Telangana High Court

Nelloju Veera Shekar vs A Thirupathaiah,Antharam Thitupathi on 1 March, 2024

     THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

                     M.A.C.M.A.NO.182 OF 2019

JUDGMENT :

The petitioners in M.V.O.P.No.595 of 2015 have filed

this appeal under Section 173 of M.V.Act and assailed the

order dated 28.02.2017 whereunder the Tribunal allowed

their petition, in part by granting an amount of

Rs.5,85,000/- against their claim for Rs.10,00,000/- by

exonerating the 3rd respondent/insurance company and by

fixing the liability to pay compensation against the owner

and driver of the offending vehicle.

2. As could be seen from the impugned Judgment, the

appellants herein have filed the above said MVOP under

Section 166 of M.V.Act for compensation of Rs.10,00,000/-

in view of the death of one N.Bhagyamma, the wife of the 1st

appellant and mother of other appellants in a road traffic

accident. As per the material averments made by the

appellants in their petition, it was claimed that the

deceased attended labour work in a papaya garden at

Makthal and when she along with other coolies returned in

a lorry bearing No.AP-29-TC-0127, there was an accident

when the driver of vehicle drove it in high speed, in a rash

and negligent manner and dashed another Eicher vehicle.

The appellants have filed petition seeking compensation

from the driver of the offending vehicle, its owner and also

the insurance company. However, the Tribunal having

accepted the death of the deceased in the above referred

accident was of the opinion that the deceased was a

gratuitous passenger in the above said vehicle. The

respondent Nos.1 and 2 are not supposed to allow such a

passenger to the vehicle, thereby it amount to violation of

terms of policy, as such, the Tribunal having accepted the

contention of the appellants to some extent and in spite of

awarding compensation exonerated the insurance company

and directed the owner and driver of the vehicle to pay

compensation.

3. The appellants have filed this appeal on various

grounds and contended that the Tribunal failed to note that

the deceased was hale and healthy. She was earning

Rs.15,000/- per month by attending labour work and she

used to contribute the said income for the maintenance of

the family. But, the Tribunal considered the income of the

deceased as Rs.4,000/- and granted only an amount of

Rs.30,000/- towards loss of love and affection. The Tribunal

failed to consider the claim in proper way and exonerated

the insurance company only on the ground that the

deceased was a gratuitous passenger. Even if such a

conclusion is arrived, the Tribunal could have directed the

insurance company to pay compensation amount and

recover the same from respondent Nos.1 and 2, thereby

sought for setting aside the impugned judgment and for

enhancement of the compensation with a direction to all the

respondents to pay the said compensation.

4. In support of this claim the appellants sought to rely

on judgment between New India Insurance Company

Limited vs Resha Devi and Ors. 1, and another Judgment

between United India Insurance Company Limited,

Guntur vs Vajja Sesharathnam and Others 2.

5. Learned counsel for the appellants has submitted that

the evidence placed by the appellants clearly indicates that

the deceased was a coolie and returned in the vehicle after

1 2016 Slaw Suit (All) 4172 2 2023 (1) ALD 367 (AP)

completing her work. Therefore, she cannot be treated as

gratuitous passenger. Even otherwise if the Court finds that

she is gratuitous passenger, in view of the above referred

two Judgments it could have directed the 3rd respondent to

pay compensation and recover the same from owner and

driver of the vehicle. Learned counsel also claimed that the

material placed before the Court indicates that the deceased

was earning Rs.15,000/- per month, but the Tribunal failed

to consider and appreciate the oral evidence of the

witnesses and awarded a meager amount of compensation,

thereby prayed for enhancement of the said amount.

6. The Tribunal while appreciating the oral and

documentary evidence of the witnesses, found that the

appellants herein could not place any material to show that

the deceased was earning Rs.15,000/- per month.

