Partly allowed

The New India Assurance Company Limited Nirmal v. Shantamma and 2 Others

Telangana HC8 Sept 2022MACMA/1806/2013

Case brief

AI extract

What is this about?

The High Court restrained an insurer from arguing that workmen compensation Act was the exclusive remedy, noted that compensation can be enhanced beyond claimed amounts to ensure justice, and enhanced the award despite the insurer's objections.

What did the court decide?

Enhanced compensation granted as Rs.5,35,000/- plus interest at 7.5% per annum; appeal dismissed against the enhancement.

The New India Assurance Company Limited Nirmal Vs… — Motor Accident Claims | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA

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AT HYDERABAD

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THURSDAY, THE EIGHTH DAY OF SEPTEIV1BER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE N.TUKARAMJI

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M.A.C.M.A. NO: 1806 OF 2013

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Appeal Under Section 173 of Motor Vehicles Act against the Order and Decree made in O.P.No. 680 of 2004 dated 06.10.2005 on the file of the Court of the Chairman Motor Accident Claims Tribunal-cum-ll Additional District & Sessions Judge, (FTC) at Adilabad.

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Between:

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The New India Assurance Company Limited, Rep. by its Branch Manager, Near Old Bus Stand, Branch Nirmal, Nirmal.

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...Appellants/Respondent No.2

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AND

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Shantamma, Wo Late Ramulu, House hold R/o Sonala Village, Boath Mandal, Adilabad District.

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Anil, S/o Late Ramulu Student, minor, Under Guardianship of Respondent No..1. Fl/o Sonala Village, Boath Mandal, Adilabad District.

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...Respondents/Petitioners

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Bothula Gajjaram, S/o Gannanna, aged major Owner of Tractor and Trailer no. AP 0'1V 246 No Sonala Village, Boath Mandal, Adilabad District.

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...Respondents/ Respondents

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MACMAMP. NO: 3241 OF 2006

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Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased stay the execution of decree and^judgment passed in OP.NO. 680 of 2004 dated 06-10-2005 on the file of the Chairman, MACT cum ll Addl. District and Sessions Judge at Adilabad pending the final disposal of the main Appeal.

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Counsel for the Appellant : SRI KOTA SUBBA RAO

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Counsel for the Respondents 1 & 2 : SRI S. SURENDER REDDY

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Counsel for the Respondent No.3 : M/s. B. SAI PRIYA

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The Court delivered the following: JUDGMENT

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THE HONOURABLE SRI ]USTICE N. TUKARAMJI M.A.C.M.A No. 18O6 of 2013

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JUDGMENT:

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This appeal has been filed by the 2nd respondent/insurer disputing the liability and quantum of compensation fastened in the decree and award dated 06.10.2005 in O.P.No.680 of 2004 on the file of Chairman, Motor Accidents Claims Tribunalcum-Il Addl. District and Sessions Judge (FfC), at Adilabad.

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The wife and minor son of one Ramulu who died in the vehicular accident on 29.O1.2004, filed the claim petition for compensation of Rs.2,00,O0O/- under Section 166 of the Motor Vehicle Act, 1988 (for short, 'the MV Act')

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The petitioners' case in brief is that on 29.01.2004, while Ramulu/deceased along with other labourers was^proceeding in the tractor and trailer bearing No.APO1-V-246 and APO1-V245 (hereinafter, tractor) with the teakwood logs to Gurrala Thanda from Sonala village, at out skirts of Sonala Village, driver of the tractor drove the vehicle in rash and negligent

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NTR,J macma 1806 2013

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manner and dashed a bridge due to which he received head injury and while undergoing treatment succumbed to injuries.

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After due enquiry, the Tribunal held that the accident was occurred due to negligent and rash driving of the tractor and awarded Rs.2,00,000/- with interest at 9o/o^per annum against the owner and insurer of the tractor/1't and 2nd respondents.

