Andhra HC (Pre-Telangana)
United India Insurance Co. Ltd vs Shyam Rao Metre And Others on 28 January, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.2420 of 2012 28-01-2014 United India Insurance Co. Ltd..Appellant Shyam Rao Metre and others. Respondents Counsel for the Appellant : Sri E.Venugopal Reddy Counsel for the Respondents: Smt.A.Chaya Devi <Gist : >Head Note: ? Cases referred: 1) 2001(1)ALT 495 DB 2) 1996 ACJ-1178 3) (2007)7 SCC 445 4) 1965(1) All. E.R-563 5) 1963(2) All.E.R-432 6) 1969(1)All.E.R 555 7) 1995 ACJ 366(SC) 8) 2013(2) ALD 654 9) 1997(3) CTC-346 10) FAO-79/1996, dated 01.06.2000 (Delhi) 11) 2013(1) ALD-628 12) 2012(5)ALD(SC)-35 13) 2012 ACJ-99=2012(3) ALD 226 14) 2009 ACJ 2818 15) 1985 ACJ 212 (AP) 16) 1998 ACJ 615 (AP) 17) 1977 ACJ 253 (Gujarat) 18) 1987 ACJ 561 (SC) 19) 1988 ACJ 667 (All.) 20) 2007 ACJ-1279 (SC) 21) AIR 1995 AP 65 22) 2005 ACJ 1618 (Guj-DB) 23) 2009 ACJ 1298. 24) 2013 ACJ-1253 (3 Judge bench) 25) 2013 ACJ 1403=(4)ALT-35(SC). 26) 2005 ACJ 263 27) 2007 ACJ 174 (Madhyapradesh-Indore bench) 28) 2008(1) ILR-Ker-662 29) (2001) 8 SCC 197=AIR 2001 (SC) 3218 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.2420 OF 2012 JUDGMENT:
The insurer-respondents 2 and 3 of the claim petition among three respondents including the owner of the crime auto bearing No.AP 12 T 8732 preferred the appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunalcum-XVIII Additional Chief Judge, Hyderabad against the award in O.P. No.1286 of 2003 dated 17.11.2006 by the claimants who are no other than the husband and two major sons of the deceased by name Anjan Bai Metre aged about 55 years, awarding compensation of Rs.2,39,900/-(Rupees Two lakhs thirty nine thousand and nine hundred only) with interest at 9% per annum against the respondents 1 to 3 jointly and severally as against the claim of Rs.2,50,000/-(Rupees Two lakhs fifty thousand only), in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, the Act).
2. Heard Sri E.Venugopal Reddy, the learned standing counsel for the appellant and Smt.A.Chayadevi, learned counsel for the respondent Nos.2 and 3 (who are legal representatives of late 1st claimant and the deceased). The claim against the owner of the vehicle, 4th respondent to the appeal, for want of service, noted dismissal for default vide orders of this Court dated 15.09.2011, who in fact remained exparte before the Tribunal and thereby there is no bar to the maintainability of the appeal vide decision in M.Chakradhara Rao v. Y.Baburao . Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
3. The contentions in the grounds of appeal as well as oral submissions by the appellant-insurer in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case and that the Tribunal went wrong in not considering the factum of the auto having capacity only 3+1, overloaded with 7+1 even as per the very F.I.R relied upon as Ex.A-1 as well as Ex.A-4 charge sheet was two persons on either side of the driver which actually meant for driver alone and that is the reason for cause of the accident mainly the auto dashing a road side big tree and so far as the claimants 2 and 3 since 1st claimant, husband of the deceased, lost breath during the pendency of the claim petition, no way dependants on the deceased- mother, but for mere legal representatives that is not a ground to award any compensation that was ignored by the Tribunal, that Tribunal also erred in fixing the monthly income of the deceased at Rs.2,500/- as well as in applying multiplier at 11 even the age of the deceased was more than 60 years apart from awarding Rs.20,000/- towards loss of consortium even 1st claimant died during pendency of the claim petition and thereby exonerate the insurer for violation of the terms of the policy for overloading the auto if not to fix contributory negligence with personal liability on the driver and owner without to indemnify by the insurer to the extent of contributory negligence for the violation and also to reduce the quantum of compensation for the reasons mentioned supra. In the course of hearing, the learned standing counsel for the insurer reiterated the said contentions. Whereas, it is the contention of the claimants as respondent Nos.1 and 2 of the appeal that above contentions are untenable and there is nothing to interfere with the award of the Tribunal, but for want of cross-objections to enhance the compensation awarded since utterly low and to dismiss the appeal.
