Partly allowed

The New India Assurance Company Limited, v. Salgoori Kamalamma , K.Rajeshwari

Telangana HC19 Aug 2010MACMA/1939/2007

Case brief

AI extract

What is this about?

This judgment disposes of two Motor Accidents Claims Court appeals. It examines the insurance company's challenge regarding vehicle identification and the claimants' request for enhanced compensation. The court modifies the compensation quantum based on Supreme Court precedents and adjusts the interest rate.

What did the court decide?

Appeal by Insurance Company dismissed; Appeal by claimants allowed in part with enhanced compensation of Rs. 6,53,520/- and interest at 6% p.a.

The New India Assurance Company Limited… — Contract and Commercial Disputes | Telangana HC (2010)

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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M.A.C.M.A. Nos. 1939 of 2007

2161 of 2009

Dated 19-8-2010

M.A.C.M.A. No. 1939 of 2007:

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Between:

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The New India Assurance Co., Ltd., represented by its Branch Manager, 1^st Floor, Chanumolu Complex, Rajagopala Chary Street, Governorpet, Vijayawada and another.

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…Petitioners.

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And:

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Salgoori Kamalamma @ K.Rajeshwari and others.

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…Respondents.

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M.A.C.M.A. No. 2161 of 2009:

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Between:

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Salgoori Kamalamma @ K.Rajeshwari and others.

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…Petitioners.

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And:

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Ch.Kumara Swamy and others.

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…Respondents.

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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M.A.C.M.A. Nos. 1939 of 2007

2161 of 2009

COMMON JUDGMENT:

The appeal M.A.C.M.A.No.1939 of 2007 is preferred by the Insurance Company whereas the appeal M.A.C.M.A.No.2161 of 2009 is preferred by the claimants against the Judgment dated 5-

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6-2006 passed in M.V.O.P.No.33 of 2004 on the file of the Motor Accidents Claims Tribunal at Warangal.

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The aforesaid claim under Motor Vehicles Act relates to the accidental death of one Salgoori Shankaraiah husband of the 1^st claimant on 26-1-2003 at about 10.30 P.M.

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It is alleged in the claim petition that on that day the deceased along with one of his relatives Salgoori Kumaraswamy were returning to Warangal on Yezdi Motor Cycle bearing No.ADX 9304. While the said vehicle reached Hunter road, near New Science Degree College, Hanamkonda, one tractor trailor bearing No. A.P. 36 T 1781 and 1782 proceeding from Warangal came in opposite direction allegedly in rash and negligent manner on the wrong side of the road and dashed the Yezdi Motor Cycle on which the deceased along with the said Kumaraswamy were traveling. The said accident resulted in death of both the said riders and with respect to said Kumaraswamy, another O.P.No.31 of 2004 was filed by the wife and children which is the subject of the appeal in M.A.C.M.A.No.2280 of 2007. That appeal is separately heard and is being disposed of by a separate order today. The Claim Petition also mentions that the alleged accident was witnessed by one Gurram Purnachander Rao and Vadde Devender Reddy and based on the above, the claim for Rs.8,00,000/- towards compensation was made. The said Claim Petition was resisted by the Insurance Company by disputing the very accident involving the aforesaid vehicle. They also claimed that there was no eye witness and this being a case of hit and run and hence, the Insurance Company is not liable. The Court framed the issue No.1 with respect to whether there was any rash and negligent driving of the offending vehicle i.e., tractor and tailor referred to above and also framed issue No.2 regarding the age and income of the deceased and also framed issue No.3 as to whether all the claimants are entitled to compensation and if so, the extent

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thereof.

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On behalf of the claimants, 1^st claimant-wife who was widow was examined as P.W.1 whereas one of the eye witnesses Vadde Devender Reddy was examined as P.W.2 and Exs.A.1 to A.9 were marked. On behalf of the Insurance Company, no oral evidence was adduced but Ex.B.1 Insurance Policy was marked.

