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United India Fire and General Insurance Co. Ltd. Vs. Pallamparthy Indiramma and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal against Order Nos. 233, 234, 295 and 296 of 1979
Judge
Reported in[1983]54CompCas802(AP)
ActsMotor Vehicles Act, 1939 - Sections 95(2) and 110A
AppellantUnited India Fire and General Insurance Co. Ltd.
RespondentPallamparthy Indiramma and ors.
Excerpt:
.....the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when..........compensation for loss to the estate. towards the loss of consortium he awarded rs. 5,000. thus, he awarded a compensation of rs. 1,40,000 to the petitioners in o.p. no. 140 of 1977 and directed that the compensation amount be deposited by respondents nos. 1 and 3 jointly and severally. in o.p. no. 141 of 1977 he awarded a sum of rs. 12,160 towards special damages and rs. 5,000 as general damages. thus, a total amount of rs. 17,160 was rewarded as compensation payable by respondents nos. 1 and 3 jointly and severally. out of the total compensation of rs. 1,40,000 awarded in o.p. no. 140 of 1977, the tribunal directed that a sum of rs. 50,000 shall be paid to the first petitioner and the balance of rs. 90,000 shall be divided equally among petitioners nos. 2 to 4 and the said sum shall be.....
Judgment:

Chennakesava Reddy, J.

1. These four appeals are spawned by a common order passed by the Additional Motor Accident Claims Tribunal-cum-Additional District and Sessions Judge, Nellore, in two applications, viz., O.P. Nos. 140 and 141 of 1977, filed under s. 110A of the M.V. Act, 1939.

2. The facts and circumstances giving rise to these applications are these :

On April 6, 1977, at about 9.30 a.m. there was a motor accident on the Pennar Road Bridge near Nellore town involving the bus, APN 5938, and the scooter, AAU 889. P. Srinivasulu Reddy and his co-brother, P. Venkata Krishna Reddy, were going to Nellore on the scooter. Venkata Krishan Reddy was seated on pillion while Sreenivasulu Reddy was driving the scooter. When they were proceeding on the over bridge, the bus, APN 5938, owned by Challa Venku Reddy and driven by Shaik Peeran came from the opposite direction at a high speed. A row of bullock carts were passing in the same direction as the scooter towards Nellore. The scooter overtook some of the carts and it was passing the last bullock cart. The bus coming from the opposite direction dashed against the scooter. As a result of the rash and negligent driving of the bus by the driver, Sreenivasulu Reddy and Venkata Krishan Reddy received multiple injuries. Sreenivasulu Reddy died in the Government Headquarters Hospital, Nellore, on the same day. The injured, Venkata Krishna Reddy, was treated as an in-patient till May 1, 1977, and he was later admitted in a nursing home at Hyderabad for operation and treatment and, ultimately, discharged on June 16, 1977. The doctor, P.W. - 5, who examined Venkata Krishna Reddy, found a fracture of the right femur and a fracture of the patella and injuries on his right leg and opined that there was a restriction in the movement of his left leg due to the injuries. The legal representatives of the deceased, Srinivasulu Reddy, filed O.P. No. 140 of 1977 before the Tribunal claiming a total compensation of Rs. 2,50,000 out of which a sum of Rs. 2,25,000 was as compensation for loss to the estate, Rs. 20,000 towards compensation for loss of consortium and Rs. 5,000 for pain and suffering. The first petitioner is the widow of Srinivasulu Reddy and the other three petitioners are his minor children. According to the petitioners, the deceased, Srinivasulu Reddy, was a marketing agent from April 1, 1975, till the date of his death and his monthly income was Rs. 1,600 and he was also an income-tax assessee. He was aged 36 years and hale and healthy and had a very bright future. The owner of the bus, the driver of bus and the United India Fire and General Insurance Co. Ltd., with which the bus was insured, are impleaded as respondents Nos. 1 to 3, respectively.

