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2020 DIGILAW 187 (AP)

Puttala Bullemma v. Shaik Karimulla

2020-03-04

M.VENKATA RAMANA

body2020
JUDGMENT : The dissatisfied claimants are the appellants. The fourth respondent was the original owner of the offending auto rickshaw AP 27 V 6374, which was transferred to the first respondent later on. This vehicle was insured with the second respondent on the date of the accident. 2. The third respondent is stated to be another wife of the deceased, while the first appellant is the legally wedded wife of the deceased. Appellants 2 to 4 are the children of the first appellant and the deceased. 3. A claim for compensation of Rs.2.00 lakhs was made by the appellants on account of death of the deceased Sri Puttala Yesobu in a motor vehicle accident on 24.09.2005 at 6.30 a.m. on OV road near check post at Kandukur. 4. The case of the claimants before the Tribunal was that the deceased was 50 years old on the date of the accident and was living as a labourer earning Rs.3000/-per month. Their further case was that on 24.09.2005 at about 6.00 a.m., he along with several others boarded the offending auto rickshaw at Singarayakonda to go to Kandukur and that, when this vehicle reached near AMC Check Post at Kandukur at 6.30 a.m., on account of rash and negligent driving by its driver, it dashed against a stationary tractor AP 27 F 2045. As a result not only Sri Yesobu but also two others died on the spot and whereas, others suffered injuries. 5. All the respondents opposed the claim on different grounds. The third respondent filed a written statement claiming that Sri Yesobu married her and she being his legally wedded wife. The fourth respondent claimed that he sold away the offending auto rickshaw by the date of the accident, in favour of the first respondent. The first respondent stated in his written statement that the owner of the tractor is a necessary party while denying rash and negligence attributed to him in driving the auto rickshaw. 6. The version of the second respondent insurer included admission of relationship between this insurance company and the first respondent as the insurer and the insured of the offending auto rickshaw, on the date of the accident. However, it denied the claim as set up by the claimants and that, it was not liable to satisfy, since the vehicle was not transferred in favour of first respondent. However, it denied the claim as set up by the claimants and that, it was not liable to satisfy, since the vehicle was not transferred in favour of first respondent. It also disputed that the first respondent had a valid driving licence and alleging violation of terms of policy of insurance. It also claimed that the owner of the tractor is a necessary party to the proceedings. 7. Basing on the above pleadings, the Tribunal settled the following issues and additional issues for trial: “1. Whether the accident occurred due to rash and negligent driving of the auto bearing No.AP 27V 6374 by its driver? 2. Whether the petitioners are entitled to the compensation as claimed in the petition? 3. To what relief?” Additional issue, dated 13.09.2007: 3rd Whether the respondent is a legally wedded wife of the deceased Puttala Yesobu and whether she alone is entitled for compensation? Additional issue, dated 20.11.2007: Whether R4 is liable to pay compensation to petitioners? 8. At the trial, evidence was let in by the claimants through the first appellant as well as another witness, who witnessed the alleged accident, while relying on Ex.A1 to Ex.A5. The third respondent examined herself as R.W.2 and on behalf of second respondent insurer, R.W.1 was examined, while relying on Ex.B1 to Ex.B4. On such material, the Tribunal observed that there was no proof to hold the third respondent being legally wedded wife of the deceased Sri Yesobu and that on the date of the accident, the fourth respondent was not the owner of the offending vehicle. Considering the material on record, a compensation of Rs.1,44,000/-was arrived at, making the first respondent alone liable, while exonerating the liability of the second respondent on the ground that the first respondent had no valid driving licence to drive the transport auto rickshaw at the time of the accident, and holding that there was violation of terms of the policy of insurance. Pay and recover principle was not applied on the premise that there was violation of terms of the insurance contract. 9. It is now contended for the appellants that the income of the deceased was not properly considered by the Tribunal and reasons assigned exonerating liability of the insurer without referring to ‘pay and recover’ principle, is not proper. 10. None appeared for the second respondent insurer at hearing in this case. 9. It is now contended for the appellants that the income of the deceased was not properly considered by the Tribunal and reasons assigned exonerating liability of the insurer without referring to ‘pay and recover’ principle, is not proper. 10. None appeared for the second respondent insurer at hearing in this case. Learned counsel for the fourth respondent – owner of the offending vehicle is present. 11. Now, the point for determination is: -“Whether compensation to the extent awarded by the Tribunal is just and proper and if pay and recover principle is applicable to the facts and circumstances of this case?” 12. POINT: The material on record is not disclosing that any cross appeal or cross-objections has been preferred by any of the respondents questioning the award of the Tribunal. Therefore, the findings recorded by the Tribunal in respect of issue No.1, additional issue dated 13.09.2007 and additional issue, dated 20.11.2007 need not be disturbed. The findings recorded with reference to issue No.2 stand for consideration in this appeal. 13. On the material, the Tribunal considered the age of the deceased at ‘55’. It is based on the contents of Ex.A2 inquest report and also the deposition of R.W.2. 