4. Now the points that arise for consideration in the appeal are:
1. Whether the overloading contributed to the accident and if so there any exoneration of the insurer from indemnifying the insured to any extent therefrom?
2. Whether the quantum of compensation awarded by the Tribunal is excessive and requires to reduce and also for the reason that the claimants who are respondents 2 and 3 of the appeal are no way dependants on the deceased mother being major sons, but for class-I heirs and legal representatives?
3. To what result?
POINT-1:
5. The facts that on the fateful day i.e., on 04.04.2003 the accident was the result of the auto dashed against a road side big tree near Rajendra Nagar, Badwel extension and the deceased who was on the rear side of the auto was succumbed not to mention two more persons died and another injured as can be seen from Ex.A-4 charge sheet and Ex.A-1 F.I.R with overloading of 7+1 not in dispute to say the accident was the result of rash and negligent driving of the driver of crime auto. However, from the very fact that the auto dashed against a road side big tree from the driver lost control but for that the accident could not have happened in the manner is an indication from such overloading that too as can be seen from the very F.I.R given by one of the inmates of the auto being eye witness about two persons on either side of the driver sat thereby it is impossible to control to say the overloading also contributed to the cause of the accident as claimed and suggested with specific plea by the insurer in the factual matrix. Thus, the contention of the claimants of nothing shown by any specific evidence of overloading contributed to the cause of accident is untenable, from what is proved of overloading also contributed to the accident.
6. No doubt the Apex Court in B.V.Nagaraju V. Oriental Insurance Co. Ltd. held that mere overloading is not suffice to say the same contributed to the accident. It was followed in the later expression in National Insurance Co. Ltd. V. Anjana Shyam finding that when mere overloading per se not fundamental a breach to escape liability by the insurer; from such overloading if the claimants are more than the risk covered by the policy, in such a case the highest claims to the extent liable to indemnify by the insurer be taken and to rest by the owner to make personally liable; so as to pool out the compensation and distribute to the respective claims allowed among several claimants in proportion to the quantum of all. No doubt the overloading since also contributed to the accident in the present facts 20% of the liability can be fastened on the owner of the vehicle to pay personally and to make liable for remaining 80% by the insurer. Beyond that, there is nothing to say the insurers non- liability. Needless to say if the claims filed are more than 3 for the capacity of three, the principle laid down in Anjana Shyam (supra) can be invoked, but for no material before this Court to invoke. Accordingly, point No.1 is answered.
POINT No.2:
7. From what is discussed supra, coming to the claimants- dependency and quantum of compensation concerned, the main dispute from the insurer is that for the first claimant-husband of the deceased without disposal of the O.P claim, breathed the last and the claimants as on the date of passing award by the Tribunal were only two major sons-who are married persons, though the Class-I heirs of the deceased and legal representatives as per Section 2(11) C.P.C read with Section 166 of M.V.Act, 1988 Rule 2(g) of the A.P.M.V. Rules, 1989, once they are not dependants on the deceased mother the compensation cannot be awarded.
8) Before answering the above as to what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James , it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what compensation would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and should neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited at paragraph No.12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.
9) Thus, it is to consider what is the just compensation subject to entitlement. Now coming to the entitlement concerned 9(A). The three recent single Judge expression of our High Court say:- In Oriental Insurance Company Ltd. V. Akumarthi Rama Rao it was held that when sole claimant being major son an agriculturist of his father died in accident, he is not dependant even legal representative, thus entitled to no-fault liability as held in United India Insurance Company Ltd V. Kasiammal and of Delhi High Court in Usha Ranijain V. Rajpal .
(ii) In A.Maddaiah V. Viswanath it was held that, even the claimants are major sons of their mother died in road accident, not even dependants on her income, they can claim compensation, but for to say in awarding compensation, their income is also to be taken consideration in assessing contribution to them by deceased by referring to Santosh Devi V. NIC stated held therein to that effect.
(iii) In United Insurance Co. Ltd. V. G.Satish Kumar it was held that as per Section 166(1)(c) the brothers and married sisters are legal representatives and even they are not dependants of the deceased the provision when nowhere say dependant-legal representatives they are also entitled to compensation. There mother was one of the claimants and the multiplier adopted from her age and the deduction for personal expenses to 50% of earnings of deceased. This decision thus not laid down any principle as to their income to be taken for consideration or not and their claim is to the extent what the deceased held contribute or the like.
