Andhra HC (Pre-Telangana)
United India Insurance Co. Ltd. vs Lingampalli Mondi And Ors. on 19 April, 2002
Equivalent citations: II(2004)ACC493
JUDGMENT C.Y. Somayajulu, J.
1. Respondent Nos. 1 to 3 filed O.P. No. 269 of 1996 in the Motor Accident Claims Tribunal, Adilabad, against the respondent Nos. 4 and 5 and the appellant, seeking compensation of Rs. 1,34,000/- consequent on the death of L. Rajakka (deceased), wife of respondent No. 1 and mother of the respondent Nos. 2 and 3, alleging that on 23.5.1996 when the deceased, who was earning Rs. 2,000/- per month as a vegetable vendor, was travelling in a jeep bearing No. AHT 9521 belonging to the respondent No. 4, being driven by respondent No. 5 and insured with the appellant, from Bellampally to Ghanapur, she fell out of the jeep due to rash and negligent driving of the respondent No. 5 and sustained a head injury and died on the spot.
2. Respondent Nos. 4 and 5 remained ex parte. Appellant filed its counter putting respondent Nos. 1 to 3 proof of the averments in the petition, and contending that it is not liable to pay compensation because the deceased was travelling in the jeep, as a fare paying passenger though it is not meant to be used as a taxi.
3. In support of their case, the respondent Nos. 1 to 3 examined two witnesses as RWs. 1 and 2 and marked Exhs. A-1 to A-4. In support of its case, the appellant examined one witness as R.W. 1 and marked Exh. B-1. on its behalf. On the basis of the evidence on record, the Tribunal held on issue No. 1, which relates to the question whether the accident occurred due to rash and negligent driving of respondent No. 5, in favour of the respondent Nos. 1 to 3. On issue Nos. 2 and 3, relating to the quantum and the liability of respondent Nos. 4 and 5 and the appellant, it held that the respondent Nos. 1 to 3 are entitled to Rs. 1,34,000/-from respondent Nos. 4 and 5 and appellant jointly and severally, with interest at 15 percent per annum from the date of petition till the date of payment, and passed an award accordingly. Aggrieved thereby, this appeal is preferred by the insurer of the vehicle involved in the accident.
4. The main contention of Mr. K.L.N. Rao, learned Counsel for the appellant, is that the Tribunal grossly erred in adopting '13' as multiplier when the deceased was aged more than 50 years and was also in error in computing the income of the deceased at Rs. 15,000/- per annum and her contribution to respondent Nos. 1 to 3 at 10,000/- per year, without any evidence on record, and in any event since the terms and conditions in Exh. B-1. show that the insurance does not cover passengers travelling in the vehicle for hire or reward, and since the deceased was travelling in jeep by paying hire, the Tribunal was in error in passing an award against the appellant. The contention of learned Counsel for the respondent Nos. 1 to 3 is that this appeal is not maintainable in view of the ratio in Shankarayya v. United India Insurance Co. Ltd. .
5. The points for consideration in this appeal are:
(1) Whether the appeal filed by the insurer is not maintainable? (2) To what compensation, if any, are the respondents entitled?
Point No. 1:
6. In Shankarayya case (supra), it is held that the Insurance Company is not entitled to file an appeal on merits of the claim before the High Court. The driver and owner of the vehicle involved in the accident in this case chose to remain ex parte before the Tribunal and have also not preferred an appeal against the award passed by the Tribunal. Recently the Apex Court in United India Insurance Co. Ltd. v. Bhushan Sachdeva , after referring to Sections 170 and 173 of the Motor Vehicles Act, 1988 ('the Act') held that it is open to the Insurance Company to invoke the right under Section 173 of the Act to file an appeal if the insured had failed to appeal against the award passed against him. In view of the said decision of the Supreme Court, since the insured did not prefer an appeal against the award of the Tribunal, the contention of the learned Counsel for the respondents that the appeal filed by the Insurance Company is not maintainable has no force, and so I hold that the Insurance Company is entitled to file the appeal. Point is answered accordingly.
