NATIONAL INSURANCE CO.LTD v. THE NATIONAL LTD., INSURANCE

#5. BASAM RAVINDRA, S/O SESHAIAH, AGED 41 YEARS, RESIDENT OF SOMHADRI NAGAR, KANDUKUR TOWN. DRIVER OF SRI KRISHNA TOURSAND TRAVELS BUS AP TT 3930

#6. BADDEPUDI SRIHARI, S/O ANKAIAH, AGED 40 YEARS, RESIDENT OF RAMAVARAPPADU VILLAGE, DRIVER OF DCM VAN AP 24 TB 5247. ...RESPONDENT(S): Appeal filed under Section 173 of the Motor Vehicles Act against the order and Decree Dt.23-04-2021 passed in M.V.O.P.92 of 2017 on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Ongole Counsel for the Appellant(S):

#1. S A V RATNAM Counsel for the Respondent(S):

#1. N RAVI PRASAD

#2. The Court made the following: 3 CGR, J. MACMA. No.158 of 2022 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN M.A.C.M.A. No.158 of 2022 JUDGMENT: Present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short, “the Act”), by appellants/respondents 2 and 4/ Insurer, aggrieved by the order, dated 23.04.2021, passed M.V.O.P.No.92 of 2017 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District Judge, Ongole, Prakasam District (“the Tribunal”).

#2. For the sake of convenience, parties herein are referred to as they were arrayed before the Tribunal.

#3. Brief facts relating to the present appeal in a nutshell are as follows: (a) Parents of deceased are claimants. They laid claim for compensation of Rs.15,00,000/- along with interest on account of death of deceased. On 17.10.2015, while the deceased along with his relatives in order to attend marriage of one Samadhi Subbarao’s daughter were proceeding on DCM van bearing registration No.AP 24 TB 5247 from Chevuru village to Malakonda temple, upon reaching Cherlopalli village, the Van came to be dashed by a private bus bearing registration No.AP 27 TT 3930, which was proceeding in opposite direction. In view of 4 CGR, J. MACMA. No.158 of 2022 aforesaid accident, the deceased and also other inmates of DCM Van sustained severe injuries and many of them succumbed on the spot. The incident was reported to police, who registered Crime No.144 of 2015 for offences punishable under Sections 304-A, 338 and 337 of IPC and Section 134(a) and 134(b) of the Motor Vehicles Act, against both the drivers of DCM Van as well as Sri Krishna Travels bus, and later, they were charge-sheeted for the said offences. Deceased, aged 22 years, claimed to be completed his B.Tech course and selected for job in State Bank of India and received appointment letter after his death on

17.11.2015, hence, compensation to the tune of Rs.15,00,000/- along with interest was claimed. (b) Owner of DCM Van, drivers of both DCM Van and bus, who were arrayed as respondents 3, 5 and 6 remained ex parte. 1st respondent, owner of Sri Krishna Travels Bus, filed written statement. Both DCM Van and also bus were insured with same Insurer, who were arrayed as respondents 2 and 4, therefore, they as well filed their respective written statements. (c) The respondents essentially denied the manner in which the accident occurred and that drivers of respective vehicles were negligent in causing the accident. They have also denied the age, avocation, income of deceased. 5 CGR, J. MACMA. No.158 of 2022 (d) 4th respondent Insurer of DCM Van also raised yet another objection that all the inmates of DCM Van were required to be considered as unauthorised passengers, inasmuch as the owner of DCM Van very much had the knowledge and he himself had hired DCM Van for carrying those passengers, albeit being goods transport vehicle, which is in clear violation of conditions of policy. (c) Based on the aforesaid pleadings, the Tribunal has framed following issues: “1. Whether the accident occurred on 17.10.2015 due to which Todeti Prasad died in a rash and negligent driving of Sri Krishna Travels Bus bearing No.AP 27 TT 3930 by its driver or was there any negligence on the part of the driver of DCM lorry bearing No.AP 24 TBN 5247 by its driver?

