Telangana High Court

The New India Assurance Company Limited vs Smt. D.Shankaramma , Kavitha And 7 ... on 29 January, 2025

              HON'BLE SMT.JUSTICE M.G.PRIYADARSINI

                 M.A.C.M.A.No.928 of 2016
                            AND
     CROSS-OBJECTIONS No. 1 of 2016(X.OBJ.No.43690/2016)


COMMON JUDGMENT

1. Aggrieved by the order passed by the learned District Judge -

cum- Motor Accident Claims Tribunal, Mahabubnagar, in

O.P.No.669 of 2006, dated 30.01.2009, the 3rd

respondent/Insurance Company in the said O.P. preferred the

present Appeal seeking to allow the Appeal by setting aside the

order of the learned Tribunal. Also, dissatisfied with the

compensation awarded by the learned Tribunal, the Petitioners in

the said O.P. filed Cross-Objections No.1 of 2016 seeking

enhancement of compensation.

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

referred as they were arrayed before the learned Tribunal.

3. The brief facts of the case are that the claim petitioners, who

are the wife, children and parents of Late D.N.Kondanna

(hereinafter referred as 'the deceased') filed a petition under Section

166 of the Motor Vehicles Act, 1988 claiming compensation of

Rs.5,00,000/- for the death of the deceased in a motor vehicle

accident that occurred on 27.06.2006 in the limits of Palem

Village. It is stated by the petitioners that on 27.06.2006, in the

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

early morning at about 5.40 a.m., when the deceased was

proceeding on his Bicycle from Palem Village to Kothakota on

National Highway-7 and when reached near Chinna bridge in the

limits of Palem, at about 6.00 hours, the driver of one Jeep bearing

No.AP-7/U-6924 drove the said Jeep in a rash and negligent

manner at a high speed, came towards the same direction in which

the deceased was travelling and dashed the bicycle of the deceased,

due to which, the deceased received severe injuries and on the way

to Hospital, he succumbed to the said injuries.

4. Based on the complaint given by the father of the deceased,

Police of Kothakota Police Station registered a case in Crime No.95

of 2006 under Section 304-A IPC, took up investigation and filed

charge sheet against the driver of Jeep bearing No.AP-7/U-6924.

5. It is stated by the petitioners that prior to accident, the

deceased was hale and healthy and was earning Rs.200/- per day

by working as Hamali. Apart from this, the deceased was also

having Ac.8.00 of land and he used to grow cotton and castor crops

in the said land and used to earn Rs.40,000/-from Agriculture and

contribute his entire earnings for maintenance of his family. Due

to sudden and untimely death of the deceased, they were put to

mental pain and agony and lost their earning support. Hence filed

claim petition seeking compensation of Rs.5,00,000/- against the

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

respondents, who are the owners and insurer of subject Jeep

bearing No.AP-7/U-6924.

6. Respondent Nos.1 & 2, who are alleged to be the owners of

subject Jeep, remained ex-parte.

7. Respondent No.3/Insurance Company filed its counter

denying the averments made in the claim petition including,

manner of accident, involvement of the deceased, rash and

negligent driving on part of the driver of Jeep bearing No.AP-7/U-

6924, earnings of the deceased, driver of the Jeep having valid

license to drive the crime vehicle, ownership of the vehicle and

denied the crime vehicle having valid insurance and further

contended that the claim of compensation is excess and exorbitant

and therefore, prayed to dismiss the claim against it.

8. Based on the contentions made by both parties, the learned

Tribunal had framed the following issues for conducting trial: -

(i) Whether the accident occurred due to rash and negligent driving of the driver of Jeep bearing No.AP- 7/U-6924?

(ii) Whether the petitioners are entitled to claim compensation from the respondents and if so, to what amount and against whom?

(iii) To what relief.

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

9. Before the Tribunal, on behalf of the petitioners, PWs.1 to 3

were examined and Exs.A1 to A9 were marked. On behalf of

respondent No.3/Insurance Company, RW1 was examined and

Exs.B1 to B3 were marked.