Point No. 2:
7. Exh. A-1, F.I.R., is registered on the complaint given by Lingampally Venkatesam, son of respondent No. 1. Since in column 6 Exh. A-2 (inquest Panchnama), it is stated that the deceased was the first wife of the respondent No. 1 and that respondent No. 1 has another wife by name Yellama and since in column No. 1-B of Exh. A-2 Lingampally Venkatesam, who gave Exh. A-1 is shown as the son of the sister of the deceased, it can be taken that the said Venkatesam is the step-son of the deceased. In column No. II of Exh. A-2 the deceased was described as a coolie aged about 60 years. The entry in column No. 3 of Exh. A-3 (post-mortem report) relating to the age of the deceased is not decipherable but appears as 50 years. It could be 56 or 58 also. Since the Tribunal basing on the entry in Exh. A-3 only, ignoring Exh. A-2, held that the deceased was aged about 50 years, and since Exh. A-2 preceded Exh. A-3, the age of the deceased mentioned in Exh. A-2 should have preference to the indecipherable entry relating to the age of the deceased in Ext. A-3. Significantly respondent No. 2, who was examined as a witness No. 3 at the time of inquest is described as a person aged about 35 years, but he described himself as person aged about 25 years in the petition. The age of the respondent No. 1 shown in the petition cannot be taken to be true because from his photograph affixed to the petition he appears to be aged more than 60 years. Since the age of the deceased was shown as 60 years in Exh. A-2 and since the age shown in Exh. A-3 is not very clear and since no independent evidence regarding the age of the deceased was adduced by respondent Nos. 1 to 3, the deceased can be taken as aged more than 55 years at the time of her death.
8. The evidence of P.W. 2 that he has witnessed the accident cannot be accepted, because his name is not shown as a witness to the accident in Exh. A-2 or in Exh. A-1. Respondent Nos. 1 to 3 did not explain as to how they came to know about the presence of P.W. 2 at the time of accident, when there was nothing on record to show that P.W. 2 was present at the time of the accident. For reasons best known to the respondent Nos. 1 to 3, Venkatesam, son of the respondent No. 1, who gave the report to the police and was also examined as an eye-witness to the accident at the time of the inquest was not examined as a witness before the Claims Tribunal. Since P.W. 1, was examined as a witness at the time of the inquest and since Exh. A-2 (inquest Panchnama) shows that the deceased who was sitting in the back seat of the jeep was thrown out of the jeep, it can prima facie be taken that the accident occurred due to rash and negligent driving of the driver of the jeep. Since the driver of the jeep against whom an allegation of rash and negligent driving is made, and the owner also, chose to remain ex parte, it can be taken that the accident occurred due to rash and negligent driving of the driver of the jeep.
9. Exhs. A-1 and A-2 do not show that the deceased boarded the jeep at the place where accident occurred. In fact the averments in Exh. A (F.I.R.) clearly show that the deceased boarded the jeep somewhere else and came to the place of accident in the said jeep. The case of respondent Nos. 1 to 3, and the evidence of P.W. 1, that the deceased was a vegetable vendor cannot be believed or accepted because if the deceased was a vegetable vendor, she would not have been described as a coolie in Exh. A-2 (inquest Panchnama) where P.W. 1 also was examined. Therefore, it has to be taken that the deceased was only a coolie but not a vegetable vendor. Whether the deceased was a vegetable vendor or coolie can be of no relevance for deciding this appeal because, from the evidence on record, it is clear that the respondent No. 1, who is the claimant No. 1 has another wife and has another son through his other wife. Therefore, the respondent No. 1, i.e., the husband of the deceased cannot be said to be dependent on the earnings and/or services of the deceased alone, because he has another wife to look after his needs. The respondent Nos. 2 and 3 are the sons of the deceased. As stated earlier, the respondent No. 2 described himself as person aged 35 years at the time of inquest. So he does not depend on the services or earnings of the deceased, respondent No. 3 is described as a person aged 17 years in the petition, which may