3. Venkata Krishna Reddy, the other injured in the accident, filed O.P. No. 141 of 1977 claiming a total compensation of Rs. 30,000 towards special and general damages. According to him he is a junior engineer in the service of the Govt. of A.P. and his monthly income is Rs. 1,160. He is aged about 30 years.

4. Respondents Nos. 1 and 3 resisted the application contending, inter alia, that the second respondent was not guilty of rash and negligent driving and that it was the deceased who was driving the scooter rashly and negligently and that at any rate the compensation claimed was excessive and exorbitant. It was also pleaded by the first respondents that he was not liable to pay any compensation. Even if any compensation was found payable to the petitioner, it was only the third respondent that has to pay the compensation. The second respondent in his separate counter pleaded that the accident occurred entirely due to the negligent driving of the deceased, Srinivasulu Reddy, and in any case he was not liable to pay any compensation as he was only a driver. The two petitions were heard together. On the aforesaid pleadings, the Tribunal below framed the following common issues for trial.

1. Whether the petitioner sustained injuries as a result of the bus accident on April 6, 1977, and whether the said accident was due to the rash and negligent driving of the driver, the second respondent, of the bus, APN 5938, owned by the 1st respondent and insured with the third respondent

2. Whether the petitioner is entitled to any compensation If so, what is the quantum and from which of the respondents

3. To what relief the petitioner is entitled

5. On behalf of the petitioners, six witnessess were examined P.W. 1. - the petitioner O.P. No. 141 of 1977 - and P.W. 2 - M Satyanarayana - are the direct witness to the accident.

6. R.Ws. 1 and 3 are the driver and the conductor of the bus, respectively. The tribunal on an effective evaluation of the evidence held that the accident in which Srinivasulu Reddy died and P.W. 1 received injuries occurred due to the rash and negligent driving of the bus, APN 5938, by its driver, the second respondent, and that there was no contributory negligence on the part of late Srinivasulu Reddy. On the quantum of compensation, he accepted the evidence of P.W. 1, the evidence of P.W. 3 - the father-in-law of the petitioner in O.P. No. 140 of 1977 - and P.W. 4 - the partner of Mallikarjuna Agencies, Nellore - in which the deceased, Srinivasulu Reddy, was working as marketing agent and held that the monthly income of the deceased, Srinivasulu Reddy, at the time of his death could have been about Rs. 1,500 per month and in any event not less than Rs. 1,000 even if a wide margin was given. He held that the deceased would have spend on himself 1/4th of his earning and could have spread a bout Rs. 750 per month for the expenditure on his wife and children. He calculated his life expectancy at 60 years. Since the deceased was only 38 he calculated the total earning for 20 years and deducted the said amount by 25% because of the lump sum payment, and awarded a sum of Rs. 1,35,000 towards compensation for loss to the estate. Towards the loss of consortium he awarded Rs. 5,000. Thus, he awarded a compensation of Rs. 1,40,000 to the petitioners in O.P. No. 140 of 1977 and directed that the compensation amount be deposited by respondents Nos. 1 and 3 jointly and severally. In O.P. No. 141 of 1977 he awarded a sum of Rs. 12,160 towards special damages and Rs. 5,000 as general damages. Thus, a total amount of Rs. 17,160 was rewarded as compensation payable by respondents Nos. 1 and 3 jointly and severally. Out of the total compensation of Rs. 1,40,000 awarded in O.P. No. 140 of 1977, the Tribunal directed that a sum of Rs. 50,000 shall be paid to the first petitioner and the balance of Rs. 90,000 shall be divided equally among petitioners Nos. 2 to 4 and the said sum shall be invested in a scheduled bank in fixed deposits in their names for a period of sixty-one months.

