BEFORE THE III ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL-
CUM- III ADDL. DISTRICT JUDGE ::
NELLORE, SPSR NELLORE DISTRICT.
Tuesday, this the 15 th day of September, 2020.
Present: SriV.V.Srinivasa Murthy, Chairman, III Addl. Motor Accident Claims Tribunal-cum-III Addl.
District Judge, Nellore.
***
M.V.O.P.235/2015
Between: 1.Chinthamreddy Sailaja, 2.Chinthamreddy Sai Sravanthi, 3.Chinthamreddy Prema Sai. …Claimants
And:
1. KonathamChandraiah,
2. EMPEE Sugars and Chemicals Ayyapareddypalem, Naidupet Mandal, Nellore rep. by M.P Purushothaman.
3. United India Insurance Co. Ltd., Brindavanam, Nellore by its Divisional Manager. …Respondents
This petition is suo motu advance to this day for final hearing before me in the presence of Sri Venati Chandrasekhar Reddy, learned Advocate for the petitioners and of Sri A.Krishnaswamy, learned Advocate for respondent 2 and of Sri N. Sreenivasulu Reddy, learned Advocate for respondent 3 and respondent 1 remained ex-parte and the matter having stood over for consideration till this day, this Court delivered the following:
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O R D E R
1.Petitioners filed the petition U/Sec.166 of Motor Vehicle Act (for short 'Act') claiming compensation of Rs.30,00,000/-.
Brief averments of the petition:1stpetitioner is the wife; 2.
2ndpetitioner is the daughter and 3rdpetitioner is the son of
Chinthamreddy Narendra Reddy. Narendra Reddy was aged 48 years; and was working Public Relation Officer in 2nd respondent Sugar Factory situated at Naidupet prior to
December, 2013. He was aged 48 years and was earning
Rs.13,800/- per month. On 28.12.2013 at 3-00 a.m., near New Toll
Plaza, Gowravaram located on NH-16, Kavali Rural Mandal; 1st respondent, driver of the Bolero Car A.P.26 AL 9019 drove the same in rash and negligent manner and in the accident Narendra Reddy died on the spot. 2nd respondent is the owner of the vehicle and it was insured with 3rd respondent Insurance Company. The accident occurred due to rash and negligent driving of the 1st respondent during the course of employment under the 2nd respondent. The accident occurred when
Narendra Reddy was attending the Job under the 2nd respondent company. 2nd respondent is vicariously liable and 3rd respondent has to indemnify the liability. Petitioners have claimed Rs.27,00,000/- towards loss of earning, Rs.1,00,000/- towards transport and funeral expenses; and Rs.1,00,000/- towards loss of consortium and another Rs.1,00,000/- towards suffering, totaling Rs.30,00,000/- from all the respondents.
3.1strespondent set him exparte.
4. Brief averments of the counter filed by the 2 nd respondent:
The Bolero vehicle 9019 owned by the 2nd respondent and it was insured with the 3rd respondent during relevant time. The compensation has to be paid by 3rd respondent only. 2nd respondent denies rash and negligence on the part of 1st respondent while driving the vehicle.
3 Quantum of compensation claimed by the petitioners is excessive and exorbitant. Petitioners have made a claim before the appropriate authority under Workmen’s Compensation Act on the ground that the death of Narendra Reddy had taken place during the course of employment. 2ndrespondent was directed to pay Rs.6,39,200/- to the petitioners towards compensation under Workmen’s Compensation Act.
A draft, dt.13.12.2014 for Rs.6,39,200/- was sent to Joint Commissioner of Labour, Guntur in compliance with the direction of Assistant
Commissioner of Labour, Gudur. The 2nd respondent has paid
Rs.6,00,000/- by way of cheques in favour of petitioners at their request.
2nd respondent has also paid Rs.3,00,000/- to the petitioners payable under Group Insurance Scheme on 17.06.2015. The total compensation of Rs.15,39,200/- paid to the petitioners has to be set off with compensation amount is to be awarded by this Tribunal.
