Telangana High Court
Naveetha Rao Takkallapally, vs Manegalla Laxmi, on 12 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
M.A.C.M.A.NOs.303 and 304 of 2023
COMMON JUDGMENT:
Heard Sri T.Mahender Rao, learned counsel for the appellants, Sri S.Chalapathi Rao for respondent Nos.1 to 4 in MACMA No.303 of 2023, Sri A.Ramakrishna Reddy for respondent no.1-insurance company in both appeals.
2. Both the appeals are filed by the driver and owner of the crime vehicle in an accident occurred on 09.09.2020.
3. Since the issue in the above appeals is arising out of the same accident, both the appeals are heard together and disposed of by this common judgment.
4. The claimants in both the appeals filed O.A.No.392 of 2020 and O.A.No.12 of 2021, respectively. MACMA No.303 of 2023 is arising out of O.A.No.12 of 2021 and MACMA No.304 of 2023 is arising out of O.A.No.392 of 2020.
5. The facts leading to filing of Appeals are,
(a) O.P.No.12 of 2021 is filed under Section 166 of Motor Vehicles Act, 1988 by the wife, sons and daughter of the deceased- Manegalla Narsaiah, claiming compensation of Rs.15,00,000/- on account of death of the deceased in a motor vehicle fatal accident.
LNA,J MACMA Nos.303 & 304 of 2023 2
(i) As per the averments of the petition, on 09.09.2020 at about 5.30 p.m., the deceased-Manegalla Narsaiah started from his house Pembarthy to go to his agricultural land through Tangutoor X Roads on his cycle and when he reached the Tangutoor X road of Pembarthy village on NH-163, one Innova Car bearing registration No.TS-03-EV-4668, driven by its driver, who is appellant no.1, in drunken condition dashed against the deceased-M.Narsaiah and also one Thipparapu Narsiah @ Anand, who was going to his village through Tangutoor on his motor cycle bearing registration No.AP-36-AV-4565 and he has also dashed a passenger auto bearing registration No.AP-20-TB02753. As a result of which, both deceased received severe injuries and died on the spot and the inmates of the Auto, namely, Jannu Bhaskar and Krishna received severe injuries. The Police, P.S.Jangaon registered a case in Crime No.282/2020 under Section 304-II IPC against the driver, who drove the crime vehicle in a drunken state rashly and negligently.
(ii) According to the claimants, the deceased was aged about 59 years at the time of accident, hale and healthy and was doing agriculture and earning Rs.10,00,000/- per annum and contributed the same to his family members and claimed Rs.15,00,000/- towards compensation.
LNA,J MACMA Nos.303 & 304 of 2023 3
(b) O.P.No.392 of 2020 is filed under Section 166 of Motor Vehicles Act, 1988 by the wife, daughter and parents of the deceased-Thipparapu Narsaiah alias Anand, claiming compensation of Rs.30,00,000/- on account of death of the deceased in a motor vehicle fatal accident, the details of which are narrated in the preceding paragraph.
6. Respondent no.3-insurance company filed written statement denying all the averments made in the claim petitions and contended that the driver of the crime vehicle was not holding a valid and effective driving license at the time of alleged incident and there is violation of Section 3(1) of M.V.Act and the respondent no.2 who is the owner of crime vehicle is liable for compensation. It is further contended that the Police filed charge sheet against the driver under Sectiond 304(2)(n), 338, 279 of IPC and Section 185 of M.V.Act by stating that he consumed ethyl alcohol, which is evident from RFSL report, as such, the respondent no.3-insurance company is not liable to pay any compensation and the owner is liable to pay compensation.
7. Appellants 1 and 2 herein, who are the driver and owner of crime vehicle, filed written statement denying the allegations made in the claim petitions and contended that amounts claimed by the claimants towards compensation for the death of deceased persons LNA,J MACMA Nos.303 & 304 of 2023 4 is excessive. It is contended that the crime vehicle was insured with the respondent no.3-insurance company and therefore, appellants are not liable to pay any amount. Further, the allegation against the driver that he consumed alcohol at the time of accident is correct.
8. On the basis of the above pleadings, the Court below framed the following issues:
In MVOP NO.392 of 2020:
i) Whether the accident occurred on 09.09.2020 at about 17.30 hours near Tangutoor X Road at Pembarthy village (NH-163) due to rash and negligent driving of driver/R1 of Innova Car bearing No.TS-03-AV-4668, causing the death of the deceased-
Thipparapu Narsaiah.
ii) Whether the respondent no.1 was not holding valid and effective driving license at the time of the alleged incident?
iii) Whether petitioners are entitled for compensation, if so to what amount and from whom?
iv) To what relief ?
