Dismissed

The United India Insurance Company Limited v. Kommu Kumuramma

Telangana HC5 Sept 2014MACMA/2412/2007

Case brief

AI extract

What is this about?

In an appeal by United India Insurance Company Limited against a Motor Vehicle Accident Claims Tribunal order awarding Rs.3,58,000 compensation to the wife of a deceased bicyclist, the Single Judge dismissed the appeal. The court held the quantum was reasonable based on available evidence and the multiplier was appropriate.

What did the court decide?

The appeal filed by United India Insurance Company Limited challenging the compensation award was dismissed. No order as to costs.

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

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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M.A.C.M.A. No.2412 of 2007

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JUDGMENT:

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Aggrieved by the order dated 22.05.2007 passed in O.P.No.538 of 2006 on the file of the Motor Vehicle Accident Claims Tribunal (District Judge), Warangal, the United India Insurance 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 children of one Kommu Komaraiah filed a petition under Section 166 of the Act claiming compensation of Rs.6,00,000/for the death of said Komaraiah in a road accident occurred on 15.05.2005. It was stated that on the said day at about 9.45 p.m., the deceased was proceeding towards his house and when he reached the place of accident, a Suzuki Motor cycle bearing No.AP 36 K 0356 driven by its driver in a rash and negligent manner dashed the deceased. As a result of which the deceased sustained grievous injuries and immediately there after he was shifted to MGM Hospital, Warangal, where he succumbed to injuries on the next day. It was stated that the deceased was aged about 52 years at the time of the accident and the entire family was dependent on him. Since the accident took place due to negligent driving of the driver of the motor cycle which belonged to the first respondent and as the second respondent is the insurer of the said vehicle, the claim petition was filed making both the respondents jointly and severally liable to pay compensation.

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The first respondent, owner of the vehicle remained ex parte, while the second respondent filed a counter denying the manner in which the accident took place and also the age, income and avocation of the deceased. According to them, the deceased alone is responsible for the accident as he was crossing the road without observing the incoming vehicles. In any event it is 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 is due to rash and negligent driving by the rider of Suzuki Motor Cycle bearing No. AP 36 K 0356?

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2. Whether the petitioners are entitled to claim compensation, if so, to

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what amount and from whom?

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3. To what relief?

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In support of his claim, the claimants examined PWs.1 and 2 and got marked Exs.A1 to A6. No oral or documentary evidence has been adduced on behalf of the respondents.

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After considering 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 motor cycle and that the claimant No.1, who is the wife of the deceased alone is entitled to a sum of Rs.3,58,000/- as compensation with interest at 7.5% p.a. from the date of petition till the date of realization with proportionate costs to be paid by both the respondents jointly and severally. However, the claim of claimant Nos.2 to 5 was rejected. Challenging the same the insurance company preferred the present appeal.

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The learned counsel for the appellant mainly submits that the quantum of compensation awarded by the Tribunal to the claimant No.1 is on higher side. It is her contention that the Tribunal erred in fixing the income of the deceased at Rs.3,000/- when there is no evidence to substantiate the same. It is further contended that the multiplier adopted by the Tribunal is incorrect and the same needs to be rectified. According to her there are no eye witnesses to the accident and if really any eye witness has witnessed the incident the vehicle number would have been mentioned in the First Information Report. Since the number of the vehicle is not reflected, it is contended that there is no positive evidence to show that the vehicle involved in the accident was Motor cycle bearing No. AP 36 K 0356.

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Per contra the learned counsel for the claimants submits that the findings of the Tribunal are based on the evidence available on record and as such the same warrants no interference.

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In order to appreciate the rival submissions it may be necessary to refer to the evidence available on record.

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PW.1, who is the wife of the deceased, is not an eye witness to the incident. According to her, when the deceased was walking on the extreme left side of the road, a motor cycle bearing No.AP 36 K 0356 driven by Janagani Srinivas in a rash and negligent manner hit her husband. It is her evidence that because of the hit, her husband fell down and sustained injury on the back of the head leading to his death on the next day. During cross examination, it has

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been elicited that the deceased was running a bakery since 10 years but however PW.1 admits that she has not filed any document to prove the same. Though the bakery was established in rented premises no rental deed was produced. PW.1 also admits that no documents relating to the agriculture lands are filed to show the income on the said land. To a suggestion that the vehicle was not involved in the accident was denied by her.

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The claimant also examined PW.2, is an eye witness to the incident. According to him on the date of accident at about 9.00 p.m. while he was at Arepally main road to go to his house, observed the deceased proceeding in the same direction. In his evidence, he categorically deposed about the crime vehicle driven by its driver in a rash and negligent manner and dashing the deceased. His evidence further shows that immediately after the accident he along with some others shifted the deceased to M.G.M. Hospital, Warangal. During cross examination it was elicited that at the time of the accident he was returning to his village from his agriculture well and that the accident occurred in front of him. To a suggestion that he did not witness the accident was denied by him. It has been elicited in the cross examination of PW.2 that himself and others took the injured in an auto to M.G.M.Hospital, Warangal. After joining the deceased in the hospital he went away. He also deposed about the son of the deceased giving report to the police and he giving the number of the crime vehicle to the son of the deceased after 10 days of the report.

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The First Information Report which is placed on record as Ex.A1 came to be registered pursuant to a report given by Kommu Kumaraswamy, who is none other than the son of the deceased. In respect of the above report a case in Crime No.80 of 2005 of Hasanparthy Police Station came to be registered for an offence punishable under Section 304-A IPC. It is true that the vehicle number is not mentioned in the First Information Report (Ex.A1) and also in the Inquest Report (Ex.A2), but the police after completing the investigation filed charge sheet (Ex.A6) against the rider of the motor cycle holding him responsible for the accident. The said charge sheet which is placed on record as Ex.A6 would show that on 25.05.2005 the owner of the crime vehicle, who was examined by the police as LW.12 brought the accused (driver of the crime vehicle) and produced him before LW.15 the investigating officer of the crime, who affected the arrest of the driver by issuing arrest card. No contra evidence has been placed on record to show that the said vehicle belonging to the first

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respondent was not involved in the accident. PW.2 was cited as LW.7 in the charge sheet. Therefore, the evidence of PW.2 coupled with Ex.A6 the charge sheet filed by the police after investigation amply establishes that the accident took place due to rash and negligent driving by the driver of the motor cycle. In view of the evidence of PW.2 coupled with Exs.A1 and A6 it can safely be held that the accident occurred due to rash and negligent driving by the driver of the motor cycle.

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Coming to the quantum of compensation, the evidence of PW.1 would show that the deceased who was aged about 52 years at the time of the accident, was an agriculturist having Ac.5.00 of land and also running a bakery at Arepally bus stand; earning Rs.10,000/- per month. As contended by the learned counsel for the appellant the claimants did not produce any evidence to show that the deceased was having Ac.5.00 of land and also doing business in bakery items. But the suggestion given to PW.1 would show that the elder son of the deceased was running bakery shop and not the deceased. From the said suggestion made by the counsel for the insurance company it is clear that the family of the deceased was doing business in bakery items at Arepally bus stand. The version in the First Information Report given by the son of the deceased would show that when the deceased was proceeding to the house from the bakery shop the accident took place. PW.1 in her evidence stated that at the time of the accident she was in the bakery while her husband went home to have dinner. Therefore, the evidence on record amply establish that the bakery was run by the either the deceased or the entire family. In view of the above, it can be said that the income of Rs.125/- per day as fixed by the Tribunal appears to be just and reasonable. Definitely, the deceased has to be placed on a much better footing than that of daily wage worker, whose income would not be less than at Rs.75/- to Rs.100/- per day during the said period. If the income of the deceased was taken at Rs.3,750/- per month, the annual income would be Rs.45,000/-. After deducting 1/3^rd amount towards personal and living expenses, the contribution of the deceased to the family would be Rs.30,000/- per annum. If the age of the deceased is taken as 55 years the suitable multiplier to be adopted would be ‘11’ in view of the judgment of the Apex Court in Sarla Verma v. Delhi Transport Corporation. Hence, the loss of dependency would be Rs. 3,30,000/- (Rs.30,000/- x 11). Therefore, the compensation awarded by the Tribunal towards loss of dependency appears to

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be just and reasonable. The Tribunal also awarded a sum of Rs.28,000/towards loss of consortium, loss of estate and funeral expenses, which though appears to be on a lower side warrants no interference as the claimants failed to question the same.

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For the aforesaid reasons, the appeal is dismissed.

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There shall be no order as to costs.

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Miscellaneous petition pending in this appeal, if any, shall stand closed.

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_________________________ JUSTICE C. PRAVEEN KUMAR

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05.09.2014 gkv

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2013 (110 SCC 507 Gurudeep Singh v. Bheem Singh the Apex Court while dealing with the aspect of eye witness in a motor accident claim cases observed as under: (extract para No.15)

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Extract relevant para with regard to charge sheet in 2013 (1) SCC 695.

The United India Insurance Company Limited v. Kommu Kumuramma

Case brief

What is this about?

What did the court decide?

The United India Insurance Company Limited v. Kommu Kumuramma

Case brief

What is this about?

What did the court decide?

What the court decided

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