Andhra HC (Pre-Telangana)
Reliance General Insurance Co. Ltd Rep. ... vs T.Laxman Goud And Others on 4 December, 2014
Author: M.Seetharama Murti
Bench: M.Seetharama Murti
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
M.A.C.M.A.Nos.2967 of 2014
04-12-2014
Reliance General Insurance Co. Ltd rep. by its Manager...Appellant
T.Laxman Goud and others.... Respondents
Counsel for the appellant:Sri T.Mahender Rao
Counsel for Respondents:Sri K.Harimohan Reddy
<Gist :
>Head Note:
? Cases referred:
2001(1) ALT 495 (D.B)
2006 ACJ 855
2001(6) ALD 844 (DB)
2011 (2) ALD 3
2005 (4) ALT 503
2007(2) ALT 503
2010 (6) SCJ 886
2001(8) SCC 197
2009 ACJ 1298
2014 ACJ 1565= 2014(6) SCALE 55
(2013) 9 SCC 54
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
M.A.C.M.A.Nos.2967 of 2014 & 3060 of 2014
COMMON JUDGMENT:
These two civil miscellaneous appeals under Section 173 of the Motor Vehicles Act (the Act for short), one filed by the 2nd respondent-insurance company and the other by the claimants arise out of an award dated 13.12.2013 of the learned Chairman, Motor Accidents Claims Tribunal-cum-XIV Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. Therefore, both the appeals are heard together and are being disposed of by this common judgment.
2. The parties in these appeals shall hereinafter be referred to as the claimants, the owner-cum-insured of the crime vehicle and the insurance company for convenience and clarity.
3. I have heard the submissions of the learned counsel for the claimants and the learned counsel for the insurance company. None appeared for the owner/insured as no notice was served on him; and both the learned counsel had stated that in these appeals, no notice is necessary to the said respondent, in view of the Division Bench judgment of this Court in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma and others .
4. I shall first advert to the contentions of both the sides in these two appeals to underscore the scope and ambit of the contentions and then precisely deal with the relevant issues involved in the appeals.
5. The claimants had filed their appeal being not satisfied with the quantum of compensation awarded to them. The insurance company had filed its appeal raising broadly two issues, namely, one concerning the negligence and the other concerning the excess award of compensation and its liability to pay the same.
6. Accordingly, it is necessary to only deal with the following principal issues which fall for determination in these appeals.
1) Whether, as contended by the claimants, the pleaded accident had occurred resulting in the death of the wife of the 1st claimant solely on account of the rash and negligent driving of the lorry bearing Registration Number AET 9365, by its driver?
2) Whether, as contended by the insurance company, the accident had occurred solely on account of the rash and negligent driving of the motor cycle bearing Registration No.AP 11 P 3018 by its driver?
3) Whether the accident was due to the contributory/composite negligence of the drivers of both the said lorry and the motor cycle as alternately contended by the insurance company?
4) Whether the compensation awarded is not a just and fair compensation? And, if so, what shall be the just and fair compensation to be awarded to the claimants?
5) To what relief?
7. ISSUE Nos.1 to 3:
7. (a) The case of the claimants in regard to the manner of accident is that on 05.07.2011 at about 9.30 AM, while the 1st claimant and the deceased were travelling from Meerpet to Shakthinagar on a motor cycle being driven slowly by the 1st claimant on the left side of the road, and on the way, when they had reached Balaji Marble Shop, one lorry bearing Registration No. AET 9365 being driven by its driver at a high speed and in a rash and negligent manner came from the opposite direction and had dashed their motor cycle and as a result, the 1st claimant and the deceased fell down and had sustained injuries and that the deceased had succumbed to the injuries on the way to the hospital and that on a report, the Station House Officer, Meerpet Police Station had registered a case in Crime No.324 of 2011 against the driver of the lorry for the offence punishable under Section 304-A of the IPC. Per contra, the defence of the insurance company is in the nature of general denial. Its specific case is that the police had registered a case against the driver of the lorry and that as the accident had occurred due to sole/contributory negligence of the rider of the motor cycle, the claim against the company is not maintainable and that the petition is bad for non-joinder of the owner and insurer of the motor cycle and that the claimants are put to strict proof that the driver of the lorry held a valid driving licence to drive the vehicle at the time of the accident and that the vehicle is having permit and other vehicular documents and that there are no violations.
