Andhra HC (Pre-Telangana)
M/S. Bajaj Allianz General Insurance ... vs Smt. Manju Devi, W/O.Late Yogendar ... on 2 April, 2014
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
HONBLE SRI JUSTICE ASHUTOSH MOHUNTA AND HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. No.2332 OF 2011 and batch
02-04-2014
M/s. Bajaj Allianz General Insurance Company Limited,Rep. by its Deputy Manager
(Legal), 3-6-111/8, II Floor, Far East Plaza, Street No.18, Himayath Nagar,
Hyderabad. -....Appellant.
Smt. Manju Devi, W/o.Late Yogendar Kumar Rai, Age 42 Years, Household, H. No.3-
5-1415/A, Barkathpura, Hyderabad and four others. - -Respondents.
Counsel for Appellant/s:Mr. T. Mahender Rao.
Mr. Kota Subba Rao.
.
Counsel for Respondent/s : Mr. R.G. Siva Kumar.
Mr. P. Ramakrishna Reddy.
Mr. T. Mahender Rao.
<Gist :
>HEAD NOTE:
?Cases referred :
1. (2009) 6 SCC 121
2. 2004 ACJ 1
3. 2006 (6) ALT 147
4. AIR 2012 SC 3104
5. MANU/HP/1314/2010
6. 2013 ACJ 145
7. 2004 13 SCC 224
8. 2010 (4) ALD 531 (DB)
9. 2013 ACJ 1403
HONBLE SRI JUSTICE ASHUTOSH MOHUNTA
AND
HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY
M.A.C.M.A. Nos.2332 OF 2011 & 1898 OF 2012
This Court made the following :
COMMON JUDGMENT:(Per Honble Sri Justice M. Satyanarayana Murthy) These two appeals are filed by the second respondent-Insurance Company and the petitioners-claimants, separately, aggrieved by the impugned award dated 04.02.2011, passed in O.P. No.1327 of 2009, on the file of XXII Additional Chief Judge-cum-Motor Accidents Claims Tribunal, City Criminal Court, Hyderabad (For short, the Tribunal), whereunder the Original Petition filed by the petitioners-claimants was allowed, in part, awarding compensation of Rs.23,79,188/- against the original claim of Rs.30,00,000/-.
2. The appellant in M.A.C.M.A. No.2332 of 2011 was the second respondent-Insurance Company and appellants in M.A.C.M.A. No.1898 of 2012 were the petitioners-claimants before the Tribunal in O.P. No.1327 of 2009. For the sake of convenience, the parties hereinafter will be referred as arrayed before the Tribunal.
3. The petitioners-claimants filed Claim Petition before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (For short, Act of 1988) claiming compensation of Rs.30,00,000/- for untimely death of Yogender Kumar Rai (hereinafter referred to as Yogender), who is the husband of first petitioner, father of petitioners 2 to 4 respectively, in a road accident that occurred on 15.02.2009, at about 06:25 a.m. near Street No.8, Habsiguda Cross-roads, Hyderabad, while Yogender was returning to his home after attending Bandobast duty, due to visit of Home Minister, and regulating traffic standing by the side of road, one Skoda new car bearing temporary Registration No.AP 09 BN T/R 5591 (Hereinafter referred to as Car) driven by its driver in rash and negligent manner from Uppal side, proceeding towards Secunderabad side dashed one motorcycle bearing No.AP 24Q 6138, one Auto bearing No.AP 13X 3816 and, later hit Yogender; wherein, Yogender received fatal injuries all over his body and succumbed to the injuries on the spot. Thus, the accident occurred due to rash and negligent act of the driver of Car. Immediately, the accident was reported to Osmania University Police Station and the same was registered as a case in Crime No.55 of 2008, for the offences punishable under Sections 304-A, 337, 338 and 427 of I.P.C. against the driver of Car. On account of untimely death of Yogender, first petitioner, being wife, petitioners 2 to 4 being children, lost their future dependency and earnings. The deceased Yongendar was aged 46 years, at the time of accident, working as Traffic Police constable with P.C. No.7490 of Kachiguda Division, East Zone, Hyderabad, earning an amount of Rs.18,000/- p.m. contributing the same for his family maintenance.
