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2021 DIGILAW 779 (AP)

Mukkari Yesobu, S/o. Kondaiah v. Komatineni Narasimha Rao, S/o. Venkata Subbaiah

2021-11-15

NINALA JAYASURYA

body2021
JUDGMENT : These two appeals are being disposed of by this common judgment, as they arise out of the same accident. 2. M.A.C.M.A.No.3632 of 2005 is preferred by the claimants and whereas the M.A.C.M.A.No.664 of 2006 is preferred by the United Insurance Company Limited, aggrieved by the Judgment and Decree dated 14.06.2005 in M.V.O.P.No.332 of 2000 on the file of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Ongole, (for short ‘the Tribunal’). 3. For the sake of convenience, the parties are hereinafter referred to, as they were arrayed before the Tribunal in the original petition. 4. The original petition was filed by the parents of deceased Mukkari Chinna Jayanna who was aged about 20 years seeking compensation of Rs.2,54,000/- for the death of their son in a road accident that occurred on 24.02.2000. The deceased Mukkari Chinna Jayanna was working as a Supervisor in slate industry and earning Rs.3,000/- per month. On 24.02.2000, while the deceased Mukkari Chinna Jayanna was going to his work place at Rayavaram on a tractor and trailer bearing No. AP27 C 7723 and AP 27 C 7724 and reached near St.Ann’s Church, the driver of the tractor drove the same in a rash and negligent manner. Due to which, the deceased Mukkari Chinna Jayanna fell down on the road and the tractor ran over the body of the deceased Jayanna. As a result, the deceased sustained severe injuries and he was shifted to the Government Hospital, Markapur, where he was succumbed to injuries. 5. The owner of the offending vehicle-1st respondent adopted the Written Statement of 2nd respondent-Insurance Company in the original petition. The 2nd respondent-Insurance Company filed a Written Statement disputing the nature of accident and earnings of the deceased Jayanna. It is further contended that the deceased Jayanna is a gratuitous passenger travelling in the tractor and accordingly, no compensation need be paid by the insurance company. Additional Written Statement was also filed to the effect that the claim made by the claimants-petitioners is on a higher side. Accordingly, the 2nd respondent-Insurance Company prayed for dismissal of the original petition. 6. On the basis of the said pleadings, the following issues were framed in the original petition: (1) Whether the death of the deceased was caused on account of the rash and negligent driving of the tractor and trailer bearing No.AP27 C 7723 and AP 27 C 7724 by its driver? 6. On the basis of the said pleadings, the following issues were framed in the original petition: (1) Whether the death of the deceased was caused on account of the rash and negligent driving of the tractor and trailer bearing No.AP27 C 7723 and AP 27 C 7724 by its driver? (2) Whether the petitioners are entitled to claim any compensation, and if so, to what amount and from whom? (3) To what relief? 7. In support of their case, the claimants got examined themselves as P.Ws.1 and 2 and got marked Exs.A.1 to A.5. On behalf of respondents, R.W.1 was examined and Ex.B.1 was marked. 8. The Tribunal, on the basis of the oral and documentary evidence, came to the conclusion that the death of the deceased Jayanna occurred due to rash and negligent driving of the Tractor and Trailer by its driver, and accordingly, allowed the original petition, in part, against respondent Nos.1 and 2 granting compensation of Rs.1,27,000/- with interest at 9% p.a., from the date of petition till the date of deposit or realization, while dismissing the rest of the claim of the claimants, by Judgment dated 14.06.2005, which is under challenge in these two appeals. 9. Heard Sri N.Krishna Murthy, learned counsel for the appellants-claimants in M.A.C.M.A.No.3632 of 2005 and respondent Nos.1 and 2-claimants in M.A.C.M.A.No.664 of 2006. Also heard Mr. Srinivasa Rao Vutla, learned counsel for the appellant-Insurance Company in M.A.C.M.A.No.664 of 2006 and respondent No.2-Insurance Company in M.A.C.M.A.No.3632 of 2005. 10. It is the contention of Mr. N.Krishna Murthy, learned counsel that the Tribunal erred in taking the monthly income of the deceased as Rs.1,500/- per month. He submits that the Tribunal ought to have taken the income of the deceased as Rs.3,000/- per month and determined the loss of dependency. He further submits that the claimants are entitled to more amounts under the conventional heads in terms of the judgment in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 (16) SCC 680 . He, accordingly, prays for allowing the appeal filed by the claimants’ by enhancing the compensation. 11. The learned counsel for the Insurance Company, on the other hand, submits that the Tribunal erred in fastening the liability on the Insurance Company. Pranay Sethi and others, 2017 (16) SCC 680 . He, accordingly, prays for allowing the appeal filed by the claimants’ by enhancing the compensation. 11. The learned counsel for the Insurance Company, on the other hand, submits that the Tribunal erred in fastening the liability on the Insurance Company. He submits that as the deceased was travelling in a goods vehicle i.e., Tractor-cum-Trailer bearing No.AP27 C 7723 and AP 27 C 7724, the Insurance Company is not liable to pay compensation, more particularly, in view of the violation of terms of conditions of the policy. Insofar as the claim for enhancement of compensation is concerned, the learned counsel without prejudice to his contentions further submits that the amount as awarded is just and reasonable, and warrants no interference. The learned counsel submits that in the event, this Court is inclined to enhance the compensation, the principle of pay and recover, may be applied and the amount which was paid under Section 140 of the Motor Vehicles Act, towards no fault liability may be deducted. 