7. (b) The 1st claimant, who was driving the motor cycle at the time of the accident had deposed in line with the pleadings and had maintained his stand in his cross-examination and in his evidence, the certified copies of the FIR, the Final Report, the Inquest report of the deceased and the PM examination report of the deceased were exhibited as exhibits A1 to A4. The contents of the said documents sufficiently corroborate the version of PW1 that the accident had occurred solely on account of the rash and negligent driving of the driver of the lorry and that in the accident, the deceased had sustained injuries and had succumbed to the injuries on the way to the hospital. Though the insurance company had examined RW1, who is an officer of its company and RW2, a Junior Assistant, working in the office of the RTA, South Zone, Hyderabad, both the said witnesses are not eye witnesses to the accident. No points are elicited in the cross-examination of PW1 to discredit his evidence, which is well corroborated by the documentary evidence and which had remained un-refuted as no evidence in rebuttal was adduced by the insurance company by examining any eye witness to the accident. Therefore, the 1st line of contention of the insurance company that the 1st claimant was solely responsible for the accident cannot be countenanced.
7. (c) Coming to the contention of the insurance company that in the accident two vehicles were involved and that the accident was a result of a head-on collision between the two vehicles and that therefore, it must be held that the accident was due to the contributory/composite negligence of the drivers of both the vehicles, it is to be first noted that there is no evidence adduced by the insurance company in support of the plea that the accident was due to contributory or composite negligence of the drivers of both the vehicles.
It is necessary to mention that the learned counsel for the insurance company had placed reliance on a decision in Agnuru Jaya Ramulu v. Mohammed Afzal Miyan and had contended that whenever there is a head-on collision between two vehicles, such a head-on collision takes place only when the drivers of both the vehicles are negligent and that therefore, it must be inferred that the 1st claimant had also contributed to the accident and that the accident was due to the contributory/composite negligence of the drivers of both the vehicles. Be it noted that the insurance company did not even file the sketch of the scene of accident, if any, prepared by the police in support of its contention. Further, a Division Bench of this Court in Karri Nagapadma Sridevi and another vs. Oriental Fire and General Insurance Company Limited, Kakinada and others had held that contributory negligence is a matter of proof and not of assumption. In the decision in the case of United India Insurance Co. Ltd. vs. Chendri Ramaiah and others , this Court having referred to the earlier precedents had finally held to the following effect: It follows that finding as to negligence or contributory negligence has to depend on the evidence on record and it is only in the absence of any evidence on record, the question of drawing presumptions under law or on facts can be resorted to. Evidence on record cannot be brushed aside placing reliance on probabilities and presumptions. Evidence in that particular case is the first criterion while considering the issue regarding negligence or contributory negligence. Thus, in the case on hand, though it was sought to be urged that the PW1 had also contributed to the accident, no evidence was adduced in support of the said plea. On a conspectus of the facts, the evidence and the law, it can safely be held that the Tribunal was correct in holding that the pleaded accident had occurred resulting in the death of the deceased due to the rash and negligent driving of the lorry by its driver. Therefore, there is no merit in the first set of contentions of the insurance company and the said contentions are accordingly rejected as having no merit.
8. ISSUE No.4:
8. (a) The next issue is in regard to the fair and just amount of compensation to be awarded to the claimants. The insurance company contends that the compensation awarded is on the higher side. Whereas, the claimants contend that the compensation awarded is inadequate. The deceased is the wife of the first claimant and the mother of the claimants 2 and 3, who are her minor son and minor daughter, respectively aged 15 and 13 years, as on the date of the claim petition.
8. (b) The first step is to ascertain the multiplicand. Therefore, the income or notional income of the deceased should be first determined. The case of the claimants is that the deceased was aged 30 years and was hale and healthy at the relevant time and that she was earning Rs.12,000/- per month on her private employment and also on her tailoring work and that she was contributing the said income for the maintenance of the family and that all the claimants are dependant on her earnings. In the crime record, the occupation of the deceased was not mentioned. PW1 testified that his wife is working in PV Electro Plating Works as a Polisher and was drawing a consolidated salary of Rs.9,000/- and that she was also doing tailoring work and that she is highly experienced in her profession. He did not specifically state in his pleadings the income of his wife from tailoring. No customer of his wife was examined to establish that tailoring was her occupation and that she was earning income on tailoring work. Exhibit A5 is stated to be her Salary Certificate and exhibit A6 is her original bank statement issued by Bank of India, L.B. Nagar Branch. Her pay slips were not exhibited. Neither her Employer nor a representative of her employer was examined and the exhibit A5, Salary Certificate was not proved.