#2. Whether the petition is bad for non-joinder of necessary parties? 3. Whether the drivers of Sri Krishna Travels Bus AP 27 TT 3930 and the driver of DCM lorry bearing No.AP 24 TB 5247 are having valid and effective driving licence at the time of accident?

#4. Whether the petitioners are entitled to compensation? If so, to what amount and against whom?

#5. To what relief?” (d) In support of the case of the claimants, father of deceased and co-passenger of DCM Van were examined as PW.1 and PW.2 and got marked Exs.A1 to A5. On behalf of respondents, RW.1 to RW.4 were examined and got marked Exs.B1 to B5, and Ex.X1 and Ex.X2. (e) After detailed consideration of evidence on record, both oral and documentary, the Tribunal has come to conclusion that both drivers of DCM van as well as the bus were equally responsible and negligent in causing the accident and therefore, the deceased had died on 6 CGR, J. MACMA. No.158 of 2022 account of such clear negligence. The Tribunal also found that because of magnitude of the accident, nearly 15 persons died on the spot and many others got injured, which was possible only on account of sheer rash and negligent driving of drivers of both the vehicles. With respect to the stand of Insurer that driver of bus was not holding valid driving licence, and also that the inmates of the DCM Van were unauthorised passengers on account of the owner himself engaging the goods vehicle for hire to transport passengers, the Tribunal concluded that drivers of both vehicles did not possess effective and valid driving licenses, however, considering the evidence on record did not establish that the deceased was a gratuitous passenger, by applying the principle of ‘pay and recover’, the Insurer was directed to pay the compensation and later to recover the same from the owners of respective offending vehicles. The Tribunal, therefore, has determined the compensation as under: S. No. 1.

#4. Heads Calculation Rs.12,000.00 Rs.1,44,000.00 Rs.72,000.00 Income of the deceased per Income of the deceased per annum: Rs.12,000/- x 12= As the deceased died of leaving behind his parents, ½ income shall be of his deducted towards personal and living expenses of the deceased. remainder Rs.1,44,000/- x 50%= Relevant multiplier for age group 21 to 25 is “18”. Thus, Thus, Rs.12,96,000.00 dependency Rs.72,000/- x 18. Thus, loss of dependency is Rs.72,000/- x 18 = Funeral expenses Total

#5. 7 CGR, J. MACMA. No.158 of 2022 Rs.15,000.00 Rs.13,11,000.00 Thus, the Tribunal awarded Rs.13,11,000/- with interest at the rate of

7.5% p.a. Assailing the same, the appellants – Insurer instituted the present Appeal.

#4. Heard Smt.S.A.V. Ratnam, learned counsel for the appellants and Sri N.Ravi Prasad, learned counsel for respondents 1 and 2/claimants.

#5. Learned counsel for the appellants mainly contended that the Tribunal has erred in fastening liability on Insurer even on the principle of ‘pay and recover’, by overlooking the substantive plea that the offending vehicle, in which deceased was travelling, was goods transport vehicle, therefore, inasmuch as the owner of the said vehicle has engaged it to carry passengers, the same constituted clear violation of terms of policy. She further contended that since the Tribunal has come to the conclusion that both drivers of respective offending vehicles were negligent for causing the accident, there is a clear contributory negligence on the part of driver of DCM van, hence, the liability to the extent of half qua the DCM Van ought not to have been fastened on the appellant. Insofar as quantum is concerned, learned counsel for the appellants submitted that though some of the grounds have been raised 8 CGR, J. MACMA. No.158 of 2022 even questioning the same, in view of fairly settled legal position, she does not propose to argue or agitate the same.

#6. On the other hand, learned counsel appearing for respondents 1 and 2/claimants, while supporting the order under challenge by contending that the findings recorded by the Tribunal are sound and reasoned, submits that the claimants are entitled to future prospects and, therefore, prays that future prospects also be granted.

#7. Perused the record and considered the submissions of learned counsel for the appellant.