9(B). Coming to the earlier propositions in this regard
(iv) In Seshapu Ramulamma V. Doppalapudi Raju in this regard it was held while saying Section 2(11) C.P.C, Rule 2(g) of the A.P.M.V.Rules, 1989 read with Section 166(1)(c) of the Act, 1988 on the question; claim filed by the married sister being the only surviving legal representative whether maintainable or not answered in the negative. It was said that married daughter, un-married daughter, married sister, un-married sister and brother, all come no doubt under the category of legal representatives, however among them, so far as married sister concerned, she cannot be considered as dependant legal heir to claim compensation. The Court referred therein the earlier two Division Bench expression of this Court in Andhra Pradesh State Road Transport Corporation V. Shafiya Khatoon ; and New India Assurance Co. Ltd. V. Peddada Prabhavathi .
10) It also referred other expressions viz., (i) the decision of Megjibhai Khimji Vira V. Chaturbhai Taljabhai wherein the Gujarat High Court held that a nephew is entitled to maintain a claim petition being the sole relative and legal representative of deceased. It proceeded on the ground of dependant-claimant on deceased uncle. (ii) The Apex Courts expression in Gujarat State Transport Corporation V. Ramanbhai Prabhatbhai confirming the finding of the Gujarat High Court which speaks that, a brother as legal representative is entitled to compensation being dependant on deceased if he is the person suffered from the death; (iii) The expression of the Allahabad High Court in Padma Devi V. U.P. State Road Trnansport Corporation and another expression of the Apex Court in (iv) Manjuri Bera V. Oriental Insurance Co. Ltd. . It was the conclusion of the learned single Judge in Seshapu Ramulamma (supra) that an unmarried sister is held entitled to be maintained to claim compensation, whereas married sister is not dependant on her deceased brother though legal representative of him. In fact in the Division Bench expression of this Court in Shafiya Khatoon (supra) it was held by referring to the M.V.Act, 1939 and Fatal Accident Act, 1855 that the concept of legal representatives has to be liberally interpreted for the same arising under Section 110(b) of the M.V.Act, 1939 and observed at para-55 that in our view all the legal representatives of the deceased, according to the personal law applicable to the deceased, will be entitled to apportionment of the dependency as per their needs. However, concerning married sister at para-69 it was held that the liberal view is to go to legal heirs of the deceased who died intestate and if the heirs are mother, sisters married and unmarried, married sister not being any longer dependent but for on her husband to get anything and thus, that dependency goes to the mother and the unmarried sisters only. The principle laid down in this division bench expression nowhere said a married sister or married daughter even sole heir not entitled to compensation, but for to say where there are dependants and non- dependants, only dependants to prefer for the entitlement. In another earlier single Judge expression of this Court (v) in APSRTC V. Krishnaji Rao which is referring to Rambhai Prabhatbhai (supra of the Apex Court), Md.Abdul Wahab (supra of this A.P. High Court division bench), held at para-3 that under Section 110A of M.V.Act, 1939, the claimants- elder brother and sister-claimed as living together also with support of deceased being only legal representatives of him entitled under personal law to compensation only to the extent of loss of estate and to the extent of loss of dependency.
11) These decisions answer on the principle that when there are dependants and non-dependants on deceased among the legal heirs, the dependants to be awarded compensation and not to the non-dependant legal heirs. However, the same is not an answer on the point as to if the claim filed is only by the major sons, as legal representatives of the deceased-father or mother, they have to be considered to what extent to award compensation and is to whether their means to be considered in fixing the quantum to assess what could be contribution by deceased to them or to award only no fault liability in view of divergent opinions supra. It was further observed by the learned single Judge in Seshapu Ramulamma (supra) by so referring to the expressions (supra) that, none of the decisions analysed supra considered Rule 2(g) of A.P. M.V. Rules, 1989. Further it was observed from referring to the other division bench in Peddada Prabhavahi (supra) following earlier expression in P.Raghavaiah (supra) and Padma Devi (supra) that, in Peddada Prabhavathi (supra) a married daughter would be held ineligible to partake share in compensation granted, though unmarried daughter would be eligible. It was therefrom answered that though a married daughter, un-married daughter, married sister and another married sister, brother and nephew etc, are come in the category of legal representatives, a married sister would not be entitled to claim compensation, so also married daughter being dependants on husband: Further in (vi) NIC V. Ashwin V Rajlal Rajgor it was held that accidental deceased unmarried left behind, brothers wife and brothers son, they being only legal representatives of deceased are entitled to compensation by relying upon Ramanbhai Prabhatbhai (supra).
