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2025 DIGILAW 176 (AP)

K. Venkata Krishna v. Babjan S. K.

2025-01-29

V.R.K.KRUPA SAGAR

body2025
JUDGMENT : (V.R.K. KRUPA SAGAR, J.) Questioning the inadequacy of compensation and absolving the insurance company from liability, the legal representatives of the deceased in an automobile accident preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 impugning the award dated 14.03.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool (hereinafter referred to as ‘the Claims Tribunal’) in M.V.O.P.No.534 of 2009. 2. The offending vehicle is a lorry bearing registration No.AP- 27-V-8829. Respondent No.1 is the owner of it. Respondent No.2 insured the said vehicle. 3. Sri J.Janaki Rami Reddy, the learned counsel for appellants and Sri P.B. Narasimha Murthy, the learned counsel for respondent No.2-Insurance Company submitted their arguments. 4. The following facts are required to be noticed: Sri Kalle Giddaiah and Sri Devara Thimmaiah along with one another person watched a movie in a theatre at Hyderabad and were returning home on foot and they reached a place near Pochamma Temple at Nizampeta X-road at about 9:00 P.M. on 18.07.2009. The offending lorry being driven by its driver at high speed, rashly or negligently came behind them and without noticing the pedestrians dashed them and ran over Sri Kalle Giddaiah and Sri Devara Thimmaiah leading to their spot death. Crime No.906 of 2009 was registered by Kukatpally Police as against the driver of the offending lorry. The legal representatives of the deceased Sri Kalle Giddaiah filed M.V.O.P.No.534 of 2009 claiming a compensation of Rs.5,00,000/- stating that the deceased was a gounda earning Rs.6,000/- per month and the claimants are totally dependent on his earning. Respondent No.1 therein was the owner of the offending vehicle but he did not choose to appear and contest and was set ex parte. Respondent No.2-insurance company protested the claim by taking various contentions in its counter and stated that negligence was there on part of the deceased and not on part of the driver of the offending vehicle and the driver of the offending vehicle did not have valid and effective driving licence at the material point of time and therefore, it could not be directed to pay compensation. 5. On the rival pleadings, the learned Chairman, Motor Accidents Claims Tribunal framed the following issues for trial: 1) Whether the accident took place as stated in the petition? 2) Whether the petitioners are entitled to compensation? If so, from which of the respondents? 5. On the rival pleadings, the learned Chairman, Motor Accidents Claims Tribunal framed the following issues for trial: 1) Whether the accident took place as stated in the petition? 2) Whether the petitioners are entitled to compensation? If so, from which of the respondents? 3) To what relief? 6. For claimants, PWs.1 and 2 testified and Exs.A.1 to A.5 were marked. On behalf of the insurance company, RWs.1 and 2 were examined and Exs.B.1 to B.4 and Exs.X.1 and X.2 were marked. 7. After analyzing the evidence on record and after considering the oral evidence of PWs.1 and 2, Ex.A.1-copy of F.I.R. in Crime No.906 of 2009 and Ex.A.2-copy of charge sheet and Ex.A.3-inquest report and Ex.A.4-postmortem report and Ex.A.5, which is report of Motor Vehicles Inspector, the learned Claims Tribunal concluded that the death of Sri Kalle Giddaiah and the other person was out of rash or negligent driving of driver of the offending vehicle. Based on evidence it found the age of the deceased as 21 years and that he was a gounda earning Rs.2,200/- per month and thereby earning Rs.26,400/- per annum. Considering the number of dependents/claimants, it deducted 1/3 rd of the income/Rs.8,800/- towards the possible personal expenses of the deceased. Thus, Rs.17,600/- per year was the annual income of the deceased of which his legal representatives were dependent on. As the age was found to be 21 years, the appropriate multiplier applied was ‘17’. Thus, compensation of Rs.2,99,200/- was awarded. In addition to that, the learned Claims Tribunal granted Rs.2,500/- towards funeral expenses and Rs.2,500/- towards transportation charges. Thus, a total compensation of Rs.3,04,200/- was awarded. 8. It then considered the evidence on record with reference to the existence of insurance policy and recorded that Ex.B.1 was a copy of insurance policy and that was valid and effective as on the date of accident. 9. It then considered as to whether the driver of the offending vehicle had got a valid and effective driving licence at the material point of time or not. It observed that as per Ex.X.2 produced by the insurance company and the evidence of RW.2 - officer of the Road Transport Authority, Ongole, Prakasam District, the driver was holding a driving licence to drive light motor vehicles non- transport. However, the offending vehicle being lorry is a heavy vehicle and the driver was not competent to drive the said vehicle. However, the offending vehicle being lorry is a heavy vehicle and the driver was not competent to drive the said vehicle. In such circumstances, it held that only the owner of the offending vehicle had to pay compensation and since there was breach of conditions of insurance policy, the insurance company could not be fastened with liability and accordingly exonerated it. The operative portion of the award of the Claims Tribunal reads as below: “In the result, the petition is partly allowed with proportionate costs by awarding compensation of Rs.3,04,200/- (Rupees three lakhs four thousand and two hundred only) to the petitioners 1 and 3 together with interest at 9% per annum from the date of petition to the date of realization payable by the first respondent. The first respondent is directed to deposit the awarded amount within 30 days from the date of this order. On such deposit, the petitioners 1 and 3 are allotted equal amounts. The petitioners 1 and 3 are permitted to withdraw Rs.52,100/- each with costs and interest equally, and the remaining amount of Rs.1,00,000/- each shall be kept in fixed deposit for two years in any Nationalized Bank in their names. The petition against the second respondent is dismissed. Advocate fee is fixed at Rs.3,000/-.” 