Partly allowed

The United India Insurance Company Limited v. P.B.Neeraja

Telangana HC14 Feb 2014MACMA/4647/2008

Case brief

AI extract

What is this about?

In two motor accident claims appeals, the Tribunal awarded compensation exceeding the claimants' prayer, holding that the primary goal is 'just compensation'. The High Court upheld the finding of rash and negligent driving, sanctioned the enhanced compensation amount, and reduced the interest rate from 7.5% to 7% per annum.

What did the court decide?

Claimants allowed Rs.19,46,250/- with interest at 7% p.a.; Insurance Company's appeal allowed only to reduce interest rate from 7.5% to 7%.

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

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+THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

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AND

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY MACMA Nos. 4647 OF 2008 AND 2872 OF 2013

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DATED:14-02-2014

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Between:

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The United India Insurance Company Limited, represented by its Divisional Manager, S.D Road, Secunderabad

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… Appellant

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And

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P.B. Neeraja and four others

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… Respondents

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THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

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AND

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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MACMA Nos. 4647 OF 2008 AND 2872 OF 2013

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COMMON JUDGMENT: (per the Hon’ble Sri Justice Ashutosh Mohunta)

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As both the appeals arise out of the same Award, they were heard together and are being disposed of by this common judgment. These appeals are filed aggrieved by the Award dated 07-03-2007 passed in O.P No. 3054 of 2004 by the learned Chairman, Motor Accident Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad. M.A.C.M.A No. 4647 of 2008 is preferred by the Insurance Company being aggrieved by the quantum of compensation, whereas M.A.C.M.A No.2872 of 2013 is preferred by the claimants questioning the inadequacy or otherwise of compensation.

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For the sake of convenience, the parties herein are referred to as ‘claimants’ and ‘Insurance Company’.

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The aforesaid claim petition was filed by the claimants claiming a compensation of Rs.10,00,000/- on account of death of the deceased P.B. Ramu @ Ramam. Claimant No.1 is the wife; claimant Nos.2 and 3 are the children and claimant Nos.4 and 5 are the parents of the deceased. It has been averred in the claim petition that on 01-072004, at about 9.30 PM, while Ramu was proceeding on his motorcycle bearing No. AP 29C 5339 on the left side of the road and when he reached near Sri Sai Nilayam, Moulali, a Hero Honda Splendor motorcycle bearing No. AP 9AK 1058, driven in rash and negligent manner came in opposite direction on the wrong side of the road and dashed against his motorcycle. Ramu fell down and suffered injuries. Immediately after the accident, the injured was shifted to Gandhi Hospital, whereat he succumbed to injuries on 02-07-2004 while undergoing treatment. The motor cycle of the deceased was

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also damaged.

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The Police Malkajgiri, Cyberabad registered a case in Crime No. 233 of 2004, investigated into the matter which disclosed that the accident occurred due to rash and negligent driving of motor cycle bearing No. AP 9AK 1058.

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According to the claimants, the deceased was working as a Supervisor in Lohi Constructions Private Limited and was getting a salary of Rs.8,500/- per month. Due to the untimely death of the deceased, they lost his love and affection and their sole source of dependency. The owner and the insurer of the offending motorcycle are jointly and severally liable to pay the compensation claimed by them.

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Before the Tribunal, respondent No.1 who is the owner of the motorcycle remained exparte and the respondent - Insurance Company filed its counter denying the material allegations averred in the petition. The Insurance Company disputed the manner in which the accident was alleged to have occurred and also the age and earnings of the deceased. It was contended that the deceased was negligent in driving his motorcycle and contributed to the occurrence of the accident. It was also contended that the compensation claimed was excessive.

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On the basis of the above pleadings of the parties, the Tribunal framed the following issues:

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1. Whether the accident took place on 1.7.2004 at about 9.30 p.m. due to rash and negligent driving of Motor cycle Splendor bearing No. AP 9AK 1058, by its driver?

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

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3. To what relief?

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In support of their claim, PWs 1 to 3 were examined and Exs.A1 to A-8 were got marked on behalf of the claimants. On behalf of the Insurance Company,RW 1 was examined and Exs.B-1 and B-2 were got marked.

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The Tribunal after going through the evidence and the material available on record held on issue No.1 that the accident occurred due to rash and negligent driving of the Hero Honda Motorcycle bearing N o . AP AK 1058, by its driver. The Tribunal also held that the claimants are entitled to a total compensation of Rs.10,97,500/- and accordingly, an award was passed for the said amount with interest at 7.5% per annum from the date of the petition till the date of realisation. Hence these appeals as stated supra.

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The learned counsel for the appellants - claimants contended that the compensation awarded is highly inadequate since the Tribunal had taken the contribution of the deceased to the claimants on lower side. The Tribunal has also not granted any amount towards the future prospects of the deceased. The Tribunal has also granted less amount of compensation towards loss of consortium and funeral expenses.

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The learned Standing Counsel for the Insurance Company contended that the accident occurred due to an unidentified vehicle and that Ex.A-1, F.I.R does not contain the number of the motorcycle. He further contended that there was contributory negligence on the part of the deceased and, therefore, the Tribunal ought to have deducted at least 50% of the compensation under contributory negligence. The Tribunal below erred in taking the income of the deceased to be Rs.8,500/- per month and that the rate of interest awarded by the Tribunal is on higher side.

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It is the case of the Insurance Company that the accident

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occurred due to an unidentified vehicle. Even though initially the number of the vehicle was not mentioned in Ex.A-1, F.I.R., but the police after due investigation found that the rash and negligent driving of the driver of Hero Honda Motorcycle was responsible for the accident. Further, PW 2 who is cited as an eye witness to the incident deposed that he noted down the number of the motor cycle. Since the report was not given by PW 2, the number of the motorcycle might not have been mentioned in the F.I.R.

