Telangana High Court
Annapurna Sunder Shetty 3 Others vs Md. Moinuddin Raju Another on 16 June, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
M.A.C.M.A. NO.1414 OF 2016
AND
M.A.C.M.A. NO.1704 OF 2016
COMMON JUDGMENT
These two are cross Appeals filed by the insurance company as well as the claimants respectively against the award dt.30.01.2016 passed by the Motor Accident Claims Tribunal-cum-Chief Judge, City Civil Court, Hyderabad (for short 'the Tribunal') in O.P.No.3021 of 2014.
MACMA No.1414 of 2016:
2. In this Appeal filed by the insurance company, the grounds raised are with regard to the sole liability of the insurance company to pay the compensation to the claimants when there was composite negligence on the part of both the vehicles which were involved in the accident, and also on the quantum of compensation awarded by the Tribunal.
3. Learned Standing Counsel for the insurance company, Sri T. Mahender Rao, submitted that the deceased along with others were travelling in an auto on 20.08.2014 and the auto and the lorry collided MACMA Nos.1414 & 1704 of 2016 2 resulting in an accident and the deceased along with 6 others died on the spot. He submitted that it is only the owner and the insurance company of the lorry that have been made party respondents to the O.P. by the claimants, and though the other vehicle, i.e., the auto is also responsible for the accident, neither the owner of the auto nor its insurance company have been made parties. He submitted that when there is composite negligence on the part of both the vehicles, the insurance companies and owners of both the vehicles are equally, jointly and severally liable for payment of the compensation. He submitted that the Tribunal has directed payment of the entire compensation by the insurance company of the lorry alone and therefore he sought a direction/liberty from this Court to proceed against the other vehicle's (auto) owner and insurance company who are also liable to pay the compensation. For this proposition, he placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Company Limited and others dt.07.05.20151.
4. Learned counsel for the claimants, Sri P. Ramakrishna Reddy, is also heard.
1
2015 LawSuit SC 469 MACMA Nos.1414 & 1704 of 2016 3
5. Having regard to the finding of the Tribunal at para-14 of its award that the drivers of both the vehicles have driven their vehicles in high speed and in a negligent manner causing the accident, the composite negligence of the drivers of both the vehicles is established and both are jointly and severally liable. Therefore, this Court is of the opinion that the owner and insurance company of the other vehicle, i.e., the auto, ought to have been made parties to the claim petition. However, as held by the Hon'ble Supreme Court in the case of Khenyei Vs. New India Assurance Company Limited and others (1 supra), it would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of the two vehicles, in the absence of impleadment of the other joint tort feasors. It was held that in such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. Respectfully following the same, liberty is granted to the insurance company of the lorry to proceed against the owner and the insurance company of the other vehicle, i.e., the auto for recovery of the compensation paid by it in proportion to their liability. It is however clarified that the insurance company of the lorry shall pay the entire compensation as awarded by the Tribunal to the claimants and MACMA Nos.1414 & 1704 of 2016 4 if they so desire, they may recover from the owner and insurance company of the auto which is also involved in the subject accident.
6. With regard to the compensation awarded by the Tribunal in this case, the insurance company is objecting to adopting of the monthly income of the deceased at Rs.3,000/- per month. According to the learned Standing Counsel for the insurance company, there was no evidence produced by the claimants with regard to the monthly income claimed by the claimants at Rs.20,000/- per month. Since the compensation awarded by the Tribunal is under challenge in both the appeals of the insurance company as well as the claimants, this issue is taken up along with MACMA No.1704 of 2016 which is the appeal filed by the claimants who are seeking enhancement of compensation by adopting the monthly income of the claimants therein at a higher figure.
7. M.A.C.M.A.No.1414 of 2016 is accordingly partly allowed. MACMA No.1704 of 2016:
8. The claimants filed this Appeal seeking enhancement of the compensation. The deceased died in the accident that took place on 20.08.2014 and was aged 55 years at the time of the accident. The claimants submitted that the deceased was doing milk vending business MACMA Nos.1414 & 1704 of 2016 5 and was earning Rs.20,000/- per month and that in due course he would earn around Rs.35,000/-. The Tribunal has adopted a sum of Rs.3,000/- per month as the monthly income of the deceased.
9. Learned counsel for the claimants submits that the deceased was doing independent business of milk and his monthly income should be at least taken at Rs.6,500/- per month as per the decision of the Hon'ble Supreme Court in the case of Syed Sadiq and others Vs. Divisional Manager, United India Insurance Co. Ltd.2.
