Bajaj Allianz General Insurance ... vs R.Padma And 3 Others
2025 Latest Caselaw 3171 Tel

Telangana High Court

Bajaj Allianz General Insurance ... vs R.Padma And 3 Others on 18 March, 2025

      HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI

       M.A.C.M.A.Nos.3080 OF 2012 and 808 of 2014

COMMON JUDGMENT:

Aggrieved by the order and decree dated 22.06.2012

(hereinafter will be referred as 'impugned order') passed by the

learned Chairman, Accidents Claims Tribunal - cum - I

Additional Chief Judge, City Civil Court at Secunderabad

(hereinafter will be referred as 'Tribunal') in M.V.O.P.No.221 of

2008, the respondent No.2/Insurance Company preferred

MACMA No.3080 of 2012 to set aside the impugned order and

whereas the petitioners/claimants preferred MACMA No.808 of

2014 seeking enhancement of compensation awarded by the

learned Tribunal.

2. Since both the Appeals have been filed by either of the

parties against one impugned order arising out of the same

accident, this Court is inclined to adjudicate both the Appeals

by way of 'Common Judgment'

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

referred as they were arrayed before the Tribunal.

4. The brief facts of the case as can be seen from the record

are as under:

MGP,J MACMA.Nos.3080/2012 & 808/2014

a) The petitioners, who are wife and daughters of

'K.S.Ramesh Kumar' (hereinafter will be referred as 'deceased')

respectively, filed claim petition under Section 163-A of the

Motor Vehicle Act claiming compensation of Rs.7,00,000/-

against the Respondent Nos.1 and 2 for the death of the

deceased in the road traffic accident. The reason assigned by

the petitioners for the death of the deceased is that on

17.07.2008 the deceased along with his son Arun Kumar and

nephew Chakrapani from Sainikpuri was proceeding towards

Rajendra Nagar in Auto bearing registration No.AP 11 U 5752

and when they reached near AOC Gate, a Tipper Lorry bearing

registration AP 29 U 3435 (hereinafter will be referred as 'crime

vehicle') came in rash and negligent manner and dashed the

auto in which deceased along with his son and nephew were

proceeding. As a result, the deceased died on the spot and

whereas his son died in the hospital.

b) A case in Crime No.132 of 2008 of Tukaram Police Station

was registered against the driver of the lorry for the offences

under Sections 337 and 338 of the Indian Penal Code. The

deceased was working as auto driver and earning Rs.6,000/-

per month prior to the accident. The accident occurred due to

rash and negligent driving of the crime vehicle by its driver and

MGP,J MACMA.Nos.3080/2012 & 808/2014

thus, the petitioners claimed compensation of Rs.7,00,000/-

from the respondent Nos.1 and 2, who are the owner and

insurer of the crime vehicle respectively.

5. Before the learned Tribunal, in reply to the above petition

averments, the respondent No.1 remained ex-parte and whereas

respondent No.2 filed counter denying the petition averments

including the manner of the accident, age and income of the

deceased. It was further contended that the driver of the crime

vehicle had no valid driving license as on the date of accident

and that the compensation claimed by the petitioners is highly

excessive.

6. In order to establish the claim before the learned

Tribunal, PWs 1 and 2 were examined and Exs.A1 to A9 were

marked on behalf of the petitioners. On the other hand, no oral

evidence was adduced on behalf of the respondents, RW1 was

examined and Exs.B1 to B3 were marked.

7. The learned Tribunal after considering the oral and

documentary evidence on record, passed the impugned order

awarding Rs.4,06,000/- as compensation to the petitioners.

Aggrieved by the impugned order, the respondent No.2/

Insurance Company preferred MACMA No.3080 of 2012 to set

MGP,J MACMA.Nos.3080/2012 & 808/2014

aside the impugned order and whereas the

petitioners/claimants preferred the MACMA No.808 of 2014

seeking enhancement of compensation.

8. Heard both sides and perused the material available on

record including the grounds of Appeal.