10. In the present appeal the primary contention of the learned counsel for appellants is about the failure of the Claims Tribunal in not fastening the liability on the insurance company. It is at this juncture the learned counsel for appellants filed before this Court a judgment of a learned Judge of this Court dated 12.04.2023 in M.A.C.M.A.No.1405 of 2012. That was an appeal preferred as against the orders of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool in M.V.O.P.No.535 of 2009 pertaining to the death of Sri Devara Thimmaiah. It is here one has to notice that with reference to death of Kalle Giddaiah his legal representatives filed M.V.O.P.No.534 of 2009 whereas concerning the death of Sri Devara Thimmaiah his legal representatives filed M.V.O.P.No.535 of 2009. Both the claims were heard by the same Tribunal and both were disposed of on the same day. The present appeal pertains to the death of Kalle Giddaiah whereas M.A.C.M.A.No.1405 of 2012 is concerned, it pertains to the death of Sri Devara Thimmaiah. 11. Both the claims were heard by the same Tribunal and both were disposed of on the same day. The present appeal pertains to the death of Kalle Giddaiah whereas M.A.C.M.A.No.1405 of 2012 is concerned, it pertains to the death of Sri Devara Thimmaiah. 11. Learned counsel for respondent No.2-insurance company admits the above facts and both sides submitted that what was decided by the learned Judge of this Court in M.A.C.M.A.No.1405 of 2012 became final. 12. The point that falls for consideration in this appeal is: “Whether the impugned award is incorrect on facts and law requiring interference?” POINT 13. In M.A.C.M.A.No.1405 of 2012 this Court on considering the ruling of the Hon’ble Supreme Court of India in Kempaiah v.S.S.Murthy , [ AIR 2017 SC 1822 ] stated that in those circumstances where the offending vehicle is covered by a valid insurance policy and driver of the offending vehicle holding a driving licence though pertaining to a different category of vehicle, the doctrine of pay and recovery can be applied. Accordingly, liability was fastened on the insurance company. Since the said case arose out of the same accident, one has to necessarily follow what was held by this Court in the above said ruling. In that view of the matter this Court has to agree with the contention of the appellants that in the present case also the liability to pay compensation in the first instance and thereafter recover the same from the owner of the vehicle has to be ordered. 14. With reference to the inadequacy or otherwise of the compensation awarded, after considering the submissions of learned counsel on both sides and the material available on record, this Court finds that the age of the deceased and the multiplier applied by the Claims Tribunal are in accordance with facts and law. The Claims Tribunal notionally assessed the income of the deceased as Rs.100/- per day. However, his monthly income was calculated only for 22 days which comes to Rs.2,200/-. The reason for excluding the remaining days of month/8 days was not recorded. In the opinion of this Court such observation unsupported by any reasons cannot be supported. Therefore, the monthly income for 30 days in a month at the rate of Rs.100/- per day has to be considered. By doing so, his monthly income comes to Rs.3,000/-. The reason for excluding the remaining days of month/8 days was not recorded. In the opinion of this Court such observation unsupported by any reasons cannot be supported. Therefore, the monthly income for 30 days in a month at the rate of Rs.100/- per day has to be considered. By doing so, his monthly income comes to Rs.3,000/-. 1/3 rd of it is deducted towards the possible personal expenses of the deceased. The net income per month is Rs.2,000/-. Per year it is Rs.24,000/-. The multiplier is 17. Thus, it comes to Rs.4,08,000/-. Therefore, in addition to Rs.2,99,200/- granted by the Claims Tribunal an additional amount of Rs.1,08,800/- is to be granted towards loss of dependency. 15. With reference to funeral expenses, the learned Claims Tribunal granted only Rs.2,500/-. Nothing was granted by the Claims Tribunal towards loss of estate and loss of love and affection. After a detailed examination of law pertaining to those aspects, in the celebrated ruling of the Hon’ble Supreme Court of India in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680 it was held that towards loss of estate Rs.15,000/-, towards loss of consortium Rs.40,000/- and towards funeral expenses Rs.15,000/- are to be granted. Applying the said principle to the present case this Court grants Rs.67,500/-. 16. Accordingly, the point is answered granting an additional amount of Rs.1,76,300/-. 17. In the result, this Appeal is allowed enhancing the compensation awarded in the impugned award dated 14.03.2012 of the learned Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Kurnool in M.V.O.P.No.534 of 2009. from Rs.3,04,200/- to Rs.4,80,500/- with 9% interest per annum from the date of petition till the date of realisation. The second respondent-Insurance Company is directed to pay the claim amount after giving due credit to amount paid if any. Time granted is one month from the date of this judgment. The second respondent-Insurance Company shall pay the amount to the claimants at first instance and later recover the same from respondent No.1 by filing an execution petition without there being any need for filing any suit. On such deposit, the claimants are entitled to withdraw the same as per their entitlement mentioned in the award of the Claims Tribunal along with costs and accrued interest thereon. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.