Partly allowed

The Oriental Insurance Co. Ltd. v. Y.Venkateswarulu and 2 Ors.

Telangana HC27 Jul 2023MACMA/186/2010

Case brief

AI extract

What is this about?

The High Court partly allowed appeals by modifying the compensation quantum. It found contributory negligence apportioned 60% to the tanker driver and 40% to the deceased. The court enhanced the total compensation to Rs. 37,17,200/-, determining the insurer to pay 60% of this amount.

What did the court decide?

Compensation enhanced to Rs. 37,17,200/-; Insurer liable to pay Rs. 22,30,320/- within two months with interest at 7.5% per annum.

The Oriental Insurance Co. Ltd. Vs Y.Venkateswarulu and 2… — Cheque Dishonour | Telangana HC (2023)

¶1

IN THE HIGH COURT^{FOR THE STATE OF TELANGANA} AT HYDERABAD

¶2

THURSDAY, THE TWENTY^{SEVENTH DAY OF JULY} TWO THOUSAND AND TWENTY^THREE

¶3

PRESENT

¶4

THE HONOURABLE SRI JUSTICE^M.LAXMAN

¶5

M.A.C.M.A. NOs:1 I⁶ AND 353^{0F 2010}

¶6

Appeal Under section^{173 of Motor Vehicles Act against the order and decree} in o.P.No.1407 0f 2006 dated^{05-02-2009 0n the file of the court of the lV Additional} Metropolitan sessions^Judge -cum-^{XVlll AdditionalchiefJudge, Hyderabad.} M.A.C.M.A. NOs:^{186 0F 2010}

¶7

Between:

¶8

The oriental lnsurance^{co Ltd, Representedby its Senior Divisional Manager} O/o.Divisional Office-lV,^{6-2-976, CAPITOL, Khairatabad, Hyderabad'} ..AppellanUResPondent^No.2

¶9

AND

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1 Y.Venkateswarulu,^{S/o. late Y.Venkaiah, Occ-Labour,R:io. H. No 2-2-} 11OOl2t1, Tilaknagar,^Hyderabad -⁵⁰⁰⁰⁴⁴

¶11

2 Smt. Pramilamma, Wo.Y.Venkateswarlu,^{Occ- Household,R/o.H'No'2-2-} 11\Otzt1, Tilaknagar, Hyderabad -⁵⁰⁰⁰⁴⁴

¶12

VSN Malleswara Rao,^{S/o.Rama Rao, Occ- Business,F/o'56-10-3/1'P & T} Colony No.3, Patamata,^VijaYawada. '...Respondents/Petitioner 1 &2/Respondent No.1

¶13

M.A.C.M.A. NOs:^{353 0F 2010}

¶14

Between:

¶15

Y. Venkateshwarlu,^{S/o.late Y.Venkaiah,Occ- Labour, R/o H'No'2-2-} 1 1 OOl21 1, Tilaknagar,^HYderabad.

¶16

2.Smt.Pramilamma,W/o.Y.Venkateswarlu,Occ-HouseholdRl/o'H'No'2-211O01211 , Tilaknagar, HYderabad.

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...Appe lla nts/C liam^ants

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AND

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1 V.S.N. Malleshwar Rao, S/o^{Rama Rao, Occ- Business, R/o56-10-3/1,} PandT Colony No. 3,^Patamata,

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2 The Oriental insrrance Co^{Ltd, Representedby its Senior Divisional Manager} O/o.Divisional Office-lV,^{6-2-976, CAPITOL, Khairatabad, Hyderabad'}

¶21

'..ResPondents/ResPondents

¶22

l.A. NO: 'l OF 2O1O(MACMAM^{P. NO: 549 OF 2010)}

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Petition under Section^{151 cPC praying that in the circumstancesstated} in the affidavit filed herein, the^{High court may be pleased stay the orders} passed in oP No.1407/2006 dated 05-02-2009^{on the file of the lv Additional} Metropolitan sessions^Judge -cum-^{XVlll Additional chief Judge, Hyderabad.}

¶24

Couniel for the Appellant^{in MACMA No.186 of 2010} and Respondent No.2^{in MACMA No'353of 2010 :Sri. R. SHEETAL KUMAR}

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Counsel forthe Respondent^{Nos. 1&2 in MACMANo.l86 of2010} and Appellants in MACMA^{No.353 of 2010 :} Sri. C.M. PRAKASH

