Supreme Court in National Insurance Company Limited vs Pranay Sethi and others (as cited supra) and considering the age

Counsel for the Appellants : SRl. T V|SWARUPA CHARY Counsel forthe Respondent No.,t : - Counsel for the Respondent No.2 : SRI KONDADT AJAY KUt,i {R The Court made the following: COMMON JUDGMENT

1.y THE IION'BLE SRI JUSTTCE NARSING RAO NANDIKONDA M.A.C.M.A.No.470 of 2016 & M.A.C.M.A.No.2651of 2019 COMMON JUDGMENT: This M.A.C.M.A.No.470 of 2016 is filed by the Relicance General Insurance Company Limited and M.A.C.M.A.No.265I of 2019 is filed by the claimants against the Award and decree passed by the Chairman, Motor Accident Claims Tribunal-cum-[l Additional Chief Judge, City Civil Court, Hyderabad, (hereinafter referred to 'Tribunal') in O.P.No.375 of 2012,dated22.01.2014.

2. Heard K.Ajay Kumar, learned counsel for the appellant in M.A.M.C.A.No.470 of 2016 Reliance General Insurance Company Limited and Sri T.Viswarupachary, learned counsel lor the appellants in M.A.C.M.A.No.265 I of 2019. None appeared for respondent No.1 . Perused the material on record.

3. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the learned Tribunal.

4. The brief facts of the case are that claimants earlier filed O.P.No.375 of 2012 under Section 166 of the M.V.Act, 1988, NNR'I h., C-MA.N,.170 oI20l6 & M. a :.n{-4.No.2651 of2019 seeking compensation for the death of the deceasr:r K.Sai Kiran Lala, who died in the accident alleged to have occLr.ed due to the rash and negligent driving by the driver of the auto b 'afing No.AP- 24-W-6863.It is contended that, on 24.10.2011 th,: deceased was travelling in the auto bearing No.AP-24-W-6863 from Balapur Village to go to BDL Company, when the said au.( reached near Midhani Township, the driver of the said auto drove t in a rash and negligent manner at high speed and dashed to a CF1'F bus bearing No.DBP 8453, which was coming in the opposite direction and caused accident, due to which, the deceased fell r own fiom the auto and sustained head injury and other injuries atJ over his body and immediately, he was shifted to Osmania Hospit r1, Hyderabad, where he succumbed to injuries while undergoing b t atment.

5. The Police registered a case, vide Crim: No.l7512011, against the offending auto driver under Section 3(u -A and 331 of IPC

6. The contention of the claimants before the f r bunal was that as on the date of accident the deceased was agec lbout 30 years and was earning Rs.5,798/- per month as an enrr,loyee in BDL I 3 N^n.,I lf -1. C MJ. No. 1 70 of 20 t 6 M.4.C M.4. No. 265 I of 20 1 9 company and due to untimely death ofthe deceased, the petitioners have become destitute and lost their dependency for which claimants claimed Rs.5,00,000/- as compensation.

7. Before the learned Tribunal, first respondent, who is the owner of the offending vehicle, remained ex-parte in spite of service of notice. The second respondent filed counter-affrdavit, denying all the averments made in the claim petition, including the manner in which the accident took place, age, avocation and income of the deceased, further, denied that the auto bearing No.AP-24-W-6863 was owned by the first respondent and it was insured with the second respondent, the policy number mentioned in the claim petition was not tallying with the series of the policies issued by it. Further, submitted that the accident occurred due to the negligent driving of the bus bearing No.DBP 8453 owned by CRPF and the petitioners intentionally failed to make the owner and insurer of the said bus as parties to the claim petition, as such the claim petition is not maintainable. Further, contended that there was a violation of mandatory provisions under Section 143 (c) of M.V.Act, since the first respondent failed to L 4 ENNR,J M/ C.M.A.Nq.170 oI2016 & M..t. : tV.A.No.265I of 2019 fumish the particulars of the policy date, time, plac : of accident, particulars of injury and name of the driver and J iving license particulars and also denied the averments made in the claim petition and further contended that the compensa i rn claimed is excessive and prayed to dismiss the claim petition.