10. On going through the said judgment, it is noticed that the injured therein was a vegetable vendor and therefore, there is similarity in work carried on by the injured before the Hon'ble Supreme Court and also before the Court herein. Therefore, it is felt that Rs.6,500/- is to be taken as reasonable monthly income of the deceased in the case before this Court.
11. As regards future prospects, since the deceased was 55 years of age at the time of the accident, the same can be allowed at 10% of his annual income. It is ordered accordingly.
2 2014 ACJ 627 MACMA Nos.1414 & 1704 of 2016 6
12. Learned Standing Court for the insurance company, Sri T. Mahender Rao, pointed out that the consortium paid to the 1st claimant and compensation towards loss of love and affection and estate are excessive.
13. It is noticed that the compensation towards consortium and the compensation towards funeral expenses and loss of estate are not granted in accordance with the Judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi3 and therefore they are accordingly granted.
14. After going through the table giving details of the compensation by the Tribunal, it is noticed that funeral expenses have been granted at Rs.10,000/- as against Rs.15,000/- with 10% enhancement thereon awarded by the Hon'ble Supreme Court in the case of Pranay Sethi (4 supra) and loss of estate is also to be awarded at Rs.15,000/- + 10% enhancement thereon. The spousal consortium to the spouse, i.e., 1st claimant/1st appellant is to be awarded at Rs.40,000/- + 10% enhancement thereon and claimants 2 and 3/appellants 2 and 3 being the sons of the deceased are entitled to parental consortium of Rs.40,000/- + 3 (2017) 16 SCC 680 MACMA Nos.1414 & 1704 of 2016 7 10% enhancement thereon to each of them. The compensation is accordingly enhanced.
15. In the light of the abovementioned discussion, the claimants 1 to 3 are entitled to the following amounts:
Head Compensation awarded
(1) Income Rs.6,500 per month
(2) Future prospects Rs.650 (i.e. 10% of the income)
(3) Deduction towards Rs.2,383 i.e. 1/3rd of
Personal Expenses (Rs.6,500 + 650 = 7,150)
(4) Total income Rs.4,767 i.e. 3/4th of
(Rs.6,500 + 650 = 7,150)
(5) Multiplier 11
(6) Loss of future income Rs.6,29,244 (Rs.4,767x12x11)
(7) Funeral expenses Rs.16,500 (15,000 + 10% thereof)
(8) Loss of estate Rs.16,500 (15,000 + 10% thereof)
(9) Spousal consortium Rs.44,000 (40,000 + 10% thereof)
payable to the 1st claimant
(10) Parental consortium Rs.88,000 (40,000 + 10% thereof
each) payable to claimants 2 & 3
Total compensation awarded Rs.7,94,244 along with interest
@ 7.5% per annum from the date
of filing of the claim petition till
payment.
MACMA Nos.1414 & 1704 of 2016
8
16. In the result, the award dt.30.01.2016 in O.P.No.3021 of 2014 on the file of the Motor Accident Claims Tribunal-cum-Chief Judge, City Civil Court, Hyderabad is modified by awarding a total compensation of Rs.7,94,244/- (Rupees Seven Lakhs Ninety Four Thousand Two Hundred and Forty Four only) with costs and interest thereon at 7.5% per annum from the date of the claim petition till the date of realisation against respondents 1 and 2 jointly and severally in MACMA No.1704 of 2016. The compensation of Rs.7,94,244/- is apportioned among the claimants in the following manner:
Claimant No.1 : Rs.4,94,244/-
Claimant No.2 : Rs.1,50,000/-
Claimant No.3 : Rs.1,50,000/-
The claimants 1 to 3 are permitted to withdraw their entire apportioned shares of compensation on the deposit being made by the 2nd respondent. The deposit shall be made by the 2nd respondent within a period of 120 days from the date of receipt of a copy of this judgment, after giving credit to the amount, if any, already deposited by the 2nd respondent. It is also made clear that the 2nd respondent insurance company shall make the payment to the claimants and thereafter it is at liberty to proceed against the owner and the insurance company of the other vehicle, i.e., MACMA Nos.1414 & 1704 of 2016 9 the auto for recovery of the compensation paid by them to the extent of their liability.
17. M.A.C.M.A.No.1704 of 2016 is partly allowed accordingly.
18. Both the Appeals are partly allowed with the above directions. No order as to costs in both the Appeals.
19. Pending miscellaneous petitions, if any, in both the Appeals shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 16.06.2022 Svv