HONOURABLE SRI JUSTICE NAGESH BHEEMAPAKA
M.A.C.M.A.No.1207 OF 2007
JUDGMENT:
This appeal is filed under Section 173 of the Motor Vehicles Act by the respondent No.2/The New India Assurance Company Limited, aggrieved by the award and decree, dated 08.11.2006 passed in O.P.No.80 of 2003 on the file of IV Additional District and Sessions Judge, Fast Track Court, Ranga Reddy District (for short "the Tribunal").
2. For the sake of convenience, the parties will be hereinafter referred to as arrayed before the Tribunal.
3. Brief facts of the case are that the on 06.01.2001 while the deceased Jahangir, being the driver of the Jeep bearing No.AP-07-H-2329 was proceeding from Finance Company at Mothkur towards Ghatkesar. At the same time, one Tractor also proceeded ahead of the Jeep. When the Jeep reached near HPCL Company, the tractor driver applied sudden breaks without any signals. Then the Jeep driver i.e., deceased dashed the jeep to the tractor to its behind. As a result, the jeep driver/deceased fell down and died on the spot. The Police Ghatkesar registered a case in Cr.No.6/2001. Thus, the 2 NBK, J MACMA_1207_2007 mother of the deceased has claimed Rs.4,36,500/- towards compensation for the untimely death of the deceased.
4. Before the Tribunal, the 1st respondent being the owner of the crime vehicle remained exparte. The 2nd respondent filed counter and denied the manner of accident narrated by the petitioner and stated that the respondent No.2/insurer is not liable to pay the compensation and prayed to dismiss the petition.
5. Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the accident occurred due to the rash and negligent driving of the vehicle bearing No.AP-7-H- 2329?
2) Whether the accident vehicle was insured with R2 and there is any violation of policy conditions?
3) To what relief?
6. During trial, on behalf of the petitioners, PW-1 and PW- 2 are examined and marked Ex.A-1 to Ex.A-5.
7. After considering the oral and documentary evidence available on record, the Tribunal held that the driver of the crime vehicle was responsible for the accident and accordingly 3 NBK, J MACMA_1207_2007 awarded an amount of Rs.2,10,000/- with interest @ 7.5% per annum from the date of petition till the date of realization with costs. Aggrieved by the said award and decree, the respondent No.2 has filed the present appeal.
8. Heard both sides and perused the record.
9. The learned counsel for the respondent/appellant strongly contended that the learned Tribunal ought to have dismissed the claim petition but erroneously allowed the same and further failed to see that just because an additional amount of Rs.15/- was paid to cover the liability of the paid driver will not give rise a right to the claimant to file claim petitioner under Section 166 of the M.V.Act.
10. A perusal of the impugned award would show that the Tribunal has framed Issue No.1 as to whether the accident has occurred due to rash and negligent act of driving of the driver of the lorry and came to the conclusion that the accident occurred due to negligence of the driver of the jeep i.e., deceased. It is to be seen that as per the evidence on record, the accident occurred due to the negligence of the deceased only who was a jeep driver, working under the 4 NBK, J MACMA_1207_2007 employment of respondent No.1, who is none other than paid driver, for which an additional premium of Rs.15/- has already been paid, as admitted by the appellant.
11. Further, it is the contention of the appellant that the claimant ought to have filed an application before competent authority i.e., Commission for Workmen Compensation but, as per Section 167 of M.V.Act, legal heirs of the deceased can seek their claim either under M.V.Act or Workmen Compensation Act but, cannot claim both the Acts. In the instance case, no proof is supplied to the effect that the claimant had sought relief under the both Acts. In view of the foregoing discussion, I see no reason to interfere with the finding of the Tribunal and there are no grounds to interfere with the findings arrived at by the Tribunal and the appeal is liable to be dismissed.
12. Accordingly, the M.A.C.M.A. is dismissed, confirming the award and decree dated 08.11.2006 passed in O.P.No.80 of 2003 on the file of the IV Additional District and Sessions Judge (FTC), Ranga Reddy District. There shall be no order as to costs.
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NBK, J MACMA_1207_2007
13. Miscellaneous petitions, if any, pending shall stand closed.
______________________ NAGESH BHEEMAPAKA, J 07.11.2023 VRKS