7. Aggrieved by the order of the Tribunal, the insurance company has preferred C.M.A. Nos. 233 and 234 of 1979 against O.P. Nos. 140 and 141 of 1977 respectively and the petitioners in O.P. No. 140 of 1977 have preferred cross-objections in C.M.A. No. 233 of 1979 claiming that the Tribunal ought to have awarded a sum of Rs. 2,25,000 under the head loss to the estate and also awarded the other compensation claimed by the petitioners in the petition. The owner of the bus has filed C.M.As. Nos. 295 and 296 of 1979 respectively against the order of compensation awarded in O.P. Nos. 140 and 141 of 1977. The petitioners in O.P. No. 140 of 1977 have preferred cross-objections in C.M.A. No. 295 of 1979.

8. Mr. Babul Reddy, the learned counsel for the appellants in C.M.As. Nos. 295 and 296 of 1979 levels a chorus of criticism on the credibility of P. Ws. 1 and 2 to the accident. He submits that their evidence was highly interested and artificial and was unworthy of acceptance. According to him, the evidence of R.W. 1, the driver of the bus, was more cogent and convincing when we swore that he was only driving the bus at 15 or 20 K. ms. that the scooter suddenly overtook the cart and dashed against the bus and that he did his best to avoid the accident. He also submits that the amount of compensation awarded to the petitioners in O.P. No. 140 of 1977 was excessive. Even conceding that the deceased could have spared a sum of Rs. 750 every month out of earnings he argues that the said amount can easily be earned by way of interest by depositing a sum of Rs. 60,000 in a fixed deposit in any nationalised bank and that the appellant was prepared to make necessary arrangements so that the petitioners are paid by a nationalised bank every month a sum of Rs. 750, for a period of 20 years. He also submits that the Tribunal erred in granting a decree against the owner, and that the insurance company alone was liable for the entire amount of compensation. The learned counsel for the appellants in C.M.As. Nos. 233 and 234 of 1979 submits that the liability of the insurance company in respect of any accident is limited to a sum of Rs. 50,000 under s. 95(2)(b)(ii) of the M.V. Act. The learned counsel, on the other hand, appearing for the claimants, submits that the amount of compensation awarded was not fair and reasonable. Therefore, the questions that arises are :

(1) Whether the accident occurred due to the rash and negligent driving of the driver of the bus, APN 5938

(2) Whether the amount awarded is exorbitant and excessive

(3) Whether the extent of liability of the insurer in any one accident is always limited to Rs. 50,000 under s. 95(2)(b)(ii) of the M.V. Act

(1) Rash and Negligent driving :

The decision on this question depends upon the credibility of P. Ws. 1 and 2.

P.W. 1 is a junior engineer, Andhra Pradesh State Electricity Board. He was seated on the pillion of the scooter, AAU 889. The deceased Srinivasulu Reddy was driving the scooter. It is in the evidence of P.W. 1 that at about 9.30 a.m. on April 6, 1977, the scooter overtook 3 bullock carts on the Pennar Bridge and when it was about to overtake the 4th bullock cart, the bus, APN 5938, which was coming from the opposite direction, dashed against the scooter on the right side. According to him the bus came at a high speed and hit the scooter violently and as a result, the witness and Srinivasulu Reddy were thrown away from the scooter and both of them received injuries. The witness received a fracture of the chest and head resulting in the fracture of the ribs and scalp. The persons who gathered at the scene took P.W. 1 and the deceased in a car to the Govt. Headquarters Hospital, Nellore P.W. 1 gave the name of the person who followed to the hospital in the car as M. Satyanarayana, P.W. 2.