4. The first respondent being owner and insured and the second respondent being insurer of Car, and the liability under the policy was subsisting as on the date of accident, both the respondents are jointly and severally liable to pay compensation, and prayed to award compensation of Rs.30,00,000/-
5. First respondent, being owner of the Car, remained ex-parte.
6. The second respondent filed counter denying material allegations of the petition inter-alia contending that the accident not occurred due to rash and negligent act of the driver of Car and that the driver was not holding valid and effective driving license, at the time of accident and thus, the driver of the Car violated terms and conditions of the Policy, thereby second respondent is not liable to pay compensation.
7. The second respondent, being insurer of Car, admitted about insurance of Car subject to certain limitations, exceptions, terms and conditions contained therein and subject to Section 64-VB of Insurance Act, 1938 (For short, the Act of 1938), second respondent-Insurance Company issued policy No.OG-09-1801-1801-00054992 covering the risk for the period from 15.01.2009 to 14.01.2010. The second respondent- Insurance Company did not admit liability to pay compensation and that the Car was not registered permanently and it was plying on the roads without proper registration.
8. Petitioners-claimants are not entitled to interest at the rate of 24% p.a. The second respondent denied registration of Crime for the offences punishable under Sections 304-A, 337, 338 and 427 of I.P.C. against the driver of Car and called upon the petitioners-claimants, put to strict proof the age, income and future prospects of the deceased Yogender, and finally, prayed to dismiss the petition exonerating the second respondent- insurance Company from payment of compensation.
9. Basing on the above pleadings, the Tribunal framed the following issues:
1. Whether the accident took place on 15.02.2009 at about 06.25 a.m. due to rash and negligent driving of Skoda New Car bearing No.AP 09 BN T/R 5591 by its driver?
2. Whether the petitioners are entitled for compensation. If so, to what amount and from whom?
3. To what relief?
10. During course of enquiry, on behalf of the petitioners-claimants, PWs.1 to 3 were examined and Exs.A-1 to A-11 and Exs.X-1 and X-2 were marked. On behalf of the second respondent-Insurance Company, RWs.1 and 2 were examined and Exs.B-1 to B-4 were marked.
11. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the Tribunal awarded compensation of Rs.23,79,188/- against both the respondents, with proportionate costs and interest at the rate of 7% p.a. from the date of petition till the date of realization.
12. Aggrieved by the impugned award, both the petitioners-claimants and second respondent-Insurance company filed the instant Appeals raising several contentions. The second respondent-Insurance Company filed the Appeal in M.A.C.M.A. No.2332 of 2011, mainly raising a specific contention that at the time of accident the driver was in drunken condition and charge sheet was also filed against the driver of the Car for the offence punishable under Section 185 of Motor vehicles Act, and thus, the first respondent-owner of the Car violated terms and conditions of Ex.B-1, insurance policy; thereby second respondent-Insurance company is not liable to pay any compensation.
13. Second respondent-Insurance Company examined RWs.1 and 2, discharged their burden by marking Exs.B-1 to B-4 and Exs.X-1 and X-2 to establish that at the time of accident, driver of the Car was in drunken state, but the Tribunal did not appreciate the said aspect in proper perspective and did not assess the compensation in terms of the guidelines laid down by the Apex Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another and adding future prospects at 30% after deducting 1/4th towards personal and living expenses is not in accordance with law laid down by the Apex Court in Sarla Verma (1st supra) and as such, the compensation awarded is excessive and finally prayed to allow the Appeal setting-aside the impugned Award passed by the Tribunal, dismissing the Claim Petition against the second respondent, exonerating the Insurance Company from payment of compensation.
14. During course of argument, learned standing counsel appearing for the second respondent-Insurance Company mainly contended that the driver was in drunken state, at the time of accident, hence the second respondent-Insurance company is not liable to pay compensation. Handing over the Car by first respondent to the driver, who was in drunken state, amounts to violation of terms and conditions of insurance policy; thereby, second respondent-Insurance Company cannot be made liable to pay compensation and prayed to exonerate the Insurance Company from payment of compensation.
15. Per contra, learned counsel for the petitioners-claimants contended that the compensation awarded by the Tribunal is not in consonance with the guidelines laid down by the Apex Court in various decisions, more particularly, in Sarla Verma (1st supra) and prayed to award just and reasonable compensation.
