Telangana High Court

The United India Insurance Co.Ltd., vs Thuma , Merugu Rajitha on 4 September, 2024

             THE HONOURABLE SRI JUSTICE SUJOY PAUL
                              AND
     THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


             M.A.C.M.A.Nos.49 of 2019 and 88 of 2019


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.49 of 2019 is filed by the

appellant/The United India Insurance Co. Ltd.,

M.A.C.M.A.No.88 of 2019 is filed by the appellants/claimants,

are directed against the very same order and decree, dated

31.08.2018 passed in M.V.O.P.No.903 of 2016 by the Chairman,

Motor Vehicle Accidents Claims Tribunal-cum-Principal District

Judge, Warangal (for short, "the Tribunal").

2. For the sake of convenience, the parties are hereinafter

referred to as they are arrayed before the Tribunal.

3. The brief facts of the case are as follows:-

On 07.09.2016, the deceased Thumma Suresh was

proceeding to his house at Kareemabad, Warangal, on his

Splendor Plus Motorcycle bearing No.AP-36-AR-4614, on the

way, when he reached Chatrapathi Colony at Hasanparthy at

about 20.40 hours, the driver of the Lorry bearing No.AP-31-TC-

4166, parked the lorry in the middle of the road without taking

any precautions, such as putting on indicators or parking

lights. Due to the darkness, the deceased could not observe the

said lorry and hit the same. Resultantly, the deceased

sustained fatal injuries and succumbed to the same while

undergoing treatment in M.G.M. Hospital, Warangal, on the

same day, at about 21.30 hours.

The Police of P.S. Hasanparthy registered a case in

Cr.No.196/2016 against the driver of the said Lorry bearing

No.AP-31-TC-4166 for the offence punishable under Section

304-A IPC. At the time of the accident, the deceased was aged

44 years, and was earning Rs.40,944/- per month as a Junior

Assistant in the Office of Special Deputy Collector, LA, SRSP,

State-I & II, Unit-I, Warangal. Hence, the wife and two minor

children of the deceased claimed compensation of

Rs.68,00,000/-. The mother of the deceased was arrayed as

respondent No.4.

4. Before the Tribunal, respondents No.1 and 2, the driver

and owner of the said lorry, respectively, filed separate counters

denying the allegations made in the claim petition and

submitted that respondent No.2 was the owner of the lorry

bearing No.AP-31-TC-4166 and respondent No.1 was the driver

of the said lorry on the accident date. They denied the accident

and involvement of the said lorry. They further submitted that

the said lorry was insured with the 3rd respondent, and the

policy was in force on the date of the accident. As such,

compensation, if any awarded, the same was liable to be paid by

the 3rd respondent alone, and therefore, prayed to dismiss the

claim petition.

5. Respondent No.3/Insurance Company filed a counter

denying the manner in which the accident took place and

contended that the driver of the offending vehicle, i.e.,

respondent No.1, had no valid driving license and further he

was not eligible to hold such license. Further, the accident

occurred due to the negligence of the deceased, who rode his

motorcycle unmindful of the stationed lorry on the extreme left

side of the road. Accordingly, prayed to dismiss the claim

petition with costs.

6. Respondent No.4/mother of the deceased also filed a

counter stating that the deceased used to provide her a sum of

more than Rs.10,000/- per month towards her maintenance,

and owing to his demise, she is suffering from starvation.

Further, petitioner No.1/wife of the deceased was working as a

Government Teacher and earning Rs.40,000/- as salary and

petitioner No.2, who is her elder grandson, would get a

compassionate appointment in the Department and thus, the

respondent Nos.1 to 3 are jointly and severally liable to pay

compensation to the petitioners and herself. Further, prayed to

award 30% of the decretal amount towards compensation in her

favour.

7. On behalf of the claimants, P.Ws.1 to 3 were examined

and marked Exs.A1 to A8 and Ex.X-1 to X-3. On behalf of the

3rd respondent, no oral evidence was adduced, but got marked

Ex.B1-copy of the insurance policy.

8. After considering the oral and documentary evidence

available on record, the Tribunal held that the accident

occurred due to negligent parking by the driver of the lorry

bearing No.AP-31-TC-4166 and accordingly awarded an amount

of Rs.61,73,566/- 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.A.s are filed.

9. Learned counsel appearing for the appellant/Insurance

Company contended that the Tribunal erred by not considering

the fact that the deceased himself went and dashed the

backside of the stationed lorry and thus, the Tribunal ought not

to have fixed the total liability on the respondent Insurance

Company. Further, in view of the facts, the Tribunal should

have apportioned the negligence at 50:50 on the two vehicles

since the lorry bearing No.AP-31-TC-4166 was stationed/parked

and was not moving. Further, the driver of the said lorry did

not possess a valid and effective driving license as on the date of

the accident.

