Telangana High Court
Era Gangavva, Nizamabad Dist vs Ch Raju, Nizamabad Dist Anr on 24 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No. 136 of 2015
JUDGMENT:
Aggrieved by the award and decree, dated 17.02.2014 passed in O.P.No.847 of 2008 on the file of the Motor Accidents Claims Tribunal- cum-VIII Additional District Judge at Nizamabad (for short, 'the Tribunal'), the claimant preferred this appeal seeking enhancement of compensation and also the findings of the Tribunal in exonerating the insurance company from liability to pay the compensation.
2. For the sake of convenience, the parties hereinafter referred to as arrayed before the Tribunal.
3. The claimant filed a petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.6,50,000/- for the death of deceased-Era Sayareddy in the motor vehicle accident that occurred on 07.12.2006. According to the claimant, on the fateful day, while the deceased was crossing N.H. 7 road in front of Venkateshwara Dhaba Hotel, Perkit, the crime vehicle i.e., Auto rickshaw bearing No. AP 25V 1581, owned by respondent No. 1 and insured with respondent No. 2, being driven by its driver in rash and negligent manner and at high speed, dashed the deceased. As a result, the deceased sustained grievous injuries and died while undergoing treatment. According to the claimant, the deceased was 53 years, earning Rs.15,000/- per month as head cook and by doing agriculture. Therefore, she laid a 2 claim against the respondents for Rs.6,50,000/- towards compensation under different heads.
4. While the respondent No. 1 remained ex parte, the respondent No. 2 filed its written statement denying the allegations in the claim petition. The Tribunal considering the oral and documentary evidence brought on record, allowed the O.P. in part awarding a sum of Rs.4,65,000/- towards compensation with interest at 6% per annum, to be paid by the respondent No. 1 alone while exonerating the insurance company from the liability of payment of compensation on the ground that at the time of the accident, the driver of the offending vehicle, was not holding driving license. Dissatisfied with the quantum of compensation and also exonerating the respondent No. 2 from its liability, the claimant No. 1 filed the present appeal.
5. Heard and perused the record.
6. A perusal of the impugned judgment would show that the Tribunal, on issue No.1, as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, considering the evidence of P.W. 2, eyewitness to the accident, coupled with the documentary evidence, has categorically observed that the accident was occurred due to the rash and negligent driving of the driver of the offending Tractor and has answered the issue in favour of the claimant and against the respondents. Therefore, I see no reason to interfere with the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of offending vehicle. 3
7. Insofar as the quantum of compensation amount is concerned, as there was no evidence to prove the income of the deceased, the Tribunal, considering the fact that the occupation of deceased was mentioned as hotel worker & agriculturist in the crime record and considering the age of the deceased as 53 years has rightly fixed the monthly income of the deceased at Rs.5,000/-. However, as per the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others1, 10% towards future prospects, needs to be added to the established income of the deceased. By adding future prospects at 10%, the future monthly income of the deceased comes to Rs.5,500/-. After deducting 1/3rd therefrom towards personal expenses of the deceased, the net monthly income of the deceased would be Rs.3,667/- and the annual income would be Rs.44,004/-. As the deceased was 53 years at the time of the accident, the appropriate multiplier is '11'. By applying the multiplier '11' to the annual income of the deceased, the total loss of dependency comes to Rs.4,84,044/-. Thus, under the loss of dependency, the appellant- claimant is granted compensation amount of Rs.4,84,044/- as against Rs.4,40,000/-. That apart, as per the decision of the Apex Court in Pranay Sethi (supra), under the conventional heads, the appellant is granted Rs.77,000/- instead of Rs.20,000/- awarded by the Tribunal. The amount of Rs.5,000/- awarded towards transport charges is not 1 2017 ACJ 2700 4 interfered with. Thus, in all, the appellant is entitled for the total compensation of Rs.5,66,044/-.
8. Coming to the aspect of liability of payment of compensation, as per the evidence brought on record, the driver of the offending vehicle was not holding driving license at the time of accident. Handing over the offending vehicle by its owner, respondent No. 1 herein, to a person incompetent to drive the vehicle amounted to breach of terms and conditions of the policy. Therefore, there is a breach of terms and conditions of the Insurance Policy as rightly held by the Tribunal. But the fact remains that by the time of accident, the offending vehicle was insured with the 2nd respondent and Ex.B.2 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 others2, the insurer has 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 Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others3, 2 (2004) 3 SCC 297 3 2018 ACJ 2163 5 following its earlier decision in Swaran Singh (2 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 Insurance Company is directed to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.
9. Accordingly, the M.A.C.M.A. is partly allowed. The quantum of compensation amount awarded by the Tribunal in favour of the appellant is enhanced from Rs.4,65,000/- to Rs.5,66,044/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of order passed by the Tribunal till the date of realization. It is directed that following the doctrine 'pay and recover', the 2nd respondent- Insurance Company shall to pay the said compensation amount together with accrued interest thereon to the appellant at the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the 1st respondent without initiating any separate proceedings. The amount shall be deposited within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
______________________ JUSTICE G. SRI DEVI 24.06.2022 tsr 6 THE HON'BLE JUSTICE G. SRI DEVI M.A.C.M.A. No. 136 of 2015 DATE: 24-06-2022