06.2024
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3 SP,J and RRN,J
MACMA No.2875 of 2019
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2875 of 2019
JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
This Motor Accident Civil Miscellaneous Appeal is filed by the
appellant-Insurance Company, aggrieved by the order and decree
dated 18.02.2019 passed in M.V.O.P.No.1042 of 2017 on the file of
the Chairman, Motor Accidents Claims Tribunal-cum-V Additional
District Judge-II-FTC, Warangal at Jangaon (for short 'the Tribunal').
2. For convenience, the parties will be referred to as arrayed before
the Tribunal.
3. The brief facts of the case are as follows:
On 27.08.2017, at about 06:00 hours, the deceased-Chinthala
Gattaiah, left from his house at Jangaon on a Taxi bearing
No.TS-08-UA-9952 to Phanigiri, Nagaram Mandal, Thirumalagiri
District, to attend a function along with his son, Chinthala Ashok and
son-in-law Shakapuram Samaiah and one Chintala Srihari. After
attending the function, they returned to Jangaon, where they reached
C.S.I. Hostel at the outskirts of Phanigiri village, the driver of the said
Car, Shakapuram Ganesh, drove it in a rash and negligent manner
4 SP,J and RRN,J
and dashed a tree, resultantly, they fell down on the road. The
deceased sustained grievous injuries, and the other inmates also
received simple and grievous injuries. After administering first aid at
Thirumalagiri, on the doctor's advice, the deceased was shifted from
Thirumalagiri Government Hospital to Government Area Hospital at
Jangaon for better treatment. The deceased succumbed to his injuries
on 27.08.2017 at about 8:30 P.M. at the Government Area Hospital at
Jangaon.
4. Based on the complaint given by one Gandamalla Shoban Babu,
VRA of Phanigir, the police Nagaram registered a case in Cr.No.36 of
2017 for the offence punishable under Section 337 of IPC against the
driver of the offending vehicle. Later, on coming to know about the
death of the deceased, the police altered the section of law from
Section 337 IPC to Section 304-A IPC. Therefore, the petitioners filed
the claim petition seeking compensation of Rs.25,00,000/- for the
deceased's death.
5. Before the Tribunal, the first respondent failed to file counter,
as such, forfeited the right to file counter. Respondent No.2 remained
ex-parte.
6. Respondent No.3 filed a counter affidavit denying the allegations
in the claim petition.
5 SP,J and RRN,J
7. PWs.1 and 2 were examined to prove the petitioners' case, and
Exs.A1 to A12 were marked. No oral evidence was adduced on behalf
of the respondents, but Ex.B1-Copy of the Insurance Policy was
marked.
8. After considering the oral and documentary evidence available
on record, the Tribunal allowed the claim petition by granting a sum
of Rs.59,30,000/- (Rupees Fifty Nine Lakh Thirty Thousand Only)
with costs and interest @ 9% per annum from date of the petition till
the date of realization. Respondent Nos.1 to 3 were jointly and
severally liable to pay the awarded amount. Though the claim
petition was filed only for Rs.25,00,000/-, the Tribunal granted an
amount of Rs.59,30,000/-. Challenging the same, respondent
No.3/Insurance Company has filed the present appeal.
9. Heard Sri A. Ramakrishna Reddy, learned counsel for the
appellant-Insurance Company and Sri Y.Swaroop Sai, learned
counsel representing Sri C.M.R.Velu, learned counsel for the
respondent Nos.1 to 4 and perused the record.
10. Learned counsel for the appellant-Insurance Company
contended that the Tribunal ought to have seen that except filing
Ex.A-7-original license of Fast Food Tiffin Centre, and
Ex.A-8-Partnership Deed pertaining to Shakapuram Sambaiah and
the deceased, no other oral or documentary evidence was produced to
show that the deceased was earning Rs.40,000/- per month,
6 SP,J and RRN,J
including salary and 50% of the profits. There is no whisper, either in
the pleadings or in the evidence of the petitioners, that the deceased
and Shakapuram Sambaiah have started the business and are
running the business as on the date of the accident.
11. Learned counsel for the appellant further contended that the
Tribunal ought not to have taken Rs.40,000/- per month as the
deceased's income, without any valid and cogent evidence. The
Tribunal failed to appreciate the fact that Ex.A-8 Partnership Deed
was executed on 19.05.2017 and that the alleged accident and death
of the deceased took place on 27.08.2017, i.e., within three months
from the execution of the deed. Further, no accounts were produced
by the petitioners with regard to the fast food centre's sales,
purchases, remuneration received by the deceased, and profit and
loss accounts. In the absence of proof, relying on the self-serving
statement of the petitioners, and taking the income of the deceased at
Rs.40,000/- per month and calculating the compensation thereon, is
highly excessive and contrary to the settled law, and as such, the
order of the Tribunal is liable to be set aside.