10. Per contra, learned counsel for the petitioners contended

that the Tribunal failed to consider the larger Bench judgment

of the erstwhile Andhra Pradesh High Court in Adam Indur

Muthamma and others Vs. Rathore Reddia and another 1,

wherein it was observed that when the claimants are entitled to

more compensation than the claimed amount. Even without

making any amendment to the claim application, the claimants

are entitled more compensation. The Tribunal failed to consider

the income of the deceased, and taken at Rs.40,744/- who was

a Junior Assistant in SRSP working since 23.09.2008 and his

promotion and future prospect including the service benefits

who was aged 44 years at the time of his death and got 16 years

of service, was not taken into consideration. The Tribunal erred

while computing the compensation payable to the petitioners by

not considering future prospects as applicable since the

(2015) 4 ALD 585 (1)

deceased was a government employee, and the Tribunal ought

to have awarded future prospects at 30% instead of 25%.

11. A perusal of the impugned order discloses that the

Tribunal has framed Issue No.1 as to whether the accident

occurred out of the use of the vehicle i.e. lorry bearing No.AP-

31-TC-4166, resulting in the death of the deceased Thumma

Naresh. The Tribunal while answering the above issue,

discussed that the evidence of PW.2, who is listed as an

eyewitness/LW.7 in the chargesheet under Ex.A5, deposed that

he had witnessed the accident and narrated the manner in

which the accident occurred i.e. the deceased who was going on

a Motor bike got hit against the Lorry which was stationed in

the middle of the road without taking any precautionary

measures, and taking into consideration of the evidence of PW.2

coupled with documentary evidence i.e., Ex.A5-chargesheet,

came to the conclusion that the accident occurred due to the

negligent parking of the lorry bearing No.AP-31-TC-4166 in the

middle of the road by respondent No.1 and that there was no

negligence on the part of the deceased in driving his Motorcycle,

resulting in death of Thumma Suresh. The Insurance Company,

having pleaded that the driver of the said lorry had no valid

driving license and that accident occurred due to the sole

negligence on the part of the deceased, has not adduced either

oral or documentary evidence, except filing Ex.B1/Copy of

insurance policy. As such, the Tribunal has rightly held that the

accident occurred due to the negligent parking of the lorry

bearing No.AP-31-TC-4166 in the middle of the road by

respondent No.1, which requires no interference by this Court.

12. Insofar as the deceased's income is concerned, according

to the petitioners, the deceased was working as a Junior

Assistant in LA, SRSP, Stage-I & II, Unit-I, Warangal, and was

earning Rs.40,944/- per month. In support of their contention,

the petitioners examined PW.3, who is the then Special Deputy

Collector, Land Acquisition, SRSP, Stage-I & II, Unit-I,

Warangal, and he deposed that the deceased worked as a

Junior Assistant in their office and that he joined on 06.01.1993

as an Attender and was promoted as Junior Assistant on

23.09.2008. Ex.X1 is the true extract of the Service Register

ascertaining the said facts, wherein his date of birth is shown as

4.2.1971. Ex.X2 is the salary certificate revealing the gross

salary as Rs.40,944/- and Ex.X3 is the service particulars of the

individual showing the date of joining and the dates of

promotion. The monthly income of the deceased as per Ex.X2

salary certificate and Ex.A7/pay-slip, corresponding to Ex.X2, is

Rs.40,944/- and under deductions, an amount of Rs.200/- is

shown towards professional tax. The Tribunal took the actual

salary of the deceased as Rs.40,744/- i.e. Rs.40,944/- minus

Rs.200/- towards professional tax. Thus, the annual income

comes to Rs.4,88,928/- (Rs.40,744/- x 12).

13. The Tribunal further observed that as per the Income Tax

Act for the financial year 2016-17, the income tax was exempted

up to Rs.2,50,000/- and thereafter from Rs.2,50,001/- to

Rs.5,00,000/- there was 10% tax and from Rs.5,00,001/- to

Rs.10,000/- 20% tax. Therefore, in the present case

Rs.2,38,928/- is the taxable income. From the annual income

of Rs.4,88,928/-, Rs.23,893/- is deducted, then the income

comes to Rs.4,65,035/-, which is fixed towards annual income

of the deceased for computing the compensation.

