Andhra Pradesh High Court - Amravati
Shaik Ameenabee 3 Ors vs Pushadapu Koteswara Rao Anr on 3 February, 2023
HON'BLE SRI JUSTICE T MALLIKARJUNA RAO
MACMA.No.3335 OF 2012
JUDGMENT :
1. Aggrieved by the order dated 13.12.2005 in M.V.O.P. No.842 of 2000 passed by the Chairman, Motor Accidents Claims Tri- bunal-cum-VI Additional District Judge (F.T.C.), Markapur (for short "the tribunal"), the claimants preferred this appeal not fastening the liability on the insurance company and also not being satisfied with the quantum of compensation awarded by the Tribunal.
2. For convenience's sake, the parties will hereinafter be referred to as arrayed in the M.V.O.P.
3. It is a petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'M.V.Act') claiming compensation for Rs.4,00,000/- for the death of Shaik Mahaboob Pera (hereinaf- ter referred to as 'deceased').
4. It is not in dispute that the deceased is the husband of the first claimant, the father of claimants 2 to 4.
5. The claimant's case is that on 26.04.1998 at about 02.00 PM, the deceased and some others stayed at the Devarajugattu bus stop to go to Markapur. At that time, the lorry bearing No.AP12T5095 (hereinafter referred to as 'offending vehicle') 2 MACMA.No.3335 of 2012 stopped there. All the persons, including the deceased, boarded the lorry with the driver's permission. While the lorry was going at high speed and reaching Gundlakamma bridge, the driver lost control of the vehicle, went towards the left side of the road, and turned turtle, as a result of which two per- sons, including the deceased, died on the spot and some oth- ers, received injuries. The accident occurred only due to the rash and negligent driving of the driver of the lorry.
6. The 1st respondent is the owner, and the 2nd respondent is the insurer of the offending vehicle. The 1st respondent is the re- mained ex-parte.
7. The 2nd respondent filed a written statement contending that the 2nd respondent does not admit the manner of the accident, the age, or the income of the deceased at the time of the acci- dent. The offending vehicle's driver did not have a valid driving license to drive the lorry, the offending vehicle was not road worth plying, and the deceased was a passenger in a goods vehicle. As such, the 2nd respondent is not liable to pay the compensation; the accident occurred due to negligence on the part of the deceased; the compensation claimed is highly ex- cessive.
3 MACMA.No.3335 of 2012
8. Based on the pleadings, the Tribunal framed appropriate is- sues. Before the Tribunal, on behalf of the claimants, PWs.1 and 2 were examined and marked Exs.A.1 to A.4, and 2 nd res- pondent RW.1 got examined, marked Ex.B.1-policy.
9. After considering the evidence on record, the Tribunal held that the accident had occurred due to rash and negligent driv- ing of the offending vehicle's driver and the death of the de- ceased was caused due to injuries sustained in the accident. The Tribunal awarded compensation of Rs.1,83,000/- with in- terest at 9% per annum from the date of petition till the date of realization and proportionate costs against the 1st respondent. The claim against the 2nd respondent is dismissed.
10. Heard the arguments of the learned counsel for both parties.
11. Learned counsel for appellants/claimants contends that they are entitled to compensation even against the insurance com- pany ; the insurance company cannot avoid its liability. There is negligence on the part of the offending vehicle's driver, and consequently, the owner and insurer are jointly and severally liable; otherwise, the insurance company has to pay the clai- mants, and thereafter it can recover from the owner. The Tri- bunal, while assessing the compensation, should have seen 4 MACMA.No.3335 of 2012 the loss of estate and loss of consortium. The deduction of 1/3rd of income towards incurring the expenses for the main- tenance of the deceased varies from person to person; the compensation awarded by the Tribunal is meagre.
12. Now the points for determination are
1. whether the Tribunal is justified in not fastening the liability on the insurance company and
2. whether the compensation amount awarded is just and reasonable.
13. There is no serious dispute concerning the manner of an accident. The finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle's driver is also not disputed. It is not in dispute that the deceased died while travelling in the offending vehicle. It is evident by Ex.A1 - Copy of F.I.R., Ex.A2 - Copy of Charge Sheet, Ex.A3 inquest report and Ex.A4 copy of postmortem certificate. Thus, it is unnecessary to narrate the factual aspects of the accident in detail.