16. Considering rival contentions, perusing the material available on record, the points that arise for consideration in these Appeals are as follows:
1. Whether handing over of Car by Mrs. A. Padmavathi, owner, to the driver, who was in drunken state, amounts to violation of terms and conditions of the policy? If so, whether the Insurance Company is liable to be exempted from payment of compensation?
2. Whether the compensation awarded by the Tribunal is just and reasonable?
17. POINT No.1: The first and foremost contention of learned standing counsel for the second respondent-Insurance Company is exemption from payment of compensation on the ground that the driver of Car was in drunken state, at the time of accident, and the same amounts to violation of terms and conditions of insurance policy. According to the settled principles of law laid down by the apex Court in National Insurance Company Limited Vs. Swaran Singh and others , the burden is always on the Insurance Company to prove the violation of terms and conditions of policy by adducing cogent and satisfactory evidence. Therefore, it is obligatory on the part of the second respondent-Insurance company to prove the specific contention of violation of terms and conditions of policy by adducing satisfactory and cogent evidence.
18. To substantiate the contention that the driver of Car was in drunken state, at the time of accident, second respondent-Insurance Company got examined RWs.1 and 2. RW.1 is the Senior Legal Executive of the Insurance Company. In his examination-in-chief, he admitted about the insurance of Skoda new Car bearing No.AP09 BN T/R 5591 with the second respondent-Insurance Company and issuance of Ex.B-1 policy but in Para 5 of his examination-in-chief, he specifically testified that the driver was in intoxicated condition, at the time of accident, and the Police registered a case against driver for the offences punishable under Sections 304-A, 338 and 427 of I.P.C. and under Section 185 of Motor vehicles Act. Therefore, the first respondent alone is liable to pay compensation, as she violated terms and conditions of the policy. In the cross-examination of RW.1, he admitted that he has no personal knowledge about the accident and that the deceased Yogender was only a third party to the policy and discharging his duties as Traffic Constable at the time of accident. A suggestion was put to RW.1, that the driver was not in drunken condition and got denial of it.
19. RW.2 is the Assistant Director of Toxicology Division, F.S.L. Hyderabad, who is an important witness to prove the drunken condition of the driver of Car, at the time of accident. According to the evidence of RW.2, he received a paper parcel sealed with two seals which were intact and tallying with the sample seals containing one sealed bottle in Crime No.55 of 2009 of Osmania University Police Station, from the Assistant Commissioner of Police, Kachiguda Division, with a requisition to examine for ethyl alcohol; on examination i.e., of chemical test and also quantitatively found 57.5 Mgs. percentage of Ethyl alcohol in the sample issued under Ex.X-1 report, dated 24.03.2009, which was decided under his personal observation with the assistance of technical staff, but admitted that Ex.X-1 did not contain the data of analyzing the sample. A suggestion was put to RW.2 that there is every possibility of variation of test due to delay in analysis and got denial of it. RW.2 further admitted that Acetone, Paraldehyde will be present in the blood, in case the driver was in intoxication state and spirit will be used to clean the skin while drawing blood sample. Finally, a suggestion was put to him that even though alcohol of 60 Mgs. is found in the blood of the driver, he is capable of driving the Car and got denial of it.
20. RW.2 is an important witness, who tested the blood samples of the driver of the vehicle and according to him, 57.5 Mgs. percentage of alcohol is found in the blood samples of the driver and issued Ex.X-1 report with clear details. Merely, because no data was available, including date of analysis, the testimony of RW.2 cannot be doubted and he is only an official witness and not interested in the case of either prosecution or defence or in the claim. Therefore, the evidence of an expert, RW.2, cannot be discredited on the ground that Ex.X-1 does not contain the date. Hence, we find that RW.2 is a totally reliable witness and that too analysis was done basing on the scientific chemical examination which would carryout all contents of blood including alcohol in the blood samples. Added to that, the charge sheet filed by the Police against the driver, marked as Ex.B-4, shows that the driver was in drunken state at the time of accident. Mere filing of charge sheet is not sufficient to conclude that the driver was in drunken state and since an accusation is made against the driver and same depends upon proof beyond reasonable doubt in a Criminal case. However, this Court in Shamshuddin and another Vs. Atta Anwaruddin and another held that mere filing of charge sheet against the driver of Crime vehicle is not sufficient to conclude that the accident occurred due to rash and negligent driving of the driver of Car, the Tribunal has to independently decide rashness and negligence basing on the attending circumstances of each case. Even by applying the principle laid down by this Court in Shamshuddin (3rd supra), we are of the considered view that it is the duty of the Tribunal to decide rashness and negligence, independently, un-influenced by the contents of charge sheet, filed by the Police, since it is only an accusation made against the driver of Car.
