Dismissed

Thimmireddy Manohar Reddy and Anr. v. T.Balaraj and Anr.

Andhra Pradesh HC5 Mar 2021MACMA/2123/2009

Case brief

AI extract

What is this about?

This common judgment dismissed appeals by an insurance company and the parents of a deceased motor accident victim. The court held the insurance company failed to prove the vehicle was hired contrary to policy terms. It also upheld the Tribunal's 50% deduction for personal expenses of an unmarried deceased. The claim for loss of future prospects was dismissed as not pleaded.

What did the court decide?

Both appeals filed by the insurance company and the claimants were dismissed; no order as to costs.

Thimmireddy Manohar Reddy and Anr. Vs T.Balaraj… — Motor Accident Claims | Andhra Pradesh HC (2021)

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THE HON'BLE Ms. JUSTICE J. UMA DEVI

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M.A.C.M.A. Nos.2123 OF 2009 & 998 OF 2012.

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COMMON JUDGMENT:

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Since these appeals are filed as against the award dated 06.05.2009, passed by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Rayachoti, both are heard together and are being disposed of by passing a common judgment.

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The Chairman of the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Rayachoti before whom the claim for compensation was laid by the parents of the deceased T.Sudhakar Reddy alleging that during the course of travelling of the deceased in Tata Sumo bearing No.A.P. 28 L 4300 along with his co-employees, the said Tata Sumo was driven by its driver in a rash and negligent manner and that when it reached near the turning point at Narasariapalli village of Nalgonda District, met with an accident and thereby the instantaneous death of the deceased T. Sudhakar Reddy, who was aged about 24 years took place. Though a claim for compensation of Rs.6,25,000/- was made by his parents, the Court below awarded compensation of Rs.4,24,500/to them and directed the insurance company and the owner of the offending vehicle to pay the said compensation amount together with interest at the rate of 7.5% p.a from the date of filing of the petition till date of realisation along with proportionate costs etc.

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The insurance company having been aggrieved by the award so passed has filed M.A.C.M.A.No.998 of 2012; and that the claimants who are the parents of the deceased have filed M.A.C.M.A.No.2123 of 2009 seeking enhancement of compensation.

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The insurance company’s contentions to claim exemption from payment of compensation are precisely stated as under:(a) The insurance company contended that the evidence given by P.W.3 one of the employees of the company where the deceased

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was working, was discarded totally though he made the admission that the offending vehicle was taken on hire by the company to go to Nagarjuna Sagar on official duty. Despite the fact that the insurance company has proved its contention that the offending vehicle was taken on hire in violation of the terms and conditions of the policy, the Tribunal had fastened the liability as against it and thus the award impugned is against to the evidence on record. Thus, the main contention of the appellant insurance company is that though the pleaded case of the insurance company that the vehicle was hired by its owner in deviation of the terms and conditions of the policy is proved, liability is fastened as against it erroneously and thus the award impugned is contrary to law and the evidence on record and the probabilities of the case.

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(b) In addition to the ground mentioned above, some other grounds are urged by the insurance company, but this being the preliminary or main ground urged by it to claim that the liability is fastened erroneously as against it, this Court is expected to answer as to “whether the award impugned is contrary to the evidence on record as has been contended by the insurance company”?

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I have given the anxious consideration to the arguments advanced and also to the evidence on record. The insurance company’s main contention in the present appeal to claim exemption from payment of compensation is, that against to the terms and conditions in the policy, the vehicle in question was given on hire to the employees of Aster Industries Private Limited where the deceased was working for taking the staff of the said company to Nagarjuna Sagar. The claimants examined P.W.2 Doddi Raju, co-employee of the deceased T.Sudhakar Reddy and that the said witness in his evidence deposed that his co-employee Manda Sreenivasulu brought the vehicle belonged to one I. Balaraju, the 3^rd respondent in M.A.C.M.A.No.998 of 2012 to take the employees of their company to Nagarjuna Sagar and that the deceased T. Sudhakar Reddy while proceeding in the said vehicle met with accident due to the negligent driving of the said vehicle by its driver. It was not suggested to P.W.2 that the vehicle was hired by the company for its official use.

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The insurance company’s stand was that the vehicle was given on hire to Aster Tele Services Private Limited by its owner in violation of the terms and conditions of the policy, but such stand by it not proved by placing substantial evidence.

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Based on the admission said to be made by P.W.3, who had no knowledge as to hiring of the vehicle of 3^rd respondent herein and the amount if any paid for taking the said vehicle on hire basis by the company, it is difficult to conclude that the vehicle in question was hired by Aster Tele Services Private Limited, Hyderabad where the deceased was working to take him and others to Nagarjuna Sagar on official duty.

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When a specific plea is raised by the insurance company that in deviation of the terms and conditions of the policy, vehicle is given on hire and as the terms and conditions of the policy are violated by the vehicle’s owner by giving the vehicle on hire or in contravention of the terms and conditions of the policy, it is its duty to establish the same, but it has failed to establish the stand so taken by it by adducing substantial evidence.

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It is an admitted fact that except marking Ex.B.1 policy, no oral evidence is let in by the insurance company to claim that it is to be exempted from payment of compensation on the ground that the vehicle is given on hire in contravention of the terms and conditions of the policy. The Court below on close scrutiny of the evidence of P.Ws.2 and 3, on whose admission, the insurance company said to have relied upon has reached to the conclusion that the insurance company has failed to prove its stand that the terms and conditions of the policy are contravened by the vehicle’s owner by giving his vehicle on hire basis to the company in which the deceased was working to take him and his colleagues to Nagarjuna Sagar on official duty etc.