Point No.1 :
14. It is evident that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. It is not in dispute that the accident occurred while the deceased was proceeding in the offending vehicle. To establish the policy violation, the respondent examined RW.1 - M.Yogayya, who deposed in his evidence that R2 insurance company issued an Ex.B1 policy to the offending vehicle covering the risk of goods vehicle ; Ex.B1 policy was in force at the 5 MACMA.No.3335 of 2012 time of the accident. As seen from the policy terms, an amount of Rs.50/- is collected per L.L. to non-fare paying passengers as per IMT.No.14. Nothing on record shows any amount collected from the deceased for proceeding in the lorry.
15. Ex B1 policy shows the insurance company collected premiums for un-named occupants. Thus, it is clear that the owner paid an extra premium to cover the risk of non-fare passengers. This Court views that the insurance company's liability subsists when it has collected the extra premium covering the risk of passengers. It is the contention of the respondent/insurance company that the deceased was a gratitious passenger. In a decision between Amritlal Sood vs Kaushalya Devi Thakar1, the Hon'ble Apex Court held that "the comprehensive policy issue covers the risk of gratuitous passengers, i.e., the car's occupants. Therefore, it is clear from the Act itself, the words of the policy and the decision in Amritlal Sood's case that a comprehensive policy covers the risk of gratuitous passengers to the extent of the liability incurred.
16. A three-Judge Bench of the Hon'ble Apex Court in the case of 1 (1998) 3 SCC 744 6 MACMA.No.3335 of 2012 National Insurance Co. Ltd. Vs Baljit Kaur and Others 2 held that, considering the question of whether the insurance policy in respect of goods vehicle is required to cover the gratuitous passenger in view of the amendment to Section 147 of the Act. The apex court, after considering all the previous decisions, concluded that the Insurance Company was not liable as the risk of an unauthorized passenger in a goods vehicle or gratuitous passengers is not covered under the policy, there is a breach of the condition of the policy in carrying a passenger in a goods vehicle. Therefore, the vehicle's owner was held liable to satisfy the decree. However, in paragraph 21, the Court thought that the interest of justice would be sub-served if the Insurance Company is directed to satisfy the award in favour of the claimant, if not already satisfied, recover the same from the vehicle's owner.
17. In a decision between National Insurance Co.Ltd., V. Anjana Shyam3 The Hon'ble Apex court held that "it does not mean that an insurer is not bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent the passengers are permitted to be insured 2 (2004) 2 S.C.C. 1 3 2007 CJ 2129 (S.C.) 7 MACMA.No.3335 of 2012 or directed to be insured by the statute, covered by the con- tract. An insurance company can be made liable only in re- spect of the number of passengers for whom insurance can be taken under the Act and for whom insurance has been taken as a fact and not in respect of the other passengers involved in the accident in a case of overloading. "Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by insur- ance policy".
18. The identical issue once again surfaced in the case of United India Insurance Co.Ltd., v. K.M.Poonam 4, the Hon'ble Apex Court reiterated the relevant provisions of the Motor Vehicles Act and, after taking note of its various earlier decisions, in- cluding Baljit Kaur (supra) and Anjana Shyam (supra), has re- solved and settled the issue thus: "the liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of 4 2011 ACJ 917 (S.C.) 8 MACMA.No.3335 of 2012 the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be con- fined to six persons only, notwithstanding the larger number of persons carried in the vehicle. As the such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned".
