The United India Insurance Co.Ltd., Wara Vs. Myadada Latha and 7 Others - Court Judgment

THE HON'BLE SRI JUSTICE B.

CHANDRA KUMAR M.A.C.M.A.No.256 o”

19. 11.2012 The United India Insurance Co.Ltd., Warangal Myadada Latha and 7 others Counsel for the Appellant: Sri A.Rama Krishna Reddy Counsel for the Respondents 1 to 6 : Sri V.Rama Chandra Rao Counsel for the Respondents 7 and 8: --- : : ?Cases referred:

1.

1998 ACJ 12.2.

2004 ACJ 128.3.

2002(6) ALD 13.(DB) 4.

2004 ACJ 93.5.

2012 ACJ 106.6.

2003(5) ALD 12.(DB) 7.

2003(6) ALD 18.(DB) 8.

2003 ACJ 37.9.

2009 ACJ 7.10.

2008(4) ALD 1(SC) 11.

2009 ACJ 21.12.

(2009) 6 Supreme Court Cases 121 JUDGMENT

: The United India Insurance Co.

Ltd., represented by its Manager, who is the third respondent before the Motor Vehicle Accidents Claims Tribunal-cum-District Judge, Karimnagar (for short 'the Tribunal), filed this appeal challenging the Award dated 09.06.2011 in O.P.No.574 of 2008.

The parties will be referred to as arrayed before the Tribunal for the sake of convenience.

The brief facts of the case are as follows: On 23.04.2008, Myadada Bhupal Reddy, hereinafter referred as deceased, went to Jammikunta on TVS Star motorcycle bearing No.

AP-36-N 2269.

While returning, when he reached a place in front of Hariyali Kisan Bazar, Indiranagar, Hamlet of Chelpur village, a jeep bearing not KA-33-M-0025 being driven by its owner-cum- driver V.

Linga Rao came in the opposite direction.

It is alleged that the jeep was driven at high speed in a rash and negligent manner and dashed the motorcycle.

The deceased sustained grievous injuries and died on the spot.

The police registered a case against the driver of the jeep.

The claimants are wife, minor children, unmarried sister and parents of the deceased.

Their case is that the deceased was aged about 29 years, working as contract agent and earning Rs.6,000-00 per month.

However, they restricted their claim to a notional income of Rs.40,000-00 per annum and filed a petition under Section 163-A of the Motor Vehicles Act, 1988 (for short ' the Act').

The claimants claim a total compensation of Rs.8,00,000/-.

R.1 and R.3 filed their counters.

They denied the allegations made by the claimants.

R.3 specifically contended that since accident occurred due to the negligence of R.1, R.3 is not liable to indemnify R.1, who is the owner of the jeep.

The Tribunal framed the following issues.

1.

Whether the vehicle, jeep bearing not KA-33-M-0025 driven by the respondent No.1 was involved in the accident or not? 2.

Whether the petitioners are entitled for compensation, if so, to what amount and from whom? 3.

To what relief? On behalf of claimants, the first claimant was examined as P.W.1.

On her behalf, P.Ws.2 and 3 were examined.

On behalf of respondents, R.W.1 was examined.

Exs.A.1 to A.9 were marked on behalf of the claimants and Ex.B.1-copy of the policy was marked on behalf of respondents.

The Tribunal, on appreciation of evidence, came to the conclusion that the accident occurred due to the negligence of the jeep driver.

On issue no.2, the Tribunal took the income of the deceased at Rs.3,500-00 per month and after deducting 1/3 towards his personal expenses applied 17 multiplier and awarded a compensation of Rs.4,76,136/- for loss of earnings and the Tribunal also awarded Rs.15,000-00 towards consortium to the first claimant, Rs.15,000-00 towards loss of estate and Rs.10,000/- towards transportation and funeral expenses and thus awarded total compensation of Rs.5,16,136/-.

Sri A.

Rama Krishna Reddy, the learned counsel for the appellant, has referred to the findings of the Tribunal and the evidence.

His main contention is that the Tribunal categorically found that R.1 is responsible for the accident and having given such finding, the Tribunal is not justified in holding that the claimants are not required either to plead or establish the wrongful act or negligence and accordingly fastened liability on third respondent-insurance company.

He has argued that where the third respondent is not liable to indemnify the first respondent owner of the Jeep and the Tribunal has committed an error in fastening the liability.

He has relied on the judgment of the Apex Court in case between Oriental Insurance Co.

Ltd., v.

Sunita Rathi1 in support of his contention that when the insurance company is not liable to indemnify the owner of the vehicle, the insurance company cannot be made liable.

He has also referred to the judgment of Karnataka High Court in case between Appaji (since deceased) and another v.

