Partly allowed

United India Insurance Company Limited, v. Alla Shivaram Reddy

Telangana HC5 Mar 2014MACMA/1205/2007

Case brief

AI extract

What is this about?

The Division Bench decided two appeals regarding motor accident compensation. The court adjusted the quantum to Rs.14,21,000 instead of the Tribunal's award, ruling against claimants on fitness of income assessment but upholding joint liability of respondents, rejecting the defense of composite negligence and valid license breach.

What did the court decide?

The appeal by the Insurance Company was allowed in part; compensation reduced to Rs.14,21,000. The claimants' appeal was dismissed.

United India Insurance Company Limited, Vs Alla… — Motor Accident Claims | Telangana HC (2014)

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

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AND

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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M.A.C.M.A. Nos.1205 AND 1349 OF 2007

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Date: 05-03-2014

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Between:

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M.A.C.M.A. No.1205 OF 2007 United India Insurance Company Limited, Rep. by its Divisional manager, D.O. I, H.No.1-7-241/10, III Floor, Ramalaya Building, S.D. Road, Secunderabad-3. - - - Appellant. And Alla Shivaram Reddy and 3 others. - - - Respondents. M.A.C.M.A. No.1349 OF 2007 Smt. Rubina Shahana and 2 others. - - - Appellants. And Alla Shivaram Reddy and another. - - - Respondents.

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This Court made the following :

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY M.A.C.M.A. Nos.1205 AND 1349 OF 2007

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COMMON JUDGMENT: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)

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These two appeals are filed by the Insurance Company and petitioners-claimants, separately, aggrieved by the order dated 15.11.2006 passed in Original Petition No.2018 of 2003, on the file of Motor Accidents Claims Tribunal-cum-V Additional Metropolitan Sessions Judge (Mahila Court)-cum-XIX Additional Chief Judge, City Criminal Court, Hyderabad (For short, ‘the Tribunal’), whereunder the Original Petition No.2018 of 2003 filed by the petitioners-claimants was allowed, in part, awarding compensation of Rs.15,35,000/together with interest at the rate of 7% p.a. from the date of petition till the date of realization, against the original claim of Rs.25,00,000/-.

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2. The appellant and first respondent in M.A.C.M.A. No.1205 of 2007 were the second respondent-Insurance Company and first respondent, and the appellants in M.A.C.M.A. No.1349 of 2007 were the petitioners-claimants before the Tribunal in O.P. No.2018 of 2003, respectively. For the sake of convenience, the parties hereinafter will be referred as petitioners-claimants and respondents.

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3. The petitioners-claimants, being mother, elder sister and younger brother, filed petition before the Tribunal under Sections 166 and 163-A of the Motor Vehicles Act, 1988 (For short, ‘Act of 1988’) claiming compensation of Rs.25,00,000/- for untimely death of Mohammed Imran Baig (hereinafter referred to as Imran), in a road accident that occurred on 29.11.2002 at about 12:10 a.m. while Imran along with his friends were proceeding from Chaitanya Bharathi Institute of Technology (For short, CBIT) to Narsingi, in a Lancer Car

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bearing No.AP-7F-9009, being driven by its driver Mr. Ramchandra Reddy, who was a friend of deceased Imran, to offer Ramzan last Friday prayers, and when the Car reached near Zindal cross-roads, the driver of the Car drove the same in rash and negligent manner, as a result of which, the Car skidded and swerved towards left side of the road, hit the fencing, due to which Imran received head injury and was shifted to Apollo Hospital, Mehdipatnam, but he was declared as brought dead by the Doctor, who examined the Imran. Thus, the accident occurred only due to the rash and negligent driving of the driver of Lancer Car bearing No.AP-7F-9009. Immediately, the accident was reported to Narsingi P.S. and the same was registered as a Case in Crime No.113 of 2002 for the offences punishable under Sections 304-A and 201 of I.P.C. After completion of investigation, the Police filed charge sheet against the driver of Lancer car.

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4. The deceased Imran was aged 18 years and prosecuting his Engineering Course with Electronics and Communication Engineering as specialization in C.B.I.T. and after completion of education, he would be placed in a highest position. On account of untimely death of Imran, the petitioners being mother, elder sister and younger brother, lost their future dependency besides mental agony, loss of love and affection etc., As on the date of accident the Lancer car bearing No.AP7F-9009 was insured with the second respondent and the first respondent is its owner, liability under the policy was subsisting, both the respondents are jointly and severally liable to pay compensation for the untimely death of Imran in the accident. Hence, claimed total compensation of Rs.25,00,000/-.