In MVOP No.12 of 2021:
i) Whether the accident was occurred due to rash and negligent driving of the vehicle Innova Car bearing No.TS-
03-AV-4668 ?
ii) Whether the petitioners are entitled for the compensation? If so, to what amount and from whom?
iii) To what relief ?
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9. In order to substantiate the case, on behalf of the claimants, P.Ws.1 to 3 were examined and Exs.P1 to A6 were marked in MVOP No.392 of 2020; and in MVOP No.12 of 2021, P.Ws.1 to 3 were examined and Exs.A1 to A9 were marked. On behalf of the insurance company, RWs.1 to 3 were examined and Ex.B1 which is the insurance policy was marked in both MVOPs.
10. The Tribunal, on conclusion of the pleadings and evidence placed on record by the parties, awarded the following compensation amount in respective O.Ps.
Sl.No. O.P.No. Compensation
amount awarded
1 392 of 2020 Rs.18,79,090/-
2 12 of 2021 Rs.10,20,000/-
11. The Tribunal had awarded interest at the rate of 6% per annum from the date of the petitions till the date of realization. The Tribunal further directed the respondent No.3-insurance company to pay the above said awarded compensation amount and later the insurance company is entitled to recover the same from the respondents 1 and 2, who are the appellants herein.
12. During the course of hearing of appeals, the grounds of challenge by the appellants in the present appeals are that the Tribunal had gravely erred in awarding the above compensation amount, payable by the 5th respondent-insurance company herein LNA,J MACMA Nos.303 & 304 of 2023 6 and later to recover the same from the appellants even though the criminal case filed against the driver of the crime vehicle was acquitted by the Hon'ble Assistant Sessions Judge, Jangaon vide judgment dated 12.12.2002 and the said finding of the Tribunal is erroneous. The Tribunal also erred in fastening the liability on the appellants herein even though respondents 1 to 4 herein have clearly stated in their claims petitions that respondent no.5- insurance herein is liable to pay compensation and the said finding of the learned Tribunal is contrary to the pleadings and evidence on behalf of respondents and that too acquittal of the criminal case against the driver of the crime vehicle.
13. The learned counsel for appellants further submitted that Hon'ble Tribunal without framing an issue whether the appellant no.1 herein was driving the Innova Car bearing No.TS-03-EV-4668 in a drunken condition, gravely erred in finding that driver lost consciousness and his senses were inferred intoxicated at the time of accident in the absence of any evidence to substantiate the same.
14. He further submitted that finding of learned Hon'ble Tribunal that appellant no.1 herein drove the vehicle in rash and negligent manner in a drunken state is not supported by any cogent evidence. Therefore, the Tribunal erred in holding that LNA,J MACMA Nos.303 & 304 of 2023 7 appellants herein violated the terms and conditions of the policy and 5th respondent-insurance company has to pay the awarded compensation amounts and recover the same from the appellants herein, which is contrary to the pleadings and evidence adduced on behalf of the respondents 1 to 4 herein.
15. He further submitted that the Tribunal gravely erred in taking the income of the deceased as Rs.10,754/- and Rs.10,000/- in MVOP Nos.392 of 2020 and 12 of 2021, respectively, merely on the basis of an unmarked memo and without any justification evidencing monthly income of the deceased. In support of the contention that income cannot be estimated without any material, the learned counsel for appellants placed reliance on the decisions of Hon'ble Apex Court in State of Haryana and another vs. Jasbir Kaur and others 1 and New India Assurance Co.Ltd., vs. Charlie and another 2.
16. Learned counsel for respondent No.5-insurance company admitted the fact that crime vehicle was duly insured with the insurance company as on the date of accident, but contended that the insurance company is not liable to indemnify the insured as 1 2003 ACJ 1800 2 2005 ACJ 1131 LNA,J MACMA Nos.303 & 304 of 2023 8 the driver of crime vehicle was driving the same under the influence of alcohol.
17. Learned counsel for 5th respondent submitted that the driver of the crime vehicle was charge sheeted for the offence under Sections 304-II, 304-A, 308, 279 IPC and Section 185 of MV Act showing the driver consumed ethyl alcohol at the time of accident. He further submitted that when there was a violation of the terms and conditions of policy, insurance company is not liable to make any payment in respect of accident. He further submitted that since the insurance is in force as on the date of accident and the claimants are third parties, the insurance company is liable to compensate them initially, later entitled to recover the same from the appellants. He submitted that Hon'ble Tribunal had rightly came to conclusion that insurance is liable to pay the compensation initially and then entitled to recover the same from the driver and owner of the crime vehicle.
18. Learned counsel for the 5th respondent-insurance company relied on the decision of Hon'ble High Court of Kerala at Ernakulam in Muhammed Rashid @ Rashid vs. Girivasan E.K. and others [OP (MV) No.646 of 2014, dated 30.01.2023].
