Andhra HC (Pre-Telangana)
National Insurance Co. Ltd vs Ganne Seshamma And Others on 13 March, 2013
Author: R.Kantha Rao
Bench: R.Kantha Rao
HON'BLE SRI JUSTICE R.KANTHA RAO C.M.A. No.4369 of 2003 and batch Dated:13-03-2013 National Insurance Co. Ltd....Appellant/R2 Ganne Seshamma and others...Respondents Counsel for appellant in CMAs: Sri Ch. Srinivas Counsel for respondents in CMAs : Sri A.Jayashankar Reddy Counsel for cross-objectors in both the cases: Sri A.Jayashankar Reddy Counsel for respondents in X objections : Sri Ch. Srinvias <GIST: >HEAD NOTE: ?Cases referred: 1. 2011(5) ALD 156(DB) 2. (1999) 4 SCC 423 3. 1982 ACJ 429 4. 1982 ACJ 435 5. AIR 1983 AP 297 6. 2000(1)ALT 117 (D.B) 7. 1975(1)(H.C) 258 8. 1979 ACJ 304 C.M.A. No.4369 of 2003, AND X OBJECTIONS (SR) No.24830 of 2004 In CMA NO.4369 OF 2003, C.M.A.NO.4370 OF 2003, AND X OBJECTIONS (SR) NO.24831 OF 2004 IN C.M.A.NO.4370 OF 2003 COMMON JUDGMENT:
Both the appeals are filed by the National Insurance Company Limited/second respondent before the Tribunal challenging the order dated 14.07.2003 passed by the Motor Accident Claims Tribunal-cum-III Additional District Judge, Kurnool in M.V.O.P.Nos.141 and 147 of 2003.
2. The cross-objections are filed by the respondents/claimants in both the appeals. Since the claim cases under Section 166 of the Motor Vehicles Act before the Tribunal arose out of the same accident and as common question of fact and law would arise for consideration, the appeals and cross-objections are disposed of by the following common judgment.
3. Two persons viz. G. Hussain Basha, aged 23 years and G. Narasimha Reddy, aged 55 years died in a motor vehicle accident at 6.00 AM on 16.02.2001 allegedly on account of the rash and negligent driving of the lorry bearing No. AP 15 T 9024 on the fateful day, the deceased Hussain Basha was driving the jeep bearing No.AP 21 D 0029 from Tenali to Vijayawada. While the said jeep was on its way, the lorry bearing No. AP 15 T 9024 came from behind at fast speed in a rash and negligent manner and dashed the jeep. In the said accident, the driver of the jeep Hussain Basha and Narasimha Reddy died in consequence of the injuries received. The legal representatives, who are the parents of the Hussain Basha filed M.V.O.P.No.141 of 2003 claiming compensation of Rs.4,05,000/-, and the legal representatives of the deceased Narasimha Reddy filed M.V.O.P.No.147 of 2003 claiming compensation of Rs.3,10,000/-. The learned Tribunal after making enquiry into both the claims held that the accident was solely on account of the rash and negligent driving of the lorry bearing No.AP 15 T 9024 by its driver, made the owner of the said lorry and the appellant/insurance company with which the said vehicle was insured at material time jointly and severally liable to pay compensation to the claimants. The Tribunal awarded compensation of Rs.3,03,000/- with interest @ 9% per annum in M.V.O.P.No.141 of 2003 and awarded compensation of Rs. 1,54,336/- with interest @ 9% per annum in M.V.O.P.No.147 of 2003.
4. Assailing the said awards, the National Insurance Company filed the present two appeals. In the said two appeals, the claimants/respondents filed cross objections contending that the compensation granted by the Tribunal is grossly inadequate and requires enhancement.
5. I have heard the learned counsel appearing for the appellant/insurance company and the learned counsel appearing for the respondents/claimants.
6. The appeals as well as cross-objections having been directed against the quantum of compensation, the other issues need not be adverted to. The learned counsel appearing for the appellant/insurance company, however, raised the question while arguing the appels that there is no provision under the Motor Vehicles Act enabling the parties to file cross-objections, the claimants, therefore, ought to have filed appeals challenging the findings in the award and the cross-objections filed by them are not maintainable.
7. In support of his contention that under the provisions of he Motor Vehicles Act filing cross-objections in the appeal is not provided for and the claimants have to necessarily file separate appeals, relied on NEW INDIA ASSURANCE CO. LTD. DINDIGAL, TAMILNADU STATE AND ANOTHER v. VASIREDDY SUJATHARANI1 wherein the Division Bench of this Court held as follows:
"Section 173 of the Motor Vehicles Act does not provide for filing any cross objections by the respondent in the appeal. In the absence of any such provision, cross objection filed by the claimant does not deserve consideration."