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5. The first respondent filed counter denying material allegations of the petition inter-alia contending that the accident not occurred due to rash and negligent act of the driver of the Car, while the deceased Imran and others were proceeding in a Lancer Car bearing No.AP-7F9009, on 29.11.2002, called upon the petitioners-claimants to prove

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that deceased Imran was prosecuting his Engineering course and working as part time employee earning Rs.3,000/- p.m. and finally prayed for dismissal of the petition against the first respondent.

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6. The second respondent filed counter denying the material allegations of the petition while contending that the accident not occurred due to rash and negligent act of the driver of the Car and denied issuance of policy covering the risk of persons traveling in the Car. It is further contended that the Car was entrusted to the driver, who was not holding valid and effective driving license as on the date of accident; the second respondent-Insurance Company is not liable to pay compensation as the same amounts to fundamental breach of terms and conditions of the policy. The deceased Imran was not a part time employee and in the absence of any evidence, the income of deceased Imran cannot be accepted and finally prayed dismiss the petition exonerating the second respondent-Insurance Company from payment of compensation.

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

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1. Whether the deceased Md. Imran Baig, died in a motor accident that took place on 29.11.2002, due to rash and negligent driving of Lancer car bearing No.AP-7F-9009? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. To what result?

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8. During the course of enquiry, on behalf of the petitionersclaimants, PWs.1 to 3 were examined and Exs.A-1 to A-22 were marked. On behalf of the respondents, RWs.1 and 2 were examined and Exs.B-1 to B-4 were marked.

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9. Upon hearing argument of both the counsel, perusing the oral and documentary evidence available on record, the Tribunal awarded

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compensation of Rs.15,35,000/- together with interest at the rate of 7% p.a., under various heads, believing that the accident occurred due to rash and negligent act of the driver of Car bearing No.AP-7F-9009, directing both the respondents jointly and severally liable to pay the compensation.

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10. Aggrieved by the order dated 15.11.2006, passed in O.P. No.2018 of 2003, the second respondent-Insurance Company preferred the Appeal in M.A.C.M.A. No.1205 of 2007 questioning quantum of compensation, erroneously fixing the age of deceased Imran at 18 years and failed to deduct 2/3^rd of income, but committed an error in assessing the compensation by applying the multiplier 19. The Tribunal also failed to assess the income of deceased Imran properly and committed an error in awarding compensation, fixing the liability against the second respondent and prayed to allow the Appeal setting-aside the impugned order exonerating the second respondentInsurance Company from payment of compensation.

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11. Dissatisfied with the award passed by the Tribunal, petitionersclaimants filed Appeal in M.A.C.M.A. No.1349 of 2007 questioning the adequacy of compensation on the ground that the multiplier applicable to the age group of deceased Imran is not in accordance with law and the Tribunal failed to assess the expected income properly and if the Tribunal assessed the expected income of the deceased by making guess work, the petitioners-claimants are entitled to total compensation of Rs.25,00,000/- and prayed to allow the Appeal awarding total compensation of Rs.25,00,000/-.

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12. During course of argument, learned counsel for the petitionersclaimants reiterated the contentions urged in the grounds of Appeal while contending that in case of death of bachelor, age of deceased alone shall be taken basing on the judgment of the Apex Court and this Court and apart from that, it is obligatory on the part of the Tribunal to fix the income of the deceased making some guess work, but the

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Tribunal on erroneous appreciation of evidence, did not fix the income of the deceased, basing on the settled principles of law, and committed an error, finally prayed to award total compensation of Rs.25,00,000/in favour of the petitioners-claimants.

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13. Whereas, learned Standing Counsel appearing for the second respondent-Insurance Company contended that the accident occurred due to composite negligence and thereby the second respondentInsurance Company is not liable to pay compensation. Even otherwise, the Tribunal did not appreciate the evidence on record, in proper perspective, more particularly, regarding violation of terms and conditions of the policy, for handing over of the car by first respondent to its driver, who was not holding valid and effective driving license, at the time of accident, thereby the second respondent-Insurance Company cannot be fastened with any liability and prayed for dismissal of the petition against the second respondent-Insurance Company totally exonerating from payment of compensation.

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14. Considering rival contentions, perusing the material available on record, the points that arise for consideration in these Appeals are: 1. Whether the compensation awarded by the Tribunal is in accordance with law?

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2. Whether the accident occurred due to composite negligence of two vehicles? If not, whether it was solely due to negligence of driver of Lancer Car bearing No.AP7F-9009?

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3. Whether respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioners?

