Research › Search › Judgment

Telangana High Court · body

2021 DIGILAW 434 (TS)

Reliance General Insurance Co. Ltd. v. Karantosh Salamma

2021-12-23

P.NAVEEN RAO, P.SREE SUDHA

body2021
JUDGMENT : P.SREE SUDHA, J. 1. This appeal is filed by the Reliance General Insurance Company Limited, appellant-second respondent, aggrieved by the Award dated 06.08.2014 passed in M.V.O.P.No.2062 of 2011 on the file of the learned Motor Vehicle Accidents Claims Tribunal-cum-XIV Additional Chief Judge, (FTC), City Civil Courts, Hyderabad, (for short, the Tribunal). 2. Perusal of the Award shows that Mr.K.Shankar met with an accident on 15.06.2011 at about 6.30 PM due to the rash and negligent driving of the driver of the auto bearing No.AP 29 TB 0367, as a result of which, he died at hospital. Therefore, Respondent Nos.1 to 6 herein filed a claim petition seeking compensation of Rs.30,00,000/-. The Tribunal after appreciation of entire oral and documentary evidence on record awarded compensation of Rs.30,43,800/-. At the time of accident the deceased was earning Rs.20,000/- per month from bore well points contract business. 3. Learned counsel for the appellant herein would contend that the claim petition was wrongly entertained by the Tribunal under Sections 163-A and 140 of Motor Vehicles Act though there is a bar under Section 163-B of the Act. 4. He also raised an objection that the owner and insurer of the motorcycle on which the deceased was travelling were not made parties to the proceedings, though they are necessary parties. Apart from the same, the Tribunal erred in coming to the conclusion that the accident had occurred due to the negligent driving of the rider of the motorcycle, though the accident was head on collision. He would further aver that the driver of the auto was not holding a valid driving licence, which is in violation of the terms and conditions of the policy of insurance. He would also state that the Tribunal ought to have appreciated the evidence of R.W.1 and the contents of Exs.B1 and B2. Learned counsel also relied upon a decision of the Hon’ble Apex Court reported in NATIONAL INSURANCE COMPANY LIMITED V/s. KUSUM RAI, 2006 ACJ 1336 in which it was held that the driver must possess an effective driving licence. Apart from the same, the Tribunal has taken the monthly income of the deceased as Rs.14,500/- without any basis and erred in adding 50% towards future prospects, though original income was not proved. Apart from the same, the Tribunal has taken the monthly income of the deceased as Rs.14,500/- without any basis and erred in adding 50% towards future prospects, though original income was not proved. The Tribunal also erred in awarding an amount of Rs.2,25,000/- under the head non-pecuniary damages against the law laid down by the Hon’ble Apex Court. Finally, he contended that the Tribunal grossly erred in awarding interest at the rate of 7.5% per annum instead of 6%, and therefore, requested this Court to set aside the impugned Award. 5. Learned counsel for the claimants also relied upon a decision of the Apex Court reported in MUKUND DEWANGAN’s case (supra) in which the Apex Court considered the entire case as similar that of the present case and held that the effect of amendment of Form 4 by insertion of “transport vehicle” is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of “light motor vehicle” continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect. Therefore, the contention of the appellant that there is no valid driving licence to the driver of the offending vehicle at the time of the accident cannot be accepted. 6. The Tribunal while dealing with Issue No.2 and considering the entire case law, held that the driver of the auto was having auto rickshaw driving license (non-transport) which can also be used for driving transport vehicle, and therefore, insurer is not exonerated from paying the compensation on that ground. 7. In MUKUND DEWANGAN V/s. ORIENTAL INSURANCE COMPANY LIMITED, 2017 ACJ 2011 , the Apex Court held that no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class. A licence issued under Section 10(2)(d) of the Motor Vehicles Act continues to be valid after coming into force the Amendment Act 54 of 1994 w.e.f. 28.03.2001. 8. Though the appellant raised the issue regarding negligence on the part of the rider of the motorcycle, it was not stressed upon at the time of arguments. A licence issued under Section 10(2)(d) of the Motor Vehicles Act continues to be valid after coming into force the Amendment Act 54 of 1994 w.e.f. 28.03.2001. 8. Though the appellant raised the issue regarding negligence on the part of the rider of the motorcycle, it was not stressed upon at the time of arguments. The main argument of the appellant is that the evidence of R.Ws.1 and 2 was not considered at the time of deciding the issue of rash and negligence. But, a perusal of the Order of the Tribunal shows that basing on the evidence of eyewitness-P.W.2 and other relevant documents, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and hence it needs no interference. 9. P.W.1 deposed that her husband was aged 32 years and was earning Rs.20,000/- per month by doing bore well digging business under the name and style of M/s.Shiva Ganga Bore Wells and during summer days i.e. March to June, her husband used to earn more than Rs.25,000/- per month and he was income tax assessee. The claimants examined P.W.3, Inspector in Income Tax Office and filed I.T. returns of the deceased for the years 20092010 and 2011 to 2012 which were marked through P.W.3 under Exs.A.6 to A.9. P.W.3 deposed that the income of the deceased was Rs.1,76,550/- during the year 2011-2012 and he paid income tax of Rs.1,705/-. P.W.4 in his evidence deposed that deceased worked as a working partner with him and he paid Rs.66,000/-per month and bata of Rs.100/- per day and later as per his advise, the deceased purchased new boring machine about ten years back and thus the deceased was earning more than Rs.40,000/- per month excluding workers payments and ancillary expenses. The date of birth of the deceased was shown as 02.03.1977 and met with an accident on 15.06.2011 and thus his age was taken as 34 years. Considering the evidence on record his income was taken as Rs.14,500/- per month. 