Further, in exhibit A6, bank statement, the occupation of the deceased was not mentioned and there are no entries uniformly showing the credit of her salary at the rate of Rs.9,000/- per month or at any other fixed figure. On the credit side, there are about twelve transactions of credits between Rs.1,000/- to Rs.2,000/- for the period from 01.01.2011 to the 1st week of June, 2011. There is one credit of Rs.12,000/- during that period and the total credits up to 10th June, 2011 work out to Rs.27,528/-. The accident had occurred on 05.07.2011. Therefore, the said document is not helpful to determine the occupation and income of the deceased. Therefore, there is no acceptable merit in the contentions of the claimants that the deceased is an earning member and was earning substantial income. In the light of the evidence on record, the tribunal had considered the occupation of the deceased as a house wife and had determined her notional income at Rs.4,500/- per month and further added to the said income 50% towards future prospects and had then deducted 1/3rd towards personal expenses of the deceased and thus, finally determined the multiplicand as Rs.54,000/-. It is first contended on behalf of the insurance company that in case of a house wife, after determining her notional income no amount shall be added towards future prospects. This contention cannot be countenanced as no such exclusion and distinction is possible in case of a house wife, in the absence of any such guidance in the precedents. Even in the case of a deceased house wife, where the tribunals are fixing the notional income, the tribunals are deducting 1/3rd or such portion, as may be applicable, towards personal and living expenses of the deceased. Therefore, there is justification in adding some amount towards future prospects depending upon the age of the deceased. Further, placing reliance on a decision in New India Assurance Company Limited v. Nanepalli Swamynaidu , it is next contended that in the cited case, the income of the deceased house wife was determined at Rs.15,000/- per annum and therefore, the same yardstick must be applied in the present case. In the cited case, the accident had taken place on 13.10.2002. Further, in National Insurance Company Limited v. R.Govinda Raju , also relied upon by the learned counsel for the insurance company, the income of the deceased house wife was taken as Rs.3,000/- per month in the absence of evidence as to her alleged earnings at the rate of Rs.5,000/- per month from a road side hotel business. In this cited decision, the accident had taken place on 25.05.2003. But, in the instant case the accident had occurred on 05.07.2011, i.e., after a period of eight years from the said date. The Hon'ble Supreme Court in the decision in the case of Arun Kumar Agarwal and another V. National Insurance Company and others considered the following question:
What should be the criteria for determination of the compensation payable to the dependents of a woman who dies in a road accident and who does not have regular source of income is the question which arises for determination in this appeal filed against the judgment of the Division Bench of Allahabad High Court which declined to enhance the compensation awarded to the appellants by Motor Accident Claims Tribunal.
The facts of the cited case are as under: The wife of the 1st appellant had died in a road accident when the car driven by the 1st appellant was hit by a truck. The appellants had filed a claim petition under the provision of Section 166 of the Motor Vehicles Act for award of compensation. The claimants had pleaded that the deceased was 39 years of age at the time of the accident and that due to her death, the life of 1st appellant had become miserable in as much as being a Government servant he was unable to look after his minor child. They had further pleaded that the deceased used to look after the domestic affairs of the family and that both the appellants have been deprived of the care, love and affection of the deceased and the comfort of her company. The Hon'ble Supreme Court having referred to the ratio in the case of Lata Wadhwa V. State of Bihar held as follows:
It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e., husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of house wife/mother. In that context, the term 'service' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependents cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.
In view of the precedential guidance, taking into consideration the services of the house wife and evaluating such services in terms of money the Tribunals/Courts are fixing the notional income of the house wives taking also into consideration the special circumstances, if any, like some of the claimants being minor children and unmarried daughters. In the light of the legal position obtaining, the facts and the evidence on record, in the well-considered view of this Court, the tribunal was justified in fixing the multiplicand at Rs.54,000/- per annum in the instant case.
8. (c) Coming to the aspect of the multiplier, at the out set it needs to be mentioned that the deceased was aged 30 (Thirty) years as per the pleadings. In the crime records, like the inquest report and the PM examination report, the age of the deceased was mentioned as 30 (Thirty) years. Thus, the said age 30 (Thirty) years can be accepted as the age of the deceased at the time of the accident. The first claimant is the husband aged 34 years and the petitioners 2 and 3, who are the minor son and minor daughter, are aged 15 and 13 years respectively of the deceased, Kalavathi. The ages of the claimants are not in dispute. The multiplier should be chosen with reference to the age of the deceased and as per the column number 4 of the table given in the decision in Sarla Verma and Others vs. Delhi Transport Corporation and another .
Keeping in view the facts and circumstances of this case and having regard to the age of the deceased and the probable period of her active career, the appropriate multiplier is fixed at `17 (Seventeen).
8. (d) The above loss of annual dependency of Rs.54,000/- (Rupees Fifty Four Thousands Only), if multiplied by the appropriate multiplier `17 (Seventeen) fixed supra, the compensation under the head `loss of dependency comes to Rs.9,18,000/- (Rupees Nine Lakhs Eighteen Thousands Only).