LNA,J MACMA Nos.303 & 304 of 2023 9 Consideration :
19. With regard to the main contention raised by the learned counsel for appellants about fastening of the liability on the appellants, the Tribunal, on appreciation of the evidence and material placed on record, held that the driver of the crime vehicle was driving it in a drunken state, amounts to violation of terms and conditions of Ex.B1-policy by its owner. However, as per the conditions contained in Ex.B1-policy, drunken drive exonerate insurance company for personal accident cover of the owner and driver, but not the third parties. In the present cases, the alcohol percentage found in the blood sample was 273 and under Section 185 of MV Act, the permissible limit is only 30 Mg for 100 ml. Considering the same, the Tribunal, by following the decision of Traffic Police Lodhi Colony, New Delhi vs. Sanjeev Nanda, popularly known as BMW Car, held that policy conditions were violated by the appellants and therefore, they are liable to pay compensation.
20. Further, the Tribunal directed the insurance company to pay the compensation amount at the first instance and recover the same from the driver and owner of the offending vehicle in view of LNA,J MACMA Nos.303 & 304 of 2023 10 the decision of National Insurance Co. Ltd., vs. Swaran Singh and others 3,
21. In Shamanna and another vs. Divisional Manager, Oriental Insurance Company Limited and others 4, the Hon'ble Apex Court held as under:
"13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 :
(2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] followed in Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] and Laxmi Narain Dhut [National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142] cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment [Shamanna v. Laxman, 2016 SCC OnLine Kar 6928] of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored."
22. In Muhammed Rashed @ Rashid (supra), the Hon'ble High Court of Kerala at Ernakulam, by following the decisions of Hon'ble Apex Court in New India Assurance Co. v. Kamala & Others 5, 3 (2004) 3 SCC 297 4 (2018) 9 SCC 650 5 (2001) 4 SCC 342 LNA,J MACMA Nos.303 & 304 of 2023 11 Oriental Insurance Company Limited v. Nanjappan 6 and the decision of Hon'ble Division Bench of this Court in Bajaj Allianz General Insurance Co.Ltd. rep. by its Deputy Manager (Legal) v. Manju Devi and others 7, held as under:
"22. Ext.B1, the insurance policy stipulates the condition that the insurance company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. Since the offending vehicle was validly insured with the 3rd respondent-insurance company and the appellant/claimant is a third party, the company is liable to compensate him initially, but the company is eligible to recover the same from respondents 1 and 2."
23. With regard to the further contention of the learned counsel for appellants that even though there was a clear acquittal in criminal case filed against the driver of the crime vehicle, the Tribunal fastening the liability on the driver and owner of the crime vehicle on the ground of driver of the crime vehicle driven the same under the influence of the alcohol at the time of the accident, is erroneous and contrary to law.
24. On perusal of record, it appears that the Hon'ble Tribunal passed orders on 06.12.2022, whereas the Assistant Sessions Judge, Jangaon, passed the judgment acquitting the driver of the crime vehicle involved in the accident, on 12.12.2022. The present appeals are filed on 06.03.2023. Therefore, the contention of 6 (2004) 13 SCC 224 7 2014 SCC Online AP 232 LNA,J MACMA Nos.303 & 304 of 2023 12 learned counsel for appellants that even though the driver of the crime vehicle i.e., appellant no.1 herein, acquitted in criminal case, the Tribunal failed to appreciate the evidence of the appellant no.1 as RW.1 that he was prepared to prove his non-involvement in the alleged accident is not tenable.
25. Provision of claiming compensation under the Motor Vehicle Act undoubtedly is a welfare legislation. It would not be the requirement of law to have the standard of evidence and proof strictly in terms of the provisions of the Indian Evidence Act. There is a great element of the preponderance of probability which has to be applied in some cases, more particularly, in fatal accident cases. Therefore, mere acquittal in accidental case is not a ground to exonerate the driver of the crime vehicle from civil liability, since offence has to be established beyond reasonable doubt, therefore, there is no merit on the said contention.
26. In the light of above decisions, in considered view of this Court, the Ho'n'ble Tribunal had rightly fastened the liability on the appellants and further directed the insurance company to first satisfy the compensation amount awarded by Tribunal and thereafter, the insurance company is entitled to recover the same from the owner of the offending vehicle i.e., appellants herein.
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27. With regard to the quantum of monthly income of the deceased, insofar as the income of the deceased in MACMA No.303 of 2023 is concerned, claimants contended that deceased was an agriculturist and earning Rs.10,00,000/- per annum. However, claimants failed to place any material evidencing that deceased has engaged in an agricultural activity and was earning Rs.10,00,000/- per annum or any document evidencing ownership of agricultural land. The Tribunal had taken Rs.10,000/- per month as monthly income of the deceased without there being any evidence, proof on record, which is unsustainable and therefore, requires modification.
