IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] THURSDAY,THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 856/2025 Between: 1. HDFC ERGO GENERAL INSURANCE COMPANY LIMITED, REP. BY ITS BRANCH MANAGER, 2ND FLOOR, POTIURI CASTLE, DWARAKANAGAR, VISAKHAPATNAM. ...APPELLANT AND 1. SHAIK MUNNI, W/O. LATE SHAIK YACOOB, AGED 29 YEARS,R/O. KRISHNA COLONY, BHEEMUNIPATNAM, VISAKHAPTNAM. 2. SHAIK NAUSHAD, S/O. LATE SHAIK YACOOB, AGED 15 YEARS, R/O. KRISHNA COLONY, BHEEMUNIPATNAM, VISAKHAPTNAM. (MINOR) 3. SHAIK HARSHAD, S/O. LATE SHAIK YACOOB, AGED 13 YEARS, R/O. KRISHNA COLONY, BHEEMUNIPATNAM, VISAKHAPTNAM. (MINOR) 4. SHAIK KARIMUNNISHA, , W/O. LATE USMAN GANI, MUSLIM, AGED 58 YEARS,R/O. KRISHNA COLONY, BHEEMUNIPATNAM, VISAKHAPTNAM. RESPONDENT NOS. 2 AND 3 BEING MINORS ARE REP. BY THEIR MOTHER AND NATURAL GUARDIAN, THE RESPONDENT NO.1 HEREIN 2 5. JAGANNADHA NARASINGA RAO YERRABABU, S/O. SURAPPADU, AGED 34 YEARS, R/O. H.NO. 655-153, REDDY VEEDHI, TAGARAPUVALASA, BHEEMUNIPATNAM MANDAL, VISAKHAPATANAM. 6. B NAVEEN KUMAR, S/O. YERRI BABU, AGED 38 YEARS, R/O. D.NO. 7-44-125, OLD LOCAL OFFICE, BHEEMILIPATNAM, VISAKHAPATANAM. ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toappellant company above named submits this Memorandum of Civil Miscellaneous Appeal before this Honble Court against the impuged order and the decree of the Motor Accidents Claims Tribunal -cum- I Addl District Judge at Visakhapatnam passed in MOP. No. 161 of 2012 dated 1-5- 2015, IA NO: 1 OF 2015(MACMAMP 4074 OF 2015 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased condone the delay of 10 days in presenting the above appeal. IA NO: 1 OF 2016(MACMAMP 796 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in pursuance of the order and the decree dt.01.05.2015 passed in O.P.No.161/2012 on the file of the court of MVACT-cum-I Addl District Judge, at Visakhapatnam pending disposal of the above appeal. Counsel for the Appellant: 1. NARESH BYRAPANENI Counsel for the Respondent(S): 1. S V R SUBRAHMANYAM 3 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 856/2025 JUDGMENT: Present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for brevity “Act”), assailing the order dated 01.05.2015 passed in M.O.P.No.161 of 2012 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam. 2. For the sake of convenience, parties herein are referred to as they were arrayed before the Tribunal. 3. Brief facts of the case are as follows: (a) This is a case of death. The claimants are wife, children, and mother of the deceased. The claim was preferred under Section 166 of the Act, claiming compensation of Rs.8,00,000/-. After contest, the Tribunal awarded Rs.8,00,000/- along with interest @ 7.5% per annum from the date of petition till realization. (b) On 12.01.2011 at about 13:45 hours at Relli Veedhi, Bheemili, the vehicle bearing No. AP 31 BE 4684 ran over on pedestrians who were waiting on the left side of the road margin and the same has resulted in death of two persons and also injury 4 to another person. A crime No.17/2011 came to be registered against the driver of offending vehicle for the offence under Section 304-A and 338 of IPC. Later, after investigation, charge sheet also came to be filed. (c) The deceased claimed to be eking out his livelihood by running a tailoring shop and was earning Rs.10,000/- per month and that he was aged 35 years, therefore, claim was made seeking compensation of Rs.8,00,000/-. The driver and owner of offending vehicle remained ex parte before the Tribunal. (d) The respondent No.3-Insurer filed written statement denying the manner in which accident occurred and a specific plea was taken that the driver of offending vehicle did not possess valid and effective license, therefore, the same amounts to breach of terms and conditions of policy. The age, avocation, and quantum of claim have already been disputed. (e) Based on the pleadings, the Tribunal has framed following issues: 1.Whether the deceased Shik Yacoob died in the accident due to rash and negligent driving of driver of Tata Sumo Grand Bearing No. AP 31 BE 4684? 2.Whether the petitioners are entitled to compensation, it so to what amount and from which of the respondent? 3. To what relief. 