Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 691 (AP)

New India Assurance Co. Ltd. v. Sardar Begum

2014-06-09

U.DURGA PRASAD RAO

body2014
JUDGMENT : Challenging the award dated 12.08.2009 in M.V.O.P.No.1560 of 2006 passed by the Additional Metropolitan Sessions Judge for the trail of JHCBBC-cum-Additional Family Court-cum-XXIII Additional Chief Judge, Hyderabad (for short the Tribunal), the 2nd respondent in the OP/New India Assurance Company Limited preferred the instant appeal. 2) The factual matrix of the case is thus: a) The first claimant is the wife and claimants 2 and 3 are the sons of the deceased Mohd. Miya. Their case is that on 01.05.2006, at about 8:45pm, while the deceased was crossing the road at Miralam tank from Shastripuram, one tourist bus bearing No. AP 09 X 4999 which was proceeding from Hussainsagar to Bhadurpura, being driven by its driver at high speed and in a rash and negligent manner dashed the deceased. It is averred that the accident was occurred due to the rash and negligent driving by the driver of the offending bus. It is pleaded that prior to accident, the deceased used to work as attender in the office of the Directorate of Ground Water, Hyderabad and getting salary of Rs.12,000/- p.m. and contribute the same to his family. On these pleas, the claimants filed MVOP No.1560 of 2006 against respondents 1 and 2, who are the owner and insurer of the offending bus and claimed Rs.9,15,000/- as compensation under different heads mentioned in the OP. b) Respondents 1 and 2 filed separate counters and opposed the claim denying the material averments made in the claim petition and urged to put the claimants in strict proof of the same. R.1 denied the alleged involvement of bus in the pleaded accident. He pleaded that his vehicle was insured with R.2 and his liability if any, has to be indemnified by R.2. R.2 denied the age, avocation and income of the deceased. R.2 contended that the offending vehicle was falsely implicated in this case and the claimants and R.1 colluded with each other for the purpose of claiming compensation from it. Finally, it contended that the claim is highly excessive and exorbitant and prayed for dismissal of the OP. c) During trial, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked on behalf of the claimant. Policy copy filed by 2nd respondent was marked as Ex.B.1. Finally, it contended that the claim is highly excessive and exorbitant and prayed for dismissal of the OP. c) During trial, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked on behalf of the claimant. Policy copy filed by 2nd respondent was marked as Ex.B.1. d) On perusal of the award, issue No.1 is concerned, the Tribunal basing on the evidence of PW.2eye witness coupled with Ex.A1-FIR and Ex.A4- charge sheet, has held that the accident was occurred due to the rash and negligent driving by the driver of the offending bus. Issue No.2 which relates to quantum of compensation, the Tribunal awarded Rs.7,45,000/- with proportionate costs and interest at 7.5% p.a under different heads as below: Loss of dependency Rs.7,20,000/- Loss of consortium to 1st claimant Rs.15,000/- Loss of estate Rs.10,000/- Total Rs.7,45,000/- Hence, the appeal by Insurance Company. 3) Heard arguments of Sri Sriman, learned counsel for appellant and Sri B. Parameswara Rao, learned counsel for respondents 1 to 3/claimants. R.4 is not necessary party in this appeal. 4) Learned counsel for appellant impugned the award mainly on the ground that the Tribunal while calculating the compensation for loss of dependency did not deduct the pension and other terminal benefits received by the family members of the deceased and if those benefits are deducted from the salary of the deceased, the compensation would have been decreased considerably. Nextly, he argued that the two sons of the deceased are majors and hence they are not his dependents and they do not deserve compensation. He thus prayed to allow the appeal. 5) Per contra, learned counsel for respondents 1 to 3/claimants argued that the pension and other terminal benefits like Provident Fund, Insurance amount etc., received by the family members of the deceased are not liable to be deducted from the salary of the deceased for computation of loss of dependency. On this point, he relied upon the decision reported in Vimal Kanwar and others vs. Kishore Dan and others . Learned counsel further argued that in fact the claimants are entitled to more compensation than awarded by the Tribunal and therefore, this appellate Court may consider the same and enhance the compensation to make it a just and equitable one. On this point, he relied upon the decision reported in Vimal Kanwar and others vs. Kishore Dan and others . Learned counsel further argued that in fact the claimants are entitled to more compensation than awarded by the Tribunal and therefore, this appellate Court may consider the same and enhance the compensation to make it a just and equitable one. Lastly, he submitted that no evidence was adduced by the appellant/ Insurance Company to show that though the sons were majors, they were not depending on the deceased and hence, this argument is not tenable. On this aspect, he relied upon the decision reported in Santosh Devi vs. National Insurance Company Limited and others. He thus prayed to dismiss the appeal. 6) In the light of above rival arguments, the point for determination in this appeal is: Whether the award passed by the Tribunal is legally and factually sustainable? 7) POINT: The accident, involvement of tourist bus bearing No. AP 09 X 4999 and death of deceased are all admitted facts. Hence the core issue in this appeal is whether compensation awarded by the Tribunal is just and reasonable one or excessive and exorbitant one. 8) The prime argument of the appellant is that the terminal benefits of the deceased like pension and other benefits shall be taken into consideration and deducted from the salary of the deceased to compute the compensation for loss of dependency. In the cited decision (1 supra), it was observed by the Honble Apex Court that Provident Fund, Pension and Insurance etc., amounts are not liable for deduction. Hence the argument of appellant is untenable. 9) The second argument of the appellant that the sons of the deceased being majors, are not entitled to compensation also cannot be accepted since there is no evidence that they are not his dependents, though they are majors. Even assuming that on dependency factor they are not entitled to compensation, still they being the legal representatives of the deceased, deserve compensation. Even assuming that on dependency factor they are not entitled to compensation, still they being the legal representatives of the deceased, deserve compensation. 10) Then coming to the argument of the claimants that compensation awarded by the Tribunal is in fact meager one and the claimants are entitled to more compensation in the light of the recent precedential law, the said argument cannot be accepted in view of the principle laid down in the case of Ranjana Prakash and others v. Divisional Manager and another , wherein the Apex Court held thus: Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation. In the instant case, the compensation awarded by the Tribunal is a just and reasonable one by all means and the claimants do not deserve any enhancement. That apart, they have not preferred any appeal challenging the adequacy of the compensation. Therefore, their contention cannot be countenanced. 11) In the result, I find no merits in the appeal and the same is accordingly dismissed by confirming the award passed by the Tribunal in M.V.O.P.No.1560 of 2006. No order as to costs in the appeal. As a sequel, miscellaneous applications pending, if any, shall stand closed. 1) 2013 ACJ 1441 (SC) 2) 2012 ACJ 1428 (SC) 3) 2011 ACJ 2418