Smt G Bhuvaneshwari Raju

HONOURABLE SRI JUSTICE P. SAM KOSHY

AND

HONOURABLE SRI JUSTICE N. TUKARAMJI

M.A.C.M.A.No.2446 OF 2017

JUDGMENT: (per Hon’ble Sri Justice N. Tukaramji)

This appeal has been filed by the respondent No.2/insurer assailing the liability and quantum of compensation awarded in the decree and order dated 25.04.2017 in M.V.O.P.No.545 of 2013 on the file of the Chairman, Motor Accidents Claims

Tribunal-cum-XIV Additional Chief Judge FTC), City Civil Court,

Hyderabad.

2. We have heard Mr. T.Ramulu, learned counsel for the insurer and Mr. G. Tuhin Kumar, learned counsel for the petitioners.

3. For the facility, the appellant and respondents are hereinafter referred to as per their array in the claim petition.

4. The case facts in brief are that, on 16.06.2012 at about 1.30 a.m. while Mr.P.Srikanth/deceased along with other passengers was proceeding in Volvo bus of the respondent

No.1/insured bearing registration No.KA 01 D 245 (for short, ‘the bus’) near MOR bridge on highway to Naldurg road, the driver 2 PSKJ&NTRJ Macma_2446_2017 drove the bus in rash and negligent manner and lost control which resulted in fall of the bus 30 feet down from the bridge. This accident caused many deaths on the spot including the deceased and grievous injuries to other passengers. The Police, Naldurg charge sheeted the driver of the bus. The petitioners/parents of the deceased pleaded that the deceased was aged about 41 years and was earning Rs.25,000/- as site coordinator in Phoenix

Living Private Limited and claimed compensation of Rs.15 lakhs.

The tribunal had awarded Rs.34,01,000/- with interest at 7.5% per annum from the date of the petition till realization against the insured and the insurer of the bus/respondents 1 and 2.

5. The learned counsel for the petitioners would submit that, the tribunal had considered the facts and evidence on right perspective and determined the liabilities and compensation.

Further, the contentions raised by the insurer were examined and answered by the tribunal in negative. The insurer has not made out any aspect ignored or disregarded by the tribunal, hence the appeal has no merit.

3 PSKJ&NTRJ Macma_2446_2017

6. Learned counsel for the respondent No.2/insurer (for short, ‘the insurer’) contested the liability on the grounds that, the bus was under tourist permit but used as stage carriage which is a clear violation of permit and the policy condition. Further as per the record it is evident that at relevant time the bus was carrying 48 persons against its capacity of 41 which is evidencing overloading and also violation of policy condition. Furthermore, the material is indicating that the driver was under the influence of alcohol at relevant time which is also violation of terms of policy.

For these reasons, the insurer ought to have exonerated it from liability. But, the tribunal ignored these aspects and grossly erred in fastening the liability on the insurer. On the other hand, the tribunal went wrong in properly appreciating the income of the deceased and the computation of compensation was without deducting the personal living expenses, thereby leniently granted excessive amounts.

7. We have carefully considered the submissions and perused the materials on record.

4 PSKJ&NTRJ Macma_2446_2017

8. The basic facts i.e., the accident due to the negligent driving of the bus and the death, age, occupation and earnings of the deceased are not in dispute.

9. The first contest of the insurer is that though the bus was under tourist permit, it has been plied as stage carriage. To support the contention the insurer through its officer/RW-1 got marked the permit of the bus/Ex.B-2.The entries therein are establishing that the bus was given permit as tourist vehicle and the route to ply through out India. Nonetheless the pertinent question remains for consideration is, whether the bus at relevant time has been plied as stage carriage. In this regard no material is found on record and the insurer could not make out any aspect to substantiate this contention. Further in the charge sheet/Ex.A-2 the police, Tuljapur specifically mentioned that the bus was with “Shirdi Daiva Darshanam Passengers”. The remark in the police record is indeed backing the plausibility of engaging the bus as tourist service. In such factual position, without any cogent material establishing proof that the bus was running as stage carriage at relevant time, concluding policy violation on this ground would be infelicitous.

5 PSKJ&NTRJ Macma_2446_2017

10. The second issue is that, the seating capacity of the bus including the driver is ‘41’ persons, for which the insurance policy/Ex.B-1 was issued but the record is evidencing that, there were 48 persons in the bus at the time of occurrence. Thus there is policy violation. A perusal of policy/Ex.B-1 is disclosing that it was issued for 41 persons. Further the permit/Ex.B-2 is reading the seating capacity as ‘42’. Be that as it may, nowhere it has been elicited that the insured got boarded more number of passengers than the capacity or such overloading has any role in causing the accident. In this context, the authority of the Hon’ble

Supreme Court between United India Insurance Company Limited v. K.M. Poonam and others – (2015) 15 SCC 297 is notable.

Wherein the contention as to over boarding the passengers beyond permitted capacity has been considered and held that merely on the ground that there are more number of passengers than covered under the insurance policy will not absolve the liability of the insurance company. Further, for the additional persons who were not covered under the insurance policy, the insurer would not be liable to make payment of compensation.

