Telangana High Court
Bajaj Allianz General Insurance Co. ... vs Jakeera Begum And 6 Others on 2 April, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
M.A.C.M.A.Nos.3831 of 2012 & 1271 of 2016
COMMON JUDGMENT:
M.A.C.M.A.No.3831 of 2012 has been filed by the Oriental Insurance Company and M.A.C.M.A.No.1271 of 2016 has been filed by the Bajaj Allianz General Insurance Company Limited, aggrieved by the Award, dated 19.06.2012, in M.V.O.P.No.499 of 2007, passed by the Special Judge for Trial of Offences under SC/ST (POA) Act-cum-V Additional District & Sessions Judge, Medak, at Sangareddy. Therefore, they are being disposed of by this common judgment.
2. Vide the impugned Award, the trial Court has awarded compensation of Rs.3,95,000/- to the claimants together with interest @ 7.5% per annum from the date of petition till the date of deposit of the amount, to be payable by the appellants herein/Insurance Companies jointly and severally.
3. The brief facts are that on 11.05.2007, the deceased while proceeding as a driver in the auto bearing No.AP-23B- 0039, dashed against a lorry, which was parked on the road without taking any precautionary measures. Due to the impact, the deceased received grievous injuries and was 2 initially admitted in Osmania Hospital, Hyderabad and from there, shifted to NIMS Hospital, where he died on 12.05.2007 while undergoing treatment.
4. The trial Court found that there was contributory negligence on the part of the deceased and also on the part of the driver of the lorry in not taking precautionary measures while parking the lorry on the road and accordingly, the liability was fixed at 50% on the part of the deceased and 50% on the part of the driver of the lorry.
5. Learned counsel appearing on behalf of both the Insurance Companies would submit that firstly, the deceased is not covered by the policy though it is a comprehensive policy. Secondly, the driving license of the deceased was not available and thirdly, once negligence is attributed at 50% on the part of the deceased, the question of maintainability of Section 166 of M.V. Act would not arise.
6. The burden to prove that there was no driving license of the deceased would lie on the Insurance Companies. No evidence is placed before the trial Court to show that the 3 driver of the lorry as well as the driver of the auto i.e., deceased were not having valid driving license.
7. The argument of the learned counsel for the Insurance Company that the claim cannot be maintainable under Section 166 of M.V. Act, when the negligence was fixed at 50% on the part of the deceased, cannot be accepted.
8. The learned counsel for the Insurance Company relied on the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., Vs. Premlata Shukla and others 1 and the judgment rendered by the Hon'ble High Court of Karnakata in the case of Appaji and another Vs. M. Krishna and another 2. The said judgments did not deal with contributory negligence, therefore, the judgments cited are not applicable to the facts of this case.
9. In the present case, the manner in which the accident occurred was considered and the trial Court found that both the parked vehicle and also the auto were responsible. The finding of the trial Court is based on the evidence of PWs.1 to 1 2007 ACJ 1928 2 2004 ACJ 1289 4
3. PW-1 is the claimant. PWs.2 and 3 are the witnesses, who were present when the accident has taken place and also present during the scene of offence proceedings. The policies issued to both the vehicles are comprehensive policies and the finding of the trial Court that there was contribution of both vehicles at 50% for the accident and both the Insurance Companies are jointly and severally liable to pay the compensation to the claimants, cannot be interfered with.
10. Accordingly, both the appeals are dismissed. There shall be no order as to costs.
Consequently, miscellaneous applications, if any pending shall stand closed.
____________________ K. SURENDER, J April 02, 2024.
PVT