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It seems that the insurance company has also raised the plea that the compensation awarded to the claimants is exorbitant, and that its contention was that it was admitted by P.W.3 that the compensation of Rs.8,00,000/- was received by the parents of the deceased from the company where the deceased was working. This contention was dealt substantially by the Court below by referring to a case law in Helen C.

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Rebeno vs. Maharashtra State Road Transport Corporation¹ .

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In Lal Dei and others vs. Himachal Road Transport Corporation and another² , it was held by the Supreme Court that the Motor Accidents Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family while calculating the dependency of the claimants.

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In Helen C. Rebello (1 supra), the apex Court while dealing with the question as to “whether the family pension given to the family members can be deducted while calculating the compensation to be awarded to the claimants”, has held that the “family pension is earned by the employee for the benefit of his family in the form of its contribution in service in terms of service conditions receivable by the heirs after his death. The legal heirs of the deceased retired employee will receive the family pension even after the death of the deceased. There is no co-relation between the two and therefore, the family pension amount paid to the family can not be deducted while calculating the compensation awarded to the claimants.”

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In Susana Dasgupta and another vs. Paul Sarai and another³ , the High Court of Calcutta has held that the employment on compassionate grounds to the widow of the deceased who died in an accident cannot be taken to consideration while determining the compensation. The intention of the legislation in awarding compensation

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1 1999 ACJ 10 (SC)

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2 2008 ACJ page 1107

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3 2009 ACJ page 366

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to the victim in the motor accident case is to restitute and rehabilitate them. Thus, the compensation if any received by the parents of the deceased from the company where the deceased was working cannot be taken into consideration while calculating the compensation for the death of the deceased in a motor accident. Citing the admission said to be made by the P.W.3 in his deposition as regard to the payment made to the parents of the deceased by the company where the deceased worked prior to his death, the Tele Services Company cannot escape from the liability of payment of compensation having agreed to indemnify the liability of the owner of the vehicle or the insured of the vehicle who has been held liable vicariously for the negligent act of his driver. In view of the detailed discussion undertaken by the Tribunal referring to the evidence of the witnesses, it can safely be held that the appellant insurance company has failed to establish any of grounds raised by it, therefore, I am unable to agree with its contention that liability is fastened as against it wrongly along with the owner of the vehicle.

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Coming to the issue that falls for consideration by this Court in the appeal filed by the claimants in M.A.C.M.A. No.2123 of 2009 is concerned, as per the version of the claimants, the Court below should have deducted 1/3^rd of the income towards his personal and living expenditure instead of deducting 50% of the income of the deceased towards his personal and living expenditure while directing the compensation under the head of loss of dependency. The compensation they get under the loss of dependency has grossly come down due to deduction of 50% of the income of the deceased towards his personal and living expenditure. It has also been contended by their counsel that though the claimants are entitled to get compensation under the head of loss of future prospects, no compensation is awarded under the said head.

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From the above submission of the learned counsel for the claimants, it is clear that the claimants have no grievance insofar as the multiplier applied by the Court below. Their grievance is, that instead of deducting 1/3^rd income of the deceased towards his personal and living expenditure, 50% of his income is deducted towards his personal and living expenditure. As this point raised on their behalf by their counsel, the legal proportion laid down in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another⁴ straightaway on this aspect. The law laid down therein stipulates for deduction of 50% of the income of the deceased towards his living and personal expenditure, if he is unmarried.

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For better appreciation, I feel it necessary to quote the observations made by the Apex Court in Sarla Verma (Smt) (4^th supra) , which reads as under:

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“The personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. It is also very difficult for the claimants in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was married, and one-half (50%) of the income if the deceased was

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4 (2009) 6 SCC 121

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a bachelor. This practice was evolved out of experience, logic and convenience.”

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The general presumption is that an unmarried person will spend more of his income for himself, and contributes less for his family. The Court below cannot be faulted for deducting 50% of the income of the deceased towards his personal and living expenditure while determining the compensation under the head of loss of dependency.

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Coming to other contention raised on behalf of the claimants as regard to non awarding of compensation under the head of future prospects is concerned, admittedly no claim for compensation under the head of loss of future prospects is made, and that no ground is urged or pleaded in this regard in the claim petition or in the appeal grounds. It is well established that the pleadings are the foundations or the basis to grant the relief. In the absence of specific claim for compensation under the head of loss of future prospects and the plea, if any made, as regard to awarding of compensation under the head of loss of future prospects, cannot be allowed, and that the award impugned cannot be held as unsustainable, due to non awarding of compensation under the head of future prospects.

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Here is the case where no claim for compensation under the head of future prospects is laid. Therefore, this Court is of the view that the claimants are not entitled for the relief which they have not claimed. Viewing the case from any angle, I am not inclined to agree with the counsel for the claimants that the award impugned is suffering from infirmity due to non awarding of compensation under the head of loss of future prospects for which there is no claim from him. The award impugned in my view, needs no intervention and thus the appeal filed by the claimants also fails.

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In view of the aforesaid discussions, both the appeals are hereby

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dismissed, accordingly. But, there is no order as to costs.

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Consequently, miscellaneous petitions pending, if any, shall also stand disposed of.

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________________ J. UMA DEVI, J Date.05.03.2021. Gk

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THE HON'BLE Ms. JUSTICE J. UMA DEVI