Bench Sr.No:-69 v. P Arunakumari Spsr Nellore Dist 3 Others & Ors.

Judgment

(per Hon’ble Sri Justice Challa Gunaranjan) This appeal is preferred by appellant/insurer under Section 173 of M.V. Act, assailing the judgment and order dated

05.10.2016 in M.V.O.P. No.964 of 2011, passed by learned Principal District Judge, Nellore, by which the compensation for a sum of ₹32,38,296/- came to be awarded with proportionate costs 2 HCJ & CGR, J MACMA No.1229 of 2017 and interest thereon @7.5% per annum from the date of petition till the date of deposit.

For convenience sake, the parties will hereinafter be referred to as they were arrayed before the Tribunal.

3. (a) The deceased was working Tahsildar, Sitaramapuram Mandal, Nellore District. While he was at Sitaramapuram bus stand and waiting to go to Kovvur, he got into Tata Safari vehicle belonging to 1st respondent, who stated to be friend of deceased and en route, the driver of vehicle dashed into a stationed tractor-trailer at roadside margin, thereby, deceased died on account of severe injuries. Based on report, police have registered Crime No.3 of 2011 against the driver of Tata Safari and later filed charge sheet. (b) The deceased was aged about 52 years and he was earning about ₹36,742/- per month as salary and accordingly, the claimants i.e., wife and two sons, have sought for determination of compensation. (c) The 1st respondent, owner of the vehicle, in his written statement stated that the deceased known to him, therefore, had got into the vehicle as the same was coming to Kovvur. The 3 HCJ & CGR, J MACMA No.1229 of 2017 2nd respondent filed written statement resisting the claim and raised various defenses. The main stand pleaded was that the vehicle of 1st respondent since was insured as private car, the same would not cover any passenger on hire, therefore, no liability could be fastened on the insurer. (d) The Tribunal has framed following issues:

1. Whether the accident had occurred due to the rash and negligent driving of the TATA Safari vehicle bearing registration No.AP 26AH 1699, resulting in the death of the deceased?

2. Whether petitioners entitled compensation? If so, how much amount, and from which of the respondents?

3. To what relief? (e) On behalf of claimants, P.W.1 came to be examined and Exs.A1 to A7 were marked and on behalf of 2nd respondent R.W.1 was examined and Ex.B1 was marked. The Tribunal has answered first issue in affirmative, holding that the accident had occurred due to rash and negligent driving of the driver of Tata Safari resulting in death of deceased. Further, insofar as liability aspect is concerned, by interpreting the conditions of Ex.B1 - package policy, Tribunal held that the insurer was liable. 4 HCJ & CGR, J MACMA No.1229 of 2017 (f) Accordingly, compensation of ₹32,38,296/- came to be awarded, which included ₹25,000/- towards funeral expenses, ₹1,00,000/- towards loss of estate and ₹1,00,000/- towards loss of consortium.

4. Heard Sri Kurapati Srinivasa Rao, representing Sri Kota Subba Rao, learned counsel for appellant/insurer on record and Sri Siva Prasad Reddy Venati, learned counsel respondents/claimants.

5. Learned counsel for appellant contends that the Tribunal having noticed that the subject policy being a package policy would not cover the inmates carried for hire or reward, ought not have fastened any liability on the insurer. He would further submit that there is no challenge with regard to the quantum of compensation.

6. (a) Per contra, learned counsel appearing for respondents/ claimants, while supporting the impugned award, contends that absolutely there is no evidence to suggest that the deceased was being carried in the subject vehicle for hire or reward, rather, there is overwhelming evidence to suggest that the deceased and owner of the vehicle were close friends and because of such proximity, deceased has got into the vehicle before occurrence of 5 HCJ & CGR, J MACMA No.1229 of 2017 incident. Therefore, the findings of Tribunal do not suffer from any perversity. (b) Further, is contended that insofar as compensation is concerned, the Tribunal has failed to award future prospects, as the deceased was holding permanent job and aged 52 years, the Tribunal ought to have awarded future prospects @15% on the monthly income of ₹36,742/-.

7. We have considered submissions of learned counsel appearing for the parties and perused the record.

8. Now, the question that falls for consideration of this Court is:

1. Whether there is any error or perversity in the order passed by the Tribunal in awarding compensation to the claimants as raised by the respondent/insurer and, if so, to what extent it needs to be revised?