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15. POINT No.1: Second respondent-Insurance Company filed M.A.C.M.A. No.1205 of 2007 challenging the quantum of compensation on different grounds. Similarly, the compensation awarded by the Tribunal was also challenged by the petitionersclaimants by filing M.A.C.M.A. No.1349 of 2007. In view of the rival

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contentions raised in the grounds of Appeals, it is the duty of this Court to reappraise the entire evidence to come to a conclusion and decide whether the compensation awarded by the Tribunal is just and reasonable, if not, the petitioners-claimants are entitled to any amount, in addition to the compensation already awarded by the Tribunal or the same is liable to be reduced as contended by the second respondentInsurance Company.

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16. Learned counsel for the second respondent-Insurance Company challenged the quantum of compensation awarded by the Tribunal, more particularly, fixing the expected income of the deceased at Rs.10,000/- p.m. and awarding compensation of Rs.15,35,000/-. Now, it is questioned on the ground that there are several contingencies in future and there is no guarantee of even getting a job by any engineering graduate and placed reliance on a judgment of the Apex Court in Arvind Kumar Mishra Vs. New India Assurance Company Limited and anothe r^[1] , wherein the Apex Court while referring to its earlier judgments in Reshma Kumari and others Vs. Madan Mohan and anothe r^[2] , General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas and others^[3] , concluded that an Engineering graduate can at least earn Rs.60,000/per annum taking salary and allowances payable to an Assistant Engineer in public employment and awarded total compensation of Rs.9,06,000/- out of which Rs.7,56,000/- was towards future loss of earnings proportionate to 70% of permanent partial disability and Rs.1,50,000/- towards treatment including the medical expenses, but the principles laid down in Arvind Kumar Mishra (1^st supra) is not applicable to the present facts of the case for the reason that the accident was occurred on 23.06.1993 by then the income of an Assistant Engineer was Rs.5,000/- p.m. but by the date of accident in this case i.e., in the year 2002, the salary of an Assistant Engineer in a

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public employment increased many fold and even an Attender or an Office Subordinate is getting more than Rs.10,000/- p.m. in any public employment, certainly, the salary of an Engineering graduate is supposed to be more than an office subordinate or Attender in any public employment. Therefore, the principles laid down by the Apex Court in Arvind Kumar Mishra (1^st supra) cannot be applied to the present facts of the case for fixing expected salary of deceased Imran. Even assuming for a moment that a coolie is getting not less than Rs.200/- per day, now a days and his income would be not less than Rs.6,000/- p.m. Therefore, assessing income of an Engineering at Rs.5,000/- p.m. is nothing but an absurdity as on the date of accident in the present case. Hence, we are unable to accept the income of an Engineering graduate would be at Rs.5,000/- p.m.

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17. In B. Ramulamma and others Vs. Venkatesh, Bus Union, Represented by A.M. Velu Mudaliar and anothe r^[4] , the Division Bench of this Court relying on principles laid down by the Apex Court in catena of judgments considering the normal scales being earned by the Government employees, the minimum salary of a technical person, who is holding a bachelor degree in computers or electronics or mechanical, can be taken as Rs.12,000/- per month and took the income of deceased therein who were studying B.E., final year at Rs.12,000/- p.m. and after deducting 50% towards their personal and living expenses, awarded to the claimants of each deceased an amount of Rs.10,80,000/-.

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18. In view of the principles laid down in the decision cited supra, it is clear that an Engineering graduate is supposed to get not less than Rs.12,000/- p.m. if employed. In any event, the income of an Engineering graduate would not be less than an office subordinate in public office. Therefore, the income of an Engineering graduate shall be taken at Rs.12,000/- p.m. but the Tribunal assessed the income of

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an Engineering graduate only at Rs.10,000/- p.m. Hence, we find no illegality in assessing the compensation by the Tribunal fixing monthly income of deceased at Rs.10,000/- and on the other hand, as it is below the expected income of an Engineering graduate in the decisions cited supra, we fix the expected monthly salary of deceased Imran at Rs.12,000/- p.m.

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19. For adopting the appropriate multiplier applicable to the age group of deceased, who was a bachelor, the Apex Court in Amrit Bhanu Shali and others vs National Insurance Company Limited

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and others^[5] held as follows:

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“17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation.”

