* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A Nos.164 and 1660 of 2009
%27.06.2014
MACMA No.164 of 2009:
Between:
The National Insurance Co. Ltd Rep by its Divisional Manager, Hyderabad. …. Appellant AND K. Dwali and others. ….
Respondents ! Counsel for Appellant : Sri T. Ramulu ^ Counsel for Respondents 1 to 4 : Sri P. Ramakrishna Reddy
MACMA No.1660 of 2009:
Between:
K. Dwali and others. …. Appellants AND Jagru Naik and another. ….
Respondents ! Counsel for Appellants : Sri P. Ramakrishna Reddy ^ Counsel for Respondent No.2 : Sri T. Ramulu < Gist:
> Head Note:
? Cases referred:
1) 2013 ACJ 1944 (SC)
2) (2009) 6 SCC 121
3) 2011 ACJ 2436 (SC)
4) 2012 ACJ 1428 (SC) HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. Nos.164 and 1660 of 2009
COMMON JUDGMENT:
Aggrieved by the Award dated 01.05.2008 in OP No.2566 of 2006 passed by the Chairman, MACT–cum-XI Additional Chief Judge (FTC), City Civil Courts, Hyderabad (for short ‘the Tribunal’) both the National Insurance Company Limited and claimants preferred MACMA Nos.164 and 1660 of 2009 respectively.
Since both the appeals arise out of same award, they are disposed of by this common judgment. The parties in both the appeals are referred as they stood before the Tribunal.
2) The factual matrix of the case is thus:
a) The first claimant is the wife and claimants 2 to 4 are the sons of the deceased—K. Manjya. Their case is that on 12.05.2006 at about 8:00am, when the deceased along with 1st claimant and one M. Kishan was travelling in the auto bearing No.AP 11 X 2560 towards Narayanpur Mandal and when they reached near a bridge at Voilapally village, the driver of the auto drove at high speed and in a rash and negligent manner and lost control over the same, due to which the auto turned turtle. In the resultant accident, 1st claimant and Kishan sustained grievous injuries and the deceased sustained fracture of head and other injuries all over his body and immediately, he was shifted to Sai Sanjeevani Hospital, Hyderabad and from there to he was shifted to Gandhi Hospital, Secunderabad, where he succumbed to injuries on 13.05.2006 while undergoing treatment. Due to sudden demise of the deceased, the claimants became destitutes. It is averred that the accident was occurred due to the rash and negligent driving by the driver of the offending auto. On these pleas, the claimant filed O.P.No.2566 of 2006 against the respondents 1 and 2, who are owner and insurer of the offending auto and claimed Rs.4,00,000/- as compensation under different heads mentioned in the OP.
b) Respondent No.1 filed counter and denied all the material averments made in the claim petition and urged to put the claimants in strict proof of the same. R.1 submitted that the driver was an experienced and he does not have criminal antecedents against him and that no accident took place with the vehicle of 1st respondent, as such he is not responsible for the compensation payable to the claimants. R.1 further contended that the vehicle was insured with 2nd respondent/ Insurance Company at the time of accident and the driver had valid driving licence. Finally, he contended that the compensation claimed is highly excessive and exorbitant and prayed to dismiss the OP.
c) R.2’s counter was not sent by the Tribunal. However, the award shows the counter allegations of R.2 as thus:
R.2 denied the material averments made in the petition and disputed the manner of accident, the age, income and avocation of the petitioner, the coverage of insurance policy and validity of licence possessed by the driver of the offending vehicle to drive the same at the time of accident etc. It is averred that the claim of compensation is exorbitant and as there are no bonafides in the petition, the same deserves to be dismissed with costs.
d) During trial, PWs.1 and 2 were examined and Exs.A1 to A5 were marked on behalf of claimants. RW.1 was examined and Exs.B.1 to B.4 were marked on behalf of respondents.
e) A perusal of the award would show that the Tribunal having regard to the oral evidence of PWs.1 and 2 coupled with Ex.A1–FIR, Ex.A.2—charge sheet and Ex.A5-MVI Report, has held that the driver of the offending auto was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal awarded total compensation of Rs.1,97,000/- with proportionate costs and interest at 7.5% p.a under different heads as follows:
Loss of dependency Rs. 1,82,000-00 Loss of consortium Rs. 5,000-00 Loss of estate Rs. 5,000-00 Funeral expenses Rs. 5,000-00 Total Rs. 1,97,000-00 Hence, MACMA No.164 of 2009 by Insurance Company challenging its liability and MACMA No.1660 of 2009 by the claimants questioning the quantum of compensation.
3) It may be noted that pending appeal, Smt. K. Dwali—1st respondent in MACMA No.164 of 2009 and 1st appellant in MACMA No.1660 of 2009 died and her sons who are respondents 2 to 4 in MACMA No.164 of 2009 and appellants 2 to 4 in MACMA No.1660 of 2009 are recognized as her LRs.
4) Heard arguments of Sri T. Ramulu, learned counsel for appellant in MACMA No.164 of 2009 and respondent No.2 in MACMA No.1660 of 2009 and Sri P. Ramakrishna Reddy, learned counsel for respondents 1 to 4 in MACMA No.164 of 2009 and appellants in MACMA No.1660 of 2009. Though the owner of crime vehicle was served with notices in both the appeals, there is no representation for him.