21. As seen from the material available on record, the driver of the Car was in drunken state, at the time of accident, more particularly, in view of Exs.X-1 and X-2 reports, since it is not the case of the second respondent that the samples were tampered and that the blood samples were not properly analyzed. In the absence of any dispute regarding analysis, we are of the considered view that the report of RW.2, marked as Ex.X-1, is to be accepted. Hence, accepting the report of RW.2, marked as Ex.X-1, we find that the driver was in drunken state at the time of accident.
22. The main contention of learned standing counsel for the second respondent-Insurance Company is that the Insurance Company is not liable, as driving Car by the driver in a drunken state amounts to violation of terms and conditions of the policy by the owner. In view of our finding in the earlier paragraphs, the second respondent-Insurance Company established that the driver of the Car was in drunken state, at the time of accident. However, it is the duty of this Court to find out whether entrustment of the Car to the driver, who was in drunken state, at the time of accident, amounts to violation of terms and conditions of the policy by the first respondent. Ex.B-1 is the insurance policy containing several conditions. The main condition pertaining to driver is mentioned in Ex.B-1, which is extracted hereunder for better appreciation:
DRIVER : Any person including the insured, Provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license, Provided also that the person holding an effective Learners license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles rules, 1989.
23. In view of this condition, a person who is competent to hold and not disqualified from obtaining driving license to drive the Car, at the time of accident, is competent to drive the Car, but the terms and conditions of the policy regarding third party liability contained in Ex.B-1 are as follows:
1. Subject to the Limits of Liability as laid down in the Schedule hereto, the Company, will indemnify the Insured in the event of an accident caused by or arising out of the Motor Car, against all sums which the Insured shall become legally liable to pay in respect of:
a. death of or bodily injury to any person including occupants carried in the Motor Car (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.
24. But, in the said condition, the driver of Car in drunken state is not a ground to disown the liability by the Insurance Company, but however, in Section 3 of terms and conditions regarding personal accident cover for the owner driver, there are clauses which enables the second respondent-Insurance Company to avoid its liability, which is extracted hereunder, for better appreciation:
1. The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner driver of the vehicle, in direct connection with the vehicle insured or whilst driving or mountaining into/dismounting from the vehicle insured or whilst travelling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
(i) .. (ii) .. (iii) .. (iv) .. (a) ..
(b) No compensation shall be payable in respect of death or bodily injury directly or indirectly, wholly or in part arising or resulting from or traceable to (1) Intentional self injury suicide or attempted suicide physical defect or infirmity or (2) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
25. From a bare look at the conditions contained in Ex.B-1 policy, drunk and drive exonerates the second respondent-Insurance Company for personal accident cover of the owner and driver, but not the third parties. The conditions specified under the policy with regard to liability to pay compensation for third party risk and driving the vehicle by the driver of the Car in drunken state would not exonerate the second respondent- Insurance company from payment of compensation. However, Insurance Company is not liable when the vehicle was driven by driver in drunken state, in view of the terms and conditions extracted above, in personal injury claims. Perhaps, the third party is not supposed to know about the intoxicated state of driver, when he was proceeding on the road. Therefore, policy conditions did not exonerate the Insurance Company from payment of compensation to third parties, though the Car was driven by a driver in drunken state. However, the ill-affects of intoxication have to be looked into while driving the vehicle. In one of the decisions of the Apex Court in State, Tr. P.S. Lodhi Colony, New Delhi Vs. Sanjeev Nanda which was popularly known as BMW Car Case, the Apex Court discussed about the ill-affects of drunk and drive in Para 78, which is extracted hereunder, for better appreciation:
78. Drunken driving has become a menace to our society.
Everyday drunken driving results in accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late night parties among urban elite have now become a way of life followed by drunken driving. Alcohol consumption impairs consciousness and vision and it becomes impossible to judge accurately how far away the objects are. When depth perception deteriorates, eye muscles lose their precision causing inability to focus on the objects. Further, in more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short, alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision.