10. The Tribunal, after considering the entire evidence and

documents available on record, partly-allowed the claim petition by

awarding compensation of Rs.3,07,000/- along with interest @

7.5% per annum payable by all the respondent Nos.1 to 3 jointly

and severally. Aggrieved by the same, the respondent

No.3/Insurance Company in the said M.V.O.P. preferred the

present Appeal and the claim petitioners filed Cross-Objections

No.1 of 2016.

11. Heard Smt. I.Maamu Vani, learned Standing Counsel for the

Appellant/New India Assurance Company and Sri K.Venkatesh

Gupta, learned counsel for the cross-objectors/claim petitioners.

Perused the record including the grounds of Appeal and cross-

objections.

12. The contentions of the learned Standing Counsel for

appellant as stated in the grounds of Appeal are that the

involvement of the vehicle in the alleged accident was not proved;

the learned Tribunal erred in applying multiplier 16.51 for a

person aged 30 years and contended that if really PW2 had

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

witnessed the accident, he would have been examined by the Police

immediately after the accident and not after two months and

hence, requested to allow the Appeal by setting aside the order of

the learned Tribunal.

13. Per contra, learned Counsel for the respondents/cross-

objectors/claim petitioners contended that there is no contra

evidence produced by the Insurance Company and that there are

no steps taken by the Insurance Company to rebut the evidence

adduced by the petitioners and further contended that though the

subject vehicle is referred as unknown vehicle, but the Police, after

conducting detailed investigation, has filed charge sheet against

the alleged crime vehicle and there is no challenge to the charge

sheet. Further, the respondent/Insurance Company had not taken

any steps challenging the alleged falsification of the vehicle.

Learned counsel further contended that the learned Tribunal took

the income of the deceased on lower side and failed to award future

prospects and hence requested to enhance the compensation

amount by allowing the X-objections petition.

14. After hearing the arguments on both sides, the point that

emerges for determination is,

Whether the order passed by the learned Tribunal requires interference of this Court?

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

POINT:-

15. Since there is dispute regarding reference of the alleged

crime vehicle as unknown vehicle, it is pertinent to refer to the

evidence of PW2, an eye -witness to the incident, who deposed in

his evidence that on 27.06.2006, when he started on his motor

cycle from Kothakota to Kanimetta for engaging coolies for land

work and when reached near Chinna bridge of NH.7 at about 6.00

a.m., he saw the deceased proceeding on his bicycle towards

extreme left side in opposite direction. Meantime, one Jeep bearing

No.AP-7/U-6924 which was driven by its driver in a rash and

negligent manner at high speed hit the bicycle of the deceased from

backside, due to which the deceased sustained fatal injuries on

abdomen and died on the way to Hospital.

16. During his cross-examination, PW2 stated that he gave

statement to Police under Ex.A4 immediately after coming to know

about the death of the deceased through Narayana Reddy of Palem

Based on the statement given by PW2, Police have conducted

detailed investigation and filed charge sheet against the driver of

the crime Jeep. Further, a perusal of Ex.A1-FIR clearly discloses

that one Nellore Chinna Savaramma gave complaint to Police

regarding the alleged incident immediately after the accident.

Therefore, from the evidence of PWs 1 & 2 coupled with the

documents marked under Exs.A1 to A4, it can be held that the

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

death of the deceased was due to rash and negligent driving of the

driver of Jeep bearing No.AP-7/U-6924.

17. Further, PW2 in his statement under Ex.A4 clearly stated

that as he was in a hurry to engage coolies for land work at

Kanimetta, he could not give complaint to the Police immediately

after the accident and after coming to know about the death of the

deceased through Narayana Reddy of Palem, he informed the same

to Police who recorded his statement after 2 months of the alleged

accident. The said delay was neither willful nor wanton but only

due to the reason stated above.

