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2020 DIGILAW 176 (AP)

Cholamandalam Ms General Insurance Co Ltd v. Chereddy Hazarath Reddy

2020-03-02

BATTU DEVANAND

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JUDGMENT : This Appeal arises under the Motor Vehicles Act, 1988, against the decree and judgment, dated 12.10.2010 in M.V.O.P.No.23 of 2010 on the file of the Motor Accidents Claims Tribunal (Before the Principal District Judge, Ongole). The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the Appeal. 2. The facts leading to filing of this appeal are:- On 15.12.2009 one Chereddy Ashok Reddy @ Ashok (who will be hereinafter referred to as “deceased”) and one Gunapati Mahendra Reddy started from Chennareddy palem village at about 7-45 a.m., on a Pulsar motorcycle bearing No.AP 27 AC/7015 to go to Ongole and the deceased was sitting as a pillion rider. After the motorcycle crossed Kondpi cross roads on N.H.5 at about 2-00 p.m., one Container lorry bearing No.TN 055/5338 (which will be hereinafter referred to as “offending vehicle”) driven by the 1st respondent with high speed and in a rash and negligent manner came in wrong route in opposite direction and dashed against the said Pulsar motorcycle and as a result, the said Gunapati Mahendra Reddy @ Venkata Mahendra died on the spot due to the injuries sustained and the deceased who sustained injuries was shifted to RIMS Hospital, Ongole and there he succumbed to the injuries while undergoing treatment. Basing on the report of the mother of the deceased, a case was registered in Crime No.190 of 2009 against the 1st respondent for the offence under Section 304A of Indian Penal Code by the Sub Inspector of Police, Tangutur. It was averred that the said accident occurred due to the rash and negligent driving of the offending vehicle by the 1st respondent, and the deceased was proceeding on Pulsar motorcycle from Nellore to Ongole on N.H.5 road on extreme left side but the 1st respondent drove the offending vehicle while proceeding from Ongole to Chennai on the western side of the road divider instead of eastern side and caused the accident. The 2nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle at the time of accident and therefore, all the respondents are liable to pay compensation to the petitioners. The 2nd respondent is the owner and the 3rd respondent is the insurer of the offending vehicle at the time of accident and therefore, all the respondents are liable to pay compensation to the petitioners. It is further averred by the petitioners that the deceased was aged about 20 years and was earning Rs.5,000/-per month by working as a sales boy in Keerthi Medicals, Ongole and as such the petitioners claimed compensation of Rs.5,00,000/-along with interest against the respondents. 3. The 2nd respondent filed a counter and the same was adopted on behalf of the 1st respondent. The 2nd respondent denied all the material allegations made in the claim petition including age, avocation and income of the deceased and contended that the 1st respondent was having a valid driving licence to drive the offending vehicle and the same is valid up to 21.06.2010 and the offending vehicle was insured with the 3rd respondent-Insurance Company and the offending vehicle was in a roadworthy condition. The 2nd respondent further contended that the 1st respondent is an experienced driver and is well versed with the driving methods that the offending vehicle was proceeding slowly at the time of accident and that the accident occurred only due to the negligence of the rider of the motorcycle. Therefore, the 2nd respondent prays to dismiss the petition with costs. 4. The 3rd respondent-Insurance Company filed its counter and contested the claim of the petitioners. The 3rd respondent denied all the material allegations made in the claim petition including the age, avocation and income of the deceased and contended that the manner of accident alleged in the petition is false. The entire negligence for the occurrence of the accident was on the part of the rider of the motorcycle and there was no negligence or rashness on the part of the 1st respondent in driving the offending vehicle and hence, the 3rd respondent is not liable to pay any compensation to the petitioners. The 3rd respondent further contended that the 1st respondent was not having valid and effective driving licence to drive the offending vehicle and the said offending vehicle was also not having a valid permit to ply and hence the 3rd respondent is not liable to pay any compensation to the petitioners. The 3rd respondent further contended that the 1st respondent was not having valid and effective driving licence to drive the offending vehicle and the said offending vehicle was also not having a valid permit to ply and hence the 3rd respondent is not liable to pay any compensation to the petitioners. The owner and insurer of the motorcycle bearing No.AP 27 AC/7015 involved in the accident are proper and necessary parties to the claim petition. The 3rd respondent also contended that the compensation claimed by the petitioners is excessive and so also rate of interest. Therefore, the 3rd respondent prays to dismiss the petition with costs. 