w w w . L a w y e r S e r v i c e s . i n



M/s. United India Insurance Company Limited v/s Md. Khayyumkhan & Others


    M.A.C.M.A. No. 3138 of 2014

    Decided On, 30 June 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE K. LAKSHMAN

    For the Appellant: A.V.K.S. Prasad, Advocate. For the Respondents: R1 to R4, C.M. Prakash, Advocate.



Judgment Text


1. Aggrieved by the order and decree dated 17.07.2013 in M.V.O.P. No.2212 of 2011 passed by the Motor Accidents Claims Tribunal - cum - XIV Additional Chief Judge (Fast Track Court), Hyderabad (for short ‘the Tribunal’), appellant - M/s. United India Insurance Company Limited preferred the present appeal challenging the liability as well as quantum of compensation.

2. Vide the aforesaid award, the Tribunal has awarded an amount of Rs.11,78,400/- towards compensation with proportionate costs and interest at 7.5% per annum thereon from the date of petition till the date of realization against respondent Nos.1 and 2 jointly and severally as against the claim of Rs.15,00,000/- made by respondent Nos.1 to 4 - claimants for the death of deceased - Athar Rehmankhan caused in a road accident occurred on 16.06.2011.

3. Heard Mr. A.V.K.S. Prasad, learned counsel for the appellant - Insurer and Mr. C.M. Prakash, learned counsel for respondent Nos.1 to 4 - claimants.

4. It is the specific contention of the learned counsel for the Insurer that there was contributory negligence on the part of drivers of both vehicles viz., TATA Ace Auto bearing registration No.AP 28TC 0927 and Lorry bearing registration No.AP 16TY 4556. Since both were coming in opposite direction, there is every likely-hood of negligence on the part of drivers of both vehicles. He would further contend that the accident was due to head-on-collision and, therefore, the Tribunal without considering the contention of the Insurer that there was contributory negligence on the part of drivers of both vehicles, held that the accident was due to rash and negligent driving of the driver of the lorry only and, accordingly, awarded the compensation erroneously fixing liability on the owner as well as insurer of the said lorry.

5. The learned counsel for the Insurer further contend that the Tribunal without considering the entire evidence, both oral and documentary, has arrived at the monthly income of the deceased as Rs.10,800/- and the relevant multiplier as ‘18’.

6. With the said contentions, the learned counsel for the Insurer sought to set aside the impugned order and decree.

7. On the other hand, the learned counsel for the claimants would contend that the Tribunal, on consideration of entire evidence both oral and documentary, including Ex.A1 - FIR, Ex.A5 - charge sheet and Ex.A4 - MVI Report held that the accident was due to rash and negligent driving of the driver of lorry bearing registration No. AP 16TY 4556. According to him, the Insurer neither pleaded, nor proved the contributory negligence before the Tribunal and that the Insurer has taken the said plea only in the present appeal. There is no error in arriving at the monthly earning capacity of the deceased as well as relevant multiplier by the Tribunal. There is also no error in awarding the compensation by the Tribunal under various heads.

8. The learned counsel for the claimants also would submit that though the claimants have not filed any appeal or cross-objections for enhancement of compensation, still this Court being appellate Court is having power to grant just compensation and relied upon the decisions of the Hon’ble Apex Court as well as High Courts in support of his contention.

9. With the above said contentions, the learned counsel for the claimants sought for dismissal of the appeal and for enhancement of compensation.

10. On behalf of the claimants, claimant No.1, father of the deceased, was examined as PW.1 and eye-witness as PW.3 and got marked Ex.A1 - FIR, Ex.A5 - charge sheet and Ex.A4 - MVI report to prove the accident. The father of deceased as PW.1 has narrated about the accident. It is relevant to note that he is not an eye-witness. However, PW.3 is the eye-witness.

11. On perusal of the depositions of PWs.1 and 3 and Exs.A1, 4 and 5, it would disclose that on 16.06.2011 at about 3.30 hours, while the deceased along with his friend N. Nagender was proceeding in TATA Ace bearing registration No. AP 28TC 0927 from Hyderabad to Miryalaguda for attending sister marriage of their friend and when they reached near Malkapuram village outskirts, lorry bearing registration No.AP 16TY 4556 coming from Vijayawada side towards Hyderabad in a rash and negligent manner and hit the said TATA Ace without observing traffic rules. Due to the same, the said TATA Ace turned turtle to his left side. As the TATA Ace came beneath the Tyres of the lorry, they were crushed and the auto was damaged. In the said accident, the deceased died.