10. Learned counsel for the appellant would contend that the above monthly income of the deceased was taken without any basis. 11. The proper method of computation is the multiplier method. Considering the evidence on record his income was taken as Rs.14,500/- per month. 10. Learned counsel for the appellant would contend that the above monthly income of the deceased was taken without any basis. 11. The proper method of computation is the multiplier method. Basically, three aspects need to be established by the claimants for assessing the compensation in case of death are (1) Age of the deceased, (2) Income of deceased and (3) number of dependents. The issues that have to be determined by the Tribunal to arrive at the loss of dependency are i) Additions/Deductions to be made for arriving at income, ii) The deductions to be made towards personal living expenses of the deceased, iii) The multiplier to be applied with reference to the age of the deceased. 12. The Tribunal after considering the entire evidence of the witnesses and the documents filed before it rightly arrived at to the conclusion regarding income of the deceased. The Tribunal relied upon a decision of the Apex Court reported in RAJESH V/s. RAJBIR SINGH, 2013 ACJ 1403 and taken the future prospects of the deceased as 50%. Admittedly, the deceased was not having a permanent employment and so he comes under the head self-employed and he was aged 34 years. Therefore, the deceased is entitled for the future prospects at the rate of 40% instead of 50%. So the annual earning of the deceased was Rs.14,500/- * 12 = Rs.1,74,000/-. After adding future prospects, it comes to Rs.2,43,600/-(Rs.1,74,000/-+ Rs.69,600/-). Considering the age of the deceased, the appropriate multiplier is taken as ‘16’ and the dependents are his wife, children, mother and brothers. 13. Learned counsel for the appellant would contend that the unmarried brothers of the deceased are not legal heirs. Therefore one fourth deductions towards personal expenses is not proper. 14. Per contra, learned counsel for the claimants would rely upon a judgment of the Apex Court reported in NATIONAL INSURANCE COMPANY LIMITED V/s. BIRENDER, AIR 2020 SUPREME COURT 434 in which it was held that where there is no dependant legal heir of the deceased, even non-dependant is entitled to lay claim for compensation. 15. Admittedly, the Motor Vehicles Act, 1988 is a beneficial legislation and thus the provisions shall be interpreted in favour of the claimants. 16. In the case on hand, the fifth and sixth claimants are brothers of the deceased. 15. Admittedly, the Motor Vehicles Act, 1988 is a beneficial legislation and thus the provisions shall be interpreted in favour of the claimants. 16. In the case on hand, the fifth and sixth claimants are brothers of the deceased. It is to be noted that the father of the deceased is no more and as such it can be safely concluded that the brothers are also dependants on the income of the deceased. Hence, there is no error in the order of Tribunal in deducting one fourth towards personal expenses. Therefore, the yearly contribution comes to Rs.2,43,600 - Rs.60,900/- = Rs.1,82,700/-and if it is multiplied with 16 multiplier the loss of dependency would come to Rs.29,23,200/-. 17. The Tribunal granted an amount of Rs.1,00,000/- towards loss of consortium and an amount of Rs.1,00,000/- to the second and third claimants towards loss of care and guidance for minor children and Rs.25,000/- towards funeral expenses. The Tribunal disposed of this O.P. in the year 2011 and the appellant herein preferred appeal in the year 2015, but during the pendency of the proceedings in the appeal, the Hon’ble Apex Court laid down several principles in respect of future prospects, consortium and it was also held specifically in NATIONAL INSURANCE CO. LTD., V/s. PRANAY SETHI, 2017 (16) SCC 680 that the amounts mentioned in the heads - loss of estate, funeral expenses and consortium shall be enhanced by 10% for every three years. Therefore, the first claimant is entitled for spousal consortium of Rs.44,000/-, the fourth claimant is entitled for Rs.44,000/- towards filial consortium and the second and third claimants are entitled for parental consortium at the rate of Rs.44,000/- each (total Rs.88,000/-). Apart from the above, the claimants are also entitled for Rs.16,500/- towards loss of estate and Rs.16,500/- towards funeral expenses, and thus, the claimants are entitled under these heads for a compensation of Rs.2,09,000/-. Therefore, the total compensation would be Rs.31,32,200/-(Rs.29,23,200/-+ Rs.2,09,000/-). The respondents-claimants are also entitled for interest thereon @ 7.5% per annum from the date of Award till its realisation. Therefore, the respondents/claimants are entitled to the compensation in detail shown in the tabular format. 1) Loss of dependency Rs.29,23,200/- 2) Spousal Consortium - Rs.44,000/- Parental Consortium - Rs.88,000/- Filial Consortium - Rs.44,000/- Rs.1,76,000/- 3) Loss of Estate Rs.16,500/- 4) Funeral Expenses Rs.16,500/- Total compensation Rs.31,32,200/- 18. Therefore, the respondents/claimants are entitled to the compensation in detail shown in the tabular format. 1) Loss of dependency Rs.29,23,200/- 2) Spousal Consortium - Rs.44,000/- Parental Consortium - Rs.88,000/- Filial Consortium - Rs.44,000/- Rs.1,76,000/- 3) Loss of Estate Rs.16,500/- 4) Funeral Expenses Rs.16,500/- Total compensation Rs.31,32,200/- 18. As regards the apportionment, this Court confirms the view taken by the Tribunal. However, the mother of the deceased is entitled for permission to withdraw her share of Rs.3,00,000/-. The appellant is directed to deposit the compensation amount, after excluding the amount already deposited, within one month from the date of receipt of copy of the judgment and on such deposit, the respondents-claimants are permitted to withdraw their respective amounts as per the order of the Tribunal. 19. Accordingly, this appeal is disposed of. There shall be no order as to costs. 20. Miscellaneous Petitions, if any, pending in this appeal shall stand closed in the light of this final order.