Telangana High Court
Reliance Genl Insurance Co Ltd., ... vs E Kousalya, Mahabubnagar Dist 2 Others on 16 June, 2022
Author: G. Sri Devi
Bench: G. Sri Devi
HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.Nos.1864 and 3984 of 2014
COMMON JUDGMENT:
These two appeals are being disposed of by this common judgment since M.A.C.M.A.No.1864 of 2014 filed by the Insurance Company and M.A.C.M.A.No.3984 of 2014 filed by the claimants seeking enhancement of the compensation, are directed against the very same order and decree, dated 21.11.2013 passed in O.P.No.223 of 2011 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge (FTC) at Mahabubnagar (for short "the Tribunal").
2. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the claimants filed a claim petition under Section 163-A of the Motor Vehicles Act, 1988 against the respondents 1 and 2, claiming compensation of Rs.5,00,000/- for the death of one E.Babu (hereinafter referred to as "the deceased"), who died in an accident. It is stated that on 20.02.2011 the deceased, along with his wife and niece were proceeding on Hero Honda Splendor Motor Cycle bearing No.AP 2 GSD, J Macma_1864 and 3984_2014 22 Q 8703 and when they reached in the limits of Ramojipally Village, at Tata Magic Auto bearing No.AP 22 TV 1212 came in opposite direction, driven by its driver in a rash and negligent manner at high speed and dashed the motor cycle, due to which the deceased fell down and he died while shifting him to the hospital. Considering the claim and the counter filed by the Insurance Company, and on evaluation of the evidence, both oral and documentary, the learned Tribunal has partly allowed the O.P. and awarded compensation of Rs.1,93,000/- with 7.5% interest per annum. Challenging the same, the present Appeals came to be filed by the Insurance Company and the claimants respectively.
4. Learned Counsel for the claimants mainly submits that though the deceased was getting Rs.5,000/- per month, the Tribunal erred in fixing the income of the deceased at Rs.20,000/- per annum. 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 1 2017 ACJ 2700 3 GSD, J Macma_1864 and 3984_2014 are also entitled to the future prospects. 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.
5. Per contra, the learned Counsel for the Insurance Company submits that the income of the deceased has been rightly taken by the Tribunal as Rs.3,000/- per month since no documents have been produced to prove the income of the deceased. On the point of future prospects, learned Counsel submits that since the claim-petition filed under Section 163-A of the Motor Vehicles Act, the claimants are not entitled to any future prospects. It is further submitted that the compensation towards non-pecuniary damages has been rightly granted by the Tribunal and the same need not be enhanced.
6. 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.
7. Insofar as the quantum of compensation is concerned, admittedly, the claim-petition is filed under Section 163-A of 4 GSD, J Macma_1864 and 3984_2014 the M.V.Act. As per the principles enunciated by the Apex Court in catena of decisions, if the petition is filed under Section 163-A the Motor Vehicles Act, the Tribunal has no option except to determine the compensation taking the aid of second schedule to Section 163-A of the Motor Vehicles Act. Even if the Tribunal comes to a conclusion that the deceased may earn more than Rs.40,000/- per annum, the Tribunal has to restrict the annual gross income of the deceased to Rs.40,000/- only. With regard to future prospects, since the claim-petition filed under Section 163-A of the M.V.Act, the ratio laid down in National Insurance Company Limited Vs. Pranay Sethi and others (supra) is not applicable. Therefore, this Court is inclined to take the income of the deceased as Rs.40,000/- per annum. From this, 1/3rd is to be deducted towards personal expenses of the deceased following Sarla Verma v. Delhi Transport Corporation2. After deducting 1/3rd amount towards his personal and living expenses, the contribution of the deceased to the family would be Rs.26,666/- per annum. As per Ex.A2-inquest report, the deceased was aged about 48 years 2 2009 ACJ 1298 (SC) 5 GSD, J Macma_1864 and 3984_2014 at the time of the accident and the appropriate multiplier as per the second schedule of Section 163-A of the Motor Vehicles Act is '13'. Adopting multiplier '13', the total loss of dependency comes to Rs.26,666/- x 13 = Rs.3,46,658/-. Further, an amount of Rs.20,000/- awarded by the Tribunal under the conventional heads appears to be correct. Thus, in all the claimants are entitled to Rs.3,66,658.00.
8. Insofar as the liability is concerned, the contention of the learned Standing Counsel for the insurance company is that the Insurance Company is not liable to pay any compensation inasmuch as the driver of the offending vehicle was possessing only light motor vehicle license i.e., LMV (NT), but he was driving Auto (transport vehicle) at the relevant time of accident. Thus, as there was breach of terms and conditions of the insurance policy, the learned Tribunal ought not to have fastened liability on the Insurance Company. It is further contended that in the circumstances of the case, the learned Tribunal ought to have directed the Insurance Company to pay the compensation in the first instance and granted liberty to 6 GSD, J Macma_1864 and 3984_2014 recover the same from the owner of the offending vehicle, for the breach of terms and conditions of the policy.
9. A perusal of the material on record would show that as per Ex.B4-driving licence extract, the driver of the auto was authorised to drive LMV Non-transport, but as per the registration certificate (Ex.B2), the crime vehicle is a passenger carrying commercial vehicle. Therefore, the finding of the learned Tribunal in fixing the liability jointly and severally upon the insurance company is liable to be set aside. 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 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 3 (2004) 3 SCC 297 7 GSD, J Macma_1864 and 3984_2014 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 a case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others4, following its earlier decision in Swaran Singh (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.
10. Accordingly, both the appeals are hereby allowed in part. The compensation amount awarded by the Tribunal is hereby enhanced from Rs.1,93,000/- to Rs.3,66,658/-. The enhanced amount will carry interest at 7.5% p.a. from the date of the order passed by the Tribunal till the date of realization. The enhanced amount shall be apportioned in the manner as ordered by the Tribunal. The finding of the learned Tribunal to the extent of fixing the liability jointly and severally upon the 4 2018 ACJ 2163 8 GSD, J Macma_1864 and 3984_2014 insurance company is hereby set aside. However, following the doctrine 'pay and recover', the Insurance Company is directed to pay the enhanced compensation amount to the claimants in the first instance and thereafter recover the same from the owner of the offending vehicle 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 16.06.2022 gkv