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This Court in Oriental Insurance Co. Ltd., Kurnool v. Muchinthala Bharathamma^[1] held that merely because the number of the offending vehicle was not mentioned in the F.I.R, it cannot be said that the offending vehicle was not involved in the accident. The Supreme Court in Bimla Devi and others v. Himachal Road Transport Corp., and others^[2] held that strict proof of an accident caused by a particular vehicle in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

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In view of the above legal position, the contention of the Insurance Company that the accident occurred due to unidentified vehicle is rejected.

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Insofar as issue No.1 is concerned, PW 2 who is cited as a direct eye witness to the incident deposed that he was present at the place of incident when the accident took place, that while the deceased was going on a motor cycle bearing No. AP 29C 5339 on the left side of the road, motor cycle bearing No. AP 9AK 1058 came in opposite direction and dashed against the motor cycle of the

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deceased. He asserted that the accident occurred due to the rash and negligent driving of the Hero Hondo Splendor Motorcycle by its driver. PW 2 also deposed to have noted down the number of the motorcycle. The Insurance Company did not choose to examine the driver of the offending motorcycle or any other eye witness to the incident to prove that the accident occurred otherwise than as spoken to by PW 2. Further RW 1 admitted that the police after investigation filed charge sheet against the driver of the offending motorcycle. Thus, it is clear that the Insurance Company except making an averment that there was contributory negligence on the part of the deceased has not made any legitimate attempt to prove the same. In the circumstances, we uphold the finding of the Tribunal on issue No.1.

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Insofar as the quantum of compensation is concerned, it is the case of the claimants that the deceased was earning Rs.8,500/- per month. PW 1, the wife of the deceased deposed that the deceased was working as a Supervisor in Lohi Constructions Private Limited drawing a monthly salary of Rs.8,500/- per month. In proof of the income of the deceased,

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PW 1 filed Ex.A-5 salary certificate of the deceased issued by his employer. PW 3, the Manager of Lohi Constructions Private Limited deposed that he maintains salary accounts, that the deceased worked as a Supervisor for about a year and that he was paid Rs.8,500/- per month. Even though PW 3 has not produced the relevant records and Ex.A-5 does not bear any rubber stamp of the firm, the income of the deceased can be taken at Rs.8,500/- per month in view of the fact that RW 1 in his cross examination deposed that the investigator appointed by them secured the salary particulars of the deceased to be around Rs.8,500/- per month or Rs.1,02,000/- per annum.

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Since no amount of compensation was awarded by the Tribunal

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towards the future prospects of the deceased, as the deceased was aged below 40 years, following the judgment of the Supreme Court in Rajesh v. Rajbir Singh^[3] , 50% has to be added towards future prospects i.e., Rs.51,000/- giving a total of Rs.1,53,000/- per annum. Since there are five dependants, one-fourth is to be deducted towards the personal and living expenses, then contribution of the deceased to the claimants comes to Rs.1,14,750/- per annum.

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As per Ex.A-4, postmortem examination report, the deceased was 38 years of age as on the date of accident. In view of the judgment of the Supreme Court in Sarla Verma & others Vs. Delhi Transport Corporation^[4] , as the deceased was 38 years of age as on the date of accident, multiplier of ‘15’ would be applicable to the present case and hence, the total loss of dependency comes to Rs.17,21,250/-(Rs.1,14,750X15). Added to the aforesaid amount, Rs.1,00,000/- has to be awarded towards loss of consortium to the wife, another sum of Rs.1,00,000/- towards loss of love and affection to the children and also a sum of Rs.25,000/- for funeral and transportation charges. Thus, in all, the appellants are entitled to total compensation of Rs. 19,46,250/-.

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Even though the claimants have claimed only Rs.12,00,000/-, they are entitled to the aforestated amount since Section 168 empowers the Claims Tribunal to ‘make an award determining the amount of compensation which appears to it to be just’. The only requirement for determining the compensation is that it must be ‘just’. There is no other limitation or restriction on its power for awarding just

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compensation (see Nagappa v. Gurudayal Singh^[5] ) . Further, in Rajesh’s case (1 supra), the Supreme Court held that the Court should

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award proper compensation irrespective of the claim and, if required, even in excess of the claim. Similar view was also taken by the Supreme Court in Sanobanu Nazirbhai Mirza v. Ahmedabad Municipal Transport Service .^[6]

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For the reasons discussed above, in our view, under the Motor Vehicles Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. As observed by the Supreme Court, the function of the Tribunal/Court is to award 'Just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under Sub-section (4) to Section 166, even report submitted to the Claims Tribunal under Sub- section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition.

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Insofar as the rate of interest is concerned, in view of the judgment of the Supreme Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of India^[7] and in view of Section 171 of the Motor Vehicle Act, we hold that the claimants are entitled to interest at the rate of 7% per annum.

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In the result, M.A.C.M.A No. 2872 of 2013 filed by the claimants is allowed awarding a sum of Rs.19,46,250/- together with proportionate costs and interest at 7% per annum from the date of petition till the date of realization and M.A.C.M.A No. 4647 of 2008 filed by the Insurance Company is allowed in part to the extent of reducing the rate of interest from 7.5% to

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7% per annum.

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Out of the said amount of compensation, claimant No.1 who is the wife of the deceased is held entitled to receive an amount of Rs.10,00,000/-. Claimant Nos.2 and 3 who are the children of the deceased are held entitled to receive an amount of Rs.3,00,000/each. Claimant No.4 and 5 who are the parents of the deceased are held entitled to receive the balance amount of compensation equally (Rs.173125/- each).

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Miscellaneous petitions, if any, pending consideration 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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14^th February, 2014 ks

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