5 (f) On appreciation of evidence on record, the first issue has been answered in favour of the claimants by holding that the deceased died on account of rash and negligent driving of the driver of offending vehicle. Therefore, the compensation came to be assessed by considering the income of the deceased on notional basis as Rs.5,000/- per month. The Tribunal has assessed compensation as under: S.No. Description of the Head Amount Entitled in rupees 1 Net Annual Income Rs.5,000/- x 12 = Rs.60,000/- 2 Deduction towards personal expenditure (i.e., 1/4th ) Rs.15,000/- 3 Multiplier of 15 for the age of 35 years Rs.6,75,000/- 4 Funeral expenses Rs.10,000/- 5 Love and affection Rs.1,00,000 /- 6 Loss of consortium Rs.15,000/- 7 Total Compensation Rs.8,00,000/- (g) The Tribunal while considering the plea of Insurer that the driver of offending vehicle did not possess valid and effective driving license, under specific finding that inasmuch as in the charge sheet, which was marked as Ex. A5, it has been mentioned that the accused did not have driving license, therefore, it was inferred that the driver did not possess valid and 6 effective driving license. However, as deceased was a third party, it has applied the principle of “Pay and Recovery” and accordingly directed the appellant to initially pay compensation with liberty to recover the same. (h) Assailing these findings with respect to fastening of liability and also the quantum of compensation, present appeal is preferred. 4. Heard Sri Naresh Byrapaneni, learned counsel for the appellant and Sri S.V.R. Subrahmanyam, learned counsel for the respondents. 5. Learned counsel for the appellant-Insurer mainly contended that when the Tribunal found that the driver of offending vehicle did not possess valid and effective driving license, it ought not to have imposed any kind of liability as the same amounts to clear violation of terms and conditions of policy. It is his submission that the Tribunal even could not have applied the principle of “Pay and Recovery” expressly, as it was admitted that the driver did not possess valid and effective driving license, based on investigation report marked under Ex.A5. Insofar as quantum of compensation is concerned, the Tribunal ought not to have considered the income of deceased as Rs.5,000/- per month on notional basis and further erred in applying deduction of 7 1/3rd in arriving at the annual income of Rs.45,000/-. There is clear error in the calculation of quantum of compensation. 6. Per contra, learned counsel for the respondents/claimants tried to support the impugned order by contending that the Tribunal has rightly fastened the liability on the Insurer as well only to the extent of “Pay and recovery”, considering that the deceased was completely a third party and further that even otherwise, as it was pleaded case of insurer that the driver of offending vehicle did not possess valid and effective driving license, it was incumbent on it to clearly prove and establish the aforesaid fact. Though the Tribunal has tried to come to conclusion based on the charge sheet, same would not be sufficient to discharge the burden of proof at the behest of the Insurer, as neither the driver nor owner or RTA officer were examined to establish the aforesaid fact. 7. Coming to the aspect of quantum of compensation, it is contended that the earnings that were awarded under conventional heads are not in line with the dictum laid down by the Hon‟ble Apex Court in National Insurance Company Limited vs. Pranay Sethi & Others 1 . Therefore, the compensation requires to be revised accordingly. Even if there is no appeal or cross objections preferred by claimants, still while 1 2017 (16) SCC 680 8 considering the appeal of Insurer, it is the duty of the Court to see whether just and fair compensation was awarded. In support of the same, reliance has been placed on National Insurance Company vs. Kusum Rai and others 2 and Dadi Komuravva and others vs. Gadse Butchayya and others3. 8. Perused the record and considered rival submissions. 9. Whether in the facts and circumstances of the case, the order passed by the Tribunal is sustainable in applying principle of „Pay and Recovery‟ and whether the compensation determined is just and fair or requires any further enhancement. Liability: 10. It is not in dispute that accident occurred on 12.01.2011, was on account of run over of Tata Sumo Grand Bearing No. AP 31 BE 4684 on the pedestrians who were passing on margin of the road. It is also not in dispute that the deceased died on account of the said accident. The liability is sought to be disputed by the Insurer on the ground that driver of the offending vehicle did not possess valid and effective driving license. The claimants have exhibited evidence of eye witness-PW2 and also got marked Exs.A1 and A6 to support their case that the accident has occurred and the deceased died on account of the same. The 2 ACJ 2006-1336 3 2013 (4) ALT 327 9 police report and investigation establish the negligence on the part of the driver of offending vehicle, which are sufficient and valid piece of evidence to come to conclusion regarding the negligence and cause of accident. Since the Insurer has taken specific stand that the driver did not