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5 In appeal the appellant/2nd respondent (hereinafter, 'the appellant') would contend that the Tribunal should have limited the liability of the claimants as per the Employees (Workmen) compensation Act. Further, the multiplier applied and the interest awarded is on higher side, thus, the same are liable to be reduced.

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On the other hand, the respondents/claim petitioners (hereinafter, 'the petitioners') has supported the conclusions of the award and pleaded that the petitioners are entitled to claim compensation either under Motor Vehicles Act or Employees Compensation Act. Thus, the liability fixed by the Tribunal is justified. Further, pleaded that the multiplier

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employed and the interest awarded are proper. However, the future prospects of the deceased has not been considered and meagre amounts were awarded under conventional heads, thus though they are entitled for more compensation, for lack of proper advice, cross appeal or objections had not been filed. However, as they are entitled for the just compensation, prayed for reassessment.

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In this context, the point that arises for determination is:

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a. Whether the claim petitioner for compensation under the MV Act is maintainable?

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b. Whether the compensation awarded to the petitioners is just and proper?

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The petitioners'claim is that Ramulu/deceased was on the tractor at the relevant hour as labour. There is no material on record suggesting that he is the employee of the owner of the tractor/1't respondent. The appellant except contending that the clbim is not maintainable under the MV Act failed to refer any legal provision or proposition. Further, the Hon'ble Apex Court , while examining a similar aspect, in the authority

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between National Insurance Co. Ltd. Vs. Prembhai Patell held that compensation for death of workman due to motor vehicle accident arising out of and in the course of employment can be claimed by the legal representatives either under workmen (Employees) Compensation Act or the MV Act. Thus, the petitioners at their discretion could avail option to pursue remedies under either of the enactments, as such, this contention of the appellant fails on merit.

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Regarding the quantum, the petitioners pleaded that the deceased was aged about 45 years and was earning Rs.5,000/- per month as Hamall. However, no specific document is filed to prove the age or income. The entries in First Information Report/Ex.A1, injuries certificate/Ex.44 are showing the age of Ramulu/deceased as 45 years. Thus, the age of the deceased can be believed at 45 years by the relevant date. Further, the occupation pleaded has no documentary proof. However, consldering the manual wages at relevant period and the income earning capacity at the age of deceased, monthly income at Rs.3,000/- can be accepted.

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The Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others2 held that while assessing the compensation in the cases of death, future prospects shall also be taken into account. Considering the age and occupation of the deceased, 25o/o of the annual income has to be taken towards future prospects. Further, having regard to the number of dependants, 1/3'd amount shall be deducted towards personal expenditure. Thus, the annual contribution of the deceased to the petitioners would be Rs.30,000/-. This amount if multiplied with the appropriate multiplier applicable to the age of the deceased i.e.,'14', it would come to Rs.4,20,000/-. The petitioners are entitled to this amount for the loss.

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In addition, the petitioners are also be qualified to get Rs.15,000/- each under the heads of funeral expenses and loss of estate. Further, the 1't petitioner and 2nd petitioner are eligible for Rs.40,000/- each as spousal and^parental consortiu m respectively.

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Therefore, the petitioners are entitled for compensation

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as under: -

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LossofDe enden	Rs.4 20 000
Funeral expenses	Rs.15 000
Lossofestate	Rs.15 000
Spousalconsortiumtothe1't petitioner	Rs.40,000
Parental consortiumtothe2 petitioner	Rs.40,000
TOTAL	Rs.5 35 000

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Section 168 of Motor Vehicles Act endorsed a statutory duty on the Court to award^just and reasonable compensation. In addition, Order XLI, Rule 23 of C.P.C. empowers the appellate Court to pass the required orders in the interest of justice. The Hon'ble Apex Court in Nagappa Vs. Gurudayal Singh & Ors held that the compensation amount can be awarded beyond the claimed amount, if the compensation is just and proper.

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Further, the Hon'ble Apex Court in Jithendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others3 and also in three judge bench in

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NTR,J nlacma 1806 2013

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Surekha and others Vs. Santosh and othersa held that the higher compensation than the claimed can be awarded without their being any cross appeal or objection, owing to the statutory duty of awarding just compensation. Therefore, the petitioners are awarded above arrived compensation.