12. As stated above, PW.1, father of the deceased, reiterated contents of the claim petition as to cause of the accident. As already stated above, he is not an eye-witness to the accident. On his complaint only, Ex.A1 - FIR was registered. The police after completion of investigation filed Ex.A5 - charge sheet. The investigation conducted by the police would reveal that the accident was due to rash and negligent driving of the driver of the lorry only and accordingly charge sheet was filed under Sections 304-A and 337 of IPC against the driver of the lorry. According to PW.3, an eyewitness to the accident, on 16.06.2011 in between 3.00 and 3.30 a.m., he was going to Koyyalagudem village on his motorcycle to see a road side site for marketing purpose and while going so, he saw the accident. At the time of accident, TATA Ace goods vehicle bearing registration No.AP 29 TC 0927 was proceeding towards Vijayawada side on left side of the road with a load of furniture, while going so, driver of the lorry bearing registration No.AP 16TY 4556 coming to Hyderabad in opposite direction drove it in a rash and negligent manner at high speed and dashed the TATA Ace vehicle, due to which, the persons travelling in the said TATA Ace sustained severe injuries on various parts of the body including head, face and teeth. Within ten (10) minutes, people going by road were gathered and two or three persons, who were working in the Feed mill, gathered there and tried to pull out the injured about three in number. The driver of the TATA Ace escaped from the scene with simple injuries. While the injured were being taken to Hospital, one of them died and later he came to know that after one hour of the accident four persons died. He further stated that he came to know that the injured were classmates studying Engineering at Hyderabad and were proceeding to Miryalaguda to attend a marriage function, carrying marriage articles. PW.3 further deposed that the right portion of the black top road and mud road under repair in widening process of the National Highway, for which the driver of the lorry without proper observation of the opposite going TATA Ace vehicle drove it in a negligent manner by swerving towards his right side, for which only the accident was caused. Had the driver of the lorry slow down its speed, the accident would have been averted.

13. The above stated deposition of PWs.1 and 3 supported by Exs.A1, A4 and A5 would reveal that the accident had occurred due to rash and negligent driving of the driver of the lorry.

14. In the present appeal, though the Insurer pleaded that the accident had occurred due to rash and negligent driving of drivers of both vehicles, none were examined by it before the Tribunal, nor filed any document to prove the same. The Insurer did not elicit anything from PWs.1 and 3 during cross-examination to prove the contributory negligence. Even the Insurer did not take the said plea before the Tribunal. In view of the same, the contention of the Insurer that the accident was due to rash and negligent driving of the drivers of both vehicles cannot be accepted. Thus, there is no error in the finding of the Tribunal that the accident had occurred due to rash and negligent driving of the driver of the lorry warranting interference by this Court in the present appeal.

15. With regard to quantum of compensation, it is the contention of the learned counsel for the Insurer that the Tribunal erred in taking the monthly earning capacity of the deceased as Rs.10,800/- and also the age and the relevant multiplier as ‘18’. On the other hand, it is contended by the claimants that as on the date of accident, the deceased was 21 years and was prosecuting Engineering Course viz., B.Tech., (III-Year) in Al Habeeb College of Engineering and Technology at Damergidda Village of Chevella Mandal, Ranga Reddy District. Learned counsel appearing for the claimants would further contend that the deceased was clever, intelligent and hard-worker, he was scoring highest marks throughout his studies and used to get good rank. In support of the same, the claimants filed Exs.A6 to A13, which are educational and appreciation certificates. That apart, the deceased used to earn by way of tuitions in the evening and morning hours on working days. The deceased also used to earn an amount of Rs.5,000/- per month as a driver working on holidays. In support of the same, the claimants filed Ex.A14 - original driving license of the deceased. Thus, in all, the deceased used to earn an amount of Rs.15,000/- per month.

16. On perusal of the above said documents including Memorandum of marks etc., the deceased was a meritorious student, and several certificates were issued to that effect. To prove the income, earning capacity of the deceased, the claimants examined PW.2, classmate of the deceased in Engineering Course, who has completed Engineering from the very same college. Now, he got employment as a Quality Controller Engineer in Sri Sai Ram Industrial Equipments Private Limited in IDG Kajipally, Jinnaram Mandal of Medak District. He is getting salary of Rs.16,000/- per month including over time. According to him, had the deceased not died he would also be getting the very same salary. Ex.X1 is the salary certificate pertaining to PW.2.

