Andhra Pradesh High Court - Amravati
United India Insurance Company Limited vs Palusani Lakshmamma And 3 Others on 14 November, 2022
Author: U. Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
M.A.C.M.A. Nos.429 of 2018 and 3196 of 2018
COMMON JUDGMENT:(Per Hon'ble Sri Justice U.Durga Prasad Rao) M.A.C.M.A No. 429 of 2018 and 3196 of 2018 are filed by the Insurance Company and claimants respectively challenging the judgment dated 18.08.2017 in M.V.O.P.No.110/2014 passed by the Motor Accidents Claims Tribunal-cum-III Additional District Court, Kurnool at Nandyal granting compensation of Rs.34,57,872/- against the claim of Rs.45,00,000/- for the death of one Palusani Dasthagiri Reddy in a motor bike accident.
2. The claimants are the wife, minor daughter and son of the deceased who filed MVOP No.110/2014 against the owner and insurer of the offending motor bike bearing registration No.AP-21-AF-8623 which was partly decreed against both the respondents. Hence both parties filed the above appeals. Since both the appeals arose out of the same MVOP, they are disposed of by this common judgment. 2
3. Parties in these appeals are referred to as they are arrayed in M.V.O.P.No.110/2014.
4. Heard arguments of Sri Vutla Srinivasa Rao, learned counsel for insurance company/ appellant in MACMA No.429/2018 and Sri A. Jaya Sankara Reddy, learned counsel for claimants/appellants in MACMA No.3196/2018.
5. Severely fulminating the judgment of the lower tribunal, Sri Vutla Srinivasa Rao, learned counsel for insurance company/appellant in M.A.C.M.A.No.429/2018 would firstly argue that the involvement of motor bike baring No. AP-21-AF-8623 in the accident is highly doubtful because as per the version of claimants, on the night of 27.06.2013 when the deceased was proceeding from Allagadda to Chintagunta Village on the offending motor bike as pillion rider driven by his own brother-in-law who is the owner of the motor bike, the said vehicle allegedly fell in a ditch and thereby the deceased sustained head injury and died on 01.07.2013 while undergoing treatment in the Military Hospital at Bengaluru. Learned counsel would argue that if the said version is true, the 1st respondent who is the own brother-in- 3 law of deceased ought to have reported the accident to police on the same date of accident. However, he lodged Ex.A1- FIR only on 01.07.2013 i.e., after the death of the deceased. It indicates that the deceased must have died in a different accident caused by an unknown vehicle but in order to claim compensation, case was registered against the vehicle of 1st respondent. Hence the tribunal ought to have exonerated the insurance company.
6. Nextly he argued that the tribunal awarded a high compensation of Rs.31,99,872/- under head "Loss of Income" by taking the monthly income of deceased as Rs.25,000/- and applying multiplier 16. In this context, the tribunal ignored the evidence of PW3 who stated that the deceased was a military employee whose service period would be about 15 years. As per Ex.A1-FIR the deceased already completed 10 years of military service and therefore he was left with only five years of service by the date of accident. In that view, the deceased during the remaining five years of his service would have earned Rs.15 lakhs (25,000 X 12 X 5) and contributed net amount of Rs.10 lakhs only, having regard to the fact that the tribunal accepted his monthly salary as Rs.25,000/-. However, the tribunal committed gross error in taking 4 multiplier 16 and multiplying the same with his annual income of Rs.1,99,992/- to arrive at the exorbitant figure of Rs.31,99,872/-. He further argued that the tribunal failed to deduct income tax from the annual income of the deceased. By that count also, the compensation was unduly hiked. He further argued that the compensation granted under other heads is on higher side and the same should have been restricted to the extent mentioned in the decision National Insurance Company Limited vs. Pranay Sethi and others1. He thus prayed to allow the appeal.
