Telangana High Court

Shriram General Insurance Co. Ltd., vs S. Manikyamma on 20 March, 2025

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     HONOURABLE SMT. JUSTICE TIRUMALA DEVI EADA

                   M.A.C.M.A.NO.640 OF 2021

JUDGMENT:

This appeal is filed by the Insurance Company aggrieved by

the Order and Decree dated 05.02.2021 in M.V.O.P.No.794 of 2016

passed by the XXV Additional Chief Judge, City Civil Court,

Hyderabad (for short "the Tribunal").

2. For convenience and clarity, the parties herein are referred to

as they were arrayed before the Tribunal.

3. The case of the claim petitioners before the Tribunal is that

on 15.02.2015 at 7:30 p.m., the deceased/S.Narayana was

proceeding on a motor bike bearing No.TS-12EB-9813 on Pargi,

Kodangal Road and when he reached neat Rangamapally Gate,

lorry bearing No.KA-39-6319 driven by its driver at high speed in

rash and negligent manner proceeding from Kodangal towards

Hyderabad, dashed the motor cycle of the deceased. As a result of

which, the deceased fell down and the lorry ran over the deceased

and he died on the spot.

4. The parents, brothers and un-married sisters of the deceased

filed claim petition seeking a compensation of Rs.15,00,000/-

before the Tribunal.

ETD,J MACMA No.640_2021

5. The respondent Nos.1 and 3 failed to file any counter

affidavit while the contesting respondent i.e., Insurance Company

has filed its counter denying the occurrence of accident, the age,

income of the deceased and further contended that the accident

occurred due to the rash and negligence of the deceased and that

there was no rash and negligence of the driver of the lorry bearing

No.KA-39-6319 which is insured with them.

6. The Respondent No.4 is the wife of the deceased and she is

living separately and thus the petitioners arrayed her as a

respondent.

7. She has filed counter affidavit contending that the deceased

used to contribute his income to her and that she became a

destitute after the death of her husband and therefore, she is

entitled to claim compensation from respondent Nos.1 to 3 and

that she is the sole dependent on the earnings of her deceased

husband.

8. Based on the rival contentions of the parties, the Tribunal

has framed the following issues for trial:

1) Whether the deceased S. Narayana S/o Kashappa @ Khasim died on 15.12.2015 due to rash and negligent driving of the driver unknown and lorry bearing No.KA-39-6319?

2) Whether the petitioners are entitled for compensation, if so, how much and from whom?

3) To what relief?

ETD,J MACMA No.640_2021

9. To prove their case, the petitioners got examined PWs 1 and

2 and got marked Exs.A1 to A5. On behalf of the respondents,

RWs 1 and 2 were examined and Ex.B1 was marked.

10. Based on the evidence on record, the trial Court has awarded

a compensation of Rs.12,25,000/- against a claim of

Rs.15,00,000/-. Aggrieved by the said award, the present appeal is

preferred by the Insurance Company.

11. Heard the submission of Sri A. Ramakrishna Reddy, learned

counsel for the appellants and Sri P. Ramakrishna Reddy, learned

counsel for respondent Nos.1 to 7 and Sri Nambi Krishna, learned

counsel for respondent No.10.

12. Learned counsel for appellants argued that the learned

Tribunal ought to have observed that the alleged accident has not

occurred due to the rash and negligent driving of the lorry driver,

but that it was only due to the negligence of the deceased and that

their company is not liable to pay any compensation. He further

argued that as per the contents of the FIR under Ex.A1, the

complaint was lodged against an unknown vehicle and that the

vehicle insured with them is falsely implicated in the present case.

He further submitted that the evidence of PW2 is not trustworthy

and that he is not listed as an eye witness in the charge sheet and ETD,J MACMA No.640_2021

therefore the Tribunal ought not to have believed his evidence. He

further contended that no proof of income is filed by the petitioners

and thus an income of Rs.4,500/- per month had to be taken as a

notional income, but the Tribunal has wrongly assessed as

Rs.6,000/- per month. He further submitted that the Tribunal has

awarded excess amounts under various heads and therefore,

prayed to set aside the award passed by the Tribunal by allowing

this appeal.

13. The respondent counsel has submitted that the award

passed by the Tribunal does not need any interference and that it

has awarded a just compensation and the same may be upheld.

14. Based on the above rival contentions, this Court frames the

following points for determination:

1. Whether the lorry bearing No.KA-39-6319 was not driven by its driver in a rash and negligent manner causing the accident resulting in the death of the deceased?