5.Brief averments of the counter filed by 3 rd respondent:
The 2nd respondent has to prove that the vehicle 9019 was duly insured on the date of accident. 3rd respondent has no knowledge about the alleged accident. Petitioners have to prove the rash and negligence on the part of the 1st respondent, the driver of the vehicle. Petitioners have also to prove the age and earnings of Narendra Reddy on the date of his death. There was gross negligence on the part of the offending vehicle. Petitioners have to prove that they are depending on the earnings of the deceased. Petitioners have also to prove that 1st respondent has valid and effective driving licence at the time of accident.
2nd respondent has not complied the provision Section 134(c) and 158(6) of the Act. Petitioners’ claim is excessive. Petition is liable to be dismissed.
6.Basing upon the respective pleadings, the following issues were framed for trial:- 4
1. Whether the liability of the 3 rd respondent Insurance Company is not limited to third party liability only under motor policy No.1512023113P102915956 from 10.8.2013 to 9.8.2014?
2. Whether the 3 rd respondent alone is liable to pay the compensation amount to the petitioners arising out of the accident by the said Bolero motor vehicle bearing No.AP 26 AL 9019?
3. Whether the 2 nd respondent is also liable to pay compensation amount to the petitioners under the principle vicarious liability along with the 3 rd Respondent?
4. Whether the accident dated 28.12.2013 occurred due to the rash and negligence of the 1 st respondent which resulted into the death of Mr. Ch. Narendra Reddy?
5. Whether the compensation amount claimed by the Petitioners is imaginary, excessive and exorbitant and the same is liable to be dismissed with costs?
6. Whether the petitioners have already claimed compensation in respect of the accident dated 28.12.2013 which resulted into the death of Mr. Ch. Narendra Reddy from the Joint Commissioner of Labour, Gudur under Workmen’s Compensation Act an extent of Rs.6,39,200/-?
7. Whether the petitioners already received the amount of Rs.6,39,200/- from Joint Commissioner, Gudur vide DD.No.007518, dated 13.12.2014?
8. Whether the 2 nd respondent paid an amount of Rs.6,00,000/- in addition to Rs.6,39,200/- to the petitioners by two cheques bearing No.703455 dated 11.3.2014 for Rs.1,00,000/- and No.058441 dated 5 22.7.2014 for Rs.5,00,000/- in favour of the 1 st petitioner?
9. Whether the 2 nd respondent paid a sum of Rs.3,00,000/- being the amount payable under Group Insurance Scheme to the petitioners vide cheque bearing No.034365 dated 17.6.2015?
10. Whether the total amount of Rs.15,39,200/- shall be set off from the compensation to be awarded to the petitioners in this case?
11. To what relief?
7.Knowing the respective contentions, the 1st petitioner got her examined as PW1. PWs.2 and 3 were examined and Exs.P1 to P5 were marked on the side of petitioners. CW1/Assistant Commissioner of Labour, Gudur was examined and Exs.C1 and C2 were marked. Exs.R1 to
R9 were marked through PW3/Srinivasulu. RW1 was examined on behalf of 3rd respondent and Exs.R10 and R11 were marked.
8.Arguments were submitted by the learned counsels on record.
9. ISSUE 4:
The case of the petitioners is that Narendra Reddy, the husband of 1st petitioner during the course of his employment was traveling in Bolero Car AP 26 AL 9019 on the wee hours of 28.12.2013 from Ongole to Naidupet during the course of his employment under 2nd respondent; and 1st respondent was the driver and at 3-00 A.M., near Toll plaza the vehicle turned turtle due to rash and negligent driving of 1st respondent; and Narendra Reddy died on the spot. 1st 6 respondent has set him exparte and has not chosen to contest. The contention of 3rd respondent is that the 2nd respondent has to prove about the rash and negligence of the driver of the vehicle.
