Telangana High Court
Smt. Pothula Bhagyamma , Bhagya Laxmi vs N.Ravinder on 8 November, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.Nos.2824 of 2015 and 2876 of 2015
COMMON JUDGMENT:
(per Hon'ble Sri Justice Namavarapu Rajeshwar Rao)
These two appeals are being disposed of by way of this
common judgment since M.A.C.M.A.No.2824 of 2015 filed by
the appellant/Reliance General Insurance Co. Ltd., and
M.A.C.M.A.No.2876 of 2015 filed by the appellants/Petitioners,
are directed against the very same order and decree, dated
25.06.2015 passed in M.V.O.P.No.02 of 2013 by the Chairman,
Motor Vehicle Accidents Claims Tribunal-cum-IV Additional
District Judge (FTC), Siddipet (for short, "the Tribunal").
2. Heard Sri. M. Ajay Kumar, Learned counsel appearing for
Appellants/petitioners and Sri. T.Mahender Rao, Learned
counsel appearing for respondent No.2/Insurance Company.
3. For the sake of convenience, the parties are hereinafter
referred to as they are arrayed before the Tribunal.
4. The brief facts of the case are as follows:-
The petitioners filed a claim petition under Section 166 of
the Motor Vehicles Act, 1988 and Rules 5785/1B of A.P.M.V.
Rules, 1989 r/w Section 140 of M.V. Act, 1988 claiming
compensation of Rs.40,00,000/- on account of the death of
Pothula Shankar (hereinafter referred to as "deceased") in a road
accident that occurred on 19.10.2012.
4(i) On 19.10.2012, at about 7.00 p.m., the deceased
was proceeding on his Motorcycle bearing No.AP-23AE-2556
from Lingareddipally "X" roads towards Siddipet side on
Karimnagar road and when he reached in front of Mayuri Dhaba
Hotel at Hanuman Nagar, Siddipet, meanwhile an Auto bearing
No.AP- 26Y-5956, driven by its driver in a rash and negligent
manner at high speed, suddenly turned it to the right side and
dashed the motorcycle, due to which, the motorcyclist Pothula
Shankar fell on the road and received severe head and other
grievous injuries all over the body. Immediately, he was shifted
to Area Hospital, Siddipet. After first aid, he was referred to
Gandhi Hospital, Secunderabad, and while undergoing
treatment, he succumbed to the injuries on 24.10.2012 at
about 4.00 PM. On a complaint, the police Siddipet-II(Town)
registered a case in Cr.No.129/2012, under Section 304-A of
IPC against the driver of crime vehicle Auto bearing No.AP-26Y-
5956. Hence, the claim petition.
5. 1st respondent remained ex parte. Respondent
No.2/Insurance Company submitted before the Tribunal as
under:
It is the contention of respondent No.2 that the claimants
have not filed documentary evidence before the Tribunal in
proof of the deceased's income. He further contended that
according to the contents of the petitioners, at the time of the
accident, the deceased was proceeding on his motorcycle
bearing No.AP-26Y-5956, hence, the petitioners ought to have
impleaded the owner and Insurance Company of the said
motorcycle. Therefore, the claim petition must be dismissed for
non-joinder of necessary parties. He further contended that as
per the police records, the alleged accident took place on
19.10.2012, whereas he lodged a complaint on 25.10.2012 after
the death of the deceased. So, it is clear that the crime vehicle
is planted by the petitioners in collusion with concerned police
to extract insurance amount from this respondent. As such,
this respondent is not liable for any compensation.
Accordingly, prayed to dismiss the claim petition.
6. Based on the above pleadings, the Tribunal framed the
following issues:
1. Whether the accident was occurred due to rash and
negligent driving of driver of crime vehicle Auto bearing
No.AP-26Y-59567?
2. Whether the petition is bad for non-joinder of owner and
insurance company of Motorcycle bearing No.AF-23AE-
2536?
3. Whether the claimants are entitled for the compensation,
if so, what extent and from whom?