28. Insofar as the income of the deceased in MACMA No.304 of 2023 is concerned, claimants contended that deceased was working as construction worker/mason work and placed on record the Registration Card vide No.WAR/LIN/ALO.THOR-2805 issued by Andhra Pradesh Building and Other Construction Workers Welfare Board, wherein the annual income of the deceased was shown as Rs.50,000/-. However, the Tribunal considered the monthly income as Rs.10,754/- basing on memo, which is contrary to certificate issued by the above Welfare Board and further, without any justification evidencing monthly income of the LNA,J MACMA Nos.303 & 304 of 2023 14 deceased. Therefore, the same is not sustainable and it requires modification.
29. In Ramachandrappa vs. Manager, Rayal Sundaram Alliance Insurance Company Limited 8, the Hon'ble Apex Court at paragraphs-13 & 14 observed that, "13..........appellant was aged about 35 years and was working as coolie and was earning Rs.4,500/- per month at the time of the accident.
......
The appellant was working as a coolie and, therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.
"14..........the Hon'ble Apex Court observed that the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time."
30. The Motor Vehicle Act is a beneficial legislation aimed at providing relief to the victims or their families, therefore, in view of the judgment of Hon'ble Apex Court in Ramachandrappa (supra), this Court is of the considered view that MACT had rightly taken the monthly salary of the deceased as Rs.4,500/-, even in the absence of any evidence.
8 (2011) 13 SCC 236 LNA,J MACMA Nos.303 & 304 of 2023 15
31. In view of the above decision, the monthly income of the deceased in both the appeals can be taken as Rs.4,500/-.
32. With regard to award of compensation towards future prospects, the claimants in MACMA No.303 of 2023 are entitled to addition of 10% of the income of the deceased (since the deceased was self-employed and was aged 59 years as on the date of accident) and the claimants in MACMA No.304 of 2023 are entitled to addition of 40% (since the deceased was self-employed and was aged 30 years as on the date of accident) of the income of the deceased towards loss of future prospects in view of paragraph- 59.4 of the decision of Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others 9. Further, the claimants are entitled to Rs.40,000/- each toward consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses and also Rs.15,000/- towards transport charges.
33. In view of the above, the compensation amounts are recalculated as under:
Sl. Head Compensation awarded Compensation awarded No. in MACMA No.303 of in MACMA No.304 of 2023 2023 1 Income Rs.54,000/- (Rs.4,500/- Rs.54,000/- (Rs.4,500/-
per month) per month)
2 Future prospects Rs.5,400/- (i.e., 10% of Rs.21,600/- (i.e., 40% of
the income) the income)
3 Deduction towards Rs.14,850/- (i.e., one- Rs.18,900/- (i.e., one-
personal expenses fourth of Rs.54,000/- + fourth of Rs.54,000/- +
Rs.5,400/-) Rs.21,600/-)
9
(2017) 16 SCC 680
LNA,J
MACMA Nos.303 & 304 of 2023
16
4 Total Income Rs.44,550/- Rs.56,700/-
(i.e., Rs.54,000/- + (i.e., Rs.54,000/- +
Rs.5,400/- (-) Rs.14,850/-) Rs.21,600/- (-) Rs.18,900/-)
5 Multiplier 09 17
6 Loss of dependency Rs.4,00,950/- (i.e., Rs.9,63,700/- (i.e.,
Rs.44,550/- x 9) Rs.56,700/- x 17)
7 Compensation for Rs. 1,60,000/- Rs. 1,60,000/-
loss of consortium
(Rs.40,000/- x 4)
8 Loss of estate Rs. 15,000/- Rs. 15,000/-
9 Funeral expenses Rs. 15,000/- Rs. 15,000/-
10 Transport charges Rs. 15,000/- Rs. 15,000/-
Total compensation Rs. 6,05,950/- Rs.11,68,700/-
to be paid :
34. In the result, the Appeals are partly allowed and the impugned awards of the Tribunal insofar as compensation amounts are concerned, are modified. Insofar as direction of the Tribunal directing the respondent No.5-insurance company to first pay and thereafter recover the compensation amount from the driver and owner of the crime vehicle i.e., appellants, is affirmed.
The above compensation amounts shall carry interest @ 6% per annum from the date of the claim petitions till the date of realization. There shall be no order as to costs.
35. Pending miscellaneous applications if any shall stand closed.
___________________________________ LAXMI NARAYANA ALISHETTY,J Date: 12.12.2023 kkm