5. On behalf of the petitioners, PWs.1 and 2 were examined and Exs.A.1 to A.8 were marked. No oral evidence was adduced and no document was marked on behalf of the respondents. 6. The Tribunal after perusing the oral and documentary evidence on record and upon hearing the counsel passed decree and judgment awarding compensation of Rs.4,02,000/-along with interest @ 7.5% per annum by holding that the respondent Nos.1 to 3 are jointly and severally liable to pay the compensation amount to the petitioners. 7. Aggrieved by the judgment of the Tribunal the present appeal was filed by the 3rd respondent-Insurance Company. 8. Heard, Sri Kota Subba Rao, learned counsel for the appellant-Insurance Company and Ms Chintalapudi Lakshmi Kumari, learned counsel for the petitioners-respondent Nos.1 to 3. 9. Admittedly, there is no dispute with regard to the occurrence of accident and negligence aspect. There is also no dispute with regard to the liability of the Insurance Company. The only point to be considered in the present appeal is with regard to the quantum of compensation awarded by the Tribunal. 10. The learned counsel for the Insurance Company submits that the compensation of Rs.4,02,000/-awarded by the Tribunal is on higher side and the Tribunal failed to apply correct multiplier and considering the income of the deceased at the rate of Rs.3,000/-per month is not correct in the absence of any proof. 11. The documentary evidence adduced before the Tribunal it reveals that as per Ex.A.2-copy of Inquest Report, Ex.A.3-Postmortem Report and Ex.A.6-copy of the charge sheet, the age of the deceased was shown as 19 years as on the date of the accident. 11. The documentary evidence adduced before the Tribunal it reveals that as per Ex.A.2-copy of Inquest Report, Ex.A.3-Postmortem Report and Ex.A.6-copy of the charge sheet, the age of the deceased was shown as 19 years as on the date of the accident. Though, the Tribunal considered the age of the deceased as 19 years, the Tribunal has taken the age of the 2nd petitioner as 40 years and applied multiplier “16”. In fact, in the light of the law laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, 2017 ACJ 2700 the age of the deceased should be the basis for applying the multiplier. As such, the appropriate multiplier for the age group of 15-20 is “18”. The Tribunal disbelieving the salary certificate issued by Kerthi Medical Stores, Ongole which was marked as Ex.A.8, as the author of Ex.A.8 or anyone from the said medical shop was not examined, the version of the petitioners that the deceased was earning Rs.5,000/-per month as salary is not considered. In view of the age of the deceased, the Tribunal considered the income of the deceased as Rs.3,000/-per month and at that rate as Rs.36,000/-per annum. After deducting 1/3rd of the income towards personal expenses of the deceased, the contribution of the deceased to the family was fixed as Rs.24,000/-per annum. The Tribunal assessed the loss of dependency as Rs.3,84,000/-by adding Rs.15,000/-towards loss of estate; Rs.1,000/-towards transportation of the dead body of the deceased and Rs.2,000/-towards funeral and other incidental expenses, in total a sum of Rs.4,02,000/-was awarded. 12. In fact, the petitioners are entitled for Rs.15,000/-towards funeral expenses as per the judgment in Pranay Sethi’s case (1st supra). In the considered opinion of this Court that in a present days a person aged 19 years can earn Rs.100/-per day by doing any work. As such, considering Rs.3,000/-per month as income of the deceased by the Tribunal is just and reasonable in the light of the judgment of the Hon’ble High Court of Judicature at Hyderabad for the State of Telengana and State of Andhra Pradesh in the case of T. Rama Krishna vs. Valluri Babu Rao and others, 2017 (1) ALD 453 . As such, considering Rs.3,000/-per month as income of the deceased by the Tribunal is just and reasonable in the light of the judgment of the Hon’ble High Court of Judicature at Hyderabad for the State of Telengana and State of Andhra Pradesh in the case of T. Rama Krishna vs. Valluri Babu Rao and others, 2017 (1) ALD 453 . If appropriate multiplier of “18” is applied and some amount was added for future prospectus, the petitioners will be entitled for the amount more than the compensation awarded by the Tribunal. 13. For the foregoing reasons, there is no any irregularity or infirmity in the order of the Tribunal awarding compensation of Rs.4,02,000/-in favour of the petitioners and in the opinion of this Court, the compensation awarded by the Tribunal is just and reasonable. 14. In the result, the appeal is dismissed confirming the decree and judgment, dated 12.10.2010 in M.V.O.P.No.23 of 2010 on the file of the Motor Accidents Claims Tribunal (Before the Principal District Judge, Ongole). There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this Appeal shall stand closed.