#8. This is a case of collision between DCM Van and passenger bus. On 17.10.2015, the DCM Van carrying group of persons for attending marriage function was hit by bus belonging to Sri Krishna Travels. Due to the severity of accident, about 15 persons died on the spot and many got injured. There is no dispute regarding the occurrence of accident and involvement of both the vehicles mentioned above. Incidentally, both vehicles were insured with the same Insurer under different policies. Various grounds came to be urged before the Tribunal, all of which ultimately were answered favour of claimants and compensation came to be awarded. 9 CGR, J. MACMA. No.158 of 2022

#9. With respect to violation of conditions of policy, Insurer had raised two contentions- firstly, regarding drivers of both vehicles not having valid and effective driving licenses, and secondly, that the owner of DCM Van by allowing and engaging the passengers to travel in a goods vehicle, violated the terms of policy, therefore, liability, if any, could be fastened only on the owner, but not on the Insurer. This Court is now concerned with the second contention. The Tribunal has answered the same in negative against the Insurer. To see whether the approach and finding of Tribunal is right and justified, the plea and evidence on record, need to be examined. Inasmuch as, the Insurer has raised such plea, onus rests on it to prove the same. Conspicuously, the owner of DCM Van remained ex parte and he was not got examined by the Insurer. The best piece of evidence one can exhibit to support the plea raised would be to examine the owner of the DCM Van. On the other hand, the father of deceased and also the inmate of DCM Van, who got examined as PW.1 and PW.2, unequivocally stated that they travelled by DCM Van, however, nothing has been elicited from them to navigate that the DCM Van was engaged by and with the knowledge of owner.

#10. Learned counsel for the appellants tried to persuade this Court by referring to the pleadings, and part of evidence in bits and pieces to collate that the inmates and passengers of DCM Van themselves had 10 CGR, J. MACMA. No.158 of 2022 hired the DCM Van with its owner. On careful consideration of evidence on record, this Court is afraid that such conclusion can it be straightaway drawn or even inferred. In the absence of any cogent evidence to support the case of Insurer, on the other hand, as it has been pleaded by claimants that they were merely travelling in the DCM Van for attending marriage, the finding recorded by the Tribunal that the Insurer failed to establish that the deceased to be a gratuitous passenger needs no interference.

#11. Coming to the aspect of other part of submission that in view of the finding of the Tribunal that even the driver of DCM Van was equally negligent in causing the accident, no liability could have been fastened on the Insurer corresponding to its part, the same straightaway needs to be rejected for simple reason that neither the deceased nor inmates have any control on the DCM Van and they were mere passengers. Therefore, even if any negligence is attributable to the driver of DCM Van, it would not have any consequences on the passengers.

#12. Just and Fair Compensation: It is settled law that the claimants are entitled for just and fair compensation and that endeavor should be made by the Court to award just and fair compensation irrespective of the fact the claimants had not preferred any Appeal for enhancement or filed Cross-objection in the 11 CGR, J. MACMA. No.158 of 2022 Appeal filed by either insurance company or owner. A Division Bench of this Court had summed up the law on this aspect recently in The Divisional Manager, The New India Assurance Company Limited v. Emani Venkata Archana1, by placing reliance on the judgments of the Hon’ble Apex Court in N.Jayasree v. Cholamandalam Ms.General Insurance Co. Ltd.2, Surekha v. Santosh3, Meena Pawaia v. Ashraf Ali4 and Smt. Anjali v. Lokendra Rathod5. As the purport of compensation under Section 166 of the Act is to award just and fair reasonable compensation, this Court is granting the above reliefs to the respondents/claimants by enhancing the compensation awarded by the Tribunal.

#13. Future Prospects: The Tribunal, though, determined the income of the deceased as ₹1,44,000/- per annum, it had not provided for the future prospects. The Tribunal should have provided for future prospects following the judgment rendered by the Hon’ble Apex Court in National Insurance Co. Ltd. v. Pranay Sethi6. As the deceased was B.Tech graduate and got appointment letter from S.B.I., and that aged between 21 to 25 years, in terms of the aforesaid judgment, future prospects @ 40% have