26. The symptoms of acute poisoning or acute intoxication are at first a sense of well-being, self-confidence and exhilaration, flushing of the skin and face, a carefree behaviour and then gradual loss of self-control, garrulousness, argumentativeness, rude behaviour, sentimentality and moroseness or melancholia. These are followed by a state of confusion and dulling of perception, muscular non co-ordination, staggering gait, slurred and incoherent speech, blurred vision and stupor. After a time, recovery may occur accompanied by nausea and vomiting, which are regarded as the early signs of recovery. These may be followed by sleep, severe headache and gastric problems.
27. If recovery does not occur, the patient gradually passes into a state of unconsciousness, sometimes hypoglycaemia and coma with slow, stertorous breathing and a full rapid pulse which then becomes slow and small. The breath smells of alcohol. The patient may be roused temporarily by a loud noise or a violent shake. The pupils are generally dilated in the early stage, but may be contracted in later stages or while in coma. Their reaction to light is a hopeful sign. There may be positional nystagmus, which changes its direction according to the change in the position of the head. When the jerking movement is in the direction of the gaze and independent of the position of the head, it is known as alcohol gaze nystagmus. This appears at blood levels of 0.03 to 0.05 per cent. The body temperature then becomes sub-normal. Death usually occurs from asphyxia due to respiratory paralysis. Sometimes, convulsions precede death. In some cases, the patient regains his sensibility on account of partial recovery, but a relapse occurs and the patient dies suddenly in a state of coma. He may also die later of hypostatic pneumonia or oedema of the lungs.
28. Sometimes in a few unstable persons the intake of a small quantity of alcohol results in an immediate markedly abnormal maniacal response. He may be violent and later on there may be complete loss of memory of the incident. Such people should have no access to alcohol.
29. In the instant case on hand, according to the evidence of RW.2, expert, coupled with Ex.X-1, at the time of driving the car the driver of the car in this case is in embroiled state and the quantum of alcohol percentage found in his blood samples is 57.5 Mgs, but whereas under
Section 185 of Motor Vehicles Act, the permissible limit is only 30 Mgs, for 100 ML. Driving of vehicle in a drunken state and the percentage of alcohol found in the blood more than permissible limits as contemplated under Section 185 of Motor Vehicles Act, is an offence. It is a common knowledge of a human being about the ill-consequences of such drunken driving but still the driver in embroiled state drove the new Skoda car and caused the accident resulting in the death of Yogender, who was on duty as Traffic Police Constable, after hitting a motorcycle and auto. Causing such extensive damage to the property and persons itself indicates that the driver lost his consciousness and almost his senses were impaired due to intoxication at the time of accident.
30. In one of the decisions of the Himachal Pradesh High Court in National Insurance Company Vs. Smt. Sanpati and others , when the same question came up for consideration, the High Court of Himachal Pradesh in Para 7 of the judgment while discussing about Issue No.4, concluded that the driver of the vehicle was in such an inebriated condition that he could not control the vehicle, as a result of which, the accident was caused. Further, in Para 8 of the judgment therein, it was further held that finding alcohol contents in the blood samples analyzed by the analyst is more than the permissible limits, but still the High Court of Himachal Pradesh held that the Insurance company cannot avoid its liability to pay compensation. In one of the decisions of this Court in Sri Jayaprakash Agarwal Vs. Mohd. Kaleemulla , stray observations were made in Para 48 of the judgment, but no finding was recorded by this Court in the decision cited supra. In fact, that was not the case pertaining to drunk and drive. Therefore, the decision cited supra would not come to the aid of either Insurance Company or the claimants.