8. Basing on the pleadings and averments mai: by both the counsel, the leamed Tribunal framed the followin: issues, which reads as under: i) Wether the pleaded accident dated 24 l).2011 occurred due to rash and negligent drivin3 of the driver of the crime vehicle i.e., auto bearing lo.AP- 24-W-6863 and whether the deceased K.Su, Kiran Lala died due to the said accident? ii)ll/hether the petitioners are entittt I .fo, compensation and, f so, to what quantL, n and whether crime vehicle was owned by first ysl ondent and tnsured with second respondent and ulit t is the liabi I i qt of t h e res pondents ? iii) To what relieJ?

9. On behalf of the petitioners, PWs.l to 3 we-, examined and Exs.Al to ,46 were marked. On behalf of the se<r nd respondent, RWI was examined and Exs.B I to 87 were marke I After perusing the oral and documentary evidences and going into the entire 7 ) 5 NNR,I M-1.CM.ANo.170 of 2016 M,A. C l,I A-No.2 65 I oI 20 19 & record and the evidences placed by both the parties, the leamed Tribunal allowed the claim and granted compensation of Rs.6,90,000/- along with interest @7.5% per annum

10. Being unsatished and aggrieved by the compensation amount awarded by the leamed Tribunal, the present appeal and cross appeal are filed by the Insurance Company and the claimants respectively I l. Leamed counsel for the claimants contended that there is no dispute with regard to accident, death of the deceased and the injuries sustained by the deceased. Leamed counsel further contended that PWI is the wife of the deceased, who narrated the whole incident, but she is not eye-witness. PW2-Sri R.Anil Kumar, who is the eye-witness to the accident and he deposed that the deceased dieid due to the injuries sustained in accident caused due to rash and negligent driving by the driver of offending auto. He fuither contended that the deceased was hale and healthy and he was earning Rs.5,798/- per month as an employee in BDL company and he used to contribute his eamings for the maintenance of his family and the eamings of the deceased was 6 NNR,I M/ C.M.A.N'.170 of20t6 M- t. : M.A. No.26 5 I of 20 19 & established by Ex.A6 salary certificate and the oral :,idence given by PW3 Sri D.Ajay Sinha, Accountant of S.R.Enter: ises. Leamed counsel further contended that the oral and docume r tary evidence clearly establishes that the accident took place duc t r the rash and negligent driving of the offending auto by its dnrt r and as seen from Ex.Bl, the policy copy, the first respondenl I the owner of the offending auto and it is insured with the seconc 'cspondent for the period from 15.12.2010 to 14.12.201 I and sirc : the accident took place on24.10.2011, the policy was in force as on the date of the accident, hence, the respondent Nos.l and 2 i re jointly and severally liable to pay the compensation to the .,etitioners. He further contended that the leamed Tribunal, havir 1 accepted the fact that deceased died due to rash and negligent , riving of auto bearing No.AP-24-W-6836, without considering t ie evidence in proper manner with regard to income of the dec: Lsed, fixed the income of the deceased at Rs.5,000/- per month an I not considered the correct multiplier while calculating the coml), nsation as the deceased was aged 30 years at the time of death a; per the Inquest and Postmortem reports. The proper multiplier w,r rld be "17" for 7 h?/&t M.4,CM,ANo.4 70 oI20I6 & M.A. CM.t No.265 1 of 2019 the age group 26-30, as per the judgment of Hon'ble Apex Court in Sarla Vermu vs Delhi Transport Corporation,l and also not awarded just compensation under the various heads as per the judgment of Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and othert, hence, prayed to enhance the compensation from Rs.5,00,000/- to Rs.19,80,000/- with interest.

12. Leamed counsel for the appellant-Insurance Company submits that the accident took place due to the negligent driving of the bus bearing No.DBP 8453, further, at the time of accident, the driver of the offending vehicle was not having valid driving license and since the first respondent knowingly handed over the vehicle to the driver of the auto and violated the policy conditions and failed to produce all the particulars relating to the accident as envisaged under Section 134 of M.V.Act, further, the driver of the vehicle is charge sheeted under Section l8l of M.V.Act, as such the second respondent is not liable to pay the compensation and prayed to allow the appeal and dismiss the cross-appeal. Leamed counsel for ' 2oo9 AcJ 1298 (sc) 'zon p,.cl zloo 8 IINR,T ., C.M.A.NI.170 of20t6 M.I :M.A.No.26sl of 2019 & ( the appellant-lnsurance Company further conten led that the Tribunal has taken the income of the deceased as (s.5,000/- per month without any proof and erred in awarding F:: .6,90,000/- as compensation without any basis. Hence, prayed to a I rw the appeal.

