Dismissed

Reliance General Insurance Company Limited v. Smt. K. Surya Kalavathi

Telangana HC7 Oct 2014MACMA/321/2010

Case brief

AI extract

What is this about?

This judgment appeals against a compensation award for a motor vehicle death. The court upholds the Tribunal's award of Rs.29.12 lakhs, rejecting the insurer's plea for reduction based on the widow's compassionate appointment and dismissing claims for higher interest and loss of consortium.

What did the court decide?

Both the appeal and cross objections were dismissed; no order as to costs; miscellaneous petitions stood closed.

Reliance General Insurance Company Limited Vs Smt… — Motor Accident Claims | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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M.A.C.M.A.No.321 OF 2010 AND CROSS OBJECTIONS (SR) No.31426 OF 2010.

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COMMON JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu)

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This appeal by the appellant/Reliance General Insurance Company Limited under Section 173 of the Motor Vehicles Act, 1988, (for short, “the Act”), is directed against the Award and decree, dated 20.7.2009, in M.O.P.No.697 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Ranga Reddy District at L.B.Nagar (for short, “the Tribunal”) wherein the petition filed by respondent Nos.1 to 4 herein/claimants for compensation of Rs.40,00,000/- consequent on the death of one K.Srinivas Rao (hereinafter referred to, as “the deceased”) in a motor vehicle accident that took place on 5.4.2007 was allowed in part granting compensation of Rs.29,12,000/- with proportionate costs and subsequent interest at 6% per annum from the date of the petition till the date of realization.

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2. Respondent Nos.1 to 4/claimants filed Cross Objections aggrieved by the same judgment for not awarding the entire claim of Rs.40,00,000/-; for awarding only 6% per annum interest instead of 18% per annum on the amount awarded; for not fixing the income of the deceased at higher side instead of Rs.20,000/- per month for determining the quantum of compensation; for not applying the multiplier “17” by taking the age of the deceased as “35” instead of multiplier “16” by taking the age of the deceased as “38”, and for not awarding Rs.50,000/- towards loss of consortium instead of awarding Rs.15,000/-.

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3. The claimants filed the claim application under Section 166 of

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the Act stating that they are the legal heirs and dependants of the deceased; that on 05.4.2007, at about 9.00 a.m., the deceased and his friend – Kantheti Sriram were proceeding to their office on Hero Honda Motor Cycle bearing No.AP 29 3376; that on the way, when they reached near Panama Godown X road, on seeing the red signal, they stopped the motor cycle and at that time, one lorry bearing No.AP 29U 0499, being driven by its driver at a high speed and in a rash or negligent manner, came from behind and dashed the motor cycle; that due to the said hit, the deceased sustained bleeding injuries and immediately, he was shifted to Kamineni Hospital at L.B.Nagar for treatment; that on the same day, the deceased succumbed to the injuries while undergoing treatment in Kamineni Hospital; that on a complaint, the Station House Officer, Vanasthalipuram Police Station registered a case in Crime No.189 of 2007 against the driver of the said lorry; that the accident occurred due to the rash and negligent driving of the said lorry by its driver and that the owner of the said lorry and the Insurance Company are jointly and severally liable to pay the compensation to them.

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4. Respondent No.5 herein/owner of the aforementioned lorry remained ex parte.

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5. Appellant herein/Insurance Company filed written statement before the Tribunal stating that the alleged lorry was not insured with this appellant at the time of the accident and that the person, who drove the vehicle at the time of the accident, was not having valid and effective driving license to drive the vehicle, and that the insured, in collusion with the claimants, had not reported the matter of accident to this appellant; that the quantum of compensation claimed was highly excessive, imaginary, exorbitant and that the petition was devoid of any merits and hence, prayed to dismiss the petition with costs.

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6. Basing on the above pleadings, the Tribunal framed the following issues for trial:

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(1) Whether the pleaded accident occurred resulting in the death of the deceased, K. Srinivas Rao, due to the rash and negligent driving of the lorry bearing No.AP 29U 0499 by its driver?

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(2) Whether the petitioners are entitled to any compensation, and if so, what quantum and what is the liability of the respondents?

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(3) To what relief?

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7. To prove the case of the claimants, P.Ws.1 to 3 were examined and got marked Exs.A.1 to A.8. On behalf of the appellant/Insurance Company, none were examined, but got marked Ex.B-1-Copy of Insurance Policy.

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8. The Tribunal, after considering the oral and documentary evidence on record, came to the conclusion that the accident occurred due to the rash or negligent driving of the driver of the aforementioned lorry causing the death of the deceased and accordingly, awarded compensation, as mentioned supra. Challenging the same, Insurance Company filed the present appeal and the claimants filed the Cross Objections.