18. So far as cross-objection petition filed by the petitioners is

concerned, it is the contention of the learned counsel for

petitioners that the learned Tribunal, had awarded meager amount

towards the income of the deceased. In this regard, it is pertinent

to state that though the petitioners filed Ex.A8-Certificate issued

by President of Hamali Society showing that the deceased used to

earn Rs.150/- per day, but the learned Tribunal did not consider

the same and assessed his monthly income @ Rs.2,100/- which

appears to be very meager. This Court, considering the date of

accident and by relying upon the judgment of the Hon'ble Apex

Court in Latha Wadhwa vs. State of Bihar 1, wherein it is held

that even though there is no proof of income and earnings, the

(2001) 8 SCC 197

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

income can be reasonably estimated by considering the age,

avocation and year of accident, hereby fix the monthly income of

the deceased @ Rs.4,500/-. Since the Tribunal failed to award

future prospects to the established income of the deceased, this

Court, by relying upon the judgment of the Hon'ble Supreme Court

in National Insurance Company Limited Vs. Pranay Sethi and

others, is inclined to add 40% towards future prospects to the

income of the deceased for the deceased being below 40 years.

Hence the future monthly income of the deceased comes to

Rs.6,300/-. If 1/4th amount is deducted towards personal and

living expenses of the deceased as the number of dependents being

six, then the net monthly income comes to Rs.4,725/- and the

annual income comes to Rs.56,700/-. Since the deceased was

aged 30 years at the time of the accident, the appropriate

multiplier is '17' as per the guidelines laid down by the Apex Court

in Sarla Verma v. Delhi Transport Corporation 2. Therefore, the

total loss of dependency on account of the death of the deceased

comes to Rs.9,63,900/-. Apart from this, the learned Tribunal

granted an amount of Rs.15,000/- towards consortium and an

amount of Rs.14,632/- towards loss of love and affection which

this Court finds to be meager and is inclined to interfere with the

same by awarding a sum of Rs.77,000/- under Conventional

2009 ACJ 1298 (SC)

MGP,J MACMA.No.928 of 2016 and CROSS-OBJECTIONS No. 1 of 2016 (X.OBJ.No.43690/2016)

Heads as per Judgment of Hon'ble Apex Court in Pranay Sethi

(cited supra) . Considering the fact that the petitioner Nos.2 to 4

being minor children of the deceased, this Court is inclined to

award a sum of Rs.40,000/- each to them under the head of

parental consortium as per the decision of the Apex Court in

Magma General Insurance Company Limited v. Nanu Ram @ Chuhru

Ram and others 3 . Thus, in all, the claim petitioners/Cross

objectors are entitled for a total compensation as indicated under:-

            S.No.       Name of the Head         Amount
                                                 awarded
            1           Monthly income           Rs.4,500/-
            2           Addition of 40%          Rs.6,300/-
                        towards        future
                        prospects as the
                        deceased being self-
                        employed and below
                        40 years
            3           Income arrived after     Rs.4,725 /-
                        Deducting       1/4th
                        towards personal &
                        living expenses of
                        the deceased as
                        there    are         4
                        dependants
            4           Total     loss      of   Rs.9,63,900/-
                        dependency
                        calculated       after
                        application         of
                        relevant multiplier
                        i.e., 17
            5           Conventional Heads       Rs.77,000/-
            6           Parental consortium to   Rs.1,20,000/-
                        minor child (3 in no.)
                        TOTAL COMPENSATION       Rs.11,60,900/-





    (2018) 18 SCC 130

                                                                                   MGP,J
                                                                 MACMA.No.928 of 2016 and
                                                            CROSS-OBJECTIONS No. 1 of 2016
                                                                    (X.OBJ.No.43690/2016)

19. Since the compensation arrived is more than the claim

amount, it is pertinent to refer to the decision of the Hon'ble

Supreme Court in the case between Nagappa Vs.Gurudayal Singh

and others 4 wherein the Hon'ble Apex Court held that

compensation can be granted more than the claim made based on

cogent and convincing evidence.

20. In view of the above discussion and keeping in view the

settled principle of law laid down by the Hon'ble Apex Court, this

Court deems fit and proper to allow the cross-objections petition.

21. In the result, M.A.C.M.A.No.928 of 2016 filed by the

Insurance Company is dismissed and the Cross-objections petition

No.1 of 2016 (X.OBJ.No.43690/2016) filed by the claim petitioners