HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.Nos.792,793,794
& 796 OF 2011
COMMON JUDGMENT:
M.V.O.P.Nos.511,512,513 of
2007 are maintained by the legal representative i.e. husband(Amarthlaluri
Veeraiah) of deceased Ramadevi, father of deceased persons Amarthaluri
Ganesh(son) and Amarthaluri Lahari(daughter) and M.V.O.P.No.47 of 2008 by Sreenivasulu
(husband of 1st claimant, father of 2nd and 3rd
claimants and son of 4th claimant) on the file of the learned
Chairman of the Motor Accidents Claims Tribunal–cum-I Additional District Judge
Ongole (for short, ‘Tribunal’), filed under Section 166 of the Motor
Vehicle Act,1988 (for short, ‘the Act’) for the claim of Rs. 5,00,000/-, 2,00,000/-, 2,00,000/- and Rs.5,00,000/-
respectively against the owner, insurer and so called driver of the crime lorry
bearing No.AP 14 Y 1448. The tribunal granted by its common award dated
03.01.2011 awarding compensation of Rs.4,42,000/- in O.P No.511 of 2007) in
favour of the sole claimant aged 27 years, no other than the husband of the
deceased by name Amarthaluri Ramadevi aged about 24 years as per Ex.A.3
postmortem report, Rs.1,55,000/- in O.P.No.512 of 2007 in favour of said
Amarthuluri Veeraiah for death of his son aged about 3 years by name Ganesh,
Rs.1,55,000/- in O.P.No.513 of 2007 in favour of said Amarthuluri Veeraiah for
death of his daughter Lahari, aged 5 years and Rs.,94,000/- in O.P.No.47 of
2008 in favour of the 4 claimants no other than the wife ,two minor children
and father of the deceased K.Sreenivasulu aged about 35 years, as per Ex.A.3 postmortem report of
Rs.3,94,000/- respectively with interest at 6% p.a, with joint liability against the owner, Insurer and
driver(R.1 to R.3). It is impugning the same, the 2nd
respondent-insurer supra maintained the 4 appeals against the four awards not
only disputing the quantum of compensation awarded by the tribunal as excessive and exorbitant and unsustainable
but also in fixing joint liability despite the finding that the driver of the lorry–3rd
respondent of the claim petitions (not impleaded as party in OP No.11 of 2007)
allowed the cleaner of the lorry without even license to drive and because of
his inexperience including the driver, he dashed 4 persons(the deceased
persons) by knocking over and thereby to set aside the awards of the tribunal
and to exonerate the insurer. The learned
counsel for the insurer-appellant in all the appeals reiterated the respective
contentions during course of hearing by referring to several expressions in
support of him including those referred before the tribunal.
2.
Whereas, it is the contention of the learned counsel for the claimants
respectively, from the owner and driver of the vehicle respectively remained ex parte in all the claim petitions even
failed to appear though served taken as heard to decide on merits, that the
awards of the tribunal in all the claims holds good but for no cross-objections
to enhance compensation but for enhancing rate of interest from 6% what the
tribunal awarded requires no cross-objections, hence to dismiss the appeals for
this Court while sitting in appeal, there is nothing to interfere with the
joint liability as evidence on record shows the driver-3rd
respondent having valid driving license.
3. Perused
the material on record. The parties hereinafter are referred to as arrayed
before the Tribunal for the sake of convenience in all the appeals.
4. Now
the common points that arise for consideration in all the appeal are:
1. Whether
the common award of the tribunal respectively in all the 4 claim petitions
fixing joint liability on the insurer is unsustainable and requires
interference by this Court while sitting in appeal against the awards to
exonerate the Insurer from liability and equally on the quantum of compensation
if excessive to reduce, if so, with what compensation, what rate of interest
and what observations?
2. To
what result?