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On consideration of the evidence, the Tribunal below came to a conclusion that the involvement of the offending vehicle in the accident was established by the evidence of P.W.2 and further gave a finding that the said accident was caused on account of rash and negligent driving of the offending vehicle. With respect to issue Nos.2 and 3, the Tribunal found that the deceased was working in South Central Railways as Kalasi Helper and his gross salary was Rs.4,489/- per month. After excluding the deduction, the net salary of Rs.2,709/- was taken as monthly earnings and after deducting 1/3^rd therefrom towards personal expenses, the dependency was arrived at on the basis of the age of the deceased as 41 years by applying multiplier 15. Thus the Tribunal awarded Rs.3,25,080/- towards loss of dependency apart from Rs.15,000/- to the 1^st claimant towards loss of consortium, Rs.10,000/- towards loss of estate, Rs.2,000/- towards funeral expenses and Rs.1,000/towards transportation charges; aggregating to a total compensation of Rs.3,53,080/-. The claim was decreed with interest at 7.5% p.a., and apportionment of said compensation was made among the claimants as set out in paragraph ten of the impugned order.

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In this appeal, the learned counsel for the appellantsAssurance Company submits that the very finding of the Tribunal on issue No.1 is unsustainable in as much as the F.I.R. as well as Chief Examination of P.W.1 proceed on the footing that an unknown vehicle hit motor cycle of the deceased. Therefore, the learned counsel submits that there is no evidence to implicate the

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insured vehicle and instead of proceeding under Sections 161 and 163 of the Motor Vehicles Act by claiming compensation as a hit and run case, the present claim petition is filed under Section 140 of the Act claiming compensation as if the tractor-trailor insured by the appellants, is involved in the accident.

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Learned counsel points out that the accident has occurred at about 10-30 P.M. in the night and even as per the evidence of P.W.2 who is said to have witnessed the accident, he could not have seen the Registration Number of Tractor Trailor. Admittedly the said vehicle was 10 yards away from P.W.2. Learned counsel therefore, submits that there is no evidence to link the Tractor Trailor to the accident and consequently, the liability imposed on the appellants is unjustified. Learned counsel also submits that the quantum of compensation arrived at by the Tribunal is not in conformity with the criteria laid down by the Honourable Supreme Court in the decision reported in SARLA VERMA (SMT) AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER (^[1] ) . The multiplier applied is required to be scaled down and the amount awarded towards consortium, loss of estate etc., cannot exceed more than Rs.20,000/-.

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Learned counsel for the respondent-claimants on the other hand contends that the evidence of P.W.2 was rightly accepted by the Tribunal and he speaks of registration number of the Tractor Trailor which is sufficient to identify the vehicle. He also points out that P.W.2 could not stay at the accident site as his wife was unwell and had to return to his village but on the next day, he himself went to the Police Station and informed about the number of the vehicle which he had noted and police have conducted further investigation and the Charge Sheet Ex.A.6 was filed by the police specifically mentioning the offending vehicle with its number. Learned counsel therefore states that the identity of the offending vehicle, even if not mentioned in F.I.R., which was

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registered at the instance of P.W.1, subsequent investigation has established the involvement of the offending vehicle. To the extent of quantum of compensation, learned counsel states that the Tribunal has not taken the gross salary of the deceased into consideration nor it has allowed the reasonable estimate of enhancement thereof in view of that fact that the deceased was only 41 years and had sufficient length of service left. Learned counsel therefore submits that on an appropriate application of the principles regarding enhancement of salary, the quantum of compensation deserves to be enhanced and seeks that his appeal for enhancement may be allowed.

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I have considered the rival contentions. I have seen the evidence of P.Ws.1 and 2 as well as the Charge Sheet Ex.A.6.

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The points that require for consideration are:

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1) Whether the claimants have established the identity of the vehicle as the one insured by the appellants?

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2) If so, the quantum of compensation to which the claimants are entitled?