8. (e) Coming to the other amounts of compensation awarded by the Tribunal under the conventional heads, it is to be noted that the Tribunal had awarded Rs.1,00,000/- towards love and affection and Rs.25,000/- towards funeral expenses and had thus awarded a total compensation of Rs.10,43,000/. The tribunal did not award any compensation towards loss of consortium to the 1st claimant, who is the husband of the deceased. The learned counsel for the claimants having placed reliance on the decisions of the Supreme Court had contended that the tribunal ought to have awarded Rs.1,00,000/- each under the heads `loss of love and affection, loss of consortium and `loss of estate and that the amounts awarded by the Tribunal are not in accordance with the ratios in the precedents. In the decision in Anjani Singh and Ors. V. Salauddin & Ors , the Honble Supreme Court by following the ratio in a three Judge Bench decision in Rajesh and Ors. V. Rajbir Singh and Ors had awarded in that case Rs.25,000/- towards funeral expenses and Rs.1,00,000/- each towards loss of love and affection for the children and loss of consortium to the wife of the deceased. Now it is pertinent to refer to the decision in the case of Rajesh and Others vs. Rajbir Singh and others [11 supra], wherein, the Honble Supreme Court held to the following effect: Funeral expenses does not mean the fee paid in the crematorium or the fee paid for the use of space in the Cemetery and that there are many other expenses in connection with the funeral, besides expenses associated with religious practices and conventions and all those religious practices and conventions are very expensive. The Honble Supreme Court also held that it would only be just and reasonable that the Courts award at least Rs.1,00,000/- (Rupees One Lakh Only) towards loss of consortium. In the above precedent the Honble Supreme Court had further awarded Rs.1,00,000/- (Rupees One Lakh Only) towards loss of care and guidance towards minor children while awarding Rs.25,000/- (Rupees Twenty Five Thousands Only) towards funeral expenses. In the above precedent, the petitioners are the widow and the minor children of Bijender Sing, the deceased, who was aged about 33 years at the time of accident. Following the precedential guidance, a sum of Rs.1,00,000/- (Rupees One Lakh Only) is awarded to the first claimant towards loss of consortium and Rs.1,00,000/- (Rupees One Lakh Only) is awarded towards loss of care and guidance for minor children; and Rs.25,000/-(Rupees Twenty Five Thousands Only) is awarded towards funeral expenses. Further, Rs.5,000/- (Rupees Five Thousands Only) each is awarded under the two conventional heads loss of estate and transport expenses.
8. (f) Accordingly, the claimants are entitled to the following compensation amounts:
Sl.
No. Head of compensation Amount (in Rs.) (1) Loss of dependency 9,18,000=00 (2) Transport 5,000=00 (3) Loss of consortium 1,00,000=00 (4) Loss of care and guidance for minor children 1,00,000=00 (5) Loss of estate 5,000=00 (6) Funeral expenses 25,000=00 Total 11,53,000=00 (Rupees Eleven lakhs Fifty Three thousands only)
8. (g) Thus, as per the determination supra, the just and fair compensation to which the claimants are entitled to is Rs.11,53,000/-.
However, the Tribunal had awarded compensation of Rs.10,43,000/-. Therefore, it follows that the compensation is enhanced by Rs.1,10,000/-. The enhanced compensation with accrued interest is equally apportioned between the claimants 2 and 3, who are minors. Coming to the rate of interest, in the absence of any cogent evidence adduced by the insurance company in regard to the prevailing rates of interest at the relevant time, the mere contention that the award of interest @ 7.5% is excessive cannot be countenanced and the said rate of interest cannot be considered as excessive in the facts and circumstances of the case. The contention of the claimants that they are entitled to interest @ 9% also cannot be countenanced in the facts and circumstances of the case. The issues are accordingly answered holding that the claimants are entitled to a total compensation of Rs.11,53,000/- instead of Rs.10,43,000/- as determined by the Tribunal.
8. (h) In view of the fact that there are no other contentions, much less valid contentions, urged before this Court to absolve the insurance company from its liability, the insurance company, which is liable to indemnify the owner-cum-insured, is liable to pay the compensation as now awarded to the claimants with interest @ 7.5% per annum simple. The insurance company shall deposit before the tribunal the compensation awarded by the tribunal as per its award, if the same is not already deposited. Further, the insurance company shall deposit before the tribunal, within one month from the date of receipt of a copy of this order, the enhanced compensation with interest @ 7.5% per annum simple from the date of the claimants appeal, i.e., 22.07.2014.
ISSUE No.5:
9. In the result, M.A.C.M.A.No.2967 of 2014 filed by the insurance company is dismissed and M.A.C.M.A.No.3060 of 2014 filed by the claimants is allowed in part, as indicated above. There shall be no order as to costs.
Miscellaneous applications, if any, pending in these appeals shall stand closed.
_____________________ M. SEETHARAMA MURTI, J 04th December 2014