31. According to the material available on record, the second respondent-Insurance Company by examining RW.2 and marking Exs.X-1 and X-2 established that the driver of the Car was in inebriated state, at the time of accident, lost his control over the Car, on account of his intoxication, which is more than the permissible limit under Section 185 of Motor Vehicles Act; thereby, caused the accident. But, when we advert to the conditions of the policy, drunk and drive only exonerates the Insurance Company from payment of compensation in claims made by the owner or driver etc., but coming to third parties to the policy, as defined under Section 145G of Motor Vehicles Act, third party includes the Government within the definition of third party which is an inclusive definition. However, a person who was the Police Constable attending to duty at the time of accident is certainly a third party. Therefore, the deceased Yongender is not supposed to know whether the driver is in fit condition to drive the vehicle or drive the vehicle in an inebriated state. Even if there is any condition, that driving of a vehicle in intoxicated condition is violation of terms and conditions of the policy, still the Insurance Company is liable for payment of compensation. Undoubtedly, the policy contains clauses regarding eligibility to drive the vehicle by the driver, but the fit state of mind was not included in the eligibility of the driver, in the policy. Undoubtedly, when the driver is in inebriated state, certainly, his consciousness and senses will be impaired besides other ill-affects referred in Para 78 of State, Tr. P.S. (4th supra). Thus, the driver became unfit to drive the Car in such an inebriated state, but the Insurance Company is not liable to be exonerated from payment of compensation. Even otherwise, the inebriated state of driving of the car is not within the knowledge of the insured. Hence, handing over car to driver, who was in drunken state, does not arise. After amendment of Section 149 of Motor Vehicles Act, the Insurance Company cannot avoid its liability to pay compensation to third party.
32. Strangely, in the terms and conditions of the policy, marked as Ex.B-1, a specific term was included which permits the Insurance Company to pay and recover the compensation and the important note mentioned in the first page of the policy, is extracted hereunder for better appreciation:
IMPORTANT NOTICE: The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this Schedule. Any payment made by the Company by reason of wider terms appearing in the Certificate in order to comply with the Motor Vehicle Act, 1988 is recoverable from the insured.
33. The Insurance Company itself reserved its right to pay and recover the compensation in view of wider terms appearing in the certificate of Insurance, even if there is any violation of terms and conditions of the policy.
34. According to the settled law laid down by the Apex Court in Oriental Insurance Company Limited Vs. Nanjappan and others and in Swaran Singh (2nd supra), when the Insurance company pleaded that the terms and conditions of the policy are violated by the insured, the initial onus of proof is on the Insurance Company to prove such violation of terms and conditions of the policy, which amounts to fundamental breach of terms and conditions of the policy.
35. In Nanjappan and others (7th supra), the Apex Court held as follows:
When there is a violation of terms and conditions of the policy, insurance company is held to be not liable, but insurance company has to pay the awarded compensation and recover the same from the insured by initiating the proceedings before the executing Court to protect and safeguard the interests of insurance company.
36. Even if there is any violation of terms and conditions of the policy, the Insurance company is under an obligation to satisfy the claim of third parties; since the liability of the Insurance Company during subsistence of the liability under the policy is statutory in nature and at best, the Insurance Company has to satisfy the compensation and recover the same from the insured.
37. If the position referred above is applied to the present facts of the case, in view of important note mentioned in first page of Ex.B-1 extracted above, the Insurance company is liable to pay compensation and recover the amount from the insured, but Insurance Company cannot avoid its liability totally on account of drunk and driving of the driver of new Skoda car bearing No.AP 09 BN T/R 5591. Hence, in view of the terms and conditions of the policy and in view of law laid down by the Apex Court consistently, we find that drunk and driving is not a ground to avoid liability to exonerate the Insurance Company from payment of compensation.
38. POINT No.2: For assessment of compensation in death claims, the relevant factors are the age of the deceased, multiplier applicable to the age group of deceased, contribution of deceased to his family members. The deceased Yogender was aged 46 years as on the date of accident and the same is supported by the oral evidence of PW.1, coupled with Ex.A-6, Service certificate issued by Commissioner of Police, Hyderabad City. As per the principles laid down by the Apex Court in Sarla Verma (1st supra) the appropriate multiplier applicable to the age group of deceased, is 13. The deceased Yogender was allegedly earning Rs.17,066/- p.m. as Police Constable (Traffic) as on the date of accident. As per Ex.A-11, prior to the date of accident the Revision of Pay Scales came into effect and with 39% fitment benefit, the salary of the deceased was fixed at Rs.22,288/- p.m. Since the deceased Yogender was a permanent employee and aged between 40 to 50 years, the Tribunal rightly added future prospects at 30% on Rs.22,288/- and thus the Tribunal rightly decided the amount of compensation under the head of loss of dependency and future prospects at Rs.28,974/- and rightly deducted 10% of income tax i.e., Rs.2,877/- and professional tax of Rs.200/- from Rs.28,774/- but, the Tribunal erroneously deducted an amount of Rs.4,300/-, family pension being paid to PW.1, wife of deceased Yogender, and arrived at Rs.15,123/- towards contribution of deceased-Yogender to his family members.