12) In fact the Apex Courts expression in Ramanbhai Prabhatbhai (supra) way back in the year, 1987 was that every legal representative who suffers on account of the death of a person due to motor vehicle accident should have a remedy to realize compensation under Section 110(A) of the M.V.Act, 1939. The Apex Court at para-12 to the conclusion observed that we should remember that in an Indian family brothers, sisters and brothers children and some times foster children live together and they are dependant upon the bread winner of the family and if bread winner is killed on account of the accident, there is no justification to deny the compensation. We express our free flow of the decision in Megjibhai (supra) and held that brother of a person who dies in a motor accident is entitled to compensation if he is a legal representative of the deceased. The sum and substance of said expression of the Apex Court is that if a person is shown to be a legal representative, he is entitled to compensation if he suffers from such death. From the say of brother even entitled to compensation not by saying with any clog that he must be shown as dependant on the deceased. Thus, from a combined reading of the above gives the inevitable conclusion that dependency is not the only criterion on one breathe, and mere legal representative is also not the only criterion on the other breath, but for to say if the claimant/s legal representative/s and suffers from accidental death of deceased, entitled to compensation and one need not be a dependant legal representative; except to say where there are dependants and non-dependants, the dependants to be preferred for grant of compensation over non- dependants, however, if it is shown the non-dependants or any of them are the sufferers they are also entitled to compensation but for to say in fixing their quantum, their means also require consideration including while such apportionment.
13) In (vii) Sarla Verma v Delhi Transport Corporation (that was approved, but for to fill the gap of the table shown for claim under Section 166 of the Act in Sarla Verma (supra), for persons aged between 15-20 years as multiplier 15 to adopt (by the three Judge bench in answering a reference) in (viii) Reshma Kumari V. Madan Mohan and also a subsequent three Judges bench expression in (ix) Rajesh v. Rajbir Singh at para 19 (step-3) held that contribution to the family is the loss of dependency to the family (claimants-legal heirs). The expression in Sarla Verma (supra) further speaks that depending upon number of dependants from to 1/5th be deducted as personal expenses to say from paras 27 to 32 that if dependants are 1 or 2, , 4 to 6 1/4th, 6 above 1/5th and 2-3 1/3rd but for bachelor generally if parents are dependants. Thus, dependency is main criterion and even in absence of dependants, non- dependant legal representatives are entitled to compensation to the extent what the deceased could contribute but for untimely death.
14) Further the Rule 2(g) of the A.P.M.V. Rules, 1989 categorically defined legal representative to mean legal representative defined in Section 2(11) of C.P.C and not as dependants among the legal representatives. The definition of Section 2(11) of C.P.C for legal representative not defined in the M.V.Act was earlier even adopted in several of the expressions. Even a reading of Section 2(11) C.P.C, nowhere speaks the legal representative must be a dependant on deceased but for representing the estate of deceased. Thus, the inevitable conclusion from all the above to arrive is, any legal representative is entitled to compensation and not merely because shown as dependant, muchless to negate those not dependants; but for to prefer dependants over non- dependants among even same class of several legal heirs being the legal representatives unless shown the non-dependants are also the sufferers to award some amount of compensation, needless to say if all claimants or sole claimant a non-dependant entitled to the entire compensation. For example those of class-I heirs to prefer over those of class-II heirs and in their absence, those of agnates and in their absence those of cognates to claim as per personal law. It was also concluded by the division bench of Gauhati High Court in (x) Union of India V.Golendra Moshahari in saying father to be preferred over brother of deceased when both alone are the legal representatives. Same was followed in (xi) Vaman V. Ved Prakash and by Kerala High Court in (xii) P.N.Unni V. Baby John paras 3 and 4 referring to the Apex Courts expression in Rambhai Prabhatbhai (supra) upholding compensation to the non-dependant brother.