13. Respondent No.l did not choose to contesr and remained ex-parte even before the Tribunal. Admittedly, bc th the parties have filed appeal and cross appeal against the Awar r passed by the leamed Tribunal. Therefore, the points that arise b: bre this Court in the present appeal and cross appeal are that: i) Whether the claimants are entitled for enhctcement of the compensation as claimed for? ii) llrhether the respondent company has mac't out any ground to interfere with the finditr,,s and compensation awarded by the Tribunal, if .so. to v'hat relie/?

14. The main grievance of the Insurance Comp ny before this Court is that the Tribunal ought to have dismiss :d the O.p. as against the Insurance Company for the reason that t re driver of the auto was not holding valid driving license and re was charge sheeted by the police under Section 181 of M.'/.Act. Learned counsel for the appellant/lnsurance Company ha:; contended that 7 9 NNR'I Mrt. C M.,1 No. 4 70 of 20 I 5 & MJ.C M.,+No.265 I oI 20 19 the respondent Company has placed the evidence before the Tribunal by examining RWl aad relied upon Exs.B2 to 87 i.e., office copy of the legal notice issued to respondent No.l, postal receipt of legal notice sent to respondent No.l, postal acknowledgment of respondent No.l, office copy of the legal notice issued to the driver of the auto, postal receipt of legal notice sent to driver ofthe auto and retumed legal notice sent to the driver ofthe auto and prayed to allow the appeal.

15. It is admitted fact that the driver of the said auto was charge sheeted under Section 181 of M.V.Act, the main contention is that the said auto driver was not holding any valid driving license. It is an admitted fact that the policy was subsisting as on the date of the accident. There is no dispute regarding the accident and involvement. of the said vehicle except the ground that the Tribunal was not holding a valid driving license and no steps were taken by the respondents, except relying upon Exs.B2 to 87, which are the legal notices issued to respondents. No officials from the RTA were examined to substantiate their contention but the law being settled that there was no valid driving license to the driver of the vehicle 10 ^//\?.,/ Mt C.M-A.No.170 of 2015 & M..1. :U.A.N,.265I of 2019 N and the policy being subsisting and the Insurance Cc apany cannot be exonerated from paying the compensation arr r unt, which is liable to be paid by the tnsurance Company. [n vir'' i of the same, this Coun is of the opinion that the contention of t re respondents that they ought to be exonerated, cannot be consid': ed but the law is that in such circumstance as respondent No.l d < not choose to contest the main O.P. and the burden also being ca; ed upon owner of the vehicte to prove that the said vehicle wr s driven by a competent person having a valid driving license h,r der and that he intentionally did not handover the vehicle to the pr: son, who is not holding a driving license, in the absence of evidt,r ce of owner of the vehicle/respondent No.l, the insurance compil tY cannot shred away from its liability as to payment of the comp nsation and the Insurance Company is bound to pay the compenst t on and they can recover the same, as such this Court is of the opirr: ln that there are no grounds made out by the Insurance Crr nPanY to seek exoneration of the liability for payment of the r:,,mpensation, the Insurance Company is liable to pay and seek reco v :ry of the same. 11 ITNR,I M./.CM.ANo,170 of 20I5 M-4-C M-+ No,26 5 I of 20 I 9 &