10. Petitioners have filed Ex.P1 the copy of F.I.R. in
Crime 272/2013 registered by Kavali Rural Police. The statement of Chanti, a villager of Kallur of Prakasam District is annexed to the FIR. The statement reveals that the said
Chanti was one of the workers working in 2nd respondent
Sugar factory; and he was travelling in the subject Bolero
Car 9019 in the wee hours of 28.12.2013; and around 3-00 a.m., near new Toll Plaza situate at Musunuru village; the
Car was driven in rash and negligent manner; and while over taking the lorry passing in front of it, it met with an accident and Narendra Reddy, the Public Relation Officer and another
Chinnaiah, a mastry died in the accident. Basing on such statement, the FIR was registered. Later, post-mortem was conducted on the corpse of Narendra Reddy at Government
Area Hospital, Kavali and police conducted inquest over the dead body of Narendra Reddy. Narendra Reddy died in the accident due to rash and negligent driving of the 1st respondent. Later police filed charge sheet against 1st respondent, the driver of the Car 9019 before Additional
Judicial Magistrate of I Class Court, Kavali. The charge
sheet averments also reveal that Narendra Reddy died due to rash and negligent driving of 1st respondent. Petitioners examined PW2/Ravinder Reddy to speak about the accident.
However, he has not witnessed the accident. The witness
Ravinder Reddy is his nephew and as such his statement was recorded by the police in the proceedings of criminal 7 case. PW3/Srinivasulu, the Senior Personnel officer of 2nd respondent has deposed about the accident. The documents filed by the petitioners amply prove that the accident occurred due to rash and negligent driving of 1st respondent. The accident occurred during the course of employment under 2nd respondent. Hence, this issue is decided in favour of the petitioners.
11.ISSUES 1 to 3 and 5 to 10:
The petitioners have filed the petition under Section 166 of the Act. Section 166 of the Act reveals about making payment of compensation to the legal heirs in case of death of a person. The main cases dealing with the subject issue of making payment of compensation in a motor accident case to the legal heirs of deceased are “Sarala Verma Vs.
Delhi Transport Corporation and others 2009 ACJ 1298
(SC) and National Insurance Company Ltd., Vs. Pranay
Sethi and others 2017 ACJ 2700.” In the present case, the deceased died during the course of employment when he was travelling in Bolero Car provided by the 2nd respondent, owner of the factory. The evidence of 1st petitioner as PW1 is that her husband was earning Rs.13,500/- during the relevant period. PW3/Srinivasulu, the Senior Personnel
Officer of 2nd respondent has deposed that the deceased had drawn gross salary of Rs.13,800/- per month. He has filed Ex.P5 Pay slip of the deceased. Narendra Reddy was a permanent employee, but he was being paid specific amount of Rs.13,800/- per month. Narendra Reddy was aged 48 years and as such, as per Pranay Sethi case stated supra, 25% increase has to be given on his monthly earnings as he was getting monthly salary of Rs.13,800/-. If 8 so, the increase of 25% will be Rs.3,450/-. The total monthly emoluments can be estimated at Rs.17,250/-. The petitioners are dependents on the salary of Narendra
Reddy. They are three in number. 1/3rd of the salary of
Narendra Reddy had to be deducted towards his personal expenses. 1/3rd of Rs.17,250/- is Rs.5,750/-. If such deduction is made, the petitioners would be getting
Rs.11,500/- per month for their expenses. The loss of such earnings per annum is Rs.11,500/- x 12 i.e., Rs.1,38,000/-.
As per the guidelines given in Sarla Verma case stated supra, the multiplier is ‘13’ (thirteen) for the age group having age 46 to 50 years. The total loss of future earnings will be
Rs.1,38,000/- x 13 = Rs.17,94,000/-. In addition to the said sum, 1st petitioner is entitled to consortium of Rs.40,000/-; and Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. In all, the petitioners can claim
Rs.17,94,000/- and Rs.70,000/-, totaling Rs.18,64,000/-.