possess valid and effective driving license, it is for them to prove the said aspect. Faced with similar situation, while considering the burden of proof to be discharged by the Insurer Company when a stand of breach of terms of contract has been pressed into service, a coordinate bench of this Court in United India Insurance company Limited, Kurnool, vs. Madiga Thappeta Ramakka and others 4 held as follows: “7. In Narcinva v. Kamat v. Alfredo Antonio Martins (AIR 1985 SC 1281), referred to above, while considering the burden of proof and liability of the insurance company, the Supreme Court observed as follows: “When the insurance company complains breach of the terms of contract, which would permit it to disown its liability under, the contract of insurance, the burden is squarely on the insurance company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be „who would fail, if no such evidence is led‟. With this principle of law in view the evidence has to be judged. Merely non-production of licence or non-examination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of non-examination of the driver or non-production of the licence, the burden is discharged by a mere question in cross-examination nor the owner is under any obligation to furnish the evidence so as to enable the insurance company not to riggle out its liability under the contract of insurance. However, the R.T.A., who issues the driving licence, keeps record of the licence issued and renewed by it and the insurance company could have got the evidence produced to 4 1994 SCC OnLine AP 77 10 substantiate its defence. Not only this, no enquiries were made by the insurance company from the R.T.A. concerned regarding the fact of issue of a driving licence to Manoharlal. Hence, it would not give rise to an adverse inference about respondent No.1 being an unauthorized driver.” Following the above judgment of the Supreme Court, the High Court of Madhya Pradesh, Indore Bench in Karan Singh V. Manoharlar, 1989 ACJ 177, referred to above, observed that as the driver was not examined and as the insurance company did not call any record of the R.T.A. or any other evidence to establish that the driver had no driving licence, the insurance company has failed to discharge its burden by leading legal evidence. In New India Assurance Co. Ltd. V. C.B. Shankar, 1986 ACJ 821 (supra), referred to above, its was observed by the Madras High Court that in order to escape the liability, the insurance company is not only required to prove that the driver was not holding licence at the time of accident but also to prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. 8. Mere mention in the criminal Court‟s judgment about the driver not having a licence, muchless a valid driving licence is not sufficient. It is well established legal principle that the findings given in criminal court judgments cannot be taken and cannot be taken advantage in civil matters. As seen from the above pronouncements of the Supreme Court and other High Courts, the best method is to summon the driver to produce the driving licence, and also to take appropriate steps to examine him. If the driver is summoned and if he has produced the driving licence it is sufficient. If he did not respond to the summons and did not appear nor did he produce the driving licence, an adverse inference can be drawn that he was not holding a valid driving licence. It is also the duty of the Insurance Company to summon the R.T.A. officials to produce the driving licence as the R.T.A. who issues the driving licence keeps record of the licence issue and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. As already stated, if the driver, in spite of receipt of summons, has not been present and subjected himself for examination, the court is entitled to draw adverse inference. Whether a driver is having a valid driving licence or not is within the exclusive knowledge of the driver himself or at certain times the owner of the vehicle will be having that information as he is expected to know before he is taken as driver. The insurance company did not take any effective steps to discharge the burden.” 