¶26

Counsel for the Respondent^{No'3 in MACMA No.186 of 2010} and Respondent No.1^{in MACMA No'353of 2010 :} None Appeared

¶27

The Court delivered the^{following: COMMONJUDGMENT}

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THE HONOURABLE^{SRIJUSTICEM. LAXMAN}

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M.A.C.M.A.NOS.186^{AND3 s3 0F 2010}

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COMMON J UDGMENT:

¶31

Aggrieved^{by the award and decree dated 05'02'2009passed} in Originat^{Petition No'1407 of 2006 by the lV Additionat} Metropotitan^{SessionsJudge-cum-XVlll AdditionatChief Judge'} Hyderabad,^{the lnsurance Company fited M'A'C'M'A'No'186of} 2010 and^{the Ctaimantsfited M'A'C'M'A'No'353 of 2010'}

¶32

Since both^{the appeats are arising out of sameoriginal} petition, both^{the appeats are takenup for common disposat'}

¶33

The cLaim^{petitionwas fited by the claimantsseeking} compensation^{of Rs.40,00,000/-for the death of the deceased} namety Y.Madhav^{in a motor vehicte accident'}

¶34

The evidence^{on record shows that on 02'09'2005 at} 02.45 AM^{(night)white the deceasedwasriding the motorcycte'} nearRai[NitayamRoad,secunderabad,heattegedtyhittothe stationed^{vehicLe ownedby VSNMatteshwar Rao who is the 1't} respondent^{in MACMANo.353of 2010 and insured by the Orientat} lnsurance^{CompanyLimited, who fited MACMANo'186 of 2010'} The evidence^{also showsthat sucha parking was done in negtigent}

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manner without indicating the tights with regard to the parking, as a result, the deceased hit to the tanker and sustained fatal injuries and died on the spot.

¶37

The ctaimants retied upon Exs.A'l to A8 to prove the accident and negligence on the part of the driver of the tanker to which the deceased hit with the motor cycte. PWI is the father of the deceased and PW2 is the constabte who witnessed the accident. The evidence of eye witness shows that the vehicle was parked in the middte of the road without parking tights.

¶38

The contention of learned counsel for the insurance company is that the negtigence cannot be attributable sotety on the driver of the tanker/truck. There is atso negtigence on the part of the deceased in riding the motor cycle with high speed and hitting the tanker/truck without observing the stationed vehicle. It is atso his contention that there is no evidence to show that the place of parking vehicle is invisible or there were no other street tights to indicate the presence of the vehicle. Without such evidence, it can be assumed that even though parking tights are not exhibited it cannot be said that such a lapse is the

¶39

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contributing factor^{for the accident.Accordingto him, the} negtigence^is on^{both sides, therefore,the negtigence should be} apportioned.

¶41

The contention^{of tearned counsel for the ctaimants is that} as^per the^{eye witness account,there is ctear evidencethat the} accident occurred^{on account of non exhibition of parking tights} white the^{statio.ned vehicte is in the middte of the road'} Therefore, according^{to him accident is onty due to sote} negtigence of^{driver of the tanker/truck and there is no} negtigence on^{the part of rider of the motor cycte'}

¶42

Firstty coming to^{the contributory negtigenceaspect} raised by the^{insurancecompany, this Courtlookedinto the} evidence of^{PW2-eye witnesswhich showsthat the vehictewas} parked in the middte of^{the road withoutexhibitionof parking} tights. There^{is no evidence that there are no street tights and} the vehicte^{was parked in the busy area of Secunderabad near} Raitway Nitayam.^{However,it is not a case of the ctaimantsthat} the vehicte was^{invisibte and there were no street lights' When} such is the evidence^{merety becauseof the parking lights were not} exhibited, that^{itsetf cannot be a ground to show that the}

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accident is on account of sote neg[igence of the tanker/truck driver. The presumption is that there are street tights in the busy area of Secunderabad and the vehicte is normalty visible and the accident occurred in the early hours. The suggEstion to PW1 by the respondenti show that the vehicle was stationed in order to take reverse, as the vehicle could not proceed forward on account of the obstruction from the underground pass. The above evidence ctearty demonstrates that the negtigence is on the part of both the deceased as we[[ as the tanker/truck driver. Therefore, considering the above evidence, this Court feets that 60% negtigence can be attributabte to the driver of the tanker/truck and 4Q% negtigence can be attributabte to the deceased.