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20. The Hon’ble Apex Court in Reshma Kumari (2^nd supra) held as follows:

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“34. If the multiplier as indicated in column (4) of the Table read with para 21 of the Report in Sarla Verma (7^th supra), is followed, the wide variations in the selection of multiplier in the claims of compensation in fatal accident cases can be avoided. A standard method for selection of multiplier is surely better than a criss-cross of varying methods. It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The Courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma (7^th supra) for the selection of multiplier in claim applications made under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, column (4) of the Table in Sarla Verma (7^th supra) is followed, there is no likelihood of the claimants who have chosen to apply under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply under Section 163-A. As regards the cases where the age of the victim happens to be up to 15

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years, we are of the considered opinion that in such cases irrespective of Section 163-A or section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in column (6) of the Table in Sarla Verma (7^th supra) should be followed. This is to ensure that claimants in such cases are not awarded lesser amount when the application is made under Section 166 of the 1988 Act. In all other cases of death where the application has been made under Section 166, the multiplier as indicated in column (4), of the Table in Sarla Verma (7^th supra) should be followed.

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40. In what we have discussed above, we sum up our conclusions as follows:

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(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in column (4) of the Table prepared in Sarla Verma (7^th supra), read with para 21 of that judgment.

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(ii) In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in column (6) of the Table in Sarla Verma (7^th supra) should be followed.

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(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

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(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 9 of Sarla Verma (7^th supra) for determination of compensation in cases of death.

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(v) While making addition to income for future prospects, the Tribunals shall follow para 11 of the judgment in Sarla Verma (7^th supra).

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(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 14 and 15 of the judgment in Sarla Verma (7^th supra) subject to the observations made by us in para 38 above.

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(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under

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consideration.”

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21. However, in view of the Full Bench judgment of the Apex Court in Reshma Kumari (2^nd supra), we are of the considered view that the age of deceased alone shall be taken to apply appropriate multiplier and therefore the multiplier applicable to the age group of 15 to 20 years in view of the principles laid down by the Apex Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and anothe r^[6] is ‘18’. Hence, multiplier ‘18’ is applicable to the present facts of the case for assessment of compensation.

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22. In case of death claims where the deceased was a bachelor, half of the income shall be deducted towards his personal and living expenses and thereby the monthly contribution to the family of the deceased comes to Rs.6,000/- p.m. and it would come to Rs.72,000/per annum, if the same is multiplied with the appropriate multiplier applicable to the age group of deceased Imran i.e., ‘18’, the loss of dependency and future income would be Rs.12,96,000/-. Hence, petitioners-claimants 1 to 3 are entitled to Rs.12,96,000/- towards loss of dependency and future earnings on account of untimely death of Imran. But, the Tribunal erroneously deducted only 1/3^rd income towards his personal and living expenses from the expected monthly income of the deceased and also applied the wrong multiplier of ‘19’ contained in second column in second schedule of Section 163-A of Motor Vehicles Act, which is erroneous on the face of record and contrary to the principles laid down by the Apex Court. In addition, the Tribunal also awarded an amount of Rs.5,000/- to each petitionerclaimant towards loss of love and affection. If the principles laid down by the Apex Court in Rajesh and others Vs. Rajbir Singh and others^[7] , are applied to the present facts of the case, petitionersclaimants are entitled to an amount of Rs.1,00,000/- towards loss of estate and love and affection and Rs.25,000/- towards funeral

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expenses and the same is awarded by this Court. But, the Tribunal erroneously awarded only an amount of Rs.15,000/- to the petitionersclaimants towards loss of love and affection, which is erroneous on the face of record. Thus, in view of the principles laid down by the Apex Court, petitioners-claimants are entitled to an amount of Rs.14,21,000/only, the Tribunal by applying wrong multiplier, deducted 1/3^rd towards personal and living expenses of the deceased, erroneously awarded an amount of Rs.15,35,000/-. Hence, petitioners-claimants are entitled only to an amount of Rs.14,21,000/-. Thereby, we find no substance in the contentions of the learned Counsel for the petitioners-claimants that the awarded compensation is not just and reasonable and the same needs to be enhanced further. Accordingly, this point is held in favour of the second respondent-Insurance Company and against the petitioners-claimants.

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23. Further, learned counsel for the petitioners-claimants during course of argument, claimed refund of certain amount paid towards college fees etc., but the Tribunal did not order the same. Now the same is challenged before this Court. The Tribunals are constituted only to award compensation for untimely death of deceased persons or claims made by the injured persons in the road accidents, but not for recovery of fees paid etc., though it is an indirect loss to the petitioners, as the amount claimed by the petitioners is not part of compensation, therefore, we are not inclined to order for repayment of the fees amount paid by Imran, to the petitioners-claimants.