7. To prove their claim, the petitioners examined P.Ws.1 to 3
and marked Exs.A1 to A14. On behalf of the 2nd respondent,
examined RW.1 and got marked Ex.B1-copy of the insurance
policy.
8. Regarding rash and negligent aspects, the Tribunal
considered the evidence of PW.2/eyewitness to the occurrence
who deposed that the Auto bearing No.AP-26Y-5956 took a "U"
turn and hit the motorcycle of the deceased as such, the
deceased fell and received injuries, Ex.A3/Scene of offence
panchanama, wherein it was mentioned that the Auto bearing
No.AP-26Y-5956 hit the Motorcycle, thereby, he was thrown out
on the road and sustained injuries to the head;
Ex.A4/postmortem examination report shows that the deceased
died due to head injury and Ex.A5/chargesheet shows that the
driver of Auto bearing No.AP- 26Y-5956 had surrendered before
the police and he was arrested in the alleged crime. So, based
on the oral and documentary evidence available on record, the
Tribunal held that the accident occurred due to rash and
negligent driving of the Auto bearing No.AP-26Y-5956 by its
driver.
9. With regard to the non-joinder of the owner and
insurance company of Motorcycle bearing No.AF-23AE-
2536, the Tribunal held that except oral assertion, the 2nd
respondent had not placed any evidence on the above said
aspect. As such, the Tribunal concluded that no material was
found on record to add the owner and insurer of Motorcycle
bearing No.AF-23AE-2536. Accordingly, it answered the issue
No.2 in favour of the petitioners and accordingly awarded an
amount of Rs.29,78,600/- with interest @ 7.5% per annum from
the date of petition till the date of realization. Challenging the
same, the present M.A.C.M.As are filed.
10. Learned counsel appearing for the petitioners contended
that the Tribunal failed to award compensation under
conventional heads as per the judgment of Reshma Kumari and
Rajesh wherein the petitioners are entitled to Rs.1,00,000/- for
the consortium and were granted only Rs.10,000/-, whereas
love and affection for each child to be granted Rs.1,00,000/-,
but granted only Rs.20,000/-, whereas the Tribunal failed to
award loss of guidance to the minor children at Rs.1,00,000/-
each, and granted Rs.10,000/- instead of Rs.25,000/- as
funeral expenses.
11. Learned counsel appearing for the petitioners further
contended that the Tribunal failed to consider that the judgment
of Harsha Varms and Md. Mansoor Vs. United India, wherein
the mother was also entitled to Rs.50,000/- towards loss of love
and affection towards the mother by the son.
12. Learned counsel appearing for the petitioners further
contended that the Tribunal failed to consider the future
prospects of the deceased, who was working as an employee in
Municipal Corporation and taken monthly income of
Rs.20,337/- without adding future prospects and granted
compensation against the principles laid down in Sarala Varma
as well as Rajesh as the deceased was aged about 39 years and
got 18 years of service and increasing of the present salary.
13. Per contra, learned counsel for respondent No.2/Insurance
Company contended that the Tribunal erred in holding that
respondent No.2/Insurance Company is liable to pay
compensation of Rs.29,78,600/- along with interest @7.5% p.a.
with proportionate costs. He further contended that the
Tribunal failed to see that the alleged accident took place on
19.10.2012, but lodged the complaint before the police on
25.10.2012, and the insured auto was planted by the
petitioners Nos.1 to 5 in collusion with the police in order to
claim compensation against the Insurance Company.
14. Learned counsel for respondent No.2/Insurance Company
further contended that the Tribunal failed to appreciate that the
accident occurred due to a collision of the motorcycle bearing
No.AP-23AE-2536 was driven by the deceased, and the auto
bearing No.AP-26Y-5956 and, therefore, ought to have at least
held that the accident took place due to the contributory
negligence of the deceased and the driver of the auto and
apportioned the compensation accordingly, as a head-on
collision between two vehicles coming from opposite directions
takes place only when the drivers of both vehicles are negligent.
