Andhra Pradesh High Court - Amravati
G.Lakshmi Devi, Tirupati Another vs M. Nagasubbarayudu, Kadapa Dist 3 ... on 19 July, 2022
HONOURABLE SMT. JUSTICE V.SUJATHA
M.A.C.M.A.No.1466 of 2008
JUDGMENT:
This Appeal is preferred by the claimants being aggrieved by the award dated 03.03.2008 passed by the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati in M.V.O.P.No.494 of 2005 granting compensation of Rs.4,60,500/- as against the claim of Rs.7,00,000/-.
For the sake of convenience, the parties will be referred as they are arrayed before the Tribunal.
2. The claimants, who are wife and daughter of one G.Ramanjaneyulu (hereinafter referred as „deceased‟), filed the above claim petition under Section 166-1 (c) of the Motor Vehicles Act, claiming compensation of Rs.7,00,000/- for the death of the deceased. On 27.05.2005, while the deceased and one P.Daniel along with other labourers were going on a tractor and trailor bearing Nos.AP 21 V 3076 and AP 21 V 3077, the 1st respondent being its driver-cum-owner, drove it in a rash and negligent manner and lost control over the vehicle, resulting which, the deceased fell down from the trailor and 2 sustained grievous injuries all over his body and while he was being shifted to SVIMS, Tirupati, he succumbed to the injuries on 29.05.2005. The deceased was aged about 33 years as on the date of the accident and was doing business in Granites and seasonable business and also used to look after the agricultural works and used to get Rs.15,000/- per month, besides that he was getting annual income of Rs.1,00,000/- on his lands. Hence the claim petition.
3. While the respondents 1, 3 and 4 remained ex parte, the 2nd respondent filed written statement denying the contents of the petition and stated that the 1st respondent drove the vehicle very cautiously and applied breaks in order to avert a major accident and the deceased who was travelling as an unauthorized passenger in the trailor and on account of its negligence met with the accident, hence the 2nd respondent is not liable to pay any compensation. Further contended that the offending vehicle was not insured with the 2nd respondent, as such there was no contract of insurance between the respondents 1 and 2 and also the 1st respondent was not having valid driving licence, thereby violated the provisions of the Motor Vehicles Act.
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4. Basing on the above pleadings, the Tribunal settled the following issues for consideration:
1. Whether the pleaded accident occurred resulting the death of the deceased and if so was it due to fault of the owner cum driver of Tractor and Trailer of first respondent bearing No.AP 21 V 3076 and AP 21 V 3077?
2. Whether the Tractor and Trailer in question belong to R.1 and stood insured with R.2 by the date of accident and if so whether the policy covers the risk of the deceased?
3. Whether the petitioners are the legal representatives of the deceased and entitled to compensation and if so, to what amount and from which of the respondents?
4. To what relief?
5. On behalf of the claimants, PWs-1 to 4 were examined and Exs.A1 to A8, Ex.B1 were marked. On behalf of the respondents, RW-1 was examined and Ex.B1 was marked.
6. The Tribunal, based on the evidence of PW-2 coupled with Exs.A1 and A5, came to the conclusion that the deceased received injuries and died due to rash and negligent driving of the 1st respondent. With regard to quantum of compensation, the Tribunal found that the deceased was a businessman and since there was no evidence about his income, the Tribunal has fixed the income of the deceased as Rs.3,000/- per month, accordingly Rs.36,000/- per annum, thereby fixed the 4 contribution to the family at Rs.24,000/- (Rs.36,000/- -
Rs.12,000/-) per annum after deducting 1/3rd towards personal expenses of the deceased. Further, the Tribunal has applied multiplier „17‟ as the deceased was aged about 35 years and arrived at Rs.4,08,000/- (Rs.24,000/- x 17) towards loss of income. In addition to that, the Tribunal also awarded Rs.15,000/- towards loss of consortium to the 1st claimant, Rs.10,000/- towards funeral expenses to the respondents 3 and 4 and Rs.20,000/- towards loss of estate to the respondents 3 and 4 and further awarded Rs.7,500/- towards medical expenses. In total, the Tribunal awarded Rs.4,60,500/- towards compensation along with interest at 7.5% per annum in favour of petitioners and respondents 3 and 4, payable by the 1st respondent, dismissing the claim against the 2nd respondent, as Ex.B1 did not cover the risk of the deceased. The amounts awarded by the Tribunal are as follows:
S.No. Head of claim Amount Amount
claimed awarded
1. Loss of income --- Rs. 4,08,000/-
2. Loss of consortium --- Rs. 15,000/-
3. Funeral expenses --- Rs. 10,000/-
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4. Loss of estate --- Rs. 20,000/-
5. Medicines and --- Rs. 7,500/-
treatment
Total Rs.7,00,000 Rs.4,60,500/-
7. Heard Sri Harinath Reddy Soma, learned counsel for the claimants and Sri M.Sravan Kumar, learned Standing Counsel for the 2nd respondent-Insurance Company.