14. The Tribunal further observed that as per Ex.A3/certified

copy of the postmortem report, the age of the deceased was 44

years. As rightly contended by the learned counsel for

appellants/claimants, the Tribunal erred by taking the future

prospects @ 25% of the established income instead of 30%,

since the deceased was a Government employee. In terms of the

decision of the Apex Court in National Insurance Company

Ltd. Vs. Pranay Sethi 2, the future prospects of the deceased

shall be computed at 30%, and accordingly, the annual income

comes to Rs.6,04,545/- [Rs.4,65,035/-+Rs.1,39,510/-]. There

are four dependents. Therefore, taking 1/4th of the deceased's

income towards his personal and living expenses, the

contribution of the deceased would be Rs.4,53,409/-

[Rs.6,04,545/- (minus) Rs.1,51,136/-]. Further, considering the

age of the deceased at the time of the accident, the Tribunal

rightly considered the multiplier as '14' as per the decision of

the Apex Court reported in Sarla Verma Vs. Delhi Transport

Corporation 3. Adopting a multiplier of '14', the total loss of

dependency comes to Rs.4,53,409/- x 14 = Rs.63,47,726/-.

15. Learned counsel for appellants/claimants further

contended that the Tribunal had wrongly awarded Rs.40,000/-

towards loss of consortium to petitioner No.1, Rs.15,000/-

towards loss of estate and Rs.15,000/- towards funeral

expenses and the same need to be enhanced in view of the

decision rendered by the Hon'ble Supreme Court in N. Jayasree

and others V. Cholamandalam MS General Insurance Co.

Ltd., 4 wherein at para No.34, it was held as under:

(2017) 16 SCC 680.

(2009) 6 SCC 121.

2022(1) ALD 10(SC)

"A three Judge Bench of this Court in United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur and Ors, 2020(6) ALD 39 (SC) = 2020 SCC Online SC 410 = AIR 2020 SC 3076, after considering Pranay Sethi's case (supra), has awarded spousal consortium at the rate of Rs.40,000/ (Rupees forty thousand only) and towards loss of parental consortium to each child at the rate of Rs.40,000/ (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/ (Forty four thousand only), and towards parental consortium at the rate of Rs.44,000/ each (Total Rs.88,000/-) is awarded to the two children."

It is pertinent to mention here that the Tribunal by

accurately following the judgment in Pranay Sethi (supra)

decided on 31.10.2017, has rightly awarded Rs.40,000/-

towards loss of consortium to the petitioner No.1, Rs.15,000/-

towards loss of estate and Rs.15,000/- towards funeral

expenses, which needs no interference as the Tribunal

pronounced its order on 31.08.2018, which is not beyond three

years. Further, in view of the judgment of the Hon'ble Apex

Court Magma General Insurance Company Limited v. Nanu

Ram @ Chuhru Ram and others 5, the petitioner Nos.2 and 3

are entitled to Rs.44,000/- each towards parental consortium

and respondent No.4 is entitled to Rs.44,000/-.

Therefore, the order dated 31.08.2018 passed by the

Tribunal in M.V.O.P.No.903 of 2016 is modified as follows:-

(2018) 18 SCC 130

S.No. Particulars Amount

1. Annual income Rs.4,65,035/-

2. Add: 30% Future Prospects Rs.1,39,510/-

3. Sub-Total Rs.6,04,545/-

4. Less: 1/4th towards (-)Rs.1,51,136/-

Personal Expenditure

5. Sub-Total [3-4] Rs.4,53,409/-

6. Total Loss of Dependency Rs.63,47,726/-

(Rs.4,53,409/- x 14)

7. Add : Conventional Heads Rs.30,000/-

              (Funeral    Expenses and
              Loss of Estate)
              (Rs.15,000/- + Rs.15,000/- )
       8.     Add: Loss of consortium          Rs.40,000/-
              (Rs.40,000/-) to petitioner
              No.1
       9.     Add: Parental Consortium         Rs.88,000/-

              [Rs.44,000/-+Rs.44,000/-]
       10.    Add: Filial Consortium to        Rs.44,000/-
              Respondent No.4
              Total Compensation             Rs.65,49,726/-

16. The Tribunal has rightly awarded the rate of interest at

7.5% per annum which needs no interference by this Court.

17. Accordingly, M.A.C.M.A. No.88 of 2019 is partly allowed by

enhancing the compensation awarded by the Tribunal from

Rs.61,73,566/- to Rs.65,49,726/- (Rupees Sixty five Lakh, Forty

Nine thousand, Seven Hundred and twenty six only) with

interest @7.5 % p.a. from the date of petition till the date of

realization. Respondent Nos.1 to 3 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