16. Coming to the aspect of the compensation awarded by the Tribunal, as per the claimants, it appears to be on the meager side. I Though the leamed Tribunal has considered the evidence of pW3, who is the accountant of S.R.Enterprises, having accepted that the deceased was eaming more than Rs.5,000/- but did not choose to consider the actual income of the deceased as Rs.5,798/- under Ex.A6 salary certificate, which the Tribunal ought to have considered and awarded the compensation basing on the said income, as such, this Court is of the opinion that the claimants are entitled to the compensation basing on the income of the deceased i.e., Rs.5,798/-, which is rounded off to Rs.5800/- for the sake of convenience. Apart fiom that, as per the decision of Hon,ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi and others (as cited supra) and considering the age of the deceased as 30 years as per Ex.A3-Postmortem report of the deceased, additional 40Yo of the income has to be added towards future prospects to the monthly income of the deceased. Therefore, the monthly income of the deceased would come to Rs.8,120/- (Rs.5,800/- + Rs.2,3201-). The annual income of the deceased .? .. t2 NNR,J M.A.CM,A.No.t70 of 2U5 & MJ.CM.,,L No. 26 5 I of 20 t9 r would come to Rs.97,440l- (Rs.S120/- X 12) ar t, out of which, l/4 has to be deducted towards the personal exper ! 3s of the deceased as there are five dependants in number. Thet the actual annual income would come to Rs.73,080/- (Rs.97,4401 -) Rs.24,360/_) for assessing the compensation. 17 . As per the column No.4 of Table prescri: :d in the .judgment of the Hon'ble Apex Court in Sarlu Verma t Dclhi Transport Corporation (as cited supra), and considerir g the age of the deceased as 30 years, the appropriate multiplir,r applicable for the deceased's age is '17'. Thus, the total loss o- Jependency to the petitioner would come toRs.l2,4Z,360/- (73,0gr) _ x l7).

18. The appellants/claimants are further ent 1 ed to Rs. lg,l50/- (Rs.15,000/- + loyo+ 10%) towards loss of esta e and Rs.lg,l50/- (Rs. 15,000/- + l0% + lO%) towards funeral expenses, as per Pranay Sethi's Judgment (cited supra).

19. Further, considering the appellant No.l reing the wife of deceased, appellant No.l is entitled to a sum of Rs.4g,400/_ under l I 13 NNR,I MA-CM.A,NG(70 of 2016 M.1.CM./.Na25s I of 2019 & the head of 'loss of spousal consortium' as per Pranay Sahi's Judgment (cited supra)

20. Appellant Nos.2, & 3 being children of the deceased, the appellant Nos.2 & 3 are entitled for compensation to a sum of Rs.96,800/- (Rs.48,400 x 2) under the head of 'loss of parental consortium', as per Magma General Insurance Company Limiled Vs Nanu Ram alts Chuhru Ram3

21. Appellant Nos.4 and 5 being the parents of the deceased, the appellant Nos.4 and 5 are entitled for compensation to a sum of Rs.96,800/- (Rs.48,400 x 2) under the head of 'loss of filial consortium' as per Magma's Judgment (cited supra)

22. On overall re-appreciation of the pleadings, material on record and the law laid down by the Hon'ble Supreme Court in the above cited decisions. I am of the opinion that the claimants are entitled for enhancement of compensation as modified and recalculated as above and given in the below table for easy re[erence. 3 zora 1ra1 scc r:o t4 a/tvi,,r ln.r CM.A.Na.170 of 2016 & M..1. 1M.A.Na265 I oJ 20 I9 (

23. Considering the above assessment made l) , this Court, appellants would be entitled to as follows: (i) nnual Income (of the deceased) 5800/-X 12 = Rs.69,600/- (ii) Total Annual Income: Annual Income * Futuri Prospects (Annual lncome X 40%): Rs.69,600/- + Rs.27,840/- = Rs.97,4401- (iii) Annual Dependency = Total Annual Income - lr 1 deduction towards personal expenses of the deceased: Rs.97,4401- (-) Rs.24,360/- = Rs.73,080/- (iv) Total Dependency: Annual Dependency x App ied Multiplier: Rs.73,080/- x I7 Rs.12,42,3601- (u) Claimants' entitlement towards conventional hr,z ds : Loss of Estate f Funeral Expenses + loss of spousal consortium + loss of filal consortium -f Parental Consortium = Rs.18,1501+ Rs.l8,l50/- + Rs.48,400 + Rs.96,800i- + Rs.96,800 Total Rs.2,78,300/- Rs.15,20,660/-

24. Thus, the appellants/claimants arc ert tted to the compensation of Rs.15,20,660/- as against the awir led amount of Rs.6,90,000/- by the leamed Tribunal.