15. Learned counsel for respondent No.2/Insurance Company
further contended that the Tribunal gravely erred in taking the
gross income of Rs. 20,337/- per month to estimate the loss of
dependency. The Tribunal failed to see that income tax and
professional tax are liable to be deducted from the deceased's
income while estimating the loss of dependency to petitioners
Nos. 1 to 5.
16. Learned counsel for respondent No.2/Insurance Company
further contended that the Tribunal, having observed that there
are 5 dependents, gravely erred in ducting 1/5th of the income
towards personal expenses of the deceased. The Tribunal failed
to see that the deduction for personal and living expenses of the
deceased should be 1/4th, where the dependent family members
are 4 to 6, as per the judgment of the Supreme Court in Smt.
Sarla Varma and others Vs. Delhi Transport Corporation and
another (2009 ACJ 1298).
Findings of this Court:
17. The main contention of the learned counsel for
respondent No.2 is that as per the police records, the alleged
accident took place on 19.10.2012, whereas complaint was
lodged on 25.10.2012 after the death of the deceased. So, it is
clear that the crime vehicle was planted by the petitioners in
collusion with concerned police to extract insurance amount
from this respondent. But, a perusal of the impugned order of
the Tribunal goes to show that the Tribunal made it clear that
the claimants have not explained the reason for the delay in
giving a complaint. However, there is no proof that the crime
vehicle was involved in the accident. In the cross-examination,
RW-1 admitted that they had not filed any protest petition and
documentary evidence in regard to the planting of a crime
vehicle. Moreover, it is natural that when an accident occurs,
the concerned persons are in a hurry to provide the better
treatment to the injured, and they give the least importance to
lodge a complaint immediately after the accident. For the said
reasons, the contention of learned counsel for respondent No.2
does not hold water.
18. Insofar as the deceased's income is concerned, according
to the petitioners, the deceased worked as a driver in Municipal
Council, Siddipet, earning Rs.18,000/- per month. In support
of their contention, the petitioners examined PW.3, Junior
Assistant in Municipal Council, Siddipet, and produced a
Service Register of the deceased, which is marked as Ex.A14.
According to it, the last paid salary to the deceased was
Rs.12,550/-. The Tribunal observes that as per Ex.A12/original
salary certificate of the deceased, the gross income of the
deceased was Rs.20,337/- per month and under deductions, an
amount of Rs.150/- is shown towards professional tax. The
Tribunal took the gross salary of the deceased without
deducting professional tax. Thus, after deducting professional
tax, it comes to Rs.20,187/- (Rs.20,337/- minus Rs.150/-
towards professional tax. Thus, the annual income comes to
Rs.2,42,244/- (Rs.20,187/- x 12).
19. It is to be noted that as per the Income Tax slab for the
financial year 2013-14, the income tax was exempted up to
INCOME SLABS INCOME TAX RATES
Upto Rs.2,00,000 NIL
Rs.2,00,000 to
10% of the amount exceeding Rs.2,00,000
5,00,000
Rs.5,00,000 to Rs.30,000 + 20% of the amount exceeding
10,00,000 Rs.5,00,000
Rs.10,00,000 & Rs.1,30,000 + 30% of the amount exceeding
above Rs.10,00,000
Therefore, in the present case, Rs.42,244/- is the taxable
income and 10% of the said amount comes to Rs.4,224/-.
Thus, after deducting 10% of the taxable income, it comes to
Rs.2,38,020/- (Rs. 2,42,244/- minus Rs.4,224/-), which is
fixed towards the annual income of the deceased for computing
the compensation.
20. The Tribunal further observed that as per Ex.A14/Service
Register of the deceased, the date of birth of the deceased is
01.06.1973, and he was 39 years old at the time of his death.
As rightly contended by the learned counsel for petitioners the
Tribunal failed to consider the future prospects of the deceased.