7. Per contra, Sri A. Jaya Sankara Reddy, learned counsel for appellants/claimants argued that the crime vehicle was indeed involved in the accident and merely because the police report was given with a delay of four days, it cannot be contended otherwise. He argued that the police after investigation laid charge sheet against the crime vehicle which indicates that the said vehicle was very much involved in the accident. He further argued that PW2 the eye witness has clearly deposed about the manner of occurrence of accident and involvement of the motor bike bearing No. AP-21-AF-8623 in the said accident. 1 AIR 2017 SC 5157 = MANU/SC/1366/2017 5 Therefore, it cannot be argued that the motor bike was not involved in the accident. Nextly he argued that the tribunal has not correctly assessed the compensation, inasmuch as, though as per the evidence of PW3 and Ex.C1-salary certificate, the net salary of deceased was Rs.29,140/-, still the tribunal wrongly fixed his monthly salary as Rs.25,000/- . Further, the tribunal failed to add future prospects to his salary and thereby compensation was drastically reduced. It is also argued that the tribunal has not taken into consideration the medical bills. He thus prayed to allow the appeal and award the compensation as prayed for.
8. The points for consideration in these appeals are:
(1) Whether the motor bike bearing registration No. AP-21-AF-
8623 was not involved in the accident as claimed by the insurance company?
(2) Whether the compensation awarded by the lower tribunal is just and reasonable or requires re-assessment?
9. POINT No.1 We gave our anxious consideration to the above arguments. On perusal of the record, we are unable to accept the 6 argument of the counsel for insurance company that the motor bike was not involved in the accident. PW2 who is an eye witness to the accident has clearly deposed that on 27.06.2013 at 8:45 PM when the motor bike bearing registration No.AP-21-AF-8623 belongs to the 1st respondent reached near Injeti Krishna Reddy's home the 1st respondent drove the vehicle at high speed and in a rash and negligent manner without observing the unevenness of the road and thereby the deceased who was the pillion rider, fell on the road and received grievous injuries. He thus asserted that the crime vehicle was indeed involved in the accident. In the cross-examination he stated that he observed the accident at a distance of ten feet from his house. He denied the suggestion that he is a close relative of the deceased and he was speaking falsehood. Except giving such a suggestion which was denied, nothing specific could be elicited to disprove the veracity of PW2. It should be noted that PW2 was cited as an eye witness (LW3) in the charge-sheet. Thus his evidence clinches the issue. That apart, the police too after investigation laid charge sheet against the 1st respondent. In our view the tribunal has rightly held that the crime vehicle was indeed involved in the accident and the 1st respondent was 7 guilty. Accordingly, we answer this point in favour of claimant and against the insurance company.
10. POINT No.2 Regarding this point, while it is the contention of the insurance company that the tribunal has fixed the high compensation, the complainants in turn argued that the tribunal granted very low compensation. Hence we verified the record.
11. So far as occupation and earnings of the deceased are concerned, a perusal of the evidence of PW3 who is working as Assistant Controller of Defence Accounts, PAO, (ORS), AAD, coupled with Ex.C1-salary certificate would show that the deceased was working as Havaldar in the Indian Army and was drawing gross salary of Rs.37,179/- and a net salary of Rs.29,140/-. PW3 stated that generally the service of the army persons will be 15 years. However, he added that if a person wants to continue his service in army, he can continue as per the army rules relating to terms of engagement. Basing on the Ex.A1-FIR wherein it was mentioned that the deceased already put up 10 years service in army, it is argued by learned counsel for insurance company that the left over service is only 5 years and hence even if the deceased is alive, his contribution to his family would be for that 8 period only and hence selection of multiplier of 16 on the basis of his age is incorrect. We are unable to accept this argument for the reason that PW3 though stated that generally the service of army persons will be 15 years, however he further stated one can continue in the service as per the army rules concerning the terms of engagement. Therefore, in our view the said general rule cannot be rigidly applied in every case. We do not know whether the deceased would have continued his employment beyond 15 years had he been alive. Even assuming that the deceased worked for 15 years only in the Indian Army that does not mean that after serving the Army he will remain idle and will not engage in any gainful employment as he was only 34 years old by the time of his death as per Ex. A6- school certificate. So we cannot accept the argument that the deceased would have contributed amount for five years only had he alive and thereby compensation should be calculated on that premise. The tribunal was right in selecting multiplier 16 basing on his age by following the decision in Sarla Verma v. Delhi Transport Corporation2 .
