Dismissed

The New India Assurance Co. Ltd. v. Smt.S.Durgamma

Telangana HC15 Sept 2014MACMA/10/2007

Case brief

AI extract

What is this about?

Appeal against compensation award in a motor accident claim involving death. Court affirmed Tribunal's findings on rash and negligent driving and upheld the quantum of compensation at Rs.13,47,500/- without interposing clarification on additional heads.

What did the court decide?

The appeal is dismissed confirming the award of compensation of Rs.13,47,500/- passed by the Tribunal.

The New India Assurance Co. Ltd. Vs… — Contract and Commercial Disputes | Telangana HC (2014)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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M.A.C.M.A.No.10 of 2007

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JUDGMENT:

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Aggrieved by the award and decree dated 07.07.2006 passed in O.P.No.1786 of 2003 on the file of the Additional Metropolitan Sessions Judge for the trial of Jubilee Hills Car Bomb Blast Case-cumAdditional Family Court-cum-XXIII Additional Chief Judge, Red Hills, Nampally, Hyderabad, the New India Assurance Company Limited, preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”).

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For the sake of convenience, the parties will hereinafter be referred to as arrayed in O.P.

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The facts in issue are as under:

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The claimants, who are the wife and minor children of one S.Vittal, filed a claim-petition under Section 166 of the Act, claiming compensation of Rs.14,00,000/- for the death of said S.Vittal in a road accident that occurred on 26.06.2003. It is stated that on that day while the deceased and his brother Laxman were proceeding in a Maruthi Zen Car to Hyderabad from Kalvakurthi and when they reached Maheswaram gate, a lorry bearing No. AAE 6570 driven by its driver in a rash and negligent manner came in opposite direction and dashed the Car in which the deceased was traveling. As a result of which, the deceased sustained injuries on throat and forehead leading to his instantaneous death. The brother of the deceased, who was traveling in the car, also received injuries and the car was completely damaged. Since the accident occurred due to the rash and negligent driving by the driver of the first respondent and as the vehicle was insured with the second respondent, the claimants filed the O.P. by making both the respondents jointly and severally liable to pay the

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compensation.

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Originally a claim-petition was filed claiming compensation of Rs.4.00 lakhs and subsequently the same was enhanced to Rs.14,00,000/- pursuant to an order dated 19.12.2005.

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Respondent No.1, who is the owner of the vehicle remained ex parte, while the second respondent filed their counter denying the manner in which the accident took place and also the age, income and avocation of the deceased. It was specifically stated in the counter that there was no coverage of insurance policy as on the date of the accident. In any event it was stated that the claim made is excessive and exorbitant.

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Basing on the above pleadings, the Tribunal framed the following issues:

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1. Whether the accident took place on 26.06.2003 on account of the rash and negligent driving of lorry bearing No. AAE 6570 by its driver?

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2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

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3. To what relief?

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In support of their plea, the first petitioner got herself examined as PW.1 and also examined PWs.2 to 4. She also got marked Exs.A1 to A18 and Exs.X1 to X5 in support of her plea. No oral evidence was adduced on behalf of the respondents, but with consent a copy of the insurance policy was marked as Ex.B1.

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After analyzing the oral and documentary evidence available on record, the Tribunal held that the accident took place due to rash and negligent driving of the driver of the lorry and accordingly awarded a sum of Rs.13,47,500/- as compensation with interest at 7.5% p.a. from the date of petition till the date of realization payable by respondent

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Nos.1 and 2 jointly and severally. Challenging the same the present appeal has been filed.

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The learned counsel for the appellant mainly submits that the quantum of compensation awarded is on a higher side and the same needs to be reduced. According to him, taking the income of the deceased at Rs.15,000/- per month when the avocation of the deceased was that of a Contractor is definitely on higher side. He also disputed the manner in which the accident took place.

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Per contra the learned counsel for the claimants submits that basing on the evidence available on record the Tribunal rightly held that the accident took place due to rash and negligent driving of the driver of the lorry and awarded just compensation, which needs no interference.