11. Even in the present case, the Insurer neither got examined driver, nor owner of offending vehicle or the concerned RTA 11 officer to substantiate its claim that there was no valid and effective driving license. Therefore, the conclusion arrived at by Tribunal based on charge sheet (Ex.A5) that the driver of offending vehicle did not possess valid and effective driving license is clearly unsustainable. Nevertheless, the Tribunal held that the Insurer has to pay the compensation awarded and later to recover the same from the owner of offending vehicle. The final conclusion so arrived by the Tribunal, in the opinion of this Court, does not warrant any interference. Accordingly, the issue is answered. Just and Fair Compensation: 12. It is settled law that the claimants are entitled for just and fair compensation and that endeavor should be made by the Court to award just and fair compensation irrespective of the fact the claimants had not preferred any appeal for enhancement or filed cross objection in the appeal filed by either Insurance Company or owner. We had summed up the law on this aspect recently in The Divisional Manager, The New Indian Assurance Company Limited v. Emani Venkata Archana and four others5, by placing reliance on the judgments of the Hon‟ble Apex Court in N.Jayasree v. CholamandalamMs.General 5MACMA No.934/2015, dated 09.01.2025 12 Insurance Company Limited6, Surekha v. Santosh7, Meena Pawaia v. Ashraf Ali 8 and Smt.Anjali v. Lokendra Rathod(Supra 5). As the purport of compensation under Section 166 of the Act is to award just and fair compensation, this Court is granting the above reliefs to the respondents/claimants by enhancing the compensation awarded by the Tribunal. 13. Considering to the contention that the Tribunal has erred in applying deduction of 1/3rd in arriving at the annual income instead of 1/4th as there are four claimants, on perusal of the computation made by the Tribunal it is evident that though it is shown in its order that 1/3rd has to be deducted towards personal expenditure, but calculation was made by considering deduction of 1/4th for arriving at the annual income. Therefore, there is no need to go into the said contention as the computation has been done by applying deduction of 1/4th. 14. On the point of conventional heads, as per the judgments in Pranay Sethi’s case (supra-1), Magma National Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others9,Smt.Anjali and others v. Lokendra Rathod and others10, United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder 6(2022) 14 SCC 712 7(2021) 16 SCC 467 8(2021) 17 SCC 148 9 (2018) 11 SCC 780 10 (2022) SCC OnLine SC 1682 13 Kaur and Ors.11., and Rojalini Nayak and Others v. Ajit Sahoo and Others12, the claimants are entitled to the following amounts under the conventional heads of Loss of Consortium, Loss of Estate and Funeral Expenses, i.e., ₹48,400/- (per claimant), ₹18,150/- and ₹18,150/- respectively, as was awarded in Rojalini’s Case(5-Supra). 15. Therefore, the compensation that the claimants would be entitled under the head of loss of dependency and other conventional heads, are revised as under: Compensation Heads Amount Awarded In Accordance with: Monthly Income Rs.5,000/- Yearly Income Rs.60,000/- Future prospects (Age being 35 years) Rs.24,000/- (40% of the income) National Insurance Co.Ltd. v. Pranay Sethi (2017) 16 SCC 680 Para 37, 39, 41, 42 and 59.4 Deduction (1/4) 84,000-21,000 =63,000 Multiplier (15) 63,000 X1 5 =Rs.9,45,000/- Loss of Income of the deceased Rs.9,45,000/- Loss of Estate Rs.18,150/- (with 10% National 11 (2021) 11 SCC 780 12 2024 SCC OnLine SC 1901 14 increase every 3 years from 2017) Insurance Co.Ltd. v. Pranay Sethi (2017) 16 SCC 680 Para 59.8 Loss of Funeral Expenses Rs.18,150/- (with 10% increase every 3 years from 2017) Loss of Consortium 48,400 X 4 (with 10% increase every 3 years from 2017) =Rs. 1,93,600/- United India Insurance Co.Ltd. v. Satinder Kaur, (2021) 11 SCC 780 Para 37.12 Rajwati alias Rajjo and Ors v. United India Insurance Company Ltd. and Ors. 2022 SCC Online Sc 1699 Para 34 Sadhana Tomar & Ors. v. Ashok Khushwaha & Ors. 2025 SCC Online SC 554 Para 17 Total Rs.11,74,900/- 15 16. Therefore, the respondents/claimants are entitled to a total compensation of Rs.11,74,900/- along with interest @ 7.5% per annum from the date of petition till realization. 17. Accordingly, this Court does not find any merit in the present appeal and the same is dismissed. Further, the appellant is directed to deposit the enhanced compensation amount, after deducting the amounts, if any, already deposited, within eight (08) weeks from the date of receipt of a copy of this order. Failing which, respondents/claimants are at liberty to initiate appropriate steps for recovering the same. On such deposit being made, the respondent Nos.1 to 4 claimants are permitted to withdraw the amount, in proportionate shares, as provided under the impugned order. It is also entitled to recover the same amount from the respondent Nos.1 & 2 as directed by the Tribunal. No costs. As a sequel, miscellaneous petitions, pending if any, shall stand closed. _____________________________ JUSTICE CHALLA GUNARANJAN Date: 25.09.2025 ANS 16 609 THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 856/2025 Date: 25.09.2025 ANS