Telangana High Court
V Rajeshwari vs Mohd. Javid on 6 March, 2024
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
M.A.C.M.A.Nos.2655 and 2857 OF 2018
COMMON JUDGMENT :
Being aggrieved by the award, dated 02.07.2018 in
M.V.O.P.No.553 of 2015 passed by the Motor Accident Claims
Tribunal-cum- III Additional Chief Judge, City Civil Court,
Hyderabad (for short 'the Tribunal') whereunder, the petition filed
by the claimants under Section 166 of the Motor Vehicles Act,
1988 (for short 'M.V. Act'), for compensation of Rs.22,00,000/-
was partly allowed by awarding a sum of Rs.17,50,000/-, both the
petitioners/claimants and respondent No.2/Insurance company
have filed two separate appeals and challenging the impugned
order on different grounds.
2. The claimants being not happy with the amount of
compensation awarded by the Tribunal filed M.A.C.M.A.2857 of
2018 sought for enhancement of compensation whereas Insurance
company filed M.A.C.M.A.No.2655 of 2018 on the ground that the
Tribunal was wrong in awarding that much amount of
compensation, thereby sought for reducing the amount or for
setting aside the award.
3. For the sake of convenience, it is proposed to dispose of
these appeals under a common judgment and the parties will be
MCMA Nos.2655 & 2857 of 2018
referred in the same ranking, which was used in the original
petition.
4. Before adverting to the different contentions raised by
both the parties in both the appeals, it is just and necessary to
refer the brief case of the claimants as per the petition. The
claimants are wife, son and mother of one Sri V.Sathyanarayana
Chary (hereinafter referred as to the 'deceased') and that on
30.01.2015 at about 4.30 am while the deceased was travelling in
Auto along with some other passengers from Mehidipatnam to
Langer House and when the Auto was proceeding in slow manner
on extreme left side of the road and when the Auto reached Darga
at Langer House, the driver of a Tipper lorry bearing No. AP28X-
5471 by driving the same in high speed in rash and negligent
manner while coming in the opposite direction dashed the Auto,
due to which all the passengers of the Auto fell on the road. The
deceased suffered fatal injuries and died on the spot. The
petitioners have claimed that at the time of accident, the deceased
was 40 years, he was a Mason attending civil construction works
in twin cities of Hyderabad and was earning an amount Rs.
20,000/- per month, due to the accident they lost their
breadwinner. Thereby, the petitioners sought for compensation
from the owner and insurer of the above referred Tipper lorry.
MCMA Nos.2655 & 2857 of 2018
5. The first respondent i.e., owner of the Tipper lorry remained
ex parte before the Tribunal, but respondent No.2/Insurance
company opposed the claim on various grounds. The 2nd
respondent has claimed that though there was a policy issued
against the Tipper lorry, the owner of the Tipper lorry committed
certain irregularities and there was breach of conditions since the
driver of the vehicle was not having valid and effective driving
license to drive heavy transport vehicle which amounts to violation
of the policy conditions. The 2nd respondent having denied the
other averments made in the petition prayed for dismissal of the
claim. On the basis of the above contentnions, the Tribunal has
framed the following issues:
i. Whether the death of the deceased occurred due to rash
and negligent driving of driver of crime vehicle i.e., Tipper
Lorry bearing registration No.AP-28X-5471?
ii. Whether the petitioners is entitled to the compensation
and whether the respondents are liable for the
compensation, if so to what extent?
iii. To what relief?
6. During the enquiry, on behalf of the petitioners two witnesses
were examined as PW-1 & PW-2 and marked Exs.1 to A5. On
behalf of the 2nd respondent two witnesses were examined as RW-
1 and RW-2 and Ex.B1 to B3 and Exs.X1 to X3 were also marked.
MCMA Nos.2655 & 2857 of 2018
The Tribunal having appreciated the oral and documentary
evidence, came to conclusion that the accident took place due to
the rash ad negligent driving by the driver of the Tipper lorry. Both
the respondents are liable to pay compensation and awarded a
sum of Rs.17,50,000/- under various heads.
7. The petitioners have filed appeal vide M.A.C.M.A 2857 of 2018
and prayed for enhancement of compensation on the ground that
the Tribunal did not accept their claim with regard to the income
of the deceased and took very low income for assessing the
financial loss. In fact the deceased was a skilled Mason who was
engaged in construction of buildings in the twin cities. In view of
his age and occupation, the Tribunal ought to have awarded more
compensation.
8. Whereas the 2nd respondent-Insurance company opposed the
award on the ground that though the Insurance company was able
to show that the driver of the above referred Tipper lorry was not
having valid and effective license, though the evidence proved the
owner of the vehicle handed over the Tipper lorry to such a
unqualified driver which amounts to violation of policy conditions,
the Tribunal unnecessarily fastened liability on the Insurance
company, thereby, it is liable to be set-aside. The second
respondent has claimed that the license produced by the driver is
MCMA Nos.2655 & 2857 of 2018
fake license. The Tribunal assessed the income of the deceased at
higher side and awarded exorbitant amount, thereby, prayed for
setting-aside the award or to reduce the compensation.
9. Heard learned counsel for the appellant and learned cousnel
for the respondents. Perused the material available on record.
