M/S United India Ins. Com. Ltd., Nellore Vs G Mallaiah, Prakasam Dist & 5 Others

This appeal is directed against the order of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-VI Additional District Judge, Prakasam at Markapur (hereinafter called as ‘the Tribunal’) in M.V.O.P.No.47 of 2012 dated 13.05.2016.

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The appellant is the insurer of the Jeep bearing No. AP 03 V 5509 (hereinafter referred as “crime vehicle”). The respondent Nos.1 to 3 herein are the parents and brother of one G.Thirupathaiah (hereinafter called as ‘the deceased’)

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respectively. The respondent Nos.4 to 6 are the driver and owners of the said crime vehicle.

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For the sake of convenience, the parties hereinafter referred to as they arrayed before the tribunal.

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The case of the claimants, in the petition before the Tribunal is that:

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i). On 10.10.2006 at about 09.30 p.m., while the deceased along with others proceeding in the crime vehicle, when they reached near Pothuvaripalli Bus Stop, the 1^st respondent driver of the crime vehicle driven the same in a rash and negligent manner at high speed and dashed the rear side of the stationed lorry bearing No.AP 04 T 1656, resulted the deceased died on the spot.

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ii). The deceased used to attend agricultural works and earning Rs.4,000/- per month, contributed the same for the welfare of the family. Being dependents, they claimed compensation of Rs.5,00,000/- against the driver, owners and insurer of the crime vehicle.

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The respondent No.3/insurer filed written statement denying the averments in the petition and pleaded that the petition is bad for non-joinder of necessary parties; that the 1^st respondent is not having valid driving license to drive the crime vehicle; that there is no coverage of policy at the time of accident; that the compensation claimed by the claimants is excessive and thereby, prayed to dismiss the petition.

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The Tribunal settled the following issues for enquiry basing on the material:

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“1.Whether the deceased G.Thirupathaiah died in motor accident due to rash and negligent driving of jeep bearing No.AP 03 V 5509 by R1?

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2.Whether petitioners are entitled for compensation as prayed, if so against whom? and

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3.To what relief?”

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During enquiry, on behalf of the claimants, PWs.1 and 2 were examined, Exs.A.1 to A.5 and X.1 were exhibited. On behalf of the respondent No.3/insurer, R.W.1 was examined and Ex.B.1 was marked.

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On the material, the Tribunal, having concluded that the accident occurred due to the negligent riding of the crime vehicle by its driver/1^st respondent, held that the claimants are entitled for the compensation of Rs.5,00,000/-, with interest at 9% per annum from the date of petition till the date of realization against the respondent Nos.1 to 4, for the death of the deceased in the accident.

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It is against the said order; this appeal was preferred by the insurer of the crime vehicle. 10. Heard Sri S.Murali Mohan, learned counsel for the appellant/insurer and Sri P.Spandana, learned counsel representing Sri P.Radhika, learned counsel for the respondent Nos.1 to 3/claimants.

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Sri S.Murali Mohan, learned counsel for the appellant/insurer submits that the policy issued in respect of the crime vehicle does not cover the risk of the deceased, who was travelling in the crime vehicle as passenger by the time of incident; that the driver of the crime vehicle is not having valid driving license to drive the same; that the Tribunal erred in

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deducting 1/3^rd towards personal and living expenses, instead of 50% from the income of the deceased and thereby, prays to consider the present appeal.

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Sri P.Spandana, learned counsel representing Sri P.Radhika, learned counsel for the respondent Nos.1 to 3/claimants submits that the Tribunal after considering the material placed on record, rightly concluded that the accident occurred only due to the negligence of the driver of the crime vehicle; that Ex.B.1 policy issued in respect of the crime vehicle cover the risk of passengers, thereby, the insurer is liable to pay compensation to the claimants; that the claimants are entitled for enhancement of compensation even without any cross objections; that under Order 41 Rule 33 of Code of Civil Procedure, this Court can enhance the compensation as claimed by the claimants without any appeal or cross objections and thereby prays to enhance the compensation as claimed by the claimants before the Tribunal. In support of the above contentions, he relied upon Division Bench

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judgment of this Court in The National Insurance

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Company Ltd., v. E.Suseelamma¹ .

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Now, the following points arise for determination:

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Whether the appellant/insurer is liable to pay compensation to the claimants?

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Whether the compensation awarded to the claimants is just compensation? and

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To what relief ?

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14. POINT NO.1 :

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On this point, the Tribunal held that since Ex.B.1 policy issued in respect of the crime vehicle is in force by the time of incident, the insurer is liable to pay compensation to the claimants.

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It is not in dispute about the involvement of the crime vehicle, rash and negligent driving of the crime vehicle in causing the incident as well Ex.B.1 policy issued in respect of the crime vehicle is in force by the time of incident.

