THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
M.A.C.MA. No.763 of 2017
ORDER:
Being aggrieved by the judgment and decree of chairman, Motor Accident Claims Tribunal cum Principal District Judge, Adalibad dated 23.03.2015 in M.V.O.P. No.316 of 2011 whereunder the tribunal awarded a sum of Rs.14,21,040/- as compensation on account of the death of one Manda Srinivas hereinafter referred as deceased with costs and interest etc., the second respondent in the said OP, filed this Civil Miscellaneous Appeal under section 173 of M.V.Act on the following grounds:
The tribunal while granting compensation against the 6th respondent and appellant herein failed to see that the deceased in the case was riding the motor cycle having borrowed the same from his friend i.e. insured of the motor cycle and was going on the work with his friend and met with an accident within the police station limits of Regonda. The Tribunal failed to note that the deceased was not an employee of the insured for fixing liability in the case against the insured and the insurer of the motor cycle and by riding a motor cycle he stepped into the shoes of the owner/insured. Therefore the MACMA.No.763 of 2017 2 deceased or his legal representatives are barred from claiming compensation against the vehicle and its insurer but the Tribunal without going into this settled aspect and without following the settled law wrongly fastened the liability of payment of compensation on the present appellant. Therefore it is liable to be set aside.
2. The appellant further claimed that the Tribunal failed to consider that the accident caused because of the rash and negligent driving of the deceased itself, when the deceased was riding the bike on the material time there by for the own fault of the deceased neither he nor his legal representatives can seek remedy under section 166 of M.V.Act but the Tribunal ignored the settled principles of law and committed a grave error in fixing the liability on the appellant thereby sought for setting aside the award.
3. The following is the brief case of claim filed by the respondents/claimants before the Court below:
On 19.02.2009 at about 8.30 pm the deceased was proceeding on a motor cycle bearing No.AP01 P 2928 along with his friend under the instructions of one Mr.Venugopal the owner of the motor bike who is shown as first respondent in the OP MACMA.No.763 of 2017 3 and 6th respondent in the present appeal. While he was on the way all of a sudden he found a pig coming across the road thereby the deceased applied sudden brake due to which he lost control over the bike and fell down along with the pillion rider and he received head injury on the left side apart from other factures. He was immediately shifted to Singareni hospital, Bhoopalapalli and after first aid he was taken to Medicity hospitals, but while under going treatment he died on 05.03.2009.
4. The family members of the deceased filed this petition claiming that the deceased was aged about 42 years he was working as an employee in Singareni Collieries Company Limited, Bhoopalapalli, he was hale and healthy and earning Rs.17,765.67/- ps. and contributing his earnings for the welfare of the respondents/claimants. In view of the accident they lost the breadwinner of the family and thereby they filed the petition against the owner and also insurer from whom a policy was obtained for the bike and sought for Rs.25,00,000/- towards compensation. The present appellant contested the petition, filed a counter disputing the material averments including the MACMA.No.763 of 2017 4 manner of accident, age, income etc. of the deceased and prayed for dismissal of the petition.
5. The tribunal framed the following issues:
1. Whether the accident took place as alleged by the petitioners on 19.02.2009 near Regonda police station of Warangal district resulting in the death of Manda Srinivas while the deceased was going by motorcycle bearing No. AP.01P 2928 as per the directions of first respondent?
2. Whether there was any insurance coverage for the motor cycle bearing No. AP.01P.2928 and if so, does the policy cover the risk of deceased and if so, was there any breach of policy condition alleged by the second respondent?
3. What were the age, avocation and the earnings of deceased?
4. What is the appropriate multiplier applicable in this case?
5. Whether the petitioners are entitled to any compensation if so to what extent and against whom?
6. To what relief?
6. During enquiry the wife of the deceased was examined as PW1, two more witnesses were examined. They have marked Ex.A1 to A9 and Ex.X1 to X4. The respondents including the appellant herein did not adduce any oral or documentary evidence. The learned Chairman of the Tribunal having appreciated the contentions of both parties and evidence placed before him believed the case of respondents and allowed the petition in part granting a sum of Rs.14,21,040/- as MACMA.No.763 of 2017 5 compensation with costs and interest at the rate of 7.5% per annum from the date of accident till realisation.
7. Heard both parties.
8. Now the point for consideration is Whether the tribunal committed any error in allowing the petition filed by the respondents in part and by granting a sum of Rs.14,21,040/- against the claim filed by the respondents for Rs.25,00,000/-, if so whether the order is liable to be set aside?
9. The appellant who is an insurance company from which the 6th respondent owner of the bike obtained a policy against the motor bike that involved in the accident filed this appeal mainly on the ground that the respondents cannot maintain petition under section 166 of M.V.Act, since the accident was caused without involvement of any other vehicle and according to the appellant the accident occurred due to the own negligence of the deceased. Therefore petition under section 166 of M.V.Act is not maintainable. The appellant further contended that when once the deceased obtained motor bike of his friend and used the same on the work entrusted by the owner of the bike was a third party policy. Therefore the deceased cannot be MACMA.No.763 of 2017 6 treated as a third party and no petition can be allowed for compensation under the above stated circumstances, as such, they prayed for setting aside the order.
10. The learned counsel for the respondents has submitted that the Court below having appreciated the entire oral and documentary evidence considered the contention of the appellant herein and categorically held that though the petition was filed under section 166(1) (c) of M.V.Act the Court below treated the petition as a petition under section 163(a) of M.V.Act and having appreciated the oral and documentary evidence passed a reasoned order thereby there are no grounds to interfere with the findings and sought for dismissal of the appeal.
11. As per the entire oral and documentary evidence now available before this Court, it is very clear that the vehicle involved in the accident belongs to the 6th respondent herein. There is no doubt about the deceased obtaining the bike and about the accident while he was proceeding on the bike. It is a fact that no other vehicle involved in this case and it was a specific contention of the respondents that having noticed a pig crossing the road, the deceased tried to control the vehicle by MACMA.No.763 of 2017 7 applying sudden brakes but the deceased fell on the road and received fatal injuries.
12. The tribunal appreciated the above circumstances and after perusing the record came to the conclusion that in-spite of the fact that the petition was filed under section 166 (1) (c) of M.V.Act but he has treated the petition as if under section 166
(a) of M.V.Act.
13. The Court below placed reliance on a judgment between Royal Sundaram Alliance Insurance Company Limited Vs. A.Meenakshi and others 1 and came to conclusion that since the deceased obtained the motor cycle from his friend died in an accident he can be treated as third party and claim filed by the respondents is covered under the policy obtained from the appellant herein. The learned chairman, Motor Accident Claims Tribunal considered the contentions of the appellant herein and by treating the deceased as a third party answered the issue against the appellant and other respondent being owner of the vehicle, therefore the appellant herein cannot claim any relief under this ground.
1 2009 ACJ 2218 MACMA.No.763 of 2017 8
14. The appellant did not raise any objection with regard to the quantum of the compensation. In fact the Court below having appreciated the oral and documentary evidence and salary certificate of the deceased assessed the compensation following the settled principles of law and awarded proper amount. Therefore, there are no merits to interfere with the said findings. Consequently the appeal is liable to be dismissed.
15. In the result the appeal is dismissed. No order as to costs.
Miscellaneous applications, if any pending, shall also stands closed.
_________________________________ JUSTICE SAMBASIVARAO NAIDU Date: 20.09.2023 BV