¶45

Secondly, coming to the fixation of quantum of compensation as chatlenged by the claimants, the Court betow has not considered the net satary of the deceased that he was drawing; and also not considered the lncome Tax Form-16 which ctearty shows that the income of the deceased as we[[ as the various deductions. According to the ctaimants, the monthty income of the deceased has to be enhanced.

¶46

rt'r,€-.1.

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According to^{learned counsel for the insurancecompany,} theCourtbetowhasnotconsideredtheincentives,onaccountof that there^was a^{variationin drawingthe incentivesfor various} months. Basic and^{HRA was onty taken into consideration for} fixing the monthty^{satary, which according to him justified'}

¶49

The income^{tax form for the year 2005-06/Ex'X2 shows that} the deceased^{gross salary is shown as Rs.56234/-and basingon} the sald satary,^{the amounts were deductedat source'The bank} statementsweresoughttobeproducedbytheclaimantsbutthe samecouldnotbebroughtonrecordonaccountofforvarious rea50ns.

¶50

On^{perusal of the bank statement, it shows that there is a} variation in drawing^{the monthtysataryby the deceased inctuding} incentives and^{hence the average satary was not less than} Rs.24,000/-.^{Therefore,this Court feets that monthty income of} the deceased^{shatt be fixed at Rs.24,000/-.}

¶51

ln view of the^{above discussion, this Courtis of the} view that an amount of^{Rs.24,000/-can be takenas income} of the deceased,^{40% fuLure prospects can be added as per}

¶52

¶53

the taw taid by the Hon'bte Apex Court in National lnsurance Company Limited v. Pranay Sethi and othersl, then, it would come to Rs.33,400/- (Rs.24,000 l- + 9,400/-). The deceased being a bachetor, 50% has to be deducted towards personal expenses i.e. Rs.33,400/- X 50% Rs.16,700/-. As the deceased was aged 23 years at the time of accident, the muttiptier that is appticabte to the age of the deceased is'18'as per the taw taid by the Hon'bte Apex Court in Sarla Varma. (Smt.) and others v. Delhi Transport Corporation and another2, then it comes to Rs.36,07,2OOl(16,700/- x 12 x 18) towards loss of dependency. As there are two dependants i.e. parents of the deceased, they are entitted an amount of Rs.80,000/- (Rs.40,000/- each) towards consortium and Rs.30,000/- towards loss of estate and funeral expenses.

¶54

Thus, in total, the ctaimants are entitted for compensation of Rs.37,17,200/ - for the death of the deceased in the accident, under the fottowing heads:

¶55

1 [2017) 16 SCC 680 , (2009) 6 SCC 121

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I I

¶58

Rs. 36,07,2001' 1. Loss of dePendencY 2. Consortium Rs. 80,000/30'000/3. Loss of estate^{& funeral expenses : Rs'} Rs. 37,17,2OO1TOTAL

¶59

As the^{contributorynegtigenceis apportionedat 60% on the} driver of tanker/truck^{and40% on the deceased,the insurance} company which^{insuredthe tanker/truck is tiabte to pay an} amount of^{Rs.22,30,32O1-to the ctaimants'}

¶60

ln the^{resutt,the appeat fited by the lnsuranceCompany} i.e., M.A.C.M.A.No.'186^{of 2010 and the appeat fited by the} ctaimants i.e,^{M'A.C.M.A.No.353of 2010 are partty attowedas} indicated above^{and the compensationamount awarded by the} Court betow^{is enhanced from 16,86,000/-to Rs'37,17'200/-and} the insurance^{companyis tiabte to pay 60% of the enhanced} amount which^{comes to Rs.22,30,320/-'}

¶61

(a) The enhanced^{amount sha[[ carryinterest at} 7.5%^per annum^{from the date of fiting of the petition} titt the date^{of reatization.}

¶62

(b) The respondent-lnsurance Company shatt deposit the enhanced compensation amount within a period of two months from the date of receipt of a copy of this judgment. On such deposit the ctaimants are permitted .to withdraw the entire compensation in the proportions, as fixed by the Court betow.

¶63

There shatt be no order as to costs. Misce(taneous

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apptications, pending if any, shatt stand ctosed.

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¶66

.ri Sd/- A.V.S. PRASAD JJ 11..: ASSISTANT REGISTRAR //TRUE COPY// ^""'-'^''il)'""' ./ 4/ SECTION OFFICER

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irl To,

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1.:The lV Additional Metropolitan Sessions Judge -+um- XVlll Additionat Chief Judge, Hyderabad (with records)

¶70

One CC to SRl. R. SHEETAL KUMAR, Advocate IOPUCI

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One CC to SRl. C.M. PRAKASH, Advocate IOPUC]

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¶85

COMMON JUDGMENT ilt.