15) The only thing then to consider is what is the quantum of contribution by the deceased the claimants suffered (being major sons with earnings of own) even not dependants on deceased, by taking income of claimants and then what could be the contribution they receive from deceased but for such untimely death to assess in arriving a just compensation to award as the criterion. This conclusion also lends support from the latest two expressions of learned single Judges of this Court in G.Satish Kumar (supra) and A.Maddaiah V. Viswanath (supra) and this conclusion is further strengthening by the expressions of the Apex Court in Sarla Verma (supra) and confirmed by Reshmakumari (supra) and Rajesh (supra), appeal from the settled and erudite expression in Ramanbhai Prabhatbhai (supra). As the Apex Court in the decisions supra, in particular in Ramanbhai (supra) categorically held that every legal representative who suffers on account of death should have a remedy for realization of compensation. Here the word who suffers does not mean always a dependant as what is the contribution from the deceased last breathed is the sufferance to consider with reference to Section 166(1)(c) read with Section 2(11) C.P.C and so far as the State by reading with Rule 2(g) of A.P.M.V. Rules, 1989.
16) Suffice to conclude from the principle of law to the facts - to say the compensation to be awarded for death of the deceased is by considering the means of the claimants(non-dependant major sons) also, being the sufferers from the untimely death. (Where all the claimants are not solely dependants on the deceased like Major sons and married daughters (earning) major married daughters even non-earning being dependants on husband, or major brothers and married sisters or the like, unless shown and proved by any special facts as dependants from any mental or physical disability for self earnings). It is also clear that among claimants, some are dependants and some non-dependants, the personal expenses deduction of deceased is from how many among them are dependants as per paras 27-32 of Sarla Verma (supra) and where all non- dependants to deduct for personal expenses of deceased as half and also in fixing contribution by deceased to them from their means into consideration.
17) From this conclusion, now coming to the factual matrix for arriving the compensation sum, the age of the claimants 2 and 3 major sons of the deceased shown as between 30-33 years to say above 32 years both approximately there is no plea either in the claim petition muchless in evidence of any of them are dependants on the deceased but for to say they suffered from the death of deceased (their mother). It is no doubt not only by financial contribution to them but also the domestic contribution with elderly advice and guidance (as mother is a mother with no substitute for her). From this, the Tribunal in this case by considering the earnings of the deceased estimating at Rs.2,500/- p.m. and by deducting 1/3rd towards personal expenses, awarded Rs.2,39,500/-. In fact there are two claimants who are not even depending solely on the mother, thus as per Sarla Verma (supra) approved by Reshmakumari and also by Rajesh (supra) it is half to deduct by following the expressions. The earnings of the deceased claimed as running a tea stall and also other avocation. The Apex Court in Latha Wadhwa vs. State of Bihar held categorically that even there is no proof regarding means the minimum to be taken as Rs.3,000/- per month. The accident was dated 04.04.2003 about 2 years after the said expression and even taken Rs.3,200/- p.m. By considering the earnings of the claimants also in taking the earnings of the deceased out of it as contribution to them (after deduction of personal expenses) has to be fixed from what is discussed supra if taken at Rs.2,600 x (after personal expenses deduction of deceased) = Rs.1,300/- being contribution by the deceased the claimants suffered is just to arrive at Rs.1,300/- p.m x 12 x 10 multiplier from the age of the deceased mentioned as 55 years and upto 55 years the multiplier is 11 and above 56 it is 9 as per sarla verma approved by Reshma Kumari & Rajesh (supra) thereby to reduce to 10, it comes to Rs.1,56,000/-. In addition to that an amount of Rs.25,000/- towards funereal expenses and Rs.9,000/- towards loss of estate, they are entitled to Rs.1,90,000/-. Out of which 20% liability is exclusively of the (respondent 1) owner of the auto rickshaw (that comes to Rs.38,000/-) and remaining 80% is (Rs.1,52,000/-) to indemnify the owner by the insurer, with interest at 7.5% p.a. from date of claim petition till the date of realization on the respective amounts. Accordingly point Nos.1 and 2 are answered.
POINT No.3:
18) In the result, the appeal is partly allowed while holding that being the legal representatives, the claimants as major sons of the deceased, though not dependants on the deceased, entitled to compensation arrived from taking of their means also in fixing the contribution of the deceased and arrived the compensation of Rs.1,90,000/- out of which for the overloading contributed to the accident for fixing 20% exclusively on the owner of the vehicle comes to Rs.38,000/-
and remaining 80% comes to Rs.1,52,000/- fixed on the insurer to indemnify the owner with interest at 7.5% p.a. on respective sums from the date of claim petition till the date of realization which they have to deposit within one month, failing which the claimants can execute and recover. Rest of award/decree terms of the Tribunal holds good. There is no order as to costs in the appeal.
19) Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________ Dr. B. SIVA SANKARA RAO, J Date: 28-01-2014