12. Learned counsel for the appellant further contended that the
Tribunal failed to appreciate that Ex.A-8 is brought into existence for
the purpose of this case. No person connected to the said partnership
deed, namely, the other partner who executed the deed and the
witnesses who were present at the time of execution of the said deed,
7 SP,J and RRN,J
were not examined. Therefore, it is clear that the same was brought
into existence for the purpose of this case, in contravention to the law
laid down by this Court in UNITED INDIA INSURANCE COMPANY
LIMITED Vs. MOHD.KHAJA RASOOL SAYYE 1, wherein it was held as
follows:
"...Therefore, any document produced by any of
the parties to the lis necessarily requires to be
proved in the manner as provided under the
Evidence Act. In most of these cases, the claimants
are producing certificates and discharge cards etc.,
issued by the doctors and hospitals and also the
bills in regard to the expenses incurred by them
which require to be proved in the manner as
provided under the Evidence Act. Mere marking of
documents through the claimants does not amount
to proof of the said documents as held in the
decision reported in 1971 S.C. 1856. In most of
these cases, no serious attempt is made to produce
the necessary competent witnesses. It is urged on
behalf of the claimants that once such certificates
and the bills etc., issued by the doctors, it is not
necessary to examine them. Such contention
2003 (5) ALD 162 (AP)
8 SP,J and RRN,J
cannot be accepted as there is no distinction
between medical evidence or other evidence in a
Court of law as per the provisions of the Evidence
Act. The said contention on behalf of the claimants
is to be rejected on the face of it. Therefore,
necessarily it has to be held that in the absence of
any evidence in proof of the documents through
proper witnesses, the documents produced cannot
be accepted nor can be relied on by the Court..."
13. Learned counsel for the appellant further contended that the
Tribunal, for the reasons best known to it, erroneously took the
income of the deceased at Rs.40,000/- per month, which is highly
excessive and without any basis.
14. Learned counsel for the appellant further contended that the
Tribunal ought to have seen that petitioner Nos.2 and 4 are married
daughters of the deceased. Further, PW.2, the son of the deceased
admitted in his cross-examination that both his sisters are married
and are living separately. Therefore, the Tribunal ought not to have
treated petitioner Nos.2 and 4 as dependants on the deceased's
income, and ought not to have deducted 1/3rd towards the personal
expenditure of the deceased instead of 1/4th.
15. Learned counsel for the appellant also contended that the
Tribunal awarded interest at 9% per annum, which is excessive, and
9 SP,J and RRN,J
it ought to have awarded interest at 6% per annum, in consonance
with the interest granted at nationalized banks on fixed deposits.
16. On the other hand, learned Counsel for respondents/petitioners
submitted that the Tribunal, after considering the evidence and
material placed before it, rightly granted compensation to the
respondents/petitioners. As such, no interference is required by this
Court in the same. Accordingly, prayed to dismiss the appeal.
17. 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 offending vehicle by its driver,
and having considered the evidence of PW.2 coupled with the
documentary evidence i.e., Ex.A-1-FIR and Ex.A-10-charge-sheet,
held that the accident occurred due to the rash and negligent driving
of the driver of the offending vehicle and has answered in favour of
the petitioners and against the respondents. Therefore, there are no
reasons to interfere with the said finding of the Tribunal that the
accident occurred due to the rash and negligent driving of the driver
of the offending vehicle.