Point No.1:
5. The tribunal having scanned the evidence on record in its finding in the common award particularly at page No.7 in para-8 observed that the chargesheet filed by the police after investigation covered by Ex.A.4 also substantiates the defence of the Insurer that it is the driver-R.3 allowed the cleaner with no license to drive the crime vehicle negligently from which the accident occurred resulting death of four persons however in holding that as per the expression of the Apex Court in Scandia Insurance Company Limited Vs. Kokilaben Chandravadan[1] from the policy covers the risk, insurer cannot be exonerated from liability and therefrom fixed joint liability. In fact, the chargesheet is placed reliance by the claimants no doubt equally under Ex.B.2 by the Insurer. When the claimant filed the chargesheet that form part of the Court record that can be even to the advantage of the Insurer to place reliance for the Court to appreciate entire material on record and the same conclusion lends support from the expression of the Apex Court in National Insurance Company Vs. Rattani[2] that is also referred in the expression of Apex Court National Insurance Company Limited v. Savitri Devi[3]. It is not only from the Ex.A.5 chargesheet but also from Ex.A.2 M.V.I.report = Ex.B.3 are placed reliance by the claimant more particularly from the column No.17, it clearly reveals that it was the cleaner of the lorry that drove the vehicle without license. When at the time of accident even subsequently to that, within no lapse of time, the M.V.I. inspected the vehicle and opined that the accident was not caused due to the mechanical defect and through the policy particulars and mention in driving license of the driver of the vehicle who was no other than the cleaner for the driver negligently allowed without any license and for in the Ex.A.5 chargesheet also, it is mentioned penal provisions against the cleaner particularly under Section 181 of the M.V.Act in driving without license, the tribunal is right in its finding holding that the vehicle was driven by the cleaner without license in causing accidental death of the 4 persons supra covered by the 4 claims. Even from this, coming to the liability of the Insurer whether to be exonerated or not concerned from the proposition of the law and particularly from S.Iyyappan Vs. United India Insurance Company[4] and Kusumlatha V. Satbir[5] a two judge bench of the Apex Court held that even though the insurer has taken the defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licensed in driving the crime vehicle when met with accident, third party has a statutory right under Section 149 read with 168 of the Act to recover compensation from insurer and it was for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any fundamental breach of condition of Insurance policy. As per Iyyappan supra, the Insurer is liable to pay to indemnify the third party claims even the person who has driven the vehicle has no license at all but for to recover from the owner by filing execution petition while depositing the amount.
6. Now
coming to the quantum of compensation impugned by the Insurer whether excessive
or low concerned, in MACMA 793 of 2011(O.P.No.511 of 2007) the deceased was
aged 24 years. As per the Ex.A.3 postmortem report, the claimant is the husband
of the deceased Ramadevi. The claim is under Section 166 of the M.V.Act. As per
Sarla Verma v. Delhi Transport Corporation[6] even from the paras 29 to 32, it is
only for the parents to claim of personal expenses deduction for a bachelor or
a spinster and otherwards upto three persons, 1/3rd shall be
deducted thereby the contention of the Insurer that as there is sole claimant
no other than the husband of the deceased, half to be deducted is
untenable. No doubt, the other contention
that from the basic principle that the age of the deceased or age of the
claimant whichever is higher that to be taken into consideration for the
dependency. As contended by the Insurer,
the age of the claimant as 27 years that to be taken into consideration for
which as per Sarla Verma(Supra) multiplier 17 is applicable that was also
rightly taken by the Tribunal. The accident was undisputedly, dated 21.07.2006
as per Latha Wadhwa vs. State of Bihar[7]
that even there is no proof of income and earnings, it can be reasonably
estimated with a minimum of Rs.3,000/- p.m. for any non-earning member, as the
same is taken as earnings of the deceased and 1/3rd if deducted out
of it, it comes Rs.2,333/-x12x17=Rs.4,75,932/- rounded to Rs.4,76,000/- besides
Rs.1,00,000/- towards loss of consortium, Rs.10,000/- towards loss of estate
and Rs.25,000/- towards funeral expenses, the 1st claimant is
entitled, what the tribunal awarded of Rs.4,42,000/- is no way excessive.