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9. It is not in dispute before this Court that a fatal accident had taken place on 5.4.2007. On that day, at about 9 a.m., while P.W.2 and the deceased were proceeding to their office on Hero Honda Motor Cycle bearing No.AP 29 3376 and when they reached near Panama Godown X road, they stopped their vehicle, as there was a red signal. At that time, the lorry bearing No.AP 29U 0499 came in a high speed in a rash or negligent manner and dashed the motor cycle of the deceased as a result, the deceased sustained injuries and succumbed to them while undergoing treatment. P.W.2 is the eye witness to the incident. He categorically stated that when the motor cycle was stopped at Panama Godown Cross Road on seeing the red signal, the

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aforementioned lorry came from behind at a high speed and in a rash and negligent manner and dashed the motor cycle. No contra evidence was adduced on behalf of the appellant herein or respondent No.5 herein to show that the accident was not caused due to the rash and negligent driving of the offending vehicle. As P.W.2 and the deceased were following the traffic rules, there was no justification at all for the driver of the lorry to dash the motor cycle of the deceased. In such circumstances, rashness or negligence can be inferred from the facts and circumstances of the case. Therefore, the finding of the Tribunal that the accident occurred due to the rash or negligent driving of the driver of the lorry remained unchallenged.

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10. Coming to the point of quantum of compensation, it is not in dispute that the deceased was aged about 38 years as on the date of the accident and he was working as a Record Assistant in the High Court of Andhra Pradesh, Hyderabad and was drawing a monthly salary of Rs.10,403/- at the time of the incident. It is also not in dispute that respondent No.1, who is the wife of the deceased, was appointed as Record Assistant in the High Court of Andhra Pradesh, Hyderabad on compassionate grounds consequent on the death of the deceased in the said motor vehicle accident.

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11. Learned counsel for the appellant/Insurance Company contended that since respondent No.1 was appointed as a Record Assistant in the High Court of Andhra Pradesh, Hyderabad on compassionate grounds, the compensation has to be reduced; that the Tribunal wrongly assessed 100% increase in the income of the deceased and hence, he prays to set aside the impugned Award of the Tribunal.

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12. On the other hand, learned counsel appearing for respondent Nos.1 to 4/claimants contended that when the dependant of the deceased was appointed on compassionate grounds, the same cannot be taken into consideration while assessing the compensation; that

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100% increase in the future income of the deceased can be made and thereafter, 1/4^th deduction has to be made towards his personal expenses; that after deducting the said amount, the Tribunal rightly granted the compensation and that order needs no interference by this Court, and hence, he prays to dismiss the appeal and allow the Cross Objections.

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13. With regard to the income of the deceased, P.W.3, who was the Assistant Registrar of the High Court of Andhra Pradesh, produced Ex.A-7 – Last Pay Certificate issued by Deputy Registrar and Drawing Officer, High Court of Andhra Pradesh. Ex.A-6 is the service certificate of the deceased issued by him. As per Ex.A-7 and the evidence of P.W.3, it is clear that the deceased was getting a net monthly income of Rs.10,503/-. So, that income can be taken as the income of the deceased as on the date of the accident. As the deceased was aged about 38 years, as seen from the documents filed by respondent Nos.1 to 4, the suitable multiplier is “16”.

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14. Learned counsel for respondent Nos.1 to 4 relied upon a decision reported in Vimal Kanwar and others v. Kishore Dan and others^[1] wherein it is held at para No.20 as under:

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“The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction.”

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“Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e., while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment

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but that cannot be termed as “Pecuniary Advantage” that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.”

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From the above decision, it is clear that any amount received on such compassionate appointment is not liable for deduction for determination of the compensation.

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15. On the other hand, learned counsel for the appellant/Insurance Company placed reliance on a decision reported in Bhakra Beas Management Board v. Kanta Aggarwal and others^[2] wherein it is held at para No.12 as under:

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“But we find that the High Court lost sight of the fact that the benefits which the claimant receives on account of the death or injury have to be duly considered while fixing the compensation. It is pointed out that respondent No.1 was getting Rs.4,700/- per month and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident.”

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There is no ratio laid down in the above decision to show that the benefits derived by appointment on compassionate grounds can be deducted while calculating the compensation. Further, in the case of Vimal Kanwar (1 supra), the Supreme Court allowed 100% increase in the future income of the deceased and ultimately, calculated the compensation. In pursuance of the same, the Tribunal increased the future income of the deceased by 100%, which comes to Rs.20,000/-. After deducting 1/4^th for the personal expenses of the deceased, the remaining amount of Rs.15,000/- per month has been taken into consideration for fixing the quantum of compensation.

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Compensation under head “Loss of dependency” = Rs.28,80,000/(16 x 12 x 15,000/-)

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Compensation under head “Loss of Consortium” = Rs. 15,000/-

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Compensation under head “Loss of estate” = Rs. 15,000/Compensation under head “Funeral and other expenses” = Rs. 2,000/-

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_________________ Total compensation = Rs.29,12,000/-

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Therefore, that order needs no interference of this Court as there is no illegality in awarding the compensation. Hence, both the appeal as well as the Cross Objections are liable to be dismissed.

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16. Accordingly, the M.A.C.M.A. and the Cross Objections are dismissed. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this appeal and the Cross Objections shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS Date: 07.10.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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M.A.C.M.A.No.321 OF 2010 AND CROSS OBJECTIONS (SR) NO.31426 OF 2010.

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DATE: 07.10.2014