7. As per the material record and according to the

averments made in Ex.A1, the appellants did not file any

proof of income of the deceased and the deceased was

shown to be in the age group of 30-35 years. Therefore, the

Tribunal rightly assessed the income of the deceased as

Rs.4,000/- per month and deducted 1/3 of the said income

towards her personal expenditure. However, since there are

(4) family members apart from the deceased, the Court

below could have deducted ¼ of the said income towards

the personal expenditure of the deceased. As rightly

contended by the appellants herein, the Tribunal did not

add appropriate amount towards loss of consortium. The

description of the appellants clearly indicates that apart

from the 1st appellant who is the husband of the deceased,

she has got 3 children who were shown to be in the age

group of 7-10 years and being minors, they were

represented by their father. The Tribunal ought to have

awarded appropriate compensation towards loss of

consortium in favour of the appellant Nos.2 to 4.

8. With regard to the liability, the learned Chairman,

Motor Accident Claims Tribunal opined that the evidence

placed before him indicates that the deceased was a

gratuitous passenger. Therefore, the 3rd respondent cannot

be made liable to pay compensation. However in the above

referred Judgment between New India Insurance Company

Limited vs Resha Devi and Ors., whereunder the Court

relied on the Judgment between Rajesh and Others vs

Rajbir Singh 3 and Kalpanaraj and Others vs Tamil

Nadu State Road Transport Corporation 4, whereunder it

was observed that grading principles for determining

compensation is that it must be just and reasonable and

the Court should not succumb to niceties or technicalities

in such matters while considering the issue of award of

compensation under non-pecuniary damages such as loss

of consortium, loss of love, care and guidance to children

and funeral expenses. Reliance was placed on the judgment

between United India Insurance Company Limited vs

Suresh K.K and Others 5 and another Judgment of this

Court in The New India Assurance Company Limited vs.

Smt.G.Kalamma and Others, wherein the Judgment

larger bench of the Hon'ble Supreme Court in National

Insurance Company Ltd., vs Baljit Kaur 6 and Judgment

of High Court of Andhra Pradesh in Nagula Tulasamma

and Another vs Bhupathi and Others in CMA 970 OF

2004 7, it was held that in case of death of gratuitous

3 2013 9 SCC 54 4 2014 AIR SC 2982 5 2008 6 ALD 87 6 2004 3 Bombay CR (SC) 578 72015 1 ALD 613

passenger traveling in a crime vehicle and though there was

an observation that such passenger is not covered by policy,

the insurance company can be directed to pay

compensation and recover the same from owner and driver

of the vehicle.

9. In the above referred Judgment in the case of United

India Insurance Company vs Suresh K.K and Another, it was

held that the insurance company shall pay the amount to

the claimants and recover the same from the owner of the

vehicle to meet the ends of justice as the claimant was a

coolie/worker and is not in a position to realize the

difference from the owner of the vehicle.

10. In another Judgment on which the reliance was

placed the principle of pay and recovery was accepted in the

case of gratuitous passengers. Therefore, the Tribunal even

if it came to conclusion that the deceased was gratuitous

passenger, could have directed the payment of

compensation by the insurance company, giving liberty to

recover the same from the owner of the vehicle. The

evidence placed before the Tribunal clearly shows that the

above referred accident occurred when the deceased was

travelling by sitting in papaya fruits that were transported

from the garden, However, in the light of observations and

findings arrived at by the Tribunal, even it is found that the

deceased was a gratuitous passenger, still the insurance

company cannot escape the payment of compensation, but

it can recover the same after satisfying the decree.

11. In view of the above said findings, the appellants are

entitled to the following amount:

The monthly income of the deceased was assessed as

Rs.4,000/-. If ¼ of the said income is deducted towards

personal expenditure of the deceased, the financial loss to

the family would be Rs.3,000/- per month and Rs.36,000/-

per annum. In view of the age of the deceased being 30-35

years, the appropriate multiplier is "15". Therefore, the

appellants are entitled to an amount of Rs.5,40,000/-

towards loss of dependency. They are also entitled to an

amount of Rs.15,000/- towards funeral expenses,

Rs.15,000/- towards loss of estate. Rs.1,60,000/- towards

loss of consortium (petitioner Nos. 1 to 4 are entitled to

Rs.40,000/- each). Accordingly, the appeal is allowed.