8. In the said case, the Division Bench, of this Court rejected the cross- objections filed by the claimant. The Division Bench for rendering the said decision, followed the judgment of the Supreme Court in SUPERINTENDING ENGINEER v B.SUBBA REDDY2 apart from some other cases. In the case followed by the Division Bench 2nd cited, the Supreme Court was dealing with the maintainability of cross-objections in an appeal filed under Section 39 of the Arbitration Act, 1940. The judgment rendered by the Supreme Court, therefore, was not with reference to the provisions of the Motor Vehicles Act. Further, the Division Bench of Andhra Pradesh High Court was dealing with the situation when the appeal filed by the insurance company was dismissed for default whether the cross objections filed by the claimants can be adjudicated on merits. Therefore, the issue which was dealt with by the Division Bench of the Andhra Pradesh High Court is altogether different from that of the issue in the present case.
9. In the present case, in the appeals as well as in the cross-objections, the question involved is whether the compensation granted by the tribunal below is just and reasonable.
10. In support of his contention that in the appeals filed by the insurance company under the provisions of the Motor Vehicles Act, the claimants can maintain the cross-objections without filing any separate appeals, the learned counsel appearing for the claimants relied on some judgments. The ratio laid down in the said decisions has to be properly understood to arrive at a decision as to the maintainability of the cross-objections in the absence of any specific provision in the Motor Vehicles Act for filing cross-objections by the respondent in the appeal.
11. In U.P.STATE ROAD TRANSPORT CORPORATION v JANKI DEVI AND OTHERS3 the Full Bench of Allahabad High Court after referring to the judgments of various High Courts and the Apex Court held as follows:
"The cross-objection as contemplated by Order 41, Rule 22 of the Code of Civil Procedure is maintainable before the High Court at the instance of respondents to an appeal under Section 110-D of the Motor Vehicles Act. "
12. For rendering the decision, the Full Bench of Allahabad found favour with the contention urged by the respondents/cross objectors to the effect that as the Motor Vehicles Act which is a Special Act, is silent in regard to the procedure to be followed by the appellate Court, the appellate jurisdiction has to be exercised in the same manner as the High Court exercises its general appellate jurisdiction and the appeal so filed must be regulated by the practice and procedure of the High Court.
13. Same view is taken by the Division Bench of Punjab and Haryana High Court in HANSRAJ AND ANOTHER v SUKHDEV SINGH AND ANOTHER4. The Division Bench of Andhra Pradesh High Court in SRISAILAM DEVASTHANAM v BHAVANI PRAMILAMMA AND OTHERS5, in A.P.S.R.T.C. v PATAN SHAMSHAD BEGUM AND OTHERS6, in GOVERNMENT OF ANDHRA PRADESH, REPRESENTATED BY ITS SECRETARY, TRANSPORT, DEPARTMNT, HYDERABAD v MRS K.PADMA RANI AND OTHERS7 also expressed the same view.
14. In GURDEV KAUR AND ANOTHER v RASH BEHARI DAS8, the division Bench of the Andhra Pradesh High Court went a step further and took the view that in the appeal filed by the owner of the vehicle involved in the accident, the Court is empowered to enhance the compensation awarded by the claims Tribunal, even though the claimants have not filed an appeal seeking enhancement of compensation.
15. However, in RANJANA PRAKASH AND OTHERS v. DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD. AND ANOTHER9, the Apex Court explained the legal position in the following manner:
"Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
The Apex Court further clarified as under:
"The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections."
16. From the ratio laid down by the Apex Court, therefore, it is clear that in the appeal filed by the insurance company or the owner challenging the quantum of compensation, the claimants cannot seek enhancement of compensation without filing any cross appeal or cross-objections. Therefore, the claimants can question the inadequacy of the compensation granted by the tribunal not only by filing a separate appeal but also by filing cross-objections in the appeal filed by the insurer or the insured.
17. The judgment of the Full Bench of Allahabad High Court 3rd cited and the judgments of the Division Bench of Punjab and Haryana High Court 4th cited and the judgments of the Division Bench of Andhra Pradesh High Court 5th to 8th cited were not brought to the notice of the Division Bench of this Court while rendering its judgment in NEW INDIA ASSURANCE CO. LTD. DINDIGAL, TAMILNADU STATE AND ANOTHER v. VASIREDDY SUJATHARANI 1st cited. Moreover, the judgment of the Apex Court in RANJANA PRAKASH AND OTHERS (9th cited) clearly lays down that the claimants can question the inadequacy of the compensation granted by the Tribunal by its award not only by preferring a separate appeal but also by filing cross-objections in the appeal filed by the owner or the insurer. Therefore, there is no substance in the contention urged by the learned counsel appearing for the insurer that the cross-objections filed by the claimants are not maintainable.
18. Since in the instant case, there are appeals filed by the insurance company and cross-objections filed by the claimants questioning the quantum of compensation granted by the Tribunal, this Court can proceed to decide the compensation which is just and reasonable either by enhancing or by reducing the same.
19. In C.M.A.No.4370 of 2003 filed against O.P.No.141 of 2003, the deceased- Hussain Basha was aged 23 years and was driver by profession. The claimants also filed documentary evidence in proof of the fact that the deceased was a commerce graduate having diploma in Computer Science and also passed English typewriting higher grade. The claimants are his parents. They stated in the claim petition that the deceased was getting salary of Rs.2,000/- per month and batta of Rs.50/- per day. The learned Tribunal below, however, on the ground that the claimants did not examine the owner of the jeep to prove their version, took his total income at Rs.2,000/- per month for computing compensation. It is not always possible for the claimants to produce documentary evidence regarding the income of the deceased. In the present case, the deceased was driver of a private jeep. Therefore, it is highly difficult for the claimants to produce documentary evidence in proof of the income of the deceased. The court has to take a reasonable view in taking the income by considering the age and avocation. In the instant case, the deceased died while driving the jeep. He was hale and healthy and was aged 23 years on the date of the accident. The income of Rs.3,500/- per month stated by the claimants being reasonable and in the absence of any contra evidence let in by the appellant-insurance company, the learned Tribunal in my view ought to have accepted the version of the claimants regarding the income of the deceased. Therefore, for the purpose of computing the compensation, it would be appropriate to consider the income of the deceased at Rs.3,500/- per month as stated by the claimants. The annual income of the deceased would come to Rs.3,500/- x 12 = Rs.42,000/-. Since the deceased was unmarried, 50% of his income shall be deducted towards his personal and living expenditure, then it comes to Rs.21,000/-. Further, the multiplier which is relevant to the age of his mother, the second claimant shall be selected. She was aged 40 years. As per the judgment in SARALA VARMA AND OTHERS v DELHI TRANSPORT CORPORATION AND ANOTHER10, the relevant multiplier is
15. To arrive at the loss of dependency, the above amount has to be capitalized with 15 which comes to Rs.21,000/- x 15 = Rs.3,15,000/-. This apart, the claimants are entitled for compensation of Rs.5,000/- towards loss of estate and a further sum of Rs.5,000/- towards funeral expenses. In all, the claimants are entitled for compensation of Rs.3,25,000/-. This amount shall carry interest @ 7.5% per annum from the date of petition till realization. The appeal filed by the insurance company therefore fails and the same is liable to be dismissed. The cross-objections filed by the claimants succeed and they have to be allowed.
20. In C.M.A.No.4369 of 2003 filed against O.P.No.147 of 2003, the deceased was an agriculturist aged 55 years said to be having 50 acres of land and getting income of Rs.1,00,000/- per annum. Except the oral testimony of his wife who was examined as PW-2, no documentary evidence was adduced before the Tribunal below showing the particulars of land owned and possessed by him. In the absence of such evidence, the trial Court took the income of the deceased at Rs.25,000/- per annum. Even if it is considered that the loss on account of the death of the deceased was only supervisory loss, the income of Rs.25,000/- which was considered by the Tribunal below seems to be reasonable. The annual income of the deceased is Rs.25,000/-. Since the dependants are four in number, 1/4th of his income has to be deducted towards his personal and living expenditure which comes to Rs.6,250/- and the contribution to the family comes to Rs.18,750/-. The multiplier relevant to the age of the deceased as per the judgment in SARALA VARMA case (10th cited) is '11'. To arrive at the loss of dependency, the above amount has to be capitalized with '11' which comes to Rs.18,750/- x 11 = Rs.2,06,250/-. This apart, the first claimant who is the widow of the deceased is entitled for an amount of Rs.10,000/- towards loss of consortium and the claimants are entitled for a further sum of Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. In all, the claimants are entitled for compensation of Rs.2,26,250/-. The award amount shall carry interest @ 7.5% per annum from the date of petition till the date of realization. Therefore, the appeal filed by the insurance company fails and it is liable to be dismissed and the cross-objections deserve to be allowed.
21. In the result, C.M.A. Nos.4369 and 4370 of 2003 are dismissed. The Cross- Objections (SR) No.24830 of 2004 in CMA NO.4369 OF 2003 are allowed awarding compensation of Rs.2,26,250/- (Rupees two lakhs twenty six thousand two hundred and fifty only) with interest at 7.5% per annum from the date of the petition till realization. The Cross-Objections (SR) No.24831 of 2004 in CMA NO.4370 OF 2003 are allowed awarding compensation of Rs.3,25,000/- (Rupees three lakhs twenty five thousand only) with interest at 7.5% per annum from the date of the petition till realization.
_______________ R.KANTHA RAO,J Date:13.03.2013