M.

Krishna and another2 in support of his contention that when the accident occurred due to the negligence of the deceased himself, then Section 163-A of the Act is not applicable.

He has also relied on the judgment of this Court in case between New India Assurance Company Litmited v.

B.

Malla Reddy3 in support of his contention that when there is a collision between two vehicles, it is the owner of the vehicle whose driver is at fault and its insurance company are liable to pay compensation.

He has also referred to the judgment of Deepal Girishbhai Soni v.

United India Insurance Co.

Ltd.,4 in support of his contention that Section 163-A and Section 166 of the Act are independent of each other and that a claimant cannot pursue his remedies thereunder simultaneously.

The learned counsel for the respondents-claimants, Sri Rama Chandra Rao Vemuganti, submits that when a claim is made under Section 163-A of the Act, the claimants are not required to plead and prove the aspect of negligence.

It is his submission that the Tribunal ought not to have looked into the negligence aspect.

It is also his contention that it is the option of the claimants either to claim under Section 163-A or Section 166 of the Act and when once they have claimed compensation under Section 163-A of the Act, compensation has to be paid on structured formula basis without looking into the aspect of negligence.

In support of his contention, he has relied on the following judgments.

i) National Insurance Co.

Ltd., v.

P.C.

Chacko5 ii) Shahazadi Bee v.

Managing Director, APSRTC, Musheerabad, Hyderabad6 iii) Kore Laxmi v.

United India Insurance Company Limited7 iv) Oriental Insurance Co, Ltd.

V.

Parveen Juneja8 v) Raisingh v.

Anil9 vi) MG.Dire., Bangalore Metropolitan Tpt.Corp.

v.

Sarojamma10; and vii) Usha Rathore and others v.

National Insurance Co.

Ltd., and others11 It is not in dispute that both the vehicles are involved in the accident.

It is also not in dispute that the Tribunal, on appreciation of evidence, gave a finding that driver of the jeep is responsible for the accident.

There is no need to look into the evidence or re-appreciate the entire evidence, in view of the admitted facts.

Now, in this appeal, the points that arise for consideration are:

1.

Whether the claimants are required to plead and prove the aspect of negligence; or when the Tribunal has specifically given a finding that the owner of the jeep is responsible for the accident, whether the Tribunal can direct the insurance company/R.3-insurer of the motorcycle to pay the compensation? 2.

Whether the multiplier applied by the Tribunal is justified? POINT No.1:- Section 163-A of the Act reads as follows: " 163-A.

Special provisions as to payment of compensation on structured formula basis:- 1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation:- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923(8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person." A reading of the above section makes it very clear that the claimants shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles.

It is to be kept in mind that the wording used in this section is the owner of the "vehicle" or "vehicles" concerned or any other person assume importance in this aspect.

Thus the sub-section (2) covers not only when one vehicle is involved in the accident or even when more than one vehicle is involved in the accident.

Irrespective of the fact whether one vehicle is involved or more than one vehicle is involved, Section 163-A of the Act appears to be applicable.

When that is the intention of the legislature, it is very clear from the above section that the claimant is not required to plead or establish that the accident occurred due to the negligence of anyone of the drivers of the vehicles.

When a claim has been made under Section 163-A of the Act, in my considered view, there is no need for the Tribunal to frame an issue as to who is responsible for the accident or whether the accident occurred due to the negligence of driver of the one vehicle or due to the negligence of the drivers of both the vehicles involved in the accident.

When there is no need to frame such an issue, the finding of the Tribunal that the driver of the jeep is responsible for the accident looses its importance and does not require any consideration.

In case between Oriental Insurance Co.

Ltd.

V.

Parveen Juneja(8th cited) the Hon'ble High Court of Punjab and Haryana at Chandigarh observed that the claimant can choose to sue any of the tortfeasors and in such a case the question of contributory negligence does not arise.

In case between Kore Laxmi v.

United India Insurance Company Ltd( 7th cited) a Division Bench of this Court observed that the general rule of proving rash and negligent driving to claim compensation under Motor Vehicle Act was diluted by introduction of Section 163-A.

In Shahazadi Bee v.

Managing Director, APSRTC (6th cited) also a Division Bench of this Court observed that after introduction of Section 163-A of the Act, the claimants need not prove rash and negligent driving.

It is sufficient if it is proved that the accident occurred while vehicle was being used on road.

The Apex Court in MG.Dir., Bangalore Metropolitan Tpt.Corp.

v.

Sarojamma and another (10th cited) observed that it is not necessary for a claimant to establish any act of negligence on the part of the driver.

It is not even necessary to plead that the death had occurred owing to any wrongful act or neglect or default of owner of the vehicle.