17. To prove the age of the deceased, the claimants have filed Ex.A14 original driving license wherein the date of birth of the deceased is mentioned as 09.09.1990, whereas the accident had occurred on 16.06.2011. Therefore, by the date of accident, the deceased was 21 years. Thus, there is no error committed by the Tribunal in applying the multiplier ‘18’ while determining the compensation as per the principle held by the Hon’ble Apex Court in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121). Regarding income of the deceased, the Tribunal upon consideration of relevant documents has taken the monthly earning capacity of the deceased as Rs.10,800/-. The Insurer neither produced contra evidence, nor elicited anything to disprove the age and income of the deceased. Upon consideration of the entire material, the Tribunal has rightly awarded an amount of Rs.11,78,400/- with interest at 7.5% per annum thereon from the date of petition till realization fixing liability on both owner and insurer of the lorry. Therefore, this Court is satisfied with the said finding.

18. It is the contention of the learned counsel for the claimants that the claimants are entitled for more than the amount granted by the Tribunal. In fact, the claimants laid the claim for Rs.15.00 lakhs. Though the claimants have not filed any appeal or cross-objection in the present appeal seeking enhancement of compensation, still this Court being the appellate Court is having power to grant more compensation than the amount granted by the Tribunal. In support of his contention, the learned counsel for the claimants has relied upon a decision in Mandava Lakshminarayana v. K.V.S.S. Mallikarjuna Rao (2014 (3) ALD 395 (DB)rendered by a Division Bench of High Court of Judicature, Andhra Pradesh at Hyderabad, wherein it was held that if a victim of an accident or his dependants, are entitled for a particular sum, it is the duty of the Tribunal to determine the same in accordance with law. There are several precedents for the same. In the case on hand, the Tribunal has awarded an amount of Rs.11,78,400/- towards compensation under various heads to the claimants. Admittedly, the claimants neither filed appeal, nor cross-objection seeking enhancement of compensation. The facts in said decision and the facts in the case on hand are different and, thus, the said decision is of no assistance to the claimants.

19. The learned counsel for the claimants has also relied upon decision in Universal Sompo General Insurance Co. Ltd., v. Uma (2016 ACJ 2238)rendered by a Division Bench of Madras High Court, wherein observing that having regard to the error committed by the Claims Tribunal in not awarding a just and reasonable compensation under the relevant heads, the Division Bench, in exercise of the power under Order XLI, Rule 33 of CPC, inclined to rectify the same and suo motu enhanced the compensation.

20. The learned counsel for the claimants relied upon another decision in Mahant Dhangir v. Shri Madan Mohan (AIR 1988 SC 54)rendered by the Hon’ble Apex Court to the effect that the words “as the case may require” used in R.33 of Order XLI of CPC have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. He also relied on another decision in Panna Lal v. State of Bombay (AIR 1963 SC 1516)for the same proposition.

21. He has also relied on another unreported decision rendered by a learned Single Judge of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in National Insurance Company Limited v. Meenukuri Manjula @ Manga (Judgment dated 04.08.2017 in M.A.C.M.A. No.2272 of 2006). The facts in the said decisions and the facts in the case on hand are different and, therefore,

Please Login To View The Full Judgment!

they are not applicable to the claimants in the present case. 22. It is relevant to note that the Hon’ble Apex Court in Ranjana Prakash v. The Divisional Manager (2011) 14 SCC 639)held that where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. It was further held that the High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement. This decision was not referred to by the Division Bench of Madras High Court in Uma (supra). 23. In view of the above discussion and the principle held by the Apex Court in Ranjana Prakash (supra), the claimants are not entitled for more than the compensation granted by the Tribunal. Accordingly, the contention of the learned counsel for the claimants that the claimants are entitled for enhancement of compensation and this Court is having power to do so in the absence of appeal or cross-objections by the claimants is rejected. 24. For the foregoing discussion, the appeal is dismissed confirming the order and decree dated 17.07.2013 in M.V.O.P. No.2212 of 2011 passed by the Tribunal. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.
O R