12. Before considering the claim for enhancement of compensation, it would be appropriate to deal with the appeal filed by the Insurance Company. It is the specific contention of the learned counsel for the Insurance Company that the award of the Tribunal fixing the liability on the Insurance Company is not sustainable as the deceased was travelling as an unauthorized/gratuitous passenger in a goods vehicle i.e., tractor and trailer bearing No. AP27 C 7723 and AP 27 C 7724. This Court is not inclined to accept the said submission in view of the judgment of the Hon’ble Supreme Court in Shivaraj v. Rajendra, (2018) 10 SCC 432 . It is a case where the victim was travelling in a tractor suffered injuries. Considering his case, the Tribunal awarded compensation fixing the liability jointly on the owner and insurance of the vehicle. Aggrieved by the same, the Insurance Company filed an appeal and the claimant also filed appeal seeking enhancement of compensation. The High Court dismissed the appeal filed by the claimant and allowed the appeal filed by the Insurance Company while holding that the claimant travelled in the tractor in breach of policy terms and conditions and Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the High Court absolved the Insurance Company from payment of compensation. Accordingly, the High Court absolved the Insurance Company from payment of compensation. Aggrieved by the same, the claimant carried the matter by way of appeals. The Hon’ble Supreme Court while relying on the decisions in National Insurance Co. Ltd., v. Swaran Singh, (2004) 3 SCC 297 , Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796 etc., opined that the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant/appellant with liberty to recover the same from the owner of the tractor and accordingly disposed of the appeals with such direction. In the light of the above referred judgment, the submission of the learned counsel for the Insurance Company insofar as applying the principle of pay and recovery is concerned, merits consideration. 13. With regard to M.A.C.M.A.No.3632 of 2005, as contended by the learned counsel for the appellants, the Tribunal is not justified in taking the monthly income of the deceased as Rs.1,500/- per month. The accident occurred in the year 2000 and a minimum wage of Rs.75/- per day as against Rs.50/- per day taken by the Tribunal, would, in the considered opinion of this Court, be reasonable. Accordingly, the monthly income of the deceased is arrived at Rs.2,250/- per month. As the deceased is unmarried, half of his income towards his personal expenses has to be deducted before arriving at his contribution to the family. Apart from that the applying principle in Pranay Sethi’s case (referred supra) where the deceased is a self employed, an addition of 40% of the established income has to be added while arriving at the compensation. Further, the claimants are also entitled to amounts under conventional heads in terms of the judgment in Pranay Sethi’s case (referred 1 supra). As the claimants lost their son who was aged about 20 years, in the light of the expression of the Hon’ble Supreme Court in Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and Others, 2018 Law Suit (SC) 904, the claimants are entitled for filial consortium. The Hon’ble Supreme Court in the facts and circumstances of the said case, awarded an amount of Rs.40,000/- each to the father and sister of the deceased who was aged about 24 years. The Hon’ble Supreme Court in the facts and circumstances of the said case, awarded an amount of Rs.40,000/- each to the father and sister of the deceased who was aged about 24 years. Accordingly, the compensation awarded is arrived at as follows: Income : Rs.75/- per day X 30 days Rs.2,250/- Future prospects : 40%of the income Rs. 900/- Deductions towards personal expenditure (half of Rs.2,250/- + Rs.900/-) Rs.1,575/- Total Income of the deceased p.m. Rs.1,575/- The applicable multiplier as per Sarla Verma’s case is ‘18’. Total Loss of Future dependency (Rs.1,575/- X 12 X 18) Rs.3,40,200/- Funeral Expenses Rs. 15,000/- Loss of Estate Rs. 15,000/- Filial Consortium Rs. 40,000/- Total Rs.4,10,200/- 14. Thus, the claimants are entitled to a total sum of Rs.4,10,200/-. However, as pointed out by the learned counsel for Insurance Company, if any amounts are paid towards no fault liability, the same are required to be deducted. Accordingly, after deducting Rs.50,000/- paid towards no fault liability, the claimants are entitled to Rs.3,60,200/-. Though the claimants have claimed of a sum of Rs.2,54,000/-, in terms of the judgment of Hon’ble Supreme Court in Ramla v. National Insurance Company Limited, 2019(2) SCC 192 , just and reasonable compensation can be awarded. The claimants are, however, has to pay the requisite fee towards the compensation enhanced over and above, the original claim made by them. 15. Accordingly, the appeal filed by the claimants i.e., M.A.C.M.A.No.3632 of 2005 is allowed, awarding a sum of Rs.4,10,200/- together with interest @ 9% p.a., from the date of petition till the date of realization against the owner and insurer jointly and severally. The enhanced compensation together with interest shall be deposited within a period of 8 weeks from the date of receipt of a copy of this order. Applying the expression of the Hon’ble Supreme Court in Shivaraj’s case (referred supra), the Insurance Company, shall deposit the compensation amount as awarded, at the first instance and recover the same from the owner of the vehicle, without filing a separate suit. The appellants/claimants are entitled to withdraw the amounts so deposited as per their respective shares, in terms of the decree of the Tribunal. In the light of the order allowing the claimants’ appeal as indicated supra, the appeal filed by the Insurance Company i.e., M.A.C.M.A.No.664 of 2006 is partly allowed and disposed in terms thereof. No order as to costs. The appellants/claimants are entitled to withdraw the amounts so deposited as per their respective shares, in terms of the decree of the Tribunal. In the light of the order allowing the claimants’ appeal as indicated supra, the appeal filed by the Insurance Company i.e., M.A.C.M.A.No.664 of 2006 is partly allowed and disposed in terms thereof. No order as to costs. Consequently, miscellaneous petitions, if any, pending in the appeals shall stand disposed of.