Dismissed

The United India Insurance Company Limited, v. Smt. Konka Latha

Telangana HC25 Aug 2014MACMA/1284/2007

Case brief

AI extract

What is this about?

Appeal by insurance company against Motor Vehicle Accident Claims Tribunal award. Court held Tribunal erred not in using gross salary for dependency. Section 163A and 166 filing jointly not fatal. Dismissed appeal, upheld Rs. 8,04,990 compensation.

What did the court decide?

Appeal against Tribunal award dismissed; compensation of Rs. 8,04,990 confirmed.

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

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR M.A.C.M.A No. 1284 of 2007

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JUDGMENT:

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The present appeal is filed under Section 173 of the Motor Vehicles Act, by the second respondent-insurance company, challenging the order dated 03.01.2007 passed in O.P.No.300 of 2003 on the file of Motor Vehicle Accident Claims Tribunal-cumDistrict Judge, Adilabad. For the sake of convenience, the parties will hereinafter be referred to as arrayed in the Tribunal.

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2. The facts in issue are as under:

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The claimants who are the wife, minor son and parents of one Konka Srinivasa Rao (hereinafter referred to as the deceased) filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.12,50,000/- on account of the death of the deceased in a road accident that occurred on 09.03.2003.

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The averments in the claim petition, in brief, are that on 09.03.2003 at about 6.30 PM, while the deceased Konka Srinivasa Rao was proceeding on his motorcycle from Srirampur side to Godavarikhani side, on the way near IK-I turning, one Tipper bearing No. AHT 9914 driven by its driver in a rash and negligent manner came in wrong side and dashed the motorcycle of the deceased due to which the deceased fell down and the tipper ran over the deceased leading to instantaneous death. The deceased was aged about 33 years at the time of accident, and prior to the accident, he was working as a Coal Filler in RK-7 Incline drawing Rs.8,412/- as monthly salary which he used to contribute the same to his family. Alleging that the accident occurred due to the rash and negligent driving by the driver of the offending tipper, the claimants filed the claim petition seeking compensation of

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Rs.12,50,000/- payable by respondents 1 and 2 jointly and severally.

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The first respondent remained exparte while the second respondent filed counter denying the manner in which the accident took place, age, income and also the avocation of the deceased.

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

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(i) Whether the deceased K. Srinivas Rao died in motor accident dt. 9.3.2003 involving vehicle bearing No. AHT 9914?

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(ii) If so, whether the accident took place on account of rash and negligent driving of the vehicle bearing No. AHT 9914 by the respondent no.1’s driver?

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(iii) Whether the petitioners are entitled for compensation? If so, to what amount and from which of the respondents?

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(iv) To what relief?

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In support of the claim, the claimants examined PWs.1 to 3 and got marked Exs.A1 to A10. No oral or documentary evidence was adduced on behalf of the second respondent, but a copy of policy was marked as Ex.B1.

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After analyzing the evidence available on record, the Tribunal held that the accident took place due to the rash and negligent driving by the driver of the offending tipper, and awarded compensation of Rs.8,04,990/- payable by the respondents 1 and 2 jointly and severally. Challenging the same, the insurance company filed the present appeal.

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3. Learned counsel for the appellant mainly submits that the Tribunal erred in taking into consideration the gross salary of the deceased for the purpose of calculating the loss of dependency.

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According to him, only net income has to be taken into consideration for the purpose of calculating loss of earnings. He further submits that filing of the claim application both under Section 163A as well as under Section 166 of the Motor Vehicles Act is contrary to the procedure as the claimant has to choose any one of the said provisions.

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4. Per contra, learned counsel for the second respondent opposed the appeal contending that the findings of the Tribunal do not suffer from any illegality or infirmity warranting interference.