19. In a decision between Manuara Khatun and others Vs. Ra-
jesh Kr. Singh and others5, it is a case where the Tribunal further held that all the passengers, including the two de- ceased, were travelling in Tata Sumo for hire and hence were held to be gratuitous passengers. Due to the said reason, United India Insurance Company Ltd., the insurer of Tata Sumo(offending vehicle) was not liable". In the facts of the case the Hon'ble Apex Court held that "in view of the foregoing dis- cussion, we are of the view that the direction to United India In- surance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing acci- dent due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first 5 2017 (2) ALD 65 (SC) 9 MACMA.No.3335 of 2012 pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra". Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors. The Hon'ble Supreme Court held that "to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Par- vathneni and another.6 which doubted the correctness of the decisions in the exercise of jurisdiction under Article 142 of the Constitution of India directing insurance companies to pay the compensation amount even though the insurance compa- ny has no liability to pay. In the Parvathneni case, the Su- preme Court pointed out that Article 142 of the Constitution of India does not cover such types of cases and that if the insur- ance company has no liability to pay at all, then it cannot be compelled by order of the Court in the exercise of its jurisdic- tion under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner 6 (2009) 8 SCC 785 10 MACMA.No.3335 of 2012 of the vehicle. The above reference in the Parvathneni case was disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. Since the reference to the larger Bench in the Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently, the deci- sion in the Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tri- bunal directing the insurance company to pay the compensa- tion amount awarded to the claimants and, thereafter, recover the same from the owner of the vehicle in question is in accor- dance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and re- cover from the vehicle's owner. The impugned judgment of the High Court exonerating the insurance company from its liabili- ty and directing the claimants to recover the compensation from the owner of the vehicle is set aside, and the award passed by the Tribunal is restored".
20. Coming to the instant case, the vehicle owner paid an addi-
tional premium to cover the liability of non-fare-paying pas- 11 MACMA.No.3335 of 2012 sengers as per IMT.No. 14. As already observed, no evidence is placed by the insurance company to show that any amount was collected from the deceased.
21. The terms of the contract bind the insurance company. In the present case, the policy issued by the insurance company is a package policy. As such, the insurance company is liable to pay the compensation amount.
22. On the other hand, the policy issued under section 147 of the Motor Vehicles Act is statutory and also called an Act policy. For the foregoing reasons, this Court views that the Tribunal has not perused correctly and considered the evidence on record.
23. In view of the above materials, this Court views that the Tri-
bunal committed an error in not fastening the liability on the insurance company, and it is not the case that the deceased travelled in the lorry's cabin. However, it has not contributed to the accident. This Court views that a direction can be given to the insurance company to pay and recover the compensa- tion from the offending vehicle owner.
Point No.2 :
24. According to the appellant's case, the deceased was aged 38 years by the date of the accident. The claimants have not 12 MACMA.No.3335 of 2012 placed documentary evidence showing the exact age of the de- ceased. In the absence of the same, by considering Ex.A4 - Postrmotem Report, the Tribunal considered the age of the de- ceased can safely be taken as 38 years by the date of the acci- dent.
25. It is the claimant's case; the deceased worked as a Tailor and earned Rs.3,000/-. But the Tribunal has taken the deceased's earnings at Rs.50/- per day. In a case where there is no spe- cific evidence as to the income of the deceased, the Apex Court in Lakshmi Devi and others Vs. Mohammad Tabber 7held that, in today's world, even common labour can earn Rs.100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/-. But the Tribunal wrongly assessed the income of the deceased notionally at Rs.1500/- per month.
26. In National Insurance Company Limited Vs. Pranay Sethi 8, wherein it is held in case the deceased was self-employed, an additional 40% of the established income should be the war- rant where the deceased was below the age of 40 years. The finding of the Tribunal that the deceased's age is 38 as of the date of the accident is not disputed. Given the same, the an- 7 2008 ACJ 488 8 2017 ACJ 270 13 MACMA.No.3335 of 2012 nual earnings of the deceased, including a future prospectus, can be assessed at Rs.3,000/- + 40% = Rs.4,200/-.
27. Since the deceased was married and the claimants are depen-
dents upon the earnings of the deceased, and considering the size of the dependents, i.e., 4 in number and view of the prin- ciple laid down in Sarala Verma v. Delhi Transport Corpo- ration9, this Court views that 1/4th of the earnings of the de- ceased to be deducted towards personal and living expenses. After the deduction of 1/4th of the earnings as observed above, the monthly earnings, including the future prospectus of the deceased after deducting personal expenses, would arrive at Rs.3150/- (Rs.4,200 x ¼ = 1050/-).
28. To assess the loss of earnings, this Court relied on the judgment of the Apex Court in Sarla Verma's case, in which the Apex Court provided the table of the multiplier to be considered for the claims made under Section 166 of the Motor Vehicles Act. Hence, the multiplier for the persons aged between 36 to 40 is provided as '15'. Therefore, the loss of dependency can arrive at an amount of Rs.5,67,000.00/- i.e., 3150 x 12x 15).
