Telangana High Court
United India Insurance Company Limited vs Smt. Baddam Rama Devi And 4 Others on 18 July, 2023
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HONOURABLE SMT. JUSTICE LALITHA KANNEGANTI
M.A.C.M.A.No.174 of 2008
JUDGMENT:
Aggrieved by the award dated 26.09.2007 in O.P.No.321 of 2004 passed by the Chairman, Motor Accidents Claims Tribunal- cum-Principal District Judge, Ranga Reddy District at L.B.Nagar, Hyderabad, the insurance company has preferred this appeal questioning the quantum of compensation.
2. Having heard Ms. G. Swathi, learned counsel for the Appellant/insurance company and Mr. L. Prabhakar Reddy, learned counsel for the respondents/claimants, perused the entire material on record.
3. The claim petition was filed seeking compensation of an amount of Rs.75,00,000/- on account of the death of the deceased in the motor accident that took place on 29.05.2003.
4. The case of the claimants is that on 29.05.2003, while the deceased was going to Hyderabad on his Maruthi car on his left side of the road very slowly and cautiously, on the way at about 2pm, when he reached the outskirts of Yellampet village, Opposite to Reliance godown on National Highway No.7 at a distance of 4km towards North from Medchal police station, one lorry being driven by its driver in a rash and negligent manner at a high speed came and LK, J MACMA_174 of 2008 2 overtook the Maruthi car and suddenly stopped in the middle of the road without taking any precautions, due to which, the Maruthi car which was being driven by the deceased was rammed into the lorry, as a result of which, the deceased sustained multiple grievous injuries all over the body and he died on the spot. It is the further case of the claimants that the deceased was working as a Development Officer in LIC of India at Armour and was earning an amount of Rs.4.00Lakhs per annum including the salary and commission from LIC and also was earning more than Rs.3.00Lakhs out of commercial crops raised in his agricultural lands. It is the further case of claimants that while the deceased was working as a Development Officer at Armour branch, he expanded the insurance business by appointing and recruiting several agents, as such, he used to get commission even on the business of agents recruited by him and the income of the deceased was constantly growing year by year and thus contributing entire income to the welfare of the claimants. In support of the income, the claimants have got marked Ex.A7/Copy of Income Tax statement for the year 2002-03 and Ex.A8/Copy of Income Tax statement for the year 2003-04.
5. It is the case of the insurance company that because of the contributory negligence on the part of the deceased, the accident has LK, J MACMA_174 of 2008 3 taken place. It is their further case that as it is negligence of the deceased, the insurance company is not liable to pay the compensation. In support of their claim, they have got examined RW1 and RW2 and marked Ex.B1 and B2.
6. With regard to the contributory negligence, the court below has considered the evidence of PW2 who is an eye witness to the accident and inquest report, FIR, charge sheet. The court below has observed that RW1/Surveyor and investigator of the insurance company is not eye witness to the accident and PW2 is eye witness to the accident. During the course of cross examination, RW1 has admitted that he has made enquiries with the local people, but, he has not mentioned their names and other details in the report and also not recorded their statements. He has also admitted that he did not mention the date and time of his visit to the scene of offence and date of conclusion of his investigation. He further admitted that he did not examine the owner of the lorry involved in the accident and its driver or cleaner. He further admitted that he did not examine the Officer of RTA or local Motor Vehicle Inspector to know the earmarked parking places in the locality and that in Ex.B1, he mentioned that the Maruthi car was being driven along with road side i.e. 5 feet to the edge of the road. It is suggested to him that when a lorry with flat LK, J MACMA_174 of 2008 4 tyres without any load is brought to halt by applying sudden brakes, the tyres will not leave any marks on the road and that to satisfy the company and to get more work from the company, he gave Ex.B1 with incorrect particulars.
7. Basing on the evidence of RW1 and Ex.B1, the court below has held that the accident occurred due to rash and negligent driving of the deceased. Coming to the income and the compensation, from Ex.A16/Salary particulars of the deceased, the court below has held that the net salary drawn by the deceased for the month of May, 2003 was Rs.8,477/- which can be rounded of to Rs.9,000/- having regard to the commission amount which the deceased used to receive from the LIC. Then the court below has deducted 1/3rd of the income towards personal expenses of the deceased which he would have incurred towards maintaining himself, had he been alive and thus calculated that the deceased might have contributing a sum of Rs.6,000/- per month and Rs.72,000/- per annum. The court below has further held that the age of retirement in LIC is 60 years and the deceased would have retired in the year 2015 and had he continued in service, he would have drawn salary more than 20% to 30% every year till then. It is further held that the deceased was aged 48 years as on the date of accident, the loss of dependency has to be doubled LK, J MACMA_174 of 2008 5 basing on the judgment of the Division Bench of this court in Karri Nagapadma Sridevi and another vs. Oriental Fire and General Insurance Company Limited and others reported in 2003 ACJ 671. The court below thus taking into consideration the income of the deceased at Rs.1,44,000/- per annum and applying the multiplier '13' has granted the compensation of Rs.19,05,000/-.
8. Learned counsel for the insurance company submitted that the court below without any basis has doubled the income and considered the same at Rs. Rs.1,44,000/- per annum. It is submitted that as the age of the deceased was 48 years, at best, the court below could have taken the future prospects into consideration. It is further submitted that even the contributory negligence was also not considered. It is submitted that by adducing cogent evidence, they have placed before the court that the accident has happened due to the contributory negligence on the part of the deceased. It is submitted that the compensation that is awarded by the Court below is without any basis.