¶86

MACMA.Nos.186 AND 353 of 2010

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PARTLY ALLOWING BOTH MAGMAs WITHOUT COSTS.

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6q*r Iro IIF 1a tii :

¶90

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶91

THURSDAY, THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND AND TWENTY THREE

¶92

PRESENT

¶93

THE HONOURABLE SRI JUSTICE M.LAXMAN

¶94

M.A.C.M.A. NOs: 186 AND 353 OF 2010

¶95

M.A.G.M.A. NOs:1 86 0F 2010

¶96

Between:

¶97

The Oriental lnsurance Co Ltd, Represented by its Senior Divisional Manager O/o.Divisional Office-lV, 6-2-976, CAPITOL, Khairatabad, Hyderabad. AppellanURespondent No.2

¶98

AND

¶99

Y.Venkateswarulu, Sio.late Y.Venkaiah, Occ- Labour, Rl/o.H.No.2-211001211 , Tilaknagar, Hyderabad - 500044

¶100

Smt. Pramilamma, W/o.Y.Venkateswarlu, Occ- Household, Rl/o.H.No.2-211o0l2l'l , Tilaknagar, Hyderabad - 500044

¶101

VSN Malleswara Rao, S/o.Rama Rao, Occ- Business, R/o.56-10-3/1 , P & T Colony No.3, Patamata, Vijayawada.

¶102

...Respondents/Petitioner 1 &2/Respondent No.1

¶103

M.A.C.M.A. NOs: 353 OF 2010

¶104

Between:

¶105

Y. Venkateshwarlu, S/o.late Y.Venkaiah, OccLabour, R/o.H.No.2-21 1 O0l2l'1, Tilaknagar, Hyderabad.

¶106

Smt.Pramilamma, W/o.Y.Venkateswarlu, Occ- Household R/o.H.No.2-21 1OOl2l 1, Tilaknagar, Hyderabad.

¶107

...Appellants/Cliamants

¶108

AND

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1 . V.S.N. Malleshwar Rao, S/o Rama Rao, Occ- Business, F/o 56-10-3/1 , P&T Colony No. 3, Patamata,

¶110

The Oriental lnsurance Co Ltd, Represented by its Senior Divisional Manager O/o. Divisional Office-lV, 6-2-97 6, CAPITOL, Khairatabad, Hyderabad. Respondents/Respondents

¶111

Appeal under section 173 of Motor vehicles Act against the order and decree in o.P.No.1407 of 2006 dated 05-02-2009 on the fite of the court of the lv Additionat Metropolitan sessions Judge --cum- xvilr Additionar chief Judge, Hyderabad

¶112

ORDER: This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower court and the materiar papers in the case and upon hearing the arguments of sri. R. SHEETAL KUMAR, Advocate for the Appellant in MACMA No.186 of 2O1O and Respondent No.2 in MACMA No.353 of 2010 and of M/s. c.M. PRAKASH, Advocate lor the Respondent Nos.1&2 MACMA No..l86 of 2O1O and Appellants in MACMA No.353 of 2010 and for the Respondent No.3 in MACMA No.'186 of 2010 and Respondent No.1 in MACMA No.3s3 of 2010 Not appeared either in person or by Advocate.

¶113

This Court doth Order and Decree as follows:

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1 . That the Motor Accident Civil Miscellaneous^{AppealNo.2B6 of 20 10 filed by} the lnsurance Company be and hereby^{is Partly allowed,}

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That the Motor Accident Civil Miscellaneous Appeal^{No.353 of 2010filed by} the Claimants be and hereby is^partly allowed;

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That the Compensation amount awarded^{by the Tribunalbe and hereby is} enhanced from Rs.16,86,000i- to Rs.37,17,200/-;

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That the lnsurance Company be and hereby^{is liableto pay 60% of the} enhanced amount which comes to Rs.22,30,3201',

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That the enhanced amount shall carry^{interest at 7.5% per annumform the} date of filing of the^petition_ till the date^{of realization,}

¶119

That the respondents lnsurance company^{shalldepositedthe enhanced} Compensation mount within a^{period of two months from the dateof receipt of} ac Copy of this Judgment;

¶120