39. In a Division Bench decision of this Court in Bhupathi Prameela and others Vs. Superintendent of Police, Vizianagaram and others , it was held as follows:
57. The only other point raised by the learned counsel for the respondents is that the Government has already paid ex gratia and other benefits to the claimants. The settled legal position is that the ex gratia and other allowances paid to the legal heirs of the deceased cannot be taken into consideration for determining the compensation under the provisions of the Act.
61. In National Insurance Company Limited v. Renu Bala (2005) II ACC 495 (DB) (P&H), it was held that Family pension received by the claimants should not be deducted in determining dependency of claimants.
62. In view of the above principles, we are of the view that the claimants are entitled for compensation.
40. If the principles laid down by the Division Bench of this Court in Bhupathi Prameela and others (8th supra) are applied to the present facts of the case, the family pension received by the 1st petitioner, being wife, is not liable to be deducted. If the salary of deceased Yogender is taken as Rs.22,288/- p.m. and after adding 30% future prospects, the same would come to Rs.28,974/- p.m. and from out of Rs.28,974/- an amount of Rs.150/- is deducted towards professional tax, the same would come to Rs.28,824/- and from this amount, if 10% towards Income Tax is deducted, the same would come to Rs.25,942/-. The family members of deceased Yogender are 4 in number, as per the principles laid down by the Apex Court in Sarla Verma (1st supra), 1/4th amount is liable to be deducted from the gross salary of deceased towards his personal and living expenses to arrive at the loss of income of the deceased, which comes to Rs.19,456/-. Therefore, the contribution of deceased to his family comes to Rs.19,456/- p.m. and annual contribution would be Rs.2,33,472/-
41. In view of the principles laid down by the Apex Court in Sarla Verma (1st supra), where the age of deceased is between 46 to 50 years, multiplier 13 is to be applied for arriving compensation under the head of loss of dependency and future prospects and the same would come to Rs.30,35,136/-
42. Thus, the claimants-petitioners are entitled to an amount of Rs.30,35,136/- under the head of loss of dependency and future prospects. The Tribunal also awarded an amount of Rs.15,000/- to first claimant under the head of loss of consortium and an amount of Rs.5,000/- towards funeral expenses to the claimants, which amount was very meager. But, in view of the principles laid down by the Apex Court in Rajesh and others Vs. Rajbir Singh and others , amount payable under the head of loss consortium exclusively to the first claimant, being the wife of deceased, is Rs.1,00,000/- and an amount of Rs.1,00,000/- towards loss of estate. Besides this, the claimants are also entitled to an amount of Rs.25,000/- towards funeral and transportation expenses. Thus, in all the claimants-petitioners are entitled to an amount of Rs.32,60,136/- under various heads. But, the Tribunal awarded inadequate compensation of Rs.23,79,188/-, adopting conservative approach, though the Tribunal is under an obligation to award just and reasonable compensation, committed an error in awarding compensation.
In the result, the Civil Miscellaneous Appeal No.1898 of 2012 filed by the petitioners-claimants is allowed, in part, enhancing the amount of compensation awarded by the Tribunal from Rs.23,79,188/- to Rs.32,60,136/-. Consequently, Civil Miscellaneous Appeal No.2332 of 2011, filed by second respondent-Insurance Company, is dismissed. However, the petitioners-claimants are directed to pay appropriate court fee, on the difference of enhanced amount, both before this Court and the Tribunal. Out of the compensation awarded by this Court, first petitioner, being wife, is entitled to an amount of Rs.12,60,136/-, second and fourth petitioners, being sons, are entitled to Rs.5,00,000/- each and third petitioner, being daughter, is entitled to Rs.10,00,000/-. Petitioners- claimants are permitted to withdraw their respective share of compensation, excluding the amount, if any, withdrawn by them earlier. The rate of interest awarded by the Tribunal remains unaltered.
In consequence, Miscellaneous Petitions, if any, pending in these Appeals shall stand closed. No order as to costs.
_____________________ ASHUTOSH MOHUNTA, J ___________________________ M. SATYANARAYANA MURTHY, J Date: 02-04-2014.