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It is foremost contention of the appellant/insurer that Ex.B.1 policy does not cover the risk of the passengers travelling

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1 2023 SCC Online AP 1725

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in the crime vehicle, thereby, the insurer is not liable to pay compensation to the claimants.

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On perusal of Ex.B.1 policy categorically shows that it was named as “Passenger Carrying Commercial Vehicle Liability Only Policy” and a premium for Rs.1,241/- paid towards liability to Passengers (9) out of total premium of Rs.4,061/-. Thereby, it is clear in vivid terms that Ex.B.1 policy issued in respect of the crime vehicle covers the risk of passengers/deceased.

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It is also contention of the appellant that the 1^st respondent is not having valid driving license to driver the crime vehicle by the date of incident. But, to fortify the said contention, except bare pleading and testimony of R.W.1, who is official of insurer, no substantial material was placed on record before the Tribunal. Thereby, the said contention has no legs to stand to deny the claim made by the claimants.

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In view of the above discussion, this Court does not fine any material to interfere with the findings of the Tribunal regarding liability of the insurer to pay the compensation to the

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claimants under Ex.B.1 policy. Thus, this point is answered accordingly.

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20. POINT NO.2 :

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It is the contention of the learned counsel for the appellant that the Tribunal erred in calculating the compensation entitled by the claimants.

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Coming to the just compensation entitled by the claimants is concerned, as stated supra, no appeal or cross objection is preferred by the claimants. However, it is the contention of the claimants that even if there is no appeal preferred by the claimants, this Court can enhance the compensation.

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On such plea, as per the observations made by the Division Bench of this Court in E.Suseelamma case ( referred to supra ), by referring plethora of pronouncements of Hon’ble Supreme Court, this Court can enhance the compensation, if so they are entitled, without any appeal or cross objections. In the said judgment, it was categorically

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held that “We are therefore of the considered view that for doing justice and to award just compensation, the provisions of Order 41 rule 33 are to be invoked which are being invoked accordingly, and we find that there is no legal interdict or a prohibition under law, rather the mandate of law is to award just compensation”.

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Thereby, this Court can decide the just compensation entitled by the claimants even in the absence of any appeal or cross-objections preferred by the claimants.

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It is not in dispute that by the time of incident the deceased was aged about 20 years. It is the contention of the claimants that the deceased used to earn Rs.4,000/- per month by attending agricultural works. However, in the absence of substantial proof regarding the income of the deceased, the Tribunal taken monthly income of the deceased @ Rs.2,000/-, which is nothing but contrary to the eye of law, now a days even an unskilled labored can earn more than Rs.100/- per day. Thereby, the actual income of the deceased

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is determined at Rs.3,000/- per month, which comes to

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Rs.36,000/- per annum.

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As per the decision of the Constitution Bench of the Apex Court in National Insurance Company Limited v.

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Pranay Sethi² , the deductions towards personal and living expenses of the deceased, held at Paragraph No.39 as follows:

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39. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly discernible from Sarla Verma, Reshma Kumari, Rajesh, and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, Sarla Verma lays down:-

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“30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this (2003) 3 SLR (R) 601 Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th)

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2 2017 (6) ALT 60 (SC)

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where the number of dependent family members exceeds six.

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31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

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32. Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.”

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26. As per the Pranay Sethi case ( referred supra ) , in case

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the deceased was self-employed, an addition of 40% should

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be made, if the age of the deceased was below 40 years….. (emphasis supplied)

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In the present case as per the above said decision, 40% of actual income has to be added to the income of the deceased towards future prospects as the deceased is aged about 20 years by the date of incident, which is not in dispute. After adding 40% to the income of the deceased towards future prospects her income is determined at Rs.50,400/-(Rs.36,000/- + Rs.14,400/-).

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In the case on hand, the deceased was bachelor, thereby, the deduction towards personal and living expenses of the deceased should be 50% from the income of the deceased. Then the quantum is determined as Rs.25,200/-. 29. Regarding just compensation, in a decision of Hon’ble Supreme Court between Sandeep Khanuja vs Atul Dande & Anr³ , at Paragraph Nos.11 and 12 held as follows :

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11………it is now a settled principle, repeatedly stated and restated time and again by this Court,

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3 2017 (3) SCC 315

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that in awarding compensation the multiplier method is logically sound and legally well established. This method, known as 'principle of multiplier', has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident……...

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12……… While applying the multiplier method, future prospects on advancement in life and career are taken into consideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into consideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be…….

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……. there should be no departure from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 (corresponding to the present provision of Section 168, Motor Vehicles Act, 1988) envisaged payment of ‘just’ compensation since the

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multiplier method is the accepted method for determining and ensuring payment of just compensation and is expected to bring uniformity and certainty of the awards made all over the country.”……. (emphasis supplied)

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The appropriate multiplier applicable to the age of the deceased i.e., 20 years is 18 . The total loss of dependency is determined at Rs.4,53,600/- (Rs.25,200/- x 18).