14. The income of the deceased basing on the evidence of R.W.1 and R.W.2 was considered at Rs.60/-per day though according to these witnesses, it was Rs.3000/-per month. Having regard to the fact that the accident occurred on 24.09.2005 and nature of the work the deceased was carrying on by then, wages as determined by the Tribunal appear on low side. A person having such a large family consisting of wife and three children cannot afford to live with earning of Rs.60/-per day. If the evidence on record is considered vis-à-vis the avocation of the deceased, it is clear that there is possibility of reconsidering this wages, at Rs.80/-per day. The contention of the appellants is that the Tribunal worked out monthly income of the deceased considering only 25 working days per month. Being a labourer, it cannot be stated that he would have been engaged for such purpose for a particular period in a month. Average income on reasonable basis, needs to be considered. No reasons are assigned how the trial Court considered the wages of the deceased at such a rate. Being a labourer, it cannot be stated that he would have been engaged for such purpose for a particular period in a month. Average income on reasonable basis, needs to be considered. No reasons are assigned how the trial Court considered the wages of the deceased at such a rate. In the given facts and circumstances, if it is considered at Rs.80/-per day, it would be just and appropriate with an average of 30 working days per month. 15. Having regard to his family consisting of his wife and children, out of this income, 1/4th shall be deducted towards out of pocket expenses of the deceased. Following SMT.SARLA VARMA AND ANOTHER v. DELHI TRANSPORT CORPORATION AND OTHERS, the appropriate multiplier applicable to the age group of the deceased is ‘11’. 16. Basing on this material, as the foundation, the claim has to be revaluated. Monthly income of the deceased at the above wages stood at Rs.2,400/-. When it is annualized, it is Rs.28,800/-. 1/4th out of it has to be deducted and it comes to Rs.21,600/-. Multiplying the same by ‘11’ (applicable multiplier as per Sarla Varma), the income which the deceased would have contributed to his family shall be arrived at, which also reflects the dependency factor. It stands at Rs.2,37,600/-. 17. Following NATIONAL INSURANCE COMPANY v. PRANAY SETHI, conventional amounts of Rs.40,000/-towards loss of consortium, Rs.15,000/-towards funeral expenses and Rs.15,000/-towards loss of estate, shall be added to the above amount. Then, the total amount comes to Rs.3,07,600/-. 18. In Column 25 of the claim petition, the claimants did not specify the amounts under various heads towards pecuniary damages and general damages. A global amount of Rs.2,00,000/-alone was stated. However, the Tribunal itself took upon awarding compensation under different heads appropriately. 19. On the basis of the material available, the compensation now to be awarded is Rs.3,07,600/-to the claimants. 20. The Tribunal held that there was violation of terms of the policy, in use of the offending vehicle at the time of the accident. But, it did not amount to such a fundamental violation contributing to this accident, whereby liability of the insurer gets absolved. In NATIONAL INSURANCE COMPANY v. SWARAN SINGH AND OTHERS, there is a reference to fundamental breach of terms of insurance policy and if in those circumstances, the insurer gets exonerated from the liability. But, it did not amount to such a fundamental violation contributing to this accident, whereby liability of the insurer gets absolved. In NATIONAL INSURANCE COMPANY v. SWARAN SINGH AND OTHERS, there is a reference to fundamental breach of terms of insurance policy and if in those circumstances, the insurer gets exonerated from the liability. It is also observed that it is the burden of the insurer to prove that there was such a breach of the terms of policy, whereby the insurer could stand to gain. The relevant observations in para-110 (iv) of this ruling as extracted in SHAMANNA AND ANOTHER v. THE ORIENTAL INSURANCE CO.LTD. AND OTHERS are as under: “(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the Rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer Under Section 149(2) of the Act.” 21. As seen from the material on record, the insurer did not discharge it’s burden effectively. Merely because, it contended that the first respondent did not have an appropriate licence to drive a transport vehicle, when there is proof that he had a non-transport licence to drive the vehicle, it cannot amount to a fundamental breach, leading to contribute to this accident. In such circumstances, basing on above observations of SWARAN SINGH case, in SHAMANNA AND ANOTHER, it is observed in Para-7 as under: “As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third party risks. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case.” 22. Therefore, in the light of the above ruling of Hon’ble Supreme Court, the finding recorded by the Tribunal in this respect cannot sand. 23. No other ruling is brought to my notice, in the circumstances appearing in this case that insurer cannot stand to gain on account of such omission or lapse on the part of the first respondent in relation to contract of insurance. Therefore, basing on the above ruling, this finding has to be recorded and thus holding that the insurer is now under obligation to satisfy the compensation so awarded first and then recover from the owner of the offending auto rickshaw. 24. Therefore, for the above reasons, answering this point, the award of the Tribunal has to be modified to the extent stated above while maintaining its directions in respect of disbursement of compensation to the claimants. 25. In the result, this M.A.C.M.A. is allowed. A compensation of Rs.3,07,600/-with proportionate costs and with future interest at 7.5% per annum thereon is awarded in favour of the claimants-appellants and against respondent No.1. The second respondent is directed to pay or deposit this awarded amount first and recover the same in the same proceedings from the first respondent, applying to the Tribunal. Time for deposit of enhanced amount is two(2) months from the date of receipt of copy of this order. If the second respondent had already deposited the amount as per the award of the Tribunal, it shall be deducted out of the amount now awarded. The directions relating to apportionment among the claimants as well as disbursement as per award of the Tribunal stand. Advocate’s fee in this appeal is Rs.10,000/-(Rupees ten thousand only). The appellants-claimants are directed to deposit the Court fee on the enhanced amount in the Tribunal and thereupon subject to depositing the amounts under the award, they shall be entitled to withdraw as per the terms imposed by the Tribunal in its award. Advocate’s fee in this appeal is Rs.10,000/-(Rupees ten thousand only). The appellants-claimants are directed to deposit the Court fee on the enhanced amount in the Tribunal and thereupon subject to depositing the amounts under the award, they shall be entitled to withdraw as per the terms imposed by the Tribunal in its award. All pending petitions, stand closed.