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Further the award of interest rate should be based on the bank rate on the annual deposits at relevant time. The appellant except raising contention, failed to^place any tenable material for consideration. In this position, though there is fluctuation in the rate of interest, considering the average rate of interest, awarding 7.5olo interest on the compensation amount is found reasonable.

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Consequently, the appeal is disposed of in the following terms:

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IS a. The appeal filed by the appellant/2nd respondent dismissed;

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b, However, the respondents are awarded compensation of Rs.5,35,OOO/- (Rupees five lakhs thirty five thousand

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only) with interest at 7.5o/o per annum from the date of petition till realization;

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c. The owner/1't respondent and the appellant/2nd respondent/insurer are jointly and servally liable to pay the compensation and they are directed to deposit the awarded amount with interest within one month from the date of receipt of copy of the order;

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d. On deposit of enhanced amount with interest the respondents/petitioners are permitted to withdraw entire amounts as apportioned by the Tribunal in the Award.

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As a sequel, miscellaneous petitions, if any pending, shall stand closed.

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sD/- B. SATYAVATHI DEPUTY REGISf,RAR //TRUE COPY// / L/ SECTION OFFICER

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To,

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The Chairman, M.A.C.T-cum-ll Additional^{District andSessions Judge(FTC),} Adilabad. (with records)

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One CC to Sri KOTA SUBBA^{RAO, Advocate} [OPUC]

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One CC to M/s. B. SAI PRIYA,^Advocate [OPUC]

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One CC to Sri S. SURENDER^{REDDY,Advocate} [OPUC]

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Two CD Copies.

NJB

HIGH COURT

DATED:0810912022

JUDGMENT

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MACMA.No.1806 of 2013

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DISMISSING THE MACMA WITHOUT COSTS

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE N.TUKARAMJI

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M.A.C.M.A. NO: 1806 OF 2013

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Between:

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The New lndia Assurance Company Limited, Rep. by its Branch Manager, Near Old Bus Stand, Branch Nirmal, Nirmal.

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...Appellants/Respondent No.2

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AND

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Shantamma, Wo Late Ramulu, House hold F/o Sonala Village, Boath Mandal, Adilabad District.

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Anil, S/o Late Ramulu Student, minor, Under Guardianship of Respondent No.1. Fl/o Sonala Village, Boath [Vlandal, Adilabad District.

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...Respondents/Petitioners

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Bothula Gajjaram, S/o Gannanna, aged major Owner of Tractor and Trailer no. AP 01V 246 Fl/o Sonala Village, Boath Mandal, Adilabad District.

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...Respondents/ Respondents

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Appeal Under Section 173 of Motor Vehicles Act against the Order and Decree made in O.P.No. 680 of 2004 dated 06.10.2005 on the file of the Court of the Chairman, Motor Accident Claims Tribunal-cum-ll Additional District & Sessions Judge, (FTC) at Adllabad.

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ORDER : This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the MVOP and upon hearing the arguments of Sri KOTA SUBBA RAO, Advocate for the Appellant and of Sri S. SURENDER REDDY, Advocate for the Respondents 1 & 2 and of tVl/s. B. Sai Priya, Advocate for Respondent No.3.

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This Court doth Order and Decree as follows :

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That the lvtotor Accident Civil Miscellaneous Appeal be and hereby is d ismissed.

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That the respondents be and hereby are awarded compensation Rs.5,35,0001 (Rupees Five Lakhs thirty five thousand only) with interest at 7.SYo per annum from the date of petition till realization;

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That the owner/1tt Respondent and the appellanU2nd RespondenVinsurer be . and hereby are jointly and severally liable to pay the compensation and they are directed to deposit the awarded amount with interest within one month from the date of receipt of copy of the order;

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That on deposit of enhanced amount with interest the respo ndents/Petitioners be and hereby are permitted to withdraw entire amounts as apportioned by the Tribunal in the award.

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