9 2009 ACJ 1298 14 MACMA.No.3335 of 2012
29. In Magma General Ins. Co. Ltd., v. Nanu Ram 10, at para-
graph 8, the Apex Court held that:
"(8.6)...the Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award 'just compensation, irrespective of whether any plea on that behalf was raised by the claimant.
(8.7) A Constitution Bench of this Court in Pranay Sethi, 2017 ACJ 2700 (S.C.), dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is the loss of consortium.
In legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', parental consortium', and filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse (Rajesh v. Rajbir Singh 2013 ACJ 1403 (S.C.). The parental consortium is granted to the child upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training. The filial consortium is the right of the parents to compensate in the case of the accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship, and role in the family unit."
30. The judgment in Pranay Sethi's case was rendered in the year 2017. Therefore, the claimants are entitled to 10 2018 ACJ 2782 15 MACMA.No.3335 of 2012 a 10% enhancement of conventional heads. In all, the claimants are entitled to the compensation as detailed below:
Towards loss of dependency Rs. 5,67,000/-
Towards funeral expenses Rs. 16,500/-
Loss of Estate Rs. 16,500/-
spousal consortium Rs. 44,000/-
Parental consortium Rs. 1,32,000/-
(44,000x3)
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Total: Rs. 7,76,000/-
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31. In Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Company Limited and another 11 the Apex Court while referring to Nagappa v. Gurudayal Singh 12 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 v. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the Tribunal and for that any competent Court is entitled to award higher compensation to the victim of an accident."
32. In Ramla vs National Insurance Co. Ltd.,13 the Apex Court held no restriction to award compensation exceeding the amount claimed. As such, given the principle laid down by the Apex Court, the claimants are entitled to an amount of 11 (2011) 10 SCC 756 12 2003 A.C.J. 12 (SC) 274 13CIVIL APPEAL No.11495 OF 2018 16 MACMA.No.3335 of 2012 Rs.7,76,000/- exceeding the claim amount. However, the claimants shall pay the requisite court fee over and above the compensation awarded.
33. Following the principles laid down by the Apex Court in a cate- na of judgments, this Court can safely conclude that the clai- mants are entitled to get more than what has been claimed. Further, the Motor Vehicles Act is a beneficial piece of legisla- tion where the interest of the claimants is a paramount consid- eration. The Courts should always endeavour to extend the benefit to the claimants to a just and reasonable extent.
34. As a result, the appeal is allowed without costs, enhancing the compensation from an amount of Rs.1,83,000/- to Rs.7,76,000/- against the 2nd respondent, with the same rate of interest awarded by the Tribunal, i.e., at 9% per annum. The claimants are directed to pay the requisite court fee on en- hanced compensation amount over and above the compen- sation amount claimed.
35. In the facts and circumstances of the case by directing the 2nd respondent/insurance company is directed to pay the compen- sation as awarded along with interest, thereon to the claimants at the first instance, and thereafter it shall recover the same 17 MACMA.No.3335 of 2012 from the owner of the offending vehicle without initiating any separate proceedings by filing Execution Petition before the Tribunal. Out of the enhanced amount, the 1st claimant is en- titled to 50% of the enhanced compensation with accrued in- terest on the entire compensation amount and the petitioners 2 and 3 are entitled to each 15% of the enhanced compensation, and the 4th petitioner is entitled to the remaining 20% en- hanced compensation. The petitioners are at liberty to with- draw the compensation as awarded by filing an appropriate application before the Tribunal subject to the terms of the award.
36. Respondent No.2 is directed to deposit the enhanced compen- sation amount, excluding the amount deposited, if any, within two months from the date of receipt of a copy of this order.
37. Miscellaneous petitions pending, if any, in this appeal shall stand closed.
__________________________________ JUSTICE T MALLIKARJUNA RAO Date : 03.02.2023.
BV/KGM 18 MACMA.No.3335 of 2012 HON'BLE SRI JUSTICE T MALLIKARJUNA RAO MACMA.No.3335 OF 2012 BV/KGM