M/S. United India Insurance Co. Ltd v. Vonna Yamuna

HONOURABLE SRI JUSTICE T.AMARNATH GOUD M.A.C.M.A.No.1300 & 1520 of 2019 COMMON JUDGMENT:

Since both the appeals arise out of the same O.P., both the appeals are heard together and disposed of together by this common judgment.

2. MACMA.No.1300 of 2019 is filed by the Reliance General Insurance Company Limited, who is 4th respondent in M.V.O.P.No.14 of 2018, under Section 173 of the Motor Vehicles Act aggrieved by the orders passed by the Chairman, Motor Accidents Claims Tribunal-cum-XII Additional Chief Judge, City Civil Court, Secunderabad (for short 'the Tribunal), in M.V.O.P.No.14 of 2018 dated 31.12.2018.

3. MACMA.No.1520 of 2019 is filed by the United India Insurance Company Limited, who is 3rd respondent in M.V.O.P.No.14 of 2018, under Section 173 of the Motor Vehicles Act aggrieved by the orders passed by the Chairman, Motor Accidents Claims Tribunal-cum-XII Additional Chief Judge, City Civil Court, Secunderabad (for short 'the Tribunal), in M.V.O.P.No.14 of 2018 dated 31.12.2018.

4. The brief facts of the case are that on 17.11.2017 at about 07.45 AM, the deceased was proceeding in auto bearing No.AP-15X-4349 along with occupants to Galipalli and when they reached Malkapur Peddamma Junction, a milk tanker bearing No.AP-29TB-4649 came at high speed in a rash and negligent manner and dashed against the auto, due to which the auto turned turtle and as a result, the deceased sustained severe injuries and died on the spot.

5. The Tribunal after framing the issues and examining the witnesses, allowed the claim of the claimants and awarded Rs.8,34,400/- against the claim amount of Rs.15,00,000/- by fixing contributory negligence equally on the part of the Auto driver and the milk van. Aggrieved by the said order, both the appeals were filed by the two insurance companies.

6. Learned counsel for the appellant in MACMA.No.1300 of 2019 contended that the Tribunal erred in holding that the appellant-insurance company is liable to pay 50% of the compensation amount even though the appellant-insurance company has discharged its burden by examining RW.2 and by producing the copy of insurance policy establishing that the insured auto was carrying 14 persons in excess against the seating capacity of 3+1 (driver) at the time of accident and violated the terms and conditions of the policy and the appellant is not liable to pay any compensation. It is further contended that the insured auto met with an accident resulting in death of 7 passengers in all, whereas the seating capacity of the insured auto is only 3 passengers as per the insurance policy and the appellant is liable only in respect of 3 passengers.

It is also submitted that as per the judgment of the Apex court in National Insurance Company Limited Vs.

vehicle and the same principle was reiterated by another judgment of the Apex Court in United India Insurance Company Limited Vs. K.M. Poonam2. It is also contended that the amount awarded by the Tribunal is excessive and the same needs to be set aside by allowing the appeal.

7. Learned counsel for the appellant in MACMA.No.1520 of 2019 contended that the Tribunal failed to see that the alleged accident occurred only due to the rash and negligent driving of the driver of the auto i.e., deceased, who was carrying 15 passengers against the seating capacity of 4 (3+1) passengers and accordingly, the Tribunal ought to have fixed the entire negligence on the auto driver-deceased and ought to have fixed entire liability on auto driver and its insurance company. It is further contended that the Tribunal erroneously took the notional income of the deceased at Rs.16,000/- per month without any basis. It is also contended that the Tribunal grossly erred in awarding the compensation of Rs.8,34,400/- with interest @ 9% per annum from the date of petition till realization, which is excessive and same is liable to be set aside by allowing of the appeal.

8. Learned counsel for the claimants in both the appeals supported the award of the Tribunal and sought for dismissal of the appeals.

9. Heard both sides and perused the material on record.

10. Admittedly, it is a case of death and there is no dispute with regard to the manner of the accident and involvement of both 2 2011 ACJ 917

the vehicles. The collision was between the auto and milk tanker and the deceased was driving the auto carrying 15 passengers against the seating capacity of 4 (3+1) and suddenly the auto entered into the road in a rash and negligent manner without following any precautionary measures and suddenly a milk tanker came in a rash and negligent manner and hit the auto. Accordingly, the Tribunal has fastened the liability on both the insurance companies which are insurer of auto and milk tanker. In so far as attributing contributory negligence is concerned, the same is upheld. With regard to the quantum of compensation, the same needs to be considered.

11. So far as quantum of compensation is concerned, the Tribunal has taken the income of the deceased, who is owner-cumdriver of the auto, at Rs.16,000/- per month, which is without any basis and same needs to be modified. As per the expression of the Apex Court in Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Limited3 where there is no proof of income, the notional income can be taken at Rs.4,500/- per month. Accordingly, the income of the deceased is taken at Rs.4,500/- per month. The age of the deceased is 52 years and '11' multiplier is applicable as per Sarla Varma Vs. Delhi Transport Corporation4. As per the expression in National Insurance Company Limited Vs. Pranay Sethi5, the deceased being self-employed and aged about 52 years, 10% future prospects can be taken into 3 (2011) 13 SCC 236 4 2009 (6) SCC 121 5 2017 (6) SCC 170

consideration, which comes to Rs.450/-, in all deceased monthly income comes to Rs.4,950/- (Rs.4,500/- + Rs.450/-). As there are three dependents, 1/3rd has to be deducted towards personal expenses of the deceased. Out of Rs.4,950/-, if 1/3rd is deducted towards the personal expenses of the deceased, the net income comes to Rs.3,300/- (Rs.4,950/- (-) Rs.1,650/-). The loss of dependency comes to Rs.3,300/- x 12 x 11 = Rs.4,35,600/-. The claimants are entitled for Rs.70,000/- under conventional heads as per Pranay Sethi supra. The total compensation to which the claimants are entitled to is Rs.5,05,600/-.

12. Accordingly and in the result, both the appeals are partly allowed by reducing the compensation amount from Rs.8,34,400/- to Rs.5,05,600/- and the rate of interest is also reduced from 9% to 7.5% per annum from the date of petition till realization as per the expression of the Apex Court in Rajesh Vs. Rajbir Singh6. The contributory negligence of 50% each on both the appellants is upheld. In so far as 50% contributory negligence is concerned, the appellant-insurance company of the auto i.e., Reliance General Insurance Company Limited shall pay to the maximum of 3 highest claims and the remaining claim amounts, the insurance company firstly shall pay to the claimants and thereafter recover the same from the owner of the auto. Whereas 50% contributory negligence awarded in favour of the appellant-insurance company of milk van i.e., United India Insurance Company Limited, the insurance company shall pay the respective share amount. 6 2013 ACJ 1403

Miscellaneous petitions if any shall stand closed. ________________________ T.AMARNATH GOUD, J Date: 02.01.2020 ska