However as there can be no pick and choose method to identify the passengers, covered under insurance policy to meet the ends 6 PSKJ&NTRJ Macma_2446_2017 of justice the insurance company was directed to deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed in respect of their claims with a liberty to the insurance company to recover the amounts paid by it over and above the compensation amounts payable in respect of persons covered by the insurance policy from the owner of the vehicle by putting the decree into execution. It has been clarified that, for the purpose of determining the amount of the awards covered under the insurance policy, the highest awarded claims to the extent of numbers covered under policy shall be construed as liability of the insurer and for the amounts paid above such liability, the insurance company will be entitled to recover from the owner of the vehicle as if it is an amount decreed by the tribunal in favour of the insurance company, without filing a separate suit.

11. By the above dictum, the insurer’s claim that ‘more number of passengers in the bus’, cannot be a ground to claim policy violation or to repudiate, but it has to make good all the awards in the claims of the accident. The insurer would be at liberty to recover the amounts paid by it over and above the number of passengers/claimants covered by the insurance policy, from the 7 PSKJ&NTRJ Macma_2446_2017 insured, after setting off the 41 highest determined awards.

Nonetheless it is pertinent to note that, nowhere the insurer had pleaded that there are more than 41 claims in the accident beyond the members covered under the policy. Hence we find no favourable point for the insurer on this cause.

12. The other disputed circumstance is that the driver of the bus was under the influence of alcohol at relevant time. The insurer through RW-1 mooted that the drivers consumed alcohol in the mid way while the bus was stopped for dinner. This stand itself is explicating that admittedly the insured had not entrusted the bus to the drivers who were under the influence of alcohol but the drivers consumed alcohol without knowledge of the insured.

Furthermore, the insurer brought on record the certificate of forensic science laboratory/Ex.B-4 wherein it is shown that the charge sheeted driver/Yadagiri’s blood contains 0.069% W/V of

Ethyle Alcohol. However, except placing this document the insurer did not choose to prove veracity of the document. That apart, there is no explanation much less the evidence showing that the percentage of alcohol found in the blood was more than the permissible limits as contemplated under Motor Vehicles Act, 1988 which is an offence. Furthermore, a perusal of policy/Ex.B-1 8 PSKJ&NTRJ Macma_2446_2017 is limiting the liability for the death or bodily injury occurs directly or indirectly traceable to intentional injury or when such person is under the influence of intoxicating liquor or drug and nowhere in the policy it is found that the intoxicated condition will exonerate the insurer from third party liability. Therefore the policy condition is at best restricting the liability of the insurer for personal accident cover of owner and driver but not the third parties. For the aforesaid and in absence of clear material proving the fact, we are of the considered opinion that, the insurer cannot plead for absolving its liability to indemnify the insured, on this ground.

13. In regard to compensation, the petitioners pleaded that the deceased was aged 41 years and was earning Rs.25,000/- as site coordinator. In absence of any clear evidence, the tribunal by relying on the inquest report/Ex.A-3, post mortem examination report/Ex.A-2 and the evidence of PW-3 and RW-1, rightly concluded the age of the deceased at 41 years and his income at

Rs.25,000/- per month. Admittedly, as the deceased was bachelor, 50% of the income has to be deducted towards personal living expenses and thus the annual contribution to the family would be Rs.1,50,000/-. Further as per the dictum in 9 PSKJ&NTRJ Macma_2446_2017

National Insurance Company Ltd. vs. Pranay Sethi and others 1 , the age and regular nature of employment of the deceased, 30% of the income shall be added towards future prospects which makes the annual income at Rs.1,95,000/- and after deducting income tax, the annual contribution of the deceased to the family would be of Rs.1,86,600/-. This amount if multiplied with the relevant multiplier to the age of the deceased, as prescribed in the judgment of Sarla Verma and others vs. Delhi Transport

Corporation and another 2i.e. 14 the compensation would be

Rs.26,12,400/-. The petitioners are entitled to this amount for loss of dependency.

14. In addition, as per the directives of the Hon’ble Supreme

Court in Pranay Sethi (supra) and United India Insurance

Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others 3 the petitioners are entitled for filial consortium at Rs.48,400/- each and also Rs.36,300/- towards loss of estate and funeral expenses.

15. In effect, the petitioners are entitled for compensation of

Rs.27,45,500/- (Rupees twenty seven lakhs forty five thousand 1 (2017) 16 SCC 860 2 2009 ACJ 1298 3 2021(11) SCC 780 10 PSKJ&NTRJ Macma_2446_2017 and five hundred only). The rate of interest and ratio of apportionment among the petitioners shall remain as per the impugned order. The respondent No.2/insurer is directed to deposit the differential amount within four weeks from the date of receipt of a copy of this order. Accordingly, the impugned order is modified.

16. In the result, the appeal is partly allowed. No costs.

As a sequel, pending miscellaneous petitions if any, stands closed.

