Telangana High Court
Smt.R.Rangamma vs Aravinda Para Boiled Modern Rice Mill on 1 August, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.Nos.3440 of 2009 and 845 of 2012
COMMON JUDGMENT:
These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.3440 of 2009 filed by the Cholamandalam M.S. General Insurance Company Limited and M.A.C.M.A.No.845 of 2012 filed by the claimants seeking enhancement of the compensation, are directed against the very same order and decree, dated 07.07.2009 passed in O.P.No.191 of 2008 on the file of the Motor Accident Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad (for short "the Tribunal").
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. The claimants filed a petition claiming compensation of Rs.6,00,000/- for the death of one R. Srisailam (hereinafter referred to as "the deceased"), who died in a motor vehicle accident. It is stated that on 14.01.2008 at about 4.00 P.M., while the deceased was proceeding on his motor cycle and when he reached Peddamberpet Village, Hayathnagar Mandal, the offending vehicle, DCM Van bearing No.AP 24 X 605 being driven by its driver 2 GSD, J Macma_3440_2009 and 845_2012 in a rash and negligent manner at high speed dashed the motor cycle of the deceased, due to which the deceased fell down sustained injuries and died on the spot. Since the accident occurred only due to the negligence of the driver of the DCM Van, the claimants filed the aforesaid O.P. against the respondents 1 and 2, who are the owner and insurer of the said DCM Van, respectively.
4. Before the Tribunal, the 1st respondent remained ex parte.
5. The 2nd respondent filed counter denying the averments in the claim-petition including the manner in which the accident took place, age, avocation and income of the deceased. It is specifically contended that the accident occurred only due to the negligence of the deceased as such the 2nd respondent is not liable to pay the compensation.
6. Basing on the above pleadings, the Tribunal framed the following issues:-
1. Whether the deceased died in the accident on 14.01.2008 due to rash and negligent driving of DCM Van bearing No.AP 24 X 605?3
GSD, J Macma_3440_2009 and 845_2012
2. Whether the petitioners are entitled to any compensation? If so, from whom?
3. To what relief?
7. On behalf of the claimants, P.Ws.1 and 2 were examined and Exs.A1 to A9 were marked and Ex.X1 was marked through Court. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked.
8. After considering the oral and documentary evidence available on record, the Tribunal held that the accident was occurred due to the negligent driving of the driver of the DCM Van and accordingly awarded an amount of Rs.3,70,000/- with interest @ 7.5% per annum from the date of petition till the date of realization to be paid by the respondents 1 and 2 jointly and severally, but the 2nd respondent is entitled to recover the amount from the 1st respondent-owner of the offending vehicle. Challenging the same, the present Appeals came to be filed by the Insurance Company and the claimants respectively.
9. Heard and perused the record.
4
GSD, J Macma_3440_2009 and 845_2012
10. Learned Counsel appearing for the claimants would submit that though the deceased was getting Rs.3,300/- per month, the Tribunal has erred in fixing the income of the deceased at Rs.3,000/- per month. It is further 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 Rs.77,000/- under the conventional heads. Therefore, it is argued that the income of the deceased may be taken into consideration reasonably for assessing loss of dependency and prayed to enhance the same.
11. Per contra, learned Standing Counsel for the Insurance Company would submit that the income of the deceased has rightly been taken by the Tribunal as Rs.3,000/- per month since no documents have been produced to prove the income of the deceased, hence the compensation amount granted by the Tribunal is just and reasonable and therefore, needs no interference by this Court. It is also contended that the driver of the DCM Van is not having valid driving licence at the time of the accident and as 1 2017 ACJ 2700 5 GSD, J Macma_3440_2009 and 845_2012 there was breach of terms and conditions of the Policy, the Insurance Company is not liable to pay the compensation.
12. A perusal of the impugned judgment would show that the Tribunal has framed Issue No.1 as to whether the accident had occurred due to rash and negligent driving of the vehicle by its driver, to which the Tribunal after considering the evidence of P.W.2 coupled with the documentary evidence, has categorically observed that the accident has occurred due to the rash and negligent driving of the driver of the DCM Van and has answered 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 DCM Van.
13. Insofar as the quantum of compensation is concerned, though the claimants claimed that the deceased was doing business in iron and scrap and earning Rs.3,300/- per month but no proof of income has been filed. In Latha Wadhwa vs. State of Bihar2 the Apex Court held that even there is no proof of income and earnings, it 2 (2001) 8 SCC 197 6 GSD, J Macma_3440_2009 and 845_2012 can be reasonably estimated minimum at Rs.3,000/- per month for any non-earning member. Therefore, the Tribunal has rightly taken the income of the deceased as Rs.3,000/- per month. As per the decision of the Supreme Court in Pranay Sethi's case (supra) the claimants are entitled to addition of 40% of the amount towards future prospects. Therefore, monthly income of the deceased comes to Rs.4,200/- (Rs.3,000/- + Rs.1,200/-). From this, 1/5th is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation3 as the dependents are seven in number. After deducting 1/5th amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.3,360/- per month. As per Ex.A3-P.M.E.Report, the deceased was aged about 35 years at the time of the accident, the Tribunal ought to have adopted the multiplier as '16' as per the decision reported in Sarla Verma's case (supra) instead of '14.81'. Adopting multiplier '16', the total loss of dependency would be Rs.3,360/- x 12 x 16 = Rs.6,45,120/-. The claimants are also entitled to Rs.77,000/- under 3 2009 ACJ 1298 (SC) 7 GSD, J Macma_3440_2009 and 845_2012 the conventional heads as per Pranay Sethi's case (1 supra). Thus, in all the claimants are entitled to Rs.7,22,120/-.
14. At this stage, the learned Counsel for the Insurance Company submits that the claimants claimed only a sum of Rs.6,00,000/- as compensation and the quantum of compensation which is now awarded would go beyond the claim made which is impermissible under law.
15. In Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Limited and another4, the Apex Court while referring to Nagappa Vs. Gurudayal Singh5 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. 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."4
(2011) 10 SCC 756 5 2003 ACJ 12 (SC) 8 GSD, J Macma_3440_2009 and 845_2012
16. 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.
17. 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 not having valid driving licence as there was no renewal of driving licence and therefore, there is breach of terms and conditions of the Insurance Policy as rightly contended by the learned Standing Counsel for the Insurance company. 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 the case of third party risks, as per the decision in National Insurance Company Ltd. V. Swaran Singh and others6, the insurer had to indemnify the compensation 6 (2004) 3 SCC 297 9 GSD, J Macma_3440_2009 and 845_2012 amount payable to the third party and the insurance company may recover the same from the insured. In the aforesaid 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 Others7, following its earlier decision in Swaran Singh (6 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 Tribunal has rightly directed the Insurance Company to pay the compensation amount at the first instance and then recover the same from the owner of the vehicle.
7 2018 ACJ 2163 10 GSD, J Macma_3440_2009 and 845_2012
18. Accordingly, the M.A.C.M.A.No.3440 of 2009 filed by the Insurance Company is disposed of and M.A.C.M.A.No.845 of 2012 filed by the claimants is allowed. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.3,70,000/- to Rs.7,22,120/-. The enhanced amount will carry interest at 7.5% p.a. from the date of passing of award by the Tribunal till the date of realization. The claimants are directed to pay Deficit Court Fee on the enhanced amount. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. It is made clear that, following the doctrine 'pay and recover', the tribunal has rightly directed the Insurance Company-2nd respondent 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 without initiating any separate proceedings. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
__________________ JUSTICE G. SRI DEVI 01.08.2022 gkv 11 GSD, J Macma_3440_2009 and 845_2012