2. To what relief?

9. The Tribunal, while considering submissions of the insurer with regard to the liability per se dealt with the issue in the following manner: “14. The learned counsel for 2nd respondent contended, the vehicle of 1st respondent was insured as a private – car, 6 HCJ & CGR, J MACMA No.1229 of 2017 under Exhibit B-1 policy/Exhibit B-1, and deceased travelled in the vehicle of 1st respondent, as a passenger, thus, his risk was not covered under Exhibit B-1 policy, therefore, 2nd respondent is not liable for payment of compensation, and prayed to absolve them from paying compensation. (i) It is true, in the evidence of RW-1, the copy of insurance policy, along with its schedule, was filed, and from Exhibit B- 1, it is a package-policy, and under the schedule, with regard to the liability towards third parties, the following stipulation is provided, and the same is extracted for better appreciation- "For Private Car only i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet requirements of Motor Vehicles Act, 1988. The Company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured." On a plain reading of the above stipulation in Exhibit B-1, it is crystal clear, under it, 2nd respondent undertook to indemnify 1st respondent, towards liability in case of death or bodily injury to any person including occupants carried in the vehicle, provided such occupants are not carried for hire or reward. 7 HCJ & CGR, J MACMA No.1229 of 2017 (ii) And in the instant case, according to petitioners, deceased travelled in the vehicle of 1st respondent, as his friend, at the request of his driver, and not as fare-paying passenger, and this was conceded by 1st respondent, in his counter filed in the proceedings, and 2nd respondent, to avoid liability in payment of compensation under Exhibit B-1, shall prove that deceased, at the relevant time of accident, travelled in the vehicle of 1st respondent, as a fare-paid passenger or for reward, and in this regard, no material is placed by 2nd respondent, indicating deceased travelled in the vehicle of 1st respondent, as a passenger for hire or reward, thus, it can be safely concluded, deceased travelled in the vehicle of 1st respondent, during the accident, as his friend, and was only an occupant and not a passenger for hire or reward.”

10. The analysis and finding of the Tribunal is that the subject policy also covers liability towards third parties, however, exception is only in case if the vehicle carried occupants for either hire or reward. It is the case of insurer that the deceased got into the subject vehicle as a hired passenger. In the written statement filed by 1st respondent, owner of the vehicle, it has been categorically pleaded that the deceased was known to him, therefore, he had got into the subject vehicle.

11. Be that as it may, since the insurer has taken a specific stand that deceased has got into subject vehicle as a hired passenger, 8 HCJ & CGR, J MACMA No.1229 of 2017 the burden of proof lies on it to establish the said fact. Absolutely there is no evidence to support the same, therefore, we do not find any infirmity with the findings of the Tribunal on aforesaid aspect.

12. The tribunal has failed to grant future prospects, which otherwise the claimants are entitled to. Further, even towards conventional heads the amounts that have been granted are at invariance in terms of the judgment of Hon’ble Apex Court in National Insurance Company Limited v. Pranay Sethi and others1.

13. Here we are conscious of the fact that the claimants have not independently preferred any appeal nor chosen to file cross- objection, however, following the co-ordinate Bench judgment in the case of The National Insurance Company Limited v. E.Suseelamma and others2, we proceed to revise the quantum of compensation to be just and fair.

14. Therefore, the compensation stands revised as under: Compensation Heads Monthly Income Yearly Income 1 (2017) 16 SCC 680 2 MANU/AP/1282/2023 Amount Awarded In accordance with ₹36,742/- ₹4,40,904/- 9 HCJ & CGR, J MACMA No.1229 of 2017 ₹4,40,904/- - ₹88,180/- = ₹3,52,724/- 15% of ₹3,52,724/- = ₹52,909/- ₹4,05,633/- - ₹1,35,211/- = ₹2,70,422/- ₹2,70,422/- x 11 = ₹29,74,642/- National Insurance Co. Ltd v. Pranay Sethi (2017) 16 SCC 680 Paras 37, 39, 41, 42 and 59.4 ₹29,74,642/- ₹18,150/- (with 10% increase every 3 years from 2017) ₹18,150/- (with 10% increase every 3 years from 2017) Less – Income Tax @ 20% Future Prospects (Age being 52 years) Deduction (1/3) Multiplier (11) Loss of Income of the deceased Loss of Estate Loss of Funeral Expenses National Insurance Co. Ltd v. Pranay Sethi (2017) 16 SCC 680 Paras 37, 39, 41, 42 and 59.4 United Insurance Co.Ltd. v. Satinder Kaur (2021) 11 SCC 780 Para 37.12 Rajwati alias Rajjo and Ors v. United India Insurance Company Ltd. And Ors. 2022 SCC OnLine SC 1699 Para 34 Sadhana Tomar & Ors. Ashok Khushwaha & Ors. 2025 SCC OnLine SC 554 Para 17 Loss of Consortium ₹48,400/- x 3 = ₹1,45,200/- (with 10% increase every 3 years from 2017) Total ₹31,56,142/-

15. In the result, MACMA filed by the respondent/insurer is disposed of in the following terms: 10 HCJ & CGR, J MACMA No.1229 of 2017 i) The claimants/respondents are granted revised compensation of ₹31,56,142/- as just and fair, with interest @ 7.5% per annum thereon from the date of claim petition till realization; ii) Out of the revised compensation amount, the 1st claimant – wife is entitled for ₹21,56,142/- and 2nd and 3rd claimants – sons of deceased are entitled for ₹5,00,000/- each. iii) The appellant is directed to deposit the amount as aforesaid with interest and costs, adjusting the amount already deposited/paid, if any, before the Tribunal within one month. iv) On such deposit being made, the claimants are entitled to withdraw their respective shares as per the apportionment made above. There shall be no order as to costs. As a sequel, miscellaneous petitions pending in this case, if any, shall stand closed. LISA GILL, CJ CHALLA GUNARANJAN, J SS