P.W. 2 has substantially supported the story unfolded by P.W. 1. According to P.W. 2 he was going on a cycle on the morning of April 6, 1977, at about 9-30 a.m. on the Pennar Bridge from South to North. He was siting on the carrier of the cycle while one Nageswararao was riding the cycle. The witness observed a scooter coming from the opposite direction. Four bullock carts, were also coming from the opposite direction. He also observed the bus, APN 5938, coming in the same direction as they were going on the bridge. When the scooter passed three carts and was about to pass the fourth bullock cart the bus overtook the cycle, on which the witness was travelling, at a high speed and dashed against the scooter. The driver of the scooter and the pillion rider were thrown off and the scooter fell on them. According to the witness, he and others took the injured persons in an ambassador car to the hospital and admitted both the injured persons in the hospital. As against the evidence of P.Ws. 1 R.Ws. 1 and 3 respectively. According to their evidence, the bus was going on the left side of the road and when the bus passed three bullock carts which were coming from the opposite direction, a scooter suddenly overtook the three carts and overtook the last cart and hit the bus. According to R.W. 1 he applied brakes and tried to avoid the accident, but still the bus hit the scooter R.W. 3, the conductor of the bus, corroborated the evidence of R.W. 1.

P.W. 2 is undoubtedly a disintered witness. His evidence is clear and clinching. He has categorically stated that after the scooter passed three bullock carts and was about to pass the fourth bullock cart, the bus came at a high speed, overtook their cycle and dashed against the scooter and the driver of the scooter and the pillion rider were thrown out. He was examined by the police even in the hospital itself, and P.W. 1 also mentioned the name of P.W. 2 as the person who took them to the hospital. Therefore, the presence of P.W. 2 at the time of the accident cannot also be doubted. In the circumstances, the Tribunal below rightly accepted the evidence of P.WS. 1 and 2 in preference to the interested testimony of R.WS. 1 and 3.

R.W. 1 is no other than the driver of the bus and R.W. 3 is the conductor of the bus. R.W. 1 also admitted that he also observed bullock carts coming from the opposite direction at a distance of 1 k.m. and he also admitted that another cycle was going in front of the bus. The Claims Tribunal has given very cogent and convincing reasons in paras, 20 and 21 of the judgment for accepting the evidence of P. WS. 1 and 2 in preference to that of R.WS. 1 and 3, even on the probabilities of the case. We entirely agree with the reasoning as well as the conclusion of the Tribunal and hold that the accident took place due to the rash and negligent driving of the driver of the bus, R.W. 1.

(2) Amount of damages The petitioners in O.P. No. 140 of 1977 claimed a total sum of Rs. 2,50,000 which includes a sum of Rs. 2,25,000 towards the compensation for loss to the estate and Rs. 20,000 towards compensation for loss of consortium and Rs. 5,000 for pain and suffering. According to the petitioners, the deceased, Srinivasulu Reddy, was a young man of 35 years and he was earning a sum of Rs. 1,600 per month and had a very bright future. The father-in-law of the deceased is examined as P.W. 3. It is clear from the evidence of P.W. 3 that his son-in-law, Srinivasulu Reddy, was a regular income-tax assessee from the year 1966 and Exs. A-19 to A-23 are the assessment orders which show that his net income ranged from Rs. 10,000 to Rs. 15,000 per year during 1966-71. In addition, it is in the evidence of P.W. 4, a partner of Mallikarjuna Agencies, that the deceased was appointed as marketing agent for the said firm on commission basis subject to a maximum of Rs. 20,000 per annum. It is evident from Exs. A-27 and A-29, the assessment orders for the years 1976-77 and 1977-78 that Srinivasulu Reddy was assessed on an income of Rs. 15,990 during the year 1976-77 and an income of Rs. 20,575 for the year 1077-78. Ex. A-26 is the certificate issued by the Principal, V. R. College, Nellore, that the date of birth of the deceased was July 1, 1938. So by the date of his death on April 6, 1977, he was aged about 39 years. According to P.Ws. 3 and 4 the deceased was hale and healthy at the time of his death and he was earning Rs. 1,500 to Rs. 1,600 per month. According to P.W. 6, the first petitioner in O.P. 140/77, they were spending about Rs. 500 per month on the family and that he was able to save the rest of the amount. According to her, her husband studied up to Intermediate. From the evidence of P. Ws. 3, 4 and 6 it is clear that by the time of his death, the deceased, Srinivasulu Reddy, was earning about Rs. 1,500 to Rs. 1,600 per month. The Tribunal, however, held that the income of the deceased could not have been less than Rs. 1,000 per month, even if a wide margin is given. In our opinion, the Claims Tribunal has erred on the side of liberality in adjudicating the monthly income of the deceased. However, it is unnecessary for us to go into that question since the petitioners have not questioned that finding.