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24. POINT Nos.2 and 3: Strange contention raised by learned Standing Counsel for the second respondent-Insurance Company, during the course of argument, is that the accident occurred due to composite negligence. In fact, no such plea was raised in his entire counter before the Tribunal but totally denied occurrence of accident due to negligence of driver of Car. Even otherwise, the accident occurred while the deceased and others were proceeding in the

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Lancer Car bearing No.AP-7F-9009 from C.B.I.T to Narsingi to offer last Friday Ramzan prayers and when the Car reached near Zindal cross-roads, the driver of Car drove the same in rash and negligent manner, and thereby the Car toppled and hit the road-side fencing. The same is born out from the record i.e., Exs.A-1 and A-2, copies of F.I.R. and charge sheet and the evidence of direct witness, PW.2. Thus, negligence is attributable only to the driver of the Car but not to any third party for the reason that there was no involvement of second vehicle to attribute negligence to the driver of other vehicle or to conclude that the accident occurred due to composite negligence of both the vehicles; in the absence of involvement of any other vehicle, the question of composite negligence does not arise. Thus, the plea of occurrence of accident due to composite negligence is totally without any factual foundation in the pleadings or in the evidence, thereby such strange contention without any pleading and without any basis cannot be sustained. Therefore, we are of the considered view that the accident not occurred due to composite negligence as contended by the counsel for Insurance Company and it occurred only due to the sole negligence of Ramchandra Reddy, driver of the Car, at the time of accident.

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25. One of the contentions raised by learned Standing Counsel for the second respondent-Insurance Company before the Tribunal and this Court is that the first respondent handed over the Car to the driver, who had no valid driving license, at the relevant time of accident, and it is a clear violation of terms and conditions of the policy. If really, the accident occurred due to fundamental breach of terms and conditions of the policy, certainly, the second respondent-Insurance company is liable to be exonerated from payment of compensation, in view of the principles laid down by the Apex Court in National Insurance Company Limited Vs. Swaran Singh and others^[8] .

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26. In the instant case on hand, the first respondent was examined

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as RW.1. He filed his affidavit under Order 18 Rule 4 of C.P.C. reiterating the allegations made in the Counter. In the Crossexamination, RW.1 admitted that the driver of Car Ramchandra Reddy is his nephew, studying first year Engineering, aged 19 years and took the Car with his permission; he possessed valid driving license to drive the Car at the time of accident. A suggestion was put to him that Ramchandra Reddy, driver of the Car, was not holding valid and effective driving license and got denial of it, in the entire crossexamination of RW.1, except eliciting that RW.1 did not verify the LLR and its renewal nothing was elicited. Moreover, in the crossexamination of RW.1 by the learned counsel for the petitioners, it is elicited that the driver Ramchandra Reddy was a perfect driver and has been driving the Car for the last 2 years prior to accident.

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27. Taking advantage of these admissions, it is contended by learned Standing Counsel for the second respondent-Insurance Company that when RW.1 was examined and testified that Ramchandra Reddy, who was driving the Car at the time of accident, possessed valid and effective driving license, it is for him to produce driving license preferably before the Tribunal but he did not produce the same. As seen from the principle laid down by the Apex Court in Swaran Singh (8^th supra), the initial burden is upon the second respondent-Insurance Company to prove that there is a fundamental breach of terms and conditions of the policy by adducing cogent and satisfactory evidence. In the instant case on hand, the second respondent-Insurance Company did not produce any evidence to prove violations of terms and conditions of policy. Therefore, the second respondent-Insurance Company failed to discharge its initial burden and consequently the second respondent-Insurance Company cannot be exonerated from its liability to pay compensation under the policy. Hence, we find that the Tribunal did commit no error in awarding compensation fastening liability to the second respondent-

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Insurance Company, who was under obligation to indemnify the loss suffered by the first respondent, being the insured. Hence, the finding of the Tribunal in holding that both the respondents are jointly and severally liable to pay compensation needs no interference of this Court and the same is upheld.

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In the result, the Appeal preferred by the second respondentinsurance Company in M.A.C.M.A. No.1205 of 2007 is allowed, in part, reducing the compensation awarded by the Tribunal from Rs.15,35,000/- to Rs.14,21,000/-. The Appeal preferred by the petitioners-claimants in M.A.C.M.A. No.1349 of 2009 is dismissed. The rate of interest awarded by the Tribunal remains unaltered. Out of the compensation of Rs.14,21,000/- awarded by this Court, first petitioner, being mother, is entitled to an amount of Rs.5,21,200/-, second petitioner, being elder sister, is entitled to an amount of Rs.5,00,000/and third petitioner, being younger brother, is entitled to an amount of Rs.4,00,000/-.

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In consequence, the Miscellaneous Petitions, if any, pending in these Appeals, shall stand closed. No order as to costs.

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_____________________ ASHUTOSH MOHUNTA, J

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M. SATYANARAYANA MURTHY, J

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Date:05-03-2014. Dsh

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY