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2023 DIGILAW 370 (AP)

Bheemapalli Parvathi v. Bellanna Dadayya

2023-02-13

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : 1. This appeal is preferred by the Appellants/claimants, challenging the award dated 21.06.2013 passed in M.V.O.P.No.782/2011 on the file of Motor Accidents Claims Tribunal-cum-II Addl.District Judge, Parvathipuram, wherein the Tribunal while partly allowing the petition, awarded compensation of Rs.3,91,000/-with interest @ 6% p.a. from the date of petition, till the date of realisation to the petitioners/claimants, for the death of Bheemapalli Dalappadu, in a motor vehicle accident. 2. For the sake of convenience, the parties are arrayed as parties before the tribunal. 3. As seen from the record, originally the petitioners filed an application U/s.166 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.5,00,000/-on account of the death of Bheemapalli Dalappadu, who is the husband of the 1st petitioner, father of the petitioners No.2 and 3 and son of the 4th petitioner, in a motor vehicle accident that occurred on 10.03.2011. 4. The facts show that on 10.03.2011 the deceased Bheemapalli Dalappadu started in tractor/trailer No. AP 35 V 4169 and AP 35 T 0138 from cashew garden to Burley Pond at Lidikivalasa in order to load the water into trailer-cum-tank. When he reached near Lidikivalasa at about 09.45 a.m., due to rash and negligent driving of the 1st respondent driver inspite of cautions given by the deceased and co-labourers, the deceased fell down from the trailer and sustained injuries all over his body. He was shifted to Govt. Hospital, Parvathipuram, where he succumbed to injuries during the course of treatment. Due to the sudden demise of deceased, the petitioners became destitute as they lost their livelihood, since the deceased use to contribute his earning of Rs.200/-per day as loabourer to maintain them. 5. Before, the Tribunal, the 3rd respondent filed counter resisting, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the deceased, manner of accident, rash and negligence on the part of the driver of the offending vehicle, liability to pay compensation, and contended that the 2nd respondent committed wilful breach of terms and conditions of the insurance policy, as such, 2nd respondent alone is liable to pay compensation. The deceased travelled in the crime vehicle as an unauthorised passenger, but not as its labourer and even otherwise, the deceased shall not travel in the crime vehicle, since its seating capacity is nil. The deceased travelled in the crime vehicle as an unauthorised passenger, but not as its labourer and even otherwise, the deceased shall not travel in the crime vehicle, since its seating capacity is nil. This respondent is not liable to pay compensation, since risk of deceased is not covered. 6. The respondents No.1 and 2 remained exparte. 7. On the strength of the pleadings of both parties, the Tribunal framed the following issues: 1. Whether the accident and death of deceased viz., Bheemapalli Daleppadu is due to the rash and negligent driving of the vehicle (tractor/trailer) bearing Nos./AP 35V 4169 and AP 35T 0138 by its driver? 2. What is the correct age of the deceased as on the date of accident? 3. Whether the petitioner is entitled to any compensation, and if so, at what amount and from which of the respondents? 4. To what relief? 8. To substantiate their claim, the petitioners examined P.Ws-1 and 2 and got marked Exs.A-1 to A-4. On behalf of the 3rd respondent, R.Ws-1 and 2 were examined and Ex.B-1 and Exs.X-1 to X-4 were marked. 9. The Tribunal, taking into consideration the evidence of P.Ws-1 and 2, coupled with Exs.A-1 to A-4, held that the accident took place due to the rash and negligent driving of the driver of tractor and trailer, and further, taking into consideration the evidence of P.Ws-1 and 2, corroborated by Exs.A-1 to A-4, awarded a compensation of Rs.3,91,000/-with interest @ 6% p.a. from the date of petition, till the date of realisation against the respondents 1 and 2 only, and petition against the 3rd respondent/Insurance Company is dismissed. 10. This an appeal filed by the claimants No.1 to 4, who arte petitioners in MVOP No.782/2011 on the file of Motor Accident Claims Tribunal-cum-II Addl.District Judge (FTC), Parvathipuram, assailing the order and decree dated 21.06.2013. 11. The contention of the appellants/claimants is that the Tribunal erred in exonerating the 3rd respondent/Insurance Company from its liability to indemnify the owner of the tractor-cum-trailer (R-2), thought he vehicle was having valid insurance policy at the time of accident. The other contention of the claimants is that the Tribunal did not award just compensation entitled by the claimants. 12. The learned counsel for appellants would contend that the Tribunal grossly erred in not applying the principles laydown by Hon’ble Apex Court in the following cases: 1. Manuara Khatun and others Vs. The other contention of the claimants is that the Tribunal did not award just compensation entitled by the claimants. 12. The learned counsel for appellants would contend that the Tribunal grossly erred in not applying the principles laydown by Hon’ble Apex Court in the following cases: 1. Manuara Khatun and others Vs. Rajesh Kumar Singh and others, reported in 2017 (4) SCC 796 . 2. Shivaraj Vs. Rajendran and another, reported in AIR 2018 SC 4252 3. Anu Bhanvara etc., Vs. Iffco Tokyo General Insurance Company Limited, reported in 2019 (5) ALD SC 287 He further submits that the tribunal ought to have applied the principle of pay and recovery by directing the Insurance Company to pay first the compensation amount to the claimants, and later recover the same from the owner of the crime vehicle in the same proceedings. 13. The learned counsel for the appellants further submit that the Tribunal failed to award just compensation by applying the principles laid down by Hon’ble Apex Court in the following cases: 1. Sarla Verma and another Vs. Delhi Road Transport Corporation and others, reported in 2009 ACJ 1298 . 2. National Insurance Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 . 3. Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and others, reported in 2018 ACJ 2782 . 14. Per contra, the learned counsel for 3rd respondent/Insurance Company contended that the Tribunal rightly exonerated the Insurance Company from indemnifying the owner of the tractor-cum-trailer, since no additional premium was paid covering the risk of the gratuitous passengers travelled in the tractor at the time of accident. 15. In the light of above rival contentions, the points that would arise for consideration in the appeal are as under: 1. Whether the Tribunal erred in exonerating the 3rd respondent/Insurance Company from liability to indemnify the owner of the crime vehicle (R-2)? 2. Whether the Tribunal failed to award just compensation to the claimants? 3. To what relief? 16. 15. In the light of above rival contentions, the points that would arise for consideration in the appeal are as under: 1. Whether the Tribunal erred in exonerating the 3rd respondent/Insurance Company from liability to indemnify the owner of the crime vehicle (R-2)? 2. Whether the Tribunal failed to award just compensation to the claimants? 3. To what relief? 16. POINT No.1: It is the contention of the appellants/claimants that the deceased was working as labour; and he was aged around 50 years at the time of accident; and on 10.03.2011 the deceased along with P.W-2 and others boarded the crime vehicle i.e., tractor-cum-trailer bearing No. AP 35 V 4169 and AP 35 T 0138 in order to load the water into the tractor-cum-trailer at cashew garden; and when the vehicle reached a place near Lidikivalasa, at about 09.45 p.m. the driver of the tractor drove the vehicle in a rash and negligent manner; and as a result, the deceased fell down from the tractor and sustained injuries; and he was shifted to Government Hospital, Parvathipuram, and there he succumbed to injuries, while undergoing treatment; and then a report was presented to police, and they registered Ex.A-1 FIR and post mortem was conducted over the dead body of deceased under Ex.A-2; and later police after conclusion of the investigation, laid police report (charge sheet) against the driver of the vehicle (R-1) for the offence punishable U/s.304-A of Indian Penal Code; and the claimants, who are wife, son, daughter and mother depending on the deceased filed the claim petition U/s.166 of Motor Vehicles Act, 1988. 