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In order to appreciate the rival contentions, it may be useful to refer to the evidence of PW1. The first petitioner, who is the wife of the deceased, was examined as PW.1. In her evidence, PW.1 narrated the manner in which the accident took place, but she admitted in the cross examination that she was not an eye witness to the accident. In order to prove the manner in which the accident took place, the claimants examined PW.2, who was traveling in the car at the time of the accident along with the deceased. PW.2. in his evidence stated that on 25.06.2003 he along with his deceased brother were proceeding in Maruthi Car to Hyderabad. When the car reached Maheswaram gate a lorry bearing No. AAE 6570 driven by its driver in a rash and negligent manner came in opposite direction and dashed the car. As a result of which, his brother sustained grievous injuries and died instantaneously. PW.2 deposed that he also sustained a fracture of right hand shoulder and the Car was completely damaged. The claimants also filed Ex.A1 copy of the F.I.R. and Ex.A2 copy of final report. Though PW.2 was subjected to cross examination nothing useful was elicited to discredit his testimony. A perusal of the

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evidence of PW.2 coupled with Exs.A1 and A2 amply established that the accident took place due to the rash and negligent driving by the driver of the lorry, causing instantaneous death of the deceased. In the absence of any contra evidence on this aspect, the finding of the Tribunal with regard to the manner in which the accident took place warrants no interference.

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Coming to the quantum of compensation, the material on record establish that the deceased was doing the work of centring contractor during the said period. The evidence of PW.1 would show that the deceased was earning Rs.15,000/- per month. To prove the same the claimants examined PWs.3 and 4 and also got marked Exs.A7 to A12. Ex.A7 is the certificate issued by Ch.Marthanda Rao and company, certifying that the deceased worked as a centring contractor in their company. Ex.A8 is the identity card, wherein it was mentioned that he is a member of the Twin Cities Centring Contractors Association. Ex.A10 is the letter addressed by the Accounts department of the Associated Realtors Private Limited to the deceased relating to payment of Rs.10,000/- as token advance. Ex.A11 is the quotation. Ex.A12 is the form No.16-A. Thus, the aforesaid documentary evidence mainly Exs.A7, A8, A10 and A12 coupled with the evidence of PWs.3 and 4 clearly prove that the deceased was doing the job of Centring contractor during his life time. It is to be noted that as a contractor there would not be any fixed income. Therefore, it is not possible to arrive at any fixed figure and it all depends upon the nature of centring which he does. Hence, some guess work needs to be adopted for fixing the income of the deceased. It is true that there is no evidence available on record to show the income of the deceased. But, having regard to the facts and circumstances of the case and the documentary evidence available on record, the finding of the Tribunal in fixing the income of the deceased at Rs.15,000/- per month cannot be said to be on higher side. After

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deducting 1/3rd amount towards personal and living expenses of the deceased the contribution of the deceased to the family was fixed at Rs.10,000/- per month. Since the age of the deceased was 54 years at the time of the accident the Tribunal awarded a sum of Rs.13,20,000/towards loss of dependency by applying multiplier ‘11’. Apart from that the Tribunal also awarded an amount of Rs.15,000/- towards loss of consortium, Rs.10,000/- towards loss of estate and Rs.2,500/- towards funeral expenses. Even assuming that the income of the deceased is on higher side, but in view of latest Judgments of the Supreme Court, the claimants are entitled to more than what has been awarded under various heads but the same cannot be awarded as no appeal is filed by the claimants. But in view of the Judgment of the apex Court in [1] Ranjana Prakash and others v. Divisional Manager and anothe r the amount of compensation awarded by the Tribunal, if it is getting reduced under one count, this Court can award compensation under the heads which were not considered without altering the compensation awarded by the Tribunal even in an appeal filed by the insurance company. Applying the ratio laid down by the Apex Court in Sarla Verma Vs. Delhi Transport Corporation[2] , only 1/4th has to be deducted towards living and personal expenses when the number of claimants are more than 3 in number. Further the claimants are entitled to more than what has been awarded towards conventional heads and also future prospects in view of the judgment

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[3] of the Apex Court in Rajesh V. Rajbir Singh and others . The Tribunal did not award any amount under the above heads. Hence, this Court is of the view that the finding of the Tribunal in awarding Rs.13,47,500/- warrants no interference.

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For the aforesaid reasons, I am of the view that there are no merits in the appeal and the same is liable to be dismissed.

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Accordingly, the appeal is dismissed confirming the award

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dated 07.07.2006 passed in O.P.No.1786 of 2003 on the file of the Additional Metropolitan Sessions Judge for the trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Red Hills, Nampally, Hyderabad.

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There shall be no order as to costs. The miscellaneous petitions, if any pending, shall stand closed.

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_____________________ C. PRAVEEN KUMAR, J 15.09.2014 gkv [1] (2011) 14 SCC 639 [2] 2009 (6) SCC 121 [3] 2013 ACJ 1403

The New India Assurance Co. Ltd. v. Smt.S.Durgamma

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Smt.S.Durgamma

Case brief

What is this about?

What did the court decide?

What the court decided

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