12.After the accident, 1st petitioner was advised to file an application before the 2nd respondent factory for making payment of compensation as the accident occurred during the course of employment of Narendra Reddy. The 2nd respondent has paid Rs.6,00,000/- at first instance and obtained a receipt from petitioners 1 and 3. Ex.R1 reveals that petitioners 1 and 3 have received Rs.6,00,000/- towards compensation irrespective of the petition pending before
Bharathi A&A General Insurance Company Limited.
Rs.1,00,000/- a part of such sum was given to petitioners on 11.3.2014 and balance of Rs.5,00,000/- was given on 27.7.2014. There was Group Insurance for all the employees and the premium had been paid by 2nd respondent. Under such Group Insurance Policy, 9 Rs.3,00,000/- was paid to all the petitioners on 13.6.2015.
Ex.R2 Receipt signed by petitioners is filed. But this Group
Insurance amount cannot be made part of compensation amount payable by 2nd respondent factory, because the vehicle 9019 was insured with 3rd respondent. Hence,
Group Insurance amount is different from the amount payable under other insurance policy.
13.The petitioners have approached the 2nd respondent for payment of compensation. The 2nd respondent has obtained a petition from 1st petitioner and informed about the accident to the Assistant Commissioner of Labour, Gudur. The 2nd respondent was under the impression that the accident occurred during the course of employment and the petitioners have to be paid compensation under the Provisions of Workmen’s
Compensation Act. The Assistant Commissioner of Labour,
Gudur addressed a letter to Joint Commissioner of Labour,
Guntur under Ex.P2. Such letter reveals an enquiry was conducted and oral statements of the dependants that is the petitioners herein were recorded by the Assistant
Commissioner of Labour. But, he was directed to examine the Village Assistant, a local person who knew the deceased and his dependants. But enquiry was not separately conducted by the Assistant Commissioner of
Labour. The Order passed by Assistant Commissioner of
Labour, Gudur is annexed to Ex.P2. An apportionment order was made for payment of Rs.6,39,000/- and which was deposited by the 2nd respondent factory. The order for compensation of Rs.6,39,200/- was passed under Ex.R4 by 10 the Assistant Commissioner of Labour, Gudur. Demand
Draft, dt.13.12.2014 for Rs.6,39,200/- was issued by the 2nd respondent factory under Ex.R5. Out of the said sum, part of amount was deposited and part of the amount was paid to the petitioners 1 to 3. Thus, the petitioners were paid and awarded Rs.6,39,200/- and Rs.6,00,000/- , a total of
Rs.12,39,200/- by the 2ndrespondent under Ex.R9.
Rs.3,39,200/- was deposited in State Bank of India, Menakur branch in the names of petitioners and Rs.3,00,000/- was paid to the petitioners 1 and 3.
14. The present petition is filed before the Tribunal constituted under Motor Vehicles Act. The contention of respondents 2 and 3 is that the petitioners were already paid the compensation amount under Workmen’s Compensation
Act and they are precluded from approaching the present
Tribunal for claiming compensation under the provisions of the Act. The learned counsel of the petitioners has submitted that the claimants are not liable for the things happened without their knowledge; and the claimants are eligible for compensation under Motor Vehicle Act. The learned counsel of the petitioners has submitted the case 2013 ACJ 709 SC.
An application was filed under Section 166 as the employee sustained fatal injuries during the course of his employment.
Employer deposited the amount of compensation as admissible under Workmen’s Compensation Act before the
Commissioner. The dependants of workman approached the Tribunal constituted under Motor Vehicles Act. The
Tribunal awarded the amount admissible and adjusted the amount paid by the Commissioner.