When a case wherein two vehicles involved came up before their Lordships, a Division Bench of Hon'ble Madhya Pradesh observed in Usha Rathore v.

National Insurance Co.

ltd.(11th cited) that a claimant cannot pursue his remedy under Section 163-A and 166 of the Act simultaneously and the Tribunal was not justified in recording a finding with regard to negligence.

In case between Raisingh v.

Anil(9th cited) Hon'ble Madhya Pradesh High Court held that it is not necessary to plead and prove negligence of the driver involved in the accident.

In that case also a truck and scooter were involved in the accident.

It was categorically held that it was not required to plead and prove the negligence aspect.

In National Insurance Co.

Ltd.

V.

P.C.

Chacko (5th cited) Division Bench of Hon'ble Kerala High Court has considered several decisions and finally concluded that in a claim under Section 163-A of the Act, negligence is absolutely irrelevant.

It has further observed that as negligence is irrelevant, consequently, contributory negligence is also irrelevant.

The above decisions make it crystal clear that the negligence aspect is irrelevant when a claim is made under Section 163-A of the Act.

The very purpose of enacting Section 163-A of the Act would be defeated if the Tribunals try to look into the negligence aspect.

When there is no need to plead and prove the negligence aspect, the question as to who is responsible for the accident need not be gone into.

It is to be kept in mind that Section 163-A of the Act is a beneficial legislation, which has to be interpreted keeping in view the very object of the legislation.

The Courts should not interpret any provision in such a manner whereby the very object of the legislation would be defeated.

In view of the same, since both the vehicles are involved in the accident, it is to be held that the finding of the Tribunal that R.3 is liable to indemnify first respondent cannot be disturbed.

It is also clear that even the aspect of contributory negligence need not be considered.

This point is decided accordingly.

Point No.2:- As far as the finding of the Tribunal with regard to the income of the deceased is concerned, it appears that there is no need to disturb the said finding.

The deceased was aged about 35 years.

According to P.W.1 the deceased was working as a contract agent.

Of-course according to P.W.1 he was earning Rs.6,500/- per month.

According to P.W.3 they were paying Rs.3,500/- per month as salary to the deceased.

Ex.A.9 is the salary certificate.

Having regard to the evidence of P.Ws.1 and 3 and Ex.A.9, the Tribunal has taken the income of the deceased at Rs.3,500-00 per month.

In the circumstances, I am of the view that there is no need to disturb the said finding.

The Tribunal has considered Ex.A.2-inquest report and Ex.A.5 post mortem report and determined the age of the deceased as 35 years.

Sri A.

Rama Krishna Reddy, learned counsel for the appellant relying on the judgment in Sarala Verma v.

Delhi Transport Corporation12 submitted that the appropriate multiplier is 16.

Accordingly, the compensation has to be worked out taking the multiplier as 16.

If multiplier 16 is applied to the annual notional income of Rs.28,008/-, the total amount would be Rs.4,48,128/-.

The claimants are entitled to compensation at Rs.4,48,128/- towards loss of income and future expectancy of life.

The Tribunal awarded compensation at Rs.15,000/- towards consortium, Rs.15,000/- towards loss of estate and an amount of Rs.,10,000/- towards transportation and funeral expenses.

In view of the Sarala Verma, I deem it appropriate to reduce the same to Rs.10,000/- towards consortium, Rs.5,000/- towards loss of estate and Rs.5,000/- towards transport charges and funeral expenses.

The claimants accordingly are entitled to compensation at a) Compensation towards loss of income and future expectancy of life Rs.

4,48,128-00 b) Compensation towards consortium 10,000-00 c) Compensation towards loss of estate 5,000-00 d) Compensation towards transport charges and funeral expenses 5,000-00 Total 4,68,128-00 The rate of interest at 7.5% per annum, as granted by the Tribunal, is sustainable.

The claimants accordingly are entitled to compensation at Rs.4,68,128/- together with interest at 7.5% per annum from the date of the petition till deposit.

Out of the awarded amount, claimants 2 and 3 are entitled to Rs.75,000/- each, claimants 4 to 6 are entitled to Rs.40,000/- each, and claimant no.1 is entitled for the rest of the awarded amount i.e.

Rs.1,90,128-00, with their respective share of interest.

The respondent no.3 shall deposit the awarded amount within one month from the date of receipt of a copy of this order.

Conditions with regard to withdrawal clause as stipulated by the Tribunal are maintained.

Accordingly, the appeal is allowed in part.

No costs.

Miscellaneous petitions pending, if any, in this appeal shall stand closed.

___________________________ JUSTICE B.

CHANDRA KUMAR 19 11 .2012