9. The Tribunal having fixed the monthly income of the deceased at Rs. 1,000 allowed 1/4th of the income towards his personal expenses and held that he could have saved only Rs. 750 per month, and to that extent the estate of the deceased was deprived. He fixed the life expectancy at 60 years. Since the deceased was hale and healthy and was about 39 years, he held that he could have easily lived for another 20 years. He calculated the total loss suffered by the estate for 20 years at Rs. 1,80,000. He deducted 25 % of the said amount towards lump sum payment and determined the loss suffered by the estate at Rs. 1,35,300 and accordingly awarded the said amount under the head loss to the estate. In calculating the loss, the Tribunal below relied on the principle laid down by the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswami, : [1962]1SCR929 . Under the head of compensation towards loss of consortium the Tribunal found that P.W. 6, the widow of Srinivasulu Reddy, was aged about 31 years and that she has to undergo mental and physical agony throughout her lifetime and, therefore, awarded a sum Rs. 5,000. Thus, a total sum of Rs. 1,40,000 was awarded to the petitioners in O.P. No. 140 of 1977. We think the amount awarded is quite reasonable.

10. The learned counsel for the first respondent, Mr. Babul Reddy, urges that the amount awarded is exorbitant and excessive. According to him, the loss to the estate was only Rs. 750 per month and, therefore, a sum of Rs. 60,000 deposited in any bank will fetch an income of Rs. 750 per month by way of interest. He submits that the appellant would deposit the said amount in fixed deposit for a period of 20 years in a nationalised bank and the petitioners would be empowered to withdraw the interest on the said amount. He, therefore, submits that the compensation of Rs. 1,40,000 under any circumstance is exorbitant and excessive. We are unable to accede to this contention. What s. 110A contemplates is compensation for the death or injury and not any substitute for the loss of income and the compensation has to be ascertained in a fair and reasonable manner. The compensation awarded in this case is undoubtedly just and reasonable.

11. As regards the award of compensation to the petitioner in O.P. No. 141 of 1977, the learned counsel have not seriously disputed that it is excessive or exorbitant. Therefore, the amount of compensation awarded to the petitioner in O.P. No. 141 of 1977 is also confirmed.

12. The learned counsel for the appellant-insurance company submits that the extent of liability of the insurer is, in any one accident, always limited to Rs. 50,000 under s. 95(2)(b)(ii) of the M.V. Act and the Tribunal committed an error in making the insurer also liable for the entire amount of compensation of over Rs. 1,50,000. Great support is sought for from the decisions of the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters' Insurance Co. Ltd. : AIR1971SC1624 and Smt. Manjushri Raha v. B. L. Gupta : [1977]2SCR944 . But the insurer never raised this plea before the Tribunal in the written statement; no issue was framed and no evidence was recorded. The insurance policy was not produced to show that the policy did not cover higher risks than the prescribed compulsory insurable risks. Section 95 only prescribes the minimum requirements of an insurance policy and the limits of liability of the insurer thereunder. It does not preclude and prohibit a party from covering higher risks. In the absence of insurer. We cannot properly permit the insurer to raise the said question for the first time in this court. This view of ours finds support form the decision of the Allahabad High Court in National Insurance Co. Ltd. v. Narendra Kumar [1981] ACJ 93; [1983] 53 Comp Cas 669 and of the Madhya Pradesh High Court in Shamlal v. New India Assurance Co. Ltd. [1979] ACJ 208.

13. In the result, all the appeals and the cross-objections fail and they are accordingly dismissed. No costs.


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