17. The driver and owner of the crime vehicle i.e., respondents No.1 and 2 remained exparte before the Tribunal. 18. The 3rd respondent/insurer filed counter, denying the averments of the petition, contending that the crime vehicle was insured with the insurer, but the owner committed breach of the policy by allowing the gratuitous passengers to travel in the vehicle without paying any additional premium and therefore, the insurer is not liable to indemnify the owner, and also that the accident was not occurred due to rash or negligent driving of the driver of the crime vehicle. 19. 19. The Tribunal on consideration of the evidence produced by both sides i.e., claimants and the Insurance Company held that the accident occurred due to rash and negligent driving of the driver of the crime vehicle i.e., 1st respondent in the case. It is not challenged by any of the respondents in the case. 20. The Tribunal on considering the evidence held that the evidence of R.Ws-1 and 2 coupled with Ex.B-1 policy, Exs.X-2 and X-3 which are extracts of ‘B’ register of tractor-cum-trailer in the case and Ex.X-4, which is copy of driving license of 1st respondent, that the deceased shall not travel in the crime vehicle as per insurance policy, and even for the sake of arguments, if the deceased is travelled in the vehicle as labour, his risk is not covered under Ex.B-1 insurance policy and therefore, the insurer is not liable to indemnify the owner of the crime vehicle. 21. The learned counsel for the appellants would submit that the Hon’ble Apex Court in the case of Shivaraj Vs. Rajendran and another, AIR 2018 SC 4252 , held in para 10 as under: “At the same time, however, in the facts of the present case 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 tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swaran Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh and Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1).” 22. In the case on hand, the evidence on record discloses that the deceased was working as a labour, and was travelling in the tractor-cum-trailer at the time of accident, along with other workers for the purpose of loading the goods. Therefore, in the said circumstances, he is a gratuitous passenger travelling in the vehicle at the time of accident. In the case on hand, the evidence on record discloses that the deceased was working as a labour, and was travelling in the tractor-cum-trailer at the time of accident, along with other workers for the purpose of loading the goods. Therefore, in the said circumstances, he is a gratuitous passenger travelling in the vehicle at the time of accident. Ex.B-1 insurance policy was in force at the time of accident. It is true no add on premium was paid by the owner of the crime vehicle covering the risk of the gratuitous passengers. But in view of the judgment of the Hon’ble Apex Court in the case of Shivaraj Vs. Rajendran and another stated above, the Tribunal would have applied the principle of ‘pay and recovery’ directing the 3rd respondent/Insurance Company to first pay the compensation amount to the claimants and later to recover the same from the owner (R-2) of the tractor-cum-trailer in the same proceedings. In that view of the matter, the finding of the Tribunal has to be set aside by holding that the 3rd respondent/Insurance Company shall first pay the compensation amount and later can recover the same from the owner (R-2) of the tractor in the same proceedings as laid down by the Hon’ble Apex Court, by applying the principle of ‘pay and recovery’. Accordingly, this point is answered. 23. POINT No.2: The evidence on record shows that the deceased was aged 50 years at the time of accident, even as per Ex.A-2 post mortem certificate. Therefore, in view of the judgment of the Hon’ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others, 2009 ACJ 1298 , the multiplier applicable is ‘13’. There are four dependents to the deceased, therefore, ¼ of the income shall be deducted towards personal expenses of the deceased as per the principles laid down by the Hon’ble Apex Court in the above case. 24. The Tribunal upon considering the evidence produced by the claimants, fixed the income of the deceased at Rs.100/-per day notionally. This Court do not find any ground to interfere with that finding of the Tribunal. 