Telangana High Court
Pastham Yellamma 3 Ors vs Thota Laxminarayana Rao 2 Ors on 21 April, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.453 of 2014
JUDGMENT:
This appeal is filed by the appellants-claimants aggrieved by award and decree, dated 18.02.2011 passed in M.V.O.P.No.610 of 2008 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge (FTC), Warangal (for short "the Tribunal").
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, who are the wife and children of one P.Nagaraju (hereinafter referred to as "the deceased") filed a petition, claiming compensation of Rs.4,00,000/- for the death of the deceased, who died in a motor vehicle accident that took place on 31.01.2008. It is stated that the deceased was a labourer and the claimants 1 to 3 were assisting him by collecting plastic and waste papers on the road. In view of the labour works and avocation, the claimants and the deceased used to shift their residence from one place to another place 2 GSD, J Macma_453_2014 and about six months prior to the accident, the deceased were staying at fly-over bridge, Mahabubabad and on 31.01.2008 when the deceased was sleeping aside of the bridge, all of a sudden a DCM Van bearing No.AP 38 T 6626 driven by its driver in a rash and negligent manner at high speed and without observing the deceased, who was sleeping under the fly-over bridge, ran over the body and head of the deceased, due to which the head was broken and the deceased died on the spot. On a complaint, a case in Crime No.10 of 2008 has been registered against the driver of the DCM Van. Since the accident due to the rash and negligent driving of the driver of the DCM van, the claimants filed the aforesaid O.P. against the respondents 1 to 3, who are the owner, insurer and local office of the insurer, respectively.
5. Before the Tribunal, respondents 1 and 2 remained ex parte. The 3rd respondent filed counter denying the averments in the petition including the manner in which the accident took place, age, income and avocation of the deceased. It is stated in the counter that the driver of the DCM 3 GSD, J Macma_453_2014 Van was not having valid and subsisting driving licence as on the date of the accident as such, the 1st respondent alone is liable to pay the compensation. It is also stated that the compensation claimed is excessive, exorbitant and prayed to dismiss the same.
6. Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether there is a rash and negligent act upon the driver of DCM Van bearing No.AP 28 T 6626?
2) Whether the petitioners are entitled for compensation as claimed for?
3) To what relief?
7. During trial, on behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of the respondents, R.Ws.1 and 2 were examined and Ex.B1 and Ex.X1 were marked.
8. After considering the oral and documentary evidence on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of driver of the DCM Van and awarded total compensation of Rs.3,25,000/- with 4 GSD, J Macma_453_2014 interest @ 7.5% per annum payable the 1st respondent only while dismissing the claim against the Insurance Company as there is breach of policy conditions. Dissatisfied with the quantum of compensation and also exonerating the Insurance Company from its liability, the claimants filed the present appeal, seeking enhancement of the same.
9. Heard both sides and perused the record.
10. Learned Counsel for the claimants would submit that the Tribunal erred in exonerating the Insurance Company from its liability. It is also submitted that as per the principles laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, the claimants are also entitled to the future prospects and also Rs.77,000/- under conventional heads.
11. Learned Standing Counsel for the Insurance Company would submit that as the driver of the crime vehicle was not competent to drive the crime vehicle, the Tribunal has rightly 1 2017 ACJ 2700 5 GSD, J Macma_453_2014 dismissed the claim against the insurance company. It is also submitted that in the grounds of appeal, the claimants did not raise any ground for enhancement of compensation, as such, the claimants have not entitled for any enhancement.
12. The finding of the Tribunal with regard to the manner in which the accident took place has become final as the same is not challenged by the respondents.
13. Insofar as the quantum of compensation is concerned, it is not in dispute that the deceased was doing labour work, as such the Tribunal has rightly fixed the income of the deceased at Rs.100/- per day. Apart from the same, the claimants are entitled to addition of 25% towards future prospects, as per the decision of the Hon'ble Supreme Court in Pranay Sethi (1 supra). Therefore, monthly income of the deceased comes to Rs.3,750/- (Rs.3,000/- + Rs.750/-). From this, 1/4th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation2 as the dependents are four in number. After deducting 1/4th amount 2 2009 ACJ 1298 (SC) 6 GSD, J Macma_453_2014 towards his personal and living expenses, the contribution of the deceased to the family would be Rs.2,812/- per month. As per Ex.A4-P.M.E. Report, the deceased was aged about 48 years at the time of the accident, the appropriate multiplier is '13' as per the decision reported in Sarla Verma v. Delhi Transport Corporation(2 supra). Adopting multiplier '13, the total loss of dependency would be Rs.2,812/- x 12 x 13 = Rs.4,38,672.00. The claimants are also entitled to Rs.77,000/- under the conventional heads as per Pranay Sethi's case (1 supra). Thus, in all the claimants are entitled to Rs.5,15,672/-.
14. Coming to the aspect of liability of payment of compensation, admittedly, as seen from Ex.X1-driving licence the driver of the DCM Van was authorized to driver tractor- trailer non-transport. Admittedly, the crime vehicle is a DCM Van and R.W.1, who is the Junior Assistant working in R.T.A. Office, Warangal, deposed that the person holding a licence to drive a tractor even non-transport is not competent to drive a DCM transport van, therefore, there is a breach of terms and conditions of the Insurance Policy as rightly held by the 7 GSD, J Macma_453_2014 Tribunal. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.1 policy was very much in force. In case of third party risks, as per the decision in National Insurance Company Ltd. V. Swaran Singh and others3, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, 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. Recently, the Apex Court in the case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others4, following its earlier decision in Swaran Singh (1 supra), reiterated that "even if the driver does not possess any 3 (2004) 3 SCC 297 4 2018 ACJ 2163 8 GSD, J Macma_453_2014 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 Insurance Company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.
15. At this stage, the learned Counsel for the Insurance company submits that the claimants claimed only a sum of Rs.4,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
16. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another5, the Apex Court while referring to Nagappa Vs. Gurudayal Singh6 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. 5 (2011) 10 SCC 756 6 2003 ACJ 12 (SC) 9 GSD, J Macma_453_2014 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."
17. 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 to extend the benefit to the claimants to a just and reasonable extent.
18. Accordingly, the M.A.C.M.A. is allowed by enhancing the compensation amount awarded by the Tribunal from Rs.3,26,00.00 to Rs.5,15,672.00. The enhanced amount shall carry interest @ 7.5% per annum from the date of the award passed by the Tribunal till the date of realisation. However, following the doctrine 'pay and recover', the Insurance Company is directed to pay the compensation amount to the claimants, at the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the 1st respondent 10 GSD, J Macma_453_2014 without initiating any separate proceedings. 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.
19. Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_________________ JUSTICE G. SRI DEVI 21.04.2022 gkv