4) Learned counsel for Insurance Company mainly and solely contested both the appeals on the ground that the driver of the auto had driving licence to drive auto rickshaw non- transport and whereas the crime vehicle was auto rickshaw transport and therefore, for the breach of the terms of policy committed by the owner of the vehicle, the Insurance Company may be exonerated from the liability or in view of the latest decisions, Insurance Company may be directed to pay compensation and recover the same from owner of the auto.
5) Whereas the submission of learned counsel for claimants is that since the policy was in force by the date of accident, Insurance Company cannot be absolved totally and on the other hand, in view of the latest decision of Hon’ble Apex Court in S.
[1]
Iyyappan vs. United India Insurance Co. Ltd and another , the Insurance Company may be directed to pay compensation and recover the same from the owner.
6 a) Sofaras the appeal of the claimants is concerned, learned counsel argued that compensation awarded by the Tribunal under some heads is low and inadequate, hence needs enhancement. He argued that the Tribunal selected ‘13’ as multiplier for computation of compensation but as per the decision of Apex Court reported in Smt. Sarla Verma vs. Delhi
[2]
Transport Corporation , ‘14’ is the correct multiplier.
b) Nextly, he submitted that the Tribunal fixed the annual income of the deceased as Rs.20,000/- which was low and it ought to have fixed his monthly income as Rs.4,500/- p.m. He submitted that in the decision reported in Ramachandrappa vs.
[3]
Manager, Royal Sundaram Alliance Insurance Co. Ltd , Hon’ble Apex Court fixed the monthly earnings of the injured who was a coolie as Rs.4,500/- p.m.
c) Finally he submitted that though the three sons of the deceased are majors, nevertheless they are dependants of the deceased and hence they are entitled to compensation. He submitted that the Insurance Company has not produced any contra evidence in this regard. He relied upon the decision reported in Santosh Devi vs. National Insurance Co. Ltd and others
[4]
, on the point that major sons who were depending on their deceased father were held, entitled to compensation when no contra evidence was produced.
He thus prayed to allow the appeal filed by the claimants.
6) In the light of above arguments, the point for determination in these appeals is:
“Whether the award passed by the Tribunal is factually and legally sustainable?”
7) POINT: The accident, involvement of auto bearing No.AP 11 X 2560 and death of deceased are not in dispute. Sofaras the appeal filed by the Insurance Company is concerned, its main contention is that the driver had only non-transport driving licence and so, for the breach committed by the owner, the Insurance Company is liable to be exonerated or it may be directed to pay compensation and recover the same from the owner. Its grievance is that the Tribunal fixed liability on Insurance Company jointly along with the owner.
8) A perusal of Ex.B.3—driving licence would show that driver of the auto had driving licence to drive auto rickshaw, L.M.V and M.C.W.G—Non-transport during the relevant period of accident, whereas the crime vehicle is a transport vehicle. Therefore, it is clear that the driver had no valid driving licence by the date of accident. To this extent, there is a breach of the terms of the policy. However the Insurance Company could not establish that the owner knowingly entrusted the vehicle to the driver. It also failed to establish that lack of the proper and effective driving licence was the fundamental cause for the accident. In this back drop, the point is whether the Insurance Company can be totally exonerated from the liability or not. In a similar situation, when the driver who had driving licence to drive L.M.V but he drove the maxi cab which was also a L.M.V but a commercial vehicle and thus the owner caused breach of the terms of the policy, the Apex Court in the cited decision in S. Iyyappan’s case (1 supra), held that the Insurance Company cannot repudiate its liability but it can pay compensation and proceed against insured for recovery of amount for the violation of condition of insurance policy. Following the above principle, in the instant case also, the Insurance Company can be directed to pay compensation and recover the same from the owner of the offending vehicle.
9 ) Then sofaras the appeal filed by the claimants for enhancement of compensation is concerned, the Tribunal having regard to the respective ages of the claimants and deceased and their ability to work and earn their bread and also having regard to the nature of avocation of the deceased etc., rightly fixed the compensation and there is no need to interfere with the same. It may be noted that pending appeal, the 1st claimant who is the wife of the deceased died. So the compensation awarded to her for loss of consortium has to be deleted. However, considering the fact that three sons of the deceased were not awarded any compensation for loss of love and affection of their father, the amount awarded under loss of consortium is directed to be treated as compensation for loss of love and affection.
1 0 ) In the result, both the appeals are disposed of and ordered as follows:
i) MACMA No.164 of 2009 filed by the Insurance Company is allowed and the appellant/Insurance Company is directed to pay the compensation amount of Rs.1,97,000/- with proportionate costs and simple interest at 7.5% p.a from the date of OP till the date of realization to the claimants and recover the same from the owner of auto. Pending appeal, if any amount is paid by the Insurance Company, the same shall be recovered from the owner but not from the claimants.
ii) MACMA No.1660 of 2009 filed by the claimants is dismissed.
iii) No order as to costs in both the appeals.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 27.06.2014
Note: L.R Copy to be marked: YES / NO
scs
[1] 2013 ACJ 1944 (SC)
[2] (2009) 6 SCC 121
[3] 2011 ACJ 2436 (SC)
[4] 2012 ACJ 1428 (SC)