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So far as the first point is concerned, the evidence of P.Ws.1 and 2 and Ex.A.6 Charge Sheet, together pointed out that initially report of accident was given by P.W.1 the widow of the deceased. She was admittedly not present at the time of accident and she could not have mentioned about the details of the offending vehicle in the complaint which is recorded in F.I.R. In her affidavit in lieu of Chief Examination, however, she states that she later came to know that the said accident was witnessed by one Gurram Purnachander Rao and one Vadde Devender ReddyP.W.2. She therefore, has stated about the involvement of the offending vehicle and the police on investigation after recording statements of Purnachander Rao as well as P.W.2, have filed the Charge Sheet under Ex.A.6. In the Cross-examination of P.W.2,

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he has no doubt stated that “I did not try to see tractor’s registration number. I did not lodge the complaint while proceeding to my house.” In the other para of the cross-examination, he has also stated that he saw the tractor for the first time when it was at a distance of 10 yards. It was double road. He found one Purnachander Rao at the accident and after see ing him, he left the place and that the trailor number was written on two sides of the trailor. Registration number was on the right side of the trailer. The aforesaid evidence coupled with the fact that establishing the presence of Purnachander Rao at the site and his statement that the next day after seeing the news report published about the incident, he himself went to the Police Station and informed about the accident and the number of the crime vehicle which he had noted on the earlier night appears to be natural. The said witness P.W.2 has no connection whatsoever with the claimants and so also the other witness Purnachandar rao though both the said witnesses have given statements in the Criminal Cases, Purnachander Rao was not examined by the claimants in the present case. However the presence of both the said persons having been established and thereby, no contradiction with regard to both of them being not interested in any way for the claimants and being 3^rd persons have vigilantly noted down tractor trailor number and conveyed the same to the police which helped the police to investigate the case. The minor discrepancies in the evidence of P.W.2 therefore do not stand in the way of establishing involvement of the offending vehicle. The evidence of P.W.1 and particularly cross examination does not at all support the case of the appellants now attempted as it is projected by the learned counsel for the appellants. In the totality and the circumstances therefore, I am inclined to answer Point No.1 in favour of the claimants and hold that the accident was caused by the offending vehicle in question which was insured by the

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appellants.

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So far as issue No.2 is concerned, the Tribunal has not taken the gross salary of the deceased into consideration and in view of the decision of the Supreme Court reported in NATIONAL INSURANCE COMPANY LTD., v. INDIRA SRIVASTAVA AND OTHERS (^[2] ) , the gross salary ought to have been taken into consideration without reducing the deductions therefrom.

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In SARLA VERMA’s case 1^st cited, towards future earnings, 30% of the gross salary can be added which works out to Rs.5,827/- per month. After deducting 1/3^rd therefrom towards personal expenditure, the net earnings of the deceased per month would work out to Rs.3,890/-. The annual earnings works out to R.46,680/-. Similarly, the multiplier application as per the decision of SARLA VERMA 1^st cited, would be 14 relating to the age of 41 years. On applying the said multiplier therefore, the total dependency would work out to Rs.6,53,520/-. Further the Tribunal has awarded the amounts towards consortium, loss of estate etc., but as per SARLA VERMA’s case 1^st cited, aggregated amount allowable under all the heads above being Rs.20,000/-. To that extent also, award under appeal requires modification.

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In the result, the 2^nd point having answered in favour of the claimants, the appeal filed by the Insurance Company deserves to be dismissed whereas the appeal filed by the claimants deserves to be allowed in part by awarding aggregating compensation of Rs.6,53,520/- as detailed above as against Rs.3,25,080/- awarded by the Tribunal. The said amount shall carry interest at 6% p.a. as against 7.5% p.a., as awarded by the Tribunal.

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Accordingly, appeal in M.A.C.M.A. No.1939 of 2007 is dismissed and appeal in M.A.C.M.A.No.2161 of 2009 is allowed in part. No order as to costs.

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_____________________________________

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JUSTICE VILAS V. AFZULPURKAR Dated 19-8-2010. Dvs

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HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

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M.A.C.M.A. Nos. 1939 of 2007

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