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15.Regarding maintainability of choice of Forum, the claimants application under Employees Compensation Act was dismissed on the ground that claimants had already received compensation under the Motor Vehicles Act. They were precluded as they have already approached the
Tribunal constituted under Motor Vehicles Act (2015 ACJ 2818 Delhi). (Smt. Elsemma John & Others Vs. M/s. Brintex
Sales Corporation)
16. The learned counsel of 2nd respondent has submitted that 2nd respondent in all has paid Rs.12,39,200/- towards compensation and the Group Insurance amount of
Rs.3,00,000/- totaling Rs.15,39,200/- and the vehicle is insured with 3rd respondent and the petitioners are not entitled for any more compensation from the 2nd respondent.
17. The learned counsel of 3rd respondent has submitted that petitioners have already approached the Commissioner under Workmen’s Compensation Act and they are not entitled to further compensation under the Provisions of the Act. In support of the contention of 3rd respondent, the learned counsel has submitted the case United India Insurance Company
Limited Vs. Anipeddi Dhanalakshmi and others 1994 ACJ
98. There was death of Motor cyclist in an accident in the said case. The dependants approached the Commissioner and obtained compensation under Workmen’s Compensation Act.
The claimants have also filed the claim before the Tribunal constituted under Motor Vehicle Act and the Tribunal awarded compensation. It was observed that the claim before the
Claims Tribunal is not maintainable as a person is entitled to claim compensation under either of the Acts and cannot claim compensation under both the said Acts.
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18. The learned counsel of 3rd respondent has also submitted the case Bharti AXA General Insurance Co. Ltd. Vs.
Shanti and others 2013 ACJ 103. In the said case also, there was death of driver in road accident and defendants filed claim under Sec.166 of Motor Vehicle Act and Tribunal awarded compensation. The claimants therein again filed second claim application under Workmen’s Compensation Act. Insurance
Company contended that claimants had already received compensation. The contention of dependants therein was not accepted considering Section 167 of the Act. Section 167 of
Act acquires that a person is entitled to claim compensation under Motor Vehicles Act and Workmen’s Compensation Act; but he cannot claim compensation under both the Acts. In the present case, the petitioners have approached the Public
Relation Officer of 2nd respondent and 2nd respondent has accepted to pay compensation of Rs.6,00,000/- and paid the same. The petitioners have accepted the same contending that they had received the same irrespective of the payment to be made by the Insurance Company. At the instance of 2nd respondent, the Assistant Commissioner of Labour, Gudur had conducted enquiry and passed an order for payment of compensation of Rs.6,39,200/-. But the petitioners have not actively participated in the said proceedings. Their depositions were not recorded. The Village Assistant was also not examined by the Assistant Commissioner of Labour, Gudur.
The parties have approached the tribunal since their case was not properly looked after. The Tribunal can grant the compensation as per the Provisions of Sec.166 of the Act.
19. The accident occurred due to negligence of the 1st respondent, the driver of the 2nd respondent. 2nd respondent is vicariously liable for the act committed by its driver, the 1st 13 respondent. The vehicle was insured with the 3rd respondent.
3rd respondent has to indemnify the liability of 2nd respondent.
Thus, the respondents 2 and 3 have to pay the awarded amount of compensation of Rs.18,64,000/-. Of which,
Rs.12,39,200/- was already paid by the 2nd respondent to the petitioners. Such amount has to be paid by the 3rd respondent
Insurance Company to the 2nd respondent, because 3rd respondent Insurance company has to indemnify the liability of 2ndrespondent. The balance amount of Rs.6,24,800/- (Rs.18,64,000/- - Rs.12,39,200/-) has to be paid by the respondents 2 and 3 along with interest at 7.5% per annum from the date of petition till the date of realization. These issues 1 to 3 and 5 to 10 are decided accordingly.
20. ISSUE 11:
Petition is allowed for Rs.18,64,000/-. 2nd respondent has already paid Rs.12,39,200/- to petitioners. The balance amount of Rs.6,24,800/- along with interest at 7.5% per annum from the date of petition till the date of realization has to be paid by the respondents 2 and 3. This issue is answered accordingly.