(a) Now coming to the earnings of the deceased, his net salary was Rs.29,140/-. However, the tribunal erroneously fixed his income 2 2009 ACJ 1298 9 as Rs.25,000/- per month on the ground that there were no correct service particulars of the deceased. When the unrebutted salary particulars are available, that should be the basis for fixing his income in our considered view. So we accept his net salary for fixing the compensation under the head "loss of earnings". The annual income of the deceased will be Rs.3,49,680/- (Rs.29,140 X 12). From this income tax as applicable for the financial year 2012-13 has to be deducted. Income up to Rs.2,00,000/- is exempted and on balance income of Rs.1,49,680/-, 10% tax is deducted. Thus the net annual earnings of deceased comes to Rs.3,34,712/-.
(b) As rightly argued by the claimants, the tribunal failed to add future prospects to the income of the deceased. As per Pranay Sethi (1 supra), an addition of 50% of the actual salary is to be made towards future prospects when the deceased was below 40 years of age. Hence a sum of Rs.1,67,356/- (50% of Rs.3,34,712/-) is added and thereby the annual earnings of the deceased comes to Rs.5,02,068/-. From this 1/3rd is deducted towards personal living expenses of the deceased. The balance amount comes to Rs.3,34,712/-. The said amount is multiplied with the multiplier 16. Thus the compensation for loss of 10 earnings comes to Rs.53,55,392/-. Then following the Pranay Sethi, (1 supra) a sum of Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral expenses are awarded.
(c) So far as medical expenditure is concerned, the argument of the claimants is that the tribunal has not granted compensation for the medical expenditure of Rs.2 lakhs incurred by them in Surya Hospital, Kurnool and later in the Military Hospital, Bangalore where the deceased was treated. We find no much force in this argument. In para-12 of the judgment the lower tribunal having considered the essentiality certificate and medical bills under Ex.P5, granted Rs.18,000/-. However, since there was no evidence that the claimants incurred any expenditure in the Military Hospital, Bangalore, discarded the rest of the claim. We find no reason to differ with.
(d) Thus the total compensation payable to the claimants is as follows:
(i) Loss of earnings = Rs.53,55,392=00
(ii) Loss of estate = Rs. 15,000=00
(iii) Loss of consortium = Rs. 40,000=00
(iv) Funeral expenses = Rs. 15,000=00
(v) Medical expenses = Rs. 18,000=00
(vi) Transport charges = Rs. 20,000=00
TOTAL = Rs. 54,63,392=00
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Thus the claimants are entitled to a total compensation of Rs.54,63,392/- with proportionate costs and interest at 7.5% p.a from the date of MVOP till the date of realization. It is needles to emphasize that in deserving cases, the Court can award more compensation than claimed by the claimants vide Nagappa v. Gurudayal Sing3 and Ningamma v. United India Insurance Co. Ltd.,4
12. In the result:
(i) MACMA No.429/2018 filed by the insurance company is dismissed.
(ii) MACMA No.3196/2018 filed by the claimants is allowed and compensation awarded by the lower tribunal is enhanced from Rs. 34,57,872/- to Rs. 54,63,392/- with proportionate costs and simple interest at 7.5% p.a from the date of MVOP till the date of realization. The insurance company shall deposit the compensation amount within two months from the date of this common judgment failing which, the claimants will be at liberty to 3 MANU/SC/11/1107/2002 = 2003 (2) SCC 274 4 MANU/SC/0802/2009 = 2009 (13) SCC 710 12 take out execution against the owner and insurance company of the offending motor bike. The claimants have to deposit the Court fee on the differential compensation within four (4) weeks and thereafter the Registry shall issue certified copies of common judgment to them.
As a sequel interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J _____________________________ G. RAMAKRISHNA PRASAD, J 14.11.2022 krk 13 HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD M.A.C.M.A. Nos.429 of 2018 and 3196 of 2018 14th November, 2022 krk