_______________

P. SAM KOSHY, J

_______________

N.TUKARAMJI, J

Date:19.03.2024

ccm

THE HON’BLE SRI JUSTICE K.SURENDER

M.A.C.M.A.No.5193 of 2008

JUDGMENT:

This appeal is filed by the claimant aggrieved by the award dated 16.10.2007 in MVOP No.1854 of 2005 passed by the Motor Accidents Claims Tribunal-cum-XIII Additional Chief

Judge, City Civil Court (Fast Track Court), Hyderabad.

2. Heard Sri K. Srinivasachary, learned counsel for the appellant/claimant and Sri Katta Laxmi Prasad, learned counsel

for the respondent/Insurance company and perused the entire

material on record.

3. The claim petition was filed seeking compensation of an amount of Rs.2,50,000/- and the Tribunal has granted compensation of Rs.1,15,023/- with interest @ 7.5% per annum from the date of petition till the date of deposit.

4. The case of the claimant is that on 03.01.2005, when he was going on a two wheeler, the offending vehicle which is lorry came in opposite direction and dashed against the two wheeler resulting in injuries.

KS, J MACMA_5193_2008 2

5. The manner in which the accident has taken place and liability are not disputed by either of the parties.

6. As per the case of claimant, he was working as a sales man in Madava Garments, Shadnagar and in proof of the same, he produced Ex.A7/Letter of appointment showing the basic pay and other emoluments at Rs.3,441/- per month. The learned

Tribunal with a finding that the employer was not examined, has taken the daily income at Rs.100/- and granted compensation. Since the monthly pay slip is not filed, this Court is inclined, relying on the judgment of the Hon’ble Apex Court in case of Ramachandrappa Vs. Manager, Royal Sundaram

Alliance1, where the monthly income of the daily wage labourer is considered at Rs.4,500/- without there being any evidence, this Court is inclined to take the monthly income of the claimant at Rs.4,500/-.

7. Learned counsel for the claimant submits that though the Doctor/PW2 entered into the witness box and stated that there was shortening of two inches in right lower limb and amputation of toe has taken place, the learned Tribunal had 1(2011) 13 SCC 236

KS, J MACMA_5193_2008 3 committed error in granting only Rs.50,000/- towards disability without considering the assessment of PW2 that there was disability of 40%.

8. On the other hand, the learned counsel for the

Insurance Company submits that the disability certificate was not brought on record by the claimant. Further, there is no explanation in the evidence of PW2 as to how he arrived at 40% disability.

9. It is not in dispute that the claimant received three (03) grievous injuries and his right lower limb was shortened by two inches. In the said circumstances, the percentage of disability can be fixed at 25%. Further, while computing the compensation, the future prospects were not considered.

10. Since this Court is inclined to take the monthly income at Rs.4,500/-, as per the age of the claimant i.e. 25 years as on the date of accident, if 40% future prospects are added, the annual income would come to Rs.75,600/- (Rs.4,500+1,800X12). As per Schedule II of the Act, if the said annual contribution arrived is multiplied with relevant

KS, J MACMA_5193_2008 4 multiplier to the age of the claimant i.e.18, the total amount comes to Rs.13,60,800/-. Hence, the claimant is entitled

Rs.3,40,200/- (Rs.13,60,800X25/100) for loss of future income due to disability.

11. There is no dispute about the injuries sustained by the claimant. As per the medical evidence, the claimant has sustained three grievous injuries, for which he is entitled an amount of Rs.75,000/- (Rs.25,000X3).

12. Because of the injuries sustained, the claimant would have taken four months rest and as his income is taken as

Rs.4,500/- per month, he is entitled for Rs.18,000/- (Rs.4,500X4) under the head of loss of income.

13. Basing on the evidence available on record, the Tribunal has granted an amount of Rs.3,023/- towards medical expenditure and this court is not inclined to interfere with the said findings.

14. The court below has granted meager amounts under the conventional heads. Hence, this Court is inclined to grant an amount of Rs.20,000/- for pain and suffering, Rs.5,000/- for

KS, J MACMA_5193_2008 5 transportation & attendant charges and Rs.5,000/- for extra nourishment.

15. In the light of the above discussion, the claimant is entitled for the following compensation under different heads:

Head Compensation awarded

(1)Loss of earnings due to disability Rs.3,40,200 (2)Loss of income Rs.18,000 (3)Medical expenses Rs.3,023 (4)Three grievous injuries Rs.75,000 (5)Pain and suffering Rs.20,000 (6)Transportation & attendant charges Rs.5,000 (7)Extra nourishment Rs.5,000

Total compensation awarded Rs.4,66,223/-

16. In the result, the Motor Accident Miscellaneous Appeal is allowed enhancing the compensation amount awarded by the

Tribunal from Rs.1,15,023/- to Rs.4,66,223/- as hereunder:

(a) The enhanced amount shall carry interest at 7.5% p.a. from the date of petition till the date of realization.

(b) The claimant shall pay the court fee on the enhanced amount of compensation.

KS, J MACMA_5193_2008 6

(c) The respondents shall deposit the amount within a period of (8) weeks from the date of receipt of copy of judgment. On such deposit, claimant is permitted to withdraw entire amount without furnishing any security.

Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.

__________________

K.SURENDER, J

Date : 08.07.2024

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