8. Learned counsel for the claimants would submit that the Tribunal ought to have seen Exs.A1, A2 and A5 and considered that the deceased was the owner of the goods and his risk is covered as per the statute. The Tribunal erred in dismissing the claim against the 2nd respondent. Further, the Tribunal ought to have granted sufficient compensation under various other heads and ought to have granted interest @ 12% per annum.
9. Learned Standing Counsel for the Insurance Company made his submissions in support of the impugned award. He contended that the Tribunal has rightly come to the conclusion and awarded a just compensation and the award under appeal needs no interference. Further, he strongly contended that the deceased was travelling as an unauthorized passenger in the trailor and also contended that 1st respondent was not having 6 valid driving licence, thereby violated the provisions of the Motor Vehicles Act.
10. Having regard to the facts and circumstances of the case and the submissions of the learned counsel and on perusal of the record, this Court found that the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the 1st respondent, on account of which the deceased received injuries and died while undergoing treatment, became final and needs no interference, as the same is not challenged either by the 1st respondent/driver-cum-owner or by the 2nd respondent/insurer of the offending vehicle.
11. With regard to contention raised by the Insurance Company that the 1st respondent-driver of offending vehicle is not having valid driving licence, this Court relied upon a Judgment in Premkumari and others v. Prahlad Dev and others1, wherein it was held that mere absence of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third 1 (2008) 3 Supreme Court Cases 193 7 parties. Hence, in view of the ration laid down in the above Judgment, the contention raised by the Insurance Company, is not sustainable.
12. Learned counsel for the 2nd respondent-Insurance Company relied upon a Judgment reported in Manuara Khatun and others vs. Rajesh Kumar Singh and others2, wherein the Hon‟ble Supreme Court has categorically held that since the victim was travelling in offending vehicle as gratuitous passenger, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, keeping in view the benevolent object of the Act and other relevant factors, the Hon‟ble Supreme Court issued directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured by applying the principle of "pay and recover".
13. Further, learned counsel for the Insurance Company also relied upon a Judgment reported in Anu Bhanvara and others vs. Iffco Tokio General Insurance Company 2 (2017) 4 Supreme Court Cases 796 8 Limited and others3, wherein the Hon‟ble Supreme Court held that on account of injuries sustained in accident, principle of "pay and recover" directed to be invoked and the Insurance Company is liable to pay awarded compensation to claimants and thereafter recover the said amount of compensation from the driver and owner of vehicle in accordance with law.
14. In view of ratio laid down in the above judgments (referred supra), even in the case of gratuitous passengers or unauthorized passengers, the 2nd respondent-Insurance Company is liable to pay the awarded compensation and thereafter recover from the owner of the vehicle. Accordingly, the award is liable for modification to the extent of liability of Insurance Company.
15. Coming to the quantum of compensation, on perusal of the impugned order, this Court opined that the amount of compensation towards loss of dependency i.e. Rs.4,08,000/- arrived at by the Tribunal is just and reasonable and it needs no interference.
3 (2020) 20 Supreme Court Cases 632 9
16. However, as per the decision of the Honourable Supreme Court in National Insurance Company Limited v. Pranay Sethi and others4, wherein it was held that in case of claims relating to death, the claimants are also entitled for future prospects. Therefore, as the deceased was aged about 33 years on the date of the accident and as he was earning salary on granites work, 40% of actual salary has to be added to the loss of dependency, which could be arrived at Rs.5,71,200/- (Rs.4,08,000/- + 40%). In addition thereto, as per the Judgment of the Honourable Supreme Court in Pranay Sethi's case (referred supra), the claimants are also entitled for grant of compensation of Rs.70,000/- under conventional heads such as Rs.40,000/- towards loss of consortium; Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses. In all, the claimants are entitled for an amount of Rs.6,41,200/- (Rs.5,71,200/- + 40,000/- + 15,000/- + 15,000/-). Hence, the compensation awarded by the Tribunal is enhanced from Rs.4,60,500/- to Rs.6,41,200/-. 4 (2017) 16 Supreme Court Cases 680 10
17. For the sake of convenience and for easy understanding of the amounts now awarded under different heads are as follows:-
S.No. Head of claim Amount now awarded
1. Loss of dependency Rs.5,71,200/-
2. Loss of consortium Rs. 40,000/-
3. Loss of estate Rs. 15,000/-
4. Funeral expenses Rs. 15,000/-
Total Rs.6,41,200/-
18. Accordingly, the Appeal is partly allowed enhancing the compensation from Rs.4,60,500/- to Rs.6,41,200/- along with interest at 7.5% per annum from the date of the petition till the date of realization. The impugned order is modified to the extent that the 2nd respondent-Insurance Company is directed to pay the awarded sum along with interest to the claimants and respondents 3 and 4, within two (2) months from the date of receipt of a copy of this order and thereafter recover the same from the 1st respondent-driver-cum-owner of the offending vehicle, by filing execution proceedings against the 2nd respondent before the Tribunal in the same O.P. proceedings. The rest of the findings given by the 11 Tribunal in respect of apportionment remain unaltered. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
______________________ JUSTICE V.SUJATHA Date: 19-07-2022 ARR 12 HONOURABLE SMT. JUSTICE V.SUJATHA M.A.C.M.A.No.1466 of 2008 DATED : 19-07-2022 ARR