7. Coming
to the MACMA No.796 of 2011(O.P.No.512 of 2007), 794 of 2011(O.P.No.513 of
2007), the deceased persons were son (three years) and daughter (5 years)
respectively as on the date of death, who are no other than the children of the
claimant. As held by the Apex Court, in NIC
Vs. Satender[8],
the life span is subject to fluctuations and uncertainty, for the children
below 9 to 10 years in particular thereby that is also to be taken into
consideration in assessing future loss and dependency therefore for a child
aged 9 years, the compensation awarded by the Apex Court was Rs.1,80,000/-. In
fact, even minimum a child in the womb under no fault liability entitled to
Rs.50,000/- with proportionate increase of Rs.20,000/- per year even taken
besides to funeral expenses, loss of estate added to it. In that view, what the
tribunal awarded of Rs.1,55,000/- in each of the two claims no way requires
much interference to disturb the finding of the tribunal but upholding.
8. Now
coming to the MACMA 792 of 2011(O.P.No.47 of 2008), the claimants are 4 in
number and dependents on the deceased, aged about 35 years as per the Ex.A.3
postmortem report and as referred supra from Latha Wadhwa(supra) with
prospective earnings if Rs.3,500/- per month as earnings of deceased taken
since only 1/4th to be deducted towards personal expenses as per Sarla
Verma(supra) it comes to Rs. 2,625/-x12x16=Rs.5,04,000/- besides Rs.1,00,000/-
towards loss of consortium, Rs.10,000/- towards loss of estate and care and
guidance of two minor children and Rs.25,000/- towards funeral expenses the 1st
claimant is entitled, what the tribunal awarded of Rs.3,94,000/- is no way
excessive.
9.
Coming to the rate of interest, no doubt, as contended by the learned counsel
for the Insurer the interest granted by the tribunal is only 6% p.a. and the
same to be confirmed. In fact as per the settled expression of the TN
Transport Corporation v. Raja Priya[9],
DDA Vs. Joginder S. Monga[10] and
also the three judge bench expression of the Apex Court Rajesh v. Rajbir
Singh[11]
at 7.5% p.a. is granted by holding as reasonable thereby as the appellate Court
also can interfere with the discretionary rate of interest where it is utterly
low or to reduce where it is exorbitant thereby it requires interference to enhance
from 6% to 7.5% p.a. Accordingly, Point
No.1 is answered.
Point
No.2:
10. In
the result, All the appeals are allowed in part by modifying from joint
liability to the liability of the Insurer-appellant(in all the appeals) to the
extent of pay and recovery and by upholding quantum of compensation in all appeals,
however, by modifying the rate of interest from 6% to 7.5% p.a. from the date petition
till realization. The Insurer-appellant
shall first pay and then recover from the respondents 1 and 3(driver and owner
and driver of the crime vehicle in O.Ps.512,513 of 2007 and 47 of 2008
(driver not added as party in O.P.No.47 of 2008). The Insurer-appellant is directed to deposit said amount within one month from the date of this order, failing which the claimants in all the appeals can execute and recover. It is made clear from the settled expressions of the Apex Court in Lehru (supra) & Nanjappan (supra) that the insurer is entitled, while depositing the amount payable, if not deposited or paid any amount so far to deposit balance, to approach the Tribunal to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimant (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimant, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. Rest of the terms of the awards holds good. There is no order as to costs in all the appeals. Miscellaneous petitions, if any, pending in these appeals shall stand closed.
(driver not added as party in O.P.No.47 of 2008). The Insurer-appellant is directed to deposit said amount within one month from the date of this order, failing which the claimants in all the appeals can execute and recover. It is made clear from the settled expressions of the Apex Court in Lehru (supra) & Nanjappan (supra) that the insurer is entitled, while depositing the amount payable, if not deposited or paid any amount so far to deposit balance, to approach the Tribunal to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimant (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimant, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. Rest of the terms of the awards holds good. There is no order as to costs in all the appeals. Miscellaneous petitions, if any, pending in these appeals shall stand closed.
_________________________
Dr. B. SIVA SANKARA RĀO, J
Date:19.12.2014
VVR