9. Learned counsel for the claimants submitted that the court below has granted the very meager amount and they have already filed an appeal questioning the award which is numbered as MACMA (SR) No.14743 of 2008. It is submitted that the said appeal was LK, J MACMA_174 of 2008 6 returned by the registry and so far they have not resubmitted it. It is further submitted that the claimants are going to withdraw the said appeal. It is submitted that in support of the said contentions, the claimants have already filed a memo, dated 13.07.2023. It is submitted that even though there is no appeal preferred the claimants when the insurance company is questioning the quantum that is granted to the claimants this Court can as well consider the case of claimants for enhancement of the compensation. It is submitted that the court below failed to take into consideration the agriculture income which the deceased was earning and towards consortium and under the other heads, the amounts that were granted by the court below were not just and reasonable.
10. First coming to the contention of the learned counsel for the insurance company, when it is their case that there was contributory negligence, the burden lies on them to prove the same. The claimants by adducing the evidence i.e., by examining PW.2 and by marking the documents i.e., FIR, Charge sheet, Scene of offence observation report have discharged their burden that the accident has happened because of the rash and negligent driving of the driver of the offending lorry.
LK, J MACMA_174 of 2008 7
11. The insurance company has mainly relied on the evidence of investigator/RW.1 as extracted in the above paragraphs. As observed in the above paragraphs, the court below has considered the said evidence and has observed that the investigator without examining the motor vehicle inspector, without going to the scene of offence, without even disclosing whom he has examined and when he has went to the scene of offence has given a report and thus disbelieved his evidence. This court is also of the considered opinion that the court below has rightly considered the evidence both on behalf of the claimants as well as insurance company and disbelieved the evidence of RW.1 as the same is not inspiring confidence in the mind of the court about the manner in which the investigator has conducted the investigation. As the insurance company has failed to prove that there was contributory negligence on the part of the deceased, the court below has rightly held that the accident has happened due to the rash and negligent driving of the driver of the offending vehicle.
12. Then coming to the income of the deceased, as per the income tax returns for the year 2002-03/Ex.A7 and 2003-04/Ex.A8, the deceased was getting an amount of Rs.1,38,417/- towards salary and Rs.92,338/- towards his commission. It is the case of claimants that the deceased has recruited several people and as long as they are LK, J MACMA_174 of 2008 8 working, he will get commission in their work. Learned counsel for the insurance company submitted that the court below having taken the annual income at Rs.72,000/- has doubled the same and considered at Rs.1,44,000/- which is contrary to law.
13. As per the evidence available on record, as on the date of accident, the annual salary of the deceased was Rs.1,38,417/-. Further, the commission that he used to receive was Rs.92,338/- and as it is a variable component, the entire commission cannot be brushed aside. This court is inclined to take 60% of the commission i.e. Rs.55,403/-. If the same is added to the annual salary, the annual income of the deceased would come to Rs.1,93,820/-.
14. As per Ex.A8, the deceased was an income tax assessee for the financial year 2003-04. As per the slap of income, the tax applicable on the income of the deceased is Rs.27,000/-. If the same is deducted from the annual income of the deceased, the actual income of the deceased would be Rs.1,66,820/- per annum.
15. The Hon'ble Apex Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi1 has held that while considering the compensation in cases of death, the future prospects of the self 1 2017 (6) 170 (SC) LK, J MACMA_174 of 2008 9 employed shall also be considered. Having regard to the age of deceased i.e. 48 years as on the date of accident and occupation as self-employed, if 25% of the income is included as future prospects, the annual income would come to Rs.2,08,525/- (Rs.1,66,820+41,705). As the dependants are four members, 1/4th of the income has to be deducted towards personal expenditure, as per law laid down in Smt. Sarla Varma Vs. Delhi Transport Corporation2. Thus, the annual contribution of the deceased to the claimants would be of Rs.1,56,394/- (Rs.2,08,525-52,131). As per Schedule II of the Act, if the said annual contribution arrived is multiplied with relevant multiplier to the age of the deceased i.e. '13', the total amount comes to Rs.20,33,122/-. The claimants are entitled for the said amount under the head of loss of dependency.
16. As regards the consortium to be paid to the wife and three children of the deceased is concerned, each one is entitled to Rs.44,000/- towards consortium as decided by the Hon'ble Apex court in Pranay Sethi's case (supra 1). With regard to the funeral expenses and loss of estate, the claimants are entitled for Rs.33,000/-. Apart from that, the claimants are entitled for Rs.10,000/- towards legal expenses.
2
(2009) 6 S.C.C. 121 LK, J MACMA_174 of 2008 10
17. In the light of the above mentioned discussion, the claimants are entitled to the following amounts:
Head Compensation awarded
(1) Loss of dependency Rs.20,33,122
(2) Funeral expenses and Rs.33,000
Loss of Estate
(3) Loss of spousal consortium Rs.44,000 for 1st claimant
(4) Loss of parental consortium Rs.1,32,000 for 2nd, 3rd and
4th claimants
(5) Legal expenses Rs.10,000
Total compensation awarded Rs.22,52,122
18. In the result, the Motor Accident Miscellaneous Appeal of the insurance company is dismissed by enhancing the compensation amount awarded by the court below from Rs.19,05,000/- to Rs.22,52,122/- as hereunder:
(a) The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization.
(b) The insurance company shall deposit the amount within a period of (8) weeks from the date of receipt of copy of judgment. On such deposit, claimants are entitled to withdraw the entire amount without furnishing the security.
LK, J MACMA_174 of 2008 11
(c) Amounts shall be apportioned in terms of the ratio decided by the court below in the Award.
Pending miscellaneous petitions, if any, shall stand closed.
___________________________ LALITHA KANNEGANTI, J Date: 18.07.2023 gvl