9. There is no dispute that Ex.B1 copy of insurance policy

was subsistent as on the date of the accident.

10. The first and foremost contention of the learned Standing

Counsel for the respondent No.2 is that the learned Tribunal

ought to have rejected the claim application on the ground that

the owner and insurer of the auto in which the deceased was

travelling were not made parties and should have held that

there is every possibility of making a separate claim by the

claimants against the owner and insurer of the auto.

11. It is to be observed that only when there is negligence on

the part of a vehicle in causing the accident, the insurer and

owner of such vehicle will be impleaded in the claim petition.

But in the instant case there is no such evidence to hold that

the accident occurred due to the negligence on the part of driver

of auto in which the deceased was traveling. Moreover, the

MGP,J MACMA.Nos.3080/2012 & 808/2014

learned Tribunal by relying on the evidence of PW2 (eyewitness)

and documentary evidence under Exs.A1 to A7 i.e., FIR,

Charge-sheet, rough sketch, scene of offence panchanama,

inquest report, Motor Vehicle Inspector Report and postmortem

examination report answered issue No.1 holding that the

accident occurred due to the involvement of the tipper lorry

bearing No.AP 29 U 3435. Moreover, it is to be observed that

mere probability of filing another claim petition against the

driver of the auto cannot be a ground to implead the driver the

auto, more particularly when there is negligence on the part of

the driver of the auto in which the deceased was traveling even

as per the record. Hence, the above said contention of the

learned Standing Counsel for the respondent No.2/Insurance

Company holds no water.

12. The other contention of the learned Standing Counsel for

the respondent No.2/Insurance Company is that the driver of

the crime vehicle was not holding valid driving license at the

time of the accident.

13. In order to establish that the driver of the crime vehicle

was not holding valid driving license at the time of the accident

the respondent No.2/Insurance Company got examined its

MGP,J MACMA.Nos.3080/2012 & 808/2014

Assistant Manager as RW1 and documentary evidence under

Exs.B2 and B3. Ex.B2 is the notice issued to the owner of the

crime vehicle to submit necessary documents to establish that

the said driver was having valid driving license. Ex.B3 is the

ration card. These documents do not establish that the driver of

the crime vehicle was not holding valid and effective driving

license at the time of accident. If at all the driver of the crime

vehicle had no valid driving license, then certainly the

concerned Police would have registered case against the said

driver not only under the provisions of Indian Penal Code but

also under the provisions of Motor Vehicle Act for not holding

valid and effective driving license to drive the said crime vehicle.

The only competent officials to ascertain about the issues

relating to driving license are the Road Transport Authorities.

In the instant case, the respondents failed to examine any of

such Road Transport Authorities to prove that the driver of the

crime vehicle had no effective and valid driving license to drive

the crime vehicle at the relevant point of time. In the absence of

any such evidence, mere issuance of notice to the owner of the

crime vehicle by the insurance company to produce relevant

documents is not sufficient material to establish that the driver

of the crime vehicle had no effective and valid driving license to

MGP,J MACMA.Nos.3080/2012 & 808/2014

drive the crime vehicle at the relevant point of time. Hence, the

above contention of the learned Standing Counsel for the

Insurance Company is unsustainable.

14. The other contention of the learned Standing Counsel for

the respondent No.2/Insurance Company is that the learned

Tribunal failed to see that a claim under Section 163-A of the

Motor Vehicle Act should be in accordance with the second

schedule and the amount of compensation should not be on

presumptions.

15. It is settled law that once the Tribunal frames an issue

with regard to rash and negligent driving of the crime vehicle

and answers the said issue in favour of the claimant/s, it is

immaterial as to whether the petition was filed under Section

166 or 163 - A of the Motor Vehicle Act, to award just and fair

compensation to the claimants. Thus, the above contention of

the learned Standing Counsel for the respondent No.2-

Insurance Company is untenable.

16. The learned Standing Counsel for the respondent No.2-

Insurance Company argued that the learned Tribunal erred in

taking income of the deceased as Rs.54,000/- without any

basis.

MGP,J MACMA.Nos.3080/2012 & 808/2014

17. The claimants alleged that the deceased was earning

Rs.6,000/- per month by driving the auto. There is absolutely

no doubt that the claimants have not filed any documentary

evidence to substantiate the same. In such circumstances, the

learned Tribunal by relying on the decision of the Honourable

Supreme Court in Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited 1 considered

the age of deceased at Rs.4,500/- per month. Hence, the above

said argument of the learned Standing Counsel for the

respondent No.2/Insurance Company is untenable.

18. The learned counsel for the claimants contended that the

learned Tribunal failed to consider future prospects of the

deceased.

19. As seen from the impugned order, the learned Tribunal

did not consider future prospects. Since the deceased was aged

51 years and self employed, he is entitled for future prospects @

10% as per the decision laid down in National Insurance

Company Limited v. Pranay Sethi and others 2. Thus, the

monthly income of the deceased with future prospects comes to

1 2011- SCC-5-536 2 2017 ACJ 2700

MGP,J MACMA.Nos.3080/2012 & 808/2014

Rs.4,950/- per annum (Rs.4,500/- + Rs.450/-). Since, the

dependents are three in number, 1/3rd of the income of the

deceased has to be deducted towards his personal expenses and

thereby the annual income of the deceased after deducting

personal expenses comes to Rs.3,300/- (Rs.4,950/- -

Rs.1,650/-) and the annual income of the deceased comes to

Rs.39,600/- (3,300/- x 12 months). As stated supra, the

relevant multiplier for the age of the deceased is '18'. When the

annual salary of the deceased after deducting his personal

expenses is multiplied with the relevant multiplier, it comes to

Rs.4,35,600/- (Rs.39,600/- x 11). Thus, the loss of dependency

on account of sudden demise of deceased is Rs.4,35,600/-.

20. The learned Tribunal awarded Rs.5,000/- towards loss of

consortium, Rs.2,500/- towards funeral expenses and

Rs.2,500/- towards loss of estate. However, as per the principle

laid down in National Insurance Company Limited v. Pranay

Sethi and others 3, the claimant/petitioner No.1 is entitled to

Rs.77,000/- under the conventional heads i.e., loss of estate,

loss of consortium and funeral expenses. Thus, the claimants

3 2017 ACJ 2700

MGP,J MACMA.Nos.3080/2012 & 808/2014

are entitled for compensation of Rs.5,12,600/- (Rs.4,35,600/- +

Rs.77,000/-).

21. In view of the above facts and circumstances, this Court

is of the considered opinion that the respondent No.2/Insurance

Company failed to establish any of the grounds to set aside the

impugned order passed by the learned Tribunal. Thus,

M.A.C.M.A.No.3080 of 2012 is devoid of merits and liable to be

dismissed. However, the claimants could establish that the

learned Tribunal failed to consider future prospects and

conventional heads while arriving to the quantum of

compensation, as such, the impugned order passed by the

learned Tribunal is liable to be modified only to the extent of

considering future prospects and conventional heads.

22. In the result, M.A.C.M.A. No.3080 of 2012 is dismissed

and whereas M.A.C.M.A. No.808 of 2014 is allowed in part by

enhancing the compensation from Rs.4,06,000/- to

Rs.5,12,600/-, which shall carry interest at 7.5% per annum

from the date of petition till the date of realization. The

enhanced compensation amount is apportioned to petitioner

No.1, who is the wife of the deceased. The respondent Nos.1 and

2 being the owner and insurer of the crime vehicle respectively

MGP,J MACMA.Nos.3080/2012 & 808/2014

are jointly and severally liable to deposit the compensation

amount within one month from the date of receipt of copy of

this judgment. On such deposit, the claimants are entitled to

withdraw the compensation amount awarded to them with

accrued interest without furnishing any security. There shall be

no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________________ JUSTICE M.G. PRIYADARSINI Date: 18.03.2025 AS