Since the deceased was a Government employee, in terms of the
decision of the Apex Court in National Insurance Company
Ltd. Vs. Pranay Sethi 1, the future prospects of the deceased
shall be computed at 50% as the deceased was aged below 40
years, and accordingly, the annual income comes to
Rs.3,57,030/- [Rs.2,38,020/-+Rs.1,19,010/-]. Though there are
five dependents, the Tribunal wrongly deducted 1/5th of the
deceased's income towards his personal and living expenses
instead of 1/4th. Therefore, taking 1/4th of the deceased's
income towards his personal and living expenses, the
contribution of the deceased towards his family would be
Rs.2,67,773/-[ Rs.3,57,030/- (minus) Rs.89,257/-]. Further,
considering the age of the deceased at the time of the accident,
the Tribunal rightly considered the multiplier as '15' as per the
decision of the Apex Court reported in Sarla Verma Vs. Delhi
Transport Corporation 2. Adopting a multiplier of '15', the
total loss of dependency comes to Rs.2,67,773/- x 15 =
Rs.40,16,595/-.
21. As rightly contended by the learned counsel for
petitioners, the Tribunal had wrongly awarded the amounts
under conventional heads. It is pertinent to mention here that
as per the judgment in Pranay Sethi (supra), petitioners are
(2017) 16 SCC 680.
(2009) 6 SCC 121.
entitled to a sum of Rs.36,300/- (Rs.15,000/- +Rs.15,000/-
+10%+10%) towards loss of estate and funeral expenses.
Further, in view of the judgment of the Hon'ble Apex Court in
Magma General Insurance Company Limited v. Nanu Ram @
Chuhru Ram and others 3, the petitioners are entitled to
Rs.40,000/- each towards spousal consortium, parental
consortium and filial consortium. Therefore, the order dated
25.06.2015 passed by the Tribunal in M.V.O.P.No.02 of 2013 is
modified as follows:-
S.No. Particulars Amount
1. Total Loss of Dependency Rs.40,16,595/-.
2. Add : Conventional Heads Rs. 36,300/-
(Funeral Expenses and Loss
of Estate)
(Rs.15,000/- + Rs.15,000/-
+10% + 10%)
3. Add: Loss of spousal Rs. 48,400/-
consortium (Rs.40,000/-+
10%) to petitioner No.1
4. Add: Loss of parental Rs. 1,45,200/-
consortium to petitioner
Nos.2 to 4 (Each Rs.48,400/-)
5. Add: Loss of filial consortium Rs. 48,400/-
(Rs.40,000/-+ 10%) to
petitioner No.5
Total Compensation Rs.42,94,895/-
22. Though the claimed amount is Rs.40,00,000/-, invoking
the principle of just compensation, and in view of the law laid
(2018) 18 SCC 130
down by the Hon'ble Supreme Court in Rajesh vs. Rajbir
Singh 4 and in a catena of decisions, this Court is empowered to
grant compensation beyond the claimed amount.
23. The Tribunal has rightly awarded the rate of interest at
7.5% per annum which needs no interference by this Court.
24. Accordingly, M.A.C.M.A. No.2876 of 2015 is allowed by
enhancing the compensation awarded by the Tribunal from
Rs.29,78,600/- to Rs.42,94,895/- (Rupees Forty two Lakhs,
Ninety four thousand, Eight hundred and ninety five only) with
interest @7.5 % p.a. from the date of petition till the date of
realization. Respondent Nos.1 and 2 are directed to deposit the
said amount with 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, the
petitioners are permitted to withdraw the said amount in the
same manner and proportion as determined by the Tribunal.
However, the petitioners shall pay the deficit court fee on the
enhanced amount. There shall be no order as to costs.
MANU/SC/0480/2013
In view of the above findings, this M.A.C.M.A. is partly
allowed. No order as to costs.
As a sequel, miscellaneous petitions, if any are pending,
shall stand closed.
________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
8th day of November 2024
BDR