not be his correct age. Even assuming that the respondent No. 3 was aged 17 years and was a minor at the time of the death of the deceased, he could be said to be dependent on the earnings of his parents till such time as he attained the age of majority only. Therefore, in the death of the deceased, respondent Nos. 1 to 3 cannot be said to have suffered monetary loss. Even assuming that the deceased was earning about Rs. 50/- per day, or Rs. 18,000/- per year her contribution to respondent Nos. 1 to 3 can at best be only Rs. 10,000/- per year, because she may not go to work on all the days in the year. Since age of the deceased was fixed above 55 years, the multiplier can be fixed at 6.5 in view of Bhagawan Das v. Mohd. Arif 1987 ACJ 1052 (AP). So the pecuniary damages payable to the respondents due to the death of the deceased would come to Rs. 10,000/- x 6.5 = Rs. 65,000/-. As held in Yerra Varalakshmi v. M. Nageswara Rao 1988 ACJ 354 (AP), in every case of a fatal accident, a minimum compensation of Rs. 15,000/- should be awarded towards non-pecuniary damages. Keeping in view the income of the deceased, the non-pecuniary damages can be fixed at Rs. 25,000/-. Since the respondent No. 1 lost his wife though he has a second wife, he can be awarded Rs. 6,000/-towards loss of consortium. Thus respondent Nos. 1 to 3 are entitled to Rs. 65,000/- + Rs. 25,000/- + Rs. 6,000/- = Rs. 96,000/- as compensation due to death of the deceased.
10. If the Table in the Second Schedule of the Act is applied, since the age of the deceased fixed as more than 55 years, the multiplier would be '8' and since income of the deceased is fixed as Rs. 18,000/- per year, the compensation, as per the Table in Second Schedule of the Act would be Rs. 1,44,000/-. As per the note appended to the Table in fatal accident cases that amount has to be reduced by 1/3rd. So we deduct 1/3rd of Rs. 1,44,000/- the amount comes to Rs. 96,000/-. Therefore, the compensation payable to respondent Nos. 1 to 3 due to death of the deceased would be Rs. 96,000/-.
11. The contention of learned Counsel for the appellant is that since the deceased was travelling in the jeep as a fare paying passenger and since the insurance does not cover the liability of the fare paying passengers, the appellant cannot be made liable for compensation to respondent Nos. 1 to 3. The Supreme Court in New India Assurance Co. Ltd. v. Kamla I (2002) ACC 346 : 2001 ACJ 843 (SC), held that when a valid insurance policy has been issued in respect of a vehicle, the burden is on the insurer to pay third parties whether or not there has been any breach or violation of the policy conditions, but the amount so paid by the insurer to the third parties can be allowed to be recovered from the insured, if there is a violation of the terms of the policy of insurance. In this case, as per Exh. B-1.read with the evidence of R.W. 1, appellant insurer is not liable to pay compensation in respect of passengers carrying in the jeep for hire or reward. The deceased, a stranger to the owner and driver of the vehicle, was travelling in the jeep, as seen from Exhs. A-1 to A-2, with other passengers. So it is clear that the jeep in which the deceased was travelling was being used as a taxi. Therefore, there is a violation of the terms of the policy by the insured, and so the appellant after paying the amount of compensation payable to respondent Nos. 1 to 3 can recover the said amount from the insured, i.e., the owner of the vehicle. So, I hold that respondent Nos. 1 to 3 are entitled to Rs. 96,000/- from respondent Nos. 4 and 5 and the appellant. Point is answered accordingly.
12. In the result, the appeal is allowed in part. The award of the Tribunal is modified and an award is passed for a sum of Rs. 96,000/- (Rupees ninety-six thousand only) with interest at 9 per cent per annum from the date of petition till date of deposit into Court with proportionate costs against the appellant and respondent Nos. 4 and 5. The rest of the claim of the respondent Nos. 1 to 3 is dismissed. From out of the said amount, respondent No. 1 is entitled to Rs. 36,000/- (Rupees thirty-six thousand only) and interest thereon and respondent Nos. 2 and 3 are each entitled to Rs. 30,000/- (Rupees thirty thousand only) and interest thereon. Appellant is entitled to recover the amount paid by it to respondent Nos. 1 to 3 from the owner, i.e., respondent No. 4.