Telangana High Court
Reliance General Insurance Co Ltd vs Malleshwari 7 Others on 29 March, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI M.A.C.M.A.No.1997 of 2014 and CROSS OBJECTIONS I.A.No.5 of 2014 COMMON JUDGMENT:
M.A.C.M.A.No.1997 of 2014 is preferred by the appellant/ Insurance Company, questioning the order and decree, dated 21.12.2013 passed in O.P.No.572 of 2009 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Mahabubnagar (for short "the Tribunal"). Being aggrieved by the quantum of compensation awarded by the Tribunal, the respondents 1 to 7/ claimants also filed cross-objections vide I.A.No.5 of 2014.
2. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the Tribunal.
3. The facts, in issue, are as under:
4. The claimants filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.10,00,000/- for the death of the deceased-Golla Krishnaiah, who died in a motor vehicle accident. It is stated that on 22.04.2009, while the deceased was proceeding on his Hero Honda Motor cycle and when he reached in the limits of Marikal Village, one DCM Van bearing 2 No.AP 23 U 9574, driven by its driver in a rash and negligent manner at high speed and dashed the motor cycle of the deceased, due to which the deceased fell down on the road, sustained head injury and died on the spot. As the accident occurred due to the rash and negligent driving of the driver of the DCM Van, the claimants filed the above O.P. against the respondents 1 and 2, who are the owner and insurer of the said DCM Van.
5. Before the Tribunal, the 1st respondent remained ex parte.
6. The 2nd respondent, who is the insurer of the said DCM Van, filed counter denying all the averments in the claim-petition including the manner in which the accident took place, age, avocation and income of the deceased. It is mainly contended that the accident occurred only due to the negligence of the deceased and the driver of the DCM Van was not having valid and effective driving licence at the time of accident, as such, the 2nd respondent is not liable to pay compensation. It is also contended that the compensation claimed is excessive and prayed to dismiss the claim- petition.
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7. Basing on the above pleadings, the Tribunal framed the following issues:-
1. Whether the accident dated 22.04.2009 at about 17.00 hours in the limits of Marikal Village, was due to the rash and negligent driving of driver of DCM Van bearing No.AP 23 U 9574 and whether it resulted in causing death of deceased Golla Krishnaiah?
2. Whether the driver of the offending vehicle was having valid driving licence as on the date and time of the accident?
3. Whether the policy was in force as on the date and time of the accident?
4. Whether the petitioners are entitled for compensation from the respondents and if so, to what extent and from whom?
5. To what relief?
8. On behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A10 and Exs.X1 and X2 were marked. On behalf of the Insurance Company, R.Ws.1 to 3 were examined and Exs.B1 to B3 were marked.
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9. After considering the oral and documentary evidence available on record the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the DCM Van and accordingly awarded an amount of Rs.8,74,000/-. Aggrieved by the said judgment, the appellant/Insurance Company filed the present appeal and the claimants filed the cross objections I.A.No.5 of 2014.
10. Learned Standing Counsel for the Insurance Company would submit that the Tribunal having held that the driver of the DCM Van was not having valid driving licence at the time of accident, erred in directing the Insurance Company to deposit the said amount at first instance and then recover the same from the owner.
11. Per Contra, learned Counsel appearing for the claimants would submit that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are entitled to future prospects at 40% and also Rs.77,000/- under conventional heads. Therefore, it is argued that the income of the deceased may be taken into 1 2017 ACJ 2700 5 consideration reasonably for assessing loss of dependency and prayed to enhance the same.
12. A perusal of the impugned judgment would show that the Tribunal has framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, to which the Tribunal after considering the evidence of P.W.2 coupled with the documentary evidence, has categorically held that the accident was due to rash and negligent driving on the part of driver of the DCM Van. Therefore, I see no reason to interfere with the said finding.
13. Insofar as the quantum of compensation is concerned, since the deceased was running a photo studio under the name and style as Sri Sai Photo Studio at Nawabpet, the Tribunal has rightly taken the income of the deceased at Rs.6,000/- per month. In view of the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Pranaysethi and others (1 supra), 40% for loss of future prospects on his personal income is to be added. Accordingly, If 40% is added towards loss of future prospects, the total amount would be Rs.6,000/- + 2,400/- = 8,400/-. From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma 6 v. Delhi Transport Corporation2 as the dependents are four in number. After deducting 1/4th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.6,300/- per month. Since the age of the deceased was 25 years at the time of the accident, the appropriate multiplier is '18' as per the decision reported in Sarla Verma v. Delhi Transport Corporation and another3. Adopting multiplier '18', his total loss of earnings would be Rs.6,300/- x 12 x 18 = Rs.13,60,800/-. The claimants are also entitled to Rs.77,000/- under conventional heads as per Pranay Sethi's case (1 supra). Thus, in all the claimants are entitled to Rs.14,37,800/-.
14. Insofar as the liability of the insurance company is concerned, the contention of the learned Standing Counsel for the Insurance Company is that the driver of the DCM Van has no valid driving licence at the time of accident, as such, the Insurance Company is not liable to pay the compensation and the Tribunal erred in directing the Insurance Company to pay the compensation first and then recover the same.
2 2009 ACJ 1298 (SC) 3 (2009) 6 SCC 121 7
15. In National Insurance Company Ltd. V. Swaran Singh and others4, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Further, recently, the Apex Court in Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others5, following its earlier decision in Swaran Singh (4 supra), reiterated that "even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount." In view of the above, the Tribunal has rightly directed the Insurance Company to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle, which warrants no interference.
4 (2004) 3 SCC 297 5 2018 ACJ 2163 8
16. At this stage, the learned Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.10,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
17. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another6, the Apex Court while referring to Nagappa Vs. Gurudayal Singh7 held as under:
"It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that reason any competent Court is entitled to award higher compensation to the victim of an accident."
18. In view of the Judgments of the Apex Court referred to above, the claimants are entitled to get more amount than what has been claimed. Further, the Motor Vehicles Act being a beneficial piece of legislation, where the interest of the claimants is a paramount consideration the Courts should always endeavour 6 (2011) 10 SCC 756 7 2003 ACJ 12 (SC) 9 to extend the benefit to the claimants to a just and reasonable extent.
19. Accordingly, M.A.C.M.A.No.1997 of 2014 filed by the Insurance Company is dismissed and the Cross-objections vide I.A.No.5 of 2014 filed by the claimants are allowed. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.8,74,000/- to Rs.14,37,800/-. The enhanced amount will carry interest at 7.5% p.a. from the date of the award passed by the Tribunal. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. However, the claimants are directed to pay Deficit Court Fee on the enhanced amount. There shall be no order as to costs.
20. Miscellaneous petitions, if any, pending shall stand closed.
__________________ JUSTICE G. SRI DEVI 29.03.2022 gkv