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31. CONVENTIONAL HEADS :-

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On the point of the conventional heads, as per the judgment in Pranay Sethi (supra), Magma National Insurance Company Limited v. Nanu Ram @ Chuhru Ram and Ors .⁴ , Smt. Anjali and Others v. Lokendra Rathod and Others⁵ , United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and ors.⁶ and Rojalini Nayak and others v. Ajit Sahoo and others⁷ , this Court can award the enhanced amounts under the conventional heads of loss

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4 (2018) 18 SCC 130

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5(2022) SCC OnLine SC 1683

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6 (2022) SCC OnLine SC 1683

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17 (2021) 11 SCC 780

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of estate, loss of consortium and funeral expenses. The claimants are also entitled for an amount of Rs.48,400/- towards loss of consortium, towards funeral expenses Rs.18,150/- and towards loss of estate Rs.18,150/- , respectively as was awarded in Rojalini Nayak case (referred to supra).

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INTEREST :-

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The Tribunal granted interest at the rate of @ 9% per annum. In Kumari Kiran v. Sajjan Singh and others⁸ , the Apex Court set aside the judgment of the Tribunal therein awarding interest @ 6% as also the judgment of the High Court awarding interest @ 7.5% and awarded interest @ 9% per annum from the date of the claim petition. In Rahul Sharma & Another v. National Insurance Company Limited and Others⁹ , the Apex Court awarded @ 9% interest per annum from the date of the claim petition. Also, in Kirthi

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8 (2015) 1 SCC 539

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9 (2021) 6 SCC 188

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and another v. Oriental Insurance Company Limited¹⁰ ,

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the Apex Court allowed interest @ 9% per annum and in Smt.Anjali and others v. Lokendra Rathod and others¹¹ , the Apex Court while referring to Malarvizhi & Ors. v. United India Insurance Co.Ltd. & Ors .¹² allowed interest @ 9% per annum. Thereby, there is no error in grating interest @ 9% per annum from the date of the claim petition till realization by the Tribunal.

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A brief exposition of the calculation made to arrive at

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the compensation is set out infra:

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S.No.	Heads		Calculation
1	The annual inco the deceased.	me of	Rs.36,000/- per annum
2	40% of above(1) added as prospects	to be future	(Rs.36,000/- + Rs.14,400/-) Rs.50,400/-

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10 (2021) 2 SCC 166

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11 (2022) SCC OnLine SC 1683

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12(2020) 4 SCC 228

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3	50% to be deducted personal expenses deceased.	as of	Rs.25,200/-.
4	Compensation arriv at on application multiplier 18.	ed of	(Rs.25,200/- Rs.4,53,600/-	x	18)
5	Parental consortium (parents)		Rs.48,400/-
6	Loss of estate		Rs.18,150/-
7	Funeral expenses		Rs.18,150/-
	Total compensati awarded(Rows 4+5+6+7)	on	Rs.5,38,300/-

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Therefore, in view of the forgoing discussion, this Court is of the considered opinion that the award passed by the Tribunal warrants interference by enhancing the compensation from Rs.5,00,000/- to Rs.5,38,300/-. It is needless to say that the compensation claimed by the

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claimants on the remaining heads are not entitled by the claimants. Thus, this appoint is answered accordingly.

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35. POINT No.3 :

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In view of the findings on point Nos.1 and 2, the order passed by the Tribunal warrants interference regarding quantum of compensation only. As such, the appeal preferred by the appellant/insurer is liable for dismissal.

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In the result, M.A.C.M.A. is dismissed. However, in view of the above observations, enhancing the compensation from Rs.5,00,000/- to Rs.5,38,300/- with interest at 9% per annum, with proportionate costs, from the date of petition till the date of realization against the respondent Nos.1 to 4/driver, owners and insurer of the crime vehicle. The appellant/respondent No.2/insurer shall deposit the compensation amount within two months from the date of this judgment before the Tribunal. On such deposit, the claimant No.2/mother of the deceased is entitled to receive the enhanced compensation, permitted her to withdraw the same with interest accrued thereon and the earlier apportionment

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made by the Tribunal towards entitlement of the claimants for compensation shall remain intact. The Tribunal shall proceed to pay the amount in the aforesaid terms, adjusting the amount, if any, already paid.

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Interim orders granted earlier if any, stand vacated. Miscellaneous petitions pending if any, stand closed.

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______________________ JUSTICE V.SRINIVAS

Date: 20.01.2025 Krs

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THE HON’BLE SRI JUSTICE V.SRINIVAS