21.In the result, the petition is partly allowed for Rs.18,64,000/- (Rupees Eighteen lakhs and sixty four thousand only) with proportionate costs. 2nd respondent has already paid Rs.9,00,000/- (Rupees Nine lakhs only) and deposited Rs.3,39,200/- (Rupees three lakhs thirty nine thousand and two hundred only) in the name of petitioners 1 to 3. The 2nd respondent (owner) has to bear the liability of 1st respondent. The respondents 2 and 3 are directed to deposit the balance amount of Rs.6,24,800/- (Rupees six lakhs twenty four thousand and eight hundred only) along with future interest at 7.5% per annum from the date of petition till the date of realization within one 14 month. 1st petitioner is entitled to Rs.3,24,800/- along with interest and costs. Petitioner 2 and 3 are entitled to Rs.1,50,000/- each along with interest. The above amounts can be withdrawn by the petitioners after nine months from the date of Award. Advocate’s fee is fixed at
Rs.10,000/- (Rupees ten thousand only). 2nd respondent has already paid Rs.12,39,200/- to the petitioners and the 3rd respondent has to indemnify such liability and pay the said amount to the 2nd respondent.
Petition for rest of amount is disallowed. Decree to be executed after payment of Court Fee which was exempted by the District Legal
Services Authority.
Dictated to the Stenographer Grade-II, transcribed by her,
corrected and pronounced by me through Video Conference, this the 15th day of September,2020.
Chairman MACT-cum-III Addl. District Judge,
Nellore.
Appendix of Evidence
Witnesses Examined on behalf of
Petitioners: Respondents:
PW.1: Ch.Sailaja, RW1: P.Amarendra
PW.2 :D.Ravinder Reddy
PW.3 :K.Srinivasulu
CW1: Omkar Rao.
Documents Marked on behalf of
Petitioners: Ex.P1 is the Attested copy of FIR in Crime 272/2013 of Kavali Rural P.S. Ex.P2 is the attested copy of Post-mortem report. Ex.P3 is the attested copy of Inquest report. Ex.P4 is the attested copy of the charge sheet. Ex.P5 is the payslip of the deceased Ch.Narendra Reddy.
Ex.C1 is the memo dated 28.06.2015.
Ex.C2 is the letter dated 01.10.2015 along with the order dated 11.09.2015.
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Respondents:
Ex.R1 is the letter addressed by the Claimants to the 2nd respondent.
Ex.R2 is the receipt , dt.23.06.2015 drawn on ICICI Bank, Chennai.
Ex.R3 is the document showing the payment of Rs.3,00,000/- to the 1st petitioner by New India Insurance Company. (marked subject to objection)
Ex.R4 is the letter addressed by the Assistant Commissioner of Labour, Gudur to the Chief Executive Officer, Empee Sugars and Chemicals Limited, AR Palem, Naidupet dated 23.5.2014.
Ex.R5 is the letter addressed by the Empee Sugars Chemicals Limited to the Joint Commissioner of Labour, Guntur.
Ex.R6 is the Vehicle Insurance policy insured by 2nd respondent in favour of the 3rd respondent (marked subject to objection).
Ex.R7 is the letter addressed by Empee Sugars (R2), dated 2.1.2018 to the Joint Commissioner of Labour, Guntur.
Ex.R8 is the covering letter, dt.6.1.2018 addressed by the Commissioner for Workmen Compensation.
Ex.R9 is the letter addressed by the Commissioner for workmen compensation to the Banch Manager, Andhra Bank, Chandramouli Nagar, Guntur, dt.27.11.2015.
Ex.R10 is the statement of account of Ms. Chinthamreddy Sailaja account bearing No.33685966650.
Ex.R11 is the statement of account of Ms. Chinthamreddy Sai Sravanthi account bearing No.33685965613.
IIIADJ/Nellore.