18. Now, coming to the quantum of compensation, the Tribunal
observed, based on the testimony of PWs.1 and 2, that the deceased
was skilled in cooking and also that the deceased was self employed,
earning Rs.15,000/- per month as a Head Cook in Supritha Fast
Food and Tiffin Centre, apart from the business income of
10 SP,J and RRN,J
Rs.25,000/- per month and accordingly fixed the deceased's income
at Rs.40,000/- per month. In the present case, there was no evidence
adduced by the petitioners apart from Ex.A8 to demonstrate the
existence of the partnership between the deceased and Shakapuram
Sambaiah, and in view of the aforementioned judgment in UNITED
INDIA INSURANCE COMPANY LIMITED Vs. MOHD.KHAJA RASOOL
SAYYE (supra), which held that mere filing of documents is not
sufficient and the same has to be proved in the manner provided in
the Evidence Act, 1872, this Court is of the considered view that the
income earned from the partnership business cannot be presumed at
Rs.25,000/- per month. Further, the deceased met with the said
accident within a period of three months from the date of execution of
the partnership deed. As such, we cannot presume the profits arising
out of the partnership business of the deceased. Learned counsel for
the appellant-Insurance Company produced a National Income Chart
(Draft) prepared by the Telangana State Legal Services Authority,
showing the notional monthly income in the year 2023 as
Rs.15,000/-. However, there is no clarity in the said chart about the
nature of employment, i.e., skilled labour or unskilled labour. There
must be a variation in considering the notional income of a skilled
labour and an unskilled labour. As such, this Court is of the
considered view that the fixing of the monthly income of the deceased
at Rs.40,000/- by the Tribunal is on the higher side. This Court feels
11 SP,J and RRN,J
it appropriate to fix the total monthly income of the deceased at
Rs.30,000/- instead of Rs.40,000/-. Considering the available
evidence on record, the Tribunal has fixed the age of the deceased at
47 years. Since the deceased was self-employed, the petitioners are
entitled to 25% of the deceased's income towards future prospects, as
per the decision of the Hon'ble Apex Court in National Insurance
Company Limited Vs. Pranay Sethi 2. Therefore, the monthly
income of the deceased comes to Rs. 37,500/- (Rs.30,000 + 25%). The
annual income of the deceased would come to Rs.4,50,000/-
(Rs.37,500/- X 12). The deduction towards the personal expenses of
the deceased has been clearly laid down in the decision of the Hon'ble
Apex Court in Pranay Sethi (supra). In the instant case, the Tribunal
erred by wrongly deducting 1/4th of the income when it ought to have
deducted 1/3rd towards the personal expenditure of the deceased, in
terms of Pranay Sethi (supra), since petitioner Nos.2 and 4 are the
married daughters of the deceased and they are not dependants on
the income of the deceased. The dependants are two in number.
Hence, the deduction towards the personal expenditure of the
deceased is liable to be fixed at 1/3rd of the deceased's income.
Accordingly, 1/3rd of the annual income is deducted which comes to
Rs. 3,00,000/- (Rs.4,50,000 -Rs.1,50,000/-). As per the decision of
the Hon'ble Apex Court in Sarla Verma v. Delhi Transport
2017 (16) SCC 680.
12 SP,J and RRN,J
Corporation 3, the appropriate multiplier applicable for the
deceased's age is '13', as the deceased was aged 47 years at the time
of the accident. Adopting a multiplier of 13, the total loss of
dependency comes to Rs.39,00,000/- (Rs.3,00,000/- X 13).
19. As per Pranay Sethi (supra), petitioner No.1 is entitled to a sum
of Rs.48,400/- (Rs.40,000/- +10%+10%) towards loss of spousal
consortium. The petitioner Nos.1 and 3 are also entitled to a sum of
Rs. 36,300/- (Rs.15,000/- + Rs. 15,000/- + 10% + 10%) towards loss
of estate and funeral expenses. The Tribunal granted an amount of
Rs.15,000/- towards transport expenses, which is on the higher side,
and therefore, the same is reduced to Rs.10,000/- instead of
Rs.15,000/-.
20. Therefore, the order dated 18.02.2019 passed by the Tribunal in
M.V.O.P.No.1042 of 2017 is modified as follows:-
S.No. Particulars Amount
1. Loss of dependency Rs.39,00,000/-
2. Loss of Spousal Consortium Rs.48,400/-
(Rs.40,000/- +10%+10%)
3. Loss of Estate and Funeral Rs.36,300/-
Expenses
(Rs.15,000/-+Rs.15,000/-
+10%+10%)
2009 ACJ 1298 (SC)
13 SP,J and RRN,J
4. Transport Expenses Rs.10,000/-
Total Compensation Rs.39,94,700/-
20. The Tribunal awarded the rate of interest at 9% per annum,
which is excessive and this Court grants interest at the rate of 7.5%
per annum.
21. In the result, this M.A.C.M.A. is partly allowed and the
compensation amount awarded by the Tribunal is reduced from
Rs.59,30,000/- to Rs.39,94,700/- (Rupees Thirty Nine Lakh Ninety
Four Thousand Seven Hundred only) with interest @ 7.5 % p.a. from
the date of petition till the date of realization. The said compensation
amount is to be apportioned in the following manner:
1st petitioner: Rs.31,15,866/- (Rupees Thirty One Lakh Fifteen
Thousand Eight Hundred Sixty Six only)
3rd petitioner: Rs.8,78,834/- (Rupees Eight Lakh Seventy Eight
Thousand Eight Hundred Thirty Four only)
Respondent Nos. 1 to 3 are directed to deposit the said amount with
costs and interest, after giving due credit to the amount already
deposited, if any, within a period of two months from the date of
receipt of a copy of this judgment. On such deposit, Petitioner Nos.1
and 3 are permitted to withdraw the said amount in the manner as
indicated above. Insofar as the claim petition in respect of Petitioner
14 SP,J and RRN,J
Nos.2 and 4 is concerned, the same is liable to be dismissed, and it is
accordingly dismissed. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending, shall
stand closed.
________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
June 2024
Prv