25. Accordingly,-the M.A.C.M.A.No.470 of 2015 is dismissed and M.A.C.M.A.No.2651 of 2019 is partly allowetl The claimants \ \ 15 NNR,J M-a.CM.A.Na170 of 2016 M.-LCM-A.NL265 t of 2019 &. are entitled for a compensation of Rs.15 ,20.660L (Rupees Fifteen lakhs twenty thousand six hundred and sixty only) with interest at the rate @ g % p.". ho. the date of petition till the date of realization. The respondents are directed to deposit the said amount together with costs and interest' Initially, the respondent No'2 is directed to deposit the said amount as compensation amount with interest and costs after giving due credit to the amount already deposited, if any, within a period of two months from the receipt of a copy of this judgment. Upon such pal'rnent made' the claim petitioner Nos.1, 4 and 5 are entitled to withdraw the entire amount in proportion to their shares as awarded by the Tribunal without fumishing any security. The claimant petitioner Nos'2 and 3 are entitled to withdraw their apportioned amount after attaining majority. However, liberty is granted to respondent No'2 to initiate proceeding for recovery of the compensation amount from the respondent No.l-cum-owner of the offending vehicle' There shall be no order as to costs. 16 NNR'T M.a C.MJ No.170 012016 Lt., . .M-A-No.26sl of2019 & N

26. Miscellaneous petitions, if any are pending ' shall stand closed. SD/ i I.OSMAN ALI BAIG ASSI: TANT REGISTRAR / //TRUE COPY// SECTION OFFICER To,

1. The Chairman, Motor Accident Claims Tribunal-cum-ll .\ lditional Chief Judoe. Citv Civil Court. Hvderabad.(with records, if any; 2. One"CC td SRl. KONDADI AJAY KUMAR Advocate [oc JC] 3 One CC to SRl. T VISWARUPA CHARY Advocate [OP J ]l 4. Two CD Copies GE\PSL ( ,l T "r.-{n!$ --1:- A8F HIGH COURT DATEO:22|OTl2O25 COMMON JUDGMENT MACMA.No.47O OF 2016 AND MACMA 2651 0F 2019 :.:: J; F!1 LI I (i-.t DISMISSING THE MACMA No'470 OF 2O't6 WTHOUT Co:j fS AND ALLOWING THE MACMA NO.2651 OF 2019 WITHOUT CCI TS L ..^ J., IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY,THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT 1344/l THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO : 470 0F 2016 AND MOTOR ACCIDENT clvlL MISCELLANEOUS APPEAL NO: 2651 OF 20 19 M.A.C.M.A. No.470 OF 2016 Between: RELIANCE GENERAL INSURANCE COMPANY LIMITED, Rep by its Branch Manager, lVth floor, Sagar PIaza, abids, Hyderabad AND ...APPELLANT/RESPONDENT

1. SMT K MADHAVI, R.R. DIST, W/o Late Sai Kiran Lala Aged 29 years, Occ - Household, 2- K. Durga bai, D/o Late Sai Kiran Lala Aged 8 years

3. K. Shiv Kumar, S/o Sai Kiran lala Aged 7 years

4. Smt K. Veera Bar, W/o Krishnaji, aged 52 years,

5. Sri k. krishnaji, S/o Ambaji Aged 54 years. Respondents No.2 and 3 being minors rep by their mother All are residing at H.No. 9-180/6, MK, Kalanagar, Meerpet, Saroornagar Mandal, Rangareddy District. .... RespondenVClaim Petitioner

6. L. Giri, S/o Not known, aged maJor, R/o 4-123, ravinaik Thanda, Suryapet, Warangal District ( owner of auto No AP 24 w u'ut) ...*=r"oNDENTs/REspoNDENT No.i Appeal filed under Section 173 of M.V.Act, against Order and Decree daled 22.01.2014 passed in O.P.No. 375 ot 2012 on the'file of the court of the chairman, Motor Accident craims Tribunal-cum- Additionar Cl. ef Judge, city civil Court, Hyderabad This appeal coming on for hearing and upon perur;i tg the grounds of appeal, the judgment and Decree of the Lower Court and th€ material papers in the case and upon hearing the argument of SRI KONtt Dl AJAY KUMAR, Advocate for the Appelant and SRr r. vrswARUpA cHARy Ao /ocate appeared for Respondent No.1 to 5 and none appeared for Respondents No 6 M.A.C.M.A. Ne.26 51 0F 2019 Between: Household,