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5. Though the present appeal is filed challenging the order passed in the O.P., learned counsel for the appellant did not dispute the manner in which the accident took place. His main contention is that the Tribunal erred in taking the gross salary of the deceased for calculating the loss of dependency and also maintainability of the application under Sections 163A and 166 of the Act. As seen from the record, PW1 in her evidence stated that she is the wife of the deceased, claimant No.2 is her son and claimants 3 and 4 are her parents-in-law. According to her, the deceased was aged about 33 years at the time of accident and was earning Rs.8,412/- per month as Coal Filler in RK-7 mine of Singareni Collieries Company Limited. In order to substantiate the earnings of the deceased, the claimants examined the clerk in Singareni collieries as PW3. PW3 in his evidence deposed that the deceased was working as Coal Filler in their company and that he was a permanent employee. Ex.A10 is the pay slip issued by the Colliery Manager of SMG mine which indicate that the deceased was working as Coal Filler. The said certificate also shows that the deceased was getting an income of Rs.8,412/- per month. The issue as to whether the net income or gross income

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has to be taken into consideration is no more res integra in view of the Apex Court judgment in MANASVI JAIN v. DELHI TRANSPORT CORPORATION AND OTHER S^[1] , wherein the Apex Court held as under:

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“In the present case, there is no dispute about the salary of the deceased. As per salary certificate, his monthly income and deductions are as under:

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Monthly income : Rs.26,950 Deductions: Provident fund : Rs.8,000/House rent : Rs.525/G.I.S. : Rs.120/Income Tax : Rs.2,500/-

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So, from the above Table, it is clear that except an amount of Rs.2,500/- for income tax, rest of the amounts were voluntarily contributed by the deceased for the welfare of his family. Considering the decision of this Court in SHYAMWATI SHARMA, 2010 ACJ 1968(SC), in our opinion, except contribution towards income tax, the other voluntary contributions made by the deceased which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take home salary of the deceased comes to Rs.24,450 which can be rounded off to Rs.25,000.”

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6. Since the income of the deceased was out of the tax bracket prevailing during the said period, and as other voluntary contributions made by the deceased are in the nature of savings, the Tribunal took the income of the deceased at Rs.76,500/- per annum and the same was not challenged by the claimants though

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the gross income of the deceased would be more than that. Deducting 1/3^rd towards personal and living expenses, the contribution of the deceased to his family was held to be Rs.51,000/-. Since the age of the deceased was about 33 years at the time of accident, the Tribunal took multiplier 15.49 as per II Schedule and awarded Rs.7,89,990/-. The Tribunal also awarded Rs.10,000/- towards loss of consortium which cannot be interfered with though it is on the lower side. Coming to the argument with regard to the filing of the claim petition under Sections 163A and 166 of the Act, it is to be seen that the claimants have adduced evidence with regard to the manner in which the accident took place and since the claimants have led evidence to prove the manner in which the accident took place, it is to be presumed that they proceeded as if it was an application under Section 166 of the Act.

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7. Since evidence was adduced to prove the manner in which the accident took place and also the income earned by the deceased, no prejudice is caused to the respondent by referring to Section 163A in the claim petition. The Motor Vehicles Act is a beneficial legislation intend to provide just and reasonable compensation to the victims of motor vehicle accidents to the extent possible. The provisions have to be construed liberally in favour of the claimants. In the matter of determination of compensation, both the Tribunal and the Court are statutorily charged with a responsibility of fixing a “just compensation”. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of “just compensation” obviously suggests application of fair and equitable

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principles and a reasonable approach on the part of the Tribunals and the Courts. This reasonableness on the part of the Tribunal and the Court must be on a large peripheral fold. Both the Courts and the Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable.

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8. For the aforesaid reasons, this Court is of the view that there are no merits in the appeal and the same is liable to be rejected. Consequently, the appeal is dismissed, confirming the findings of the Tribunal.

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_____________________________ JUSTICE C. PRAVEEN KUMAR

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25.08.2014 ksm

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[1] 2014 ACJ 1416

The United India Insurance Company Limited, v. Smt. Konka Latha

Case brief

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The United India Insurance Company Limited, v. Smt. Konka Latha

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