2. Whether there was any contributory negligence on part of the deceased, in the occurrence of the accident?

3. Whether the compensation granted by the Tribunal is not just and reasonable?

4. Whether the order and decree of the trial Court need any interference?

5. To what relief?

15. POINT NOS.1 & 2:-

a) A perusal of FIR under Ex.A1 reveals that the complaint is

lodged by one E. Kalyan of Rangampally Village and he mentioned ETD,J MACMA No.640_2021

that on 15.10.2015 he was informed that one male person died in

an accident as he was hit by an unknown vehicle. He stated in the

complaint that he went to the scene of offence and he saw that

there was a person by name Sardar at the scene of offence and on

enquiry, he stated that one male person died in the accident and

that he too sustained injuries as he fell down on seeing this

accident. Thereafter, he has shifted the deceased to the hospital

and he has also noted down the number of the motor bike on

which the deceased was travelling.

b) In the charge sheet filed under Ex.A2, it is mentioned that

the said injured person by name Sardar was shifted to Government

Hospital and their investigation revealed that the driver of Lorry

bearing No.KA-39-6319 has driven the lorry in a rash and

negligent manner while proceeding towards Hyderabad from

Kodangal and dashed the Glamour Motor Cycle bearing No.TS-

12EB-9813 from behind. As a result of which the deceased/S.

Narayana fell down from the motor cycle and died on the spot and

also the accused driver of the lorry has dashed the motorbike of

Sardar/LW6 who was proceeding to Kistapur Village from Parigi

and that the accused left the scene of offence along with the crime

vehicle. In this case PW2/P. Narasimhulu is examined as eye

witness, his evidence reveals that he was proceeding on his

Glamour Motor Cycle bearing No.TS-12EB-9813 from his Village ETD,J MACMA No.640_2021

Kistapur towards Parigi and he was behind the motor bike of the

deceased and thus, he witnessed the accident and that the lorry

overtook his motorcycle and dashed the motorcycle of the deceased

from behind. As a result the deceased fell down from the bike and

sustained grievous injuries and died on the spot.

c) The contention of the appellant counsel is that PW2 is a

planted witness and that he is not an eye witness as, his name is

not listed in the charge sheet. Mere suggestion was given to PW2

during his cross examination that he is not an eye witness which

was denied by him and that is not enough to dislodge his evidence.

Not citing the name of eye witness in the charge sheet is not fatal

to the present case.

d) PW2 has deposed about the occurrence of the accident and

the investigation done by the Police as revealed from the charge

sheet under Ex.A2 proves that the accident occurred due to the

rash and negligence of the lorry driver and that there is no

negligence of the deceased.

Point Nos.1 and 2 are answered accordingly.

16. Point No.3:-

e) Another contention of the Insurance Company is that the

Tribunal has granted excess compensation to the claimants.

ETD,J MACMA No.640_2021

f) The deceased is stated to be aged 25 years and was running

a Tiffin Centre and was earning Rs.25,000/- per month. A perusal

of Ex.A4/PME Report reveals the age of the deceased as 32-35. No

proof is filed with regard to the income of the deceased.

g) In Ramachandrappa Vs. Manager, Royal Sundaram

Alliance Insurance Company Limited 1, the Apex Court has held

that in the absence of any proof of income with regard to a

labourer, Rs.4,500/- per month can be safely taken as the income.

But in the present case, the deceased was running a Tiffin Centre

as per the contention of the claim petitioners. Therefore, on a

reasonable hypothesis and in view of the principle laid down in

Ramachandrappas's case, the monthly income of the deceased is

assessed as Rs.6,000/- per month and the same amount is taken

by the Tribunal also.

h) As per the dicta laid down in National Insurance Company

Limited Vs. Pranay Sethi & Others 2, 40% of the income needs to

be added towards future prospects. As the deceased is aged 32-35

years, adding 40% towards future prospects i.e., 6,000+2400

would give Rs.8,400/- per month, which comes to Rs.8400/- x 12

= Rs.1,00,800/- per annum.

(2011) 12 SCC 236

AIR 2017 SCC 5157 ETD,J MACMA No.640_2021

i) The claim petition is filed by the parents, brothers, un-

married sisters and respondent No.4 is the wife of the deceased.

The Tribunal has rightly taken the parents and wife as

dependents, but not the sisters and brothers, because they are

dependent on their parents who are the petitioner Nos.1 and 2.

Therefore, claimants herein are three and therefore, 1/3rd

deduction need to be made to the income of the deceased towards

personal expenses and this would come up to Rs.67,200/-

(Rs.1,00,800/- (-) Rs.33,600/-).

j) The Post Mortem Examination report filed under Ex.A4

reveals the age of the deceased as 32-35 years. Therefore, the age

as revealed under Ex.A4 is taken into consideration. The

multiplier should be chosen with regard to the age of the deceased,

as per column No.4 of the table given in Sarla Verma v. Delhi

Transport Corporation 3. The deceased being aged 32-35 years,

the appropriate multiplier to be applied is '16. Therefore, the loss

of dependency as calculated by the Tribunal holds good i.e. to the

extent of Rs.10,75,200/-.

k) With regard to the amount to be awarded under the head

'loss of consortium', in the light of Pranay Sethi's case,

Rs.15000/- towards loss of estate and Rs.15,000/- towards funeral

2009 (6) SCC 121 ETD,J MACMA No.640_2021

expenses and Rs.40,000/- towards loss of consortium have to be

awarded and the said amounts should be enhanced by 10% every

three years.

l) In Magma General Insurance Company Limited v. Nanu

Ram @ Chuhru Ram and others 4, the Apex Court has elaborately

discussed the principles laid down in Pranay Sethi's case and has

further held that not only the spouse but the parents and children

of the deceased are also entitled to loss of consortium. Therefore,

in the present case, the claimant Nos.1 and 2 who are parents and

respondent No.4/wife of the deceased would get Rs.48,000/- each

towards loss of consortium, hence, the compensation amount

under this head would be Rs.1,44,000/- instead of Rs.48,000/-.

With regard to amounts to be granted under the heads of funeral

expenses Rs.18,000/- and loss of estate Rs.18,000/- would be just

and proper.

m) The present appeal is preferred by the Insurance Company

and no appeal or Cross Objection filed by the claimants. Now the

question is whether this Court can enhance the compensation in

an appeal by Insurance Company.

(2018) 18 SCC 130 ETD,J MACMA No.640_2021

n) In Sanobanu Nazirbhai Mirza and Ors. Vs. Ahmedabad

Municipal Transport Service 5, the claimants who are the legal

heirs of the deceased filed a claim petition before the Tribunal and

the Tribunal has granted Rs.3,51,300/- along with interest

towards compensation. Aggrieved by the said judgment the

respondents has filed an Appeal before the High Court and the

High Court has partly allowed the Appeal of the respondent and

reduced the compensation to Rs.2,51,800/-. Being aggrieved by

this Judgment, the legal representatives of the deceased filed Civil

Appeal before the Apex Court. The Apex Court has awarded the

compensation more than that claimed by the petitioners and

further has held that, it is the statutory duty of the Tribunal and

the Appellate Court to award just and reasonable compensation to

the legal representatives of the deceased to mitigate their hardship

and agony. It has further held that without a claimants appeal

also, it is the statutory duty of the Tribunal and the Appellate

Court to award just and reasonable compensation.

o) Similarly, in Surekha and Ors. Vs. Santosh and Ors 6, the

claimants case was allowed by the Tribunal awarding a

compensation of Rs.40,17,602/-. Aggrieved by the said order, the

Insurance Company has filed an appeal before the High Court

(2013) 16 SCC 719

(2021) 166 SCC 467 ETD,J MACMA No.640_2021

wherein, the High Court has held that the claimants are entitled to

Rs.49,15,376/-, but has held that the High Court cannot enlarge

the scope of the appeal and cannot enhance the compensation

more than that awarded by the Tribunal, in an appeal filed by the

Insurance Company. However, the appeal preferred by the

Insurance Company claiming reduction of compensation was

dismissed. When the matter reached Apex Court, it has held that

in the matters of Motor Accident Claims, the Court should not take

hyper technical approach and ensure that just compensation is

awarded to the claimants. By holding so, the Apex Court has

modified the order passed by the High Court to the effect that the

compensation amount payable to the appellants is determined as

Rs.49,85,376/- with interest thereon as awarded by the High

Court.

p) In Andhra Pradesh State Road Transport Vs. Dusari

Pramila and Another 7, the Tribunal has awarded a compensation

of Rs.9,00,000/- and aggrieved by the same, the Insurance

Company has preferred an appeal before this High Court and a

Bench of this High Court has held that even in the absence of

Cross Appeal or Cross Objection filed by the respondents, it is

pertinent to consider the jurisdiction of this Court to grant just

compensation and has enhanced the compensation from

ETD,J MACMA No.640_2021

Rs.9,00,000/- to Rs.15,82,600/- with an interest of 6% per annum

from the date of petition till realization.

q) Thus, in all the claimants would be entitled to the following

amounts:-

SI. Name of the heads Awarded by this Court No. Rs.

1. Loss of dependency 10,75,000/-

2. Loss of consortium (48,000 x3) 1,44,000/-

3. Loss of Estate 18,000/-

4. Funeral Expenses 18,000/-

              Total                                   12,55,200/-


r)    Therefore,     it   is    opined         that   the    enhancement         of

compensation from 12,25,000 to that of Rs.12,55,200 would be

justified in the present case.

Point No.3 is answered accordingly.

17. POINT NO.4:-

In view of the finding arrived at point No.1, it is held that

order and decree of the Tribunal does not need any interference

with regard to the liability of respondents and the same is upheld.

But with regard to quantum of compensation, it needs to be

enhanced from Rs.12,25,000/- to 12,55,200/-.

Point No.4 is answered accordingly.

18. POINT NO.5:

In the result, the appeal is disposed of upholding the finding

of the Tribunal that the accident occurred due to rash and

negligent driving of the driver of Lorry bearing No.KA-39-6319.

ETD,J MACMA No.640_2021

Further, the compensation is enhanced from Rs.12,25,000/- to

Rs.12,55,200/- and the enhanced amount of compensation shall

carry interest @ 7.5% per annum from the date of claim petition till

realization. However, the interest for the period of delay, if any is

forfeited. The respondent Nos.1 to 3 are directed to deposit the

compensation amount with accrued interest within a period of two

months from the date of receipt of a copy of this Judgment after

deducting the amount if any already deposited. On such deposit,

the appellant is entitled to withdraw the said amount without

furnishing any security. No costs.