1. Smt K . Madhavi, Wo. Late K. Sai Kiran Lala, Ar t d. 29 years, Occ ? 5 9.rtS, Bhai, D/o. Late K Sai Krran Lata, Aged. 8 yrs. O c Minor, I I snlv Kumar. s/o Late K sai Ki,;; t;i;. Ai;; 7 yrs r; :c Minor, 1 9r! K. Verabhai, Wo.. K. Krishna;i, nged. SZ-years,'Occ _rousenoiO 5. K, Krishnaji, S/o. Late Ambaji, Aged. 5? years,'Occ. tabor , All are R/o. H.No. 9-170/6, tVlK. Katanigar, Meerpet, li rroornagar(M), R.R. District. ...APPELLANTS AND

1. L.Giri, Sio. Not Known, Age..Major, Occ. Business, R/ o r_123, Ravinaik Thanda, Suryapet, Waran_-gal Diitribt.

2. R-eliance General Insurance Co.Ltd., Rep.by its Branch I\4 tnager, D.No.4_j_ 327 to 33t, tV Ftoor, Sagar ptaza, nOioii HiOliaUait ...RESPONDENTS Appeal filed under section 173 of M.V.Act, agains crder and Decree daled 22.01 .2014 passed in o.p.No. 3rs of 2012 on the fi e of the court of the chairman, Motor Accident crarms Tribunar-cum-fl Additionar c r ief Judge, city civir Court, Hyderabad. This appeal coming on for hearing and upon peru;19 the grounds of appeal, the judgment and Decree of the Lower court and ft( material papers in the case and upon hearing the argument of sRr r. v I wARUpA cHARy, Advocate for the Appellant and none appeared for Respor.c _.nts No.1 and SRI KONDADI AJAY KUMAR Advocate appeared for Respondent IJ( .2. This Court doth Order and Decree as follows:

1. That the Motor Accident Civil Miscellaneous Appeal M.A.C.M.A.No.470 of 2016 be and is hereby dismissed.

2. That the Motor Accident eivil Miscellaneous Appeal M.A.e.M.A.No.2651 of 2019 be and is hereby partly allowed.

3. That the claimants are entitled for a compensation of Rs.15,20,6601 (Rupees Fifteen lakhs twenty thousand six hundred and sixty only) with interest at the rate @ 9 o/o p.a. lrom the date of petition till the date of realization-

4. That the respondents be and are hereby directed to deposit the said amount together with costs and interest. lnitially, the respondent No.2 is directed to deposit the said amount as compensation amount with interest and costs after giving due credit to the amount already deposited, if any, within a period of two months from the receipt of a copy of this judgment.

5. That upon such payment made by the respondenl, the claim petitioner Nos.1, 4 and 5 are entitled to withdraw the entire amount in proportion to their shares as awarded by the Tribunal without furnishing any security

6. That the claimant petitioner Nos.2 and 3 be and are hereby entitled to withdraw their apportioned amount after attaining majority

7. That a Iiberty is hereby granted to respondent No.2 to initiate proceeding for recovery of the compensaton amount from the respondent No.1-cum-owner of the offending vehicle. L That there shall be no order as to costs in this appeal. Itfrue Copyll SD/.M.OSMAN ALI BAIG ASSISTANT REGISTRAR Z.l>' SECTION OFFICER I I 1 To

1. The Chairman, Motor Accident Claims Tribunal-cum-ll Additional Chief Judge' City Civil Court, Hyderabad.(with records, if any)

2. Two CD Copies. GEiPSL HIGH COURT OATEO:2210712025 COMMON DECREE MACMA.No.470 OF 2016 AND MACMA 2651 0F 2019 DISMISSING THE MACMA No.470 OF 2016 WTHOUT COS.TS AND ALLOWING THE MACMA No.265t OF 2019 WTHOUT Cost.l I \ v