24. The Tribunal upon considering the evidence produced by the claimants, fixed the income of the deceased at Rs.100/-per day notionally. This Court do not find any ground to interfere with that finding of the Tribunal. Therefore, the monthly income of the deceased would be Rs.100 x 30 = Rs.3,000/-per month, and the annual income of the deceased would be Rs.3,000 x 12 = Rs.36,000/-, and ¼ of his income to be deducted towards personal expenses of the deceased. Then it would be Rs.36,000 – 9,000 = Rs.27,000/-per annum. By applying the multiplier ‘13’, the loss of dependency would be Rs.27,000 x 13 = Rs.3,51,000/-, as rightly arrived by the Tribunal. 25. In view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi, (2017) 16 SCC 680 , the appellants/claimants are also entitled to Rs.15,000/-towards funeral expenses, Rs.15,000/-towards loss of estate. Further, the 1st claimant being the wife and the 3rd claimants being the minor daughter of the deceased are entitled to consortium @ Rs.40,000/-each, in view of the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram @ Chuhru Ram and others, 2018 ACJ 2782 . Therefore, the total compensation entitled by the claimants would be Rs.3,51,000 + 15,000 + 15,000 + 40,000 + 40,000 = Rs.4,61,000/-towards just compensation, instead of Rs.3,91,000/-as awarded by the Tribunal. 26. The claimants are entitled to interest on Rs.4,61,000/-reasonable as per section 174 of M.V.Act. This Court is of the opinion that interest can be awarded @ 7.5% p.a. on the compensation amount, from the date of petition, till the date of deposit, in view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). Accordingly, this point is answered. 27. POINT No.3: To what relief? In the light of the findings on points No.1 and 2, the appeal is liable to be allowed partly as under: 28. In the result, the appeal is partly allowed. It is held that the appellants are entitled to a total compensation of Rs.4,61,000/-(Rupees Four Lakhs and Sixty One Thousand only), with interest @ 7.5% p.a. from the date of filing of claim petition, till the date of actual payment, instead of Rs.3,91,000/-(Rupees Three Lakhs and Ninety One Thousand only), as awarded by the Tribunal. It is held that the appellants are entitled to a total compensation of Rs.4,61,000/-(Rupees Four Lakhs and Sixty One Thousand only), with interest @ 7.5% p.a. from the date of filing of claim petition, till the date of actual payment, instead of Rs.3,91,000/-(Rupees Three Lakhs and Ninety One Thousand only), as awarded by the Tribunal. The 3rd respondent/Insurance Company is directed to deposit the compensation amount of Rs.4,61,000/-(Rupees Four Lakhs and Sixty One Thousand only) along with accrued interest thereon, within one month from the date of judgment. Later it can recover the said amount from the 2nd respondent/owner (insured) of the crime vehicle in the very same proceedings by filing execution application against the insured. On such deposit, the 1st Appellant/1st claimant being the wife of the deceased, is entitled to an amount of Rs.1,32,750/-(Rupees One Lakh, Thirty Two Thousand, Seven Hundred and Fifty only) and she is permitted to withdraw the same along with accrued interest thereon. The 2nd Appellant/2nd claimant being the son of the deceased, is entitled to an amount of Rs.97,750/-(Rupees Ninety Seven Thousand, Seven Hundred and Fifty only) and he is permitted to withdraw the same along with accrued interest thereon. The 3rd Appellant/3rd claimant being the minor daughter of the deceased, is entitled to an amount of Rs.1,32,750/-(Rupees One Lakh, Thirty Two Thousand Seven Hundred and Fifty only) and the said amount of Rs.1,32,750/-(Rupees One Lakh, Thirty Two Thousand, Seven Hundred and Fifty only) shall be deposited in any nationalised bank, till the 3rd appellant attains majority, and after attaining majority, the 3rd appellant is permitted to withdraw Rs.1,32,750/-(Rupees One Lakh, Thirty Two Thousand, Seven Hundred and Fifty only) with accrued interest thereon. The 4th Appellant/4th claimant, being mother of the deceased is entitled to an amount of Rs.97,750/-(Rupees Ninety Seven Thousand, Seven Hundred and Fifty only) and she is permitted to withdraw the said amount along with accrued interest thereon. As a sequel, miscellaneous applications pending, if any, shall stand closed.