10. Now the point for consideration is:
i. Whether the Tribunal committed any error in assessing the
income of the deceased or awarding the compensation as
Rs.17,50,000/- and whether there are any grounds for
enhancement of the said compensation?
ii. Whether the Tribunal failed to appreciate the contentions raised
by the Insurance company that the driver of the Tipper lorry was
not having valid license and it amount to violation of the policy
conditions, thereby, ought to have exonerated the Insurance
company from payment of the compensation to the petitioners?.
11. There is no dispute about the relationship between the
petitioners and the deceased. Similarly, there is no dispute about
the accident which occurred on 30.01.2015, when the Tipper lorry
bearing No. AP28X-5471 dashed the Auto in which the deceased
was going from Mehidipatnam to Langer House. It seems soon
MCMA Nos.2655 & 2857 of 2018
after the accident a complaint was lodged with Police, Langer
House Police Station, a case in Crime No.47 of 2015 was registered
under Section 304(A) and 337 of IPC against the driver of the
Tipper lorry and after completion of investigation Police have filed
charge sheet against the said driver.
12. The petitioners, apart from examining PWs-1 and 2 to prove
their claim have also filed the certified copies of FIR, charge sheet,
inquest report, PME report and report of the Motor Vehicle
Inspector, who inspected the crime vehicle. The oral evidence as
well as Exs.A1 to A5 proves the involvement of the Tipper lorry
and as to how the accident took place. Therefore, the findings of
the Tribunal that the accident took place due to the rash and
negligent driving of the driver of the Tipper lorry has been
established. There are no grounds to interfere with the said
findings of the Tribunal.
13. The next aspect is with regard to the liability, the Insurance
company has claimed that the driver of the Tipper lorry was not
having a valid license. Stating that the license produced by him is
fake one. In order to prove their claim, the Insurance company has
examined one of its employees as RW-1 and an employee from
R.T.O has been examined as RW-2. As could be seen from Ex.X2,
the letter from R.T.O, the respondent made an attempt to prove
MCMA Nos.2655 & 2857 of 2018
that the license produced by the driver of the Tipper lorry was not
issued in the name of Sayyed Mukthdar, but it was in the name of
G.Ambadas. However, the Tribunal while appreciating the oral and
documentary evidence including Ex.X1 and X2 documents found
that the license produced by the driver was a fake one still
directed the Insurance Company to pay the compensation amount
and gave liberty to the Insurance Company to recover the same
from the owner.
14. In fact, there is no evidence before the Tribunal to conclude
that the owner of the vehicle has got knowledge about the fake
driving license produced by the driver. Being a owner of the vehicle
what best he can do is to verify whether the driver whom he want
engage was possessing any license. When the driver produced a
license, what he would expected is whether the driver can drove
the vehicle, but we cannot expect that he would conduct roving
enquiry to know the genuineness of the driving license. However,
in the present case, the Tribunal having considered the evidence of
both the parties having decided that the driving license produced
by the driver is a fake one, though directed the Insurance
Company to pay compensation, gave liberty for recovery of the said
amount from the respondent No.1. Therefore, the said liability
MCMA Nos.2655 & 2857 of 2018
cannot be set aside on any of the grounds raised by the 2nd
respondent-Insurance company.
15. With regard to the quantum of the compensation, the
Insurance company has claimed that higher amount has been
awarded, since the petitioners have already filed another appeal
seeking enhancement of the compensation, this particular issue
can be decided by considering both the contentions of the
petitioners/claimants and respondent-Insurance company.
16. According to impugned order, it appears that the petitioners
have claimed that the deceased was a Mason, he was attending
construction of buildings in twin cities and was earning an
amount of Rs.20,000/- per month. According to Ex.A4, the age of
the deceased was proved to be 42 years. Even though the
petitioners have claimed that the deceased was earning
Rs.20,000/- per month, the Tribunal having relied on judgment
between Repaka Rajya Laxmi and others Vs. Poldasari
Koomuraiah and others 1 considered the monthly income of the
deceased as Rs.12,000/- and added 25% of the said income
towards future prospects. According to the averments made in the
claimant petition, the deceased was the only earning member of
the family consisting himself, his wife, son and mother, the age of
1 2009 ACJ 138(APDB)
MCMA Nos.2655 & 2857 of 2018
the deceased was 42 years. Therefore, even if it is considered that
he was Mason by his hard work, it may not be difficult for him to
earn a minimum wage of Rs.400/- per day. Therefore, the Tribunal
has rightly considered the monthly income of the deceased as
Rs.12,000/- and in view of the settled proposition of law, even in
case of a private employee or person with self employment 25% of
the actual income can be added as future prospects. The Tribunal
rightly awarded a sum of Rs.16,80,000/-, the other amounts such
as loss of consortium at Rs.40,000/-, loss of love and affection at
Rs.15,000/- and a sum of Rs.15,000/- towards funeral expenses
cannot be termed as excess compensation. Therefore, the claim of
the petitioners for enhancement cannot be accepted, because the
Tribunal has already considered all the material averments and
awarded an appropriate amount of compensation. Similarly, there
are no grounds to consider the request of respondent No.2 for
reducing the compensation amount or to set aside the award
passed by the Tribunal. Therefore, both the appeals are liable to
be dismissed.
17. In the result, both the appeals are dismissed. There shall be
no order as to costs.
MCMA Nos.2655 & 2857 of 2018
As a sequel, pending Miscellaneous Applications, if any, shall
stand closed.
___________________________________
JUSTICE SAMBASIVA RAO NAIDU
Date:06.03.2024
ktm
